Implementing & Delegated Acts
Some Principles
‘filling in the gaps’
or
‘dealing with details’
Executive Acts: why?
Commission
EP Council
CO-DECISION
PROPOSES LEGISLATION
Legislative Process
Default = execution by the Member States
Article 291 of the Treaty (TFEU)
1. Member States shall adopt all measures of national law
necessary to implement legally binding Union acts.
Default = execution by the Member States
• Explicit delegation
• Implicit delegation
Example of explicit delegation
Article 13 of the Draft Regulation Supervisory body
1. Member States shall designate an appropriate body ...
Supervisory bodies shall be given all supervisory and investigatory
powers that are necessary for the exercise of their tasks.
Example of implicit delegation
Article 5 of the Draft Regulation
Mutual recognition and acceptance
When an electronic identification using an electronic identification means and authentication is required under national legislation or administrative practice to access a service online, any electronic identification means issued in another Member State falling under a scheme included in the list
published by the Commission pursuant to the procedure referred to in
Article 7 shall be recognised and accepted for the purposes of accessing this
service.
Commission
EP Counil
CO-DECISION
PROPOSES LEGISLATION
Legislative process: second possibility
NON-LEGISLATIVE ACTS
EP Commission Council
(+ experts)
12to48monthsstoseveralmonths
• Uniformity: one single executive act at the EU level
• Speed: faster than co-decision
• Efficient: does not block EP/Council
• Reactive: no need to convene ministers, MEPs
• Expertise: technical details need specialist knowledge But:
• Democracy?
• Accountability?
• Transparency?
WHY?
• Implementing Acts
• Delegated Acts
2 Types of Executive Acts
1. Implementing Acts
Article 291 TFEU
1.
2. Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission, ...
3. For the purposes of paragraph 2, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall lay down in advance the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers.
4. The word "implementing" shall be inserted in the title of implementing acts.
2. Delegated Acts
Article 290 TFEU
1. A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act.
The objectives, content, scope and duration of the delegation of power shall be explicitly defined in the
legislative acts. The essential elements of an area shall be reserved for the legislative act and accordingly shall not be the subject of a delegation of power.
2. Legislative acts shall explicitly lay down the conditions to which the delegation is subject; these conditions may be as follows:
(a) the European Parliament or the Council may decide to revoke the delegation;
(b) the delegated act may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the legislative act.
For the purposes of (a) and (b), the European Parliament shall act by a majority of its component members, and the Council by a qualified majority.
Delegated Acts
Article 290 TFEU
1. A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act.
The objectives, content, scope and duration of the delegation of power shall be explicitly defined in the
legislative acts. The essential elements of an area shall be reserved for the legislative act and accordingly shall not be the subject of a delegation of power.
2. Legislative acts shall explicitly lay down the conditions to which the delegation is subject; these conditions may be as follows:
(a) the European Parliament or the Council may decide to revoke the delegation;
(b) the delegated act may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the legislative act.
For the purposes of (a) and (b), the European Parliament shall act by a majority of its component members, and the Council by a qualified majority.
BASIC ACT
WHO’S INVOLVED (in both cases)?
COMMISSION ADOPTS NON-LEGISLATIVE ACT Consults expert
committees
Commission proposes
Legislator (EP & Council)
controls (scrutiny or
veto)
Around 250 committees of national experts, chaired by the Commission
WHO’S INVOLVED
Delegated acts
Non-legislative act
Amend/supplement legislation
Non-essential
Delegated acts
Non-legislative act Amend/supplement legislation Non-essential
Implementing acts
Non-legislative act Implement legislation
Often essential
• No formal committees of national experts:
Commission formally acts alone
(but… informal consultation with national experts)
• No horizontal procedure, only treaty rules:
Legislator decides case-by-case on how to delegate (but… ‘common understanding’ to avoid confusion)
• Strong powers for legislator
Either EP or Council can veto measure or revoke power
• Inter-institutional parity
DELEGATED ACTS: KEY FEATURES
• No formal committees of national experts:
Commission formally acts alone
(but… informal consultation with national experts)
• No horizontal procedure, only treaty rules:
Legislator decides case-by-case on how to delegate (but… ‘common understanding’ to avoid confusion)
• Strong powers for legislator:
Either EP or Council can veto measure or revoke power
• Inter-institutional parity:
DELEGATED ACTS: KEY FEATURES
No horizontal procedure, only treaty rules:
Legislator decides case-by-case on how to delegate – in terms of objectives, content, duration and scope
Common understanding gives basic models:
‘COMMON UNDERSTANDING’
• No formal committees of national experts:
Commission formally acts alone
(but… informal consultation with national experts)
• No horizontal procedure, only treaty rules:
Legislator decides case-by-case on how to delegate (but… ‘common understanding’ to avoid confusion)
• Strong powers for legislator:
Either EP or Council can veto measure or revoke power
• Inter-institutional parity:
DELEGATED ACTS: KEY FEATURES
• EP and Council cannot amend draft measures
‘Nuclear options’: veto or revoke power
• Big majorities needed to veto or revoke:
• EP: absolute majority of all MEPs
• Council: qualified majority
• Any reason allowed for veto or revocation
VETOING OR REVOKING POWERS
• Formal committees of national experts:
Commission cannot act as it wishes
• Horizontal procedures laid down by EP and Council:
‘Advisory’ and ‘examination’ procedures
• Weaker powers for legislator:
Only right of scrutiny – oblige Commission to review act
IMPLEMENTING ACTS: KEY
FEATURES
• Formal committees of national experts:
Commission cannot act as it wishes
• Horizontal procedures set by EP and Council:
‘Advisory’ and ‘examination’ procedures
• Weaker powers for legislator:
Only right of scrutiny – oblige Commission to review act Inter-institutional disparity
IMPLEMENTING ACTS: KEY
FEATURES
Advisory procedure:
• ‘Default’ procedure
• Used for funding decisions; less controversial measures
• Commission takes ‘utmost account’ of committee’s views Examination procedure:
• Applies to issues of ‘general scope’ or ‘sensitive topics’ – e.g. trade, taxation, health, environment, agriculture, …
• Committee votes on measures
• Appeal committee (deputy perm reps) may intervene Member states keep significant control
IMPLEMENTING ACTS: TWO PROCEDURES
EXAMINATION PROCEDURE
Commission proposes
QM +
COM may adopt unless:
Simple majority against Basic act forbids
‘Sensitive topic’
EXAMINATION COMMITTEE
No QM
QM - ACT ADOPTED
COM acts:
(Within two months) Submits new draft act (Within one month) Send to appeal cttee
EXAMINATION PROCEDURE
QM +
COM may adopt unless:
Multilateral trade safeguard On sensitive issues, decision must reflect predominant view APPEAL COMMITTEE
No QM
QM - ACT ADOPTED
ACT NOT ADOPTED
Delegated acts Implementing acts
Supplement and amend ‘non essential elements’
Role
Provide uniform conditions for
implementing EU acts General application
ScopeGeneral or individual
application No (not formally)
Expertcommittees
Yes
In individual legislation + ‘common understanding’
Legal basis
Horizontal EP/Council Regulation
EP/Council can veto or revoke delegation
Scrutiny
