The Lisbon Treaty introduced a new system of delegated and implementing acts to replace the previous ‘comitology’. The introduction of the system has caused interinstitutional woes, with the alignment of pre-Lisbon legislative acts being blocked on an issue of principle. After several postponements, the Commission is about to propose a way out of this situation. On 19 May it will adopt a proposal for a new Interinstitutional Agreement on Better Regulation. In this entry Dr Sabina Lange, Team Leader on ‘Delegated and Implementing Acts’ at the European Institute of Public Administration (EIPA) in Maastricht, analyzes the pending issues regarding delegated and implementing acts which are likely to be subject of delicate balance in the proposal and ensuing interinstitutional negotiations.

The Lisbon Treaty’s split of the old ‘comitology’ world in two: delegated and implementing acts

More than five years ago the Lisbon Treaty shook the ‘comitology’ world by introducing a new system of delegated and implementing acts. The old system was split in two. Implementing acts largely continue the ‘comitology’ tradition of setting up rules needed for implementation of policies at the EU level. They involve committees composed of member states’ representatives, which in the majority of cases issue a binding opinion on a draft before it can be adopted by the Commission.

The newly introduced, ´quasi-legislative´, delegated acts allow the Commission – pending ex-post objection by the European Parliament or the Council – to lay down further rules to manage EU policies. These acts are similar to measures adopted under the so-called ‘regulatory procedure with scrutiny’ (RPS, also known under the French acronym PRAC), in which the legislators have exercised veto rights prior to the Commission´s formal adoption since 2006.

While the three institutions involved – the Commission, the European Parliament and the Council – have been getting to grips with the new distinction, various issues have revealed different views over three underlying principles of the post-Lisbon system:

First, the prolonged negotiations on legislative acts over the subsequent use of one or another type of act which marked the previous legislative period, have raised the question of delineation between implementing acts (‘comitology’ measures) and delegated acts (new quasi-legislative acts).

It would be too simplistic to reduce the delineation question to institutional preferences stemming from the procedures for their adoption (the legislators being on an equal footing in the case of delegated acts, where the Commission also has significant autonomy, while the procedures for adoption of implementing acts provide for larger control by the member states over the Commission and leave the Parliament with a non-binding droit de regard). The issue of delineation reflects the unsatisfactory legal distinction between the two types of acts in the Lisbon Treaty. In the Biocides case the Court of Justice provided limited guidance on the matter by noting ‘that the EU legislature has discretion when it decides to confer a delegated power on the Commission pursuant to Article 290(1) TFEU or an implementing power pursuant to Article 291(2) TFEU’ (para 40 of CJEU judgement on C-427/12) and by adding that ‘judicial review is limited to manifest errors of assessment’. One can say that the Court helped open the way for a new interinstitutional accord on the matter.

Second, the Commission’s preparation and adoption of delegated acts highlight the issue of ‘appropriate’ consultations at expert level with the member states Consultations involving member states’ experts are a broadly used tool in the preparation of Commission proposals and drafts. However, in legislative processes as well as in ‘comitology’, consultation is followed by formalised procedures in which member states negotiate, between themselves and with the Commission, on the basis of the Commission’s proposal. The procedure established by the Lisbon Treaty for the adoption of delegated acts deprives member states of the second step (negotiations), leaving them only with the ‘take it or leave it’ option, namely objecting or not to the Commission’s proposal. This explains the importance for member states of consultations in the preparation of delegated acts. A greater role for member states in the Commission’s preparation of delegated acts, however, needs to be balanced with respect for the Commission’s autonomy.

Third, the European Parliament calls for more transparency in the process. Unlike in the case of ‘comitology’ measures or implementing acts, there is no similar ‘register’ so far in place for delegated acts. During the parliamentary hearings prior to the EP’s approval of the new Commission in 2014, Mr Timmermans showed support for more transparency and public consultations on draft measures and, pending the views of other institutions, possibly setting up a dedicated register for delegated acts.

The Commission sets the ball rolling: the proposal for a new Interinstitutional Agreement on Better Regulation

As a result the alignment to the post-Lisbon system of the 288 pre-Lisbon legislative acts identified as still providing for RPS has been blocked in Council until the issues of principle (predominantly that of consultations) can be resolved.

Already during the parliamentary hearings, the European Commissioner-designate for better law-making and inter-institutional issues, Mr Timmermans, deplored the continuous use of RPS. He promised ‘renewed energy to secure an agreement’ to fully Lisbon-ize existing legislation by completing the alignment.

After months of reflection on the method, process, nature and scope of the possible document the Commission has started eventually to set the ball rolling. A non-paper in March was followed by a series of interactions between Mr Timmermans and decision-makers in the Council and in the European Parliament. After a number of postponements, the proposal for a new Interinstitutional Agreement, including suggestions on how to overcome the impasse regarding delegated and implementing acts (alongside elements concerning Union programming, the conduct of legislative negotiations and better regulation), is foreseen to be published on 19 May.

Expect the major lines of the Commission’s proposal to balance carefully the abovementioned issues and principles. The balancing act is not only between its own prerogatives (autonomous organization of its work, right of initiative) and that of the legislators in a highly charged and politicized post-Lisbon institutional environment. It will also involve the member states and other stakeholders. Given the political will in all three institutions and careful consultations thus far, the negotiations should not be too lengthy. However, their length will depend on the shared perception among the institutions on the maneuvering space for negotiations within a single issue (e.g. delegated and implementing acts) or across other issues included (or not) in the agreement.

Dr. Sabina Lange is Lecturer and Team Leader on ‘Delegated and Implementing Acts’ at the European Institute of Public Administration (EIPA) in Maastrichtat (@SabinaKLange)

Author : European Institute of Public Administration