"The Treaty of Lisbon (TFEU) significantly changed the theory and practice of the delegation of executive powers to the European Commission - it split the ‘old’ world of comitology into two with the creation of Delegated and Implementing Acts (Articles 290+291 TFEU).
The new Implementing Acts Regulation came into force on 1 March 2011 and a Common Understanding on Delegated Acts was published on 4 April 2011. With these two new publications, and through other related developments, it is a good time to take stock of where we stand with ‘new comitology’ – and to identify what you need to keep your eye on.
There are four main developments to keep in mind at the moment:
- The first place to start is perhaps the most clear-cut area – that of the new Implementing Acts Regulation, which automatically aligned the ‘old’ comitology procedures on 1 March 2011. In essence this means that the Management and Regulatory Procedures became the Examination Procedure, and the Advisory Procedure stayed the same as before.
The Appeal Committee, a new creation in the Regulation (which replaced the old ‘referral to Council’), held its first meeting on 1 April 2011 and adopted its rules of procedure (yet to be published) – but this virtual group of member-state representatives (representation to be decided on a case-by-case basis) will be called to meet in the coming months, so we will know more about how they work in practice then.
So in the world of Implementing Acts it is currently a question of getting to grips with the new procedures and the workings of the Appeal Committee, and once the rules of procedure of the Appeal Committee, and the new rules of procedure of comitology committees (expected anytime now) are published, then we will have everything we need to understand this new world of comitology. At the same time there is a strong element of business as usual about Implementing Acts, because they replicate so closely the ‘old’ comitology system.
- In the world of Delegated Acts the story is somewhat more complicated, even if Delegated Acts have been legally applicable since the entry into force of the Treaty of Lisbon in 2009. The complication arises from the fact that Delegated Acts are a totally new creation - but we already have numerous examples of secondary legislation foreseeing Delegated Acts, and a number of actual Delegated Acts already adopted.
So to get to grips with the new system we can learn from the nascent practice of Delegated Acts – and in addition from the recently published (4 April 2011) Common Understanding on Delegated Acts – a document that outlines what Delegated Acts are and how they work.
We have good experience of Delegated Acts being negotiated in co-decision and also of adopting Delegated Acts themselves – which means we can now see patterns developing in the use of expert groups being consulted (and the Parliament being invited – and present), of the different institutional understandings/positions on Delegated Acts and on how Parliament and Council are creating mechanisms to deal with rights to object to, or revoke, Delegated Acts or the delegation.
- It is in the area of the third main development that complications start to arise. This is the realm of the transition that will take place from the Regulatory Procedure with Scrutiny (RPS) to Delegated Acts – an exercise that is scheduled to be completed before the next European Parliament elections in 2014.
The Commission made this promise via a declaration published at the same time as the Implementing Acts Regulation – in which it stated that it will assess all legal acts with RPS in them by the end of 2012. This process has already started and all DGs have presented to the Secretariat-General their individual lists of legal acts containing RPS.
The Commission will proceed by making modified legislative proposals for each individual act at the time of the foreseen legislative review – so for legislative texts with RPS in that have a legislative review clause in 2011-12-13 the timing of the modified legislative proposal is clear.
For those texts that do not have a foreseen legislative review in 2011-12-13 there is currently no clear deadline, with the spectre of an omnibus alignment to group them all together looming on the horizon.
This alignment exercise is worth keeping an eye on because the switch from RPS to Delegated Acts changes the procedure quite significantly and, in addition, the modified legislative proposals to include Delegated Acts require a co-decision procedure and this opens the door for one (or both) of the legislators to request further tweaks or changes in the body of the text.
- The final development that concerns new comitology is a second extremely important alignment exercise: basic acts not under the co-decision procedure before the Treaty of Lisbon, which now need to be adapted to take into account Delegated and Implementing Acts.
This exercise involves notably the alignment of the whole agricultural acquis with Delegated and Implementing Acts (some 48 basic acts in DG AGRI) – but DG AGRI is not alone with this large alignment task, as DG SANCO also has 70 basic acts (in a total of some 153 basic acts across all DGs).
The Commission will be coming forward with these alignment files between now and 2014. For many of these files the task is even greater, and more important for stakeholders, because for the first time the legislators have to decide whether a task delegated to the Commission is an Implementing Act, a Delegated Act or whether it should stay in the basic act.
It is for this reason that the alignment of these 153 basic acts (especially those experiencing co-decision for the first time) is proving to be a steep learning curve.
So the two new worlds of comitology are currently generating significant volumes of developments to keep an eye on, from new Implementing Acts procedures and the operation of the Appeal Committee to the switch from RPS to Delegated Acts and the alignment of 153 basic acts to Implementing and Delegated Acts.
Keeping up with all of these developments is an important exercise for all concerned stakeholders, because changes that are made now via alignment exercises will set the rules on how Implementing and Delegated Acts are to be adopted by the Commission for a number of years to come.
The ongoing alignment exercises are also expanding the remit of Delegated and Implementing Acts – making them by far one of the most important domains of EU decision-making.
Under the Barroso I Commission (2004-2009) there were already 14,522 legally binding implementing measures, compared to only 454 legislative acts.
This number will only increase in the future, and as many important localised decisions (the devil is in the detail) are taken in Implementing and Delegated Acts all stakeholders should keep an eye on all of these important changes."
For a detailed look at how these two new worlds work, see the EIPA Essential Guide.