Delegated and Implementing Acts: The New Comitology

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV Media network.

On 16 December the European Parliament approved a new EU regulation on so-called 'implementing acts' and the Council of Ministers should now ratify the text, which will establish two new worlds in EU comitology: 'delegated' and 'implementing' acts, write Dr Alan Hardacre and Dr Michael Kaeding from the European Institute of Public Administration (EIPA).

This analysis was sent exclusively to EURACTIV by EIPA.

''The Treaty of Lisbon significantly changed the theory and practise of the delegation of implementing powers to the European Commission – but it has taken us a full extra year to find out exactly how.

On 16 December 2010 the European Parliament voted [to adopt] the new Implementing Acts Regulation, which the Council will now ratify for a First Reading Agreement. This will bring to a close nine months of negotiations. With this text we eventually know what the future will look like for the two new worlds of comitology: Delegated and Implementing Acts.

This new system represents the latest change in a long line of adaptations to the system of delegating implementing powers to the Commission. But it is without doubt the most significant reform there has been in terms of legal basis, procedure, institutional balance and implications for stakeholders working with the system.

It will fundamentally alter the way comitology works, and in turn the way everyone works with the new system of delegated and implementing acts. What we need to know is what has changed and what this means in practical terms.

To start with, the so-called comitology system (and the name) has become partially redundant. With the entry into force of Articles 290 and 291 TFEU, we have two new legal bases in the treaties, which now regulate what was known as comitology. This means we have two possible avenues for delegating powers to the Commission – the comitology world has been split into two.

The first category (Article 290 TFEU) is that of delegated acts as the successor to the Regulatory Procedure with Scrutiny (RPS) that was introduced in 2006 – but there are significant changes. The main aspects of delegated acts are highlighted below:

  • Sensitive policy issues for the legislators;
  • No binding framework – Common Understanding;
  • Objectives, content, scope and duration are decided on a case-by-case in each legislative act;
  • Commission can supplement, amend or delete non-essential elements of legislative act;
  • Issues of general scope only;
  • No comitology committee;
  • Legislators can object to individual measures on any grounds;
  • Legislators can revoke the entire delegation of powers to the Commission, and;
  • Has been in force since the entry into force of the Treaty of Lisbon.

Examples of delegated acts include issues like deciding on the use of body scanners in airports, or children's loop-belts in airplanes, detailed implementing rules in financial services legislation or changing lists of products and restricted substances in environmental legislation.

Two main changes need to be highlighted: firstly, the system of delegated acts does not foresee any comitology committees – they have been abolished and replaced by the legislators' extended powers of veto and revocation.

This said, the Commission will still need to consult with member states while drafting a delegated act – which will likely be facilitated by some form of expert group. The second major change refers to the legislators' right of veto on any grounds – which is likely to have important consequences. It will lead to changes in the practising of oversight by the legislators, much heavier lobbying and more objections.

There will not be an automatic alignment from RPS to delegated acts. Instead, basic acts will be revised progressively at the time of their legislative revision, meaning that RPS will continue to exist as a procedure in committees, albeit one that will slowly but surely disappear over the years. The Commission has committed [itself] to finalising these legislative revisions, replacing RPS with delegated acts, by the end of 2014.

The second category (Article 291 TFEU) is that of implementing acts. Here we find the 'traditional' comitology system and procedures that were in operation before Lisbon, although with some changes. The main aspects of implementing acts are highlighted below:

  • Routine implementation of EU legislation by the Commission;
  • A binding framework – Implementing Acts Regulation;
  • Can only implement clearly defined tasks;
  • Can be issues of general or individual scope;
  • Advisory and Examination Procedures;
  • Control by Comitology Committees – one representative from each member state;
  • Referral to an Appeals Committee, and;
  • Will enter into force, with an automatic alignment, on 1 March 2011.

Examples of implementing acts include the awarding of funds or grants within EU projects, implementing the CAP [Common Agricultural Policy] and Fisheries Policy, implementing Annual Action Programmes for 3rd countries and market authorisations (for GMOs, for example).

The main changes from the past are related to the procedures we will now use. The big change here is the merger of the old management and regulatory procedures into the new examination procedure – and the fact that the Common Commercial Policy was also aligned with this examination procedure.

What does all of this mean? Delegated acts are an entirely new world, notably with the abolition of comitology committees – although it is clear that the Commission will simply use another form of group for discussions, i.e. expert groups and EU agencies.

The powers of the legislators are now considerable with the discretionary right to revoke either an individual measure or the delegation altogether. Whilst the revocation of an individual measure remains a drastic thing to do, the fact that the legislators can now object on any grounds will open the doors to an increased number of objections – more likely from the Parliament on the back of heavy lobbying.

Implementing acts will remain subject to comitology committees and the process of the Commission submitting draft measures for discussion and vote. Entering into force on 1 March 2011, an automatic alignment will guarantee an immediate switchover of procedures for committees. The main interesting development to watch here will be how Common Commercial Policy measures adapt to the new examination procedure.

From all this we, expect that the changes will:

  1. Make comitology more transparent and accessible – especially delegated acts;
  2. Increase the likelihood of more challenges to delegated acts by both legislators but more likely Parliament;
  3. Make the adoption of delegated acts slower – because the extra control takes time;
  4. Increase discussions of delegated and implementing acts in the codecision phase of the EU policy cycle, and;
  5. Open the door for more lobbying on delegated acts.

As this new system is unlikely to change for some years to come it is important to get to understand all the 'ins' and 'outs' of these two new worlds of comitology.''

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