The Post-Legislative Powers of the Commission Delegated and Implementing Acts
1 The New Institutional Context
A basic act is established by the Legislator Subsequent decisions are needed Intervention of the Commission Ordinary legislative procedure (co decision) Special legislative procedure (Council with consultation or consent of Parliament) To IMPLEMENT the legislative act To SUPPLEMENT or AMEND the legislative act IN ITS NON ESSENTIAL ELEMENTS
Before Lisbon Treaty A single Treaty basis Article 202 A single legal framework Comitology Decision of 1999, amended in 2006 COMITOLOGY ONLY Committees of Member States + Strong role for the Council Commission prepares a draft Discussions within a committee Opinion (vote of the committee) Positive opinion No opinion Negative opinion Adoption Referral to Council
Differences between Comitology Committees and Expert Groups Comitology has a limited scope: control of the executive powers of the Commission Comitology committees always created by the legislators Comitology committees composed by all Member States Opinions delivered by Comitology committees have a direct impact on the decision-making process Expert Groups: advice and expertise to the Commission in relation to the preparation of legislative proposals, policy initiatives and delegated acts, as well as to the implementation of existing legislation Expert Groups normally established by the Commission. In some cases they are set up by the legislator Expert groups may be composed of individuals, organisations in the broad sense of the word and Member States' authorities Opinions of Expert Groups cannot bind the Commission
Before Lisbon Treaty EVOLUTION of COMITOLOGY Progressively, the Parliament gained some powers within the comitology process Right of information 1999 2006 Right of scrutiny, in order to indicate that a draft implementing act exceeds powers conferred on the Commission ( droit de regard ) Veto right on quasi legislative measures prepared by the Commission (Regulatory Procedure with Scrutiny, known as PRAC ) But still it was Comitology, with predominance of Member States and Council
After Lisbon Treaty Two Treaty bases Article 290 Delegated acts No Comitology Two completely separate legal frameworks Article 291 Implementing acts New Comitology Ex-post control by the two legislators Control by Member States only (no role for the Council)
Most important and sensitive issue Delineation between Article 290 and Article 291 Why it s important? 1. Misuse of the criteria could affect the legality of the legislative act. 2. It affects also the legality of the acts the Commission will have to take after the adoption of the legislative acts. In particular, Commission cannot use implementing powers to amend or supplement a legislative act.
Most important and sensitive issue Delineation between Article 290 and Article 291 What are the criteria? 1. Delegated acts are always acts of general application. Implementing acts could be individual or general. 2. Delegated acts amend or supplement the legislation. Amend formally modify the legislative act. Supplement establish new non-essential rules which complete or specify the contents of the legislative act, notably by adding new obligations. Implementing acts cannot modify the legislative act. They are intended only to give effect to the rules determined by the legislator.
Supplement vs. Implement 3 Ground Rules Comply only with the legal criteria established by the Treaty and disregard other criteria: the political sensitivity or the technicality of the measures to be taken are not relevant. The WHY question: assess the objectives of the power to be conferred. Why the Commission needs such powers? To modify the legislation or to merely execute it? The WHAT and HOW questions: ask whether the power conferred on the Commission is to determine WHAT the Member States must do (delegated acts) or to determine HOW they are to act in carrying out their obligations under the basic act (implementing acts).
A Few Examples (1) Reg. 2111/2005 of 14.12.2005 List of air carriers subject to an operating ban within the Community Decision to modify the annex containing the common criteria for imposing operating bans, in particular in order to take account of scientific and technical developments Supplementing Amending Decision to impose an operating ban Implementing
A Few Examples (2) Reg. 853/2004 of 29.04.2004 Specific hygiene rules for food of animal origin Food business operators shall not use any substance other than potable water to remove surface contamination from products of animal origin, but the use of another substance may be decided Supplementing Amending
A Few Examples (3) Dir. 2001/18 of 12.3.2001 Deliberate release into the environment of genetically modified organisms (GMO) Establishment of criteria and information requirements to be met for the notification for the placing on the market of certain types of GMO Supplementing Amending Decision on a safeguard clause used by a Member State Implementing
A Few Examples (5) Dir. 2010/40 of 07.07.2010 Intelligent Transport Systems Specifications necessary to ensure compatibility, interoperability and continuity for development and operational use of ITS Supplementing Amending Measures to facilitate Member States cooperation Implementing
A Few Examples (6) Reg. 995/2010 of 20.10.2010 Obligations of operators who place timber and timber products on the market Establishment of further risk assessment criteria. Supplementing Amending Rules concerning the frequency and the nature of the checks necessary to ensure the effective oversight of monitoring organisations Implementing
2 Delegated Acts
Article 290 Treaty Commission s communication (December 2009) Council s declaration (December 2009) EP resolution (May 2010) Agreement between institutions Common Understanding (March 2011) Internal guidance Operational Guidelines for the Services of the Commission (June 2011)
Need to to respect the Common Understanding The three institutions committed themselves to respect the arrangements they agreed upon in this document (exchange of letters between Mr Buzek, Barroso and Martonyi). Political and institutional obligation to comply with its provisions. Derogations should be exceptional and based on solid grounds. The Common Understanding is a very useful tool to avoid institutional controversies in each legislative file. Need to streamline the practice and to establish agreed clarifications and preferences. It is very important to follow the rules established by the Common Understanding, especially the models for recitals and articles and the framework defined for the preparation of delegated acts.
Preparation of delegated acts Autonomy of the Commission 2 major commitments of the Commission No Comitology No other forms of similar procedures Commitment to consult experts from national authorities of all 27 Member States in a timely manner. Rights of the EP: if EP so requires, Commission may invite Parliament s experts to attend expert meetings. Commitment to inform the legislator Documents sent in parallel to the experts and to EP s and Council s functional mailboxes. These commitments are set out in a standard recital to be inserted each time the legislator delegates powers to the Commission.
Expert Meetings to prepare delegated acts Experts appointed by all the Member States European Parliament s experts may ask to be invited Flexibility to invite other experts, especially from EEA States. No opinion delivered. Autonomy of the Commission as regards the results of the consultations.
Control of delegated acts 1. Objection Commission Adoption of of the the delegated delegated act act Notification of of the the delegated delegated act act RIGHT TO OBJECT Time-limit (generally 2 months with possible extension for the same period) Council Parliament 1) If EP or Council expresses objections 2) If neither EP nor Council has objected or if they have both informed Commission that they don t have the intention to raise objections. The delegated act cannot enter into force. The Commission may prepare and adopt a new one. Publication and and entry into into force force of of the the delegated delegated act act
Control of delegated acts 2. Revocation At any moment after the entry into force of the legislative act Council Parliament or Decision to revoke shall state the delegated powers which are subject of the revocation RIGHT TO REVOKE The decision to revoke puts an end to the delegation of powers specified in that decision. It doesn t affect the validity of delegated acts already in force.
3 Implementing Acts
Basic elements of Article 291 Member States are responsible for the implementation of the Union law. The Commission is entrusted this role of implementation where uniform conditions for implementation are necessary (the Council may also exercise implementing powers in some very specific cases). It is therefore the Member States which have to control the Commission when the latter exercises its implementing powers. Rules and general principles concerning mechanisms for control by Member States of the Commission s exercise of implementing powers have to be laid down by a Regulation adopted under co decision by EP and Council.
Brief Overview of the Negotiating Process Proposal of the Commission (COM (2010) 83). Opening of the negotiations in Council and Parliament. March 2010 Negotiations on a compromise, notably on common commercial policy, led by Belgium Presidency. Compromise found in Council on November, 12 th. July - November 2010 Agreement approved in COREPER and voted in JURI EP committee Vote in Plenary. December 2010 Formal adoption and publication February 2011 ENTRY INTO FORCE ON 1 ST MARCH 2011 Regulation 182/2011/EU of 16 February 2011
Main Changes 1 No interference of the Legislator No more possibility to refer cases to Council. An appeal committee intervenes in certain circumstances, but this body is a comitology committee, chaired by the Commission. Only the Member States, by QMV, may block the adoption of an implementing act. Droit de regard of the Legislator does not entail automatic suspension of the decisionmaking process. 2 Wider margin of appreciation for the Flexibility Commission after the vote of a committee, especially where there is no QMV against nor in favour.
Main Changes 3 4 Efficiency Smooth implementation of the reform Only 2 procedures instead of 4 (advisory and examination), with possibilities to take urgent decisions without prior consultation of a committee in some circumstances. Appeal Committee faster than referral to Council. Automatic and immediate adaptation between the old and the new system.
A comitology committee is always created by the legislator. In the basic legislative act, the legislator shall: Confer implementing powers on the Commission where the conditions of Article 291 are met (need for uniform conditions of implementation) Decide whether it s necessary to impose a control to the Commission s implementing powers If it deems necessary to impose a control, decide which comitology procedure shall apply, examination or advisory (decision to be taken for each implementing power conferred on the Commission). Criteria are set out in Article 2. Decide whether the committee assisting the Commission in accordance with the comitology procedures should be a new one or an existing one.
Commission - Chairperson Observers (third countries, international organisations) COMITOLOGY COMMITTEE Basic procedural rules in the Comitology Regulation (Art. 3 in particular) Internal rules of procedure (Art. 9) 27 Member States
Participation of third parties (Art. 7, standard rules) Paragraph 1, official status Need of a legal basis: Articles 81, 100 and 101 of EEA Agreement, or a specific legal basis Paragraph 2, acceding countries As from the date of the signature of the Treaty of Accession Paragraph 3, new room for participation More flexibility, but possibility for the Member States to oppose
Role of third parties (Art. 7, paragraph 3, standard rules) Third States are OBSERVERS Participation in the discussion No vote Full information Article 100, EEA Agreement
Role of the Commission in a Comitology Committee
Right of Information (Art. 10) EP and Council have access to the following information, via the Comitology Register: Agendas, Voting results, Summary records, Lists of authorities and organisations represented in committees, Draft implementing acts submitted to committees, and final drafts after the vote. Right of scrutiny (Art. 11) Where the basic act is adopted under the ordinary legislative procedure, the European Parliament and the Council may at any time indicate to the Commission that they consider a draft implementing measure to exceed the implementing powers provided for in the basic act. In such a case, the Commission shall review the draft measure in question and shall inform the European Parliament and the Council whether it intends to maintain, amend or withdraw the draft implementing measure
Only the Member States take part in the vote Advisory Procedure Examination Procedure Committees follow Council voting rules Simple majority Qualified majority Positive opinion Number of votes in favour 0 255 345 Negative opinion Number of votes against No opinion 345 255 0
Advisory Procedure The Chair (representative of the Commission) submits a draft implementing act to the committee Negotiations within the committee Committee delivers an opinion, if necessary by a vote (simple majority) Commission shall decide on the measures to be taken, taking the utmost account of the conclusions drawn from the discussions within the committee and of the opinion delivered
Examination Procedure (First Part) The Chair (representative of the Commission) submits a draft implementing act to the committee Negotiations within the committee Committee delivers an opinion by QMV Negative opinion Commission cannot adopt (except in exceptional cases of disruption of agricultural markets) No opinion Commission may adopt (or not adopt, or amend and come back to the committee) Positive opinion Commission shall adopt Commission may amend and come back to the committee or refer the case before the appeal committee In some cases Commission cannot adopt. 1) In certain policy areas, or 2) if basic act so provides, or 3) if a simple majority voted against. In such cases Commission may amend and come back to the committee or refer the case to the appeal committee
Examination Procedure (Second Part) If the Chair (representative of the Commission) decides to refer the case before the appeal committee Consultations with Member States, in order to fix the date of the meeting and to assess the level of representation within the appeal committee Appeal committee meeting Appeal committee (chaired by the Commission) delivers an opinion by qualified majority No opinion Commission may adopt (or not adopt) Negative opinion Commission cannot adopt (and shall repeal the adopted acts in cases of disruption of agricultural markets) Positive opinion Commission shall adopt
How to to apply instruments adopted before March 1 st st,, 2011? Where there are references to the advisory procedure Where there are references to the advisory procedure Automatic transformation New advisory procedure applies Where Where there there are are references to to the the management and regulatory procedures Automatic transformation New examination procedure applies Where Where there there are are references to to the the regulatory procedure with scrutiny (PRAC) NO automatic transformation
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