Implementing and delegated acts Flashcards
Implementing Acts
Article 291 TFEU: The first paragraph clarifies that MS are primarily responsible for the implementation of Union Law. The second paragraph states that where uniform conditions for implementing legally binding Union acts are needed, those acts must confer implementing powers on the Commission (or on the Council in exceptional cases).
Delegated Acts
Article 290 TFEU: The legislator delegates the power to adopt legal acts of general application to the Commission in order to supplement or amend certain non-essential elements of a legislative act.
Guidelines on Implementing acts
Comitology Regulation, 2011: Adopted by EP and Council to lay down the rules and general principles concerning mechanisms for control by MS of the Commission’s exercise of implementing powers.
Guidelines on Delegated Acts
- Common Understanding, 2011: The EP, Council and Commission agreed on a Common Understanding on delegated acts in 2011, based on a Communication on the implementation of Art 290 TFEU by the Commission (9 December 2009), a declaration by the Council (14 December 2009) and resolution by the EP (5 May 2010).
- Institutional Agreement on Better Law-Making, 2016: Updated Common Understanding on delegated acts established in 2011.
Empowerment of the Commission
- Delegated Acts: The Commission acts instead of and under the control for the legislator
- Implementing Acts: The Commission acts instead of and under the control of Member States
TFEU on empowerment
- Lisbon TFEU distinguishes between acts of a quasi-legislative nature (delegated acts, Art 290) and acts which implement the provisions of a basic act (legislative acts, Art 291)
- The term “delegated” or “implementing” shall be inserted of the title of delegated acts and implementing acts, respectively (Articles 290 and 291).
Sources of empowerment
- Delegated acts: Delegation of power in the sense of Article 290 may be conferred only by a legislative act (i.e., regulations, directives, decisions adopted by OLP or SLP). Otherwise, the legislator cannot delegate powers to the Commission under Article 290.
- Implementing acts: Implementing powers may be conferred on the Commission by legally binding Union acts under Art 291, incl. legislative acts (i.e., regulations, directives, decisions adopted by OLP or SLP) and acts of the EP/Council/both which are not adopted in a legislative procedure.
Choosing between delegated act and implementing act
- Choice between type of act is (to some extent) political, given the limited judicial control over the choice between supplementing in the meaning of Article 290 TFEU and implementing in the meaning of Article 291 TFEU gives the legislator some discretion.
- Acts that could be both: Cases such as acts establishing a procedure, a method or a methodology, acts relating to an obligation to provide information and acts relating to authorisations.
Limites of delegated and implementing acts
- Delegated and implementing acts cannot modify or lay down essential elements of the area and must be limited to non-essential elements
- Whereas EP/Council/Commission agree that delegated acts can only adopt legally binding acts under Article 290 TFEU, the EP and Council disagree with the Commission that implementing acts should only adopt legally binding acts.
Adopting delegated acts
Adopting delegated acts
1. Mandatory consultation by Commission of MS’ experts in the preparation of draft delegated acts
2. Better regulation: stakeholders, citizens can provide feedback during a 4-week period.
3. Commission adopts draft delegated act
4. Ex-post control by Council and EP, whereby (i) EP/Council may object to delegated act within a period set by the legislative act and (ii) EP/Council may revoke the power of delegation
Adopting implementing acts
[Right of scrutiny: The EP/Council may at any time indicate that the EC exceeds its implementing power]
1. Commission submits draft implementing act to examination committee composed of representatives of MS (comitology)
2. Commission is assisted by examination Committe, which either (i) enter into a examination procedure (committee delivers positive or negative opinion by QMV) and EC adopts (if positive opinion) or (ii) enter into an advisory procedure (Commission takes utmost account of committee but is not legally bound by it).
Better Regulation on implementing/delegated acts
As part of the Commission’s better regulation agenda, citizens and other stakeholders can provide feedback on the draft text of a delegated and implementing act during a four‑week period. There are some exceptions, for example, in case of emergency or when citizens and stakeholders have already contributed.
