Abstract
Delegated and implementing acts are ubiquitous forms of EU rule-making. However, the Treaties do not contain much information on what they are and how they are to be adopted. This chapter will show that delegated and implementing acts constitute relevant rule-making exercises and provide a background discussion on their adoption.
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Notes
- 1.
In a random sample of 20 official journals (L-series) from August and September 2015 (OJ numbers 221-240), I found 1 legislative act and 66 non-legislative acts (excluding from the selection acts obviously relating to the Common Security and Foreign Policy or to international relations). The numbers only change very slightly when only acts of general application are counted (including decisions addressed to all Member States); in this case, 1 legislative act is observed compared to 58 non-legislative acts.
- 2.
Cf for example Commission Implementing Regulation (EU) 2015/1609 of 24 September 2015 approving propiconazole as an existing active substance for use in biocidal products for product-type 7 [2015] OJ L249/17.
- 3.
Commission Delegated Regulation (EU) No 114/2013 of 6 November 2012 supplementing Regulation (EU) No 510/2011 of the European Parliament and of the Council with regard to rules for the application for a derogation from the specific CO2 emissions target for new light commercial vehicles [2013] OJ L38/1.
- 4.
Commission Regulation (EC) No 692/2008 of 18 July 2008 implementing and amending Regulation (EC) No 715/2007 of the European Parliament and of the Council on type-approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information [2008] OJ L199/1.
- 5.
These are typically the white labels with a list of categories ranging from A (or sometimes A+++) to F found on appliances in stores. See for example Commission Delegated Regulation (EU) No 1059/2010 of 28 September 2010 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of household dishwashers [2010] OJ L314/1.
- 6.
Cf, for example, the coverage in the guardian at the time: http://www.theguardian.com/lifeandstyle/2013/may/23/olive-oil-producers-rage-european-u-turn.
- 7.
The legal act in question would have constituted an amendment to Commission Implementing Regulation (EU) No 29/2012 of 13 January 2012 on marketing standards for olive oil [2012] OJ L12/14. This act has been amended several times. For the amendment history and a consolidated version see http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02012R0029-20141213.
- 8.
Commission Regulation (EC) No 244/2009 of 18 March 2009 implementing Directive 2005/32/EC of the European Parliament and of the Council with regard to ecodesign requirements for non-directional household lamps [2009] OJ L76/3.
- 9.
Technically, this ban took the form of a Commission act, as implementing acts were introduced together with delegated acts only by the Treaty of Lisbon (Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007 (entered into force 1 December 2009) [2007] OJ C306/1). However, the Commission acts which were common before the Lisbon Reform translate into delegated and implementing acts after this reform. Given that only the process for their adoption has changed, I treat the pre-Lisbon acts and the post-Lisbon acts in the same manner. However, the description of adoption procedures I provide below refers to the post-Lisbon situation.
- 10.
For example, by determining whether the companies registering products with biocides have to pay for tests certifying their safety.
- 11.
Commission Implementing Regulation (EU) No 402/2013 of 30 April 2013 on the common safety method for risk evaluation and assessment and repealing Regulation (EC) No 352/2009 [2013] OJ L121/8.
- 12.
- 13.
Consolidated Version of the Treaty on the Functioning of the European Union [2010] OJ C83/47 (TFEU) art 290.
- 14.
Art 291 TFEU.
- 15.
- 16.
- 17.
This division was originally proposed in the Constitution for Europe, and was the outcome of the discussion in the ‘Working Group on Simplification’. Cf Convention Working Group IX, Final Report of the Working Group IX on Simplification (CONV 424/02, WG IX 13, 2002).
- 18.
Power of legislative delegation [2010] European Parliament Resolution, P7 TA(2010)0127.
- 19.
Craig (2016), p. 173.
- 20.
Cf Sect. 1.2.2.
- 21.
Case C-427/12 European Commission v European Parliament and Council of the European Union (2014) not yet published: Court reports—general (ECLI:EU:C:2014:170); Case C-65/13 European Parliament v European Commission (2014) electronic reports of cases: Court reports—general (ECLI:EU:C:2014:2289); Case C-88/14 European Commission v European Parliament and Council of the European Union (2015) electronic reports of cases: Court reports—general (ECLI:EU:C:2015:499).
- 22.
- 23.
Tauschinsky (2018), p. 305.
- 24.
While the legislative mandate is a formal requirement only for delegated acts, and implementing acts can be adopted on the basis of mandates included in other legal acts as well, implementing acts also will be adopted on the basis of a legislative mandate in the overwhelming majority of cases.
- 25.
While there are comprehensive delegated and implementing acts, these will likely provide the specifications required through a number of mandates throughout the legislative act. For example, the Delegated Act and Implementing Act of the Union Customs Regime unites the specifications required in more than 50 legal mandates of the Union Customs Code in one act. Commission Delegated Regulation (EU) 2015/2446 of 28 July 2015 supplementing Regulation (EU) No 952/2013 of the European Parliament and of the Council as regards detailed rules concerning certain provisions of the Union Customs Code [2015] OJ L343/1; Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council laying down the Union Customs Code [2015] OJ L343/558.
- 26.
The ‘essential elements’ doctrine was developed by the CJEU long before the Lisbon Treaty was envisioned, with the Lisbon Treaty thus codifying case law. In these cases the Court did not make any substantive difference between delegation and implementation for this non-essentialness requirement, so that the case-law doctrine must be considered to apply to both. The Court recently made this clear in Case C-363/14 European Parliament v Council of the European Union (Europol) (2015) electronic reports of cases: Court reports—general (ECLI:EU:C:2015:579) para 46.
- 27.
For a summary of this jurisprudence see Case C-355/10 European Parliament v Council of the European Union (Schengen Border Code) [2012] electronic reports of cases (ECLI:EU:C:2012:207, Opinion of AG Mengozzi) para 26 et seq. The Court focused on the invalidity of the specific delegated/implementing act even where it was quite clear that any act adopted under the delegation of power would suffer from the same faults, and the question was thus whether the act of delegation was legal rather than whether the adopted delegated act was legal. See Case C-355/10 European Parliament v Council of the European Union (Schengen Border Code) (2012) electronic reports of cases: Court reports—general (ECLI:EU:C:2012:516). For a discussion of this case see den Heijer and Tauschinsky (2013), p. 513.
- 28.
But see Case C-359/92 Federal Republic of Germany v Council of the European Union [1994] ECR I-03681 (ECLI:EU:C:1994:306), and also Case C-270/12 United Kingdom of Great Britain and Northern Ireland v European Parliament and Council of the European Union (2013) electronic reports of cases: Court reports—general (ECLI:EU:C:2014:18). This latter case did not concern delegation to the Commission, but to the European Securities Market Authority (ESMA). While the Meroni case (Case 9/56 Meroni & Co v High Authority of the European Coal and Steel Community [1958] ECR English special edition–133 (ECLI:EU:C:1958:7)) is still often cited as a precedent for questions of delegation, the facts should be somewhat distinguished from the present case. The delegation of power in Meroni was a delegation from a Treaty body (the High Authority) to a body established by secondary law, and that it served to take the exercise of power outside the systems of protection established by the Treaties. These two factors play an important role in the Courts reasoning in Meroni. Neither of these would come into play concerning delegated/implementing acts, which are adopted by a Treaty body (the Commission) and which have to comply in full with the procedural protections granted by EU law.
- 29.
The Court adopted the somewhat circular formula that, where a legal act contains the potential to interfere with human rights such as to require the involvement of the legislator, the legal act may not take the form of a delegated act. Schengen Border Code (n 27) para 77. Despite the circularity, it becomes clear that the interference with human rights is in itself liable to constitute an essential element of a regime. However, the conditions under which interference with human rights is likely to be recognised as constituting an ‘essential element’ are unclear; in Europol (n 26), the Court found that the fact that a decision impacted on fundamental rights could not change the analysis that it did not fall within the responsibilities of the legislature: ibid para 51.
- 30.
C-270/12 ESMA (n 28). Instead, in a questionable use of the term, the Court appears to use the ‘technical nature’ as a defence against the accusation of a too broad delegation of powers.
- 31.
Delegated acts are always adopted by the Commission and implementing acts are adopted by the Council only in “duly justified specific cases” (Cf Art 291(2) TFEU). In a random 14 day period (22 March 2016–4 April 2016), out of 32 implementing measures, 1 was adopted by the Council.
- 32.
Cf Art 294 TFEU for the ‘ordinary legislative procedure’. Also special legislative procedures include the Council and Parliament and are initiated by the Commission.
- 33.
Cf also Interinstitutional Agreement of Better Law-Making [2016] Council Document, 15506/15, recital 7.
- 34.
Of the 59 impact assessments conducted in 2014, 13 pertained to Commission acts implementing, supplementing or amending legislation and 24 to proposals for legislative acts. The rest pertained to white papers, guidelines or Commission Communications. In 2015, significantly less impact assessments were conducted overall (16), of which 6 pertained to Commission acts (Cf http://ec.europa.eu/smart-regulation/impact/index.en.htm). Given the high number of Commission acts, I estimate that an impact assessment was attached to less than 1% of Commission delegated/implementing acts, although this number needs to be corrected for those cases where a delegated or implementing act is adopted following the recommendation of an agency, which might have conducted an Impact Assessment at that stage of the procedure (Cf, for example, European Commission, ‘Commission Delegated Regulation (EU) …/… of 9.3.2016 supplementing Regulation (EU) No 596/2014 of the European Parliament and of the Council with regard to regulatory technical standards for the appropriate arrangements, systems and procedures as well as notification templates to be used for preventing, detecting and reporting abusive practices or suspicious orders or transactions’ (Explanatory Memorandum) C(2016) 1402 final). As the Commission seeks to expand the use of impact assessment and this is also mentioned in the 2016 inter-institutional agreement (Interinstitutional Agreement of Better Law-Making [2016] Council Document, 15506/15, para 12 et seq.), this percentage could change, although it is unlikely to rise to a significant share of delegated and especially implementing acts in the near future. See European Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Better regulation for better results – An EU agenda’ (Communication) COM(2015) 215 final and European Commission, ‘Better Regulation Guidelines’ (Staff Working Document) SWD(2015) 111 final. For a study of the potential of this tool precisely for delegated and implementing acts cf Alemanno and Meeuwse (2013), p. 76.
- 35.
Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers [2011] OJ L55/13, arts 4, 5.
- 36.
Committee Opinions are usually given with the help of a voting sheet, which allows for giving a favourable, unfavourable or no opinion. The individual votes of Committee members are aggregated into the opinion of the Committee.
- 37.
Comitology Regulation (n 35) arts 5, 6.
- 38.
Ibid art 2(1).
- 39.
Ibid art 10(4).
- 40.
Ibid art 11.
- 41.
The first such resolution by Parliament was: European Parliament, Resolution of 13 March 2013 on the draft Commission implementing regulation amending Annexes II and III to Regulation (EC) No 110/2008 of the European Parliament and the Council on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks (2013/2524(RPS))(P7 TA(2013)0083), which was followed by about 15 more such resolutions up until 01.01.2018. So far, the Council appears to not have availed itself of this opportunity. This is apparent from the Council Document Registry in which such decision should have been registered. Cf also, although with slightly outdated data European Commission, ‘Report from the Commission to the European Parliament and the Council on the Implementation of Regulation (EU) 182/2011’ (Communication) COM(2016) 92 final, p. 8.
- 42.
Given the practice of the Commission to consult expert groups in the great majority of cases, the resistance of the Commission towards an obligation of the Commission to also consult experts for delegated acts loses some of its practical relevance. For evidence of the Commission’s opinion, see the Letter to the Council from Mr Maroš Šefčovič, Vice-President of the European Commission [2014] Council Document, 7792/14. The matter has been resolved by the last Interinstitutional Agreement, which establishes that ‘in principle’ experts are consulted also as a part of the procedure to adopt delegated acts. Cf Interinstitutional Agreement of Better Law-Making [2016] Council Document, 15506/15.
- 43.
It is a challenge to formulate a definition of ‘expert group’ that would capture all the bodies and fora that should be included under this heading (Larsson 2003, p. 14). The Commission’s own definition can be found in Rule of the ‘Horizontal Rules for Commission Expert Groups’ (European Commission, ‘Communication from the President to the Commission – framework for Commission Expert Groups: Horizontal Rules and Public Register’ (Communication) C(2010) 7649 final, Annex).
- 44.
Larsson (2003), p. 19.
- 45.
Ibid p. 118. That expert group composition is at the discretion of the Commission is also the focus of the EU Ombudsman in complaint 1682/2010/BEH (European Ombudsman, Decision of the European Ombudsman closing her inquiry into complaint 1682/2010/(ANA)BEH against the European Commission (19 December 2013)) and the own initiative inquiry: European Ombudsman, Own Initiative Inquiry concerning the Composition of Commission Expert Groups (OI/6/2014/NF, 2014).
- 46.
Comitology Regulation (n 35) art 3.
- 47.
Comitology Regulation (n 35) art 4(2).
- 48.
Christiansen and Dobbels (2013), p. 48.
- 49.
The Commission then has the opportunity to refer the matter to the appeals committee, but, as explained below, such references are rare.
- 50.
Parliament has until the end of 2017 objected to five delegated acts. C. European Parliament Resolutions numbered P8 TA(2016)0347, P8 TA(2016)0015, P8 TA(2015)0206, P8 TA(2015)0205 and P7 TA(2014)0218. The Council raised objections in two cases. Cf. Council Document 15147/14 and Council Document 17336/13.
- 51.
According to the latest available reports there were two negative opinions each in 2016 and 2015. (European Commission, ‘Report from the Commission on the working of Committees during 2015’ (Communication) COM(2016) 772 final; European Commission, ‘Report from the Commission on the working of Committees during 2016’ (Communication) COM(2017) 594 final). Of the 1889 opinions delivered in 2014, not one was negative, and there were only 51 cases (less than 3%) in which no opinion was delivered (European Commission, ‘Report from the Commission on the working of Committees during 2014’ (Communication) COM(2015) 418 final). Where no opinion was delivered in an examination procedure, the Commission usually went ahead with adopting the draft implementing act (in about 95% of the cases), (Cf European Commission, ‘Report from the Commission to the European Parliament and the Council on the Implementation of Regulation (EU) 182/2011’ (Communication) COM(2016) 92 final, Table 3), making this virtually equivalent to a positive opinion.
- 52.
For example in 2014, 13 cases were referred to the appeals committee, which did not deliver a single negative opinion, although did not give an opinion in 11 cases. In all cases the Commission did adopt the implementing measure in question. Cf European Commission, ‘Report from the Commission on the working of Committees during 2014’ (Communication) COM(2015) 418 final, p. 7. The only time the appeals committee delivered a negative opinion was in 2011. Cf European Commission, ‘Report from the Commission to the European Parliament and the Council on the Implementation of Regulation (EU) 182/2011’ (Communication) COM(2016) 92 final, Table 2.
- 53.
Cf Consolidated Version of the Treaty on European Union [2010] OJ C83/13 (TEU) art 16.
- 54.
See Art 290(2) TFEU and Comitology Regulation (n 35) art 5.
- 55.
In the advisory procedure, an opinion is adopted by the majority of the component members. Cf ibid art 4(1).
- 56.
Art 290(2) TFEU.
- 57.
Fox-Decent frames these conditions as conditions for non-domination: Decent (2014). They could also be called democratic (though non-representative) conditions.
- 58.
Wille (2013).
- 59.
Tsakatika (2005), p. 198.
- 60.
Nugent (2000).
- 61.
Greenwood (2011).
- 62.
For more on the organisational structure of the Commission, see Egeberg (2007).
- 63.
This independence is stressed in Art 17 (3) TFEU, it is also mentioned no less than three times in the ‘solemn undertaking’ that Commissioners swear before the Court of Justice. See the Annex to the Commission Press Release IP/10/487 of 3 May 2010.
- 64.
While the appointment of the Commission involves the EU Parliament, the Council and the European Council (cf Art 17(7) TEU, and Parliament can censure the Commission (cf Art 17(8) TEU), the Commission is nevertheless not allowed to be instructed by Parliament in the fulfilment of its duties (cf Art 17(3) TEU). In any case, the censure of the Commission has such far reaching and uncontrollable political effects that does not appear a viable option for influencing the Commission in respect to specific delegated or implementing acts.
- 65.
Art 10 TEU.
- 66.
Art 11(3) TEU. For an argument of how the related Commission White paper on Governance (European Commission, ‘European Governance - A White Paper’ (Communication) COM(2001)428 final) does not actually answer democratic concerns, see Tsakatika (2005).
- 67.
This is true even though Parliament has throughout the integration process gained significant powers over the Commission, particularly with the Amsterdam Treaty revisions. Cf Judge and Earnshaw (2002), p. 345. Cf also Føllesdal and Hix (2006), p. 535 who claim that: “In no sense is the EU’s executive ‘elected’ by the European Parliament.” On the internal, functional limits of Parliamentary control in the EU cf Majone (2002), p. 383 et seq.
- 68.
Analogous to general ‘administrative’ action. Cf Schotel (2013), p. 524 et seq.
- 69.
See for the legislative act Regulation (EU) No 649/2012 of the European Parliament and of the Council of 4 July 2012 concerning the export and import of hazardous chemicals [2012] OJ L201/60, with a delegated act in Commission Delegated Regulation (EU) 2018/172 of 28 November 2017 amending Annexes I and V to Regulation (EU) No 649/2012 of the European Parliament and of the Council concerning the export and import of hazardous chemicals [2018] OJ L32/6.
- 70.
Commission Implementing Directive 2012/25/EU of 9 October 2012 laying down information procedures for the exchange, between Member States, of human organs intended for transplantation [2012] OJ L275/27.
- 71.
See Art 10 TEU. Of course this article simply sums up the relation which is practically constructed through national and European electoral mechanisms.
- 72.
This difference between delegated/implementing acts and legislative acts also seems to have been the basis for the inclusion of a new sentence in Art 263 TFEU, which allows individuals to challenge a “regulatory act which […] does not entail implementing measures” without being individually concerned, as they must be in the case of legislative acts. This ‘regulatory act’ has been interpreted by the Court as referring to delegated and implementing acts. Cf Order T-18/10 Inuit Tapiriit Kanatami and others v European Parliament and Council of the European Union [2011] ECR II-05599 (ECLI:EU:T:2011:419) paras 38 et seq. and Case T-262/10 Microban International Ltd and others v European Commission [2011] ECR II-7702, paras 21 et seq.
- 73.
Administrations are then functional equivalents of the Commission—an argument which I will also discuss below in Chap. 2.
- 74.
Curtin (1997), p. 7 et seq.
- 75.
Thus, it does not rely on notions such as ‘nation’ or ‘Volk’ as the ultimate constituency and legitimising body. This is not to say that it would not rely on the enforcement mechanism provided by the state. Courts play a very important role in fiduciary law.
- 76.
Such as calls for ‘democratic accountability’ often do.
- 77.
Blair and Stout (2001), p. 1735.
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Tauschinsky, R.E. (2020). Introduction. In: A Fiduciary Approach to Delegated and Implementing Rule-Making in the EU. Springer, Cham. https://doi.org/10.1007/978-3-030-26300-3_1
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