There is no doubt the European Commission considers the procedures ushered in by the Lisbon Treaty to be a major improvement on the former comitology arrangements. As Vice-President Maros Sefcovic told the European Parliament when it adopted the regulation on implementing acts, the new rules “would be simpler, more efficient, more transparent and in full compliance with the treaty”.

That combination, he explained, would have a major impact on the way the Commission would implement EU law in the future and “indeed, on the Union’s ability to deliver its policies in the interest of its citizens”.

From the Commission’s point of view, the Lisbon Treaty introduced the new comitology process to give greater coherence and transparency to the previous arrangements and to simplify decision making in a 27-member Union. The agreement by EU governments to delegate powers to the executive mirrors the situation in national political structures so that secondary changes to legislation can be made quickly without having to go through the lengthier normal decision making channels.

Simplicity comes from the fact that there are just two procedures – advisory and examination – instead of four previously. In addition, the special rules that previously existed have disappeared. So, trade defence instruments like anti-dumping or countervailing measures are now covered by implementing act procedures, ushering in a real change in commercial policy.

The Commission now enjoys more flexibility and political responsibility. In the absence of a qualified majority vote for or against an implementing act, it can, unlike in the past, choose whether to adopt or review it. It can also use an urgency procedure to adopt an implementing act before consulting the relevant committee.

There are two areas where the Commission would have preferred a different outcome, partly, from its view, to ensure the coherence of the whole system. The first is trade for which a special procedure applies. Because of the national sensitivities involved, a positive opinion for the draft implementing act from the committee of member state representatives is explicitly required before definitive multilateral trade safeguards can be introduced. The second is the appeal committee, which member states insisted be created as a final adjudicating body for implementing acts and which the Commission initially considered unnecessary.

CLARIFYING PROCEDURES

In December 2009, the Commission first set out its thoughts on how it would apply its new powers on delegated acts. The communication (COM(2009)673 final) covered the institution’s views on the scope of delegated acts, the framework for delegations of power, the Commission’s planned working methods and how the Council and Parliament might exercise control over the way the powers conferred on the Commission would be implemented.

The Commission noted that the power to adopt delegated acts gave it the authorisation to supplement or amend the legislative work of the Council and Parliament. This delegated power was discretionary and given in the interests of efficiency. In contrast, the Commission has purely executive, not quasi-legislative, power over implementing acts. Member states are responsible for implementing the Union’s legally binding acts, but since it is necessary to have uniform implementing conditions the Commission must exercise its executive power. “Its intervention is not optional but compulsory when the conditions of Article 291 are fulfilled,” the communication noted.

Most of the practical arrangements contained in the communication, such as preparatory work and time limits, were later enshrined in the common understanding.

NEW GUIDELINES

In June 2011, new internal guidelines, building on the December 2009 communication, were drawn up by the Commission’s Secretariat-General and legal service on the procedures all departments should follow when going down the delegated acts route and sent to all directors-general and service heads. As well as giving practical guidance, they are designed to ensure consistency of behaviour throughout the institution when using the comitology procedure.

While setting out identifiable concepts and procedures, the memo also pointed out that these might evolve to take account of any unforeseen issues which might arise in practice – clear confirmation that the Commission, like other institutions and participants in the process, is still feeling its way with the new procedures.

The detailed guidelines explain to Commission officials how to differentiate between delegated and implementing powers. They make clear that the legislator is never obliged to delegate powers to the Commission. It is an option the Council and Parliament enjoy if they wish to prevent the entire legislative process from being jammed with detail, such as updating technical requirements.

“Delegated acts have many advantages, in terms of speediness and effectiveness, but the recourse to such mechanisms remains in the hands of the regulator,” the guidelines remind Commission staff.

Written in admirably clear language, the guidelines state “it is rather complicated and probably fruitless” to establish abstract instructions on whether a particular issue should be treated as a delegated or implementing act. “It is not a matter of a scientific or magic formula, the application of which would mechanically designate the nature of a power conferred on the Commission”. Instead, as under the previous comitology rules, it recommends a case-by-case approach to the division of responsibility between the two articles.

Officials are instructed when preparing a legislative act containing a delegation of power to use provisions consistent with the standard clauses attached to the common understanding and the guidelines confirm that impact assessments which must be carried out on Commission initiatives with a significant impact will also include certain key delegated acts.

Clear guidelines are also laid down for consultations. The memo states that except in cases where the preparatory work does not require any new expertise, or the urgency procedure is being used, “the Commission services should systematically consult experts” from all 27 member states. If various stakeholders are also consulted, their views do not take priority over the conclusions the Commission draws after meeting the experts designated by member states. The guidelines are in addition to the general provision in Article 11 of the Treaty on European Union that “The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent”.

POSSIBLE COURT ACTION

One development the Commission is viewing with concern is the occasional tendency for the Parliament and Council to reject its request for delegated powers and to replace these with implementing acts. In the trade-off, the Parliament uses the Council’s general preference for implementing acts to secure some substantive changes in the basic legislation. The Commission’s concern is that any misuse of the criteria set out in Articles 290 and 291 might not only affect the legality of the basic legislative act, but could also impinge on the validity of subsequent acts it adopts. That is not a scenario which the institution as guardian of the treaties finds comfortable and may lead it to challenge such a change of powers before the EU Court of Justice.

The Commission first put down a marker to this effect when the directive on patients’ rights in cross-border health care was adopted, on 9 March 2011. In a declaration, it stated: “The Commission has certain doubts that some of the future acts, which the Commission has been given the power to adopt by the legislative act, would be implementing acts. When exercising its implementation powers, the Commission will not adopt, on the basis of the powers granted, acts that it considers as being delegated acts within the meaning of Article 290.”

Background

Between December 2009 and December 2011, the Commission adopted ten delegated regulations (four in 2010 and six in 2011).

Between March and December 2011, it adopted 709 implementing regulations, 21 implementing directives and 1,325 implementing decisions.