bxl-law | jens karsten european parliament conference “lisbon comitology in practice” delegated...

bxl-law | Jens Karsten

European Parliament conference“Lisbon Comitology in Practice”

Delegated Acts and Implementing Acts in Food Law

Legislative and executive powers of the European Commissionexplained on the example of food law

6 March 2013

Jens Karstenbxl-law

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Why discussing ‘Lisbon Comitology’ now?

Delegated acts

Two years since the ‘Common Understanding on Delegated Acts’ of 3.3.2011

Implementing acts

Two years since the coming into force of Comitology Regulation (EU) No. 182/2011 on 1.3.2011


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Why discussing ‘Lisbon Comitology’ on the background of food law?

Food information law with ‘Reg. 1169/2011 on food information to consumers’ provides a font of examples

12 delegated acts, e.g., for amending its 15 annexes, legibility of labelling, definition of nanomaterial, allergen labelling (in urgency procedure), etc.

12 implementing acts, e.g., on origin labelling, detailing energy labelling, detailing nutrition labelling, etc.


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Other examples

Quality Reg. 1151/2012

Dir. 2012/35 amending Directive 2008/106 on the minimum level of training of seafarers

Energy labelling Dir. 2010/30

Timber Reg. 995/2010


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Why delegated acts are needed?

… to supplement or amend a legislative act

A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act.

•General application•May amend, that is, formally modify a legislative act •May supplement: new non-essential rules which change the content of a legislative act


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Why implementing acts are needed?

… to implement a legislative act

Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission (Art. 291(2) TFEU)

•Individual acts or acts of general application•Cannot insert, delete or modify normative rule; intended only to give effect to the existing rules of the legislative instrument


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When to choose delegated acts? When to choose implementing acts?

Political choice

Who controls the Commission? European Parliament and/or Council or Member States (via Comitology)?

Legal choice

Case C-427/12, Commission v. European Parliament and Council:

Commissions demands to be empowered to use delegated acts instead of implementing acts in Reg. on biocide products


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Who decides? Who controls? Constitutional basis

“Legal acts adopted by legislative procedure shall constitute legislative acts.” (Art. 289(3) TFEU) Basic Act providing the basis for the Commission’s power to adopt delegated acts and implementing acts, adopted by European Parliament and Council

Legislative rule making powers (Art. 290 TFEU) Delegated act, adopted by the CommissionAs a legislative measure, control is exercised by legislative organs of the EU: European Parliament and Council (no Comitology)

Executive implementing powers (Art. 291 TFEU) Implementing act, adopted by the CommissionAs an executive measure, control is exercised by the executive organs of the EU: Member States through Comitology (Committees of national experts)


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Who decides? Who controls? Who is involved in the case of Reg. 1169/2011 (FIC)?

The players

European Commission (mainly DG SANCO, but also DG AGRI)

Co-Legislators: European Parliament (mainly ENVI as competent committee) + Council

Standing Committee on the Food Chain and Animal Health SCoFCAH) – Art. 48 FIC Examination Committee for the adoption of implementing actsAppeal Committee presumably is COREPER

European Food Safety Authority (EFSA) – Art. 5 FIC

General public and stakeholders – Art. 3(4) FIC “An open and transparent public consultation shall be conducted, including with stakeholders, directly or through representative bodies, during the preparation, evaluation and revision of food information law” (Art. 11(1)-(3) TEU)


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Delegated acts

Legal basis: •Art. 290 TFEU (auto-sufficient, that is, in no need of completion by horizontal secondary legislation) •Legislative delegation (Basic act with vertical rules derived from Common Understanding) – Art. 51/52 FIC •Art. 87a of the Rules of Procedure of the European Parliament

Non-legal basis:•Communication on Delegated acts of the Commission (COM (2009) 673 of 9.12.2009) •Council Declaration on Delegated acts 14.12.2009 (Council doc. 17512/09)•European Parliament resolution of 5.5.2010 on the power of legislative delegation (OJ C 81E, 15.3.2011, p. 6)• Framework Agreement on relations between EP and Commission (OJ L 304, 20.11.2010, p. 47; paragraph 15 and Annex I) •Common Understanding on Delegated Acts of 3.3.2011 (Council doc. 8753/11)


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Delegated acts

Common Understanding on Delegated acts of 3.3.2011

Common Understanding sets out the practical arrangements and agreed clarifications and preferences for:

•preparation of delegated acts

•transmission of documents

•computation of time limit

•duration of delegations of power

•exercise of powers of objection and revocation by EP and/or Council

•urgency procedure

•standard clauses to be inserted in legislative instruments


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Procedure for the adoption of Delegated acts

•Basic legislative act with which the Union legislator has granted legislative delegation •The Commission (possibly advised by an EU-Agency) presents a proposal for a Delegated act (But: to whom? Who is the addressee?) •Without being obliged to do so the Commission may consult the expert committee (recital 58 FIC: “It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level”) •The European Parliament and/or the Council exercise political control subsequently through a right to object within a delay of (mostly) 2x2 months against the coming into force of adopted delegated acts, but need to mobilise an absolute majority (378 MEPs in the House!) respectively a qualified majority •The European Parliament and/or the Council exercise political control through a right to revoke, but need to mobilise an absolute majority respectively a qualified majority

N.B.: Scrutiny (objection and revocation) is exercised ex post and subject to high thresholds


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Implementing acts

Purpose: Efficacy in the application of Union law

Legal basis:

•Art. 291 TFEU•Comitology Regulation 182/2011 •Art. 88(1)-(3) of the Rules of Procedure of the European Parliament•Rules of Procedure of the Appeal Committee


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Procedure for the adoption of an Implementing act: Advisory Procedure and Examination Procedure

Choice of procedure after Art. 2 of Reg. 182/2011

•Choice is made by basic act (Art. 2(1))•Choice is made applying the criteria of Art. 2(2)•If it is not Examination procedure, it is the Advisory procedure (Art. 2(3)) – default procedure


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Control

Rights of the Legislator

According to Art. 10(3) and (4) Reg. 182/2011 the European Parliament and the Council have access to the following information, via Comitology:•Agendas •Voting results•Summary records•Lists of authorities and organisations represented in committees•Draft implementing acts submitted to committees, and final drafts after the voteAccording to Art. 11 Reg. 182/2011 the Co-Legislators have each a right of scrutiny, that is, to indicate that a draft implementing measure exceeds implementing powers.

The rest of us (stakeholder involvement)

The general public is informed via the on-line Comitology register (Art. 10(5) Reg. 182/2011): http://ec.europa.eu/transparency/regcomitology


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General conclusion

Three respectively two-year periods into ‘Lisbon Comitology’, players are still learning the game.

Conclusions for the European Parliament

-Legislative delegations need to be carefully crafted, incl. procedural elements of basic acts / future revisions of Reg. 182/2011-Scrutiny ex ante: Commitments to inform and to engage Parliament need to be honoured-Scrutiny ex post: Right of control needs to be exercised when need is felt


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Thank you!

bxl-law | jens karsten european parliament conference “lisbon comitology in practice” delegated...

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