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 Commission
explained on the example of food law
6 March 2013
Jens Karsten
bxl-law
www.bxl-law.com
1
bxl-law | Jens Karsten
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
www.bxl-law.com
2
bxl-law | Jens Karsten
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.
www.bxl-law.com
3
bxl-law | Jens Karsten
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
www.bxl-law.com
4
bxl-law | Jens Karsten
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
www.bxl-law.com
5
bxl-law | Jens Karsten
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
www.bxl-law.com
6
bxl-law | Jens Karsten
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
www.bxl-law.com
7
bxl-law | Jens Karsten
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 Commission
As 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 Commission
As an executive measure, control is exercised by the executive organs of the EU:
Member States through Comitology (Committees of national experts)
www.bxl-law.com
8
bxl-law | Jens Karsten
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 acts
Appeal 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)
www.bxl-law.com
9
bxl-law | Jens Karsten
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)
www.bxl-law.com
10
bxl-law | Jens Karsten
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
www.bxl-law.com
11
bxl-law | Jens Karsten
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
www.bxl-law.com
12
bxl-law | Jens Karsten
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
www.bxl-law.com
13
bxl-law | Jens Karsten
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
www.bxl-law.com
14
bxl-law | Jens Karsten
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 vote
According 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
www.bxl-law.com
15
bxl-law | Jens Karsten
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
www.bxl-law.com
16
bxl-law | Jens Karsten
Thank you!
www.bxl-law.com
17