EN Official Journal of the European Union C 164/82

Opinion of the European Committee of the Regions — Legal acts providing for the use of the regulatory procedure with scrutiny

(2018/C 164/14)

Rapporteur: François Decoster (FR/ALDE) Member of Hauts-de-France Regional Council Reference document: Proposal for a Regulation of the European Parliament and of the Council adapting a number of legal acts providing for the use of the regulatory procedure with scrutiny to Articles 290 and 291 of the Treaty on the Functioning of the European Union COM(2016) 799 final — 2016/0400 (COD)

POLICY RECOMMENDATIONS

THE EUROPEAN COMMITTEE OF THE REGIONS

1. considers it necessary for the European Union to have implementing powers to assist the legislator in the more technical aspects of its mandate and thus allow for the uniform and speedy application of European legislation within the EU;

2. stresses the importance, in this connection, of this implementation being limited to non-essential elements of legislative acts and of its being carried out in the most transparent manner, under the scrutiny of the legislator (the European Parliament and the Council), the Member States and local and regional authorities;

3. points out that Member States are responsible for implementing European legislation, that this is very often implemented at the local and regional level, and that these levels’ involvement in implementing European legislative acts is thus a democratic and practical necessity;

4. reiterates its support for reform of the comitology system introduced by the Treaty of Lisbon and for the creation of two systems of delegated acts and implementing acts governed by Articles 290 and 291 TFEU, with the delegated acts replacing the old Regulatory Procedure with Scrutiny (RPS), which applied to the most politically sensitive areas such as the environment, agriculture, financial services and health;

5. supports amending the existing basic acts covered by this proposal to replace references to the RPS with references to Articles 290 and 291 TFEU;

6. supports the change in the Commission’s approach compared to its proposal of 2013, which provided that references to the RPS in the basic acts were to be read as references to Article 290 or Article 291. Under that approach, each basic act would have had to be read in conjunction with the relevant regulation, if adopted. Instead, it is preferable to amend each basic act;

7. supports the Commission’s position that empowerments of indeterminate duration are justified because the legislator has the possibility to revoke an empowerment in all cases and at any time. Setting this empowerment at five years and imposing a reporting requirement before automatic renewal would require the Commission to issue reports on each act five years after the adoption of the proposal in question, which would create a significant administrative burden;

Common Understanding on delegated acts

8. welcomes the signing of a Common Understanding on delegated acts between the European Parliament, the Council and the Commission appended to the Interinstitutional Agreement on Better Law-making (1), which provides a framework for setting the objectives, scope, duration and conditions of the delegation;

9. points out that the criteria and procedure for adopting delegated acts need to be very clearly defined and properly limited in order not to diminish the role of the legislator;

10. where there is doubt as to whether an element of a legislative act is essential, proposes that the Commission should not adopt a delegated act and that the draft legislation should instead be adopted according to the ordinary legislative procedures;

11. welcomes the clear commitment to systematically consulting Member States’ experts when delegated acts are being prepared and drafted, but is not certain that this consultation is sufficiently defined, transparent and binding;

12. welcomes the strengthening of the European Parliament’s scrutiny over the adoption of delegated acts;

13. regrets however, in this regard, that no provision is made for consulting representatives of local and regional authorities, although they are extensively involved in implementing delegated acts;

14. stresses that involving local and regional authorities in this scrutiny is crucial as they are the governance level that implements the majority of EU legislation;

15. calls for the European Committee of the Regions to receive all documents, including draft delegated acts, at the same time as the Member States’ experts and for its representatives to have systematic and facilitated access to the meetings of Commission expert groups preparing delegated acts;

16. welcomes the setting up by the Commission, the European Parliament and the Council of a joint functional register of delegated acts, at the latest by the end of 2017, which could help to increase scrutiny over the Commission’s exercise of its delegated powers and their transparency, facilitate planning and enable traceability of all stages in the lifecycle of a delegated act;

Subsidiarity and proportionality analysis

17. considers that the draft regulation does not pose any subsidiarity issues in that the issue concerns the delegation of power between different European Union institutions;

18. considers, for the same reason, that the draft regulation does not pose any proportionality issues in that it is suitable for achieving the objective pursued by the regulation and adapting a number of basic acts to Articles 290 and 291 TFEU, and that it does not go beyond what is necessary;

19. reiterates, however, the importance of the subsidiarity and proportionality principles; and emphasises that these principles are applicable not only when drafting and adopting EU legislation but also when implementing it;

20. believes that delegation under Article 290 TFEU, which transfers a power of the EU legislator to the Commission, mainly poses an issue of proportionality in that it is the result of a decision on the normative force of the act, but does not alter the division of competences between the EU and the Member States;

21. believes, on the other hand, that implementation under Article 291 TFEU involves the EU institutions exercising a competence that rests primarily with the Member States, and is therefore more of a subsidiarity issue;

22. considers, therefore, that the Commission must constantly ensure compliance with these principles when taking action, including when adopting implementing measures.

Brussels, 1 December 2017. The President of the European Committee of the Regions Karl-Heinz LAMBERTZ

(1) OJ L 123, 12.5.2016, p. 1.