EN Official Journal of the European Union C 13/145

Opinion of the Economic and Social Committee and Committee on ‘Delegated acts’

(additional opinion)

(2016/C 013/22)

Rapporteur:

Mr Jorge PEGADO LIZ

On 19 February 2015, the European Economic and Social Committee, acting under Rule 29(2) of its Rules of Procedure, decided to draw up an additional opinion on:

Delegated acts.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee’s work on the subject, adopted its opinion on 14 July 2015.

At its 510th plenary session, held on 16 and 17 September 2015 (meeting of 16 September 2015), the European Economic and Social Committee adopted the following opinion by 140 votes to 1, with 4 abstentions.

1. Conclusions and recommendations

1.1. The EESC discovered, half way through its work on an additional own-initiative opinion on the delegation procedure, that the Commission had issued a proposal for a new binding interinstitutional agreement on the basis of Article 295 TFEU. This proposal is part of a general ‘Better Regulation’ package that addresses delegated acts in two specific annexes.

1.2. The Committee welcomes the Commission’s proposal, which marks a step in the direction it had recommended.

1.3. It considers that most of the proposed changes are positive.

1.4. The Committee is especially pleased to note the Commission’s efforts to achieve a fair balance between the fundamental values of respect for the rule of law, democratic participation, transparency, proximity to the public and the right to wide-ranging information on legislative procedures, on the one hand, and legislative simplification, more flexible rules that are better geared to the interests involved, and simplified procedures for updates and revision, on the other.

1.5. The EESC particularly welcomes the fact that the Commission is committed ‘to gathering, prior to the adoption of delegated acts, all necessary expertise including through the consultation of experts from the Member States and through public consultations’ and that it is proposing the same method of consultation for the adoption of implementing acts. Nevertheless, the EESC is concerned that all these consultations could cause the time taken to prepare acts to be prolonged excessively and unnecessarily.

1.6. The EESC is not however wholly in favour of the case-by-case approach taken to distinguishing between matters that should be subject to delegated or implementing acts, as the criteria used are ambiguous and leave too much room for discretion in interpretation.

1.7. The EESC disagrees with the Commission’s proposal on the following specific points: (a) the absence of prior information on Member State experts and their technical competence; (b) the absence of an appropriate timeframe for consulting experts, stakeholders, the European Parliament and the Council, except in urgent cases; (c) the fact that consulting and sending meetings schedules to EP experts and stakeholders is optional; (d) the inconsistency and incoherence of the information relating to the adoption of delegated acts: this information should be systematic and automatic, accessible via a website and updated in real time; (e) the principle of an unlimited timeframe for delegations: the EESC is of the view that the principle should be that of a precise duration, potentially renewable for the same duration, except in duly justified exceptional cases.

1.8. The EESC would like the guidelines to provide explicitly for all aspects of the delegations to be clearly defined, in terms of: (a) their stated objectives; (b) their precise content; (c) their exact scope; and a (d) strictly defined duration.

1.9. The EESC considers that it should be consulted for an opinion, in the same way as for the ordinary legislative procedure, when it comes to impact assessments and the amendment of delegated acts as well.

1.10. Finally, the EESC considers that the wording of Articles 290 and 291 TFEU is less than perfect and that, in the event of a treaty change, it should be improved. The framework within which they are applied should also be improved so as to prevent decisions on the choice of legal instrument from being more political than technical.

2. Why do we need an additional opinion on delegated acts?

2.1. In 2012, the EESC authorised an information report (1) on the procedure, with the aim of analysing its use and drawing conclusions on the workings of the control system designed to prevent or remedy any misuse of powers that could undermine the democratic rules of the EU as a ‘community based on the rule of law’.

2.2. Following that report and two Commission referrals concerning three proposals for regulations adapting a number of legal acts providing for the use of the regulatory procedure with scrutiny to Article 290 TFEU (2), the EESC adopted two opinions (3) reiterating the comments and conclusions set out in the information report, including its ‘doubts as to the simplicity of the procedure, how the European public really perceives what is at stake here, the “correct” usage of this procedure and the effectiveness of the control mechanisms’. It recommended that the instrument be used carefully, given that ‘some aspects of the delegation procedure are still far from clear’.

2.3. Following the European elections in 2014 and the appointment of the new commissioners, including a first vice-president responsible for ‘better regulation, interinstitutional relations, the rule of law and the Charter of Fundamental Rights’, it seemed an appropriate moment to return to this matter, to establish the intentions of the new institutional players, and, most importantly, to take a stance on any new elements designed to do more to uphold the principles of transparency, legal certainty, democratic scrutiny and institutional balance. It is also an opportunity to renew debate between the European institutions, civil society, experts and academics, with a view to shaping new recommendations for the EU institutions.

3. Current situation

3.1. It is 2 years since the information report and the two aforementioned opinions were adopted. In the meantime, there has been no follow-up to the Commission’s Omnibus 1 and Omnibus 3 proposals. In its progress report submitted to Coreper on 20 June 2014, the Greek presidency criticised the automatic nature of these proposals as they deprived the legislator from exercising its discretion on a case-by-case basis. The Council then used its veto twice, against the rules for access to the public regulated services provided by the global navigation satellite system established under the Galileo programme (4) and the transmission format for research and development expenditure data (5).

3.2. The work programme of the current Commission provided for the revision of those instruments that enable it to improve regulation. The intention was to ‘identify a further set of new actions in the context of its Regulatory Fitness Programme’.

3.3. The proposal for a new interinstitutional agreement, whose adoption was initially planned for 28 April 2015 but was postponed to 19 May, includes both an Interinstitutional Agreement on Better Regulation (6) and two annexes on the central question of the legal regime for delegated acts: a Common Understanding between the European Parliament, the Council and the Commission on Delegated Acts (Annex 1) and Standard clauses (Annex 2).

3.4. Whether or not Treaty Article 295 was a sound legal basis continued to be a matter of contention even as the package went to press. It nevertheless seemed certain that the impact assessments would be reinforced, as would stakeholder consultations, and the consultation of Member State experts before the adoption of a delegated act would be made mandatory. The intention was also to restrict delegated acts to key areas, although this notion has yet to be clearly defined. Furthermore, Mr TIMMERMANS is apparently to be personally responsible for validating any proposed delegated acts.

3.5. According to a number of sources, the European Parliament was swamped with proposals for delegated acts and had neither the means nor a method to enable it to exercise its scrutiny effectively. It was apparently looking into restructuring its services and introducing internal guidelines, as well as allocating additional human resources.

3.6. Within the Council, certain Member States were apparently concerned by the issue of the delegation of powers and their control and this was still considered a priority. There was however disagreement as to the need for a more precise demarcation of the scope of Articles 290 and 291 TFEU. The Council was moving towards a redrafting of the Common Understanding, with a greater role for national experts, who would have to be consulted as a matter of course during the preparation of delegated acts (ex ante consultation). The 2015 annual report of the Council presidency on impact assessments meanwhile reiterated the need to consult national experts sufficiently in advance.

3.7. Some stakeholders deplored the delegation procedure’s lack of transparency. It would appear to be extremely difficult to work out who to speak to within the European Commission, the Council’s expert committees, among the relevant European Parliament members or the officials concerned within the EU’s executive agencies, and it can be impossible when it comes to the experts who sit on the Council’s committees; and yet the issues dealt with in the context of the delegation procedure have a direct impact on organised civil society, industry, business, consumers and the public. These stakeholders also pointed out these people’s apparent lack of knowledge and training on the delegation procedure itself and its implications, with it often being seen as a neutral, procedural formality.

3.8. The Court of Justice, meanwhile, ruled on the concept of ‘essential elements’ in a judgment delivered on 5 September 2012 by the Grand Chamber (7), on a case brought by the Parliament against the Council, in which it held that ‘the adoption of rules essential to the subject-matter envisaged is reserved to the legislature of the European Union’, meaning that these essential rules must be ‘laid down in the basic legislation and may not be delegated’ (8).

3.8.1. The scope of this judgment regarding comitology could be transposed to the delegation procedure insofar as Article 290 TFEU refers to the concept of ‘non-essential elements’. The judgment also specifies that fundamental rights are a matter for the legislature alone. It states, furthermore, that the distinction between the legislative and executive powers ‘must be based on objective factors amenable to judicial review’.

3.9. More recently, the Court ruled on the distinction between implementing acts and delegated acts in the judgment of 18 March 2014 by the Grand Chamber in what is known as the Biocides case, brought by the Commission against the European Parliament and the Council (9). The Court found that delegated acts cover cases where the Commission adopts ‘rules coming within the regulatory framework as defined by the basic legislative act’ whereas the implementing act provides ‘further detail in relation to the content of a legislative act, in order to ensure that it is implemented under uniform conditions in all Member States’.

3.9.1. It also specifies that delegated acts may amend and supplement the basic act, whereas implementing acts may only confirm it (10). It is regrettable that the Court did not develop its reasoning further with regard to the link between delegated acts and the exercise of political power, as recommended by Advocate General CRUZ VILLALÓN’s opinion (11).

3.10. Lastly, on 21 February 2014, the Commission brought an annulment action (12) regarding Regulation (EU) No 1289/2013 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement.

3.11. In bringing this action, the Commission sought the annulment of that regulation which provided for the use of delegated acts in the context of the reciprocity mechanism it introduced. Advocate General MENGOZZI delivered his opinion on 7 May 2015.

3.12. Analysing the scope of the discretion conferred upon the legislature by the ‘biocides’ judgment, he notes that the legislature enjoys complete political discretion, not amenable to judicial review, as regards whether or not to confer powers by way of legislative delegation and that this political choice may under no circumstances be delegated. He goes on to say that delegation is not an obligation, but an instrument to simplify and accelerate the regulatory process regarding ‘non-essential elements’ of the basic legislative act.

3.13. He also interprets the concept of ‘amendment’ (13) as any change consisting of the deletion, addition or replacement of any element and considers that ‘the delegated regulatory function is characterised by the exercise, on the part of the delegate of the power, of a certain freedom of action, which, on the other hand, is not necessarily a feature of the executive function’ (14), going on to highlight the difficulties of interpreting this concept and its consequences with regard to the institutional balance.

As regards the subject of the case, after a highly detailed analysis of the regulation in question, he concludes by rejecting the claims for annulment submitted by the Commission. The Court will give its ruling on 16 July 2015.

4. The proposal for a new interinstitutional agreement and the public hearing at the EESC on 26 May 2015

4.1. The issue of delegated acts, which is one of the most important dealt with by the Better Regulation Package, is included in the Commission’s Agenda (15) (point 3.3), and also in the Better Regulation Guidelines (16), the Toolbox (17), the Regulatory Fitness and Performance Programme (REFIT) (18) and, of course, the Proposal for a New Interinstitutional Agreement (IIA).

4.2. The EESC had already expressed its dissatisfaction with: (a) the fact that the precise legal nature of delegated acts is unclear, that the concept of ‘non-essential’ measures is ambiguous and is interpreted by the Court in a variety of ways depending on the areas concerned, and that the Commission has extensive leeway regarding the scope and duration of delegations; (b) the lack of transparency, the legal uncertainty and the insufficient political scrutiny of the prior consultation arising from a document that is not legally binding, entitled Common Understanding on practical arrangements for the use of delegated acts of 4 April 2011; (c) the fact that provision for the implementation of Article 290 TFEU was only made in a legally non-binding communication from the Commission to the European Parliament and the Council of 9 December 2009.

4.3. The EESC had also expressed reservations and serious doubts regarding: (a) delegations of unlimited duration; (b) the very short deadlines for scrutiny by the Parliament and the Council; (c) the effective involvement of the European Parliament; (d) the fact that the procedures are not rational; (e) the absence of information, despite the Commission’s pronouncements, both on the delegations themselves and on the appropriateness of the measures taken, at all stages of the procedure; (f) the fact that the information is not fully accessible to the public and civil society; (g) effective application of Article 10 TEU providing for decisions to be taken as closely as possible to the citizen.

4.4. Its prime concern was the need to strike the right balance between the principles of the rule of law, democratic participation, transparency, proximity to the public and the right to information on legislative procedures, on the one hand, and legislative simplification, more flexible rules that are better geared to the interests involved, with simplified revision, on the other.

4.5. The EESC has always considered that delegations of power are necessary for the purposes of EU legislation, but that they are different in the Member States, given the special characteristics and the gaps that need to be filled in the absence of a real European constitution.

4.6. It also argued that the rationale for these essential law-making values could be found in: (a) Articles 4 and 5 TEU and Articles 2, 3 and 4 TFEU, on the conferral and sharing of EU competences and the principles of subsidiarity and proportionality; (b) Article 10 TEU on the right of citizens to participate in democratic life, according to which decisions are to be taken ‘openly and as closely as possible to the citizen’; (c) Article 11 TEU, to which the EESC has devoted several opinions and a roadmap on civil dialogue, transparency and stakeholder consultations; (d) Article 15(1) TFEU on the principles of good governance, civil society participation and openness; (e) Article 298 TFEU, which requires the European institutions to have the support of ‘an open, efficient and independent European administration’.

4.7. The EESC public hearing, which was planned well before the publication of the Better Regulation Package, was held on 26 May and attended by representatives of the Commission, the Council, the Parliament, the European Ombudsman, the European Data Protection Supervisor and a speaker from the College of Europe, with an audience made up of representatives of the permanent representations of the Member States, academia and civil society (BEUC, EMI, EIM, ITG, GIZ, etc.).

5. Critical assessment of the Commission’s proposal

5.1. The EESC welcomes the fact that the Commission has complied with most of the principles referred to above.

5.1.1. First, it approves of the fact that the legal basis for the proposal is Article 295 TFEU, as it has always requested. It welcomes the references to the Community method, and to the principles of transparency, democratic legitimacy, subsidiarity, proportionality and legal certainty. It is also pleased that the Commission states that it will be guided in the drafting of legislative texts by the principles of simplicity, clarity and consistency.

5.1.2. The reference to the ‘role and responsibility of national Parliaments’ as mentioned in Protocol No 2 on the ‘application of the principles of subsidiarity and proportionality’ is also welcome. Nevertheless, the EESC would emphasise that national parliaments must be given sufficient time to give their opinions.

5.1.3. It approves of ‘the use of stakeholder consultation, ex post evaluation of existing legislation and impact assessments of new initiatives’.

5.1.4. Lastly, it endorses the goals of ‘simplifying Union legislation and reducing the regulatory burden […] without prejudice to the achievement of the policy objectives of the Union, as specified in the Treaties, or to safeguarding the integrity of the single market’.

5.2. The EESC welcomes the fact that the Commission is undertaking to consult Member State experts before adopting delegated acts, and expert groups, stakeholders and the public, as necessary, at an early stage in the drafting of implementing acts.

5.3. When it comes more specifically to the common understanding between the three institutions on delegated acts (Annex 1), the EESC agrees with the Commission in particular regarding: (a) the definition of an ‘act of general application’ as being one that ‘applies to objectively determined situations and produces legal effects, either with respect to certain categories of persons or in general terms’ and the statement that a ‘legislative act may only confer on the Commission the power to adopt non-legislative acts of general application by means of delegated acts’; (b) the fact that legislative acts ‘can only be amended by means of legislative or delegated acts’, this rule applying also to ‘amendments of annexes to legislative acts’; (c) The fact that ‘essential elements of legislation must be determined by the legislator and cannot be the subject of a delegated or implementing act’; (d) and its efforts to propose a new approach to the consultation of EP and Member State experts as well as those of interested parties.

5.4. The EESC is not however wholly in favour of the case-by-case approach taken when it comes to distinguishing between matters that should be subject to delegated or implementing acts, as the criteria used are ambiguous and leave too much room for discretion in interpretation. It would like to see an effort made to define concepts and for the understanding to lay down clear rules under which: (a) the use of delegated acts should be the exception rather than the rule; (b) where there is doubt as to the essential nature of the elements concerned, or in the case of a ‘grey area’, the Commission should refrain from proposing delegated acts and legislate within the basic legislative act; (c) where there is doubt as to the type of measure to be taken, the Commission should preferably adopt implementing acts rather than delegated acts.

5.5. The EESC also disagrees with the Commission’s proposal regarding: (a) the lack of prior information concerning Member State experts and their technical competence; (b) the absence of a minimum timeframe providing experts, stakeholders, the European Parliament and the Council with the documents, except in urgent cases; (c) the fact that inviting EP experts, consulting stakeholders and sending the experts’ meetings schedule to the EP committees are all optional; (d) the inconsistency and incoherence of information regarding the delegated acts planned: it should be systematic, permanent and automatic (a website automatically updated providing immediate access to all to the preparatory stages for drafting delegated acts and to their content); (e) the principle of an unlimited timeframe for delegations: the EESC is of the view that the principle should be a precise duration, potentially tacitly renewable for the same duration, except in duly justified exceptional cases.

5.6. Lastly, the EESC fears that the ill-considered use of means of consultation, ex ante and ex post studies and meetings with experts might cause the process of preparing acts to be prolonged excessively and unnecessarily.

5.7. The EESC agrees with the opinion voiced at the public hearing of 26 May 2015 that the drafting of Articles 290 and 291 could be improved and that, in the event of a future revision of the treaties, they should be drafted in a clearer and less ambiguous manner. Their application should also be better regulated within the EU’s legislative system, so as to prevent decisions on the choice of legal instrument being more political than technical.

5.8. Furthermore, the EESC would like the guidelines to state explicitly, at the very least, that all elements of delegations laid down in legislative acts must be strictly defined, in terms of: (a) their stated objectives; (b) their precise content; (c) their exact scope; (d) and their precise and fixed duration.

5.9. The EESC also considers that it too should be consulted for an opinion as part of the delegation procedure, in the same way as for legislative acts, and also for impact assessments and any amendments to delegated acts, given their economic and social repercussions.

5.10. Taking into account the conclusions of the public hearing, the EESC considers that the EU institutions should ensure that citizens have access to each stage of the preparatory work, and the institutions should equip themselves with the resources necessary for this.

Brussels, 16 September 2015. The President of the European Economic and Social Committee Henri MALOSSE

(1) CES 248/2013.

(2) COM(2013) 451 final, 452 final and 751 final.

(3) OJ C 67, 6.3.2014, p. 104, and OJ C 177, 11.6.2014, p. 48.

(4) http://data.consilium.europa.eu/doc/document/ST-17336-2013-INIT/en/pdf

(5) http://data.consilium.europa.eu/doc/document/ST-15147-2014-INIT/en/pdf

(6) COM(2015) 216 final.

(7) Case C-355/10 European Parliament v Council, 5 September 2012, paragraphs 26-28, 39, 65-68.

(8) Paragraph 64 of the judgment.

(9) Case C-427/12, Commission v European Parliament and Council, of 18 March 2014, the ‘Biocides case’.

(10) Paragraph 40 of the judgment.

(11) Paragraphs 75 et seq. of the opinion.

(12) OJ C 135, 5.5.2014, p. 24. Action brought on 21 February 2014 — European Commission v European Parliament and Council of the European Union — Case C-88/14.

(13) Paragraph 38 of the opinion.

(14) Paragraph 45 of the opinion.

(15) COM(2015) 215 final.

(16) SWD(2015) 111 final.

(17) http://ec.europa.eu/smart-regulation/guidelines/docs/br_toolbox_en.pdf

(18) SWD(2015) 110 final.