Communication from the Commission to the European Parliament and the Council -  Implementation of Article 290 of the Treaty on the Functioning of the European Union
Date: 2009-12-09
Institutions: European Commission
Subjects: European Commission, Treaty of Lisbon, Treaty on European Union, administrative autonomy, drafting of EU law, operation of the Institutions

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EUROPEAN COMMISSION 

Brussels, 9.12.2009 
COM(2009) 673 final 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 

Implementation of Article 290 of the Treaty on the Functioning of the European Union 

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COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 

Implementation of Article 290 of the Treaty on the Functioning of the European Union 

1. 

INTRODUCTION 

Article  290  of  the  Treaty  on  the  Functioning  of  the  European  Union,  as  laid  down  in  the 
Treaty  of  Lisbon  signed  on  13  December  20071  (hereinafter  "the  new  Treaty"),  allows  the 
legislator  to  delegate  to  the  Commission  the  power  to  adopt  non-legislative  acts  of  general 
application to supplement or amend certain non-essential elements of a legislative act. Legal 
acts  adopted  by  the  Commission  in  this  way  are  referred  to  in  the  terminology  used  by  the 
new Treaty as "delegated acts" (Article 290(3)).  

This  provision  does  not  require  the  adoption  of  any  binding  instrument  of  secondary 
legislation to ensure its implementation; it is sufficient in itself and contains all the elements 
required  by  the  legislator  for  defining,  case  by  case,  the  scope,  content  and  practical 
arrangements  for  delegating  power.  However,  the  Commission  believes  it  is  useful  and 
necessary  to  define  the  general  framework  within  which  such  delegations  of  power  should 
operate.  The  European  Parliament,  although  stressing  that  this  measure  should  preserve  the 
freedom  of  the  legislator,  has  reached  a  similar  conclusion  and  has  suggested  that  the 
institutions agree on a standard formula for delegations that would be regularly inserted by the 
Commission in the draft legislative act itself2. 

Without challenging the freedom of the European Parliament and the Council to set the limits 
and  conditions  of  a  delegation  of  powers  at  the  point  when  a  legislative  act  is  adopted,  the 
principles of better regulation and the smooth running of the interinstitutional process plead 
for  a  coordinated  and  coherent  approach.  Both  the  Commission,  which  is  responsible  for 
preparing and adopting delegated acts, and the European Parliament and Council, which are 
responsible  for  scrutinising  them,  should  promote  the  introduction  of  a  system  that  is  as 
homogeneous and predictable as possible. 

The purpose of this communication is to set out the Commission's views on the scope of the 
delegated acts, the framework for delegations of power, the working methods the Commission 
intends to use for preparing the adoption of delegated acts and, finally, the conditions under 
which  the  legislator  might  exercise  control  over  the  way  the  powers  conferred  on  the 
Commission are implemented. 

2. 

SCOPE OF DELEGATED ACTS 

The scope of Article 290 cannot be determined simply by examining in detail the terms used 
by the authors of the new Treaty to define delegated acts; the provision also needs to be put 
into context, by looking in particular at its historical connection with the regulatory procedure 

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OJ C 306, 17.12.2007. 
European  Parliament  resolution  of  7  May  2009  on  Parliament's  new  role  and  responsibilities  in 
implementing the Treaty of Lisbon. 

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with scrutiny and at its links with Article 291 on implementing acts. For it is around Articles 
290 and 291 that the legal framework will have to be constructed to replace the comitology 
system established under the Treaty establishing the European Community. 

A delegation of power within the meaning of Article 290 is possible only in a legislative act. 
However, it makes little difference whether or not the legislative act was adopted jointly by 
Parliament  and  the  Council,  because  Article  290  does  not  distinguish  between  the  ordinary 
legislative procedure (formerly codecision) and special legislative procedures.  

2.1. 

Relations with the regulatory procedure with scrutiny 

Purely  in  terms  of  the  wording,  the  definition  of  delegated  acts  in  Article  290(1)  is  very 
similar to that of acts which, under Decision 1999/468/EC3 ("the comitology Decision"), are 
subject  to  the  regulatory  procedure  with  scrutiny  introduced  by  Decision  2006/512/EC  of 
17 July 20064. In both cases the acts in question are of general application and seek to amend 
or supplement certain non-essential elements of the legislative instrument.  

However, the similarity of the criteria does not mean that they will be implemented in exactly 
the  same  way;  in  a  new  institutional  context  the  scope  of  the  delegated  acts  will  not 
necessarily  be  identical  to  that  of  the  regulatory  procedure  with  scrutiny.  Any  automatic 
duplication of precedents is therefore to be avoided. 

2.2. 

Relations with implementing acts 

Before  examining  the  idea  of  the  delegated  act  in  its  own  right  we  should  consider  it  in 
relation to the implementing act, which is the subject of Article 291. 

It is clear, first, that an act cannot be classified under two different headings at the same time: 
an act based on Article 290 is by definition excluded from the scope of Article 291, and vice 
versa.  The  authors  of  the  new  Treaty  clearly  intended  the  two  articles  to  be  mutually 
exclusive, and indeed the resulting acts have different legal names.  

Secondly, it should be noted that the authors of the new Treaty did not conceive the scope of 
the two articles in the same way. The concept of the delegated act is defined in terms of its 
scope  and  consequences  –  as  a  general  measure  that  supplements  or  amends  non-essential 
elements – whereas that of the implementing act, although never spelled out, is determined by 
its rationale - the need for uniform conditions for implementation. This discrepancy is due to 
the  very  different  nature  and  scope  of  the  powers  conferred  on  the  Commission  by  the  two 
provisions. 

When  it  receives  the  power  to  adopt  delegated  acts  under  Article  290  the  Commission  is 
authorised  to  supplement  or  amend  the  work  of  the  legislator.  Such  a  delegation  is  always 
discretionary:  the  legislator  delegates  its  powers  to  the  Commission  in  the  interests  of 
efficiency.  In  the  system  introduced  by  Article  291  the  Commission  does  not  exercise  any 
"quasi-legislative"  power;  its  power  is  purely  executive.  The  Member  States  are  naturally 
responsible for implementing the legally binding acts of the European Union, but because it is 
necessary  to  have  uniform  implementing  conditions  the  Commission  must  exercise  its 

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OJ L 184, 17.7.1999, p. 23. Consolidated version, as amended by Decision 2006/512/EC, published in 
OJ C 255, 21.10.2006, p. 4. 
OJ L 200, 22.7.2006, p. 11. 

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executive  power.  Its  intervention  is  not  optional  but  compulsory,  when  the  conditions  of 
Article 291 are fulfilled. 

Finally, it is important to stress that the fact that the acts adopted by the Commission are of 
general application is not in itself sufficient to trigger the application of the legal regime of 
delegated acts rather than that of implementing acts; Article 291 also allows the Commission 
to  adopt  implementing  measures  of  general  application.  In  order  to  ensure  the  uniform 
implementation  of  a  legally  binding  act  of  the  European  Union  the  Commission  may  use 
either  individual  measures  or  acts  of  general  application.  However,  it  is  clear  from  the 
wording  of  Article  290  that  the  Commission  may  never  adopt  a  delegated  act  relating  to  a 
measure of an individual nature. 

2.3. 

Criteria for implementing Article 290 

It  is  for  the  legislator  alone  to  apply  the  criteria  set  out  in  Article  290  which,  it  should  be 
noted, are cumulative: the act must not only be of general application but must also amend or 
supplement certain non-essential elements of the legislative act. If either of these conditions is 
not met Article 290 may not be applied. 

The Commission does not intend to interpret these criteria in the abstract; the very wide range 
of  measures  that  might  be  envisaged  in  a  given  situation  precludes  any  attempt  at 
classification. The Commission would, however, make two comments.  

Firstly,  it  believes  that  by  using  the  verb  "amend"  the  authors  of  the  new  Treaty  wanted  to 
cover hypothetical cases in which the Commission is empowered formally to amend a basic 
instrument. Such a formal amendment might relate to the text of one or more articles in the 
enacting terms or to the text of an annex that legally forms part of the legislative instrument. It 
makes little difference whether the annex contains purely technical measures; as soon as the 
Commission is empowered to amend an annex containing measures of general application, the 
regime of delegated acts must be applied. 

Secondly, the Commission wishes to stress the importance that should be attached to the verb 
"supplement",  the  meaning  and  scope  of  which  are  less  specific  than  those  of  the  verb 
"amend". 

The  Commission  believes  that  in  order  to  determine  whether  a  measure  "supplements"  the 
basic  instrument,  the  legislator  should  assess  whether  the  future  measure  specifically  adds 
new non-essential rules which change the framework of the legislative act, leaving a margin 
of discretion to the Commission. If it does, the measure could be deemed to "supplement" the 
basic instrument. Conversely, measures intended only to give effect to the existing rules of the 
basic instrument should not be deemed to be supplementary measures. 

The  legislator  is  entitled  to  enact  full  and  comprehensive  regulations  governing  a  particular 
field of action, entrusting to the Commission the responsibility for ensuring their harmonised 
implementation through implementing acts; alternatively the legislator can choose to regulate 
the  field  in  question  only  partially,  leaving  the  Commission  the  responsibility  for 
supplementing the regulations with delegated acts.  

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3. 

FRAMEWORK FOR DELEGATIONS OF POWER 

When the legislator confers powers on the Commission, it must define the framework within 
which they are exercised in each legislative act. The second subparagraph of Article 290(1) of 
the  new  Treaty  requires  the  legislator  explicitly  to  define  the  objectives,  content,  scope  and 
duration of the delegation  of power.  It thus defines two types of limits on the delegation of 
power: material limits and temporal limits. 

3.1.  Material limits 

The  delegation  of  power  must  be  clear,  precise  and  detailed.  The  legislator  decides  the 
objectives  which  the  adoption  of  the  delegated  acts  should  make  it  possible  to  attain  and, 
where appropriate, the limits which these acts may not exceed. 

So in a case where the legislator wished to confer on the Commission the power to amend the 
annex to a regulation it should, for example, specify that the Commission may amend all or 
part of the annex in question by a delegated act, provided that certain conditions are fulfilled - 
scientific or technical progress has been made, a particular event has taken place or a certain 
amount of time has elapsed, etc. Similarly, limits might be imposed on the Commission for 
amending the annex; if the annex relates to setting quantitative values the Commission might 
be required by the legislator not to exceed certain thresholds. 

3.2. 

Temporal limits 

Article 290 states that the duration of the delegation of power is laid down by the legislator. 
The  Commission  does  not  believe  that  this  requirement  sanctions  the  practice  of  sunset 
clauses which when inserted into a legislative act automatically set a time limit on the powers 
conferred  on  the  Commission,  thus  compelling  it  in  practice  to  present  a  new  legislative 
proposal when the time limit imposed by the legislator expires. Article 290 requires above all 
that a clear and predictable framework be established for the delegated powers; but it does not 
require  the  Commission  to  be  subject  to  strict  cut-off  dates.  The  legislator  must  be  able  to 
strike a balance between the need to establish a framework for the delegated powers and the 
need  to  ensure  the  continuity  of  the  adoption  of  legal  acts  that  are  essential  to  the 
implementation  of  EU  policies.  Forcing  the  Commission  periodically  to  present  new 
legislative proposals to renew a delegation of power would be contrary to the very objectives 
of efficiency and speed that justify the use of delegated acts in the first place. 

The  Commission  believes  it  is  preferable  not  to  increase  the  institutions'  workload  by 
introducing  a  binding  system  of  short-term  delegations.  Delegations  of  power  should  in 
principle,  therefore,  be  of  indefinite  duration.  Such  a  practice  would,  moreover,  be  entirely 
consistent  with  the  current  situation.  Experience  shows  that  the  legislator  does  not,  as  a 
general rule, wish to impose a time limit on the powers conferred on the Commission, even 
when conferring on it responsibility for taking quasi-legislative measures. 

This is not to say that delegations of power should be immutable. It is important to note here 
that  under  Article  290(2)(a)  the  legislator  can  include  in  the  basic  instrument  an  option  to 
revoke  the  delegation  of  power.  Legally  the  effects  of  a  revocation  are  exactly  the  same  as 
those of a sunset clause; both put an end to the powers conferred on the Commission and the 
onus is then on the Commission to submit a legislative proposal if this is useful and necessary. 
In  other  words,  if  the  legislator  feels  that  in  certain  fields  it  is  necessary  to  avoid  the 
delegation  of  powers  becoming  a  permanent  mandate,  it  can  confer  on  itself  the  right  to 
revoke it. This may prove to be a more flexible option than an automatic sunset clause.  

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This  does not  mean  that revocation, as such, can be  understood merely as a "substitute" for 
sunset  clauses.  As  will  be  shown  later  (see  point  5.2.  below),  revocation  may  serve  other 
purposes. But, clearly, in this prerogative the legislator has at its disposal a mechanism whose 
practical effect is comparable to that of a sunset clause. 

In specific cases it might, however, be appropriate for the legislator to set a precise date on 
which the delegation of power will expire. In such cases, and in order for the institutions not 
to  have  to  resort  to  enacting  legislation  to  renew  the  delegation  of  power,  a  mechanism  for 
tacit renewal should be introduced, conditional on a report by the Commission and, of course, 
subject to the legislator being able to prevent such an automatic renewal.  

4. 

PROCEDURE FOR ADOPTING DELEGATED ACTS 

4.1. 

Autonomy of the Commission 

Article 290 contains no provision referring directly or indirectly to the procedure for adopting 
delegated acts. Using the powers conferred on it by the legislator the Commission adopts the 
acts necessary to attain the objectives laid down by the basic instrument.  

Article  290(1)  on  the  framework  for  the  delegation  of  power  requires  the  Commission  to 
comply with the material and temporal limits of the delegation which, in a sense, constitute 
the  essence  of  the  "mandate"  issued  by  the  legislator.  This  first  paragraph  therefore  has  an 
impact at an early stage, before the Commission has even started to prepare a delegated act.  

Article 290(2), which deals with the control which may be exercised by the legislator, comes 
into  play  at  a  later  stage,  after  the  mandate  has  been  exercised,  by  acting  either  on  the 
delegation itself (which may be revoked if the legislator considers that it is being incorrectly 
used),  or  on  the  delegated  acts,  to  which  objections  may  be  made  once  they  have  been 
adopted, thus preventing their entry into force.  

However,  neither  of  these  provisions  has  anything  to  say  about  the  procedure  by  which  the 
Commission adopts a delegated act. Consequently, the Commission enjoys a large measure of 
autonomy in this matter. 

4.2. 

Preparatory work for the adoption of delegated acts 

The Commission intends to carry out the preparatory work it considers necessary in order to 
ensure, first, that from a technical and legal point of view the delegated acts comply fully with 
the  objectives  laid  down  by  the  basic  instrument  and,  second,  that  from  a  political  and 
institutional point of view everything possible is done to avoid any objections being made by 
Parliament or the Council.  

Except  in  cases  where  this  preparatory  work  does  not  require  any  new  expertise,  the 
Commission intends systematically to consult experts from the national authorities of all the 
Member States, which will be responsible for implementing the delegated acts once they have 
been adopted. This consultation will be carried out in plenty of  time,  to  give the experts an 

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opportunity to make a useful and effective contribution to the Commission. The Commission 
might form new expert groups5 for this purpose, or use existing ones. 

The  Commission  attaches  the  highest  importance  to  this  work,  which  makes  it  possible  to 
establish an effective partnership at the technical level with experts in the national authorities. 
However,  it  should  be  made  clear  that  these  experts  will  have  a  consultative  rather  than  an 
institutional  role  in  the  decision-making  procedure.  At  the  end  of  the  consultations,  the 
Commission will inform the experts of the conclusions it believes should be drawn from the 
discussions, its preliminary reactions and how it intends to proceed. 

In the specific area of financial services the Commission is also committed to continuing to 
consult experts appointed by the Member States in the preparation of its draft delegated acts, 
in accordance with its established practice (see Declaration No 39 annexed to the Final Act of 
the Intergovernmental Conference that adopted the Lisbon Treaty6). 

In  addition,  and  where  necessary,  the  Commission  will  conduct  any  research,  analysis, 
hearings and consultations required, in the form best suited to the fields in question and the 
time limits that have been laid down. 

On  a  general  level,  the  Commission  plans  to  set  up  an  early  warning  system  to  enable 
Parliament  and  the  Council  more  effectively  to  plan  how  they  exercise  their  prerogatives 
during a period of two months following the adoption of the delegated acts. This period may 
be extended by one month at the request of either Parliament or the Council (see point 5.3.1 
below).  In  the  case  of  sensitive  dossiers,  the  Commission  will  also  make  a  point  of  giving 
Parliament and Council additional information about the delegated acts it intends to adopt.  

5. 

SCRUTINY OF DELEGATED ACTS 

5.1. 

General considerations 

Article  290(2)  of  the  new  Treaty  specifies  the  two  conditions  to  which  the  legislator  may 
subject  the  delegation  of  power:  firstly,  the  right  to  revoke  the  delegation  of  power,  and 
secondly the right to express objections, that is the right of opposition. Whereas opposition is 
a specific motion of censure directed at a clearly defined delegated act, revocation is a general 
and  absolute  withdrawal  of  the  delegated  powers  from  the  Commission.  Opposition  should 
thus  be  seen  as  the  ordinary  means  of  control  exercised  by  the  legislator  over  all  delegated 
acts, whereas revocation appears to be a more exceptional measure, prompted for example by 
the occurrence of factors that undermine the very basis of the delegation of power. 

The  legislator  is  not  obliged  to  impose  these  two  conditions  cumulatively;  they  are 
independent of one another. The legislator might feel that it is not always necessary to provide 
for the possibility of revoking the delegation of power, in that this prerogative, in the case of 
an  act  adopted  by  the  ordinary  legislative  procedure,  gives  one  of  the  two  branches  of  the 
legislature  the  unilateral  power  to  render  inoperative  a  provision  that  was  adopted  jointly. 
Similarly,  the  right  of  opposition  might  sometimes  prove  difficult  to  use,  particularly  when 

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In line with the practice for all expert groups, the relevant information about the groups set up in this 
way will be made public via the register of expert groups. 
OJ C 115, 9.5.2008, p. 350. 

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the legislator wishes to confer on the Commission the power to adopt delegated acts with a 
particularly short deadline or strict timetable (see points 5.2 and 5.3.1 below). 

In  order  to  exercise  either  of  the  powers  of  control  granted  to  it  by  the  Treaty,  Parliament 
must act by a majority of its members and the Council by qualified majority, as provided for 
in the second subparagraph of Article 290(2). 

5.2. 

Right of revocation 

The right of revocation might particularly be envisaged in cases where the legislator wishes to 
have  the  possibility  of  withdrawing  at  any  time  the  powers  it  has  conferred  on  the 
Commission,  in  order  to  take  account  of  new  circumstances  that  would  justify  a  legislative 
intervention. 

The legislator might also want to have a right of revocation if it feels that a right of opposition 
would be ineffective or impractical, for example when the Commission is required to adopt 
delegated acts subject to time constraints that are incompatible with the exercise of a right of 
opposition  by  the  legislator.  Where  the  legislator  is  unable  to  exercise  control  over  every 
single  act  adopted,  because  they  are  so  numerous,  it  would  retain  overall  control  over  the 
delegation of power through the right of revocation. 

Where  provided  for  in  the  legislative  act,  the  exercise  of  the  right  of  revocation  should  be 
accompanied  by  a  duty  to  explain  the  reasons behind  it  and  by  an  exchange  of  information 
between the institutions. The legal consequences should also be specified in advance. 

The  institution  wishing  to  withdraw  its  confidence  from  the  Commission  should  ideally 
explain its reasons for doing so. This would be useful for two reasons. Firstly, it would help 
the institution that was not exercising the right of revocation to understand the reasons why 
the other institution had decided unilaterally to amend the basic instrument. It would also have 
a  preventive  function:  by  explaining  the  reasons  for  its  decision  Parliament  or  the  Council 
would  clearly  show  the  Commission  what  it  had  to  do  or  not  to  do  in  order  to  avoid  other 
revocations in the future. 

The institution that intends to revoke the delegation should notify its intention not only to the 
Commission but also to the institution that is not exercising the right of revocation, so that an 
interinstitutional  dialogue  can  be  established  before  the  revocation  decision  is  taken.  In 
addition,  the  institution  that  initiates  the  revocation  should  explicitly  state  which  delegated 
powers  it  is  seeking  to  revoke.  Provision  should  be  made,  for  example,  for  a  situation  in 
which Parliament or the Council proposes to revoke only some of the powers delegated to the 
Commission. In other words a "partial revocation" should be possible. 

Finally, the consequences of revocation should be explicitly set out in the basic instrument. It 
might  be  specified,  for  example,  that  the  revocation  decision  terminates  the  delegation  of 
powers  by  explicitly  targeting  the  delegated  powers  that  are  revoked,  but  that  it  does  not 
affect the delegated acts that are already in force. 

5.3. 

Right of opposition 

Where  provided  for  in  the  legislative  act,  the  right  of  opposition  should  fulfil  certain 
requirements in terms of procedure. Once it has adopted a delegated act, the Commission will 
notify  it  to  the  legislator,  i.e.  simultaneously  to  Parliament  and  the  Council,  if  the  basic 
instrument is governed by the ordinary legislative procedure. The right of opposition would 

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then  be  triggered  and  would  act  like  a  suspensive  condition:  the  entry  into  force  of  the 
delegated act adopted by the Commission would be suspended for a period specified by the 
legislative act, during which the legislator would have the right to lodge objections. 

The Commission will also take all the necessary measures to ensure that the delegated acts are 
published as soon as they are adopted.  

5.3.1.  Time limits 

The  period  allowed  for  the  legislator  to  examine  the  delegated  act  will  be  laid  down  in  the 
basic instrument. The legislator will be free to decide how long it thinks it will need in each 
case.  However,  the  Commission  believes  it  would  be  best  to  avoid  setting  completely 
different  time  limits  for  the  different  areas  involved,  unless  this  were  fully  justified  by  the 
urgency of the measures to be taken - in which case shorter deadlines would have to be set – 
or,  conversely,  by  the  extreme  complexity  of  the  acts  the  Commission  was  empowered  to 
adopt – in which case the review period ought to be extended.  

The  period  for  expressing  objections  would  start  to  run  from  the  moment  the  Commission 
transmitted the delegated act, adopted in all the EU official languages. 

Experience with the regulatory procedure with scrutiny shows that the three months currently 
allowed for exercising the right of opposition is longer than required, in that Parliament and 
the  Council  are  often  able  to  establish  more  quickly  whether  the  act  in  question  is  likely  to 
pose problems. In most cases the three-month period is thus a simple procedural time limit, 
which delays the entry into force of the act without bringing any real added value.  

Consequently, the Commission favours a system in which the period for expressing objections 
would be two months, but would automatically be extended by one month on the initiative of 
Parliament  or  the  Council.  This  would  help  to  increase  the  efficiency  of  the  procedures 
without undermining the principle of a total period of three months. In specific cases, where 
the issues on which powers were delegated to the Commission were so complex or sensitive 
that the two-month period would not be long enough to allow Parliament and the Council to 
exercise  their  prerogatives,  it  might  be  necessary  to  provide  for  a  fixed  period  of  three 
months.  

Provision should also be made for the possibility of the two institutions deciding to inform the 
Commission  that  they  will  not  oppose  the  delegated  act  even  before  the  legal  deadline  has 
expired, thus enabling the delegated act to enter into force immediately. 

Obviously this standard formula would not suit every area of action. Some policies require the 
Commission  to  act  very  quickly,  even  when  it  is  not  an  emergency.  In  such  cases  the 
legislator could be asked significantly to shorten the scrutiny period or even dispense with it 
altogether, if it also has a right of revocation (see point 5.2 above). 

5.3.2.  Grounds 

Article 290 TFEU does not list the grounds on which the legislator may object to a delegated 
act.  The  right  to  express  objections,  which  represents  the  ordinary  type  of  scrutiny  of  the 
delegation of power by the legislator, should in principle fall under the discretionary power of 
Parliament and the Council.  

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However, the institution opposing the act should explain the reasons for its decision by setting 
them out in the Council decision or Parliamentary resolution formalising its objections. This 
will  ensure  that  the  Commission  does  not  continue  to  pursue  the  course  of  action  that 
prompted Parliament or the Council to express objections. If, for example, the institution that 
expressed objections shows clearly that the Commission has exceeded the framework of the 
delegation  of  power,  this  would  enable  the  Commission,  if  necessary,  to  opt  for  legislation 
instead.  

5.3.3.  Consequences of opposition 

A  delegated  act  that  Parliament  or  the  Council  has  opposed  cannot  enter  into  force.  The 
Commission  will  then  have  the  possibility  of  either  adopting  a  new  delegated  act,  amended 
where  necessary  to  take  account  of  the  objections  expressed,  or  presenting  a  legislative 
proposal  under  the  terms  of  the  Treaties,  if  the  objections  were  based  on  its  having 
overstepped the powers delegated to it. It is also conceivable that the Commission will decide 
not to do anything at all. 

5.3.4.  Urgency procedure 

The Commission believes that there might be some cases where a delegated act subject to the 
right of opposition had to be adopted and enter into force as a matter of particular urgency. At 
the height of the financial crisis in autumn 2008, for example, certain accounting rules had to 
be  amended  very  quickly.  The  deadlines  for  the  regulatory  procedure  with  scrutiny,  which 
applied in this case, had to be considerably shortened to enable the measures to be taken and 
implemented in the shortest possible space of time.  

The  normal  exercise  of  the  right  of  opposition  may,  therefore,  prove  incompatible  with  the 
urgency  of  the  situation  in  question.  Consequently,  the  Commission  feels  it  is  essential  to 
introduce an urgency procedure for use by the legislator. 

Such  a  procedure  could  be  organised  in  several  ways.  One  would  be  to  limit  to  the  strict 
minimum  the  period  allowed  for  expressing  objections.  Thus  for  overriding  reasons  of 
urgency a delegated act adopted by the Commission could, for example, enter into force eight 
days after being sent to Parliament and the Council. This approach has the advantage of being 
simple  and  of  not  altering  the  traditional  procedural  circuit.  However,  the  danger  is  that  it 
renders  the  legislator's  right  of  opposition  completely  illusory;  the  legislator  would  have 
enormous difficulty formulating any objections in such a short time. 

For  this  reason  the  Commission  would  recommend  an  alternative  approach,  which  would 
allow  it  to  adopt  and  implement  immediately  a  delegated  act  which  would  nevertheless  be 
subject to the right of opposition. This act would be notified immediately to the legislator and 
would  apply  provided  no  objection  was  expressed  by  Parliament  or  the  Council  during  a 
period that might be fixed at six weeks. If objections were expressed, the delegated act would 
cease to apply.  

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6. 

CONCLUSION 

This  communication  takes  account  of  the  exploratory  contacts  with  the  departments  of  the 
European Parliament and the discussions that took place with the Council in the weeks before 
its  adoption.  The  Commission  believes  that  this  communication  will  enable  the  three 
institutions  to  organise  the  delegations  of  power  conferred  under  Article  290  of  the  new 
Treaty in the most harmonious way possible. 

In  line  with  the  ideas  set  out  in  this  communication,  the  Commission  encloses  herewith 
several  models  for  articles  in  future  legislative  acts  conferring  on  it  the  power  to  adopt 
delegated acts. 

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ANNEX  

Models 

These  models  provide  standard  wording  for  the  Articles  of  a  basic  instrument  in  which  the 
legislator defines the limits of the delegation of power and lays down the conditions to which 
the  delegation  is  subject.  These  models  do  not  concern  the  delegated  acts  themselves. 
Nevertheless,  the  Commission  would  already  like  to  clarify  that  the  delegated  acts  will 
contain  specific  recitals  explaining  the  rationale  of  the  acts.  The  delegated  acts  will  also  be 
accompanied  by  an  explanatory  memorandum  setting  out  in  a  more  detailed  manner  the 
grounds for the act and providing information about the preparatory work undertaken by the 
Commission, where relevant. 

The  Commission  should  be  empowered  to  adopt  delegated  acts  in  accordance  with 
Article 290 of the Treaty in respect of […]. 

Recital 

Article(s) delegating powers 

(One or several provisions delegate powers to the Commission in the basic instrument. These 
provisions  shall  set  out  the  objectives,  content  and  scope  of  the  delegated  powers  and  shall 
make reference to Article A.) 

Article A 

Exercise of the delegation 

1. 

The powers to adopt the delegated acts referred to in [Article(s) delegating powers] 
shall be conferred on the Commission for (…) 

Option 1 

an indeterminate period of time. 

Option 2 

a period of [X] years following the entry into force of […].  The  Commission shall 
make a report in respect of the delegated powers at the latest [X] months before the 
end of the [X] year period. The delegation of power shall be automatically extended 
for  periods  of  an  identical  duration,  unless  the  European  Parliament  or  the  Council 
revokes it in accordance with Article B. 

2. 

As soon as it adopts a delegated act, the Commission shall notify it simultaneously to 
the European Parliament and to the Council. 

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3. 

1. 

2. 

3. 

The powers to adopt delegated acts are conferred on the Commission subject to the 
conditions  laid  down  in  Articles  [B]  [and]  [C].  [Where  imperative  grounds  of 
urgency so require, Article D shall apply]7.  

Article B 

Revocation of the delegation 

The delegation of power referred to in [Article(s) delegating powers] may be revoked 
by the European Parliament or by the Council. 

The institution which has commenced an internal procedure for deciding whether to 
revoke the delegation of power shall inform the other legislator and the Commission 
at the latest one month before the final decision is taken, stating the delegated powers 
which could be subject to revocation and the reasons for a revocation. 

The decision of revocation shall put an end to the delegation of the powers specified 
in that decision. It shall take effect immediately or at a later date specified therein. It 
shall  not  affect  the  validity  of  the  delegated  acts  already  in  force.  It  shall  be 
published in the Official Journal of the European Union.  

Article C 

Objections to delegated acts 

1. 

The European Parliament and the Council may object to the delegated act 

Option 1 

within a period of two months from the date of notification. At the initiative of the 
European Parliament or the Council this period shall be extended by one month.  

Option 2 

within a period of three months from the date of notification. 

2. 

3. 

If,  on  expiry  of  that  period,  neither  the  European  Parliament  nor  the  Council  has 
objected to the delegated act, or if, before that date, the European Parliament and the 
Council  have  both  informed  the  Commission  that  they  have  decided  not  to  raise 
objections, the delegated act shall enter into force at the date stated in its provisions. 

If  the  European  Parliament  or  the  Council  objects  to  the  adopted  delegated  act,  it 
shall  not  enter  into  force.  The  institution  which  objects  shall  state  the  reasons  for 
objecting to the delegated act. 

7 

This last sentence shall be inserted only in basic acts which foresee an urgency procedure. 

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Article D 

Urgency procedure8  

1. 

2. 

A delegated act adopted under the urgency procedure shall enter into force without 
delay and apply as long as no objection is expressed in accordance with paragraph 2. 
The notification of the act to the European Parliament and to the Council shall state 
the reasons for the use of the urgency procedure. 

The European Parliament and the Council may within a period of [six weeks] from 
the date of notification object to the delegated act. In such a case, the act shall cease 
to be applicable. The institution which objects shall state the reasons for objecting to 
the delegated act. 

8 

Provisions referring to this Article shall clearly cite the "imperative grounds of urgency". 

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