REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the delegation of power to adopt delegated acts conferred on the Commission pursuant to Regulations (EU) 2019/817 and 2019/818 of the European Parliament and of the Council
Date: 2023-11-23
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EU migration policy, EU visa policy, European Commission, Schengen Agreement, biometrics, delegated legislation, external border of the EU, information system, powers of the institutions (EU), transfer of competence

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   EUROPEAN COMMISSION  Brussels, 23.11.2023  COM(2023) 723 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the delegation of power to adopt delegated acts conferred on the Commission pursuant to Regulations (EU) 2019/817 and 2019/818 of the European Parliament and of the Council    
 
 
1.  INTRODUCTION 

Regulations  (EU)  2019/8171  and  2019/8182  of  the  European  Parliament  and  of  the  Council 
establish a framework to ensure interoperability between the EU information systems in the 
field of borders, visa, police and judicial cooperation, asylum and migration. Both Regulations 
were adopted on 20 May 2019 and entered into force on 11 June 2019.  

According to Article 73(1) of Regulation (EU) 2019/817 and Article 69(1) of Regulation (EU) 
2019/818, the Commission is empowered to adopt delegated acts. Articles 73(2) and 69(2) of 
both Regulations respectively foresee that the power to adopt delegated acts shall be conferred 
on the Commission for an initial period of five years starting from 11 June 2019. This initial 
period is set to expire on 11 June 2024. 

2.  LEGAL BASIS 

Pursuant to Article 73(2) of Regulation (EU) 2019/817 and Article 69(2) of Regulation (EU) 
2019/818,  the  power  to  adopt  delegated  acts  is  conferred  on  the  Commission  for  an  initial 
period of five years starting from 11 June 2019 and the Commission is required to prepare a 
report in respect of the delegation of power not later than nine months before the end of the 
five-year  period.  This  report  aims  to  fulfil  that  requirement.  Articles  73(2)  and  69(2) 
respectively  also  provide  that  the  delegation  of  power  is  tacitly  extended  for  periods  of  an 
identical duration, unless the European Parliament or the Council opposes such extension not 
later than three months before the end of each period. 

3.  EXERCISE OF THE DELEGATION 

3.1 Consultation prior to adoption 

In accordance with Article 73(4) of Regulation (EU) 2019/817 and Article 69(4) of Regulation 
(EU) 2019/818, the Commission consulted experts nominated by Member States, through an 
Expert Group and written consultations, during the preparation of the delegated acts necessary 
for  the  implementation  of  these  Regulations.  All  Member  States  were  invited  to  nominate 
experts to take part in these consultations and the European Parliament and the Council were 
also invited to participate. 

The documents relevant to these consultations were transmitted simultaneously to the European 
Parliament  and  to  the  Council,  as  foreseen  in  Articles  73(5)  and  69(5)  of  both  Regulations 
respectively and in the Common Understanding on delegated acts. The observations presented 
in  these  consultations  were  taken  into  consideration  when  preparing  the  final  versions  of 
delegated  acts.  Furthermore,  the  Commission  regularly  informed  Member  States  of  the 
progress made with the draft delegated acts. 

3.2 Delegated acts adopted 

During the reporting period, the Commission exercised its delegated powers by adopting six 
delegated  acts.  The  table  below  shows  the  delegated  acts  adopted  under  the  relevant 
empowerments laid down in Regulations (EU) 2019/817 and 2019/818. 

1 OJ L 135, 22.5.2019, p. 27. 
2 OJ L 135, 22.5.2019, p. 85. 

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Delegated Act 
Commission  Delegated  Regulation  supplementing  Regulation  (EU) 
2019/817  of  the  European  Parliament  and  Council  as  regards 
determining cases where identity data are considered as same or similar 
for the purpose of the multiple-identity detection 
Commission  Delegated  Regulation  supplementing  Regulation  (EU) 
2019/818  of  the  European  Parliament  and  Council  as  regards 
determining cases where identity data are considered as same or similar 
for the purpose of the multiple-identity detection 
Commission  Delegated  Regulation  supplementing  Regulation  (EU) 
2019/817 of the European Parliament and of the Council with detailed 
rules  on  the  operation  of  the  central  repository  for  reporting  and 
statistics 
Commission  Delegated  Regulation  supplementing  Regulation  (EU) 
2019/818 of the European Parliament and of the Council with detailed 
rules  on  the  operation  of  the  central  repository  for  reporting  and 
statistics 
Commission  Delegated  Regulation  laying  down  detailed  rules  on  the 
operation  of  the  web  portal,  pursuant  to  Article  49(6)  of  Regulation 
(EU) 2019/817 of the European Parliament and of the Council 

Empowerments 
Article  28(5)  of 
(EU) 
Regulation 
2019/817  

Article  28(5)  of 
(EU) 
Regulation 
2019/818 

Article  39(5)  of 
(EU) 
Regulation 
2019/817  

Article  39(5)  of 
Regulation 
(EU) 
2019/818 

Article  49(6)  of 
Regulation 
(EU) 
2019/817  

Commission  Delegated  Regulation  laying  down  detailed  rules  on  the 
operation  of  the  web  portal,  pursuant  to  Article  49(6)  of  Regulation 
(EU) 2019/818 of the European Parliament and of the Council 

Article  49(6)  of 
Regulation 
(EU) 
2019/818 

3.3 Objection to delegated acts 

According to Article 73(6) of Regulation (EU) 2019/817 and Article 69(6) of Regulation (EU) 
2019/818, the European Parliament or the Council may object to a delegated act within a period 
of two months from the date of notification, extendable by another two months. If either the 
European Parliament or the Council objects to a delegated act within this period, the act does 
not enter into force.  

On  29  September  2021,  the  Commission  adopted  two  delegated  regulations  supplementing 
Regulations  (EU)  2019/817  and  2019/818  as  regards  determining  cases  where  identity  data 
may be considered as same or similar for the purpose of the multiple-identity detection. On 
29 November 2021 the European Parliament requested a two-month extension of the scrutiny 
period.  

On 20 January 2022, the European Parliament objected to these two Commission delegated 
regulations.  The  Parliament  considered  that  ‘these  delegated  acts  did  not  lay  down  the 
procedures to determine the cases in which identity data can be considered to be similar, but 
sub-delegate that power to eu-LISA and to experts from the Commission, the Member States 
and the Union agencies using the EU information systems and interoperability components.’ 
The Council did not object to the delegated acts.  

As a consequence, the delegated acts were revised taking into consideration the concerns of 
the European Parliament and presented for a discussion in the Interoperability Expert Group 

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on 24 January 2022. The members of the Expert Group, including the European Parliament, 
agreed with the revised text of the draft delegated acts.  

On 11 July 2022, the Commission adopted the revised  delegated regulations supplementing 
Regulations  (EU)  2019/817  and  2019/818  as  regards  determining  cases  where  identity  data 
may be considered as same or similar for the purpose of the multiple-identity detection. The 
delegated  acts  were  transmitted  to  the  European  Parliament  and  the  Council  for  a  scrutiny. 
Neither the European Parliament nor the Council objected to them.  

3.4 Need for extending the power to adopt delegated acts 

The majority of delegated acts have been adopted before the expiry of the initial period of five 
years for the exercise of the power to adopt delegated acts.  However, the Commission requires 
an extension of the delegation of power because certain delegated acts can only be adopted 
when the transitional periods of the European Search Portal and the Multiple-Identity Detector 
start, namely: 

-  The Commission delegated acts to extend the duration of the transitional period of the 
European Search Portal  when an assessment of the implementation  of the European 
Search Portal has shown that such an extension is necessary, especially in view of the 
impact that bringing the ESP into operation would have on the organisation and length 
of  border  checks  (Article  67(2)  of  Regulation  (EU)  2019/817  and  Article  63(2)  of 
Regulation (EU) 2019/818); 

-  The Commission delegated acts to extend the duration of the transitional period of the 
Multiple-Identity  Detector  if  multiple-identity  detection  cannot  be  completed  before 
expiry of the initial period for reasons independent of the ETIAS Central Unit, and that 
no corrective measures can be applied (Article 69(8) of Regulation (EU) 2019/817 and 
Article 65(8) of Regulation (EU) 2019/818). 

In  addition,  the  empowerment  to  adopt  or  amend  delegated  acts  will  remain  necessary  to 
provide for  the necessary flexibility  in  the implementation  and operation of  interoperability 
components and to adjust them to any relevant development. In particular, several legislative 
acts  that  impact  the  interoperability  framework  are  being  currently  negotiated  by  the  co-
legislators. The Commission will need to amend the delegated acts to reflect the results of these 
negotiations.  

4.  CONCLUSION 

The Commission considers that it has exercised its delegated powers within the remit conferred 
on it by Regulations (EU) 2019/817 and 2019/818. 

Given the explanation provided in Section 3, the Commission considers  that there is a clear 
need for a tacit extension of the delegation of power provided for in Article 73(1) of Regulation 
(EU) 2019/817 and Article 69(1) of Regulation (EU) 2019/818 for a period of five years. 

The Commission invites the European Parliament and the Council to take note of this report. 

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