How to control the Commission when law making – delegated legislation – Part 2 – The Benefits of Better Regulation

Better Regulation and Delegated Legislation

 

On the expectation that few people (in or outside the Commission)  read the rules about how the Commission operate and prepare laws ( and the same rules they fortunately publish), I wanted to provide a brief summary of how the new Commission Better Regulation rules  impact delegated legislation.

The Commission has two sets of commitments on Better Regulation that need to be read in conjunction with each other. First, there is the Inter-Institutional Agreement, and second there are the Commission’s self commitments are laid out in two documents:

  • The Better Regulation Guidelines (here)
  • Better Regulation “Toolbox” (here)

These commitments will apply in addition to the Inter-Institutional Agreement. I have written on some of those changes on the Agreement here.

The self commitments are worth reading as an unusual example of clear and coherent drafting from the Commission services. One can only hope that lucidity of the Guidelines and the Toolbox are such that Commission officials can not say they did understand the new rules, and use ignorance as a reason for not applying thm.

Taken together, the new rules will, if the Commission can apply them on the Services, be positive for open and better law making overall. And, for delegated legislation they will be a radical and welcome move to bring the EU into the sunshine of the 21st century.

 

Reason for these changes

They have come about for two main reasons.

First, Vice-President Timmermans made explicit personal commitments to overhaul the Commission’s delegated law making process in his confirmation hearings.

Second, as ENDS reported on 21 March 2016, it is a by-product of the EU-US talks under TTIP. The US system of law making is more transparent than the EU system, and the EU have opted to drag the EU system into the light of the 21st century.

The challenge will be for the Commission Services to respect these guidelines.  After so long drafting and passing delegated legislation with little or no political oversight from the Commissioners, their Cabinets, or the Secretary-General policing the guidelines, it will be hard to break old habits. As I have written before European Parliament and Member State scrutiny is at times theoretical, and the public seem to be a bystander to be ignored.

 

Policing

The Secretary-General and the Cabinet of V-P Timmerman’s will be left to police these new rules.  I suspect that they will be kept busy for the first 12-18 months as they break in colleagues in the Services.

 

Why these changes are helpful

It is a strange constant at how often important delegated legislative measures are pushed by some Commission Services without any consideration of President Juncker’s Political Guidelines or the Commission’s internal guidelines. I have been surprised to discover some Services are unaware that some delegated legislation need Impact Assessments, or that Road Maps are needed for measures for political validation rom the Commissioner. It helps explain why sometimes important draft delegated legislative proposals do not even exist in the Commission’s internal database that is mean to track all legislative work. For the latter, I guess it is hard to ask questions about a proposal in inter-service consultation if it officially the draft delegated measure does not exist.

 

Key provisions

The self commitments are helpful in that clarifies the rules for (1) political validation, (2) public scrutiny, (3) and the use of impact assessments, and (4) road maps for delegated implementing acts.

 

Road Maps and Validation

For the lack of reference, the Guidelines are worth citing in full.

Box 2. Scoping, political validation and inter service work (See  Page 8)

  • Major initiatives must be accompanied by a Roadmap and entered into Agenda Planning as soon as preparatory work starts – at least 12 months prior to adoption by the College. They must be validated by the lead Commissioner, relevant Vice- President and the First Vice-President before being accepted to be included into the Commissions’ planning. The political validation must be understood as giving the green light to proceed with further preparatory work. It should not be interpreted as a decision on a particular initiative or course of action that prejudges the outcome of any impact assessment process, stakeholder consultation or later political discussion in the College.
  • Roadmaps explain what the Commission is considering. A Roadmap describes the problem to be tackled and the objectives to be achieved. It sets out why EU action may be needed and its value added. The policy options being considered are outlined. The Roadmap also justifies the absence of an impact assessment. It also announces the details of the stakeholder consultation strategy (see later chapter). A (different) Roadmap is also prepared for each evaluation and Fitness Check. This specifies the scope of the evaluation and presents the evaluation questions to be answered.
  • An Inception Impact Assessment is a Roadmap for initiatives subject to an IA that sets out in greater detail the description of the problem, issues related to subsidiarity, the policy objectives and options as well as the likely impacts of each option.
  • All Roadmaps and Inception Impact Assessments are published by the Secretariat General on the Commission’s website8 so that stakeholders are informed and can provide initial feedback (including data and information they may possess) on all aspects of the intended initiative and impact assessment.”

Evaluations, impact assessments, stakeholder consultations, policy proposals and implementation plans must be prepared collectively by the services9 within an interservice group. It is important that all services with an interest participate actively in the interservice work from the outset, particularly those DGs with specific expertise (e.g. competitiveness, SME impacts, social impacts, environmental impacts and scientific/analytical) (See Page 7 Guidelines).

Before Going Anywhere

The Guidelines (page 11) make clear that no work at all can continue unless:

Key requirements

  • Work may only start and the necessary resources attributed if an initiative has received political validation at the appropriate level and a valid entry exists in Agenda Planning, where applicable (cf. point 3 below).
  • “Major” new initiatives have to be accompanied by a Roadmap or Inception IA and require political validation from the lead Commissioner, Vice-President and First Vice President.
  • A valid agenda planning entry is needed in order to launch an interservice consultation.

 

This graphic is helpful in explaining the steps (See Guidelines page 11)

 

Screen Shot 2016-03-24 at 13.21.56

See Page 12 Guidelines

 

Screen Shot 2016-03-24 at 13.25.18

 

See Guidelines page 13

 

Delegated Legislation is Covered

Let’s be clear, delegated legislation can be subject to “validation”, and if it “has significant impact” must be.

As the Guidelines state: ” All ‘major initiatives’ need to be entered into Agenda Planning at the latest 12 months before their planned adoption date and be accompanied by a Roadmap16 or an Inception Impact Assessment.  The implementing instructions identify certain types of acts as being per definition ‘major’. However, any other Commission initiative that is sensitive or important should also be considered as ‘major’. It is the responsibility of each DG to consider carefully aspects such as the political importance and sensitivity, the magnitude of the expected impacts; importance for other policy areas and prior knowledge about divergent or sensitive stakeholder views (see Page 13 Guidelines)”.

And, in case there is any confusion, the Guidelines provide a clear chart to make clear that delegated legislation having significant impacts require validation, and the subsequent steps that such measures needed.

 

Screen Shot 2016-03-24 at 13.29.06

Screen Shot 2016-03-24 at 13.30.11

See: Page 14 Guidelines.

What happens if officials don’t comply with the rules?

The Guidelines helpfully spell out to Commission Services that if they don’t follow the new rules the draft proposal can be blocked:

“If preparatory work for a possibly important or sensitive initiative is carried out only at internal DG level and outside of Agenda Planning, the launch of the ISC may not be validated at political level, or the initiative may be blocked by any DG at the ISC stage, due to the lack of transparency and non-compliance with the implementing instructions.” (see Page 15 Guidelines) .

 

Public Consultation Timelines

The Commission will introduce on or around 1st July 2016 a public screening and consultation process for draft delegated and implementing acts. I presume that RPS measures will be included in this new database.
This means that for draft delegated and implementing acts the public will be given 4 weeks to provide feedback.

For draft delegated acts this means the 4 week public consultation will start “after conclusion of the Inter- Service-Consultation in parallel with Member State experts.

For drafting implementing acts this means the 4 weeks public consultation will commence “after conclusion of the Inter- Service-Consultation and before the vote in the Comitology Committee”.

This will give the Commission a final chance to check if they have overlooked an important first order impact, or second or third order impacts.

In addition, the Commission will publish a version of their Agenda Planning on the database that lists upcoming delegated legislative measures coming on stream.

Of course, there will be exceptions to the the need for publicity. The Guideless provide a table replicated below of those cases.

 

Screen Shot 2016-03-24 at 13.39.37

Screen Shot 2016-03-24 at 13.40.52

See  Page 67-68 Guidelines.

 

Timing for consultation

The Guidelines provide a timetable for the standard public consultations.

Screen Shot 2016-03-24 at 13.45.20

See Page 77 Guidelines.

 

Toolbox

The Guidelines are accompanied by a more detailed Toolbox. This provides 59 tools for Commission Services to use in their work and complying with Better Regulation. There will be little margin for error given how clear and comprehensive these rules are.

The Toolbox provides some helpful clarification on a number of points.

The Commission leads will have to provide a justification on why a draft delegated measure does not have a major impact. At the moment, the Services just need to tick a book saying this is the case and provide no reason or reasoning why this is so. The Toolbox states “DGs should not start work without having political validation by the responsible Commissioner. At the latest 3 months before the planned adoption, the initiative has to be introduced in Agenda Planning. For delegated acts and implementing acts an appropriate justification why they do not have significant impacts and are thus ‘not major’ has to be provided.” (page 10 Toolbox).

In relation to risk management decisions, nuanced criteria may limit the application of some Impact Assessment rules.

swd_br_guidelines_en

 

br_toolbox_en

The Environment Committee Keeping Control Of the Commission – Success in the Scrutiny of Delegated Legislation

Environment Committee Scrutiny of Delegated Legislation 2015-2016

I have chosen the Environment Committee as it is the Committee I know best and it is still the, or one of the most, active legislative Committees in the European Parliament. It is, by some distance, still the most experienced legislative committee in the European Parliament in the last 20 years. It is also likely to be most experienced of all the Committees in exercising that vital Parliamentary power of control and oversight of the Commission in the exercise of delegated law making.

I have looked at the work of the Environment Committee, Public Health and Food Safety in their scrutiny of delegated legislation proposals from the European Commission from January 2015 to today.

 

Method.

I have reviewed the Committee’s excellent Newsletter to track challenges and followed their success or not in the Committee through the Committee Minutes and then the full Parliament through the invaluable EU Vote Watch. There may be gaps.

As votes in Committee are not systematically tracked at the individual level unless there is a roll call vote, which is exceptional – it is hard to know how individual MEPs voted. The only way to do so is by looking at the group co-sponsors and conversations with people more closely involved with specific votes.

Insights.

  • The winning coalition in Committee tends to be: Social Democrats, Radical Left, Greens, and  Europe of Freedom and Direct Democracy, and all or part of ALDE. All groups refuse to work on joint objections with Europe of Nations and Freedom, but they normally support the winning coalition.
  • The ECR and EPP often support the Commission, although sometimes they join the winning coalition.
  • Individual groups bringing challenges tend not to be successful.
  • The winning Committee coalition tends to be replicated the in the full Parliament.
  • Reaching a simple majority in plenary is far easier to do than securing an absolute majority (376 MEPs) but that high hurdle not stopped resolutions in 2015 being adopted.
  • The resolutions and the debates on them tend to be focus on compliance with spirit and letter of the enabling law, rather than the technical of scientific merits of the specific issue. Listening to and reading the Resolutions is like reading litigation pleads on procedural points. There may well be a political challenge going on, but sometimes it is hard to work out what that is. MEPs are often doing what Parliamentarians world over do, they are looking to preserve their hard fought powers.
  • Since September 2015 there appears to be an increase in the challenges from the Environment Committee, and most of these challenges are successful.
  • This increase in MEPs activity in the vital role of Parliamentary oversight of delegated law making could be because the Environment Committee now has less legislation to work on under the Juncker Commission, or the Commission Services have become even more pro-industry in their drafting of draft measures. I think it is a combination of both.
  • There is not a long time for interests to organize from a successful vote in the Committee to the vote of the full Parliament. By the time many interests are organized, voting lists have been prepared in advance. Concerns about draft measures can usually be picked up from the floor of the Environment Committee way in advance.

Environment Committee 2015

  1. Subject: Exemption for cadmium in illumination and display lighting applications 

Measure: Delegated act

Objectors: Bas Eickhout, Keith Taylor (Greens/ALE), Matthias Groote, Daciana Octavia Sârbu, Pavel Poc, Seb Dance, Susanne Melior, Jytte Guteland (S&D Group), Kateřina Konečná (GUE/NGL Group)

Plenary Committee Vote: 20 May 2015

Adopted by 618 for, 33 against, 28 abstentions

Majority needed: 376

EU Vote Watch link

 

  1. Subject: comitology objection on the removal of certain flavouring substances from the authorised Union list

Measure: RPS

Objectors: Sommer (EPP), Gardini (EPP)

Environment Committee 6 May 2015 (discuss), Vote 26 May 2015

 

Rejected: 28 for, 31 against, 0 abstention

 

  1. Subject: objection to the draft measure concerning the maximum residue level for the pesticide sulfoxaflor (bees).

Measure: Regulatory Procedure with Scrutiny (RPS )

Objection by: Sylvie Godin (ENF)

Committee vote: 13 October 2015

Rejected by: 18 for, 31 against

 

  1. Subject: Authourisation of the uses of DEHP

Measure: Implementing act

Objection by: Poc (S&D), Konečná (GUE), Eickhout (Greens/EFA)

Committee vote: 10 November 2015

Adopted by: 58 for, 5 against, 0 abstention

Plenary Vote: 25 November 2015

Adopted by 603 for, 86 against, 5 abstentions

Majority needed: simple majority 345

EU Vote Watch link

 

  1. Subject: list of invasive alien species

Measure: Implementing act

Objection by: Pock (S&D), Sommer (EPP)

Committee vote: 1 December 2015

Adopted by: 51 for, 16 against, 1 abstention

Plenary vote: 16 December 2015

Adopted by: Normal method – show of hands

 

 2016

  1. Subject: Objection pursuant to Rule 105: processed cereal- based food and baby food

Measure: Delegated act

Objection by: Keith Taylor (Greens)

Committee vote: 14 January 2016

Adopted: 35 for, 28 against

Plenary vote: 20 January 2016

Adopted by: 393 votes for, 305 against, 12 abstentions

Majority needed: 376

Vote watch link

 

  1. Subject: Authorisation of GM maize NK603 x T25 and 2 others

Measure: Implementing act

Objection by: 1. Staes (Greens /EFA), Balas (S&D), (GUE/NGL), Evi (EFDD), 2.Goddyn (ENF)

Committee Vote: 1 December 2015

Adopted by 40 votes for, 26 against, 3 abstentions

Plenary vote: 16 December 2015

Adopted: 403 for, 238 against, 50 abstentions

Majority needed: 321

See vote watch link

 

  1. Subject: Infant follow on formula

Measure: Delegated act

Objection by: Keith Taylor (Greens/EFA)

Committee vote: 14 January 2016

Rejected by for: 17; against: 46; abstentions: 0

 

  1. Subject: Extension of the approval period of the active substance glyphosate

Measure: Implementing act

Objectors: Pavel Poc (S&D), Bas Eickhout (Verts/ALE), Piernicola Pedicini (EFDD),Mark Demesmaeker (ECR), Sirpa Pietikäinen (PPE),  Frédérique Ries (ALDE), Kateřina Konečná (GUE/NGL)

Committee vote: 22 March 2016

 

Committee adopted: 38 votes to 6 and 18 abstentions.

Plenary vote: 11-14 April

 

10. Subject: Mandatory indication of the country of origin or place of provenance for certain foods vote

Measure: Implementing act

Objection by:  Glenis Willmott (S&D), Julie Girling (ECR),Anneli Jäätteenmäki (ALDE), Lynn Boylan (GUE/NGL), Michèle Rivasi (Verts/ALE),  Piernicola Pedicini (EFDD), Matteo Salvini (ENF)

Environment Committee: 22 March 2016

Adopted: for 44 votes, against 18.

Plenary vote: April / May 2016

 

 

 

 

New Labour in Europe: Leadership and Lost Opportunities

Last night, I attended the book launch for  Anita Pollack’s  launch for her latest book on the history of the UK Labour Party in the European Parliament from 1997 to 2010. Richard Corbett MEP and Ernst Stetter from FEPS.

 

anita

I had the pleasure of working for Anita in the hey days of New Labour and the return to power in May 1997.

 

It’s People Stupid

Most people think of Brussels in terms of processes and policy. I think personalities are more important. Anita’s book looks at the key personalities that shaped the UK Labour Party’s views on Europe (she worked for Barbara Castle) and the key forces in the UK European Parliamentary delegation.

It bears worth remembering that before the introduction of PR in the UK,  the UK Labour Group was the single largest group (62)  in the whole Parliament by some margin. How the UK Labour Group decided to vote on an issue, meant how a Committee voted,  and often how the the full Parliament would vote.

A Progressive Era Once Existed

In 1997, the Labour group of MEPs were at the forefront of progressive legislation that improved the lives of people, from EU wide air pollution rules, protection for pregnant women, and paid holidays for workers.  We were reminded that these laws often opposed by big industry and and conservative forces. The Third Way and progressive social democratic parties dominated governments across Europe. For progressive causes, these were sunny days.

Jumping forward to 2016, the world looks a very different place. In the UK, a vote on 23 June will decide if the UK remains in or leaves the EU. Ultra nationalists (at best) are in power in Hungry and Poland. An unambitious Commission is in office and Social Democrats in power are rare.

Lessons Learned

There was a realisation that the anti-Europeans had been more diligent in their planning (they have been at it for 20 years) and their persistence is paying off. If the EU In vote wins, and that is a bit if, the pro-European cause will need to become more diligent in future. Also, every european election in the UK had one thing in common. No-one campaigned about Europe on the door step. The level of active and positive debate with the British people had for too long been pitiful to non-existent.We will find out on 23 June whether this long term failure to engage has cost progressives  and Europe dearly.

 

 

 

 

How to control the European Commission when law making – Delegated legislation – Part 1

“Who will guard against the Guardians”.  Juvenal.

Most EU legislation is delegated legislation. Around 93% (and perhaps more) of EU law adopted each year is delegated legislation. The remaining is ordinary (co-decision) legislation, where most NGOs and trade associations spend most of their time and resources, often with marginal substantive impact. Most NGOs and trade associations ignore delegated legislation because they think it is either too complicated or unimportant. I think they are wrong on both counts.

When Member States and the European Parliament hand to the European Commission, through enabling legislation, the power to bring forward new secondary laws, they are handing over considerable power. It would appear that many Member States woke up very late in the day to how much power they had handed over to the European Commission under the Lisbon Treaty (2009), and realised how little control they had to amend or block Commission delegated legislation proposals. At the time, the European Parliament only seemed to be concerned with being on the same footing as the Council, and did not seem to care that they were standing on quicksand.

Today, the Member States and the European Parliament power to control European Commission exercise of delegated power is limited.

More importantly, at the moment, given the relative secrecy in which these proposals are made and adopted, the public’s right to comment and participate is even more limited. However,  important changes are happening by way of the Better Regulation reform in 2016 that will make delegated law making more open. The changes will also introduce more checks and balances on the Commission.

In this blog, I will cover in two parts, and in broad brush strokes:

  1. The current types of delegated legislation in the EU and 3 systems for their adoption
  2. How the Commission is (or is not) controlled by the European Parliament, Member States and the public

In a follow up blog, I will give some case studies that, I think, show how difficult it to stop a Commission proposal once it is made, and to update the blog in light of the new Better Regulation agreement and the Commission’s self-commitments that impact delegated legislation.

 

 

Further Reading

For those interested, I’d recommend the following further reading:

 

Introduction – Delegated Legislation in the EU

This law making procedure has been around for a long time, and it was often known by the term “comitology”, or decision making by committee.  Since the Lisbon Treaty in 2009,  there was an attempt to streamline and simplify the process.

The EP has provided a useful summary here.

Today, delegated legislation there are three systems for the adoption of delegated legislation. They are:

  1. Delegated acts
  2.  Implementing acts, or
  3.  Regulatory Procedure with Scrutiny.

The Lisbon Treaty only refers to delegated acts (Article 290) and implementing acts (Article 291).  But, around 300 Directives exist that use the pre-2009 system and so the Regulatory Procedure with Scrutiny (RPS) system remains.  The RPS is due to be phased out in 2017, but it’s end has been on the cards since 2010.

Member States and the  European Parliament oversee  the following types of acts/measures:

  • Delegated acts: resulting from legal acts adopted after the entry into force of the Lisbon Treaty (article 290);
  • Implementing acts: resulting from legal acts adopted after the entry into force of the Lisbon Treaty (Article 291)
  • Measures falling under the Regulatory Procedure with Scrutiny (RPS): resulting from legislative acts adopted before the entry into force of the Treaty, but which are not yet aligned.

In this blog I focus on the Parliament as they have, to date, been the most active branch of the legislature, in challenging the use (or abuse) of delegated power.

Not Avoiding Political Choices

First, it is important to realise that the Parliament and Council are making a political choice when the decide or not to delegate rule making powers to the Commission. It comes down to whether the, in particular for the Parliament, whether they have a future say in any future specific measure (delegated acts) or not (implementing measure).

Second, much to the surprise of many in Brussels, there are core limits to what can be delegated. The Parliament and Council can not delegate “essential elements”. This means if the measure concerns an essential emolument it can only be dealt with in the ordinary legislation and that power to introduce measures can not be delegated.

The Court of Justice has given their opinion on what an “essential element” means.  In the German Sheep meat case the Court rules that : “rules which (…) are essential to the subject-matter envisaged” and “which are intended to give concrete shape to the fundamental guidelines of Community policy.” “[R]ules being merely of an implementing nature may be delegated to the Commission” (Judgment of 27 October 1992, C-240/90, Germany v Commission, paragraphs 36 and 37).

The Court developed their thinking and clarified that essential elements of a basic are those that “entail political choices falling within the responsibilities of the European Union legislature, [by requiring] the conflicting interests at issue to be weighed up on the basis of a number of assessments”(Judgment of 5 September 2012, Case C-355/10, European Parliament v. Council, paragraphs 63, 76 to 78).

This is important because this prevents the EU legislature avoiding taking hard policy choices. They Parliament and Council can not avoid taking political choices by asking the Commission to settle them for them via delegated legislation. This is in marked contrast to the US, where, at least in the field of air quality regulation, the Congress finds itself unable to make tough political choices of what air pollutant limits should be, and delegates to the US EPA those choices. Fortunately, in Europe, we avoid that abdication of political responsibility.

A summary of the grounds to object, timing, majorities in the EP and consequences of objection is below.

image

 

  1. Article 290 – Delegated Acts

As the EP state “Delegated acts  are used to change or supplement existing legislation. They are a way for Parliament and the Council to authorise the European Commission to revise non-essential parts of legislation, for example by adding an annex. However, Parliament and Council cannot delegate their legislative powers to the Commission to change essential parts of legislative acts.

If Parliament and the Council do not agree with the Commission’s subsequent proposal, they can veto it.”

The Parliament  usually have  2 months with the possibility to ask for an extension of another 2 months. For environment measures, the Environment Committee send a monthly newsletter for both draft delegated, RPS, and implementing acts. A MEP needs to email the Environment Committee Chair and Secretariat of the intention to object. If the Committee backs the objection (by simple majority) the matter is usually tabled for a vote at the next plenary session of the Parliament. At the plenary, the high hurdle of 376, an absolute majority, is set to block a draft measure.

An example of a successful challenge to a proposed delegated act is the European Parliament’s successful challenge is on 12 March 2014 to the Commission’s proposed measure on the definition of  engineered nano materials in food (see here). The Parliament’s challenge was adopted  402 votes for, 258 against and 14 abstentions.The Commission’s proposal was defeated.

Article 290

1.   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.

The objectives, content, scope and duration of the delegation of power shall be explicitly defined in the legislative acts. The essential elements of an area shall be reserved for the legislative act and accordingly shall not be the subject of a delegation of power.

2.   Legislative acts shall explicitly lay down the conditions to which the delegation is subject; these conditions may be as follows:

(a)

the European Parliament or the Council may decide to revoke the delegation;

(b)

the delegated act may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the legislative act.

For the purposes of (a) and (b), the European Parliament shall act by a majority of its component members, and the Council by a qualified majority.

3.   The adjective ‘delegated’ shall be inserted in the title of delegated acts.

2. Article 291 – Implementing Acts

As the EP write “Implementing acts describe how legislative acts should be implemented. They are normally prepared by the Commission, which consults committees made up of representatives from EU countries.

MEPs can object to an implementing act. Although the Commission must then consider Parliament’s position, it is not bound by it.”.

Article 291

1.   Member States shall adopt all measures of national law necessary to implement legally binding Union acts.

2.   Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission, or, in duly justified specific cases and in the cases provided for in Articles 24 and 26 of the Treaty on European Union, on the Council.

3.   For the purposes of paragraph 2, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall lay down in advance the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers.

4.   The word ‘implementing’ shall be inserted in the title of implementing acts.

An example of a challenge to an implementing act is Authorisation of GM maize 1507 for cultivation (see here). The vote on 16 January 2014 was carried with 385 in favour, 201 against, and 30 abstentions.  The Commission ignored the European Parliament.

3. Regulatory Procedure with Scrutiny

The EP state “This is a defunct comitology procedure that operated between 2006 and 2009 for “quasi-legislative measures. It can no longer be used in new legislation but appears in more than 300 existing legal acts and will temporarily continue to apply in these acts until they are formally amended. This procedure empowers the European Parliament and EU Council to block a measure proposed by the Commission if it:

  • exceeds the Commission’s implementing powers,
  • is not compatible with the aim or content of the legal act, or
  • exceeds the EU’s powers or remit (see subsidiarity External Link and proportionality External Link).”

RPS is used extensively in the environment field. Around 300 directives use the procedure. The Commission is due to table a  omnibus proposal to update all the RPS into delegated acts for 2006. That said, talk about the demise of RPS has been on the table since 2010.

An example of a successful challenge to a RPS measure is Parliament’s challenge to criteria for End-of-waste of paper waste (see here). This vote on 4 th December 2012 was adopted with 606 for, 77 against and 10 abstentions.

 

 

How often used

It is estimated that around 93% of EU laws adopted each year are delegated legislation.

In the last European Parliament, the 7th legislative term (14 July 2009 to  30 June 2014), the European Commission tabled 584 co-decision/ordinary legislative proposals, and 488 files were adopted by the co-legilsators (the European Parliament and Council).

Over time, the trend for more co-decision proposals has grown. See below: (Source:  Activity Report on Codecision and Conciliation, page.4.)

But, the adoption of proposed delegated legislation is far higher. The same Parliament report provides the following chart (page 24) on the growing volume of delegated legislation that has been sent to the Parliament.

Screen Shot 2015-12-12 at 11.59.04

93% (or even 97%) of EU law passed each year

The European Commission in their “Report on the Working of the Committees during 2014” note that  1 899 Opinions were adopted, 1 563 Implementing Acts were adopted, and 165  RPS measures were adopted (see page 7).

By that measure, the ordinary (co-decision) legislation represents around 3% of the overall legislative workload of the EU.

Caveat
I will update this section when I can identify the correct number of pieces of delegated legislation (delegated, regulatory procedure with scrutiny, and implementing acts) sent each year to the Parliament and Council  and adopted. This is an obvious discrepancy between the information from the EP and the Commission.
I focus on the work of the Environment Committee. I do so because this is the Committee I am most experienced. Also, they legislate more than other Committee in the European Parliament, and have being more for longer than any other Committee for some time. Also, they have more experience of scrutinising delegated legislation than other Committee and the most successful track record, to date, of holding the Commission and their proposals to account.

More Examples of Delegated Legislation

Today, delegated legislation is either an delegated act or an implementing act. It will be clear from the legal text.

The European Parliament have provided three recent examples where the European Parliament sought to control Commission delegated legislative proposals:

“MEPs vetoed a delegated act concerning suger in baby food in January, as they fear the allowed limits are too high.

In February MEPs decided against vetoing a delegated act proposing to temporarily raise NOx emission limits for diesel cars after the Commission promised to include a review clause.

Also in February MEPs objected to implementing acts approving three types of genetically modified soybeans as they were concerned the soybeans could contain traces of a herbicide that was classified as “probably carcinogenic”.

The main consequence is that the Parliament or Council (or both) will find it far easier to veto a delegated act. The Commission has not withdrawn any implementing act measure the Parliament has objected to.

The Process in Charts

The IEEP have produced an excellent guide on the existing system which you can find here.  The charts below are derived from that study and provide a useful schematic of the current system. These charts are helpful high level maps of the pathway to travel, but they are not detailed travel plans, which are individual for each journey.

  1. Delegated Acts

Screen Shot 2016-02-26 at 15.47.15

2. Implementing Acts

Screen Shot 2016-03-04 at 11.26.55

Screen Shot 2016-03-04 at 11.28.26

Screen Shot 2016-03-04 at 11.30.51

3. Regulatory Procedure with Scrutiny

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The Financial Service legislation use a slightly different system under the Lamfalussy system.

Tracking the Proposals

Public

For the public, there is no public source of draft measures prepared by the Commission that the public can examine. Unlike ordinary legislation, where you can look up proposals and where they are via EUR-lex there is no similar database for delegated legislation.

You can embark on a journey of discovery and search the Commission’s comitology database for proposed implementing acts and RPS measures.  But, so poor is it’s ease of use that asking a friendly experienced cyber hacker would be advisable. And, if the Commission forget to transfer the documents to the Parliament, you’ll still be none the wiser as to what proposals are lurking around.

Fortunately, the EFTA States in February 2016 launched their own database of EU delegated legislative proposals. As the EFTA agreement does not cover all areas, such as fisheries, it covers most, but not all, proposals. It is a very clear database.

European Parliament  and Council

Today the Commission notify the Member States and the European Parliament of their proposals via a functional email box, or for implementing acts, via a database.

The functional email box has limitations.  Whilst many of the measures are technical, some are sensitive, and sometimes the Commission Services have shown themselves unable to operate the system. The system operates on a basis of trust with the Commission sending the correct files to the Council and the Parliament by way of functional email boxes. Sometimes the Commission have not done this.

For example, as recently as December 2014, the Environment Committee  started an objection to a “delegated act entitled Commission delegated Regulation (EU) No …/..of of 12.12.2013 amending Regulation (EU) No 1169/2011 of the European Parliament and of the Council on the provision of food information to consumers as regards the definition of ‘engineered nanomaterials’. The delegated Regulation adapts the existing definition of ‘engineered nanomaterials’ in Regulation (EU) No 1169/2011 to Recommendation 2011/696/EU on the definition of nanomaterial adopted by the Commission on 18 October 2011.”

The objection from the Parliament centred on (1) substantive and (2) procedural grounds. In this case, the European Commission published the act before the period of objection from the Parliament or Council had expired. The Commission acknowledged their error, citing a clerical error and a high volumes of procedures. So, whilst the act was published on 19 December 2014, the error was spotted, and a notice published in the Official Journal that the notice of 19 December was null and void. The Parliament were notified on 19 December of the error.

This case is not isolated. In 2000, the Environment Committee stumbled upon the systematic non-transmission of proposals from the Commission to the European Parliament for many proposals across a few Commission departments.

That said, sometimes delays have happened inside the European Parliament re-allocating the dossier to the correct Parliamentary Committee.
Leaks

Today, this does not mean the draft measures do not leak. Well sourced interests will gain access to the documents, but the public won’t. The European Parliament in practice is left to being informed by well informed “observers” about “problematic proposals” coming down the pipeline.

Impact Assessments

Delegated legislation that has a “serious impact” is meant to have an impact assessment. This is a good way members of the public to see what proposals are in the pipeline.

Measures that have a significant impact are already meant to have an accompanying road map. However, it is interesting to observe that even today many delegated legislative proposals the Commission put forward, that have significant first order, let alone second or third order impacts, still have no Road Maps. Without the Commission Services policing themselves to flag significant impacts with their own proposals, it is unlikely that politically or economically sensitive proposals will be weeded out or flagged for political sign before adoption. And, as nearly 99% of EU delegated or implementing acts go through untouched by the influence of the Parliament or Member Stares, the only way to weed out weak proposals is the inter-service consultation phase. I’ll touch on that in tomorrow’s blog.

 

Follow Up

Tomorrow, I will look at some case studies to show how difficult it is for the Parliament and Council to challenge the Commission. In fact, I’d go so far that this power of control over the Commission verges on to hypothetical.  For example, the Commission have never withdrawn an implementing act challenged by the Parliament.

Second, I’ll detail how the new Better Regulation Agreement changes the mechanics of the current system (which it does for delegated acts) and how the Commission’s unilateral commitments on Better Regulation and delegated legislation (public consultation on draft measures) will positively impact open law making.