Procedure for delegated acts - EU monitor

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Tuesday, December 10, 2019
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The procedure for delegated acts is one of the procedures used to establish secondary legislation. The European Commission may be granted the mandate to establish delegated acts, but only if primary legislation allows for it and only within the boundaries set by the primary legislation.

Delegated acts are generally used to establish measures of a technical nature. Specialist knowledge is usually required to draw up such measures. Despite the fact delegated acts focus on technical measures, such measures may have significant impact in the member states. As such, the seemingly politically less important delegated acts can still attract political attention. When secondary legislation is limited to establishing uniform European measures for implementing primary legislation implementing acts are used instead.

In short the procedure proceeds as follows: basic legislation stipulates on which part of the legislation the European Commission has to establish further measures. The Commission, in co-operation with the member states, drafts the delegated acts. The Council of Ministers and the European Parliament can tacitly or explicitly approve the delegated act, or reject it.

1.

Diagram

adopting delegated acts

2.

Procedure for delegated acts in detail

Step 1: establish framework

Primary legislation establishes the framework and the boundaries in which the European Commission can draft further measures. The role of the Council of Ministers and the European Parliament is also established.

In some cases the mandate of the Commission is limited in time by a so-called sunset clause. When the mandate expires it can be extended, become subject to review or be terminated.

Step 2: establishing delegated acts

The Commission drafts a proposal for a delegated act. This process involves consultations of experts from the member states. Such expert comittees - known as comitology - are made of member state appointed experts, almost always civil servants. In (rare) cases when the Commission does not require additional expertise no consultations are held.

After the Commission has issued a proposal for a delegated act there are three possible outcomes:

  • 1. 
    Council and EP do not issue an opinion; the delegated act will come into effect
  • 2. 
    Council and EP raise no objections; the delegated act will come into effect
  • 3. 
    Either Council or EP or both object to the proposed delegated act; the delegated act is rejected

Both Council and EP are required to provide a motivation when objecting.

Both Council and EP have two months to conclude their evaluation of a proposed delegated act.

On voting procedures

The Council of Ministers decides by qualified majority vote i. The European Parliament decides by

majority of its members i.

In cases where the European Parliament is not co-legislator when establishing the primary legislation the EP generally does have a say in the procedure for delegated acts.

Right to revoke

Both the Council of Ministers as well as the European Parliament may revoke a delegated act. Council and/or EP either take issue with a specific delegated act or the framework and boundaries for delegated acts in the primary legislation itself. Both Council and EP are required to provide a motivation when they object. An objection raised by either institution is sufficient to revoke a delegated act.

3.

Application of delegated acts

The Commission may only issue delegated acts when the following conditions are met:

  • the primary legislation has to be legally binding
  • the primary legislation provides the Commission with a clear mandate to issue delegated acts. The mandate includes the purpose, extent and goal as well as the duration of the delegation
  • delegated acts shall only amend or add to non-essential elements of the primary legislation
  • delegated acts are generally binding by definition; they cannot apply to individual or specific groups of legal entities

As long as the following conditions are met any piece of primary legislation can include a mandate for delegated acts.

4.

Legal framework

Delegated acts are based on the Treaty on the functioning of the European Union:

  • delegated acts: part six TFEU title I chapter 2 section 1 art. 290
  • working arrangements between Council, EP and Commission on delegated acts (regulation 2011/182)

5.

Further information