Implementing & Delegated Acts

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1 Implementing & Delegated Acts Some Principles 1

2 Executive Acts: why? filling in the gaps or dealing with details 2

3 Legislative Process Commission PROPOSES LEGISLATION EP Council CO-DECISION 3

4 Default = execution by the Member States Article 291 of the Treaty (TFEU) 1. Member States shall adopt all measures of national law necessary to implement legally binding Union acts. jos.dumortier@timelex.eu 4

5 Default = execution by the Member States Explicit delegation Implicit delegation jos.dumortier@timelex.eu 5

6 Example of explicit delegation Article 13 of the Draft Regulation Supervisory body 1. Member States shall designate an appropriate body... Supervisory bodies shall be given all supervisory and investigatory powers that are necessary for the exercise of their tasks. 6

7 Example of implicit delegation Article 5 of the Draft Regulation Mutual recognition and acceptance When an electronic identification using an electronic identification means and authentication is required under national legislation or administrative practice to access a service online, any electronic identification means issued in another Member State falling under a scheme included in the list published by the Commission pursuant to the procedure referred to in Article 7 shall be recognised and accepted for the purposes of accessing this service. jos.dumortier@timelex.eu 7

8 Legislative process: second possibility 12 to 48 months Commission PROPOSES LEGISLATION EP Counil CO-DECISION 2 days to several months EP Commission (+ experts) NON-LEGISLATIVE ACTS (VIA COMITOLOGY ) Council jos.dumortier@timelex.eu 8

9 WHY? Uniformity: one single executive act at the EU level Speed: faster than co-decision Efficient: does not block EP/Council Reactive: no need to convene ministers, MEPs Expertise: technical details need specialist knowledge But: Democracy? Accountability? Transparency? 9

10 2 Types of Executive Acts Implementing Acts Delegated Acts 10

11 1. Implementing Acts Article 291 TFEU Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission, 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. 11

12 12

13 13

14 2. Delegated Acts Article 290 TFEU 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. jos.dumortier@timelex.eu 14

15 Delegated Acts Article 290 TFEU 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. jos.dumortier@timelex.eu 15

16 WHO S INVOLVED (in both cases)? BASIC ACT Consults expert committees Commission proposes COMMISSION ADOPTS NON-LEGISLATIVE ACT Legislator (EP & Council) controls (scrutiny or veto) jos.dumortier@timelex.eu 16

17 WHO S INVOLVED Around 250 committees of national experts, chaired by the Commission jos.dumortier@timelex.eu 17

18 Delegated acts Non-legislative act Amend/supplement legislation Non-essential 18

19 Delegated acts Implementing acts Non-legislative act Amend/supplement legislation Non-essential Non-legislative act Implement legislation Often essential 19

20 DELEGATED ACTS: KEY FEATURES No formal committees of national experts: Commission formally acts alone (but informal consultation with national experts) No horizontal procedure, only treaty rules: Legislator decides case-by-case on how to delegate (but common understanding to avoid confusion) Strong powers for legislator Either EP or Council can veto measure or revoke power Inter-institutional parity EP and Council have equal powers, right to information (but informal consultation with national experts) 20

21 DELEGATED ACTS: KEY FEATURES No formal committees of national experts: Commission formally acts alone (but informal consultation with national experts) No horizontal procedure, only treaty rules: Legislator decides case-by-case on how to delegate (but common understanding to avoid confusion) Strong powers for legislator: Either EP or Council can veto measure or revoke power Inter-institutional parity: EP and Council have equal powers, right to information (but informal consultation with national experts) 21

22 COMMON UNDERSTANDING No horizontal procedure, only treaty rules: Legislator decides case-by-case on how to delegate in terms of objectives, content, duration and scope Common understanding gives basic models: 22

23 23

24 DELEGATED ACTS: KEY FEATURES No formal committees of national experts: Commission formally acts alone (but informal consultation with national experts) No horizontal procedure, only treaty rules: Legislator decides case-by-case on how to delegate (but common understanding to avoid confusion) Strong powers for legislator: Either EP or Council can veto measure or revoke power Inter-institutional parity: EP and Council have equal powers, right to information (but informal consultation with national experts) 24

25 VETOING OR REVOKING POWERS EP and Council cannot amend draft measures Nuclear options : veto or revoke power Big majorities needed to veto or revoke: EP: absolute majority of all MEPs Council: qualified majority Any reason allowed for veto or revocation jos.dumortier@timelex.eu 25

26 IMPLEMENTING ACTS: KEY FEATURES Formal committees of national experts: Commission cannot act as it wishes Horizontal procedures laid down by EP and Council: Advisory and examination procedures Weaker powers for legislator: Only right of scrutiny oblige Commission to review act Inter-institutional disparity Member states in control in committees 26

27 IMPLEMENTING ACTS: KEY FEATURES Formal committees of national experts: Commission cannot act as it wishes Horizontal procedures set by EP and Council: Advisory and examination procedures Weaker powers for legislator: Only right of scrutiny oblige Commission to review act Inter-institutional disparity Member states in control in committees 27

28 IMPLEMENTING ACTS: TWO PROCEDURES Advisory procedure: Default procedure Used for funding decisions; less controversial measures Commission takes utmost account of committee s views Examination procedure: Applies to issues of general scope or sensitive topics e.g. trade, taxation, health, environment, agriculture, Committee votes on measures Appeal committee (deputy perm reps) may intervene Member states keep significant control jos.dumortier@timelex.eu 28

29 29

30 EXAMINATION PROCEDURE Commission proposes EXAMINATION COMMITTEE QM - No QM QM + ACT ADOPTED COM may adopt unless: Simple majority against Basic act forbids Sensitive topic COM acts: (Within two months) Submits new draft act (Within one month) Send to appeal cttee NON-LEGISLATIVE ACTS jos.dumortier@timelex.eu 30 (VIA COMITOLOGY)

31 EXAMINATION PROCEDURE APPEAL COMMITTEE ACT NOT ADOPTED QM - No QM QM + ACT ADOPTED COM may adopt unless: Multilateral trade safeguard On sensitive issues, decision must reflect predominant view NON-LEGISLATIVE ACTS (VIA COMITOLOGY) jos.dumortier@timelex.eu 31

32 Delegated acts Supplement and amend non essential elements Role Implementing acts Provide uniform conditions for implementing EU acts General application Scope General or individual application No (not formally) In individual legislation + common understanding EP/Council can veto or revoke delegation Expert committees Legal basis Scrutiny Yes Horizontal EP/Council Regulation Member states can block; EP/Council scrutiny jos.dumortier@timelex.eu 32

33 Draft Regulation: Delegated Acts Minimum technical requirements for e-id means (art. 8.3) Procedures for supervision of trust service providers (art. 13.2) Security requirements for trust service providers (art. 15.1) Conditions for independent bodies carrying out the audits (art. 16) Information to be mentioned on the trusted lists (art. 18) Security levels for cross-border public sector exchange of e-signatures (art. 20) Further specification of Annex 1 (qualified certificates for e-signatures) (art. 21) Criteria to be met by designated bodies for certification of signature creation devices (art. 23 Further specification of requirements for validation services (art. 25) Idem for electronic signature preservation services (art. 27) Security assurrance levels for electronic seals (art. 28) Further specification of Annex III (qualified certificates for electronic seals) (art. 29) Further specification of requirements for qualified electronic delivery services (art. 35) Further specification of Annex IV (qualifiied certificates for website authentication (art. 37) jos.dumortier@timelex.eu 33

34 Draft Regulation: Implementing Acts 2 Types definition of circumstances, formats and procedures examples: notification of e-id schemes, breach notification, yearly audit, initiation of qualified trust service, publication of list of certified creation devices, etc. establishment of reference numbers of standards examples: trustworthy products and systems, security levels for e-signatures, qualified certificates, security assurance levels of electronic seals, qualified electronic timestamps, etc. jos.dumortier@timelex.eu 34

35 Conclusions Delegated acts provide more autonomy for the Commission but are more often under pressure of the Parliament and the Council Choice of procedure can be determined by strategic motives 35

36 Acknowledgment: the graphics used in this presentation are extracted from David O Leary s presentation for the European Training Academy ( jos.dumortier@timelex.eu 36

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