Select Committee on European Union Twelfth Report


Article 27: Delegated regulations

1  European laws and European framework laws may delegate to the Commission the power to enact delegated regulations in order to supplement or amend certain non-essential elements of the law or framework law.

The objectives, content, scope and duration of the delegation shall be explicitly defined in the laws and framework laws. A delegation may not cover the essential elements of an area. These shall be reserved for the law or framework law.

2  The conditions of application to which the delegation is subject shall be explicitly determined in the law or framework law; they shall consist of one or more of the following possibilities:

¾  the European Parliament and the Council may decide to revoke the delegation;

¾  the delegated regulation may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the law or framework law;

¾  the provisions of the delegated regulation are to lapse after a period set by the law or framework law. They may be extended, on a proposal from the Commission, by decision of the European Parliament and of the Council.

For the purposes of the preceding paragraph, the European Parliament shall act by a majority of its members, and the Council by a qualified majority.

Explanatory note

"This paragraph takes on board Group IX's recommendations on delegated acts. The component parts of the definition are as follows:

¾  It is always the legislator (via the law or framework law) who decides on a case-by-case basis whether recourse is to be had to delegation.

¾  It is also the legislator who decides on a case-by-case basis on the scope of the delegation as well as on the objectives and content.

¾  It is imperative that the essential features of the issue in question be covered in the legislative act. They may in no circumstances be the subject of the delegated act

Control mechanisms are determined by the legislator on a case-by-case basis by reference to an exhaustive list laid down in Article 27 itself."

COMMENTARY

30.  As mentioned above Working Group IX proposed creating a new category of act, "delegated acts", whose purpose would be to supplement or amend certain non-essential elements of legislative acts. As the Praesidium explains, "the aim is to encourage the legislator to concentrate on the fundamental aspects, preventing European laws and European framework laws from being over­detailed. The legislator may decide to delegate the more technical aspects, while subjecting this delegation to stringent conditions enabling it, if necessary, to retrieve its power to legislate".[24]

31.   Article 27(1), however, raises the question as to what is "essential" and what "non-essential". We are sympathetic to the view that Community legislation can become overloaded with technical detail (matters which would not be dealt with as primary legislation in any national parliament) and may not be able to respond quickly and flexibly to technical and market development. There is a need to distinguish between core policy decisions and technical issues. In practice the legislator (the Council and the Parliament or, exceptionally, the Council acting alone) will decide in the particular case whether there should be any delegation under Article 27 and/or 28. What is "essential" (or "fundamental" or "important") is a subjective and imprecise concept. Similarly there will be differing views on what is "technical" in relation to any subject area. Under Article 27 the legislator is given a discretion, but is not under any obligation, to delegate. This is entirely sensible, both politically and in practical terms, but it shows the nonsense of the "legislative"/"non-legislative" split. If a technical/detailed rule is formulated by the Council and the Parliament and contained in the basic act it is part of a "legislative act", but if it is devised by the Commission and included in a delegated act it will be characterised "non-legislative".

32.  The basic instrument, a European law or European framework law, must specify the terms of the delegation and the "conditions of application", ie one or more of the means of exercising control over the Commission listed in Article 27(2). The decision of the legislator (the Council and the European Parliament) whether to "delegate" to (under Article 27) and/or to "confer implementing powers" on (Article 28) the Commission will have to be taken case by case. Whether the use of "delegated regulations" will improve the efficiency of Union law-making will have to be seen. Further, how the creation of the new category of measures, "delegated acts", will affect the balance of power as between the Commission and the Member States and, in co-decision cases, the European Parliament is unclear. Any assessment may need to await any reform of "comitology" procedures (see Article 28 below). In the meantime we welcome the overall objective of Article 27.

Article 28: Implementing acts

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

2  Where uniform conditions for the implementation of the Union's binding acts are needed, those acts may confer implementing powers on the Commission or in specific cases and in the cases provided for in Article [CFSP], on the Council.

3  Implementing acts of the Union may be subject to control mechanisms which shall be consonant with principles and rules laid down in advance by the European Parliament and the Council in accordance with the legislative procedure.

4  Implementing acts of the Union shall take the form of European implementing regulations or European implementing decisions.

Explanatory note

"The first sentence clearly sets out the principle that competence for the implementation of Union acts belongs to the Member States. The second sentence concerns the exception to this principle, namely implementation by the institutions of the Union where uniform implementing conditions are necessary. It essentially repeats and clarifies the third indent of Article 202 TEC.[25]

Article 28 maintains the status quo as regards the adoption of implementing acts: as a general rule they are adopted by the Commission and exceptionally by the Council. The specific case of the CFSP is dealt with by means of a reference to the Article concerned.

As regards the means of monitoring the implementing acts (committee procedure), the text proposed takes Article 202 as its starting point. The proposed decision-making procedure is codecision. It should be remembered that the present procedure is unanimity within the Council plus ordinary consultation of the European Parliament. Although Group IX discussed the decision­making procedure, it made no recommendations on the subject.

However, the Group pointed out that if the concept of the delegated act were to be adopted, the procedures for monitoring the implementing acts would need to be simplified and, in particular, the Council call-back procedure under the regulatory committee procedure abolished.

In that context and on such premises the Group recommended resolving the problem by introducing a new category of acts (to be found in various guises in the Constitutions of a number of Member States).

Distinction between delegated acts and implementing acts

Working Group IX recommended the introduction of a new category of delegated acts in response to the frequent criticism of the excessive detail in Community legislation and the inflexibility and slowness of procedures. Group IX's report states that "the excessive detail in Community legislation has often been criticised within the Convention. This excessive detail has been considered inappropriate, in particular in certain economic areas in which an ability to adapt to a changing environment is very important. The Community legislator is thus confronted with a dual requirement: that of producing legislation whose democratic legitimacy is beyond dispute, something which can only be guaranteed by legislative procedures, and that of responding rapidly and effectively to the challenges and demands of the real world and therefore retaining a degree of flexibility.

At present there is no mechanism which enables the legislator to delegate the technical aspects or details of legislation whilst retaining control over such delegation. As things stand, the legislator is obliged either to go into minute detail in the provisions it adopts, or to entrust to the Commission the more technical or detailed aspects of the legislation as if they were implementing measures, subject to the control of the Member States, in accordance with the provisions of Article 202 TEC."

To remedy this situation, the Group proposed "a new type of "delegated" act which, accompanied by strong control mechanisms, could encourage the legislator to look solely to the essential elements of an act and to delegate the more technical aspects to the executive, provided that it had the guarantee that it would be able to retrieve, in some way, its power to legislate."

Some thought that the problem could be resolved more simply by giving the legislator (the European Parliament and the Council) a right of call-back over implementing acts (Article 202 TEC). In its conclusions, the Working Group rejected that option for the following reasons:

¾  implementing acts fall in principle within the competence of the Member States and are only exceptionally adopted by the Commission (or in certain cases by the Council)

¾  for the same reason, implementing acts adopted by the Commission are subject to monitoring by committees made up of representatives of the Member States

¾  implementing acts are consequently not matters which concern the legislator.

In that context and on such premises the Group recommended resolving the problem by introducing a new category of acts (to be found in various guises in the Constitutions of a number of Member States)."

COMMENTARY

33.  In its introduction to this Title of the new Treaty, the Praesidium describes Article 28 as "a clarification of Article 202 TEC, which currently governs implementing powers exercised at Community level".[26] It is more than that. Article 28 deals with two things: the obligation on Member States to implement Union laws and, second, the conferring of implementing powers on the Commission or the Council to make (pace Article 27) delegated legislation.

34.  Article 28(1) is new and appears to impose an express duty on Member States to implement Union law. In effect it consolidates existing Community law under which Member States are, by virtue of the duty of cooperation and the principle of the supremacy of Community law, obliged to implement Community law. Where provisions of Community law are not directly applicable (eg an EC directive), Member States are required by the Treaty to adopt legislative measures where necessary to achieve compliance with the Treaty. Where measures are directly applicable (eg an EC regulation) they may have to remove or qualify any contradictory or inconsistent national measures.

35.  Under Article 202 TEC the Council can "confer" power on the Commission or "reserve" them to itself. The latter is, however, in practice exceptional. Article 28(2), as the Explanatory note says, reflects the status quo under Article 202 TEC. It also anticipates the need for a special provision to deal with implementation of CFSP.

36.  Article 28(3) raises two questions. The first relates to the meaning of "implementing acts of the Union". This appears to refer solely to implementing measures to be taken pursuant to Article 28(2) and presumably does not extend to measures taken by Member States pursuant to Article 28(1). The Commission can, and regularly does, bring proceedings against Member States where there is a failure to implement Community obligations. Giving the Commission greater powers here would be objectionable, as it might undermine/interfere with the discretion of a Member State to implement in the way it considers most appropriate, and would offend the principle of subsidiarity. In the last resort it is for the Court of Justice to determine whether a Member State has exceeded the bounds of its discretion.

37.  The second question concerns the reference in Article 28(3) to "control mechanisms". This would seem to be a reference to "comitology", the system of procedures involving committees, made up of representatives from Member States and chaired by the Commission, whereby the Member States can exercise some control over implementing powers delegated to the Commission by the Council. What is new is that the control mechanisms must be "consonant with principles and rules laid down in advance by the European Parliament and the Council in accordance with the legislative procedure". Comitology procedures are currently governed by Council decision (made by Council decision under Article 202 TEC, and supported by inter-institutional agreements between the Council and the Parliament). As the Convention Secretariat has pointed out, Working Group IX did not address the possibility of amending this legal basis. The Praesidium proposes that it be subject to the legislative (co-decision) procedure. We have for some time argued that the Parliament should have a greater role in comitology.[27] That will now extend to establishing the ground rules for comitology. We therefore welcome this.

38.  As the Praesidium's Explanatory note makes clear, the introduction of the new category of measure, "delegated acts", will have implications for "comitology" and the Praesidium envisages a weakening (at least from the standpoint of the Member States) of the regulatory committee procedure. We have under scrutiny a Commission proposal to amend the current arrangements.[28] This is described as a transitional measure but it would also involve a strengthening of the position of the Commission. The future of comitology under the new Treaty is something to which we will want to return.

39.  Article 28(4) refers to "European implementing regulations" and "European implementing decisions". This might suggest two further categories of legislative instrument. But it seems clear from Article 26 that "European implementing regulations" and "European implementing decisions" are merely types of "European regulations" and "European decisions" as defined in Article 24.

Article 29: [Common foreign and security policy]

Article 30: [Common defence policy]

Article 31: [Police and criminal justice policy]

COMMENTARY

40.  The instruments listed and defined in Article 24 (European laws, European framework laws, European decisions etc) are intended to apply in all areas of the Constitution, including those which currently fall under the Second (CFSP) and Third Pillars (Cooperation in police and criminal matters). But as the Praesidium notes, what are now Second and Third Pillar matters could, as recommended by Working Group IX, be subject to special rules (to be specified in Articles 29, 30 and 31) in the light of the conclusions of the other Working Groups (ie Group VII on External Action, VIII on Defence, and X on Freedom, Security and Justice) and discussions in the Convention. The text of Articles 29, 30 and 31 "will be presented with the relevant chapters of Part Two of the Constitution in order to facilitate overall comprehension".[29]

Article 32: Principles common to acts of the Union
1  Unless the Constitution contains a specific stipulation, the institutions shall decide, in compliance with the procedures applicable, on the type of act to be adopted in each case, in accordance with the principle of proportionality set out in Article 8.

2  European laws, European framework laws, European regulations and European decisions shall state the reasons on which they are based and shall refer to any proposals or opinions required by this Constitution.

Explanatory note

"It is helpful to refer to the proportionality principle in this context since it constitutes the criterion which determines the choice of instrument. The intention is to provide a transparent reply to the question of how a decision is taken on the intensity of action by the Union.

The second paragraph draws on the wording of the current Article 253 TEC.[30]"

COMMENTARY

41.  Article 32(1) merely sets out a particular application of the principle of proportionality (the general principle is defined in Article 8(4)).

42.  The requirement to state the reasons is currently contained in Article 253 TEC and relates to all "regulations, directives and decisions" adopted by the EP and the Council (ie by co-decision) and by the Council or the Commission. The obligation to give reasons, whether in relation to a legislative or non-legislative act and whether the act has general application or is restricted to a particular addressee or group, is an important safeguard against misuse or abuse of power. Adequacy of reasoning is a matter on which the Court of Justice frequently has to rule. In applying Article 253, the Court of Justice has consistently held that the reasoning required by Article 253 must show clearly and unequivocally the reasoning of the Community authority which adopted the contested measure so as to enable the persons concerned to ascertain the reasons for it and to enable the Court to exercise judicial review. This does not mean that the Community authority in question is necessarily required to go into every relevant point of fact and law.[31]

Article 33: Publication and entry into force
1  European laws and European framework laws adopted in accordance with the legislative procedure shall be signed by the President of the European Parliament and by the President of the Council. In other cases they shall be signed by the President of the Council. European Union laws and European Union framework laws shall be published in the Official Journal of the European Union and shall enter into force on the date specified in them or, in the absence of such a stated date, on the twentieth day following that of their publication.

2  European regulations of the Commission or of the Council and European decisions which do not specify those to whom they are addressed or which are addressed to all Member States shall be published in the Official Journal of the European Union and shall enter into force on the date specified in them or, in the absence of such a stated date, on the twentieth day following that of their publication.

3  Other decisions shall be notified to those to whom they are addressed and shall take effect upon such notification.

Explanatory note

"This Article corresponds to the text of the current Article 254 TEC, which has been revised in the light of the earlier draft articles. Although the preliminary draft Constitution makes no provision for such an article, it needs to be introduced since the conditions for entry into force of laws (promulgation and publication) are fundamental constitutional factors for legal security."

COMMENTARY

43.  Article 33 provides for the promulgation, publication and entry into force of acts. As the Explanatory note indicates such provisions are essential to ensure legal certainty.

44.  Article 254 TEC requires "regulations, directives and decisions adopted in accordance with the procedure referred to in Article 251" (ie by co-decision) to be published in the Official Journal of the Union, along with "regulations of the Council and of the Commission, as well as directives of those institutions which are addressed to all Member States". Other directives and decisions are only required to be notified to those to whom they are addressed, though they may be, and often are, published. Article 33 adapts the current Article 254 to the new legal instruments ("European laws", "European framework laws" etc).


24   Doc CONV 571/03, at p 3. Back

25   In accordance with the third indent of Article 202 TEC, the Council "shall […] confer on the Commission, in the acts which the Council adopts, powers for the implementation of the rules which the Council lays down. The Council may impose certain requirements in respect of the exercise of these powers. The Council may also reserve the right, in specific cases, to exercise directly implementing powers itself. The procedures referred to above must be consonant with principles and rules to be laid down in advance by the Council, acting unanimously on a proposal from the Commission and after obtaining the Opinion of the European Parliament". Back

26   Doc CONV 571/03, at p 4. Back

27   See our earlier Reports: Delegation of Powers to the Commission: Reforming Comitology, 3rd Report, 1998-99, HL Paper 23; and Review of Scrutiny of European Legislation, 1st Report, 2002-03, HL Paper 15. Back

28   Doc 15878/02: Proposed Council Decision amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission. Currently held under scrutiny in Sub-Committee E (Law and Institutions). Back

29   Doc CONV 571/03, at p 5. Back

30   Article 253 stipulates that "Regulations, directives and decisions adopted jointly by the European Parliament and the Council, and such acts adopted by the Council or the Commission, shall state the reasons on which they are based and shall refer to any proposals or opinions which were required to be obtained pursuant to this Treaty." Back

31   Case C-122/94 Commission v Council [1996] ECR I-881, at para 29. Back


 
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