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bxl-law | Jens Karsten

bxl-law | Jens Karsten. European Parliament conference “ Lisbon Comitology in Practice ” Delegated Acts and Implementing Acts in Food Law Legislative and executive powers of the European Commission explained on the example of food law 6 March 2013 Jens Karsten bxl-law.

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bxl-law | Jens Karsten

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  1. bxl-law | Jens Karsten European Parliament conference “Lisbon Comitology in Practice” Delegated Acts and Implementing Acts in Food Law Legislative and executive powers of the European Commission explained on the example of food law 6 March 2013 Jens Karsten bxl-law www.bxl-law.com

  2. bxl-law | Jens Karsten Why discussing ‘Lisbon Comitology’ now? Delegated acts Two years since the ‘Common Understanding on Delegated Acts’ of 3.3.2011 Implementing acts Two years since the coming into force of Comitology Regulation (EU) No. 182/2011 on 1.3.2011 www.bxl-law.com

  3. bxl-law | Jens Karsten Why discussing ‘Lisbon Comitology’ on the background of food law? Food information law with ‘Reg. 1169/2011 on food information to consumers’ provides a font of examples 12 delegated acts, e.g., for amending its 15 annexes, legibility of labelling, definition of nanomaterial, allergen labelling (in urgency procedure), etc. 12 implementing acts, e.g., on origin labelling, detailing energy labelling, detailing nutrition labelling, etc. www.bxl-law.com

  4. bxl-law | Jens Karsten Other examples Quality Reg. 1151/2012 Dir. 2012/35 amending Directive 2008/106 on the minimum level of training of seafarers Energy labelling Dir. 2010/30 Timber Reg. 995/2010 www.bxl-law.com

  5. bxl-law | Jens Karsten • Why delegated acts are needed? • … to supplement or amend a legislative act • 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. • General application • May amend, that is, formally modify a legislative act • May supplement: new non-essential rules which change the content of a legislative act www.bxl-law.com

  6. bxl-law | Jens Karsten • Why implementing acts are needed? • … to implement a legislative act • Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission (Art. 291(2) TFEU) • Individual acts or acts of general application • Cannot insert, delete or modify normative rule; intended only to give effect to the existing rules of the legislative instrument www.bxl-law.com

  7. bxl-law | Jens Karsten When to choose delegated acts? When to choose implementing acts? Political choice Who controls the Commission? European Parliament and/or Council or Member States (via Comitology)? Legal choice Case C-427/12, Commission v. European Parliament and Council: Commissions demands to be empowered to use delegated acts instead of implementing acts in Reg. on biocide products www.bxl-law.com

  8. bxl-law | Jens Karsten Who decides? Who controls? Constitutional basis “Legal acts adopted by legislative procedure shall constitute legislative acts.” (Art. 289(3) TFEU) Basic Act providing the basis for the Commission’s power to adopt delegated acts and implementing acts, adopted by European Parliament and Council Legislative rule making powers (Art. 290 TFEU) Delegated act, adopted by the Commission As a legislative measure, control is exercised by legislative organs of the EU: European Parliament and Council (no Comitology) Executive implementing powers (Art. 291 TFEU) Implementing act, adopted by the Commission As an executive measure, control is exercised by the executive organs of the EU: Member States through Comitology (Committees of national experts) www.bxl-law.com

  9. bxl-law | Jens Karsten Who decides? Who controls? Who is involved in the case of Reg. 1169/2011 (FIC)? The players European Commission (mainly DG SANCO, but also DG AGRI) Co-Legislators: European Parliament (mainly ENVI as competent committee) + Council Standing Committee on the Food Chain and Animal Health SCoFCAH) – Art. 48 FIC Examination Committee for the adoption of implementing acts Appeal Committee presumably is COREPER European Food Safety Authority (EFSA) – Art. 5 FIC General public and stakeholders – Art. 3(4) FIC “An open and transparent public consultation shall be conducted, including with stakeholders, directly or through representative bodies, during the preparation, evaluation and revision of food information law” (Art. 11(1)-(3) TEU) www.bxl-law.com

  10. bxl-law | Jens Karsten • Delegated acts • Legal basis: • Art. 290 TFEU (auto-sufficient, that is, in no need of completion by horizontal secondary legislation) • Legislative delegation (Basic act with vertical rules derived from Common Understanding) – Art. 51/52 FIC • Art. 87a of the Rules of Procedure of the European Parliament • Non-legal basis: • Communication on Delegated acts of the Commission (COM (2009) 673 of 9.12.2009) • Council Declaration on Delegated acts 14.12.2009 (Council doc. 17512/09) • European Parliament resolution of 5.5.2010 on the power of legislative delegation(OJ C 81E, 15.3.2011, p. 6) • Framework Agreement on relations between EP and Commission (OJ L 304, 20.11.2010, p. 47; paragraph 15 and Annex I) • Common Understanding on Delegated Acts of 3.3.2011 (Council doc. 8753/11) www.bxl-law.com

  11. bxl-law | Jens Karsten • Delegated acts • Common Understanding on Delegated acts of 3.3.2011 • Common Understanding sets out the practical arrangements and agreed clarifications and preferences for: • preparation of delegated acts • transmission of documents • computation of time limit • duration of delegations of power • exercise of powers of objection and revocation by EP and/or Council • urgency procedure • standard clauses to be inserted in legislative instruments www.bxl-law.com

  12. bxl-law | Jens Karsten • Procedure for the adoption of Delegated acts • Basic legislative act with which the Union legislator has granted legislative delegation • The Commission (possibly advised by an EU-Agency) presents a proposal for a Delegated act (But: to whom? Who is the addressee?) • Without being obliged to do so the Commission mayconsult the expert committee (recital 58 FIC: “It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level”) • The European Parliament and/or the Council exercise political control subsequently through a right to object within a delay of (mostly) 2x2 months against the coming into force of adopted delegated acts, but need to mobilise an absolute majority (378 MEPs in the House!) respectively a qualified majority • The European Parliament and/or the Council exercise political control through a right to revoke, but need to mobilise an absolute majority respectively a qualified majority • N.B.: Scrutiny (objection and revocation) is exercised ex post and subject to high thresholds www.bxl-law.com

  13. bxl-law | Jens Karsten • Implementing acts • Purpose: Efficacy in the application of Union law • Legal basis: • Art. 291 TFEU • Comitology Regulation 182/2011 • Art. 88(1)-(3) of the Rules of Procedure of the European Parliament • Rules of Procedure of the Appeal Committee www.bxl-law.com

  14. bxl-law | Jens Karsten • Procedure for the adoption of an Implementing act: Advisory Procedure and Examination Procedure • Choice of procedure after Art. 2 of Reg. 182/2011 • Choice is made by basic act (Art. 2(1)) • Choice is made applying the criteria of Art. 2(2) • If it is not Examination procedure, it is the Advisory procedure (Art. 2(3)) – default procedure www.bxl-law.com

  15. bxl-law | Jens Karsten • Control • Rights of the Legislator • According to Art. 10(3) and (4) Reg. 182/2011 the European Parliament and the Council have access to the following information, via Comitology: • Agendas • Voting results • Summary records • Lists of authorities and organisations represented in committees • Draft implementing acts submitted to committees, and final drafts after the vote • According to Art. 11 Reg. 182/2011 the Co-Legislators have each a right of scrutiny, that is, to indicate that a draft implementing measure exceeds implementing powers. • The rest of us (stakeholder involvement) • The general public is informed via the on-line Comitology register (Art. 10(5) Reg. 182/2011): http://ec.europa.eu/transparency/regcomitology www.bxl-law.com

  16. bxl-law | Jens Karsten • General conclusion • Three respectively two-year periods into ‘Lisbon Comitology’, players are still learning the game. • Conclusions for the European Parliament • Legislative delegations need to be carefully crafted, incl. procedural elements of basic acts / future revisions of Reg. 182/2011 • Scrutiny ex ante: Commitments to inform and to engage Parliament need to be honoured • Scrutiny ex post: Right of control needs to be exercised when need is felt www.bxl-law.com

  17. bxl-law | Jens Karsten Thank you! www.bxl-law.com

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