Daniel Gueguen

We all received an early Christmas present this month as it was revealed that the Commission, European Parliament (EP) and Council have succeeded in negotiating the Inter-institutional Agreement (IIA) on Better Law-making.

First proposed by the Commission in May 2015, the objective is to enhance all stages of EU decision-making – drafting, adoption, implementation and ex post evaluation. The agreement will affect many aspects of the decision-making process – multi-annual planning, impact assessment, trilogues, simplification, to name a few.

However, the most significant changes concern EU secondary legislation. Since the Lisbon Treaty, the framework of delegated and implementing acts has caused many problems due to opacity, lack of stakeholder participation and legal uncertainty. One of the aims of the IIA was to address these flaws in the system.

Overall, there are 5 dimensions to the final compromise on delegated and implementing acts.

 

  1. Upstream consultation on delegated acts

The EP and Council will have complete equality in terms of access to Expert Groups (ad hoc groups chaired by the Commission where draft delegated acts are often discussed). This means receiving all documents – agendas, draft delegated acts – at the same time as Member State officials who sit on these groups, and systematic access to any Expert Group meetings devoted to discussing delegated acts.

In the revised Common Understanding on Delegated Acts, the biggest change from the initial draft is the replacement of “will” with “shall”. The following obligations on the Commission have therefore become more binding:

  • Consulting Member States experts on draft delegated acts in a timely manner;
  • Providing Member States with the text of each draft delegated act;
  • Explaining how it has taken experts’ views into account;
  • Re-consulting Expert Groups when material changes are made to drafts following stakeholder input; and
  • Regularly publishing “indicative lists of planned delegated acts”.

Moreover, the EP and Council have to the right to send their officials to Expert Group meetings “where they consider this necessary” – there is no need for the Commission to invite them first – and to automatically receive all invitations to meetings.

Also important are the revised ‘standard clauses’, i.e. the way empowerments for delegated acts are phrased in a legislative text. From now on, within an EU legislative act, the summary recital and the articles containing the delegation will make explicit reference to the IIA on Better Law-making, the Commission’s obligation to consult Member States and the rights of the EP and Council in terms of access to Expert Group documents and meetings.

This is a big improvement on the current regime, with the Commission under clear duties to be more transparent with the legislator in how it prepares delegated acts. Indeed, the use of the more binding “shall” suggests that the Commission could potentially be taken to court if it does not respect the rules set down.

As always, key questions remain: how well will the principles be respected in practice? Does the EP have sufficient staff and expertise to make the most of its equal access? And will the rules be enough for the Council to drop its ‘no delegated acts’ policy during legislative negotiations?

 

  1. Register of delegated acts

This is arguably the most anticipated aspect of the agreement. The good news is that the Commission, EP and Council together commit themselves to set up a “joint functional register” where draft delegated acts will be made available to the public “in a well-structured and user-friendly way”, allowing them to trace a measure through all stages of its life cycle.

The bad news is that the planned date for having this register up and running is “before the end of 2017”. In other words, civil society might well have to wait two years before they see full transparency on delegated acts.

Many questions are still to be answered about the proposed register:

  • Is a two-year target reasonable, even considering the logistics of setting up the register?
  • What precise form will the register take and where will it be hosted? On a new website or an existing one?
  • If it is a “joint” register, involving all three Institutions, who will run it on a daily basis?
  • Will it be an effective and transparent monitoring tool in practice, with prompt uploading of all drafts? Or will it be patchy like the Comitology Register?

 

  1. Alignment

The process of converting pre-Lisbon legislation to the post-Lisbon framework will be jump-started. The text gives “high priority” to the need finally to phase out the Regulatory Procedure with Scrutiny (RPS), still applicable in some 200 EU legislative acts. The Commission commits itself to put forward fresh proposals “by the end of 2016” to complete the alignment.

Although not stated in the text, Guy Verhofstadt – the EP negotiator on the IIA – suggested back in November that a different approach will be used this time. Instead of ‘block omnibuses’ like the three proposed in 2013, the Commission will reportedly table ‘mini-omnibuses’ generally corresponding to each policy area. So we can imagine, for instance, the EP and Council receiving a mini-omnibus proposing to align all health and food safety files; a mini-omnibus on environment/climate files; and so on.

The end-2016 target for tabling the new omnibuses is quite vague, and we must also ask: will alignment actually be successful this time? As explained above, Member States’ consultation rights over delegated acts have been reinforced, and this was the main stumbling block of the previous omnibuses. So perhaps we may be optimistic this time around.

However, given the stated target, it seems certain that we will still have the pre-Lisbon system for another year – and maybe even beyond. The longer the delay goes on, the more confusion and uncertainty will persist for stakeholders and decision-makers. In particular, the on-going pre/post-Lisbon duality of procedures could create difficulties for controversial topics like endocrine disruptors, if alignment is not completed soon.

 

  1. Legal criteria for Articles 290 and 291 TFEU

The major casualty of the negotiations has been objective criteria for marking the precise boundary between delegated acts (Article 290 TFEU) and implementing acts (Article 291 TFEU).

The EP in particular was very keen on this, and the original draft IIA contained a list of criteria almost identical to those proposed in a 2014 EP own-initiative report on secondary legislation. But this list has been banished completely from the text, replaced by yet another vague commitment to hold negotiations on the non-binding criteria “without undue delay” as soon as the IIA is formally concluded.

This is the work of the Council, which has resolutely opposed such criteria from the beginning. Member States firmly believe the choice between a delegated act or implementing act in a legislative text is purely a matter of political discretion for the EU legislator. It is doubtful, therefore, whether the planned negotiations will produce anything of real value, given that the positions of the three Institutions are so divergent.

The deletion is certainly a blow for the EP which, led by MEP József Szájer, has been the main champion of non-binding criteria.

 

  1. Bundling

This is the controversial practice whereby the Commission groups multiple empowerments together in one delegated act.

A brand new paragraph permits bundling only where the Commission provides objective justifications or unless the legislative act forbids it. In addition, the EP and Council affirm their right to veto one part of a delegated act if they are unhappy with the Commission’s bundling.

 

Conclusion: a mixed bag for secondary legislation

As expected, the finalised chapter on secondary legislation contains some good and some bad. The proposed changes regarding consultation on draft delegated acts – and related changes to the standard clauses – are very promising, especially for the EP and Council, but all will depend on how it is implemented in practice. The restrictions on bundling are also welcome.

For the rest, however, the result is disappointing and a missed opportunity. The public will continue to have only sporadic access to draft delegated acts until the joint register is introduced sometime in the next two years. Uncertainty also persists on alignment, when it will happen, its precise form and how long it will take.

Regarding delineation criteria for Articles 290/291 TFEU, as things stand, political rather than legal factors will unfortunately continue to determine the choice between a delegated act and an implementing act. There is no guarantee that the Institutions will be able to find agreement in the months ahead and finally put an end to this constant source of friction in the legislative process.

Ultimately, we must wait to see how the IIA on Better Law-making is applied in the months and years ahead. We can hope that it will live up to its name and deliver more transparency, openness and effectiveness in EU decision-making, but it seems likely that the fight for a better system of secondary legislation will go on.
Daniel Guéguen and Steven Corcoran

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