EUDUG General Meeting
20 June 2019, Middle Temple
The Interinstitutional Register of Delegated Acts and the Comitology Register
Irina Tanasescu, Policy Officer, European Commission (Institutional Affairs)
Irina Tanasescu gave a lively but detailed introduction to delegated and implementing acts and the online registers that provide information about them. For further information about delegated and implementing acts, Ms Tanasescu recommended a recent article by Jens Blom-Hansen: ‘Studying power and influence in the European Union: Exploiting the complexity of post-Lisbon legislation with EUR-Lex’ (European Union Politics, Sage Journals pre-print, May 2019, p.11, https://doi.org/10.1177/1465116519851181).
Delegated acts
The type of legal instrument known as a ‘delegated act’ was introduced by the EU in 2009, as part of the reforms made by the Lisbon Treaty. Delegated acts (DAs) are governed by article 290 of the Treaty on the Functioning of the European Union (TFEU). They may be adopted by the European Commission to supplement or amend non-essential elements of a legislative act. The legislative act, or ‘basic act’, will contain provisions empowering the Commission to do this.
The Commission has to consult experts appointed by the member states regarding planned DAs, under the Common Understanding between the European Parliament, the Council and the Commission on Delegated Acts (annexed to the interinstitutional agreement on better law-making, OJ L 123, 12.5.2016, p.10). It usually obtains feedback from stakeholders and the public as well, via its Have Your Say page (https://ec.europa.eu/info/law/better-regulation/have-your-say_en). There are certain exceptional circumstances in which this public feedback procedure is not used, for example when the measure is urgent or when a consultation on the matter has taken place already. The exceptions are set out in part 56 of the Better Regulation Toolbox, para. 4.4 (https://ec.europa.eu/info/sites/info/files/file_import/better-regulation-toolbox-56_en_0.pdf).
After the Commission adopts a DA, the text is sent to the co-legislators – the European Parliament (EP) and the Council of the EU – for scrutiny. Under art. 290(2) TFEU, EP and Council have the power to object to a DA, or to revoke the delegation of power to the Commission. Usually the scrutiny period concludes with no objection and the DA is published in the Official Journal in due course (not straightaway).
The first DAs were adopted in 2010 and by 2014 the annual total was 130; 115 were adopted in 2018. The Commission directorates general that produce the most DAs are Agriculture, Internal Market/FISMA (Financial Stability, Financial Services and Capital Markets Union) and Environment.
A legislative act may require the Commission to report to the EP and Council on the exercise of the powers delegated to it under the act. These reports are published as COM documents. They are available on the DA register, on the record for the legislative act.
The Register of Delegated Acts
The Interinstitutional Register of Delegated Acts is on the Commission’s website at: https://webgate.ec.europa.eu/regdel/. ‘Interinstitutional’ refers to the fact that it is a joint effort by the European Commission, the European Parliament and the Council of the European Union. It was developed by the Commission, but all three institutions were on the steering committee and all contribute information to it and finance it.
The register went live in December 2017. It provides detailed information about DAs planned after December 2017 and basic information about earlier DAs. The working title is used initially and the register is updated if the title is changed. Each DA has a timeline showing its progress from the planning phase up to publication, and associated documents are available; these include the basic act under which the DA is being made, the latest version of the DA, feedback from public consultations, and meeting documents. DAs that are in progress have reference numbers prefixed with ‘C’, for example C (2019) 1841; these are allocated part-way through the procedure, not right at the start of the planning phase.
DAs can be searched by keyword and/or filtered by many different criteria, including phase of lifecycle (adoption, scrutiny, publication), status, policy area and type of act.
The DA register has a ‘Legislative Acts’ tab which lists the basic acts empowering the Commission to make delegated acts. These basic acts can also be searched and/or filtered.
There is a separate register of expert groups, which is linked to the Register of Delegated Acts.
Implementing acts
Implementing acts (IAs) are provided for in article 291 TFEU. They are used to achieve uniform implementation of legislative acts. Implementing powers are conferred on the Commission by the basic legislative act. An implementing act gives effect to existing provisions of the basic act; it cannot add anything. The word ‘implementing’ always appears in the title of the act.
In making IAs, the Commission usually consults committees of representatives from all the member states. This committee consultation procedure is known as ‘comitology’ and it is governed by the ‘Comitology Regulation’ (Regulation 182/2011). Two forms of comitology procedure are provided for in the Regulation: the examination procedure and the advisory procedure. International organisations and non-EU states (‘third countries’) may observe committee proceedings. Experts may be brought in to advise on specific matters, but they cannot vote. The European Parliament and the Council of the EU have the right of scrutiny for each draft IA. Although the Comitology Regulation sets out general rules and procedures, each committee adopts its own specific rules as well. The committee’s rules follow the template set out in the ‘Standard Rules of Procedure for Committees’ (OJ C 2011/C 206/02, 12 July 2011).
Comitology is not compulsory for all IAs: for example, certain less-important funding grants are made by IAs without committee consultation.
Thousands of IAs are adopted, about 1,600 per year. Every authorisation by DG Health regarding food and feed additives, medicines, cosmetics and so on needs an IA; the result is that almost half the total number of IAs emanate from DG Health.
The Comitology Register
The Comitology Register documents the existence of all the comitology committees and provides details of their work on implementing acts (IAs). The current register covers committee work from 1 April 2008 onwards and there is a link to the ‘Old comitology register’ for information about comitology before this date.
The documents in the Comitology Register are grouped into dossiers, each of which relates to a meeting or a written consultation. Each dossier has a reference number with the prefix ‘CMTG’. Individual documents have their own prefixes, for example ‘S’ for a summary record of a meeting, ‘D’ for a draft implementing act, ‘A’ for a meeting agenda, ‘V’ for voting records. The status of each implementing act is given and the stages in its procedural history can be displayed. If the IA’s status is ‘Adoption’, click on this link to go to the final version in the Official Journal, on EUR-Lex.
The Commission’s legal obligation under the Comitology Regulation is to make known the existence of every document, not to provide the full document; however, many full documents are available in the register. Draft IAs are usually made public after the committee has voted on it, but some are never released on the register. If the full text is not in the register, there will be a ‘Request’ button at the bottom of the dossier so that a copy can be requested using the Access to Documents form.
Future developments
A new, more user-friendly, register is in the pipeline, covering both delegated and implementing acts. It is hoped that it might be ready in time for the new Commission, which takes office in November 2019, but it could take until mid-2020.
The role of the European Parliament and Provision of EU Information in the UK
Daniel Ractliffe, Acting Head, European Parliament Liaison Office in the UK
Mr Ractliffe gave an interesting talk covering the recent European Parliament elections and the forthcoming new European Parliament and Commission, the EP’s role in Brexit, and the future of EU information provision in the UK.
The new European Parliament and Commission
The European Parliament is the only directly-elected EU institution. It is elected every five years, using some form or proportional representation in each member state. Britain uses a closed list system, which is more proportional than first-past-the-post, but still puts small parties at a disadvantage; Northern Ireland uses the single transferable vote system.
In the 2019 EP elections, turnout in the UK was 36.9%; across the EU as a whole, it was 51%. The new MEPs will take their seats at the beginning of July 2019. The EP will keep the same number of MEPs (751) until the UK leaves, when the number will drop by 46, to 705. The 27 UK seats will be redistributed to some of the other member states.
The EP is co-legislator, along with the Council of the European Union, for about 90% of legislative proposals presented by the Commission. It elects the president of the European Commission and interviews (and can reject) prospective commissioners. It will elect the new Commission President in July and is due to approve the new Commission later in the year. The EP has the power to sack the whole Commission; this almost happened in 1999, when the Santer Commission resigned rather than be sacked.
The EP and Brexit
The EP is not a negotiating party regarding UK withdrawal from the EU, but it does provide input. It has to approve the withdrawal agreement (by a simple majority of those present) and has the power to veto it. One of the EP’s key positions regarding Brexit is that there must be no hard border in Ireland. Any future EU-UK trade agreement will need the consent of the EP.
The Brexit Steering Group (BSG) in the EP is led by Guy Verhofstadt. In April 2017, the EP passed a resolution setting out its view on the UK’s withdrawal, including its ‘red lines’. Later in 2017 it adopted further resolutions on the stage of the Brexit negotiations and the BSG has issued comments and statements. The Europarl website has a Brexit section with full details of the EP’s Brexit-related work: http://www.europarl.europa.eu/unitedkingdom/en/brexitpublic/brexit.html.
It is not yet clear how the UK Parliament might be involved with or consulted by the EU institutions after Brexit. There will still be an EP office in London, but the Commission representation in London will be replaced by an ambassador from the EU’s External Action Service.
The future of EU information provision in the UK
The Europe Direct information centres in the UK will close after Brexit. The European Parliament office in London may take over some of their information work, but this is not definite.
It will be harder even for the UK authorities to find out what is happening in the EU post-Brexit: Norway finds it quite difficult, and they are a member of the European Economic Area.
EU Databases User Group (EUDUG) 