Better Regulation and the Future Challenges in Transport Non legislative Acts - Points for Reflection and Discussion

Delegated and implementing acts as tools for better law-making Art. 26 of the Interinstitutional Agreement on Better Law-Making (IIA): „Delegated and implementing acts,used ……in justified cases, are an integral tool for Better Law-Making, contributing to simple, up-to- date legislation and its efficient, swift implementation.“ It is the competence of the legislator to decide to what extent to use delegated or implementing acts, within the limits of the Treaties“

Art. 290 TFEU Para 1: „A legislative act may delegate to the Commission the power to adopt non-legislative acts…..to supplement or amend non-essential elements of the legislative act“ Para 2: „The objectives, content, scope and duration of the delegation of power shall be explicitly defined in the legislative act.“

Limits of the Treaty when delegating power according to Art. 290 TFEU As delegaterd acts are the exemption to the rule of ordinary lawmaking by the legislator, strict compliance with limitations is necessary: Restriction to non-essential elements Narrow interpretation of the term „non-essential“, Objectives, content, scope and duration of the delegation of power have to be explicitly defined by the legislator.

Observance of the limits when proposing delegation of power according to Art. 290 TFEU Legislator acts upon proposal of the Commission, who has the right of initiative Therefore the Commission – when putting forward a proposal for delegation- has to make sure that all these conditions and limitations are respected

Observance of the limits when proposing delegation of power according to Art. 290 TFEU Important that the Commission confines itself to cases where there is a clear justification for the use of delegated acts. Sound reasons for using Art. 290 TFEU have to be given in the explanatory memoranda. Unlimited duration of delegation should be the exception rather than the rule. Proposals from the Commission for unlimited duration of delegation should be accompanied by specific explanation.

Preparation and adoption of delegated acts New Rules in the IIA on consultation of Member States‘ experts when preparing delegated acts Still, the drafting and final wording of a delegated act remain within the discretion of the Commission. High threshold for EP or Council to object to a delegated act adopted by the Commission. Delegated acts adopted by the Commission have always to be in line with the will of the legislator as expressed in the basic legislative act. Limits of the delegation may not be exceeded

Principle of Better Regulation and Delegated Acts In addition to the consultation process, non legislative acts should comply with the priciples of Better Regulation in general Language should be clear and understandable Adoption process should be transparent Timely impact assessment required if considerable impacts are to be expected

Limitations for the adoption of other non-legislative acts Example Art. 108 para. 4 TFEU (Commission regulations in the field of state aid) Limitations resulting from other legislative acts adopted by ordinary legislative procedure. The explicit will of the legislator cannot be „overruled“ by Commission law-making. If there is a contradiction between non legislative acts and acts adopted by ordinary legislative procedure the latter should prevail