Rule-Making Book II EU Administrative Procedures – The ReNEUAL Draft Model Rules 2014 Brussels, May th Herwig C.H. Hofmann University of Luxembourg Joana Mendes University of Amsterdam

Book II – Structure: Six Articles 1. Scope 2. Initiative 3. Preparation of the Draft Act and the Reasoned Report 4. Consultation and Participation 5. Expedited Procedures 6. Control Mechanisms and Adoption of the Act 2

Article II-1 Scope 1)These procedures apply to the establishment, amendment and repeal of non-legislative acts of general application, including:  acts adopted by the Commission or the Council under Articles 290 and 291 TFEU;  non-legislative acts of the EU institutions, bodies, offices and agencies adopted on the basis of Treaty provisions;  acts adopted by EU agencies, bodies and offices, including those in preparation of an act adopted by the Commission  other acts concretising policies or legislative options directly or indirectly affecting or intending to affect third parties. 2)These procedures do not apply to acts of the European Ombudsman, and of the Court of Justice of the European Union when acting in its judicial capacity. 3

Article II-2 Initiative An EU authority planning an act shall make public a) The draft title of the planned act. b) A short description of its objective. c) The name of the institution, agency, body, or office in charge of drafting the act. 4

II-3 Preparation of the Draft Act and Reasoned Report 1. The EU authority in charge of drafting the act:  Shall carefully and impartially examine the relevant facts and aspects of the draft act.  Shall write an accompanying reasoned report. 2. This reasoned report of the draft act shall include:  The reasons for the choice of the content of the act in view of defined alternatives.  The objectives of the act.  An assessment of the impact of the act, inter alia, on fundamental rights, on the society and the economy and on other values protected under EU law including the environment.  The potential legal basis for the adoption of the act. 3. The draft act and the reasoned report shall contain an explanation that enables effective administrative and judicial review. 4. If experts or interest groups were heard in the phase of drafting the act, the reasoned report shall name them and publish material submitted by them indicating the source of such materials. 5

II-4 Consultation and Participation 1. The EU authority in charge of drafting, amending or withdrawing the act, shall by appropriate means, give citizens, Member States and representative associations the opportunity to make known and publicly exchange their views in rulemaking procedures. 2. The draft act and the reasoned report shall be published on a central EU website for consultations and shall  be accompanied by an open invitation to any persons to electronically submit comments in any of the official languages of the Union;  contain information about the procedure followed for its adoption including the deadline for submissions which can be no shorter than twelve weeks after publication;  in an annex contain studies, data and other supporting material used for the drafting of the act; and  be made available in at least the working languages of the EU authority in charge of the drafting the act. 6

3) The EU authority in charge of drafting the act may also identify and address persons concerned who are likely affected by the draft act and invite them to comment. 4) Comments are made public. Natural persons have the right to request their identity to be concealed in duly justified cases. 5) After consultation, the EU authority in charge of the drafting the act shall  a) take into consideration the comments received;  b) create a reasoned report explaining the manner in which the comments were taken into account or disregarded;  c) in the draft of the final act include reference to the consultation procedure and to the accompanying reasoned report. 6) Where the comments lead to substantial revision of the initial draft act, the EU authority in charge of the drafting the act must consider whether a new phase of consultation under Article 4 paragraphs 1-5 is necessary. 7

II-5 Expedited Procedures 1) Under the expedited procedure, the EU authority in charge of the drafting the regulatory act may proceed to adopt and temporarily put into place an act without prior notification and consultation of the public. In that case, a) The EU authority in charge of the drafting the act shall make public that the act has been adopted by the expedited procedure and give reasons for this choice. b) Within a period of 4 weeks after the adoption of the act begin the notification and comment procedure under Article 4. The text of the act adopted temporarily will be the draft act to be consulted on. After consultation the EU authority in charge of the drafting the regulatory act will undertake the necessary amendments as resulting from the reasoned report under Article 4, paragraph 5 b. 2) An act adopted by means of the expedited procedure is valid for a maximum duration of 12 months after its adoption. 8

II-6 Control Mechanisms and Adoption 1) Where the Commission submits a draft act  a)under Article 290 TFEU, it sends it to the European Parliament and Council under the conditions defined in the legislative act that established a delegation.  b)under Article 291 TFEU, it sends it to the comitology committee defined in the legal act establishing the power to adopt an implementing act, under Regulation No182/2011. It equally informs the European Parliament and the Council submitting copies of all documents sent to the comitology committee. 2) Any changes to the draft delegated act required by the European Parliament or the Council or to the draft implementing act required by the comitology committee included in the draft act shall be specifically mentioned in the reasoned report that accompanies the final act. 9