1. Delegated and Implementing Acts
Treaty of Lisbon
Delegated and
Implementing Acts
Kathryn Tierney, DG ENV
29 April 2014

2. An implementing act A delegated act
Ordinary legislative procedure
(co decision – Art 289, TFEU)
A legislative or “basic”act is established
Special legislative procedure
(Council with participation of EP or
EP with participation of Council – Art 289, TFEU)
Subsequent decisions are needed
Legislative to post-legislative
Non-essential = as opposed to essential elements which we expect to be in the basic act.
Supplement/amend vs implement – not always easy to distinguish.
What vs How?
Adding new obligations on MS vs purely implementing
EP/council confers powers on the Commission to implement what's in the basic act (called IA), but they also want to control what the Commission is doing, so they set out a series of procedures that the Commission has to follow when exercising the powers conferred on it.
ANNEX I
CRITERIA FOR IDENTIFYING WATERS REFERRED TO IN ARTICLE 3 (1)
ANNEX II
CODE(S) OF GOOD AGRICULTURAL PRACTICE
ANNEX III
MEASURES TO BE INCLUDED IN ACTION PROGRAMMES AS REFERRED TO IN ARTICLE 5 (4) (a)
ANNEX IV
REFERENCE METHODS OF MEASUREMENT
ANNEX V
INFORMATION TO BE CONTAINED IN REPORTS TO IN ARTICLE 10
An implementing act
To IMPLEMENT the legislative act, where uniform
conditions are needed
(Art 291, TFEU)
A delegated act
To SUPPLEMENT or AMEND
non-essential elements of the legislative act
(Art 290, TFEU)

3. From Treaty to Implementation
‘Old’ 
‘New’
Post-legislative is what's beneath the basic "legislative" act – where power is conferred on the Commission by the co-legislators (EP/Council) in the basic act. 2 types of post-legislative acts: DA and IA.
For IA, the main common element in the 2 procedures is that the Commission consults a MS committee which votes on our draft measure…………….. a way for the MS to control what the Commission is doing. Reg 182/2011 lays down the rules and general principles concerning mechanisms for control by MS of the Commission's exercise of implementing powers.– this is only for implementing acts, and has only 2 procedures – advisory and implementing.
Prior to 2011, there were 5 different procedures and one of these still remains in force -- the regulatory procedure with scrutiny . It's used for "measures of general scope designed to amend non-essential elements of a basic instrument" - Almost exactly the same as what today is called delegated act. But until each basic act has been revised to refer to delegated acts – what we call the alignment process. – we have to continue using RPS (or PRAC in its French acronym). And it means that the old Comitology Decision dating from 1999 and revised in 2006 has been repealed EXCEPT FOR Art 5a of Council Decision 1999/468

4. Birds and Habitats Directives
 Article 15 of Birds Directive 2009/147/EC: Amendment of Annexes I and V.
Supplementing
Amending
 Articles 4.1 and 4.2 of Habitats Directive 92/43/EC: Standard data form and Union lists of sites selected.
Implementing
There's also a reference to the committee in Annex III (If a Member State allows a different amount (of manure applied to land) under point (b) of the second subparagraph, it shall inform the Commission, which shall examine the justification in accordance with the regulatory procedure referred to in Article 9(2).
Main points;
IN future, adaptation of annexes will be via a delegated act, and delegated acts are developed by the Commission, with the help of expert groups rather than the comitology committee.
So the Nitrates Committee will continue to meet/vote where Art 7 and Annex III are concerned, but an expert group will be set up to prepare delegated acts for the adaptation of annexes.
What difference does this make? One of the main differences between DA and IA is that the EP and Council are on the same footing. EP experts can for instance request to attend expert groups whereas they're excluded from comitology committees.
And when it comes to amending or supplementing the basic act which is negotiated by EP and Council, the EP want to have an equal say in how the basic act is amended or added to.
 Article 19, Habitats Directive - amendments to Annexes I, II, III, V and VI to be adopted by the Council acting by qualified majority on a proposal from the Commission, and for Annex IV to be adopted by the Council acting unanimously on a proposal from the Commission.

5. Control of delegated acts
Commission
Adoption
of the delegated act
Notification
of the delegated act
Parliament
The delegated act cannot enter into force. The Commission may prepare and adopt a new one.
Council
RIGHT TO OBJECT
Time-limit
(generally 2 months with possible
extension for the same period)
If neither EP nor Council has objected or if they have both informed Commission that they don’t want to raise objections.
Main points:
In the past, Commission couldn't adopt until after EP and Council had time to object. Now COM adopts and then EP/Council can object. Can only enter into force if no objections.
Council and EP on equal footing.
Note that EP/Council can at any time revoke the powers delegated to the Commission at any time after entry into force of the basic act, though acts already adopted remain valid.
Standard article goes into the basic act at the time of adoption, concerning the duration of powers, the power of EP/Council to revoke the powers, and the objection period
"A delegated act adopted pursuant to Article XX and Article YY shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of X months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by X months at the initiative of the European Parliament or of the Council"
If EP or Council expresses objections.
Publication and
entry into force
of the delegated act

6. Alignment to Delegated Acts
Basic acts
using Regulatory Procedure with Scrutiny (RPS)
before Lisbon
Commission committed to review the provisions attached to RPS in each basic act, in order to adapt them to the new Treaty.
Overall objective: by the end of the current EP term (June 2014), all RPS provisions removed from all legislative acts.
Commission has adopted 3 "omnibus" Proposals.
For DG ENV: 28 acts, including Birds Direcctive, in 1st omnibus Proposal for alignment (COM(2013)451). EP/Council negotiations ongoing. Key issue = consultation of experts.
Note:
When this alignment Proposal is adopted by EP/Council, then remember that your individual basic act still won't refer to delegated act, but by means of the alignment, all references to RPS will be taken to mean DA.

7. Transitional period to 2014
2010
2011
2014 ?
RPS still in use until basic acts
are aligned
Delegated acts used once basic acts have been aligned to
new provisions
For implementing acts, as of , regulatory,
management, advisory and safeguard procedures
replaced with advisory and examination procedures.
via new Regulation 182/2011.

8. Comitology Committees vs Expert Groups Commission Expert group
Set up in the basic act, e.g. provision that "The Commission shall be assisted by a committee".
Governed by Regulation 182/2011 and by Standard and individual Rules of Procedure (obligatory).
Formal "voting" committee.
Attended by MS plus third parties and experts on a case-by-case basis, chaired by COM.
EP is excluded from attending.
Agenda addresses draft implementing acts and "other issues" related to implementing powers (for information or simple exchange of views).
EP and Council informed of outcome of meeting via (external) voting sheet and summary record, uploaded in comitology register.
Set up by Commission.
Governed by "Framework for Commission Expert Groups: Horizontal Rules and public register" C(2010)7649.
Informal consultation group – providing advice and expertise to COM – not binding.
Attended by experts in personal capacity or organisations' nominated representatives, or MS national authorities, chaired by COM or elected from the group, with COM agreement.
EP may request to attend.
Agenda addresses preparation of legislative proposals and policy initiatives, preparation of delegated acts, and implementation of existing EU legislation, programmes
COM ensures that information on the groups' activities are made public in the expert group register or via a link in the Register to a dedicated website.