EU law, delegation, implementation, legislation, comitology, agencies
Résumé :
The aim of this article and the ensuing Special Issue is to assess, après fifteen years, the effects on the EU legal and political system of the overhaul of executive delegated powers inaugurated by the Lisbon Treaty. It identifies core parameters – i.e. (institutional) balance of powers, (democratic) legitimacy, control and accountability, effectiveness of EU policy implementation – considered by the contributions to this Special Issue to map and examine, both constitutionally and normatively, the EU system of delegated powers in law and practice. It also puts forward seven overarching reflections revealing some of the core issues and challenges posed by the current stage of development of the post-Lisbon EU system of delegated powers.
1 Delegation of executive rulemaking powers is understood here in a broad sense, encompassing all kinds of powers entrusted to an executive authority (delegated powers to amend or supplement a legislative act, as well as powers to implement a legislative act or a subsequent implementing act both via acts of general application and individual acts).
2 The two delegation scenarios have some overlap, but they differ in terms of control and oversight procedures. Arguably the reason for this differentiation on the level of delegated rulemaking powers was to enshrine a particular balance of powers corresponding to the different nature, types and legal-political implications of the executive rulemaking powers delegated.
3 For an ex ante assessment see e.g.: Final Report of Working Group IX on Simplification (CONV 424/02, 29 November 2002) pp 2–13;
P Stancanelli, “Le Système Décisionnel de l’Union” in G Amato, H Bribosa and B de Witte (eds), Genèse et Destinée de la Constitution Européenne (Bruylant 2007) pp 485–543.
4 The term “executive rulemaking” is used in this context as referring specifically to the process of creating acts of general application that concretise policy or legislative options. These can be of various degrees of bindingness in terms of substance or procedure. See further e.g. D Curtin, HCH Hofmann, J Mendes, “Constitutionalising EU Executive Rule-Making Procedures” (2013) 19 European Law Journal pp 1–21.
5 The pre-Lisbon “comitology” legal design was given expression initially in Council Decision 87/373/EEC of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission, [1987] OJ L197/33.
The initial “Comitology” Decision was later replaced by Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission [1999] OJ L184/23 (“Comitology” Decision 1999), later amended by Council Decision 2006/512/EC of 17 July 2006 amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission [2006] OJ L200/11.
6 See on executive federalism within the EU, R Schütze, “From Rome to Lisbon: ‘Executive Federalism’ in the (New) European Union” (2010) 47 Common Market Law Review pp 1385–1427.
7 This is the so-called European code for “separation of powers” and its inherent “system of checks and balances.” For a discussion on the general effect of such changes on the institutional balance pre-Lisbon, see, e.g. K Lenaerts and A Verhoeven, “Institutional Balance as a Guarantee for Democracy in EU Governance” in C Joerges and R Dehousse (eds), Good Governance in Europe’s Integrated Market (Oxford University Press 2002) pp 35 et sqq.
8 See on the concept of “indirect administration,” J Schwarze, European Administrative Law (1st edn, Sweet & Maxwell, Revised 2006) pp 25–37.
9 Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers [2011] OJ L 55/13.
10 The adoption of the “Comitology” Regulation gives expression to a fine-tuned balance of powers, arguably also reflecting a more enhanced say of the EP as regards the way in which Commission’s implementing powers are controlled.
11 Art. 11 of “Comitology” Regulation 182/2011.
12 See also contribution by G Bellenghi and E Vos, in this Special Issue.
13 See The European Convention, Draft of Articles 24 to 33 of the Constitutional Treaty, Brussels, 26 February 2003 (CONV 571/03) pp 3–4 and 15–17;
K Lenaerts, “Comment Simplifier les Instruments d’Action de l’Union?”, La Convention Européenne, Working Group IX, Working Document 07 (22 Octobre 2002) pp 2–4;
Stancanelli, “Comment Simplifier les Instruments d’Action de l’Union?”, note 3, pp 485–511.
14 Case C-46/86 Albert Romkes v Officier van Justitie for the District of Zwolle – Netherlands [1987] ECLI:EU:C:1987:287, para 17;
Case C-240/90 Federal Republic Germany v Commission of the European Communities [1992] ECLI:EU:C:1992:408;
Case C-156-93 European Parliament v Commission of the European Communities (supported by the Council of the European Union) [1995] ECLI:EU:C:1995:238;
Case 41/69 ACF Chemiefarma NV v Commission of the European Communities [1970] ECLI:EU:C:1970:71;
Case 22/88 Vreugdenhil and others v Minister van Landbouw en Visserij [1970] ECLI:EU:C:1970:7;
Case 230/78 SpA Eridania-Zuccherifici nazionali and SpA Società Italiana per l’Industria degli Zuccheri v Minister of Agriculture and Forestry, Minister for Industry, Trade and Craft Trades, and SpA Zuccherifici Meridionali [1979] ECLI:EU:C:1979:216;
Case C-314/99, Kingdom of the Netherlands v Commission of the European Communities (supported by Kingdom of Sweden) [2002] ECLI:EU:C:2002:378;
Case C-443/05P, Common Market Fertilizers SA v Commission of the European Communities [2007] ECLI:EU:C:2007:511.
15 The former were acts decided under the decision-making procedures provided for in the Treaty provisions. The latter were implementing acts adopted on the basis of an act of secondary legislation covering a wide variety of categories, such as rule interpretation, rule application, rule setting/evaluation, approval of funds, the extension/new specification of funding programmes and information management. They ranged from single-case decisions to the adoption of acts “supplementing” or “amending non-essential elements” of a legislative act.
16 For a review of the discussions on the Intergovernmental Conference leading to the Treaty of Maastricht, see J Cloos et al, Le Traité de Maastricht: Genèse, Analyse, Commentaires (2nd edn, Bruylant 1994) pp 369–373;
for a discussion of the situation leading up to the Treaty of Lisbon, see HCH Hofmann, “Legislation, Delegation and Implementation under the Treaty of Lisbon: Typology Meets Reality” (2009) 15 European Law Journal pp 482–505.
17 This was opposed to a more regulatory model of the initial “Monet method” of a Commission being a quasi-agency adopting technical rules under the supervision of the Member States in the Council. The dispute of strengthening Parliamentary rights arises from the “Comitology” Decisions of 1987, 1999 and 2006, and the various inter-institutional agreements on EP information rights in “comitology” matters.
18 Stancanelli, “Comitology”, note 3;
K Lenaerts and M Desomer, “Towards a Hierarchy of Legal Acts in the European Union? Simplification of Legal Instruments and Procedures” (2005) 11 European Law Journal pp 744–765, at p 754.
19 See among others, HCH Hofmann, “Decision-making in EU Administrative Law – The Problem of Composite Procedures” (2009) 61 Administrative Law Review pp 199–221;
D Curtin, Executive Power of the European Union. Law, Practices and the Living Constitution (Oxford University Press 2009) pp 65–66;
F Brito Bastos “Derivative Illegality in European Composite Administrative Procedures” (2018) 55 Common Market Law Review pp 101–134;
Z. Xhaferri, “Delegated Acts, Implementing Acts and Institutional Balance Implications Post-Lisbon” (2013) 20 Maastricht Journal of European and Comparative Law pp 567–570.
20 See on hybrid executive governance, F Coman-Kund, “Separation of Powers within the EU Multilayered System and the Challenges of Hybrid Executive Governance” in C Eckes, P Leino-Sandberg and AW Ghavanini (eds), The Dynamics of Separation of Powers in the European Union (Hart Publishing 2024) pp 269–288.
21 See E Vos, “EU Agencies on the Move: Challenges Ahead” (2018) 1 SIEPS pp 6 and 8.
22 In reality, one of the key tools to quasi-binding effects of EU agency and body input into the adoption by the Commission of delegated and implementing acts is the “comply-or-explain” approach, which has become a standard tool in EU legislation. Where such obligations exist, under the relevant case law, the Commission may diverge from the agency proposal only if it provides specific reasons for its findings and it must show why these change its approach by comparison to the EU agency’s opinion and the considerations contained in the agency’s statement of reasons; moreover, the Commission’s “::: statement of reasons must be of a scientific level at least commensurate with that of the opinion in question” given by the agency (Case T-13/99 Pfizer Animal Health v Council ECLI:EU:T:2002:209 [2002], para 199).
See e.g. the powers of the European Supervisory Authorities (ESAs) in the field of banking and finance supervision (the European Banking Authority [EBA], the European Securities and Market Authority [ESMA], and the European Insurance and Occupational Pensions Authority [EIOPA] under Arts. 10 and 15 of Regulation 1093/2010 [2010] OJ L 331/12;
Regulation 1094/2010 [2010] OJ L 331/48 and Regulation 1094/2010 [2010] OJ L 331/84). Similar powers exist in other policy areas, e.g. under Art. 75(2)(b) of Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency [2018] OJ L 212/1.
23 Art 16 of the three ESAs Founding Regulations enshrines quite a strict and demanding “comply or explain” mechanism regarding the guidelines and recommendations addressed by ESAs to national competent authorities of the Member States.
24 Case C-270/12 UK v Council and Parliament (Short selling) [2014] ECLI:EU:C:2014:18.
25 The legal bases in the Treaties used for the creation of EU agencies are either policy-specific or general Treaty provisions. Policy-specific powers exist allowing for the creation of structural or procedural “measures,” for example, in the area of research (Arts 182 (5) and 187 TFEU), in the environmental field (Art 192 TFEU), in the air and maritime transport (Art 100 (2) TFEU), or regarding border checks, asylum and immigration in the context of the so-called “Area of Freedom, Security and Justice” (Arts 74 and 77 (2) (d) TFEU), allowing for the adoption of “any measure for the gradual establishment of an integrated management system for external borders.” See for a more detailed analysis of the legal basis of EU agencies, F Coman-Kund, European Union Agencies as Global Actors. A Legal Study of the European Aviation Safety Agency, Frontex and Europol (Routledge 2018) pp 22–24.
26 For example, the European Food Safety Authority (EFSA), the European Network and Information Security Agency (ENISA), the Body of European Regulators for Electronic Communications (BEREC Office or the Agency for Support for BEREC), the European Supervisory Authorities (ESAs), the Single Resolution Board (SRB).
27 Art 114 TFEU was explicitly confirmed by the Court of Justice as a legal basis for establishing EU agencies in Case C-66/04 UK v Parliament and Council (Smoke flavourings) [2005] ECLI:EU:C:2005:743
Case C-217/04 UK v Parliament and Council (ENISA) [2006] ECLI:EU:C:2006:279,
discussed in greater detail by K Bradley, “Comitology and the Courts: Tales of the Unexpected” in HCH Hofmann and A Türk (eds), EU Administrative Governance (Edward Elgar 2006) pp 417–447;
HCH Hofmann, “Which Limits? Control of Powers in an Integrated Legal System” in C Barnard and O Odudu (eds), The Outer Limits of EU Law (Cambridge University Press 2008) pp 45–62;
V Randazzo, “Case C-217/04, United Kingdom v. European Parliament and Council of the European Union” (2007) 44 Common Market Law Review pp 155–169.
28 Smoke flavourings, “Case C-217/04, United Kingdom v. European Parliament and Council of the European Union”, note 27, paras 44–45
ENISA “Case C-217/04, United Kingdom v. European Parliament and Council of the European Union”, note 27, para 43. In these cases, the CJEU acknowledged that it was possible to establish an EU body “responsible for contributing to the implementation of a process of harmonisation” of Member States administrative powers “in situations where, in order to facilitate the uniform implementation and application of acts based on that provision, the adoption of non-binding supporting and framework measures seems appropriate.”
29 See Coman-Kund, “Case C-217/04, United Kingdom v. European Parliament and Council of the European Union”, note 25, pp 36–37,
Merijn Chamon, “The Empowerment of Agencies under the Meroni Doctrine and Art 114 TFEU: Comment on United Kingdom v Parliament and Council (Short-selling) and the Proposed Single Resolution Mechanism” (2014) 39 European Law Review pp 380–403, at p 393.
30 See Vos “Case C-217/04, United Kingdom v. European Parliament and Council of the European Union”, note 21, pp 10 and 45–46.
31 See Coman-Kund, “Case C-217/04, United Kingdom v. European Parliament and Council of the European Union”, note 20.
32 See contributions by L Hancher and J Rumpf, and by T Jevnaker, KK Taranger, PO Eikeland and MB Lindberg, in this Special Issue.
33 Regulation (EU) 2019/942 of the European Parliament and of the Council of 5 June 2019 establishing a European Union Agency for the Cooperation of Energy Regulators [2019] OJ L 158/22.
34 Contributions by L Hancher and J Rumpf, and by T Jevnaker, KK Taranger, PO Eikeland and MB Lindberg, in this Special Issue.
35 Regulation (EU) 2018/1971 of the European Parliament and of the Council of 11 December 2018 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Agency for Support for BEREC (BEREC Office), amending Regulation (EU) 2015/2120 and repealing Regulation (EC) No 1211/2009 [2018] OJ L 321/ 1, as amended subsequently. BEREC may issue guidelines on elements of European Electricity and grid regulation. On the face of them, these have a non-binding nature, but, just as Commission’s guidance documents might have indirect binding effects, also BEREC guidelines may be indirectly binding. One element of “bindingness” comes from a procedural approach under which Member States are obliged to comply or explain their non-compliance to BEREC.
36 The EDPB is another EU body having similar rulemaking power in the context of its coordinating role for cooperation between actors involved in the enforcement of privacy and data protection, being established by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC [2016] OJ L 119/1 (General Data Protection Regulation or GDPR). Under the GDPR, National Independent Data Protection Authorities (NDPAs) may request the EDPB’s opinion on any matter “of general application or producing effects in more than one Member State” (Art 64 (2) GDPR). Initially, the EDPB’s opinions are non-binding; however, the NDPAs are aware of the fact that the EDPB may issue binding decisions in case of non-compliance according to Art 65 (1) GDPR.
37 For example, Arts 29 (1) and 32 of the ESAs founding regulations establish “common methodologies” for various supervisory duties such as assessing the effect of economic scenarios on an institution’s financial position and for “assessing the effect of particular products or distribution-processes.”
38 Network codes are adopted in a variation of composite procedures with input by the regulatory network ENTSO (European Network of Transmission System Operators for Electricity), ACER, the Member States and the Commission. Art 37 of Regulation (EU) 2019/943 requires that network codes adopted on the basis of Art 6 (11) of Regulation (EC) No 714/2009 must be respected (Regulation (EU) 2019/943 of the European Parliament and Council of 5 June 2019 on the internal market for electricity [2019] OJ L 158/54, as amended subsequently). ENTSO network codes include rules on transmission reserve capacity for operational network security, network connection rules, third-party access rules, data exchange and settlement rules, interoperability rules, operational procedures in an emergency, capacity-allocation and congestion-management rules, rules for trading related to technical and operational provision of network access services and system balancing, transparency rules, balancing rules including network-related reserve power rules, rules regarding harmonised transmission tariff structures including locational signals and inter-transmission system operator compensation rules, and energy efficiency regarding electricity networks (see Art 8 (6) Regulation (EC) No 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No 1228/2003 [2009] OJ L 211/15, currently repealed and replaced by Art 59 (1) (a), (b), (c) of Regulation (EU) 2019/943, as amended subsequently).
For a full description of the ENTSO network codes system under Regulation (EC) No. 714/2009, see J Schneider, “Energy and Trans-European Networks” in HCH Hofmann, G Rowe, A Türk (eds), Specialised Administrative Law of the European Union (Oxford University Press 2018) pp 397–400.
39 D Curtin, HCH Hofmann and J Mendes, “Constitutionalising EU Executive Rule-Making Procedures” (2013) 19 European Law Journal pp 1–21.
40 Interinstitutional Agreement between the European Parliament, the Council and the European Commission on Better Law-Making of 13 April 2016 [2016] OJ L 123/1.
41 European Commission, Delegated and Implementing Acts. Guidelines for the Services of the European Commission, 2020.
42 Communication from the Commission to the European Parliament and the Council, Implementation of Article290 of the Treaty on the Functioning of the European Union, Brussels, 9.12.2009 COM (2009) 673 final pp 3–5;
Laeken Declaration on the Future of the European Union (15 December 2001).
43 See extensively, Z Xhaferri, Law and Practices of Delegated Rulemaking by the European Commission (Brill 2022).
44 Art 11 of the “Comitology” Regulation.
45 See contribution by T Christiansen and G Gallinella, in this Special Issue.
