REPORT on the power of legislative delegation

    29.3.2010 - (2010/2021(INI))

    Committee on Legal Affairs
    Rapporteur: József Szájer


    Procedure : 2010/2021(INI)
    Document stages in plenary
    Document selected :  
    A7-0110/2010

    MOTION FOR A EUROPEAN PARLIAMENT RESOLUTION

    on the power of legislative delegation

    (2010/2021(INI))

    The European Parliament,

    –   having regard to Article 290 of the Treaty on the Functioning of the European Union (‘TFEU’),

    –   having regard to its resolution of 23 September 2008 with recommendations to the Commission on the alignment of legal acts to the new Comitology Decision[1],

    –   having regard to its resolution of 7 May 2009 on Parliament's new role and responsibilities in implementing the Treaty of Lisbon[2],

    –   having regard to its position of 24 November 2009 on the proposal for a regulation of the European Parliament and of the Council adapting a number of instruments subject to the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468/EC, with regard to the regulatory procedure with scrutiny – Adaptation to the regulatory procedure with scrutiny – Part Five[3],

    –   having regard to the Commission Communication of 9 December 2009 on the implementation of Article 290 of the Treaty on the Functioning of the European Union (COM(2009)0673),

    –   having regard to the letter of 29 January 2010 from the President of the European Parliament to the President of the European Commission on Articles 290 and 291 TFEU,

    –   having regard to Rule 48 of its Rules of Procedure,

    –   having regard to the report of the Committee on Legal Affairs and the opinions of the Committee on Economic and Monetary Affairs and the Committee on the Environment, Public Health and Food Safety (A7‑0110/2010),

    A. whereas the Treaty of Lisbon consecrates legislative power and introduces a hierarchy of norms in the Union's legal order, thus reinforcing the democratic character of the Union and rationalising its legal order; whereas the Treaty of Lisbon introduces the novel concept of a legislative act, with far-reaching consequences,

    B.  whereas one of the elements of legislative power is the possibility, provided for in Article 290 TFEU, for the Legislator to delegate part of its own power to the Commission in a legislative act (hereinafter ‘the basic act’),

    C. whereas delegation is a delicate operation in which the Commission is instructed to exercise a power which is intrinsic to the Legislator’s own role; whereas the starting-point in examining the issue of delegation must therefore always be the freedom of the Legislator,

    D. whereas this delegated power can only consist in supplementing or amending parts of a legislative act which the Legislator does not consider to be essential; whereas the resulting delegated acts adopted by the Commission will be non-legislative acts of general scope; whereas the basic act must explicitly define the objective, content, scope and duration of that delegation, and must lay down the conditions to which the delegation is subject,

    E.  whereas delegated acts will have important implications in many areas; whereas it is therefore of paramount importance, in particular with regard to delegated acts, that they are developed and decided upon in a fully transparent manner which effectively enables the co-legislators to democratically control the exercise of the power delegated to the Commission, including by public debate in Parliament, where necessary,

    F.  whereas Parliament should be on an equal footing with the Council with respect to all aspects of the power of legislative delegation,

    G. whereas the ‘Lamfalussy procedure’ paved the way for the present mechanism of delegation with full control by the Legislator; whereas Declaration 39 of the Conference of the Representatives of the Governments of the Member States of 23 July 2007, annexed to the Treaty of Lisbon, recognised the specific nature of the financial services area; whereas the new regime for delegated acts cannot in any way undermine Parliament’s existing rights in that area, especially concerning the early transmission of documents and information,

    H. whereas delegation can be seen as a tool for better law-making, the objective of which is to ensure that legislation can at the same time remain simple and be completed and updated without needing to have recourse to repeated legislative procedures, whilst also allowing the Legislator to maintain its ultimate power and responsibility,

    I.   whereas, by contrast with the approach taken in Article 291 TFEU concerning implementing measures, Article 290 TFEU does not contain a legal basis for the adoption of a horizontal act setting out the rules and general principles applicable to delegations of power; whereas those conditions must therefore be set out in each basic act,

    J.   whereas the Commission is accountable to Parliament; whereas the Commissioner responsible for inter-institutional relations and administration made a commitment, at his hearing before the Committee on Constitutional Affairs on 18 January 2010, to work very closely with Parliament to ensure that the Commission's exercise of delegated power was to Parliament’s satisfaction,

    Aspects to be defined in the basic act

    1.  Considers that the objectives, content, scope and duration of a delegation pursuant to Article 290 TFEU must be expressly and meticulously defined in each basic act;

    2.  Stresses that Article 290 TFEU gives the Legislator the freedom to choose which control mechanism(s) to put in place; considers that the two examples enumerated in Article 290(2), objection and revocation, are purely illustrative and that one could envisage subjecting a delegation of power to other means of control, such as an express approval by Parliament and the Council of each delegated act or a possibility of repealing individual delegated acts already in force;

    3.  Takes the view, however, that the two examples of possible conditions mentioned in Article 290(2) TFEU, objection and revocation, may be regarded as the most usual ways to control the Commission's use of delegated powers and should both be included in every basic act;

    4.  Is of the opinion that the control mechanisms set out by the Legislator must respect certain general principles of Union law and that, in particular, they must:

    - be simple and easily understandable,

    - safeguard legal certainty,

    - enable the Commission to exercise the delegated power effectively, and

    - enable the Legislator to monitor properly the use made of delegated power;

    5.  Considers that Parliament’s exercise of the right of objection is necessarily conditioned by its parliamentary role and places of work; considers that a fixed period for objection applicable to all legal acts is not warranted, and that that period should be fixed on a case-by-case basis in each basic act taking into account the complexity of the issues and must be sufficient to enable effective control of the delegation, without unduly delaying the entry into force of uncontroversial delegated acts;

    6.  Considers that an urgency procedure with a shorter period for objection provided for in the basic act itself should be reserved for particularly exceptional cases, for example relating to security matters or humanitarian crises;

    7.  Believes, however, that the vast majority of situations requiring the speedy adoption of delegated acts could be dealt with by a flexible procedure for early non-objection by Parliament and the Council, following a request by the Commission in duly justified cases;

    8.  Maintains that the duration of a delegation cannot be indefinite; is of the opinion, however, that a delegation of a limited duration could provide for the possibility of periodic renewal; considers that a basic act can provide that such periodical renewal take place either tacitly or following an express request by the Commission; considers that, in both cases, the delegation can only be renewed if neither Parliament nor the Council expresses any objections within a specified deadline;

    9.  Strongly rejects the insertion in basic acts of provisions imposing on the Legislator additional obligations over and above those already contained in Article 290 TFEU;

    Practical arrangements

    10. Considers that certain practical arrangements could be better coordinated in a Common Understanding between the institutions, which may take the form of an inter-institutional agreement, covering inter alia:

    - consultations in the preparation and drawing-up of delegated acts,

    - mutual exchanges of information, in particular in the event of a revocation,

    - arrangements for the transmission of documents,

    - minimum periods for objection by Parliament and the Council;

    - computation of time periods,

    - the publication of acts in the Official Journal at different stages in the procedure;

    11. Stresses that, when preparing and drawing-up delegated acts, the Commission must:

    –  ensure an early and continuous transmission of information and relevant documents to Parliament's relevant committees, including successive drafts of delegated acts and any contributions received; to this end, the current comitology register could be used as a model for an improved digital information system,

    –  give Parliament access to related preparatory meetings, exchanges of views and consultations;

    12. Is of the opinion that the exchange of information prior to a revocation should take place as a matter of transparency, courtesy and loyal cooperation between the institutions concerned thereby ensuring that all institutions are fully aware of the possibility of revocation in good time; however, deems it redundant and confusing to introduce a specific legal obligation in basic acts requiring a statement of reasons for the adoption of certain legal acts in addition to the general requirement laid down in Article 296 TFEU which is applicable to all legal acts;

    13. Proposes that a minimum period for objection be fixed in any future Common Understanding, it being made clear that this should be understood not as a straitjacket but merely as a minimum below which Parliament’s democratic control would become nugatory; considers that the minimum period for objection should be two months, with a possibility of its being extended by a further two months at the initiative of Parliament or the Council; recalls that a longer period for objection can be set depending on the nature of the delegated act;

    14. Insists, in the context of any future Common Understanding, that the various periods for scrutiny of delegated acts must only start on transmission by the Commission of all language versions, and must properly take account of Parliament’s recess and electoral periods;

    15. Stresses, in the context of any future Common Understanding, that delegated acts subject to a right of objection can only be published in the Official Journal and thus enter into force after the expiry of the period for objection, except where an early non-objection is granted; considers that an express obligation requiring Parliament and the Council in each basic act to publish decisions taken in controlling the Commission’s exercise of delegated power is superfluous;

    Final remarks

    16. Calls on each of its committees to exchange and regularly update best practice and establish a mechanism to ensure that Parliament’s practices under Article 290 TFEU are as coherent as possible; underlines the need for each parliamentary committee to organise its work in a way that is consistent with its specific nature and takes advantage of its accumulated expertise;

    17. Requires Parliament's administration to reallocate resources as a (budget-neutral) means of providing the posts needed to deliver appropriate support for the performance of tasks connected with Article 290 TFEU; calls for an institutional approach to assess the administrative structures and human resources available to develop delegated competences;

    18. Urges the Commission to present as a matter of priority the legislative proposals needed to adapt the acquis to the provisions of Articles 290 and 291 TFEU; considers, in respect of Article 290 TFEU, that this alignment should not be limited to those measures previously dealt with under the regulatory procedure with scrutiny but should cover all appropriate measures of general scope independently of the decision-making procedure or comitology procedure applicable to them prior to the entry into force of the Treaty of Lisbon;

    19. Insists that the first priority must be to adapt the acquis in policy areas which, prior to the entry into force of the Treaty of Lisbon, were not subject to the codecision procedure; calls for them to be dealt with on a case-by-case basis to ensure that, in particular, all appropriate measures of general scope which were previously adopted under Articles 4 and 5 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission[4] are defined as delegated acts;

    20. Considers that in order to fully preserve the Legislator's prerogatives, special attention should be given to the relative use of Articles 290 and 291 TFEU and to the practical consequences of having recourse to one article or the other, be it during the above-mentioned alignment or when dealing with proposals under the ordinary legislative procedure; insists that the co-legislators have the power to decide that the matters previously adopted under the regulatory procedure with scrutiny (RPS) can be adopted either under Article 290 TFEU or under the ordinary legislative procedure;

    o

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    21. Instructs its President to forward this resolution to the Council and the Commission.

    EXPLANATORY STATEMENT

    1. The novel concept of a "legislative" act

    The Treaty of Lisbon consecrates legislative power and introduces a hierarchy of norms in the Union's legal order. In so doing, it reinforces the democratic character of the Union and rationalises its legal order.

    The new treaty introduces the concept of a legislative act which was until now unknown in Community and Union law[1]. A distinction with far-reaching consequences is made between legislative acts and all other acts (non-legislative acts), a legislative act being defined as a legal act adopted by legislative procedure[2]. Each individual legal basis in the Treaties identifies whether or not an act is of a legislative nature.

    2. Delegation of power by the Legislator to the Commission

    One of the elements of legislative power is the possibility, provided for in Article 290 TFEU, for the Legislator to delegate part of its own power to the Commission in a basic legislative act (hereinafter "the basic act"). This delegated power can only consist in supplementing or amending parts of a legislative act which the Legislator does not consider to be essential. The resulting delegated acts adopted by the Commission will be non-legislative acts of general scope.

    In order to make a valid delegation, the Legislator must explicitly define the objective, content, scope and duration of that delegation[3]. Furthermore, the Legislator must lay down the conditions to which this delegation is subject[4] - this will allow the Legislator to control the Commission's use of delegated power.

    3. Objective of a delegation of power by the Legislator

    The objective of a delegation of power by the Legislator is to ensure that legislation can at the same time remain simple and also be completed and updated without needing to have recourse to repeated legislative procedures, which could be disproportionately cumbersome and take up an inordinate amount of time. Delegation therefore provides a way to deal with the more detailed aspects of a piece of Union legislation while allowing the Legislator to maintain its ultimate power and responsibility. In this way, delegation can be seen partly as a tool for better law-making at EU level.

    4. Scope and duration of the delegation

    A delegation is a delicate operation in which the Legislator instructs the Commission to exercise part of its own power. As a result, the objectives, content, scope and duration of the delegation have to be expressly and meticulously defined in the basic act. The duration of a delegation cannot thus be indefinite, but a basic act could provide for the possibility of periodical renewal to take place either tacitly or following an express request by the Commission. In both cases, the delegation could only be renewed if the Parliament and Council did not express any objections within a given deadline.

    5. General principles for controlling the exercise of delegated power

    Article 290 TFEU gives the Legislator the freedom to choose the control mechanism(s) to put in place. It mentions two such means of control purely by way of example. To conclude that these two means of control form an exhaustive list would not only be contrary to the plain wording of Article 290 TFEU but would also be contrary to the underlying philosophy whereby the Legislator is delegating a power which is intrinsic to its own role and must therefore be sure of being able to retain proper control over its use[5]. This implies the widest possible margin of appreciation in determining how to control a delegation[6].

    However, the control mechanisms set out by the Legislator must respect certain general principles of Union law. In particular, they must:

    · be simple and easily understandable,

    · safeguard legal certainty,

    · enable the Commission to exercise the delegated power effectively, and

    · enable the Legislator to monitor properly the use made of delegated power.

    6. Specific conditions for controlling the exercise of delegated power

    The two conditions expressly mentioned in Article 290(2) TFEU, revocation and objection, may be regarded as the most usual ways to control the Commission's use of delegated powers.

    (i) Revocation

    Revocation by the Parliament or the Council is expressly provided for as a first possible condition under Article 290 TFEU. It is clear from that provision that agreement of both branches of the Union legislature is not necessary to revoke a delegation. A revocation should, for reasons of legal certainty, state that it does not affect the validity of delegated acts already adopted prior to this revocation.

    (ii) Objection and early non-objection

    Objection by the Parliament or the Council within a period set by the basic act is expressly provided for as a second possible condition under Article 290 TFEU. It is clear from that provision that agreement of both branches of the Union legislature is not necessary to object to an individual delegated act and an objection from just one of the branches would thus prevent it from entering into force. Parliament's exercise of the right of objection is necessarily conditioned by its parliamentary role and places of work. Given the variety of legislation being dealt with by Parliament, it is not necessary to establish a fixed period for objection which would apply in all cases. However, the deadline must be sufficient to enable effective control of the delegation. The Committee on Legal Affairs considers that it should be fixed on a case-by-case basis in each basic act and that a minimum period for objection should be set in a future Common Understanding dealing with horizontal questions (see below).

    The Committee considers that an urgent procedure with a shorter period for objection contained in the basic act itself should be reserved for particularly exceptional cases only, for example when security matters or humanitarian crises are at stake.

    It believes, however, that the vast majority of situations requiring the speedy adoption of delegated acts could be dealt with by a flexible procedure for early non-objection which could provide that the time-period for expressing an objection may be shortened by the Parliament and the Council, following a request by the Commission in duly justified cases.

    Respect for the democratic principle, inherent in any delegation of legislative power, should guide the use of the urgent procedure and of the early non-objection. Both solutions must not be abused, and Parliament must be able to give proper consideration to individual delegated acts, taking into account the organisation of its standing committees and the procedural implications of any procedure to object to a delegated act.

    (iii) Further possible conditions

    As stated above, Article 290 TFEU gives the Legislator the freedom to choose which control mechanism(s) to put in place. The two examples enumerated in Article 290(2), objection and revocation, are therefore purely illustrative and one could envisage subjecting a delegation of power to other means of control, such as an express approval by Parliament and Council of each delegated act or a possibility of repealing individual delegated acts already in force.

    (iv) Horizontal questions

    Ongoing discussions raise several practical and legal points of a horizontal nature worth considering at this point:

    · Consultations in the preparatory stage: The Commission, when preparing and drawing-up delegated acts, should ensure an early and continuous transmission of information and relevant documents to Parliament's relevant committees, including successive drafts of delegated acts and any contributions received; to this end, the current comitology register could be used as a model for an improved digital information system. The Commission should also give Parliament access to related preparatory meetings, exchanges of views and consultations. These obligations are specifically important in the area of financial services, in which particular procedures have applied so far.

    · Prior notice: The creation of an obligation on the revoking institution to provide a certain amount of information to the other institutions involved before revocation is being discussed. The Committee considers such exchange of information to be a normal part of inter-institutional relations. This should take place as a matter of course and out of transparency, courtesy and loyal cooperation. There is therefore no need to formally enshrine such an obligation in the basic act.

    · Obligation to state reasons: A specific obligation to reason a decision by either branch of the Union legislature to revoke a delegation or to object to a delegated act has been mooted. Article 296 TFEU already provides the overarching requirement that "legal acts shall state the reasons on which they are based". Any further overlapping obligation to justify legal acts would therefore be redundant and confusing.

    · Minimum period for objection: The deadline must be sufficient to enable effective control of the delegation and it should be fixed on a case-by-case basis in each basic act. However, a minimum should be also set in order to ensure that Parliament's democratic control does not become nugatory.

    · Computation of time-periods: The various periods for scrutiny of delegated acts may only start on transmission of all language versions by the Commission. Likewise, Parliament's recess and electoral periods must be properly taken into account.

    · Obligation to publish certain acts: An express obligation on Parliament and Council in each basic act to publish decisions taken whilst controlling the Commission's exercise of delegated power seems superfluous as such an obligation already exists under Article 297 TFEU. Given that a delegated act is of general scope, any objection to it should correspondingly be in the form of a decision with no addressee. Similarly, a revocation of a delegation modifies the basic act and must therefore also be published.

    · Date of publication of delegated acts: It seems clear to the Committee that delegated acts can only enter into force after the expiry of the period for objection. This precludes any publication in the Official Journal prior to that date, except where an early non-objection is granted.

    The Committee considers that, rather than including them explicitly in the basic acts and thus making such acts unnecessarily cumbersome, these horizontal points could be better dealt with as part of Common Understanding between the institutions which may take the form of an inter-institutional agreement.

    7. The Commission's Communication on delegated acts.

    It is regrettable that the Commission's Communication[7] appears to understand neither the extent nor the significance of the changes in the Union's constitutional and legal framework ushered in by the Treaty of Lisbon. The Commission deals with delegated acts as though they were the descendants of the "Lamfalussy procedure" and "comitology" measures adopted on the basis of Article 202 EC[8]. The time has come to abandon this way of thinking when dealing with the delegation of legislative power to the Commission.

    The need to delegate the more technical aspects of legislation to the Commission also existed in the past, at a time when the Treaties did not provide for any mechanism to achieve such a result. The institutions were compelled to use the mechanism set out in Article 202 EC which was an unsatisfactory solution for the Legislator, and particularly for Parliament. The regulatory procedure with scrutiny (RPS, or to use its French initialism, PRAC), added during the latest modification of Council Decision 1999/468/EC[9] implementing Article 202 EC was created precisely to provide a temporary answer, albeit a far from perfect one, under the Treaty of Nice. The procedure laid down in Article 290 TFEU therefore fills a void.

    Control of the power delegated by the Legislator should in all logic remain the preserve of the Legislator. Moreover, any other form of control by anyone but the Legislator would per se be contrary to Article 290 TFEU. In particular, Member States, and a fortiori committees composed of experts from the Member States, have no role to play in this area.

    If the Commission, before adopting a delegated act, wants to consult-informally with national experts, it is absolutely free to do so in the same way as it is free to consult civil society, interest representatives, companies, the social partners, academics, or even Members or organs of the European Parliament. In fact, the Committee on Legal Affairs considers that it would be very useful for the Commission to associate the responsible organs of the European Parliament in the preparations leading up to the adoption of delegated acts. By contrast, Parliament categorically rejects any formal role of national experts having the effect of a control mechanism on the Commission as being contrary to the Treaties and the principle of institutional balance. Therefore, no reference to consultations should be made in basic acts, but this question could be dealt with as part of a Common Understanding, as mentioned above.

    8. Internal organisation of Parliament

    The Committee on Legal Affairs considers that each committee should exchange and regularly update best practice, and establish an appropriate mechanism in order to ensure that Parliament's practices under Article 290 TFEU are as coherent as possible, taking into account the specificities of the different areas covered.

    9. The question of the alignment of the existing acquis

    The necessity of delegating some legislative power, which existed in the past as it does today, was previously exercised through the "comitology" procedure laid down by the above-mentioned Council Decision 1999/468/EC, which was inadequate for the reasons outlined above. The acquis must therefore be adapted as quickly as possible to the Union's new legal order and the delegation mechanism, and it is therefore urgent that the Commission present legislative proposals to achieve this.

    The Committee considers that the alignment should not be limited to those measures previously dealt with under the regulatory procedure with scrutiny, but should cover all appropriate measures of general scope independently of the decision-making procedure or comitology procedure applicable to them prior to the entry into force of the Treaty of Lisbon.

    10. Delegated acts contrasted with implementing acts

    It is undisputed that the primary responsibility for the implementation of Union law lies with the Member States. This is made clear in Article 4(3) second subparagraph TEU (ex Article 10 EC - "the Member States shall take any appropriate measure (...) to ensure fulfilment of the obligations arising out of the Treaties") and in Article 291 TFEU itself ("Member States shall adopt all measures of national law necessary to implement legally binding Union acts"). This was also the case prior to the entry into force of the Lisbon Treaty.

    However, where the Legislator considers that uniform conditions for implementing legally binding Union acts are needed, a binding piece of secondary law (whether a legislative act or not) must empower the Commission to adopt implementing measures. Article 291 TFEU, following on directly from the "comitology" mechanisms based on Article 202 EC, provides a basis for the adoption of implementing acts by the Commission, subject to certain controls by the Member States of the Commission's exercise of implementing powers[10]. Given the primary responsibility of Member States for implementation, it is natural that Article 291 mentions them to the exclusion of the Legislator. There is no fundamental conceptual difference between the previous system based on Article 202 EC and the future system based on Article 291 TFEU.

    It is clear that it is the Legislator that establishes the conditions for the exercise of such implementing powers. A new legal framework for implementing acts is urgent because the current "comitology" decision is partly incompatible with the new regime established under Article 291 TFEU.

    • [1]  The concept of an institution acting in a "legislative capacity" already made an appearance in the context of rules on transparency in the Council - Article 207(3) TEC. No definition of "legislative capacity" was however given.
    • [2]  Article 289(3) TFEU.
    • [3]  Article 290(1) second subparagraph TFEU.
    • [4]  Article 290(2) TFEU.
    • [5]  See for further background, the Final Report of Working Group IX on Simplification, Convention on the Future of Europe, 29 November 2002 (CONV 424/02), at p. 11.
    • [6]  See to the same effect Parliament's resolution of 7 May 2009 on Parliament's new role and responsibilities in implementing the Lisbon Treaty (P6_TA(2009)0373), at paragraph 68.
    • [7]  Commission communication of 9 December 2009 on the Implementation of Article 290 of the Treaty on the Functioning of the European Union (COM(2009)0673).
    • [8]  "To ensure that the objectives set out in this Treaty are attained the Council shall, in accordance with the provisions of this Treaty (...) confer on the Commission, in the acts which the Council adopts, powers for the implementation of the rules which the Council lays down. The Council may impose certain requirements in respect of the exercise of these powers. (...)"
    • [9]  Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ L 184, 17.7.1999, p. 23), as amended by Council Decision 2006/512/EC of 17 July 2006 (OJ L 200, 22.7.2006, p. 11).
    • [10]  The rules and general principles for control by Member States are however to be adopted in the form of regulations by the Legislator acting in accordance with the ordinary legislative procedure - Article 291(3) TFEU.

    OPINION of the Committee on Economic and Monetary Affairs (18.3.2010)

    for the Committee on Legal Affairs

    on the power of legislative delegation
    (2010/2021(INI))

    Rapporteur: Sharon Bowles

    SUGGESTIONS

    The Committee on Economic and Monetary Affairs calls on the Committee on Legal Affairs, as the committee responsible, to incorporate the following suggestions in its motion for a resolution:

    A. whereas acts adopted under Article 290 and 291 of the Treaty on the Functioning of the European Union (`TFEU`) should be subject to public debate and democratic control,

    B.  whereas Declaration 39 of the Conference of the Representatives of the Governments of the Member States of 23 July 2007, annexed to the Treaty of Lisbon, took note of the Commission´s intention to continue to consult experts appointed by the Member States in the preparation of delegated acts in the financial services area,

    C. whereas the Lamfalussy procedure paved the way for thorough legislative control over regulatory powers conferred on the Commission in financial services,

    D. whereas the European supervisory architecture envisages the use of technical standards to achieve a "Single Rule Book" involving a prominent role for delegated acts, which would be laid down by specific sectoral legislation so the objective, scope and duration of delegation would be strictly defined,

    E.  whereas the new regime for delegated acts cannot in any way undermine Parliament's existing rights in the area of financial services, especially concerning the early transmission of documents and obligations to provide information, including drafts,

    1.  Insists that the co-legislators have powers to decide that the matters previously adopted under the regulatory procedure with scrutiny (RPS) can be adopted either under Article 290 TFEU or under the ordinary legislative procedure;

    2.  Stresses that Article 290 TFEU leaves the legislator free to decide on a case-by-case basis which control mechanisms are necessary and therefore that any inter-institutional agreement should not restrict or alter this freedom;

    3.  Notes, however, that there is an urgent need for an inter-institutional agreement between the Parliament, the Council and the Commission on the implementation of Article 290 to provide greater clarity and common understanding between the legislators;

    4.  Recalls that the scope of delegated acts cannot be limited to the scope of the former RPS and that regulatory measures adopted under other comitology regimes, and in particular the ´Lamfalussy Directives´ in the field of financial services, may be adopted under Article 290 TFEU whilst recalling that in all areas the basic act must explicitly define the objective, content, scope and duration of the delegated act and must lay down the conditions to which the delegation is subject;

    5.  Stresses that Parliament's existing rights in the area of financial services must be maintained without prejudice to new and additional legislative control; and that Parliament must be invited to preparatory meetings held in relation to delegated acts and be provided with the same information forwarded to the Council, Member States and the future European supervisory authorities;

    6.  Points out that in each basic act sufficient time must be set to enable Parliament and Council to exercise their right to object to a delegated act; notes that this may well be longer for some matters than for others, taking into account the complexity and difficulty of the issues and the work schedule of the co-legislators;

    7.  Considers that so-called "early non-objections" have been valuable under the Lamfalussy procedure and could be kept as the preferred option for Parliament, as opposed to any urgency procedure;

    8.  Points out that the Treaties do not establish any requirement for the legislator to include written explanations in its decisions to delegate the power to adopt a delegated act, or to object to or to revoke such an act, beyond the minimum general requirement laid down in Article 296 TFEU which is applicable to all legal acts;

    9.  Considers that it should not be presumed that the delegation is always for an indefinite period of time; stresses that, to cater for instances where delegated acts mandate action or permit action when necessary, which may never happen, the legislator is free to choose appropriate options on a case-by-case basis, including providing for a delegation of a limited period, requiring action to be taken within a specific time period and having the ability to renew the delegation;

    10. Calls on each of its committees to exchange and regularly update best practice to ensure that Parliament’s procedures under Article 290 TFEU are as coherent as possible and for a periodic revision of the Parliament's delegation procedures;

    11. Underlines the need for each of its committees to organise its work in a way that is consistent with its specific nature and takes advantage of its accumulated expertise; recognises the consensus in financial services that, when possible, the rapporteur for the basic act should also take the lead for Parliament on the relevant delegated acts to ensure expert knowledge of the subject matter based on dialogue and information exchange from the beginning of the legislative process;

    12. Notes the importance of implementation of delegated acts and calls on the Commission to produce reports to update Parliament on their progress;

    13. Calls on the Commission to present as a matter of urgency a legislative proposal based on Article 291(3) TFEU setting out the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers; stresses that Parliament should, at the very least, retain a right of information concerning implementing acts and control their legality, along with the right to adopt resolutions in cases where the implementing act goes beyond the authority permitted by the basic act.

    RESULT OF FINAL VOTE IN COMMITTEE

    Date adopted

    17.3.2010

     

     

     

    Result of final vote

    +:

    –:

    0:

    39

    0

    0

    Members present for the final vote

    Burkhard Balz, Sharon Bowles, Udo Bullmann, Pascal Canfin, Nikolaos Chountis, George Sabin Cutaş, Leonardo Domenici, Derk Jan Eppink, Diogo Feio, Markus Ferber, Elisa Ferreira, Vicky Ford, José Manuel García-Margallo y Marfil, Jean-Paul Gauzès, Sylvie Goulard, Enikő Győri, Othmar Karas, Wolf Klinz, Jürgen Klute, Rodi Kratsa-Tsagaropoulou, Astrid Lulling, Hans-Peter Martin, Ivari Padar, Antolín Sánchez Presedo, Olle Schmidt, Edward Scicluna, Peter Simon, Peter Skinner, Theodor Dumitru Stolojan, Kay Swinburne, Marianne Thyssen, Ramon Tremosa i Balcells

    Substitute(s) present for the final vote

    David Casa, Sari Essayah, Syed Kamall, Philippe Lamberts, Thomas Mann, Catherine Stihler, Zoran Thaler

    OPINION of the Committee on the Environment, Public Health and Food Safety (16.3.2010)

    for the Committee on Legal Affairs

    on the power of legislative delegation
    (2010/2021(INI))

    Rapporteur: Jo Leinen

    SUGGESTIONS

    The Committee on the Environment, Public Health and Food Safety calls on the Committee on Legal Affairs, as the committee responsible, to incorporate the following suggestions in its motion for a resolution:

    A. whereas the Commission is accountable to Parliament,

    B.  whereas the Treaty on the Functioning of the European Union (TFEU) puts Parliament and the Council on an equal footing,

    C. whereas acts adopted under Articles 290 and 291 of the TFEU may have important social, environmental, economic and health implications; whereas it is therefore of paramount importance, in particular with regard to delegated acts, that they be developed and decided upon in a fully transparent manner which effectively enables the co-legislators to control the exercise of the power delegated to the Commission, including by public debate in Parliament, where necessary,

    1.  Insists that decisions previously adopted under the regulatory procedure with scrutiny (RPS) should in principle henceforth be adopted either under Article 290 of the TFEU or under the ordinary legislative procedure on a case-by-case basis, taking into account the principle of subsidiarity enshrined in Article 5 of the EU Treaty;

    2.  Points out that the scope of delegated acts is wider than the scope of the RPS and that in many cases acts currently subject to Parliament's right of scrutiny ('droit de regard') will henceforth need to be adopted under Article 290 of the TFEU;

    3.  Points out that sufficient time for a possible objection should be provided for in the basic act to enable Parliament to coordinate its internal positions and to take a sound decision, without unduly delaying the entry into force of uncontroversial delegated acts;

    4.  Therefore considers a minimum period for objection of two months, with a possibility of its being extended by a further two months on request by Parliament or the Council, to be the most appropriate solution, inasmuch as this allows for a relatively short period until entry into force for the large majority of uncontroversial delegated acts while granting Parliament or the Council sufficient time in which to exercise their rights of control in the case of controversial acts;

    5.  Emphasises that recourse to the so-called "urgent procedure" in respect of delegated acts is necessary only in precisely defined and exceptional cases;

    6.  Considers a 2+2 month-approach with regard to objections to be an elegant way of allowing for a relatively rapid entry into force without creating additional administrative burdens, while allowing enough time to react in controversial cases; considers that the introduction of an additional option for "early non-objection" may be useful, provided that the co-legislators are free to use this procedure where they so wish, and that any request for its use by the Commission should be based on a properly reasoned request;

    7.  Calls on the Commission to ensure that Parliament can fully exercise its prerogatives as co-legislator by:

    - providing Parliament, at the same time as the Council and the Member States, with the full information and documentation used for the preparation of the delegated acts, as well as the drafts of delegated acts; to this end the current comitology register could be used as a model for an improved register for the future;

    - taking into account Parliament's periods of recess when notifying the delegated acts; and

    - involving Parliament in preparatory work in relation to delegated acts, e.g. by inviting Parliament to attend preparatory meetings held in relation to them;

    8.  Calls for the adoption of an interinstitutional agreement between Parliament, the Council and the Commission on the implementation of Article 290, as there is an urgent need for greater clarity;

    9.  Stresses that Parliament, by delegating certain powers to the Commission under Article 290, in no way abdicates its responsibility for any decisions taken pursuant thereto; considers therefore, in light of the potentially far-reaching nature of delegated acts, that Parliament should make available increased resources in all relevant entities so as to be able to discharge its responsibility for delegated acts;

    10. Considers that Parliament, because of its continuing responsibility for decisions taken under Article 290, should ensure, in cooperation with the Commission, that Members of Parliament and their staff can easily access a digital information system that provides all relevant documents and up-to-date information on the process; considers that Parliament should furthermore ensure that the public has access to the documents and to information on the process as soon as the delegated acts are notified to Parliament, possibly through a system comparable to the Legislative Observatory;

    11. Considers, in light of the individual nature of each delegated act, that it would be most appropriate for the rapporteur who worked on the basic act, if still a Member of Parliament, to assume special responsibility for effectively controlling the adoption of the delegated acts relating thereto;

    12. Calls on the Commission to ensure that all basic legislative acts are aligned as soon as possible to the new provisions under Article 290 of the TFEU, ensuring the involvement of the rapporteurs for and the experts on the basic legislative acts, as the objectives, content, scope and duration of the delegation power need to be defined for each act;

    13. Calls for an institutional approach to assess the administrative structures and human resources available to develop such delegated competences;

    14. Believes that it will be important, in the interests of citizens and for the sake of transparency, to develop for the future an objective way of assessing the degree of efficiency of the delegation of powers for the purposes of implementing EU legislation in accordance with the new legal basis provided for in Article 298 of the TFEU.

    RESULT OF FINAL VOTE IN COMMITTEE

    Date adopted

    16.3.2010

     

     

     

    Result of final vote

    +:

    –:

    0:

    62

    0

    0

    Members present for the final vote

    János Áder, Elena Oana Antonescu, Kriton Arsenis, Pilar Ayuso, Paolo Bartolozzi, Sergio Berlato, Martin Callanan, Nessa Childers, Chris Davies, Esther de Lange, Anne Delvaux, Bas Eickhout, Edite Estrela, Jill Evans, Elisabetta Gardini, Gerben-Jan Gerbrandy, Julie Girling, Satu Hassi, Jolanta Emilia Hibner, Dan Jørgensen, Christa Klaß, Holger Krahmer, Jo Leinen, Corinne Lepage, Peter Liese, Kartika Tamara Liotard, Linda McAvan, Radvilė Morkūnaitė-Mikulėnienė, Miroslav Ouzký, Vladko Todorov Panayotov, Gilles Pargneaux, Antonyia Parvanova, Andres Perello Rodriguez, Pavel Poc, Vittorio Prodi, Frédérique Ries, Anna Rosbach, Oreste Rossi, Daciana Octavia Sârbu, Horst Schnellhardt, Richard Seeber, Theodoros Skylakakis, Bogusław Sonik, Anja Weisgerber, Åsa Westlund, Glenis Willmott, Sabine Wils, Marina Yannakoudakis

    Substitute(s) present for the final vote

    Pablo Arias Echeverría, Jiří Maštálka, Judith A. Merkies, Miroslav Mikolášik, Giancarlo Scotta’, Bart Staes, Marianne Thyssen, Michail Tremopoulos, Peter van Dalen

    Substitute(s) under Rule 187(2) present for the final vote

    Véronique Mathieu, Mario Mauro, Guido Milana, Potito Salatto, Gianluca Susta

    RESULT OF FINAL VOTE IN COMMITTEE

    Date adopted

    23.3.2010

     

     

     

    Result of final vote

    +:

    –:

    0:

    24

    0

    0

    Members present for the final vote

    Raffaele Baldassarre, Luigi Berlinguer, Sebastian Valentin Bodu, Françoise Castex, Christian Engström, Marielle Gallo, Lidia Joanna Geringer de Oedenberg, Daniel Hannan, Klaus-Heiner Lehne, Antonio Masip Hidalgo, Alajos Mészáros, Bernhard Rapkay, Evelyn Regner, Francesco Enrico Speroni, Dimitar Stoyanov, Alexandra Thein, Diana Wallis, Rainer Wieland, Cecilia Wikström, Zbigniew Ziobro, Tadeusz Zwiefka

    Substitute(s) present for the final vote

    Piotr Borys, Sergio Gaetano Cofferati, Sajjad Karim, Vytautas Landsbergis, Kurt Lechner, Eva Lichtenberger, József Szájer