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Procedure : 2012/2323(INI)
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Document selected : A7-0435/2013

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PV 24/02/2014 - 26
CRE 24/02/2014 - 26

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PV 25/02/2014 - 5.18
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Tuesday, 25 February 2014 - Strasbourg
Delegation of legislative powers and the Commission's exercise of implementing powers

European Parliament resolution of 25 February 2014 on follow-up on the delegation of legislative powers and control by Member States of the Commission's exercise of implementing powers (2012/2323(INI))

The European Parliament,

–  having regard to Articles 290 and 291 of the Treaty of the Functioning of the European Union (TFEU),

–  having regard to 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(1),

–  having regard to the Common Understanding on Delegated Acts, as approved on 3 March 2011 by the Conference of Presidents,

–  having regard to the Framework Agreement on relations between the European Parliament and the European Commission(2), in particular point 15 thereof and Annex 1 thereto,

–  having regard to the judgment of the Court of Justice of 5 September 2012 in Case C-355/10, Parliament v Council (not yet reported), and the pending Case C-427/12, Commission v European Parliament and Council of the European Union,

–  having regard to its resolution of 5 May 2010 on the power of legislative delegation(3),

–  having regard to the information report of the European Economic and Social Committee, adopted on 19 September 2013, on Better regulation: implementing acts and delegated acts,

–  having regard to the letter of 26 November 2012 from the President of Parliament to the Chair of the Conference of Committee Chairs concerning the horizontal principles for the use of delegated acts in relation to the legislative programmes covered by the Multiannual Financial Framework (MFF), as endorsed by the Conference of Presidents at its meeting of 15 November 2012,

–  having regard to the letter of 8 February 2013 from the President of Parliament to the Presidents of the Council and of the Commission concerning the lack of progress in the Council with regard to the alignment proposals in the fields of agriculture and fisheries,

–  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 Development, the Committee on Economic and Monetary Affairs, the Committee on Employment and Social Affairs, the Committee on the Environment, Public Health and Food Safety, the Committee on Industry, Research and Energy, the Committee on Transport and Tourism, the Committee on Agriculture and Rural Development, the Committee on Fisheries, and the Committee on Civil Liberties, Justice and Home Affairs (A7-0435/2013),

A.  whereas the Lisbon Treaty introduced the possibility for Parliament and the Council (together referred to as 'the legislator') to delegate part of its own powers to the Commission in a legislative act (‘the basic act’); whereas delegation is a delicate operation whereby the Commission is instructed to exercise a power which is intrinsic to the legislator's own role; whereas it is therefore necessary to ensure the correct application of the Treaty, so as to guarantee a sufficient level of democratic legitimacy for delegated acts as well; whereas the starting-point in examining the issue of delegation must therefore always be the freedom of the legislator; whereas according to settled case-law, the adoption of rules essential to the subject matter envisaged is reserved to the legislator; which means that the adoption of provisions requiring political decisions that fall within the responsibility of the legislator cannot be delegated; whereas therefore that delegated power can only consist in supplementing or amending parts of a legislative act that are not 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;

B.  whereas in order to set out the practical arrangements and agreed clarifications and preferences applicable to delegations of legislative power in accordance with Article 290 TFEU, Parliament, the Council and the Commission agreed on a Common Understanding on Delegated Acts with a view to a smooth exercise of delegated power and an effective control of that power by the European Parliament and the Council;

C.  whereas the Treaties provide that Member States are to adopt all measures of national law necessary to implement legally binding Union acts; whereas, however, where uniform conditions for implementing legally binding Union acts are needed, those acts are to confer implementing powers on the Commission (and in certain exceptional cases on the Council), as laid down in Article 291 TFEU; whereas where the basic act requires that the adoption of implementing acts by the Commission must be subject to control by the Member States, the basic act should confer those implementing powers on the Commission in accordance with Regulation (EU) No 182/2011; whereas a key commitment made by the Commission in a statement annexed to that Regulation was the urgent alignment of the acquis to the new system of delegated and implementing acts to be completed during the current legislative term, including basic acts referring to the regulatory procedure with scrutiny (RPS);

D.  whereas it is for the legislator to determine, on a case-by case basis, the level of detail of each legislative act and thereby also to decide whether to delegate any power to the Commission to adopt delegated acts as well as whether there will be any need for powers to ensure uniform conditions for implementing the legislative act; whereas the conferral of such delegated or implementing powers is never an obligation; whereas such conferral should however be considered where flexibility and efficiency are needed and cannot be delivered by means of the ordinary legislative procedure; whereas the decision as to whether to confer delegated or implementing powers must be based on objective factors which must permit judicial review of the solution adopted; whereas the absence of case law on Article 290 TFEU and on the criteria laid down therein has made it more difficult for the European Parliament and Council to agree on a delimitation between implementing and delegated acts;

E.  whereas the delegation of power to the Commission is not merely a technical issue but can involve questions of considerable political importance for Union citizens and consumers, enterprises and entire sectors, on account of their possible socio-economic, environmental and health impacts;

F.  whereas legislative negotiations on many files have shown divergent interpretations among the institutions on certain issues; whereas, in accordance with Rule 37a of its Rules of Procedure, Parliament's committees may request an opinion from the Committee on Legal Affairs when scrutinising a proposal which provides for delegated acts; whereas the Conference of Presidents on 13 January 2012 endorsed a common line, and on 19 April 2012 endorsed a horizontal approach to be followed by individual committees in order to overcome differences of opinion; whereas that common line needs to be taken one step further by Parliament setting out its own criteria for the application of Articles 290 and 291 TFEU and by endeavouring to agree on such criteria with the Council and the Commission;

Criteria for the application of Articles 290 and 291 TFEU

1.  Considers that the following non-binding criteria should be followed by Parliament in applying Articles 290 and 291 TFEU; this list of criteria should not be considered as exhaustive:

   The binding or non-binding character of a measure must be decided on the basis of its nature and content; only the power to adopt legally binding measures may be delegated under Article 290 TFEU.
   The Commission may only amend legislative acts by means of delegated acts. This includes amendment of annexes, as annexes are an integral part of the legislative act. Annexes are not to be added to or deleted with the aim of triggering or avoiding the use of delegated acts; if the legislator considers that a text should be an integral part of the basic act, it may decide to include that text in an annex. This is particularly true as regards Union lists or registers of authorised products or substances which should remain, in the interests of legal certainty, an integral part of the basic act, if appropriate, in the form of an annex. Measures intended to further define the exact content of the obligations spelt out in the legislative act are designed to supplement the basic act by adding non-essential elements.
   Measures leading to a choice of priorities, objectives or expected results should be adopted by means of delegated acts, if the legislator decides not to include them in the legislative act itself.
   Measures designed to lay down (further) conditions, criteria or requirements to be met – the fulfilment of which must be ensured by the Member States or other persons or entities directly concerned by the legislation – will, by definition, alter the content of the legislation and add new rules of general application. Consequently, the creation of such further rules or criteria may be accomplished only by means of a delegated act. By contrast, the implementation of the rules or criteria already established in the basic act (or in a future delegated act), without modifying the substance of the rights or obligations stemming from them and without making further policy choices, can take place through implementing acts.
   Under certain circumstances the Commission is empowered to adopt additional binding rules of general scope that affect in substance the rights or obligations laid down in the basic act. Those measures will, by definition, supplement those laid down in the basic act, further defining the Union policy. This can be achieved only by means of a delegated act.
   Depending on the structure of the financial programme in question, non-essential elements amending or supplementing the basic act, such as those concerning specific technical matters, strategic interests, objectives, expected results, etc. could be adopted by delegated acts to the extent that they are not included in the basic act. Only for elements that do not reflect any further political or policy orientation the legislator may decide to allow for their adoption through implementing acts.
   A measure that determines the type of information to be provided under the basic act (i.e. the exact content of the information) generally supplements the obligation to provide information and should be carried out by means of a delegated act.
   A measure determining arrangements for the provision of information (i.e. the format) does not generally add to the obligation to provide information. Instead, such a measure enables uniform implementation. This should therefore be carried out, as a general rule, by means of an implementing act.
   Measures establishing a procedure (i.e. a way of performing or giving effect to something) can be laid down either in a delegated or in an implementing act (or even be an essential element of the basic act), depending on their content, context and the nature of the provisions set out in the basic act. Measures establishing elements of procedures involving further non-essential policy choices in order to supplement the legislative framework laid down in the basic act should in general be laid down in delegated acts. Measures establishing details of procedures in order to ensure uniform conditions for the implementation of an obligation laid down in the basic act should in general be implementing measures.
   As with procedures, an empowerment to determine methods (i.e. ways of doing something in particular in a regular and systematic way) or methodology (i.e. rules to determine the methods) can provide for delegated or implementing acts depending on the content and the context.
   In general, delegated acts should be used where the basic act leaves a considerable margin of discretion to the Commission to supplement the legislative framework laid down in the basic act.
   Authorisations can be measures of general application. This is for instance the case where decisions concern the authorisation or prohibition of the inclusion of a specific substance in food, cosmetics etc. Those decisions are general because they concern any operator willing to use such substance. In such cases, if the Commission decision is fully based on criteria contained in the basic act, it could be an implementing act; where, however, the criteria still allow the Commission to make further non-essential/secondary political or policy choices such authorisation should be a delegated act, because it would supplement the basic act.
   A legislative act may only delegate to the Commission the power to adopt non-legislative acts of general application. Measures of individual application may not, therefore, be adopted by means of delegated acts. An act is of general application if it applies to objectively determined situations and produces legal effects with respect to categories of persons generally and in the abstract.
   Implementing acts should not add any further political orientation and the powers given to the Commission should not leave any significant margin of discretion.

General comments

2.  Urges the Commission and the Council to enter into negotiations with Parliament in order to reach an agreement on the above-mentioned criteria; considers that this can be achieved within the framework of a revision of the Interinstitutional Agreement on Better Law-Making that would include such criteria;

3.  Reiterates the decisions taken by the Conference of Presidents at its meetings on 13 January 2011 and 19 April 2012 in relation to delegated and implementing acts, and stresses that Parliament should always insist on the use of delegated acts for all powers delegated to the Commission that fulfil the criteria set out in Article 290 TFEU, and that files in which the institutional rights of Parliament as regards the inclusion of delegated acts are not safeguarded should not be put on the plenary agenda for a vote leading to an agreement; emphasises that Parliament should, already at the start of the negotiations, flag the issue of delegated and implementing acts as a key institutional issue for Parliament;

4.  Calls on the Commission in future to provide an explicit and sustainable justification as to why it is proposing a delegated or implementing act in a particular legislative proposal and why it considers its regulatory content to be non-essential; recalls that, as is clear from the provisions of Articles 290 and 291 TFEU, delegated and implementing acts are intended to address different needs and cannot therefore be substituted one for another;

5.  Believes that, in order to strengthen the position of its rapporteurs in legislative negotiations, greater recourse should be had to the possibility of requesting an opinion from the Committee on Legal Affairs under Rule 37a of the Rules of Procedure;

6.  Expresses serious concern that the alignment of the acquis to the Treaty of Lisbon is only partly a reality four years after its entry into force; welcomes the presentation by the Commission of the recent proposals for alignment of the remaining legislative acts providing for the use of the regulatory procedure with scrutiny (RPS); stresses however the need to start negotiations on those proposals as soon as possible, in order to finalise this exercise before the end of the current parliamentary term; considers that at least all cases previously dealt with under RPS should now be aligned to Article 290 TFEU, as RPS measures are also measures of general scope designed to amend non-essential elements of a basic act , inter alia by deleting some of those elements or by supplementing the basic act by the addition of new non-essential elements; at the same time, calls on the Council to progress with talks on those specific alignment proposals that are still stalled in the Council, including proposals in the fields of agriculture and fisheries;

7.  Expresses concern that, despite the fact that it can be a good solution in certain cases, systematically keeping all policy elements in the basic act could, in due course, deprive Article 290 TFEU of its use as a valuable means of rationalisation of the legislative process, which was its initial rationale in order to avoid micro-management and a heavy and lengthy co-decision procedure; stresses that this approach could be extremely difficult to apply in some cases, such as in sectors where technologies are still being developed;

8.  Emphasises that in those cases where it has been decided to use implementing acts, the Parliament's negotiating team should carefully assess what kind of control by Member States is needed and whether the advisory or the examination procedure should be used; stresses that Parliament's negotiation teams, in cases where the examination procedure is used, should accept the so-called "no opinion clause" only in exceptional, duly justified cases, as it prevents the Commission from adopting the draft implementing act in the event of "no opinion" by the committee composed of representatives of the Member States and chaired by the Commission;

9.  Recommends that the Commission not misuse delegated acts in order to reopen discussions on matters agreed at political level in trilogues; points out that the power to adopt delegated acts should preferably be conferred on the Commission only for a limited period of time;

10.  Encourages its committees to closely monitor the use of delegated and implementing acts within their respective spheres of responsibility; to that end, requests the Commission to improve the administrative arrangements for the transmission and filing of documents related to delegated acts, including preparatory documents, in order to ensure at least the same level of information and transparency as for the existing register of implementing acts and to guarantee a simultaneous flow of information to Parliament and to the Council as the legislator;

11.  Considers that significant progress has been made in ensuring the swift transmission of the delegated acts to the lead committees, which in turn has positively influenced the exercise by Members' of their right of scrutiny;

12.  Points to the political responsibility of the legislator and the need for the regular and timely involvement of Parliament in the preparatory phase of delegated acts; calls on the Commission to keep Parliament, including the Rapporteur responsible for the file in question, fully informed of the planned timetable, the scheduled meetings of expert groups and the content of envisaged delegated acts, including by providing access to the relevant Commission databases, such as CIRCA;

13.  Urges the Commission to fully respect paragraph 15 of the Framework Agreement on relations between the European Parliament and the European Commission, inter alia by simplifying the procedure for inviting Parliament's experts to meetings with national experts, if so requested by the responsible Parliamentary committee; recognises that, as a result of Parliament's experts attending those meetings, the Commission may be invited to meetings in Parliament in order to have a further exchange of views on the preparation of delegated acts; urges the Commission to apply paragraph 15 of the Framework Agreement also for those parts of meetings of Member States and the Commission where matters other than implementing acts within the meaning of Regulation (EU) No 182/2011 are discussed;

14.  Takes the view that the time between the transmission of final draft implementing acts and their adoption by the Commission is often too short, thereby not allowing for adequate oversight by Parliament; urges the Commission, therefore, to fully respect the Parliament's right to scrutinise final draft implementing acts within a period of one month in accordance with the 2008 agreement between Parliament and Commission on comitology procedures;

15.  Calls for sufficient technical and personal resources to be assigned for delegated and implementing acts, inter alia in order to ensure an efficient internal flow of information; considers that circulation of delegated acts to Members by means of a newsletter facilitates the scrutiny of such acts and allows Members to raise possible objections in due time;

16.  Recommends that permanent rapporteurs be appointed in each committee for delegated and implementing acts, guaranteeing coherence within the committee concerned and with other committees; considers that similar issues must be dealt with in a coherent manner, while preserving the required flexibility;

17.  Welcomes the availability of the Commission’s experts to participate in information meetings with Members, as the organisation of such meetings, in good time before the adoption of the delegated acts, is useful for the purposes of clarifying key aspects of such acts and facilitating Parliament’s work in assessing the acts concerned;

18.  Continues to call on the members of negotiating teams in particular to pay particular attention to delegated and implementing acts when reporting to the competent committee following each trilogue pursuant to Rule 70(4) of Parliament's Rules of Procedure;

Comments concerning specific subject-matters

Agriculture and fisheries

19.  Deplores the fact that the alignment dossiers on essential agricultural and fisheries legislation were blocked by the Council after the failure of negotiations in informal trilogues and Parliament's first reading; underlines that the reason for this situation often lies in the Council's unwillingness to make use of delegated acts; notes that only in the context of the full legislative procedures relating to the reform of the CAP and the CFP was it possible to find an alignment solution which was acceptable to both sides, although some provisions could be agreed upon only on condition that they would not constitute a precedent; urges the Council to make progress on the outstanding alignment dossiers, so that the procedures can be concluded before the end of the current parliamentary term;

Development cooperation

20.  Recalls that, especially in the case of the Development Cooperation Instrument (DCI), Parliament has since 2006 practised a process of ‘democratic scrutiny’ in the form of a political dialogue with the Commission on draft measures; notes, however, that Parliament’s experience with this practice has been mixed, and that its influence over Commission decisions has been limited;

21.  Points out that in the sphere of development cooperation implementing acts are often based on prior consultations with third parties, rendering changes at a late stage of the formal comitology procedure more difficult; stresses, therefore, that earlier notification of, and dialogue with, Parliament would be an important step towards a more effective use of Parliament’s power of scrutiny;

Economic and monetary affairs

22.  Points out that in the area of financial services the regulations on the European Supervisory Authorities (ESAs) introduce regulatory technical standards (RTS) and implementing technical standards (ITS) under which ESAs submit draft RTS and ITS to the Commission for adoption; takes the view that, given the technical expertise and specialist skills of the ESAs, delegated acts should take the form of RTS rather than ordinary delegated acts wherever possible; also considers that, before adopting ordinary delegated acts the Commission should seek technical advice from the relevant ESA on the content of those acts;

23.  Points out that, under certain legislative acts, the period for scrutinising RTS may be extended by a further month, given their volume and complexity, and considers that this kind of flexibility should become the norm; furthermore points out that the legislator has set a period of scrutiny of three months, extendable by three months, for all delegated acts in the area of financial services, and considers that this practice should be extended to other areas of a complex nature;

24.  Emphasises that the arrangements whereby no delegated act may be submitted to Parliament during its recess periods should also apply to RTS;

25.  Believes that the call for stakeholders to sit in the ESA stakeholder groups should last for a sufficient length of time (not less than two months), should be issued via a variety of channels and should follow a clear and streamlined process in order to ensure that applications are received from a broad base of candidates; recalls the need for balanced ESA stakeholder groups in line with the provisions of the respective regulations;

Employment and social affairs

26.  Recalls that in the field of employment and social affairs, Parliament has challenged the validity of the EURES decision before the Court of Justice in order to defend its prerogatives;

Civil liberties, justice and home affairs

27.  Calls on the Commission to include in its work programme proposals to amend all legal acts of the former third pillar in order to align them with the new hierarchy of norms and to respect Parliament’s powers, competences and right to information with regard to the delegation of powers to the Commission under the Treaty of Lisbon; stresses that this will require an individual assessment of each legal act in order to identify decisions which – as essential elements – need to be taken by the legislator, particularly where they touch upon the fundamental rights of the persons concerned, and those that can be considered as non-essential elements (see ruling of the Court of Justice in Case C-355/10);

28.  Draws attention to the fact that the Council continues to adopt legal acts on the basis of provisions of the former third pillar, long after the entry into force of the Treaty of Lisbon, such that Parliament has been required to bring legal action before the Court of Justice;

o   o

29.  Instructs its President to forward this resolution to the Council, the Commission and the Parliaments of the Member States.

(1) OJ L 55, 28.2.2011, p. 13.
(2) OJ L 304, 20.11.2010, p. 47.
(3) OJ C 81 E, 15.3.2011, p. 6.

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