Saturday

2nd Mar 2024

EU states ready for tussle with MEPs on lawmaking

  • The Lisbon Treaty, which made a distinction between a delegated and an implementing act, but without clearly defining the criteria (Photo: European Commission)

EU ambassadors in Brussels adopted a position on Wednesday (6 December) to start talks with the European Parliament that may help reduce the number of future deadlocks in legislative files.

In EU jargon, the negotiations will be about setting up 'delineation criteria' to determine when a follow-up bill should be a delegated act or an implementing act.

Read and decide

Join EUobserver today

Get the EU news that really matters

Instant access to all articles — and 20 years of archives. 14-day free trial.

... or subscribe as a group

  • Ambassadors in Brussels for national governments adopted a negotiating mandate on Wednesday (Photo: Peter Teffer)

The confidential text, seen by this website, indicated that it may not be easy to come to an agreement.

Although determining the classification of secondary legislation sounds technical, it is highly political.

If a legal add-on is proposed as a delegated act, the parliament has a chance to veto it. If it is an implementing act, MEPs are powerless to intervene.

The distinction between delegated and implementing act is a consequence of the Lisbon treaty, which went into force in 2009.

"If I'm angry with one person, it is who the hell imagined - in the last Lisbon treaty reform - this nonsense," Green MEP Claude Turmes told a small group of journalists on Tuesday (5 December).

"It must have been somebody who has read Machiavelli," he said, referring to the 16th century Italian philosopher famous for his work The Prince.

The Luxembourgish MEP said that whenever a legislative proposal moves from the position-taking in the parliament and council to the interinstitutional negotiation format known as trilogue, there is a "constant fight between a delegated and an implementing act" - with MEPs wanting the first, and member states the second.

He said the Lisbon reform made the secondary legislation method "too divisive" and said that, at the trilogues, either the parliament or council is always "frustrated".

It is not just left-wing MEPs that are annoyed by the issue.

Centre-right Romanian MEP Marian-Jean Marinescu spoke to journalists the previous week about his negotiations with the council about new rules on civil aviation.

He said that whether details should be laid down in delegated or implementing acts was one of the four main points of disagreement, and was so disheartened that he predicted that there was a five percent chance that a deal would be reached – an estimation that turned out to be wrong, however.

Marinescu said that the council had proposed implementing acts for those parts which he thought should be delegated.

Leave it to the experts?

Through implementing acts, technical experts from member states will be writing the details – based on a commission proposal – with no role for MEPs.

"They [member states] want only the technical experts in the implementing rule, because [then] they can do whatever they want. That's the reality," he said.

"In an implementing act, they can spoil all the work we have done in the basic regulation," he said.

The space in trilogue negotiations for bickering over whether something should be an implementing or delegated act, was created by the Lisbon treaty - which is vague on distinguishing between the two.

According to the treaty's article 290, a delegated act shall be "of general application to supplement or amend certain non-essential elements of the legislative act".

Implementing acts shall be used where "uniform conditions for implementing legally binding Union acts are needed" (article 291).

"Everybody is interpreting it in different ways," said MEP Marinescu.

Last year, parliament, council, and commission agreed, as part of a wider 'interinstitutional agreement', that there should be "non-binding criteria for the application of Articles 290 and 291".

The April 2016 agreement said that the three institutions would "enter into negotiations without undue delay" to draft these criteria.

After some delays, "a good kick-off meeting" took place in Strasbourg last September, according to the office of Hungarian MEP Jozsef Szajer, one of two negotiators on behalf of the parliament.

The parliament has had a text which will serve as its negotiating mandate since 2014, and was waiting for the council to come up with a common position.

That text, which was drafted by legal experts and diplomats in the Council of the EU, was rubber-stamped by top diplomats on Wednesday.

Notably, the council document consists of two columns, with on the left side elements from a 2015 commission proposal and on the right side the comments from the council.

The parliament's criteria, suggested in the 2014 resolution, are only indirectly referred to, in the case where the commission had adopted the parliament's text.

The document showed that several parts of the commission proposal are unacceptable to the council.

For example, the commission had proposed a paragraph about delegated acts that spoke of measures "designed to lay down additional substantive rules and criteria to be met".

The council paper called it not acceptable because the category is "too wide", and would "clearly cover a wide range of measures, which currently are adopted by means of implementing acts".

Another example: one of the proposed criteria is about when member states or other entities are required by EU law to provide information.

The commission, based on the parliament resolution, said that the "types of information" should be determined through a delegated act, and that the "provision of information (that is to say the format)" should be an implementing act.

But the council found the statement on delegated acts "too general" and the one on implementing act "too restrictive".

These examples, while extremely technical or theoretical, show that the issue is about more than words, it is about power.

That means that the talks between parliament and council could be a theoretical repeat of the fights they have on an individual legislative level.

And even if agreement is reached, the criteria will be non-binding.

MEPs and states scrap over lawmaking powers

Stalled negotiations will begin again in Strasbourg over how to determine some procedures in EU lawmaking, which are ultimately about how much power the EU parliament has.

Ombudsman probes secret Council lawmaking

Emily O'Reilly has launched an inquiry into whether the EU Council, where member states are represented, allows sufficient public scrutiny of the drafting of laws.

'Outdated' rules bar MEP from entering plenary with child

During a plenary session in Strasbourg, an MEP was denied access to the chamber because he was carrying his young child, due to unforeseen circumstances. The episode shows parliament's rules need to be updated, several MEPs told EUobserver.

EU Commission clears Poland's access to up to €137bn EU funds

The European Commission has legally paved the way for Poland to access up to €137bn EU funds, following Donald Tusk's government's efforts to strengthen the independence of their judiciary and restore the rule of law in the country.

Latest News

  1. EU docks €32m in funding to UN Gaza agency pending audit
  2. 'Outdated' rules bar MEP from entering plenary with child
  3. Commission plays down row over Rwanda minerals pact
  4. EU socialists set to anoint placeholder candidate
  5. Why are the banking lobby afraid of a digital euro?
  6. Deepfake dystopia — Russia's disinformation in Spain and Italy
  7. Putin's nuclear riposte to Macron fails to impress EU diplomats
  8. EU won't yet commit funding UN agency in Gaza amid hunger

Stakeholders' Highlights

  1. Nordic Council of MinistersJoin the Nordic Food Systems Takeover at COP28
  2. Nordic Council of MinistersHow women and men are affected differently by climate policy
  3. Nordic Council of MinistersArtist Jessie Kleemann at Nordic pavilion during UN climate summit COP28
  4. Nordic Council of MinistersCOP28: Gathering Nordic and global experts to put food and health on the agenda
  5. Friedrich Naumann FoundationPoems of Liberty – Call for Submission “Human Rights in Inhume War”: 250€ honorary fee for selected poems
  6. World BankWorld Bank report: How to create a future where the rewards of technology benefit all levels of society?

Stakeholders' Highlights

  1. Georgia Ministry of Foreign AffairsThis autumn Europalia arts festival is all about GEORGIA!
  2. UNOPSFostering health system resilience in fragile and conflict-affected countries
  3. European Citizen's InitiativeThe European Commission launches the ‘ImagineEU’ competition for secondary school students in the EU.
  4. Nordic Council of MinistersThe Nordic Region is stepping up its efforts to reduce food waste
  5. UNOPSUNOPS begins works under EU-funded project to repair schools in Ukraine
  6. Georgia Ministry of Foreign AffairsGeorgia effectively prevents sanctions evasion against Russia – confirm EU, UK, USA

Join EUobserver

EU news that matters

Join us