24th Mar 2018

MEPs and states scrap over lawmaking powers

  • Negotiators will meet in Strasbourg for the first time to discuss delegated and implementing acts. (Photo: European Parliament)

Negotiations will begin on Tuesday (12 September) in Strasbourg on the future of a little-known, but often used way of legislating in the EU.

The talks are between the European Parliament and the Council of the EU, the latter representing national governments, and they had been delayed for over a year.

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They are about how to delineate between what should be an implementing and a delegated act, and while that may seem technical and boring, it is basically about how much power the EU's democratically elected parliament should have.

Since the entry into force of the Lisbon treaty in 2009, EU law has a distinction between implementing acts and delegated acts, which are bills that involve detailed or technical application of EU rules.

While many general directives and regulations are adopted through a relatively public process known as co-legislation, more detailed rules and procedures are adopted through these two types of acts, which are discussed and voted on in committees (and thus are referred to in Brussels as the comitology method).

Both types are proposed by the European Commission, but only in the event of a delegated act does the parliament have an opportunity to veto the bill. In the case of an implementing act, the parliament has no binding power.

In many regulations and directives, the commission is given the power to propose delegated or implementing acts.

According to comitology expert Ellen Vos, the distinction between delegated and implementing acts was made in an attempt to make direct lawmaking more simple.

"However, the situation has become more complicated," she told EUobserver.


In part, this is because the Lisbon treaty's relevant articles (290 and 291) are not very clear on when something should be an implementing act, and when it should be a delegated act.

The lack of clear criteria often results in negotiators from the parliament and council at loggerheads over which of the two acts should end up in the general piece of legislation.

In an agreement between the EU commission, parliament, and council, the three institutions said in April 2016 that they would "enter into negotiations without undue delay" to come up with "non-binding criteria for the application of Articles 290 and 291".

However, a letter exchange between the parliament and council, made public at the request of this website, showed that there has been some delay in the start of the talks.

On 28 March 2017, EU parliament president Antonio Tajani wrote a letter to Malta's parliamentary secretary for the EU presidency, Ian Borg.

"Parliament's negotiators are keen to move forward on this important matter, the outcome of which could help remove an obstacle during legislative negotiations, which can become blocked on the issue of delegated and implementing acts," wrote Tajani.

He asked Borg to start negotiations with MEPs Jozsef Szajer and Richard Corbett, who had been appointed as parliament's negotiators in June 2016.

"I would be grateful if you could therefore appoint your negotiators as soon as possible," Tajani added.

He said he hoped talks could start "during the next session in Strasbourg", which, at the time of writing, was the week of 3 April 2017.

But the parliament president didn't get a response from Borg until 5 May 2017.

Borg wrote that during Malta's six-month presidency, which was in the first half of this year, he was the negotiator.

"To that purpose, I regret that we were unable to meet during the April session of the European Parliament in Strasbourg, but would wish to express our availability to organise such a meeting in one of the next plenary sessions," he said.

There had been two more Strasbourg sessions during the Maltese presidency since Borg's letter, but according to a council source, a meeting never happened.

Since then, Estonia has taken over the presidency of the council as of 1 July.

According to spokeswoman Tiina Maiberg of the Estonian foreign affairs ministry, deputy minister for European Affairs Matti Maasikas will meet MEPs on Tuesday "at the first political meeting on the criteria for delineation between delegated and implementing acts".

The parliament has adopted a text in 2014 in regard to what it thinks should be part of the criteria. This will serve as a mandate for the two MEP negotiators.

The council, by contrast, has not produced a position paper or anything similar.


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