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21st Apr 2019

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.

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  • 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.

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