The reasoning behind delegated acts: a Commission perspective

The European Commission recognises that the decision to use delegated or implementing acts is “a matter of political choice” for the co-legislators within the boundaries of the treaty. At the same time, it considers that delegated acts provide “speediness and effectiveness”, suggesting there is a preference for delegated acts.

The Commission will not admit it, but leading experts underlines that the Commission prefers delegated acts because they are adopted without formal committee involvement. Member States experts are to be heard, but it does not require negotiations in the same way as with co-decision or committees in implementing acts.

Another reason for preferring delegated acts is the high voting threshold for revocation or rejection. The Council can only reject the delegated act with super-qualified majority voting (72 pct. of Member States, consisting of 65 pct. of the population) or absolute majority in the European Parliament (361 Members of the European Parliament – MEPs). Something that has rarely happened. This combined with the lack of committee involvement means that the Commission has a large room for manoeuvre.

What happens when the co-legislators change the act?

The Commission is bound to loyally defend the original proposal – so called collegiality. Any changes to the type of act by the co-legislators should be signalled internally in the Commission to take action if needed. However, the Commission recognises there is “no legal obstacles to the Commission accepting” a change of the type of act, unless the change constitutes a “manifest error”. Reminder, the case-law definition of manifest error provides significant flexibility to choose between delegated and implementing acts.

If the co-legislators are to suggest that non-binding measures should be adopted with secondary legislation, the Commission are to signal it internally as a “serious concern”. The result being a firm opposition to the developments. The reasoning being that for delegated acts, the treaty specifies that they should be used for legally binding acts. For implementing acts, non-binding measures would not be able to achieve the objective of uniform implementation of EU law.

The Commission accepts deadlines for adoption

Interestingly, there does not appear to be a position from the Commission on including deadlines for adoption of the secondary acts. The deadlines have been included as part of a trend between the co-legislators to reach final agreements. It is technically feasible to include deadlines in delegated acts because the Commission propose and adopt the act simultaneously. But the deadlines can pose a risk to the quality of the act because the Commission might not have time to assess all relevant feedback and carry out desired assessment. It might leave the Commission with the choice between lower quality law or a risk of being taken to court.

For implementing acts, deadlines can even be absurd given it requires committee involvement and often approval by Member States before adoption. It is to some extent out of the hands of the Commission to ensure timely adoption.

The Commission has most likely realised that the secondary acts and deadlines require significant amounts of resources and very technical know-how. The haze surrounding the processes of secondary legislation also have shown to cause more uncertainty for companies than first anticipated. The result being difficulty for companies to follow the developments on the dossier, provide input at the right time and anticipate the end result. All something that works against robust and future-proof legislation.?

The sciences behind choosing the type of secondary act

It is well-known fact amongst experts that the European Commission and European Parliament prefer delegated acts, while the Council prefer implementing acts. Officially, the Commission underlines the need and use of the non-binding criteria from 2019 to determine if it should be a delegated or implementing act. However, the guidelines remain vague, which has led to an overarching rule of thumb within the Commission; if the empowerment is about “what” (e.g. what information is to be reported) it should be delegated acts. If a question starting with “how” can be answered (e.g. how to report information), it should be implementing acts.

Lastly, it is worth noting that secondary legislation can only be about non-essential elements, but can still be highly political and have significant economic, environmental or social impacts. However, it is mentioned in the guidelines to the Commission services that this should not dissuade the use secondary legislation – the important part being it is only about non-essential elements. The politicisation and real effect on the economy has and will be seen on a number of occasions, including the delegated act defining nuclear power as green under the Taxonomy Regulation and the reporting requirements under Corporate Sustainability Reporting Directive.

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