Delegated and implementing acts
Delegated and Implemented acts are EU acts that are of a non-legislative nature but are legally binding. This means they are (usually) adopted by the European Commission to update, amend or supplement EU legislative acts (EU regulations and directives) without a formal legislative procedure.
Delegated acts are non-legislative instruments which the Commission is allowed to adopt when the EU legislator (Council/European Parliament) has delegated that ability to the Commission through an EU legislative act. The purpose of these acts is to supplement or amend specific elements of legislative acts and are by nature non-essential. This means that they are not necessary for a certain regulation or directive to come into force. In this regard, delegated acts can be seen as an extra layer of a certain EU regulation or directive.
Adoption of delegated acts
The Commission’s role is to prepare draft delegated acts. After a 4-week open consultation period, in which stakeholders and citizens can provide feedback on the draft delegated acts, the Commission consults expert groups which are composed of representatives from the Member States. After consulting stakeholders and the expert groups, the Commission can adopt a delegated act.
After a delegated act is adopted, the European Parliament and the Council have the ability to veto this adopted act if they object to it. Either a veto by the Parliament or Council will revoke a delegated act. When no veto is cast, the delegated act enters into force.
In the interinstitutional agreement on better lawmaking of 2016, the EU institutions decided to establish an interinstitutional register of delegated acts which provides up-to-date information on the status of (draft)delegated acts to promote transparency about and insight into the adoption of delegated acts.
Implementing acts are also non-legislative instruments and are generally about essential implementing measures of an EU legislative act. Implementing acts are especially used if uniform conditions across the EU Member states are needed for the implementation of an EU legislative act. Implementing acts are subject to “comitology” which is a loosely defined body of around 250 committees.
These committees are thematically organised and consist of representatives from the Member States. The comitology system means that the Commission cannot act on its own and needs approval from the national experts in these comitology committees. Before a comitology committee votes on a draft implementing act, stakeholders and citizens can provide feedback during a 4-week consultation period. The collected feedback during this consultation is also presented to the committee.
Adoption of implementing acts
There are two types of committees with corresponding adoption procedures.
The advisory committee – which adopts implementing acts through an advisory procedure. In this procedure a simple majority of the committee is sufficient. However, while the Commission has to take the vote into account, it is not binding. The Commission can thus decide to adopt an implementing act, even with a negative opinion by the relevant committee is cast.
The examination committee – adopts acts through the examination procedure. In this procedure, the committee needs to cast a qualified majority in favour to issue a positive opinion or a qualified majority against for a negative opinion.
A positive opinion by the committee results in the adoption of the proposed implementing act. A negative opinion prevents adoption. In that case, the Commission has two options. It can amend the proposed implementing act and introduce it again to the committee, or it can present the draft implementing act to an Appeal Committee, consisting of the deputy permanent representatives of the Member States. Adoption is then possible under similar circumstances as in a regular examination committee.
When the examination committee can’t reach a positive opinion or a negative opinion, the Commission can however still adopt the implementing act. Certain circumstances can limit this, for example, if the corresponding EU legislative act explicitly prohibits this.
Both implementing as delegating acts are published as a draft on the website “Have your say”. Draft versions of delegating and implementing acts are published and available for open feedback for a period of four weeks.
A significant amount of EU regulations and directives are supplemented by these non-legislative delegated or implementing acts. Therefore, these consultations can be a valuable and additional venue to provide feedback on a certain EU policy issue or regulatory bottleneck.