bs_bs_banner European Law Journal, Vol. 19, No. 1, January 2013, pp. 42–56. © 2013 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA Non-Legislative Rule Making after the Lisbon Treaty: Implementing the New System of Comitology and Delegated Acts Thomas Christiansen* and Mathias Dobbels** Abstract: The reform of comitology and the introduction of the new instrument of delegated acts in the Lisbon Treaty were followed by protracted negotiations on the implementation of both articles. This article examines the resultant system that has emerged for both types of non-legislative instruments. In the area of implementing acts, a new regulation sets out important changes: a reduction in the number of procedures, the extension of the scope to trade defence measures and the replacement of a referral to the Council with a new appeal committee. With respect to delegated acts, the search for an overarching framework resulted in a Common Understanding. Our analysis not only demonstrates the need to go beyond the treaty provisions in understanding the nature of non-legislative rule making in the EU, but also emphasises the importance of informal procedures and non-binding agreements in fully assessing the nature of non-legislative rule making in this area. I Introduction ‘Comitology’, the system of legislative oversight of implementing powers delegated to the European Commission, has long been a mainstay of the EU’s administrative system. From the early 1960s onwards, Member States accompanied the delegation of powers to the Commission with the establishment of implementing committees that would ‘assist’ the Commission in the execution of these powers. Effectively, these comitology committees provided a mechanism for scrutiny by national administra- tions over the way in which the Commission sought to implement delegation. While this system has generally been considered effective in that it facilitated the involvement of Member State representatives in the adoption of thousands of implementing acts annually, it has also been the source of occasional, and recently increasing, tensions between the European Parliament (EP) and the other institu- tions. With the creation of the co-decision procedure in the Maastricht Treaty and the subsequent expansion of co-legislative powers for the EP, the Member States’ monopoly over the scrutiny of implementing acts became a bone of contention * Jean Monnet Professor of European Institutional Politics at the Department of Political Science at Maastricht University. **PhD Fellow at the Department of Political Science at Maastricht University. January 2013 Non-Legislative Rule Making after the Lisbon Treaty between the two legislative institutions. A series of intermediate reforms throughout the 1990s and 2000s provided the EP with limited rights to information and powers of scrutiny, but inter-institutional tensions persisted with the EP’s demand for legislative equality to be matched by equality with regard to the scrutiny of the Commission’s delegated powers. The Lisbon Treaty marked a milestone in this regard for two reasons: first, it established a new legal base in the treaty for the work of comitology committees, replacing the use of the consultation procedure with the ordinary legislative procedure for the adoption of the general rules and procedures under which the Commission has to submit its draft implementing acts to the committees (Article 291, Treaty on the Functioning of the European Union (TFEU)); and second, it created an entirely new instrument of ‘delegated acts’ that are directly scrutinised by the legislative institu- tions, without any use of comitology (Article 290 TFEU). Both articles, individually and taken together, give the Council and Parliament equal status in the treaty with regard to the scrutiny over implementing and delegated acts, and thus constitute a certain finalité in terms of the EP’s quest. The history of inter-institutional tensions in comitology over the past 20 years demonstrates that disagreements about non-legislative rule making can capture the interests of the legislative institutions and have the potential for disrupting Union decision making. Far from being ‘low politics’, comitology—the procedures as well as the substantive decisions taken through its procedures—has often been politicised. This makes it important to study the implications of the new post-Lisbon system of delegated powers, and to ask what impact the above changes will have on the nature of non-legislative rule making. In the following, we briefly review the key elements of the reforms introduced by the Lisbon Treaty and its subsequent implementation, before then examining in more detail the kind of proceduralisation with respect to the two instruments—delegated acts and implementing acts—that are now being used in the EU to delegate imple- menting powers to the European Commission. A final section will compare the degree of formalisation that has been developed in either case and addresses its significance in terms of the wider practice of non-legislative rule making in the EU. II Background: The Lisbon Treaty Reform of Delegated Powers A Articles 290 and 291 TFEU The Lisbon Treaty establishes a new legal basis for the comitology procedures and makes the distinction between delegated and implementing acts. Article 290 of the TFEU provides for the possibility to delegate the power to adopt non-legislative delegated acts that are of ‘general application’, and ‘supplement or amend non- essential’ elements of the basic legal act to the European Commission.1 The article also provides for post hoc control to be exercised by the EP and the Council, either through the right to revoke the delegation or the right to object to the adoption of a specific delegated act within a time limit set by the basic legal act. Article 291 TFEU, on the other hand, confers the right to implement legislation to the Member States.2 1 European Union, Consolidated Treaties (Publications Office of the European Union, 2010), at 172. 2 ibid at 174. © 2013 Blackwell Publishing Ltd. 43 European Law Journal Volume 19 However, where there are uniform conditions for implementation, it shall in principle be conferred to the Commission—except for duly justified specific cases and matters of common foreign and security policy and defence for which the Council is respon- sible. In all other cases, however, neither the Council nor the EP has the right to substantially control the Commission’s exercise of these implementing powers, which is the prerogative of the Member States. This is an important innovation of the Lisbon Treaty, as under the previous regime the Council still had a decision-making role in case certain thresholds were not met in the committee that exercised control on the proposed act.3 Article 291 TFEU also requires that regulations are adopted under the ordinary legislative procedure in order to lay down the rules and general principles with mechanisms for control by Member States of the Commission’s exercise of the implementing powers, whereas Article 290 TFEU stands on itself and requires no formal implementing measures. It is the first time the EP is co-legislator on such a regulation, as in the past the mechanisms for control were adopted through Council decisions. The distinction between delegated and implementing acts may be clear at first reading, but a potential source of confusion is that—as opposed to Article 290 TFEU on delegated acts—Article 291 TFEU does not define what an implementing act is but rather refers to its trigger, namely ‘uniform conditions for implementing legally binding Union acts’.4 However, if there are ‘uniform conditions’ of general applica- tion to supplement or amend a legislative act, the correct instrument would be a delegated act. The focus to make the distinction, therefore, lies in the verbs ‘amend’, ie making formal changes to a text (deleting, replacing or adding non-essential ele- ments), and ‘supplement’, ie adding new non-essential rules or norms, as opposed to ‘implement’, where no new rules or norms are established and the act is supposed to give effect to the rules that have been laid down in the basic legislative act.5 In other words, the main difference is whether there is simply a need to adopt acts to give effect to the rules set by the legislator or whether it is necessary that the Commission has the power to change (amend) or add (supplement) some of the rules of the legislation that are of a non-essential nature. In its guidelines to its services, the European Commission6 concludes that a handy way of making the distinction lies in asking the question ‘what’ Member States should do, which constitutes a delegated act, as opposed to ‘how’ Member States are to act to carry out the obligations set by a legislative act, which would constitute an implementing act. It is important to 3 In the management procedure, which was mainly used for the implementation of agricultural measures and financial support programmes, the Commission could adopt the implementing measure only if there was no qualified majority against the proposal. In case this threshold was met, the matter was to be referred to the Council, who had the opportunity of adopting a different decision. Under the regulatory procedure, instead, measures could only be adopted by the Commission if a qualified majority of Member States was in favour. Otherwise, the act had to be forwarded to the Council, who could ultimately adopt the act. This procedure, used for all implementing measures having a ‘legislative impact’, especially in the field of health and safety of persons, foresaw also the possibility for the EP to exercise its right of scrutiny in case of lack of positive opinion within the Committee. 4 See also J. Bast, ‘New Categories of Acts after the Lisbon Reform: Dynamics of Parliamentarization in EU Law’, (2012) 49(3) Common Market Law Review 885–927.