In 2021, the EU adopted 2,207 new legal acts. This would mean that on an average working day, approximately nine new legal acts were adopted. These numbers show that companies should pay close attention to the legislative developments in Brussels. At the same time, they should look beyond the headlines. In fact, while major legislative initiatives under the EU Green Deal or the Beating Cancer Plan create significant opportunities and challenges for businesses across the EU, brand-new regulations, directives or decisions only represent a minor fraction of the EU’s legislative output. The vast majority of all new laws – 1,208 in 2021 to be precise – are so-called implementing and delegated acts. Given the proliferation of these types of legislation, companies should duly consider what they are, how they affect their business, and how they can influence their adoption.
Implementing and delegated acts
Technically, there are three levels of legislation in the EU. Primary legislation encompasses the treaties on which the EU is founded and bases its daily operations. Secondary legislation concerns the regulations, directives, decisions, recommendations, and opinions usually adopted through the ordinary legislative procedure (OLP). These provide the ‘framework’, definitions, principles and general contents of the basic law. ‘Gaps’ are purposefully left open in the basic law for future political deliberation or implementation. This is the role of implementing and delegated acts. Formally, they are part of the secondary legislation, but in practice, they rank lower in hierarchy than the basic regulations and directives which they supplement. Delegated and implementing acts fulfil or support the implementation of secondary legislation, by clarifying administrative or technical details. The basic law specifies the possible scope and contents of the delegated or implementing act. In the case of the EU Taxonomy, for instance, the basic legislation created the Taxonomy, whereas the delegated act determines the criteria under which specific industrial activities can be labelled as ‘sustainable’ under the Taxonomy system.
The main difference between an implementing and a delegated act is that the former creates uniform conditions for the implementation of existing EU legislation; while the latter may add new elements to the basic law, so long as these amendments or additions do not affect its essential content. In practice, however, the choice between delegated and implementing acts does not always occur based on ‘objective’ legal arguments. This has to do also with the role and influence that the Member States and the European Parliament have in the adoption process.
Delegated acts are adopted by the Commission on its own. Once adopted, the European Parliament and the Council have the power to reject either the delegated act in question or to take away the Commission’s right to propose a delegated act altogether. Because of the limited power of the European Parliament and the Member States, an agreement was reached between the Commission, the European Parliament and the Council in 2016, which stipulates that the Commission must consult with experts throughout the secondary law-making process. Member States nominate experts, which will convene as a group to give their opinion on the Commission’s proposals. Although the expert groups have no formal say in the law-making process, the Commission must draw conclusions from its meetings with the experts and summarise the consultation process in a memorandum accompanying the adopted delegated act.
Implementing acts are adopted according to a specific procedure in which committees composed of Member State sectorial experts – hence, the word ‘comitology’ – discuss technical aspects to support the implementation of the basic law, leaving the Council to specialise in resolving the truly political issues. The European Parliament has three months to object to a comitology decision, in which case the Commission will have to introduce a new proposal, either via the comitology procedure again, or via the OLP. Comitology committees themselves are also able to give a negative opinion on the Commission’s proposal. If this happens, the proposal will be sent to the Council, where the Member States will have to take a political decision.
Different views on the procedural strengths and supposed shortcomings of comitology
Many observers of EU politics argue that there is an ongoing struggle between the European Parliament, the Council and the Commission regarding the adoption of implementing and delegated acts. The Commission often tries to give its own political imprinting to legislative solutions. For the Council, the aim is to maintain Member States’ control over the legislative process. Finally, the European Parliament seeks to maximise its say in the legislative process as the only direct representative of EU citizens. However, the European Parliament is limited by the fact that it can only monitor the secondary legislative process and express a veto after a decision has been made and cannot influence the secondary legislative process through formal means. However, as an observer in the process, it is sometimes able to stall or obstruct the process by using institutional and procedural prerogatives.
This limited role of the European Parliament, along with the opacity of the process towards the general public, has been a concern for some commentators. They argue that the procedures for the adoption of delegated and implementing acts became a way for the Member States to maintain political oversight on the Commission. On the other hand, others argue that this criticism should be nuanced, since delegated and implementing acts only serves to ensure the practical completion and implementation of a previously adopted law.
Of course, there is no single answer to the debate: depending on the topic and nature of the issue at stake, adopting delegated or implementing acts can be a simple matter of implementing a common-sensical practical solution. Take for instance the reporting format of certain information by the Member States to the Commission. Yet, if we imagine a more contentious issue – say, the question of whether nuclear energy and natural gas can be labelled ‘sustainable’ – the political implications are much wider and the European Parliament and the Council may wish to obtain a larger say.
Lobbying during the adoption process for delegated and implementing acts
Over time, lobbyists have gained considerable access to the decision-making processes surrounding delegated and implementing acts. One option is to influence the Commission before it introduces a draft measure, so that specific interests are reflected or protected in the draft proposal. However, the procedures for the adoption ofdelegated and implementing acts may heavily change the draft proposal. That is why it is important to create a solid network among Member States representatives and map the membership of different expert and working groups. Decisions in expert groups and comitology are taken by consensus whenever possible, and the Commission has to take into consideration the opinions of committee members. A specific interest supported by a larger number of Member States has higher chances of being protected throughout the comitology procedure, and this applies both for individual companies, business associations, NGOs, and any other entity trying to promote a policy or protect an interest. As a last resort, lobbyists may try to influence the Council and the Parliament to increase the recognition of their interests among policymakers, since these institutions may veto the proposal. In that case, the whole process starts over again, creating new opportunities to access the decision-making process. However, given the weight of a veto on the legislative process, the success rate at this stage may be lower and require the mobilisation of enormous efforts.
Lykke Advice has years of experience in lobbying the various EU institutions and legislative procedures, including at the expert group and comitology stage. We can help you to create a network in Brussels, we will inform you of legislative developments, and we can help you to make policymakers aware of the challenges and opportunities of your company. Feel free to reach out to us!