Accountability for Delegated and Implementing Acts after the Treaty of Lisbon

European Law Journal

Volumn 18, Issue 3, 2012, Pages 427-460

  Peers, Steve ^a   Costa, Marios ^b  

^a UNIVERSITY OF ESSEX   (United Kingdom)

^b CITY UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84859850762     PISSN: 13515993     EISSN: 14680386     Source Type: Journal    
DOI: 10.1111/j.1468-0386.2012.00607.x     Document Type: Article

References (154)

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24. D. Oliver, Government in the United Kingdom: The search for Accountability, Effectiveness, and Citizenship (Oxford University Press, 199124.
25. C. Lord, 'The Hidden Public Sector: The "Quangocratization" of the world', in G. Kaufmann, G. Majone and V. Ostrom (eds), Guidance, Control and Evaluation in the Public Sector (de Gruyter, 1986 766.
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27. R.W. Grant and R.O. Keohane, 'Accountability and Abuses of Power in World Politics', (2005) 99 American Political Science Review 29
28. M. Bovens, D. Curtin and P. Hart, The Real World of EU Accountability, What Deficit? (Oxford University Press, 2010
29. A. Arnull, 'Introduction: The EU's Accountability and Legitimacy Deficit', in A. (Oxford University Press, Arnull and D. Wincott (eds), Accountability and Legitimacy in the EU 2002 1.
30. For a recent summary of this argument with further references, see P. Craig, 'Integration, Democracy and Legitimacy', in P. Craig and G. De Burca (eds), The Evolution of EU Law (Oxford University Press, 2nd edn, ), at 14. Similarly, accountability to the public and the EP must be secured regardless of whether comitology is conceived as a system of intergovernmental bargaining, deliberative supranationalism, or both: see, with further references, J. Blom-Hansen and G. Brandsma, 'The EU Comitology System: Intergovernmental Bargaining and Deliberative Supranationalism?' (2009) 47 Journal of Common Market Studies 719.2011
31. P. Schmitter, How to Democratize the EU and Why Bother? (Rowman & Littlefield, 2000).
32. P. Craig, EU Administrative Law (Oxford University Press, 2006359.
33. A. Frost, 'Restoring Faith in Government: Transparency Reform in the United States and the EU', (2003) 9 European Public Law 87.
34. F. Mancini and D. Keeling, 'Democracy and the European Court of Justice', (1994) 57 Modern Law Review 175, 181.
35. Case C-353/99P, Hautala v Council[2001] ECR I-9565, Opinion of Advocate-General Leger, para. 52.
36. I. Harden, 'Citizenship and Information', (2001) 7 European Public Law 165.
37. S. Kierkegaard, 'Open Access to Public Documents-More Secrecy, Less Transparency!' (2009) 25 Computer Law & Security Report 3-4.
38. Case T-92/98, Interporc v Commission ECR II-3521, para. 39.1999
39. Reg 1049/2001, OJ L145/43.2001
40. Case T-188/97, Rothmans v Commission ECR II-2463.1999
41. Code of conduct, [1993] OJ L340/41, adopted by Commission Decision 94/90, OJ L46/58.1994
42. See further III.C infra.
43. C. Bergstrom, Delegation of Powers in the European Union and the Committee System (Oxford University Press, 2005).
44. Case 9/56, Meroni & Co, Industrie Metallurgiche SpA v High Authority[1958] ECR 133; Bovens
45. A. Türk, 'Transparency and Comitology', in C. Demmke and C. Engel (eds), Continuity and Change in the European Integration Process (European Institute of Public Administration, 2003 175.
46. C. Harlow, Accountability in the European Union (Oxford University Press, 2002
47. Assistance and control are, however, by definition contradictory and the whole idea of helping and controlling may thus be counterintuitive.
48. It should be noted that the Treaties do not provide for the creation of specific comitology committees (as distinct for the adoption of general rules governing those committees). Each committee is established by secondary measures on an ad hoc basis.
49. B. Driessen, 'Delegated Legislation after the Treaty of Lisbon: An Analysis of Article 290 TFEU', (2010) 35 European Law Review 837-838.
50. Council Decision 87/373/EEC, OJ L197/33.1987
51. Council Decision 1999/468/EC, OJ L184/23.1999
52. Council Decision 2006/512/EC, [2006] OJ L200/11. On the development of the comitology rules, see: W. Wessels, 'Comitology: Fusion in Action. Politico-Administrative Trends in the EU system', 5 Journal of European Public Policy 2091998
53. C. Joerges and E. Vos, EU Committees: Social Regulation, Law and Politics (Hart, 1999)
54. C. Joerges and J. Neyer, 'Transforming Strategic Interaction into Deliberative Problem-Solving: European Comitology in the Food Stuff Sector', (1997) 4 Journal of European Public Policy 609
55. E. Vos, 'The Rise of Committees', (1997) 3 European Law Journal 230
56. European Commission, 'Report from the Commission on the working of committees during 2009 (2010) 354
57. W. Van Gerven, 'Which Form of Accountable Government for the EU?' (2005) 36 Netherlands Yearbook of International Law 227
58. M. Alfe and T. Christiansen, 'Institutional Tensions in the Evolution of the Comitology System', in T. Christiansen, J. M. Oettel and B. Vaccari (eds), 21st Century Comitology: Implementing Committees in the Enlarged European Union (European Institute of Public Administration, 2009) 49.
59. Case 302/87, EP v Council ECR 5615 para. 29; the EP's action was inadmissible.1988
60. Case C-259/95, EP v Council ECR I-5303.1997
61. The Decision also included new rules on public accountability: see III.C below.
62. P. Craig, 'Democracy and Rulemaking within the EC: An Empirical and Normative Assessment', (1997) 3 European Law Journal 105.
63. European Commission, White Paper on European Governance (COM, 31 2001), 428
64. Art 2(2) as inserted by the amendment2006
65. Art 5a(2) as inserted by the amendment2006
66. Art 5a(3) as inserted by the amendment (ibid). The Council can block the measure by a QMV against, and the EP can block it if a majority of its members votes against.2006
67. There was an initial list of 25 measures to be amended urgently ([2006] OJ C255/1). The remaining acts were amended by 'omnibus' legislation: Regs 1137/2008 ([2008] OJ L311/1), 1103/2008 ([2008] OJ L304/80), 219/2009 ([2009] OJ L87/109) and 596/2009 ([2009] OJ L188/14). A proposal for a fifth omnibus Regulation (COM 142, 30 March 2009) became obsolete because of the entry into force of the Treaty of Lisbon.2009
68. One relating the Water Framework Directive [2000] OJ L327/1 and five to the inclusion of active substances under the Biocides Directive (Dir 98/8/EC ([1998] OJ L123/1). See the Commission's report on comitology for the year 2008 (COM (2009) 33 7-8.
69. The opposing Resolution was adopted in the European Parliament plenary session on 16 December 2008 (P6_TA-PROV(2008)0607). In 2008, the EP and Council between them blocked 7 RPS measures of 71 (COM (2009) 335
70. The EP blocked one RPS measure out of 131, whereas the Council blocked none.
71. Case C-355/10, EP v Council, pending. The EP had mustered a majority of the vote in plenary against the draft measure but not the majority of its members, as required by the RPS rules.
72. House of Lords, Select Committee on European Communities, Delegation of Powers to the Commission: Reforming Comitology, Third Report, 2 Feb 1999.
73. Case T-111/00, British American Tobacco v Commission ECR II-2997 para. 38.2001
74. ECR II-335. Case T-144/05, Muniz v Commission[2008]
75. Cases T-121/05, Borax v Commission[2009] ECR II-27* and T-166/05, Borax v ] ECR II-28 Commission[2009
76. The words 'duly justified' are new as compared with the previous Art 202 EC. Note also that, as before, the general framework for the control of implementing measures only applies to the Commission's adoption of such measures, not the Council's.
77. The exclusion of the CFSP from the scope of Art 290 TFEU is implicit in Art 24(1) TEU, which states that 'legislative acts' cannot be adopted as regards CFSP matters, whereas Art 290 TFEU only applies where 'legislative acts' are adopted (see below).
78. T should also be noted that the 2006 comitology rules contain further definitions of 'amending' legislative acts ('inter alia by deleting some of those elements' and of 'supplementing' those acts ('by the addition of new non-essential elements'). Arguably, these definitions are still relevant by analogy when determining the scope of the delegated acts procedure.
79. Art TFEU defines a 'legislative act' as one adopted under either a special legislative procedure or the ordinary legislative procedure.289(3
80. Art 2(2), as inserted by the amendment2006
81. P. Ponzano, ' "Executive" and "Delegated" Acts: The Situation after the Lisbon Treaty', in S. Griller and J. Ziller (eds), The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? (Springer, 2008), at 135; European Parliament, 'Report (2010/2021(INI)). on the power of legislative delegation', 5 May 2010
82. COM (2009) 673, 9 Dec 2009
83. See IV.B and IV.C below.
84. P. Craig, The Lisbon Treaty: Law, Politics, and Treaty Reform (Oxford University Press, 2010 63
85. P. Craig, 'The Role of the European Parliament under the Lisbon Treaty', in Griller and Ziller
86. B. de Witte, 'Legal Instruments and Law-Making in the Lisbon Treaty', in Griller and Ziller (eds), idem at 79. In practice, there is an ongoing dispute in particular about the application of Art 290 to EU external spending: see Council doc 8311/11, 28 March 2011 and COM (2010) 786-789, 13 December 2010.
87. It should also be noted that whereas the Council could theoretically have given itself the power to adopt measures within the scope of the RPS procedure, in the unlikely case that the EP had agreed to this, it cannot be given such power to adopt delegated acts.
88. See the Commission's statement, OJ L55/19. [2011]
89. See Council doc 18097/10, 22 December 2010, which lists 153 such measures. The Commission plans to table most of these proposals by mid2012.
90. For instance, see: COM (2010) 738 final, 10 December 2010; COM (2010) 733 final, 10 December 2010; and COM (2010) 728 final, 9 December 2010.
91. COM (2011) 82, 7 March 2011. See also COM (2011) 349, 15 June 2011.
92. See Commission doc. COM (2009) 673
93. D. Curtin, Executive Power of the European Union: Law, Practices, and the Living Constitution (Oxford University Press, 2009), at 123.
94. Reg 973/2010, [2010] OJ L285/4, Arts 6-10. There are further proposals to this end: see, for instance, the proposal for a Common Consolidated Tax Base (COM (2011) 121, 16 March 2011), 127-130.
95. See Case C-133/06, EP v Council[2008] ECR I-3189. On this issue, see H. Hofmann, 'Legislation, 482, at Delegation and Implementation under the Treaty of Lisbon: Typology Meets Reality', (2009) 15 European Law Journal 495-496.
96. See particularly Cases 16/88, Commission v Council[1989] ECR 3457 and C-257/01, Commission v Council ECR I-345.2005
97. Although the words 'duly justified' have been added to Art 291 TFEU, it is doubtful that they add anything to the prior case-law on this issue: see Case C-257/01 (ibid), paras. 50 and 51. However, see the view of the Advocate-General in that case (at n 35) that the wording of the Draft Constitutional Treaty (which is identical to Art 291 TFEU on this point) is 'a little more specific.'
98. Cases C-378/00, Commission v EP and Council ECR I-937, C-122/04, Commission v EP and Council[2006] ECR I-2001 and C-443/05, P Common Market Fertilizers v Commission[2007] ECR I-209.2003
99. See further IV.C below.
100. However, note the word 'should' in points 11 and 15 of the preamble.
101. However, the case-law on the definition of 'general scope
102. See Cases C-156/93, EP v Commission ECR I-2019 and C-417/93, EP v Council[1995] ECR I-1185.1995
103. See, for instance, Cases: C-296/93 and C-307/93, France and Ireland v Commission[1996] ECR I-795; C-303/94, EP v Council[1996] ECR I-2943; C-159/96, Portugal v Commission ECR I-7379; C-93/00, EP v Council[2001] ECR I-10119; C-403/05, EP v Commission[2007] ECR I-9045; C-14/06 and C-295/06, EP v Commission[2008] ECR I-1649; and C-355/10, EP v Council, pending.1998
104. See Case C-263/95, Germany v Commission[1998] ECR I-441 and Joined Cases C-465/02 and C-466/02, Germany and Denmark v Commission[2005] ECR I-9115. As regards the advisory procedure, see Case C-86/03, Greece v Commission ECR I-10979.2005
105. Commission v Council[1989] ECR 3457, para. 11; Case C-25/70, Einfuhr und Vorratsstelle Getreide v Koster ECR 1161; Case C-240/90, Germany v Commission[1992] ECR I-5383; see also the discussion of the extensive prior case-law in Hofmann1970
106. See Case C-359/92, Germany v Council[1994] ECR I-3681, para 37: '[i]n certain fields, and particularly in that of product safety, the approximation of general laws alone may not be sufficient to ensure the unity of the market.'
107. See also Case C-66/04, UK v Parliament and Council ECR I-10553.2005
108. Which refers to 'implementing acts of general scope' as distinct from 'other implementing acts.'
109. For instance, see the Commission Decision on the approval of national measures for preventing the introduction of ostreid herpesvirus 1 μ?ar (OsHV-1 μ?ar) into certain areas of Ireland and the UK ([2011]
110. stating that the EP has gained an 'important power that it did not have hitherto.'
111. European Parliament Press Release available at:
112. Furthermore, to take account of holidays, the Commission 'shall not transmit any delegated acts' from 22 December until 6 January and from 15 July until 20 August.
113. This 'should be' limited to 'exceptional cases, such as security and safety matters, the protection of health and safety, or external relations, including humanitarian crises.'
114. The following summary takes account of all adopted legislative acts listed in the Council's register of documents which refer to 'Article 290', as of 28 September It does not take account of legislative acts which have not yet been formally adopted, even where the legislation has been agreed in principle.2011
115. Reg 438/2010, OJ L132/3.2010
116. Dir 2010/73 amending the prospectus and transparency Directives ([2010] OJ L327/1); Dir 2010/76 on capital requirements and supervisory review of remuneration policies ([2010] OJ L329/3); Dir 2010/78 amending EU financial legislation as regards the European Supervisory Authority ([2010] OJ L331/120); Reg 1093/2010 establishing a European Banking Authority ([2010] OJ L331/12); Reg 1094/2010 establishing a European Insurance and Occupational Pensions Authority ([2010] OJ L331/48); Reg 1095/2010 establishing a European Securities and Markets Authority OJ L331/84); Reg 514/2011 on credit rating agencies ([2011] OJ L 145/30); and Dir 2011/61 on alternative investment fund managers ([2011] OJ L 174/1). However, there is a special rule in the four financial supervision measures as regards the period to review draft delegated acts: see the discussion below.2010
117. Dir 2010/35 on transportable pressure equipment ([2010] OJ L165/1), Reg 211/2011 on the European citizens' initiative ([2011] OJ L65/1); and the revised Eurovignette Directive (Council doc PE/Cons 24/11, 15 July 2011
118. Dir 2010/31 on the energy performance of buildings ([2010] L153/13) provides for the powers conferred as regards Art 5 of the Directive to expire on 30 June 2012; Dir 2010/40 on intelligent transport systems OJ L207/1) confers power for a fixed period of seven years; and Reg 911/2010 on the European Earth monitoring programme ([2010] OJ L276/1) confers powers only until the end of 2013.2010
119. Dir 63 on the protection of animals used for scientific purposes ([2010] OJ L276/33) provides for an eight-year period. The report on the delegation is due one year before the end of that period. Reg 995/2010 on the obligations of operators who place timber and timber products on the market ([2010] OJ L295/23) provides for a seven-year period, with a report due three months before the end of three years after the date of application of the Regulation.2010
120. Reg 1246/2010 concerning aspects of fisheries control and enforcement OJ L348/17), which provides for a three-year period.2010
121. Reg 305/2011 ] OJ L88/5).laying down harmonised conditions for the marketing of construction products ([2011
122. Reg 691/2011 on environmental accounts ([2011] OJ L192/1)
123. Reg 692/2011 on tourism statistics ([2011] OJ L192/17); and the Reg on textile fibre names and marketing (Council doc PE/Cons 21/11, 6 July 2011).
124. Dir 2010/45 on standards of quality and safety of human organs intended for transplantation ( OJ L207/14).2010
125. In particular: Dir 2010/30 on energy-labelling OJ L153/1); Reg 640/2010 establishing a catch documentation programme for bluefin tuna ([2010] OJ L194/1); Dir 2010/65 on reporting formalities for ships ([2010] OJ L283/1); Dir 2010/75 on industrial emissions (integrated pollution prevention and control) ([2010] OJ L334/17); Reg 1090/2010 on statistical returns in respect of carriage of goods and passengers by sea ([2010] OJ L 325/1); Dir 2010/84 on pharmacovigilance ([2010] OJ L348/74); Reg 1235/2010 on pharmacovigilance ([2010] OJ L348/1); Reg 304/2011 amending Council Reg 708/2007 concerning use of alien and locally absent species in aquaculture ([2011] OJ L88/1); Dir 2011/24 on patients' rights in cross-border healthcare ([2011] OJ L88/45); Reg 510/2011 on emission performance standards for new light commercial vehicles ([2011] OJ L145/1); Dir 2011/62 on counterfeit medical products ([2011] OJ L174/74); and Dir 2011/65 on the use of hazardous substances in electrical equipment ([2011] OJ L174/88). However, note that Dirs 2010/30 and 2011/62 contain particularly detailed criteria regulating the adoption of delegated acts.2010
126. The preambles to the financial services measures make this point in more detail, referring inter alia to the relevant declaration (no 39) on this point in the Final Act of the Treaty of Lisbon.
127. As regards the urgency procedure, the Commission had suggested a shorter period of six weeks to review the adopted act, but the Council and EP insisted on the normal review period in Dir 2010/45
128. Commission Delegated Regs 1059-1062/2010, [2010] OJ L314/1, 17, 47 and 64 and 626/2011, OJ L178/1.2011
129. See the proposals for the delegated acts, in Council docs 14246/10, 14251/10, 14253/10 and 14256/10, all 29 September 2010, and 9968/11, 11 May 2011. Two further delegated acts have been proposed, and are subject to EP and Council scrutiny at time of writing: see Council docs 12931/11 and 12933/11, both 14 July 2011, concerning controls of infections of pets. The only proposed delegated act which was not preceded by extensive stakeholder consultation was Council doc 12931/11.
130. T. Larsson, Precooking in the European Union-The World of Expert Groups (Fritzes Offentliga Publikationer, 2003 14.
131. A. Gornitzka and U. Sverdrup, 'Who Consults? The Configuration of Expert Groups in the European Union', (2008) 31 West European Politics 725.
132. E. Morten, S. Gunther and J. Trondel, 'The Many Faces of EU committee governance', (2003) 26 West European Politics 19, 20.
133. R. Dehousse, 'InstitutionalConstitutional Reform in the European Community: Are there Alternatives of the Majoritarian Avenue?' in J. Hayward (ed.), The Crises of Representation in Europe (Frank Cass, 1995), 118124.
134. T. Larsson and J. Trondal, 'Agenda Setting in the European Commission: How Does the European Commission Structure and Influence the EU Agenda?' in H.C.H. Hoffman and A.H. Turk (eds), EU Administrative Governance (Edward Elgar, 2006 11.
135. M. Rhinard, 'The Democratic Legitimacy of the European Union Committee System', (2002) 15 Governance: An International Journal of Policy, Administration, and Institutions 185, 198.
136. Y. Vassalos, Secrecy and Corporate Dominance-A Study on the Composition and Transparency of European Commission Expert Groups (Alter-EU, 2008), available online at: and Y. Vassalos, Expert Groups-Letting Corporate Interests Set the Agenda? (Corporate Europe Observatory, 2010), available online at:
137. See by analogy the contribution of the Courts on the transparency of the comitology documents
138. Point 15 and annex I of the Agreement, [2010]
139. The opinion of the Committee is not legally binding upon the Commission, although it takes the utmost account of that opinion. Existing advisory committees were automatically converted to the new procedure (Art 13(1)(a)
140. As noted in section IV.A above, there are no criteria regulating the choice of whether to require QMV in favour in the basic act or not.
141. Which would have provided, without exception, that measures could only be blocked by a QMV of representatives. Art 10(1)(b) of the proposal would have converted all existing regulatory procedures to this system.
142. There are two derogations: there must be a QMV in favour for the Commission to adopt 'definitive multilateral safeguard measures' (Art 6(4)), and until 1 Sep 2012, a simple majority against can block a draft final anti-dumping or anti-subsidy measure (Art 6(5)). The original proposal (ibid) did not provide for an appeal committee. Compare with Arts 4(3) and (4) and 5(4) and (6) of the previous comitology decision
143. Although Art 3(3) allows the appeal committee chair to set a shorter deadline.
144. The Commission statement attached to the Reg. Note also that as regards previous procedures which have been converted to the new rules,
145. This provision has been invoked once to date, in Art 14(4) of Reg 511/2011 implementing the bilateral safeguard clause of the EU-Korea Free Trade Agreement OJ L145/19).2011
146. The pre-existing safeguard rules have been converted to the new procedure (Art 13(1)(d)
147. The Commission had made this point in its original proposal for the Implementing Acts Regulation
148. The Commission's original proposal would have deleted this right entirely.
149. Compare with Art 7(3) of the prior comitology decision, op cit n 66 supra. The EP's right to be informed where the Commission transmits proposals to the Council has not been replaced by an explicit right to be informed where the Commission makes proposals to the appeal committee, but then the proceedings before the appeal committee will be covered by the EP's general right to information on the committees.
150. Commission Press Release IP/10/1735, 16 Dec 2010.
151. On the deficiencies of these standards in practice, see III.C above.
152. F. Bignami, 'The Democratic Deficit in European Community Rulemaking: A Call for Notice and Comment in Comitology', (1999) 40 Harvard International Law Journal 451.
153. H. Hofmann and A. Toeller, 'Democracy and the Reform of Comitology', in A. Mads and A. Tuerk (eds), Delegated Legislation and the Role of Committees in the EC (Kluwer Law International, 2000 25.
154. G. Schusterschitz and S. Kotz, 'The Comitology Reform of 2006. Increasing the Powers of the European Parliament without Changing the Treaties', (2007) 3 European Constitutional Law Review 68.