PURPOSE: to align a number of legal acts to the Treaty on the Functioning of the European Union (Article 290 and 291, powers delegated to the Commission).

LEGISLATIVE ACT: Regulation (EU) 2019/1243 of the European Parliament and of the Council adapting a number of legal acts providing for the use of the regulatory procedure with scrutiny to Articles 290 and 291 of the Treaty on the Functioning of the European Union.

CONTENT: this Regulation aligns 64 legislative acts referring to the so-called regulatory procedure with scrutiny (RPS) established by Article 5a of Council Decision 1999/468/EC with the Treaty of Lisbon.

The Treaty of Lisbon modified the legal framework governing the powers conferred on the Commission by the legislator, introducing a distinction between powers delegated to the Commission to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of a legislative act (delegated acts), and the powers conferred on the Commission to adopt acts to ensure uniform conditions for implementing legally binding Union acts (implementing acts).

The European Parliament, the Council and the Commission subsequently agreed on a new framework for delegated acts in the Interinstitutional Agreement (IIA) of 13 April 2016 on Better Law-Making, and acknowledged the need to align all existing legislation to the legal framework introduced by the Treaty of Lisbon. In particular, they agreed on the need to give high priority to the prompt alignment of all basic acts which still refer to the regulatory procedure with scrutiny (RPS). The Commission has undertaken to prepare a proposal for such alignment by the end of 2016.

The adopted Regulation includes some of the acts that the Commission proposed for alignment in 2016. In the majority of cases, it replaces the regulatory procedure with scrutiny by references to delegated acts and in some cases by references to implementing acts.

The alignment clauses reflect the following points of the IIA of 13 April 2016:

- power to adopt delegated acts conferred on the Commission for a period of five years. The Commission shall prepare a report on the delegation of authority no later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of the same duration, unless the European Parliament or the Council objects to such extension no later than three months before the end of each period;

- they now provide for a clear commitment to a systematic consultation of experts from the Member States in the preparation of delegated acts. This commitment is now explicitly included in the new standard clauses that are to be used in the drafting of empowerments for the Commission;

- they recognise the important role of early cooperation and exchange of views with the European Parliament in relation to delegated acts. The European Parliament must receive all documents at the same time as Member State experts, including the draft delegated acts. The alignment clauses provide for systematic access of European Parliament experts to the meetings of Commission expert groups preparing delegated acts.

This Regulation should not affect pending procedures in which the committee has already delivered its opinion in accordance with Article 5a of Decision 1999/468/EC.

ENTRY INTO FORCE: 26.7.2019.

The European Parliament adopted by 546 votes to 26, with 34 abstentions, a legislative resolution on the proposal for a regulation of the European Parliament and of the Council adapting a number of legal acts providing for the use of the regulatory procedure with scrutiny to Articles 290 and 291 of the Treaty on the Functioning of the European Union.

The Treaty of Lisbon substantially modified the legal framework governing the powers conferred on the Commission by the legislator, introducing a distinction between powers delegated to the Commission to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of a legislative act (delegated acts), and the powers conferred on the Commission to adopt acts to ensure uniform conditions for implementing legally binding Union acts (implementing acts).

Legislative acts adopted before the entry into force of the Treaty of Lisbon confer powers on the Commission to adopt measures under the regulatory procedure with scrutiny established by Article 5a of Council Decision 1999/468/EC.

Earlier proposals relating to the alignment of legislation referring to the regulatory procedure with scrutiny with the legal framework introduced by the Treaty of Lisbon were withdrawn due to the stagnation of the interinstitutional negotiations.

The European Parliament, the Council and the Commission subsequently agreed on a new framework for delegated acts in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making(6), and acknowledged the need to align all existing legislation to the legal framework introduced by the Treaty of Lisbon. In particular, they agreed on the need to give high priority to the prompt alignment of all basic acts which still refer to the regulatory procedure with scrutiny.

The proposed Regulation aims to update many existing cases where the PRAC applies to develop them into delegated acts. Where implementing powers are conferred on the Commission, they would be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council ("comitology" Regulation).

The European Parliament’s position adopted at first reading under the ordinary legislative procedure amended the Commission's proposal on cross-cutting issues.

In particular, it stipulates that the power to adopt delegated acts would be conferred on the Commission for a period of five years. The Commission should prepare a report on the delegation of authority no later than nine months before the end of the five-year period. The delegation of power would be tacitly extended for periods of the same duration, unless the European Parliament or the Council objects to such an extension no later than three months before the end of each period.

In a joint statement annexed to the legislative resolution, the Commission noted the choice of the legislators to provide for a limited duration for all the empowerments in which the regulatory procedure with scrutiny is aligned through this Regulation, coupled with a reporting obligation and tacit renewal of the empowerment. In particular in view of the high number of reports which would become due at regular intervals of time and the fact that easily available information about the use of the empowerments is available through the Register of Delegated Acts, the Commission underlines that it has discretion about the way in which it will comply with the reporting obligation. Where appropriate, the Commission may therefore group reports due under several basic acts in one single document.

The Committee on Legal Affairs adopted the report by József SZÁJER (EPP, HU) on the proposal for a regulation of the European Parliament and of the Council adapting a number of legal acts providing for the use of the regulatory procedure with scrutiny to Articles 290 and 291 of the Treaty on the Functioning of the European Union.

As a reminder, Article 5a of Decision 1999/468/EC, as amended by Council Decision 2006/512/EC2, (the Comitology Decision), established the so-called regulatory procedure with scrutiny (RPS).

With the entry into force of the Treaty of Lisbon on 1st December 2009 and in light of the subsequent new legal framework for sub-secondary legislation established by Articles 290 and 291 TFEU , the Comitology Decision had to be revised.

However, Regulation 182/2011 (the new Comitology Regulation) intentionally left Article 5a of the Comitology Decision out of its scope. Article 5a establishing the RPS had therefore to be provisionally maintained for the purposes of existing basic acts referring to that Article. On the other hand, the acquis in question has to be aligned as soon as possible to the Treaty of Lisbon in order to ensure legal certainty.

In 2013, the Commission proposed to complete the alignment with three extensive proposals ( Omnibus I , Omnibus II and Omnibus III ), which Parliament adopted in first reading in February 2014. However, the proposals were withdrawn by the new Commission following the European elections.

Following the entry into force of the Inter-institutional Agreement on Better Law-making (IIA) of 13 April 2016, the Commission presented two new proposals for alignment in December 2016 , one focusing on legislative files in the area of justice and one focusing on the remaining policy areas. The two proposals cover 3 and 168 basic acts, respectively.

In general terms, the committee approved the present proposal which seeks to update many existing cases of RPS to delegated acts . On the other hand, it opposed those cases of alignment with implementing acts where they consider that the Commission proposal lacks a detailed and specific justification.

Members recommended that the European Parliament’s position adopted at first reading under the ordinary legislative procedure should amend the Commission's proposal on horizontal issues such as the wording of the empowerments (which has to be as precise as possible and in line with the recent case law) and the duration of the delegation of powers (which should not exceed 5 years and should be accompanied by a reporting obligation on the Commission to submit reports no later than nine months before the end of the five years).

Members also stated that bundling and presenting empowerments that are not closely linked with each other within a single Commission delegated act impedes the exercise of Parliament's right of scrutiny, as it is forced to simply accept or refuse the entire package, which leaves no room to express an opinion on each empowerment individually. The Commission shall not bundle multiple empowerments in a single delegated act.