Controlling the Commission’s Use of Delegated Acts

Most of the legislation the EU adopts each year is secondary legislation.

You can find a good breakdown of the EU’s legislative output for 2018 and 2017, here.

I have taken an unhealthy interest in how the European Parliament and Council perform their role of oversight for 20 years plus. I realized that most people focused on ordinary legislation and walked by ordinary legislation. I found this strange. Many important decisions were pushed through when people were looking away.

Overzealous Commission may, after all, stray from the narrow confines given to them by the Council and European Parliament under the legislation. It’s good to have a governance system in place that calls officials to account and veto secondary legislation.

The veto should not be easy to exercise. In practice, it is very hard. Indeed, it can seem theoretical. Whether you are dealing with Regulatory Procedure with Scrutiny (RPS) measure, a Delegated Act, or an Implementing Act, it is tough to block the Commission

The hope that the General Omnibus Regulation adapting RPS (COM(2016) 799) would end RPS, and switch it neatly over to Delegated Acts, is an aspiration for the next Commission and Parliament. Over a hundred pieces of legislation with RPS still remain on the book. The main reason for the stalled progress is that the Member States do not trust the Commission to take on board their views and feedback on proposals. It’s like the people who negotiated the text for Article 290 and 291 of the Treaty were unaware of the political vagaries of passing legislation.

I have been involved in cases for all sides to exercise the veto of EU secondary legislation. I have worked to get a challenge through (successfully and unsuccessfully), stop a challenge (successfully and unsuccessfully). It is not easy to get done. Unsurprisingly, few people are really that interested in vetoing an apparently technical and arcane proposal. The truth is that most MEPs and Ministers are not interested. As you can see in the case study below, there is a very short timeline to engineer political interest to get your issue raised, adopted by the Committee, and then, securing 376 or more MEPs in the plenary. You need to reframe and simplify your issue.

As an aside, even if you don’t succeed, you can always go to the European Court, or get a Member State to champion the issue for you.

It’s not easy to veto delegated acts. In an excellent paper (link), Michael Kaeding looks at cases where the EP or Council stopped the Commission. The paper deserves to be read. The instances of successful vetoes for delegated acts by the EP is around 6% and by the Council less than 1%.

Success leaves clues

I think success leaves clues, so it is useful to look at the successful cases – both in the EP and the Council.

The European Parliament blocked 6 delegated acts:

Definition of “engineered nanomaterials”(ENVI)

cadmium in illumination and display lightning(ENVI);

ethyl alcohol of agricultural origin(AGRI);

processed cereal-based food and baby food(ENVI);

packaged retail and insurance-based investment products(ECON);

high-risk third countries with strategic deficiencies (ECON/LIBE)

There were 27 unsuccessful veto attempts. 11 falling at the plenary, and 16 at the Committee.

Council

The Council objected in 3 cases: