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Delegation of Rulemaking Powers to the European Commission post-Lisbon: Court of Justice of the European Union (Grand Chamber)Judgment of 16 July 2015, Case C-88/14, European Commission v European Parliament (Visa Reciprocity)Judgment of 17 March 2016, Case C-286/14, Parliament v Commission (Connecting Europe Facility)

  • A.P. van der Mei
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Maastricht Centre for European Law (MCEL).

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1 The contribution does not discuss delegation to the Council (see Art. 291(2) TFEU and ECJ 1 March 2016, Case C-440/14 P, National Iranian Oil Company), private bodies that do not fall under the institutional umbrella of the EU (see e.g. ECJ 13 June 1958, Case 9/56, Meroni) and agencies (ECJ 14 January 2014, Case C-270/12, United Kingdom v Parliament and Council (Short Selling)).

2 Art. 290(2) TFEU. The EU legislature may also confer upon Council and Parliament the power to revoke the delegation.

3 See further E. Vos, ‘Fifty Years of European Integration, Forty-Five Years of Comitology’, in E. Vos and A. Ott, Fifty Years of European Integration: Foundations and Perspectives (V.M.C. Asser Press 2009) p. 31 and Bergström, C.F., Comitology – Delegation of Powers in the European Union and the Committee System (Oxford University Press 2005).

4 For the currently applicable system see Regulation (EU) No. 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011, L55/13). Three types of procedure now exist: the advisory procedure, the examination procedure, and the regulatory procedure with scrutiny. The last procedure applies to quasi-legislative acts that, post-Lisbon, would seem to fall under Art. 290 TFEU. Abolition of the procedure requires, however, that in all legislative acts in which this procedure is prescribed the reference to it should be replaced by a reference to Art. 290 TFEU. Commission proposals aimed at this (COM (2013) 451 final, COM (2013) 452 final and COM (2013) 751 final) have been opposed by the Member States. By the end of 2016 the Commission is likely to come with new proposals. See the provisional text of ‘Interinstitutional Agreement Better Regulation’ of 16 December 2015, <ec.europa.eu/smart-regulation/index_nl.htm>, visited 5 October 2016. The regulatory procedure with scrutiny is thus still applied post-Lisbon and may trigger disputes. See e.g. GC 23 September 2015, Joined Cases T-261/13 and T-86/14, Netherlands v Commission.

5 Craig, P., ‘Delegated Acts, Implementing Acts and the New Comitology Regulation’, 36 ELRev (2011) p. 672 and the various contributions in Bergström, C. and D. Ritleng (eds), Rulemaking by the European Commission – The New System for Delegation of Powers (Oxford University Press 2016).

6 See e.g. Communication from the Commission to the European Parliament and the Council – Implementation of Article 290 of the Treaty on the Functioning of the European Union (COM(2009) 673 final); Resolution of 25 February 2014 on follow-up on the delegation of legislative powers and control by Member States of the Commission’s exercise of implementing powers (2012/2323/INI), <www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2014-0127&language=EN&ring=A7-2013-0435>, visited 5 October 2016; Common Understanding – Delegated Acts, 14 April 2011, 8753/1/11, <register.consilium.europa.eu/doc/srv?l=EN&f=ST%208753%202011%20REV%201>, visited 5 October 2016.

7 See ECJ 15 October 2014, C-65/13, Parliament v Commission (Eures) (holding that an implementing act cannot amend a legislative act) and ECJ 5 September 2012, C-355/10, Parliament v Council (Schengenbordercontrol) (holding that implementing measures cannot amend essential elements of basic legislation or supplement it by new essential elements). On the latter case see further Chamon, M., ‘How the Concept of Essential Elements of a Legislative Act Continues to Elude the Court. Case C-355/10, European Parliament v Council of the European Union, Judgment of the Court of Justice (Grand Chamber) of 5 September 2012, nyr’, 50 CMLRev (2013) p. 849 .

8 Final Report of the Working Group IX on Simplification of 29 November 2002, CONV 424/02, <european-convention.europa.eu>, visited 5 October 2016.

9 ‘It is the legislative act – and therefore the legislator – which would determine on a case-by-case basis whether and to what extent it was necessary to have recourse to ‘delegated’ acts and/or to implementing acts and what their scope would be.’ Communication from the Commission, supra, n. 6, p. 9.

10 Regulation (EU) No. 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products, OJ 2012, L 167/1.

11 ECJ 16 July 2015, C-427/12, Commission v Parliament and Council (Biocides), paras. 33-39.

12 Ibid., para. 40.

13 Ibid., paras. 41-54.

14 See in particular Ritleng, D., ‘The dividing line between delegated and implementing acts: The Court of Justice sidesteps the difficulty in Commission v Parliament and Council (Biocides) ’, 52 CMLRev (2015) p. 243 . See also P. Craig, ‘Comitology, Rulemaking, and the Lisbon Settlement – Tensions and Strains’, in Bergström and Ritleng, supra n. 5, p. 173 at p. 179-182.

15 Council Regulation (EC) No. 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (OJ 2001 L 81, p. 1), as amended by Regulation (EU) No. 610/2013 of the European Parliament and of the Council of 26 June 2013 (OJ 2013, L 182, p.1).

16 This is perhaps somewhat remarkable in light of the fact that the Commission, as noted above, usually prefers Art. 290 over Art. 291. The text of the ruling of the Court and the Opinion of AG Mengozzi do not reveal what actually motivated the Commission to initiate the case.

17 ECJ 16 July 2015, C-88/14 Commission v Parliament and Council (Visa Reciprocity), para. 28.

18 Ibid., para. 32.

19 ECJ 15 October 2014, C-65/13, Parliament v Commission (Eures). See also ECJ 10 September 2015, C-363/14, Parliament v Council (Europol).

20 ECJ 16 July 2015, C-88/14 Commission v Parliament and Council (Visa), para. 31.

21 Ibid., paras. 32-48.

22 ECJ 11 June 1991, Commission v Council (Titaandioxide), para. 10.

23 Compare K. Bradley, ‘Delegation of Powers in the European Union: Political Problems, Legal Solutions?’, in Bergström and Ritleng, supra n. 5, p. 55 at p. 79.

24 Admittedly, as regards delegation of powers to agencies the Court does attach importance to the discretion granted to the agency concerned. In brief, and crudely simplified, delegation of precisely delineated powers may be permissible, whereas the opposite holds true for powers allowing for a ‘very large measure of discretion’: ECJ 14 January 2014, Case C-270/12, United Kingdom v Parliament and Council (Short Selling), paras. 41-54. This case law on (regulatory) agencies, however, is still very much underdeveloped and multi-interpretable. See Chamon, M., EU Agencies – Legal and Political Limits to the Transformation of the EU Administration (Oxford University Press 2016) p. 174-298 . Simply put, the Court does not seem to have done much more than say that the EU legislature can only delegate to agencies executive-like powers to the exclusion of powers to make the main policy choices in a given area. The case law does not provide clear criteria for determining how wide the margin of discretion given to agencies may or may not be. The ‘Meroni case law’, it is submitted, does not alter the conclusion that ‘discretion’ is an overly vague criterion for demarcating Arts. 290 and 291 TFEU. In fact, one cannot exclude the possibility that the Court at one point in time will realise or conclude that ‘discretion’ is not a very useful or workable criterion for determining the legality of delegation of powers to agencies either.

25 See e.g. J. Bast, ‘Is There a Hierarchy of Legislative, Delegated, and Implementing Acts’, in Bergström and Ritleng, supra n. 5, p. 157. This view, however, does not seem to be shared by all. See e.g. C. Bergström, ‘Patterns and Finds: Five Central Themes’, in Bergström and Ritleng, supra n. 5, p. 257 at p. 258.

26 Regulation (EU) No. 1316/2013 of the European Parliament and of the Council of 11 December 2013 establishing the Connecting Europe Facility, amending Regulation (EU) No. 913/2010 and repealing Regulations (EC) No. 680/2007 and (EC) No. 67/2010 (OJ 2013 L 348, p. 129).

27 ECJ 17 March 2016, C-286/14, Parliament v Commission (Connecting Europe Facility), paras. 32-33.

28 Ibid., paras. 40-42.

29 Ibid., para. 46.

30 Ibid., para. 53. The Court explained that an element included in the legislative act by the Commission in the exercise of a power to ‘supplement’ could, subsequently, only be replaced or deleted by a power to ‘amend’. It would therefore be up to the legislature to intervene and to replace or delete the element concerned either by itself establishing a legislative act or by conferring on the Commission a delegated power to ‘amend’ the act in question. By contrast, when the Commission ‘supplements’ a legislative act by adopting a separate act, it may, in so far as necessary, amend that act without being required to amend the legislative act itself. Ibid., paras. 54-56.

31 Ibid., paras. 48-51.

32 Ibid., para. 64.

33 Compare the Opinion of AG Mengozzi of 7 May 2015 in Case C-88/14, Commission v Parliament and Council (Visa).

* Maastricht Centre for European Law (MCEL).

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