Advanced European Law – Week 3
Kieran St C Bradley, ‘Legislating in the European Union’, in C. Barnard and S. Peers (eds), European
Union Law (2017) chapter 5, only pp. 119-135.
7. Decision-making
7.1 Legislative and assimilated procedures
These are of three kinds: the Ordinary Legislative Procedure (OLP), the Special Legislative Procedures (SPL’s),
and the various Innominate Non-Legislative Procedures (INP’s).
7.1.1 The Ordinary Legislative Procedure
The details of the OLP are set out in Article 294 TFEU, which begins with a legislative proposal from the
Commission under paragraph (2). After that, under Article 293(2) TFEU the Commission may amend a proposal
“at any time during the procedure leading to the adoption of a Union act”, as long as the Council has not acted.
This allows the Commission to modify its initial proposal to garner the support of a qualified majority which has
emerged in the Council decisions. Under Article 294(3) TFEU and under Macro-financial Assistance, however,
this right disappears after the first reading once the Council has acted. This does not mean that the Commission
is excluded from the procedure after the first reading, as it takes part in the proceedings of any conciliation
committee convened to prepare for a third reading. When the OLP is not initiated by the Commission,
Parliament’s first reading takes place on the basis of an “initiative” of the MS, a “request” from the ECJ, or a
“recommendation” by the ECB.
7.1.2 “Emergency brakes”
Under Article 48(2) TFEU, the OLP may be suspended if, acting in the field of social security, a Member of the
Council declares that a draft legislative act would affect important aspects of its social security system.
7.2 Special legislative procedures
A large majority of SLP’s are derogations from the application of the OLP in a particular area, to take account of
national sensibilities of different kinds, such as the derogation from the OLP to a SLP in areas, such as social
security. In other areas, the EP may be asked for its consent to a Council measure, e.g. on decisions which
impact the Union’s budget.
7.3 Innominate non-legislative procedures
A number of normative measures are adopted directly on the basis of the Treaty by an innominate non-
legislative procedure. The procedural requirements tend to be minimal, often without participation of the EP,
and in some cases the measure might be more executive than legislative in nature. An INP may be required by
derogation from the OLP for the adoption of particularly sensitive measures in a “normal” policy field, such as
recommendations in some areas of ancillary competence. INP’s are, according to the ECJ, “of a primarily
technical nature and are intended to be taken in order to implement [legislative] provisions”.
7.4 Consultation and assimilated requirements
The consultation of different institutions and ancillary bodies, such as the EP, the ESC and the Committee of the
Regions, may be required in the context of an SLP or INP, or (obviously excluding parliament) in the first
reading of the OLP. The consent of the opinion provided does not bind the institution(s) participating in the
decision-making procedure, but consultation is a substantive procedural requirement the breach of which
justifies the annulment of the act.
8. Derived normative measures: delegated and implementing acts
Derived normative measures are those which are based on an enabling provision contained in an act which is
itself based directly on the Treaty, that is, legislation or an act adopted under an INP. The Lisbon Treaty
introduced the notion of “regulatory act”, which in principle covers all non-legislative normative acts adopted
by the Union institutions, that is, delegated acts, implementing acts, and those adopted under an INP.
8.1 Delegated acts
Delegated acts under Article 290 TFEU delegate to the Commission the power to adopt for the purposes of its
expertise or speed. In Article 290 TFEU, they are described as “non-legislative acts of general application which
supplement or amend non-essential aspects of the legislative acts”.
8.1.1 The Common Understanding
In order to pre-empt possible disputes on the application of this provision to legislation adopted under the OLP
that the EP, the Council, and the Commission concluded a Common Understanding on Delegated Acts.
, 8.1.2 Forms of supervision
Article 290(1) TFEU provides for two forms of supervision: either branch of the legislature may revoke the
delegation (right of revocation, Article 290(2)(a)) or prevent the entry into force of individual delegated acts
(right of objection, Article 290(2)(b)). Under the objection procedure, the delegated act does not enter into
force until the two-month objection period has expired; either institution may extend the period on its own
initiative for a further two months.
8.1.3 Limitations on delegation and identification of delegated acts
A delegated act may “amend or supplement” a basic (legislative) act. For the purpose of identification, it must
be identified as a delegated act in its title.
8.2 Implementing acts
An implementing act under Article 291 TFEU allows the Commission (or sometimes the Council) to provide
further detail in relation to the content of the legislative act, in order to ensure that it is implemented under
uniform conditions in all Member States. When such uniform conditions are required, the conferral of
delegated powers on the Commission (and sometimes the Council) becomes obligatory under Article 291(2)
TFEU.
8.2.1 Conferral of implementing powers and the Neo-Comitology Regulation
Article 291 TFEU does not specify which institutions may confer implementing powers; such powers may be
conferred in any legally binding act, including legislation. The mechanisms for control by the Member States of
the Commission’s exercise of implementing powers are defined in the “Neo-Comitology Regulation”. This
provides for the advisory procedure and examination procedure, which both oblige the Commission to refer its
draft implementing measure to a committee that can require it to reconsider or amend the draft.
8.2.2 Common features of supervisory procedures
[…]
8.2.3 Choice of supervisory procedure
[…]
8.2.4 The advisory procedure
[…]
8.2.5 The examination procedure
[…]
8.2.6 The appeal committee
[…]
8.2.7 “Immediately applicable implementing acts”
[…]
8.3 Borderline between delegated and implementing acts
Whereas the Treaty defines a “delegated act” in terms of its content, it defines an “implementing act” in terms
of its rationale. It is therefore possible to imagine a secondary measure which is a delegated act as to its
content, but which is required in order to lay down uniform conditions for implementing legally binding Union
acts.
CJEU, Case C-409/13, Council v Commission, judgment of 14 April 2015 (Macro-financial
assistance).
In this case, the Council of the European Union seeks the annulment of the decision of the European
Commission of 8 May 2013 by which it withdrew its proposal for a regulation of the European Parliament and
of the Council laying down general provisions for macro-financial assistance to third countries.
Macro-financial assistance (‘MFA’) has the aim of granting financial assistance of a macro-economic nature to
third countries that are experiencing short-term balance of payments difficulties. Initially, it was granted by
Council decisions adopted, case by case, on the basis of [Article 352 TFEU].
The Council and the supporting Member States brought forward three pleas:
Infringement of the principle of conferral of powers laid down in Article 13(2) TEU and of the principle
of institutional balance:
Kieran St C Bradley, ‘Legislating in the European Union’, in C. Barnard and S. Peers (eds), European
Union Law (2017) chapter 5, only pp. 119-135.
7. Decision-making
7.1 Legislative and assimilated procedures
These are of three kinds: the Ordinary Legislative Procedure (OLP), the Special Legislative Procedures (SPL’s),
and the various Innominate Non-Legislative Procedures (INP’s).
7.1.1 The Ordinary Legislative Procedure
The details of the OLP are set out in Article 294 TFEU, which begins with a legislative proposal from the
Commission under paragraph (2). After that, under Article 293(2) TFEU the Commission may amend a proposal
“at any time during the procedure leading to the adoption of a Union act”, as long as the Council has not acted.
This allows the Commission to modify its initial proposal to garner the support of a qualified majority which has
emerged in the Council decisions. Under Article 294(3) TFEU and under Macro-financial Assistance, however,
this right disappears after the first reading once the Council has acted. This does not mean that the Commission
is excluded from the procedure after the first reading, as it takes part in the proceedings of any conciliation
committee convened to prepare for a third reading. When the OLP is not initiated by the Commission,
Parliament’s first reading takes place on the basis of an “initiative” of the MS, a “request” from the ECJ, or a
“recommendation” by the ECB.
7.1.2 “Emergency brakes”
Under Article 48(2) TFEU, the OLP may be suspended if, acting in the field of social security, a Member of the
Council declares that a draft legislative act would affect important aspects of its social security system.
7.2 Special legislative procedures
A large majority of SLP’s are derogations from the application of the OLP in a particular area, to take account of
national sensibilities of different kinds, such as the derogation from the OLP to a SLP in areas, such as social
security. In other areas, the EP may be asked for its consent to a Council measure, e.g. on decisions which
impact the Union’s budget.
7.3 Innominate non-legislative procedures
A number of normative measures are adopted directly on the basis of the Treaty by an innominate non-
legislative procedure. The procedural requirements tend to be minimal, often without participation of the EP,
and in some cases the measure might be more executive than legislative in nature. An INP may be required by
derogation from the OLP for the adoption of particularly sensitive measures in a “normal” policy field, such as
recommendations in some areas of ancillary competence. INP’s are, according to the ECJ, “of a primarily
technical nature and are intended to be taken in order to implement [legislative] provisions”.
7.4 Consultation and assimilated requirements
The consultation of different institutions and ancillary bodies, such as the EP, the ESC and the Committee of the
Regions, may be required in the context of an SLP or INP, or (obviously excluding parliament) in the first
reading of the OLP. The consent of the opinion provided does not bind the institution(s) participating in the
decision-making procedure, but consultation is a substantive procedural requirement the breach of which
justifies the annulment of the act.
8. Derived normative measures: delegated and implementing acts
Derived normative measures are those which are based on an enabling provision contained in an act which is
itself based directly on the Treaty, that is, legislation or an act adopted under an INP. The Lisbon Treaty
introduced the notion of “regulatory act”, which in principle covers all non-legislative normative acts adopted
by the Union institutions, that is, delegated acts, implementing acts, and those adopted under an INP.
8.1 Delegated acts
Delegated acts under Article 290 TFEU delegate to the Commission the power to adopt for the purposes of its
expertise or speed. In Article 290 TFEU, they are described as “non-legislative acts of general application which
supplement or amend non-essential aspects of the legislative acts”.
8.1.1 The Common Understanding
In order to pre-empt possible disputes on the application of this provision to legislation adopted under the OLP
that the EP, the Council, and the Commission concluded a Common Understanding on Delegated Acts.
, 8.1.2 Forms of supervision
Article 290(1) TFEU provides for two forms of supervision: either branch of the legislature may revoke the
delegation (right of revocation, Article 290(2)(a)) or prevent the entry into force of individual delegated acts
(right of objection, Article 290(2)(b)). Under the objection procedure, the delegated act does not enter into
force until the two-month objection period has expired; either institution may extend the period on its own
initiative for a further two months.
8.1.3 Limitations on delegation and identification of delegated acts
A delegated act may “amend or supplement” a basic (legislative) act. For the purpose of identification, it must
be identified as a delegated act in its title.
8.2 Implementing acts
An implementing act under Article 291 TFEU allows the Commission (or sometimes the Council) to provide
further detail in relation to the content of the legislative act, in order to ensure that it is implemented under
uniform conditions in all Member States. When such uniform conditions are required, the conferral of
delegated powers on the Commission (and sometimes the Council) becomes obligatory under Article 291(2)
TFEU.
8.2.1 Conferral of implementing powers and the Neo-Comitology Regulation
Article 291 TFEU does not specify which institutions may confer implementing powers; such powers may be
conferred in any legally binding act, including legislation. The mechanisms for control by the Member States of
the Commission’s exercise of implementing powers are defined in the “Neo-Comitology Regulation”. This
provides for the advisory procedure and examination procedure, which both oblige the Commission to refer its
draft implementing measure to a committee that can require it to reconsider or amend the draft.
8.2.2 Common features of supervisory procedures
[…]
8.2.3 Choice of supervisory procedure
[…]
8.2.4 The advisory procedure
[…]
8.2.5 The examination procedure
[…]
8.2.6 The appeal committee
[…]
8.2.7 “Immediately applicable implementing acts”
[…]
8.3 Borderline between delegated and implementing acts
Whereas the Treaty defines a “delegated act” in terms of its content, it defines an “implementing act” in terms
of its rationale. It is therefore possible to imagine a secondary measure which is a delegated act as to its
content, but which is required in order to lay down uniform conditions for implementing legally binding Union
acts.
CJEU, Case C-409/13, Council v Commission, judgment of 14 April 2015 (Macro-financial
assistance).
In this case, the Council of the European Union seeks the annulment of the decision of the European
Commission of 8 May 2013 by which it withdrew its proposal for a regulation of the European Parliament and
of the Council laying down general provisions for macro-financial assistance to third countries.
Macro-financial assistance (‘MFA’) has the aim of granting financial assistance of a macro-economic nature to
third countries that are experiencing short-term balance of payments difficulties. Initially, it was granted by
Council decisions adopted, case by case, on the basis of [Article 352 TFEU].
The Council and the supporting Member States brought forward three pleas:
Infringement of the principle of conferral of powers laid down in Article 13(2) TEU and of the principle
of institutional balance:
