Giulia Gallinella is a Ph.D. Candidate, Department of Political Science at Libera Università Internazionale degli Studi Sociali Guido Carli. She is Editorial Manager of the Journal of European Integration. She was a visiting researcher at our Institute from April to June 2023.
The long-standing practice of delegating legislative and implementing powers to the European Commission has considerably increased over the last few years, especially against the background of managing the various crises the EU has had to face. The crises context – and especially the Covid-19 pandemic – has shown that executive institutions are the indisputable winners of emergency decision-making, with the European Council taking on a central role in this regard. However, the European Commission has also sought to obtain a prominent function in crisis management by enacting some of the tools at its disposal. Among these, delegated and implementing acts surprisingly stand out. After providing a quick overview on the legal instruments and their institutional challenges, this brief piece discusses the use of delegated rulemaking during the Covid-19 pandemic.
Understanding Delegated and Implementing Acts
Delegated acts and implementing acts respectively grant legislative and implementing powers to the Commission. They are enshrined in Arts. 290 and 291 TFEU.
- Delegated acts are ‘non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act’ (Art. 290 TFEU). The objectives, duration, scope, and content of the delegation must be duly outlined in the basic legislative act. The purpose of delegated acts is indeed to amend or supplement non-essential elements of a primary legislative act. The Council and the Parliament, as co-legislators, carry out the scrutiny of delegated acts ex post.
- Implementing acts are adopted when ‘uniform conditions for implementing legally binding Union acts are needed’ (Art 291 TFEU), and when duly specified in the basic act. They confer implementing powers upon the Commission or, in specific and properly justified cases, on the Council. They specify how particular legislation should be implemented and provide additional details to ensure consistent enforcement across member states. Committees composed of representatives of the member states are entrusted with the ex ante scrutiny of such acts.
Delegated rulemaking, whether in the form of delegated acts or implementing measures, has historically been a source of inter-institutional contention between the Commission, the European Parliament, and the Council. The legislators are reluctant to delegate powers to the Commission as they are determinate to uphold their role in the decision-making process and to ensure democratic accountability. The European Parliament, in particular, has no formal role in the scrutiny of implementing acts, which creates further tensions when negotiating what kind of empowerment to grant the Commission in the basic legislative act.1 The Council, on the other hand, tends to be sceptical of delegated acts due to the ex post nature of their scrutiny and the difficulty to exercise the veto powers necessary to block them.2 One could argue, however, that the technical underpinnings of delegated acts normally prevent them from becoming highly politicised and controversial.3
Delegated Rulemaking and the Covid-19 Pandemic
The Covid-19 pandemic has uncovered a few vulnerabilities of the EU administrative machinery, such as a lack of and consequent need for a fast-response mechanism to employ in case of emergencies – or, at least, in some policy areas. Whereby the relevant empowerment was already present in a basic legislative act, the Commission has resorted to both delegated and implementing acts to introduce new provisions in a fast and efficient way. Delegated rulemaking facilitated the rapid adoption of measures and provided the necessary flexibility and coordination to address the evolving nature of the crisis. The most active policy areas in this regard have been agriculture, transports, justice and consumers, and internal market. Broadly speaking, the measures concerned the safeguard of the fruit, vegetable, and wine sectors, the recognition of vaccine certificates issued by third countries, the extension of temporary relief measures in the transport sector, and more.
Despite the usual frictions within this scope, both the legislators and the member states generally complied with the Commission’s use of delegated powers during this time. This trend offers two interesting points of reflection on the prominent role of executive institutions during emergencies, which results in an inevitable sidelining of the legislative branch. Firstly, crisis situations may result in a, albeit temporary, suspension of interinstitutional tensions for the sake of quickness and efficiency. Secondly, this discussion provides further evidence to the idea that, although the European Council has undoubtably been the central actor in the management of the pandemic, the Commission has retained an important role even in the early stages of the crisis. In other words, despite being perhaps overshadowed by its intergovernmental counterpart, the supranational executive body of the EU nevertheless plays a very significant role in countering emergencies.
1 This matter has been brought before the Court of Justice of the EU a few times, e.g.: Case C-286/14 European Parliament v European Commission (Connecting Europe Facility)  and Case C-427/12 European Commission v European Parliament and Council of the European Union (Biocides) .
2 In order to successfully veto a delegated act, the Council needs to reach a (reinforced) qualified majority, while the European Parliament needs the majority of its component members.
3 This has nonetheless happened a couple of times in the past. The most notably example is the controversial delegated act on the EU taxonomy, that became extremely politicised because it included some forms of nuclear energy and gas activities in the list of economic activities covered by EU taxonomy. The act eventually got to the plenary of the European Parliament, but the majority required to veto was not met.
European Union, 2023. Lukasz Kobus
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