Established by the Treaty of Lisbon in 2009, the ‘new’ system of adopting implementing and delegated acts is playing an increasingly important role in the EU decision-making process and, as a result, has made a dramatic change in the EU’s regulatory dynamic, writes András Baneth.

András Baneth is managing director of the European Office of the Public Affairs Council, which is organising the Five Years of ‘New’ Comitology: Practical Lessons and the Way Ahead conference on Dec. 4.

While all eyes are fixed on the new European Commission and the upcoming change at the helm of the European Council, the 5th year anniversary of the Lisbon Treaty’s entry into force on 1 December will mark another, lesser-known anniversary: the ‘new’ system of regulatory procedures by the introduction of ‘delegated’ and ‘implementing’ acts.

However technical this may sound, regulated industries from pharma, food or financial services, along with Member State governments, soon realized that this new system has triggered a tectonic shift in advocacy methods, institutional dynamics and the way regulatory files were to be lobbied.

The two procedures, with various levels of involvement by the European Parliament and the Council, have made the European Commission far more influential than before. It is indeed the EU institution with the highest level of technical expertise, access to expert opinion via the European agencies, expert groups, committees or via stakeholder consultations. On the other hand, this meant that its political role has grown significantly: who would call GMO regulation a purely technical matter?

Though these procedures are in place since 2009 (in practice, since 2011), there are several challenges that have surfaced since the ‘classic’ comitology system has been upended. Here are a few highlights:

Transition from the pre-2009 system to the ‘new’ one: aligning existing procedures with the new ones was straight-forward for most of the files, but highly controversial for the so-called ‘regulatory procedure with scrutiny’, which until today has not been properly aligned to the new procedures despite promises that it would be done before the 2014 European Parliament elections.

Access to regulatory documents, especially  during the preparation phase: this has been causing lots of headaches for corporate lawyers and compliance officers alike. When the agenda of a comitology meeting discussing a draft technical rule is made public only several months after the event took place, it hurts transparency, due process and the public’s legitimate right to access documents. If these are made public, why not do it at a time when it is actually useful for stakeholders?

Impact assessments for regulatory files are expected to gain a lot in their relevance and importance, thanks to Commission First Vice-President Timmermans’ promise during his Parliamentary hearing. Will impact assessments be extended for most regulatory files, whether they concern setting CO2 emission levels, energy efficiency standards or bank leverage ratios? The very reason for the existence of regulatory procedures is timeliness, however, impact assessments can take several months. A fine balance must therefore be found between efficiency and better regulation.

Revision of the procedural rules: these include the inter-institutional agreement between the European Parliament and the Commission, also giving rise to speculations that the Council should be party to such agreement too. Will this impact the way the Commission informs other institutions of its draft delegated acts or the way EP experts are invited to provide their opinion prior to adoption? Remains to be seen but a topic to watch, along with the 2016 ‘stocktaking’ (revision?) of the 182/2011 regulation, ie the comitology procedural rules.

Distinction between implementing and delegated acts: the “elephant in the room”, the question that the authors of the Treaty of Lisbon “overlooked” is how to distringuish between implementing measures and delegated acts? According to the European Commission, this is a purely legal matter and it is clear which technical measure falls under which procedure. If this was so evident, why have we witnessed a number of cases by the ECJ in which European institutions sought to clarify the lines between these two procedures? An issue to be settled still.

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