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The Conferral of Power to the Commission Put to the Test

Published online by Cambridge University Press:  20 January 2017

Camilla Buchanan
Camilla Buchanan*
Affiliation:
European Chemicals Agency
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Abstract

Case C-427/12 Commission v European Parliament and Council (not yet reported)

- Article 290 TFEU

- Article 291(2) TFEU

- Article 80(1) of 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

  1. 1. The EU legislature has discretion when it decides to confer a delegated power on the Commission pursuant to Article 290(1) TFEU or an implementing power pursuant to Article 291(2) TFEU. Consequently, judicial reviewis limited tomanifest errors of assessment (official headnote)

  2. 2. The Commission appears to have more liberty under Article 290 TFEU than Article 291(2) TFEU, however this may be misleading. The difference between adding “further details” (implementing act) and supplementing or amending non-essential elements to a basic act (delegated act) is difficult to gauge. Furthermore, the control foreseen to be exercised by the Member States and the Parliament and Councilmay not function as planned (author's headnote).

Type
Case Notes
Information
European Journal of Risk Regulation , Volume 5 , Issue 2 , June 2014 , pp. 267 - 272
Copyright
Copyright © Cambridge University Press 2014

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References

1 Judgment of the Court of 18 March 2014 in Case C-427/12 Commission v European Parliament and Council (not yet reported).

2 It was on basis of Article 202 EC that the Council adopted Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ 1999 L 184/23. The procedures set out therein became known as “comitology” due to the fact that the process for the adoption of the acts involved committees made up of experts from the Member States. Decision 1999/468/EC has been repealed and replaced, under Article 291(3) TFEU, by Regulation (EU) No 182/2011 of the European Parliament and of the Council laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers, OJ 2011 L 55/13. The history behind delegated acts and implementing acts and their respective differences were addressed to some extent in the Opinion of AG Jääskinen of 12 September 2013 in Case 270/12 UK and Northern Ireland v Council and Parliament (not yet reported) at points 75 to 78.

3 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. Biocidal products include disinfectants, preservatives, pest control products and others such as anti-fouling products and embalming fluids. The Regulation repeals and replaces Directive 98/8/EC concerning the placing of biocidal products on the market (OJ 1998 L 123/1) and, among other changes to the regulatory framework, provides a pivotal role for the Agency.

4 The procedural steps are recorded on the Parliament's Legislative Observatory website at the following link http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2009/0076(COD)&l=en#keyEvents

5 Opinion of the Commission pursuant to Article 294(7)(c) of the Treaty on the Functioning of the European Union, on the European Parliament's amendment[s]to the Council's position regarding the proposal for a Regulation of the European Parliament and of the Council concerning the placing on the market and use of biocidal products.COM/2012/0135 final - 2009/0076 (COD)

6 The Commission applied for partial annulment (i.e. only Article 80(1)), or if that action were found inadmissible, in the alternative, the annulment of the BPR in its entirety (with the effects be maintained until the entry into force of a new provision).

7 Six Member States, namely the Czech Republic, Denmark, France, the Netherlands, Finland and the UK intervened in support of the Parliament and the Council.

8 Case C-427/12, supra note 1, at para. 31.

9 Opinion of Advocate General Cruz Villalón, delivered on 19 December 2013 in Case C-427/12 Commission v European Parliament and Council (not yet reported), at point 4.

10 Ibid, at points 18 and 19.

11 Supra, note 9, at para 34.

12 Supra, note 9, at para 59.

13 Supra, note 9, at para 62.

14 Supra, note 9, at para 71.

15 The question he posed was “whether Article 80(1) BPR can reasonably be seen as expressing the legislature's intention to lay down rules that require further development or whether, instead, it is reasonable to assume that the implementation stage has already been reached, with the inevitable need to adopt acts of general application in advance of implementation in the strict sense.” Supra, note 9, at para 86.

16 Supra, note 9, at para 89 and 93.

17 Supra, note 9, at para 97.

18 Case C-427/12, supra, note 1, at para 19.

19 Case C-427/12, supra, note 1, at para 33 to 35.

20 Case C-427/12, supra, note 1, at para 36.

21 Case C-427/12, supra, note 1, at para 38 and 39.

22 Case C-427/12, supra, note 1, at para 40.

23 Case C-427/12, supra, note 1, at para 41 to 45.

24 Case C-427/12, supra, note 1, at para 46 to 48.

25 Case C-427/12, supra, note 1, at para 50 and 51.

26 Opinion in Case 270/12, supra note 2 at point 78.

27 See also the 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’ Brussels 9.12.2009 COM (2009) 673 final and the position of the Parliament set out in its Resolution of 5 May 2010 on the power of legislative delegation (2010/2021(INI)).

28 See Craig, Paul and de Burca, Gráinne, EU Law, Text, Cases and Materials, 5th ed. (Oxford: Oxford University Press, 2011), p. 138.CrossRefGoogle Scholar

29 See the Commission's commitment set out in paragraph 15 of the Framework Agreement on relations between the European Parliament and the Commission, OJ 2010 L 304/47.

30 Regulation (EU) No 182/2011, supra note 2.

31 Regulation (EU) No 182/2011, supra note 2, at Article 11.

32 Rules of procedure for the appeal committee (Regulation (EU) No 182/2011) adopted by the appeal committee on 29 March 2011, OJ 2011 C 183/13, at Article 1(1).

33 Commission Implementing Regulation (EU) No 564/2013 of 18 June 2013 on the fees and charges payable to the European Chemicals Agency pursuant to Regulation (EU) No 528/2012 of the European Parliament and of the Council concerning the making available on the market and use of biocidal products, OJ 2013 L 167/17.

34 Ibid, at Recital 16.

35 A summary of previous case law can be found in the Opinion of AG Mengozzi in Case C-355/10 European Parliament v Council at points 26 – 29, as referenced by AG Jääskinen in his Opinion in Case 270/12, supra, note 2, at point 102. Examples of case law on Institutional balance include Case C-138/79 Roquette Frères v Council [1980] ECR 3333, Case 294/83 Les Verts v Parliament [1986] ECR 1339 and Case C-70/88 Parliament v Council [1991] ECR I-4529.

36 Supra, note 9, at point 3.