Handbook on EU secondary legislation: Navigating through delegated and implementing acts

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ISBN: 978-2-8072-1113-1

Legal deposit : D/2023/10.622/78

About the authors

The authors wish to thank Steven Corcoran for his invaluable assistance

with the preparation and drafting

of this Handbook on EU Secondary Legislation.

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In the procedural jungle, you need a compass

Post-Lisbon secondary legislation is a procedural jungle. And just like in the jungle, a compass is necessary to avoid getting lost. Secondary legislation affects the lives of lobbyists all the time. They are confronted with it every day. So now is the time to start learning about it!

This Handbook does not aim to make you a specialist, but rather to help you understand the architecture of the Regulatory Procedure with Scrutiny, delegated acts and implementing acts. At each step of every file, you need to know which stage of the procedure you are at and what comes next.

Without these basics, it will be impossible to lobby effectively – because if you do not know what procedure applies, you simply will not know who your interlocutor is. Whom should I contact at this stage? The Commission? The Council? The Parliament? An Expert Group? A committee? A compass is indeed vital!

When writing this Handbook, our motto from start to finish was:

KEEP IT SIMPLE!

Contents

Part I. Introduction: the Handbook in 2020

Part II. History of secondary legislation

Part III. Why secondary legislation is more

Part IV. Overview of EU secondary legislation today

Part V. Regulatory Procedure with Scrutiny

Part VI. Delegated acts

Part VII. The ‘Lisbonisation’ Process

Part VIII. Implementing acts

Part IX. Secondary legislation in the EU courts

Part X. Post-Lisbon European Lobbying

PART I

INTRODUCTION

THE HANDBOOK IN 2023

1. Secondary legislation – A topic in constant flux

It has been nine years since we published the original Handbook on EU Secondary Legislation. Selling hundreds of copies, it proved an invaluable tool for many individuals, companies and organisations seeking to master the labyrinthine system of delegated acts and implementing acts.

Secondary legislation, however, is not static. Since the entry into force of the Treaty of Lisbon on 1 December 2009, it has been evolving all the time, seeing important changes in the past few years especially.

Once a purely legal topic, secondary legislation now has a strong political dimension, sensitive to the shifting power balance between the EU Institutions and to the attentions of an increasingly vigilant European civil society.

With this in mind, the time has come for an updated Handbook. A lot has happened in recent years:

The previous Juncker Commission introduced the concept of 'Better Regulation' and overhauled the Commission's internal working methods, two facts that impacted heavily on secondary legislation.

A new Commission led by President von der Leyen has arrived in office.

An Inter-institutional Agreement on Better Law-making has entered into force, making key innovations to the framework of delegated and implementing acts.

The United Kingdom has left the EU, thus altering the practicalities of voting in the European Parliament, Council and comitology committees.

All these developments and more will be covered. Retaining the visual, educational style of previous versions, the latest Handbook will provide readers with a detailed overview of how EU secondary legislation works in 2023, what has changed and what lies ahead.

2. Secondary legislation – The label remains the same

As explained in the old Handbook, we used to employ the term ‘comitology’ to refer to the fast-track procedure by which the Commission exercises its implementing power to amend, supplement or give effect to the provisions of basic EU legislation (referred to as ‘legislative acts’ throughout this Handbook), under the supervision of committees composed of national experts.

But then the Treaty of Lisbon changed everything. Suddenly, the word ‘comitology’ was no longer sufficient, because there are no committees involved in adopting delegated acts.

In the interest of simple communication, we decided on an alternative wording to cover both types of post-Lisbon measure: secondary legislation.

The term is still valid for two main reasons:

It fits neatly within the hierarchy of the EU’s legal framework: at the top sit the Treaties; below are legislative acts (i.e. ‘primary legislation’), adopted by the EU Institutions as Regulations and Directives; and finally, at the bottom, we have ‘secondary legislation’, i.e. delegated and implementing acts.

Moreover, it is recognised in certain EU Member States (e.g. Ireland), where Acts adopted by the national parliament are frequently amended or implemented by way of ‘secondary legislation’.

In 2020, many officials, academics and stakeholders across Brussels (and beyond) have adopted the term ‘secondary legislation’ and now use it regularly – proof of the success of our Handbook!

PART II

HISTORY OF SECONDARY LEGISLATION

FROM ROME TO LISBON – AND BEYOND

1. Secondary legislation timeline – how we