Fabian Bohnenberger

Towards the end of the year, we use to take stock of what has happened. With the EU churning out new legislation at a rapid pace, I will only consider one part of EU activity that gets easily ignored:  implementing acts. These are the Commission’s main workhorse to ensure that EU law is applied uniformly (and effectively) across the EU.

Something odd is going on here: there are massive discrepancies in the numbers of adopted implementing acts across the various EU data sources. These inconsistencies are troubling, to say the least, especially if some of these acts concern you! They likely do.

I’ll explain below why it is even harder to keep track of EU law than you might think, that even insiders struggle to monitor what the Commission does (with implementing acts), and that you shouldn’t put your trust in a single EU data source.

1. A quick way to find some legal acts: EurLex statistics

I am using 2022 data because, unlike for 2023, it is – or at least it should be – complete. EurLex lists 929 Commission implementing acts adopted in 2022. There also are 157 Council implementing acts, which we will ignore.

	Adopted acts
	Basic	Amending
Implementing acts
Council implementing regulations	2	77
Council implementing decisions	16	62
Commission implementing regulations***	355	263
Commission implementing directives	0	4
Commission implementing decisions	206	101
Total	579	507

2. The intended way? Register of delegated and implementing acts

By contrast, searching the Register of delegated and implementing acts yields a figure of around 800 Commission implementing acts adopted in 2022.

You’ll initially get higher results, but need to filter out some inaccuracies. If you search for acts in 2022, you’ll get 904; however, this includes some that that the register still lists as planned, not adopted. (Because they have been delayed or people forgot to update the data.) If you only search for published acts, you’ll get 856. But again, this includes around 50 acts whose adoption was delayed into 2023.

Clearly, none of these figures matches the 929 Commission implementing acts listed on EurLex. The discrepancy is worrying if you want to comply with all EU law, especially given the register is where you are supposed to find these acts.

3. For optimists: Commission consultations on implementing acts

You might also want to put your trust in the “Have your say” platform, where the Commission submits drafts act for public feedback before they are adopted.

Sadly, you would be sorely disappointed. In 2022, a mere 77 Commission implementing acts were listed on the platform. (This number is based on whether there was a feedback period in 2022, not the date of adoption as above.)

This means that the Commission consults on less than 1 out of every 10 implementing acts. Don’t count on transparency at this stage.

4. Comprehensive but impractical: Annual Comitology Report

Finally, the Commission’s annual comitology report adds some much higher (but perhaps more accurate) numbers – unfortunately, it is backward-looking, so can’t be used to track ongoing Commission work.

To save you the trouble, here’s the most relevant sentence: in 2022, “the number of 2072 implementing acts adopted following a committee procedure was also considerably higher than in the previous year (1592).”

2072 implementing acts! What’s going on?

The answer is complex. An important part is that the Secretariat General itself seems to have a hard time keeping track of the many – literally thousands of – things the Commission services do with implementing acts. Don’t count on all of this technical activity to be steered (or even be known) centrally.

Beyond these coordination challenges, there are various technical reasons to explain the discrepancies. Some that I have identified:

EurLex excludes so-called “ephemeral acts”– thorough readers will have spotted the footnote (***) in the table above. These acts concern the day-to-day management of agricultural matters, but it’s not clear how many acts are excluded. The comitology committees chaired by DG AGRI generate around 100 implementing acts per year, so this explains only a small part of the discrepancy.

Implementing acts in other areas also do not appear in the EurLex statistics or register. For example, DG SANTE-chaired committees accounted for about half of all implementing acts last year. The single biggest chunk (around 430 implementing decisions) moved through the Standing Committee on Medicinal Products for Human Use. However, EurLex only lists a total of 206 new and 101 amending decisions (see table above).

A small amount of legal acts are still adopted via old (pre-Lisbon Treaty) procedures and are accounted for differently across the platforms. For example, the REACH committee occasionally still uses the regulatory procedure with scrutiny.