Fabian Bohnenberger

Debates in the European Parliament and the Council regularly make headlines, but this is not where the vast majority of EU law is made. Instead, most legal acts are adopted by the Commission, without much attention – or even involvement – of the legislators.

In 2022 alone, the Commission issued more than 2000 implementing acts and around 200 delegated acts. This compares to a (relatively meagre) 65 directives and regulations by Council and Parliament.

Keeping track of this avalanche of legal acts is challenging to say the least. A lot of this activity gets ignored even by EU experts in Brussels.

But the impact of Commission delegated and implementing acts is significant, even if the contents is often highly technical – or at least appears so at first glance. For example, these acts determine what economic activities are deemed sustainable, how chemical hazards are identified, which companies can comply with cybersecurity standards, and (soon) what ecodesign criteria most products need to meet.

What are delegated and implementing acts?

The terms “delegated” and “implementing” denote that this is law-making by the EU executive – the Commission. In other (national) systems, this kind of law is sometimes known as “executive acts”.

Importantly, both types of act can only be adopted based on empowerments in a basic act. There is some complexity to this but simply put, Parliament and Council need to confer specific powers on the Commission before it can start cranking out delegated and implementing acts.

But both delegated and implementing acts are legally binding, i.e., they take the form of regulations, directives or decisions!

The distinction between delegated and implementing acts was introduced in the Treaty of Lisbon and is (ill) defined in Articles 290 and 291 TFEU.

• Delegated Acts (Art. 290 TFEU) are non-legislative acts of general application, adopted by the Commission on the basis of a delegation contained in a legislative act (by Parliament and Council). They may “supplement or amend” the basic act, but only as to “non-essential” elements of the policy.
• Implementing Acts (Art. 291 TFEU) are acts that stipulate uniform conditions for implementing legally binding Union acts. Under no circumstances may an implementing act modify the basic act.

You may have noticed that, unlike delegated acts, implementing acts are not defined in terms of their legal characteristics but only their intended purpose (create “uniform conditions”). Older Commission guidelines even matter-of-factly state: “There is no actual substantive definition of implementing acts in Article 291.”

So what is the difference between these acts?

There are a number of important differences, but also some overlap. The treaty drafters’ original aim (this goes back to the Convention) was to distinguish between measures that are “quasi-legislative” in nature (delegated acts) and measures that can be regarded as “executive” (implementing acts).

The incomplete result in Articles 290 and 291 has left us weighing the meaning of the two verbs “supplement and amend” against “implement”. This kind of hair-splitting (sorry, interpreting the treaties) offers steady work for EU lawyers. As the Commission guidelines delightfully put it:

“It is not a matter of a scientific or magic formula the application of which would mechanically designate the nature of a power conferred on the Commission and allocate acts between Article 290 and Article 291. […] a case-by-case approach is necessary.”

The lack of clear delineation explains the frequent arguments and confusion about the type of act that should be used, which makes the choice of act political. Because of the procedures involved, Parliament generally tends to prefer delegated acts, whereas Council wants implementing acts.

This leads us to one key difference, which is how the acts are adopted:

• Delegated acts are adopted after consulting Member State experts, but their views are not binding.
• Implementing acts are adopted via comitology procedures, where Member State experts in specialised committees can, depending on the procedure that is used, object directly to the draft implementing act.

More on these processes, further differences and the politics behind it in the next post.