KANBrief 2/23

The implementing act: an instrument for harmonized implementation of EU legislation

Primary responsibility for implementing EU legislation lies with the Member States. In specified areas, the European Commission or the Council may pass implementing acts to ensure harmonized implementation.

To ensure that EU legislation is transposed and applied uniformly, the Commission – and in special cases also the Council – has the power to pass implementing acts. This mechanism is also intended to address ongoing developments that would otherwise necessitate revision of legislation that has already been adopted.

Implementing acts may be adopted only in areas where harmonized conditions for implementation are necessary. These areas include the safeguarding of human safety and health. A further requirement is that the initial legislation concerned must make provision for an implementing act to be adopted, defining the specific objectives and requirements of this instrument. Although in the majority of cases the power to adopt implementing acts is conferred upon the Commission, it may be conferred upon the Council in duly justified special cases and in the cases provided for in Articles 24 and 25 of the Treaty of the European Union (common foreign and security policy).

Implementing acts may be employed in a variety of ways, for example:

  • To establish framework conditions for harmonized implementation of legislation (e.g. limit values for chemical substances in toys involving a high degree of exposure, Directive 2009/48/EC)
  • During safeguard clause procedures, in the form of a decision as to whether or not a measure taken at national level for implementing a legal provision is justified (e.g. Article 71, Commission proposal of a Construction Products Regulation COM(2022) 144; Article 64, Commission proposal of an Ecodesign Regulation COM(2022) 142)
  • As a basis for the adoption of common specifications (e.g. Article 20 of the current draft text of the Machinery Regulation, draft adopted by the Parliament and Council; not legally binding until published in the Official Journal of the EU).

Procedure for the adoption of implementing acts

Pursuant to Article 291 of the Treaty on the Functioning of the European Union, general rules and principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers are set out in the initial legislative act by the European Parliament and the Council. This is supplemented by Regulation (EU) No. 182/2011 on committee proceedings.

Under these comitology rules, as they are known, a committee of experts is consulted when implementing acts are drafted. This committee is composed of representatives of the Member States. The latter are thereby involved in the adoption of an implementing act. However, this procedure is not mandatory for all implementing acts: in certain cases, such as the allocation of grants below a certain threshold, the Commission may adopt implementing acts without consulting a committee.

The Better Regulation (guidelines and toolbox) agenda also granted citizens and stakeholders four weeks in which they can submit comments before the committee rules on the implementing act. The committee’s discussions are summarized and published in the comitology register. Whereas the European Parliament and the Council must expressly consent to delegated acts (see below), they possess only rights of information and scrutiny when implementing acts are adopted. The right of scrutiny makes provision for the Parliament and/or the Council to reject an implementing act should it exceed the powers conferred by the initial act. Explicit consent is not required.

Implementing acts in the Machinery Regulation

The implementing acts serve an important purpose in the new Machinery Regulation. Article 20 of the draft text, which was recently adopted by the European Parliament and the European Council, empowers the Commission to establish common specifications for the essential health and safety requirements by means of implementing acts as an exceptional fall back solution, i.e. where the European standards organizations fail to propose suitable standards for harmonization. The exact procedure is as yet unclear, however. The question arising is not least how the technical expertise and appropriate participation of all stakeholders can be ensured during adoption of any implementing acts.

Katharina Schulte

Delegated acts

Besides implementing acts, the European Commission may also adopt delegated acts to support other legislation. The differences between the two instruments are described in KANBrief 4/22.