The examination procedure for implementing acts is one the procedures used to establish secondary legislation. The Commission may be granted the mandate to establish implementing acts, but only if primary legislation allows for it and only within the boundaries set by the primary legislation.
Implementing acts are generally used to establish measures that ensure legislation is implemented in a similar fashion throughout the European Union. There are two procedures to establish such acts, the examination and the consultation procedure. In the examination procedure representatives of the member states review Commission proposals in committees. A negative advice may lead to a proposal being rejected. Note that neither the consultation or the examination procedure grant the Commission a mandate to establish additional measures in terms of scope and content that add to the primary legislation. In such cases the procedure for delegated acts is observed.
In short the procedure proceeds as follows: basic legislation stipulates on which part of the legislation the European Commission has to establish implementing measures. The Commission drafts an implementing act, which is then subject to a review by a committee of experts from the member states. If the experts issue a positive advice the Commission will adopt the implement act. When a negative advice is issued the Commission either amends its proposal or the proposal is sent to a committee of appeal. The committee of appeal can reject the proposal or allow the Commission to adopt the proposal.
Step 1: establish framework
Primary legislation determines for which elements of the legislation the European Commission is made responsible on how that legislation is to be implemented. This grants the Commission a mandate to establish binding measures for implemention.
Step 2: establishing implementing acts
The Commission drafts a proposal for an implementing act. The proposal is put to an examination committee made up of representatives of the member states.
Such committees are part of what is commonly referred to as 'comitology'.
This examination committee has three options:
1.it approves of the proposals with a qualified majority vote i
2.it rejects the proposal
3.it does not issue an advice
Should the examination committee approve or not issue an advice the Commission will adopt the implementing act.
Should the examination committee reject the proposal the Commission has two options:
1.the Commission amends the proposal. The proposal is then put to the examination committee again (in theory a neverending cycle of rejection and amendments can ensue)
2.the proposal is put to the committee of appeal
In the case of measures concerning taxation, human, animal and plant safety and mulitlateral trade agreements the Commission, when the examination committee has not issued an advice, is obliged to either amend the proposal or to put it to the committee of appeal. The same holds for cases where the examination committee finds, by simple majority vote i, that the Commission should not put foward implementing measures, despite not having issued a positive or negative advice.
Committee of appeal
When the Commission decides not to amend a proposal which was rejected by the examination committee the proposal is put to the committee of appeal. The committee of appeal reviews the proposal, taking the deliberations of the examination committee into account.
The committee of appeal is made up of representatives of the member states and chaired by the European Commission. Each of its members may propose amendments. The chair of the committee of appeal then, based on the suggestions that have greatest support, will amend the proposal so it can be put to vote.
The committee of appeal may only issue an opinion after two weeks of having received a proposal at the earliest, and it has to reach a conclusion within four weeks after it received a proposal. There are three possible outcomes:
1.the committee of appeal, by qualified majority vote, approves of the - possibly amended - proposal
2.the committee of appeal rejects the proposal
3.the committee of appeal does not issue an advice
Should the committee of appeal either approve of a proposal, or not issue an advice, the Commission will adopt the implementing act.
Should the committee of appeal reject the proposal its rejection is final.
Examination procedure in urgent cases
Step 1: establish framework
Primary legislation determines for which elements of the legislation the European Commission is made responsible on how that legislation is to be implemented. This grants the Commission a mandate to establish binding measures for implemention. A clause is added to the primary legislation that implementing measures should be adopted with great urgency.
Step 2: establishing implementing acts
The Commission adopts an implementing act. The implementing act has a maximum duration of six months.
Step 3: a posteriori advice
Within two weeks of adopting an implement act with urgency the Commission put it to an examination committee.
Should the examination committee reject the implementing measures will be retracted.
Exception for common market organisations & fraud EU subsidies
Implementing measures in these policy areas are put to the committee of appeal immediately, step 2 of the proces is skipped.
There are no rules for what happens should a negative advice be issued. In most cases the implementing measure will be amended.
Exception for anti-dumping and compensation measures
In these policy areas, when a simple majority of the examination committee rejects the implementing measures, the Commission will put the proposal to the member states before it will be sent to the committee of appeal.
Right of re-examination
Both the Council of Ministers as well as the European Parliament may, at any time, take issue with an implementing act. They can do so by stating that the Commission has, in their opinion, exceeded its mandate when establishing a particular implementing act.
The Commission is required to investigate any such claims made by Council and/or EP. The investigation can yield the following results:
1.the Commission informs Council and EP it will retract the implementing act
2.the Commission informs Council and EP it will amend the implementing act
3.the Commission informs Council and EP it will leave the implementing act unchanged
The Commission may only issue implementing acts when the following conditions are met:
-the primary legislation has to be legally binding
-implementing acts cannot in any way amend or add to contents or scope of the primary legislation
-implementing acts shall only concern the implementation of the act the Commission has been granted a mandate for
The examination procedure is generally used for implementing acts in the following policy areas:
-policy- and actionprogramme's that have significant consequences when implemented
-agriculture and fisheries
-taxation and fiscal affairs
-environmental protection, human, animal and plant health
Historically, the mandate of the Commission in policy areas that are highly complex like agricultural policy has been generously defined.
For implementing acts in other policy areas the consultation procedure for implementing acts i is used. Exeptions can be made.
Implementing acts are based on the Treaty on the functioning of the European Union:
-implementing acts: part six TFEU title I chapter 2 section 1 art. 291
-working arrangements between Council, EP and Commission on implementing acts (regulation 2011/182)