Delegated acts and implementing acts explained in simple terms

In European Union Law, it has been very common to confuse delegated acts (Article 290 TFEU) with implementing acts (Article 291 TFEU); or, more accurately, to overlook their true differences.

First

The first thing to note about them is that they are NON-legislative acts and therefore arise outside the ordinary legislative procedure. They are adopted, instead, under the authorization of the Council and the European Parliament, through the European Commission.

Secondly

Secondly, it is useful to break down their differences.

Implementing acts were conceived to ensure a uniform application of EU Law across all Member States, but this does not mean that they can be used to amend the basic legislative act.

On the other hand, delegated acts, do allow the Commission to supplement or amend non-essential elements of the basic legislative act.

Thirdly

Thirdly, we can look at the particularities of each type of act.

In the case of implementing acts, neither the Parliament nor the Council can block their adoption, whereas delegated acts only enter into force provided that neither the Council nor the Parliament objects —which, ultimately, makes sense—.

It is usually the European Commission that is responsible for adopting implementing acts, though sometimes it is the Council that does so. These acts generally have to go through the so‑called “comitology” procedure, which is essential to the Commission’s decision‑making process.

This procedure is divided into a consultation phase and an examination phase. In this second phase —the examination phase— the Member States can block the adoption of an implementing act.

In some cases, implementing acts may be immediately applicable if duly justified, meaning that the committee is not consulted.

As for delegated acts, the basic legislative act must include a delegation of power authorizing the Commission to adopt them; a competence that the Council and the Parliament may revoke at any time.

As mentioned earlier, implementing acts involve two stages. Delegated acts follow the ones above:

i) preparation and consultation of experts;

ii) examination by the Council and Parliament; and

iii) entry into force —or not— depending on whether the Parliament or the Council has raised any objections.

You can consult the register of delegated and implementing acts, as well as follow meetings of expert groups, in this link.