FINANCING INSTRUMENTS FOR EU EXTERNAL ACTION : EP AND COUNCIL BATTLE IT OUT OVER DELEGATED ACTS.

• Position: European Parliament

The battle between the European Parliament and the Council over application of the delegated acts procedure for financing instruments for external action is a perfect illustration of the legal problems and political stakes created by the post-Lisbon comitology rules. The legal difficulties stem from the lack of precision of Articles 290 and 291 of the Treaty on the Functioning of the European Union where there is a wide margin of interpretation. The political stakes are Parliament's new power of scrutiny of non-legislative acts adopted by the Commission, which it has no intention of relinquishing.

The differences began in 2009, when the Commission proposed to amend Regulations 1905/2006, 1889/2006 and 1934/2006, respectively the financing instruments for the promotion of democracy and human rights, for cooperation with industrialised and other high-income countries, and for development cooperation. Concerning the latter, the revision aims to allow more flexible use of the instrument and to establish a temporary programme (2010-2013) of accompanying measures for the ACP states in the banana sector (or BAM programme).

Since the revision is subject to co-decision following the entry into force of the Lisbon Treaty, the EP amended these texts at first reading, on 21 October 2010, calling for the use of delegated acts, in accordance with Article 290 TFEU, for adoption of the strategy papers for the thematic and geographical programmes as well as the multiannual indicative programmes developed by the Commission.

Introduction of this procedure would give the EP - and the Council - the right to oppose or even annul the Commission's acts. In fact, this is a right of veto which unquestionably strengthens the EP's control over financing instruments for external cooperation. However, on 10 December 2010, the Council categorically rejected the proposal, arguing that the implementing procedure applies in this case. Foreseen by Article 291 TFEU, it gives the Commission powers to implement the basic act, but member states alone have the power to control such implementation.

On 3 February 2011, the EP stood its ground and confirmed the use of delegated acts at second reading, thus bringing the matter before a conciliation committee.

For MEP Charles Goerens (ALDE, Luxembourg), rapporteur for the proposal establishing accompanying measures for the banana sector, "this is the first time that Article 290 has been relevant [in the field of external cooperation]...