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BPR challenged for the first time before the Court of Justice

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Belgium

The Court of Justice of the EU (''CJEU'') has delivered a judgment (C-472/12, Commission v. Parliament and Council) in which the Biocidal Product Regulation 528/2012 (''BPR'') was challenged.
EU Regulatory Bulletin contents

 

On 18 March 2014, the Court of Justice of the EU (''CJEU'') delivered a judgment (C-472/12, Commission v. Parliament and Council) in which the Biocidal Product Regulation 528/2012 (''BPR'') was challenged for the first time. Specifically, the EU Commission sought the annulment of Article 80 (1) of the BPR.

Article 80 (1) of the BPR confers on the Commission the power to adopt an implementing regulation, pursuant to Article 291 (1) (2) TFEU, concerning the fees payable to the European Chemical Agency (''ECHA''). The institution claimed before the CJEU that the BPR did not provide enough elements to guide its decisions on fees. Thus, the EU Parliament and the Council were wrong in choosing an implementing measure (vis-à-vis a delegated act) in conferring competences to establish the fees.

In general, the difference between an implementing and a delegated act is the degree of independence granted to the Commission. When the EU legislature confers a delegated power on the Commission  in a legislative act pursuant to Article 290(1) TFEU, the Commission is called on to adopt rules which supplement or amend certain non-essential elements of that act, and as such, the Commission essentially acts alone. By contrast, when the Parliament and the Council confer an implementing power on the Commission on the basis of Article 291(2) TFEU, the Commission is called on to provide further detail in relation to the content of a legislative act, in order to ensure that it is implemented under uniform conditions in all Member States. In this second scenario, the institution needs to act together with a committee of representatives of the Member States.

The Court dismissed the action brought by the Commission and ruled that: first, the EU legislature reasonably took the view that Article 80(1) of the BPR confers on the Commission the power, not to supplement certain non-essential elements of that legislative act, but to provide further detail in relation to the normative content of that act, in accordance with Article 291(2). Second, since the system of fees referred to in Article 80(1) relates to fees payable to an EU agency, the conferral of an implementing power on the Commission under Article 291(2) TFEU may be considered reasonable for the purposes of ensuring uniform conditions for the implementation of that system within the European Union.  

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