Summary As proposed, the European Commission is legally required to consult experts designated by each Member State before adopting any delegated act under the Cloud and AI Development Act (CADA). This obligation is explicitly set out in Article 45(4) of the proposal, which mandates that such consultation be conducted in accordance with the principles of the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. Crucially, to guarantee equal participation, Recital 86 clarifies that experts from the European Parliament and the Council must receive all preparatory documents at the same time as Member State experts and must have access to the relevant Commission expert group meetings. This ensures that the technical rule-making process remains transparent and inclusive of all key EU institutional stakeholders.

Detail

The Cloud and AI Development Act (CADA), as proposed in COM(2026) 502 final, establishes a dynamic regulatory framework for cloud and AI ecosystems. To allow this framework to adapt to rapid technological shifts without requiring full legislative amendments, the proposal grants the Commission the power to adopt delegated acts. However, this power is strictly conditioned on a robust consultation process designed to prevent unilateral decision-making and ensure technical accuracy.

The Statutory Consultation Obligation

The primary legal basis for this consultation is Article 45(4) of the CADA proposal. The text is unambiguous:

"Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making."

This provision creates a mandatory procedural step. The Commission cannot bypass the consultation of Member State experts, regardless of the urgency of the technical update. The experts designated by Member States are typically national officials with specific competence in the relevant fieldsβ€”such as cloud infrastructure, cybersecurity, AI governance, or public procurement. Their input is intended to ground the delegated acts in the practical realities of national implementation and to ensure that the measures are proportionate and feasible across the Union.

The Framework: The 2016 Better Law-Making Agreement

The reference to the Interinstitutional Agreement of 13 April 2016 on Better Law-Making is not merely a formality; it imports a comprehensive set of procedural safeguards into the CADA process. This Agreement, negotiated between the European Parliament, the Council, and the Commission, establishes the "gold standard" for how delegated acts should be prepared.

The Agreement ensures that the consultation is not a "box-ticking" exercise but a substantive dialogue. It mandates that:

  • Consultations must be conducted at an early stage.
  • All relevant documents must be shared simultaneously with all stakeholders.
  • Experts from the European Parliament and the Council must be given the opportunity to participate in the expert groups preparing the acts.

Ensuring Equal Participation: Recital 86

While Article 45(4) sets the rule, Recital 86 of the CADA proposal provides the necessary interpretative context to ensure "equal participation in the preparation of delegated acts." The recital explicitly addresses the risk of information asymmetry between the Commission, Member States, and the legislative institutions.

It states that:

"In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council should receive all documents at the same time as Member States' experts, and their experts should always have access to meetings of Commission expert groups dealing with the preparation of delegated acts."

This requirement is critical for two reasons:

  1. Simultaneous Document Access: The European Parliament and the Council must not receive drafts, impact assessments, or technical data later than Member State experts. This prevents the legislative bodies from being forced to react to a "fait accompli" or to make decisions based on incomplete information.
  2. Meeting Access: Experts from the Parliament and the Council are entitled to attend the meetings where the technical details are debated. This allows them to ask questions, challenge assumptions, and contribute to the drafting process in real-time, rather than just reviewing the final text.

Scope of Delegated Acts Subject to Consultation

The consultation obligation applies to all delegated acts adopted under the powers conferred by Article 45(2). As proposed, these powers cover significant technical and policy adjustments, including:

  • Amending Annex I: To reflect relevant market and technological developments regarding the Cloud and AI Leadership Initiatives (via Article 6(4)).
  • Amending Annex II and III: To update the criteria for Union assurance levels and the evidence required for audits (via Article 16(2) and Article 21(1)).
  • Laying down detailed rules for audits: Including procedural steps, methodologies, and templates for auditing organisations (via Article 20(9)).
  • Specifying Union assurance levels: For specific contracting authorities (via delegated acts under Article 16(2)).
  • Requiring impact assessments: For private companies operating in sectors of high criticality (via Article 31(3)).

For each of these high-stakes technical updates, the Commission must adhere to the consultation protocol defined in Article 45(4) and Recital 86.

The Oversight Mechanism

The consultation process is a prerequisite for the adoption of the act, but it is not the final step. Once the Commission adopts a delegated act, it is subject to a scrutiny period by the European Parliament and the Council. Under Article 45(6), a delegated act enters into force only if neither institution objects within a period of two months of notification. This period can be extended by three months at the initiative of either institution.

The quality of the consultation process directly impacts this scrutiny phase. If the Commission fails to consult experts properly, or if the European Parliament and Council were denied equal access to documents or meetings as required by Recital 86, the legitimacy of the act could be challenged. While the primary remedy is the objection procedure (veto), procedural flaws can also form the basis for annulment actions before the Court of Justice of the European Union.

What this means for you

For legal counsel, compliance officers, and industry stakeholders, understanding the consultation mechanics of CADA is vital for strategic engagement and risk management.

1. Strategic Engagement with National Authorities

Since the Commission must consult experts designated by each Member State, the most effective way for industry stakeholders to influence the content of a delegated act is to engage with their national authorities. By providing technical briefings, data, and impact analyses to national experts before the Commission's expert group meetings, stakeholders can ensure that their concerns are raised during the mandatory consultation phase.

2. Monitoring Transparency and Access

The requirement for simultaneous document sharing (Recital 86) means that the European Parliament and the Council will have the same information as national experts. Stakeholders should monitor the public registers of Commission expert groups and the publications of the European Parliament's committees. If documents are leaked or shared asymmetrically, it could indicate a procedural breach that might be grounds for political objection.

3. Preparing for Technical Specifics

The delegated acts will define the granular details of CADA, such as the exact audit evidence required for Union Assurance Levels 2, 3, and 4 (Article 21) or the specific methodologies for auditing organisations (Article 20). Because these details are shaped by the consultation process, compliance teams should track the progress of these acts closely. Early engagement during the consultation phase is far more effective than trying to adapt to a finalized act.

4. Anticipating the Legislative Timeline

While the Commission has an indeterminate period to adopt these acts (Article 45(2)), the consultation process adds a layer of time and complexity. Stakeholders should anticipate that significant delegated acts, particularly those amending the assurance criteria in Annex II, will undergo a rigorous consultation cycle involving Member States, the Parliament, and the Council.

Common misconceptions

Misconception 1: The Commission can adopt delegated acts unilaterally. Reality: Article 45(4) explicitly prohibits this. The Commission must consult experts designated by each Member State. This is a mandatory legal requirement, not a discretionary policy choice.

Misconception 2: Only Member State experts are consulted. Reality: While Member State experts are the primary consultees under Article 45(4), Recital 86 ensures that the European Parliament and the Council are treated as equal partners. They receive documents simultaneously and have access to meetings, ensuring that the legislative branches are not sidelined.

Misconception 3: The consultation is a public hearing open to anyone. Reality: The consultation under Article 45(4) is an institutional process involving designated experts from Member States, the Commission, and the legislative institutions. While public consultations may occur separately, the specific legal obligation refers to this expert-level dialogue.

Misconception 4: Once the Commission adopts a delegated act, it is final. Reality: Delegated acts are subject to a veto by the European Parliament and the Council. If either institution objects within the scrutiny period (two months, extendable by three), the act does not enter into force. The consultation process is a critical safeguard to prevent such objections.

Related

This is general information about a draft EU regulation, not legal advice.