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Glossary · Energy industry & energy transition

Delegated Act (delegierter Rechtsakt)

Delegated act EU regulation hydrogen RFNBO Energy Policy

Delegated act is the English term for a delegated legal act of the European Union (in German: delegierter Rechtsakt). The European Commission adopts it on the basis of Article 290 of the Treaty on the Functioning of the European Union (TFEU). To do so, it needs an express empowerment in a legislative act, that is, in a regulation or directive adopted by the European Parliament and the Council. With a delegated act, the Commission may supplement or amend certain non-essential elements of that basic act. The basic act must expressly define the objectives, content, scope and duration of the delegation of power. The essential aspects of an area are reserved to the legislator and may not be delegated.

In energy policy debates, the English term is often heard. This applies above all to rules on renewable hydrogen, synthetic fuels, greenhouse gas balances and the EU taxonomy. The term matters because many rules of the energy transition are not set out in full in the legislation itself. Directives and regulations lay down objectives and principles. Rules on proof, calculation methods, thresholds and allocation criteria often follow only later in delegated acts.

Legal form and procedure

A delegated act is not a non-binding Commission paper. Under Article 290 TFEU, it is a non-legislative act of general application. It is therefore always legally binding. The legal form determines only how it takes effect: a delegated regulation applies directly in all Member States. A delegated directive, by contrast, must be transposed into national law. The title must include the word "delegated", for example "Commission Delegated Regulation (EU) 2023/1184". This makes such an act easy to recognise in the Official Journal.

Parliament and the Council do not rewrite the text themselves. They scrutinise it after the fact. The basic act may provide for two control rights. First, Parliament or the Council may revoke the delegation of power. Second, a delegated act enters into force only if neither of the two institutions raises an objection within a set period. To object or revoke, Parliament needs a majority of its members and the Council a qualified majority. Rejecting a text is therefore possible; changing its content is not. More recent basic acts often contain standard clauses. Under these, the power is delegated for five years, for example, and is tacitly extended. A revocation does not affect delegated acts already in force.

This construction has a practical reason. Markets, measurement methods, standards and systems of proof change faster than legislative procedures can respond. In the energy sector, this concerns, for example, emission factors, accounting rules, requirements for guarantees of origin or criteria for renewable fuels.

Distinction from regulation, directive and implementing act

Regulations and directives adopted under the ordinary legislative procedure are legislative acts. They contain the fundamental political decisions. A delegated act ranks below them and must stay within the limits of its empowerment. The Court of Justice of the European Union reviews whether the Commission has respected these limits. If it exceeds them, the Court of Justice can declare the act void.

The implementing act under Article 291 TFEU must be distinguished from the delegated act. It is meant to ensure that EU law is applied uniformly. However, it may not supplement the basic act in substance. For implementing acts, committees of representatives of the Member States oversee the Commission (comitology). For delegated acts, oversight lies with Parliament and the Council. When drafting, however, the Commission generally also consults experts from the Member States. Commission guidelines, communications or Q&A documents, by contrast, are not binding legal acts. They can nevertheless be important for interpretation.

Example: electricity sourcing rules for RFNBO hydrogen

Particularly well known is Delegated Regulation (EU) 2023/1184 of 10 February 2023. It supplements the Renewable Energy Directive (EU) 2018/2001 and is based on its Article 27(3). It sets out when electricity used to produce RFNBO counts as fully renewable. RFNBO are liquid or gaseous renewable fuels of non-biological origin. The rules also apply to production outside the EU. A second delegated regulation, (EU) 2023/1185, lays down the method for calculating greenhouse gas savings. Through the amendment RED III, RFNBO targets were also introduced for industry. For this reason, these rules matter beyond the transport sector.

The regulation distinguishes several ways in which electricity can be counted:

  • Direct connection: The renewable installation is connected to the electrolyser via a direct line. It may have started operation no earlier than 36 months before the electrolyser. If it is also connected to the grid, a smart metering system must prove that no grid electricity was used.

  • Grid electricity in highly renewable bidding zones: If the renewable share of a bidding zone in the previous year exceeds 90 percent, grid electricity counts as renewable. This applies only for a limited number of operating hours resulting from this share. If the emission intensity of the electricity is below 18 g CO2 equivalent per megajoule, additionality does not apply. In that case, however, power purchase agreements as well as temporal and geographical correlation are required.

  • Redispatch case: Grid electricity also counts as renewable if the electrolyser has demonstrably reduced the curtailment of renewable installations through redispatch in a settlement interval.

  • Standard case: Grid electricity must meet the criteria of additionality, temporal correlation and geographical correlation.

Additionality means that the electricity must come from own installations or from power purchase agreements. These installations may have started operation no earlier than 36 months before the electrolyser and, in principle, must not have received operating or investment aid. Under the current timetable, this obligation applies from 2028. On temporal correlation: until 31 December 2029, it is sufficient if hydrogen and contracted electricity are produced in the same calendar month. From 1 January 2030, matching within the same hour is mandatory. Member States may introduce hourly matching for production on their territory as early as 1 July 2027. Temporal correlation is always deemed fulfilled if the day-ahead price in the bidding zone is at most 20 euros per megawatt hour. The same applies if it is below 0.36 times the CO2 allowance price. For geographical correlation, the generation installation and the electrolyser must in principle be located in the same price or bidding zone. Under certain price conditions, an interconnected zone is sufficient. A connected offshore zone is also permitted.

Why these detailed rules matter economically

Electricity in the grid does not flow along individual contracts. Such rules therefore translate physical relationships into verifiable proof. Accounting periods, bidding zones and contracts are decisive here. The choice of these rules distributes costs and risks. With monthly matching, an electrolyser can achieve more full-load hours, and specific costs fall. Hourly matching, by contrast, forces an operating mode that follows wind and solar power. It is intended to prevent additional consumption from being counted in hours with fossil marginal generation. The Commission expressly justifies the criteria by stating that no incentives for more fossil electricity generation should arise. Stricter rules thus promote the flexibility of the installations. However, they may require storage, oversized renewable portfolios or lower utilisation. In doing so, they shift system costs rather than eliminate them.

Current status: review of the RFNBO rules

The regulation itself provides that the Commission is to report to Parliament and the Council by 1 July 2028 at the latest. The report is to show how the rules, in particular the progressively tightened temporal correlation, affect costs, greenhouse gas savings and the energy system. However, the market for green hydrogen is growing more slowly than expected. Industry associations, including the BDEW, are therefore calling for easing. It demands, for example, that additionality apply only from 2035 instead of 2028 and that hourly matching be postponed or dropped altogether. At the end of October 2026, the trade press reported that the Commission had confirmed plans to postpone individual RFNBO requirements. An amendment is to be adopted by the end of 2026. Until an amended delegated regulation has been adopted and the objection period of Parliament and the Council has expired, the deadlines mentioned above continue to apply. Project planning should therefore check the current status in the Official Journal.

Typical misunderstandings

  • "Just a technical side issue": Delegated acts are often drafted in technical terms. Their effect, however, is not technical. A calculation formula or a deadline can decide whether a product is counted towards a quota or receives support.

  • "The Commission acting alone": The power derives from a law adopted by Parliament and the Council. Both institutions can raise objections or revoke the power. However, the content of the text can be shaped mainly during drafting and consultation.

  • "National law": A delegated act is EU law. National authorities and certification schemes must apply it. National discretion exists only insofar as the act provides for it. One example is the Member States' right to introduce hourly correlation early.

Sources

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Edited by eCMS on 11.11.2026 18:48

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