Comitology, Rulemaking and the Lisbon Settlement: Tensions and Strains

Abstract:
The Lisbon Treaty created the dichotomy between delegated and implementing acts in Articles 290 and 291 TFEU, having taken over the core assumptions in this regard from the Constitutional Treaty.

The chapter begins by considering the core assumptions underlying the Lisbon model and the rationale for the division between the two species of secondary acts. The subsequent analysis then addresses the tensions and strains in the application of this divide in the years since the Lisbon Treaty was ratified.

There is discussion of the ‘analytical and temporal’ tension that lies at the heart of the distinction between delegated and implementing acts. It includes analysis of the relative use of the two types of measure, the factors that have driven legislative assignation of secondary measures to the two categories, and judicial attempts to clarify the distinction between the two.

The focus then shifts to the ‘constitutional’ dimension, signifying in this respect the ways in which key constitutional assumptions underlying the Lisbon schema have been undermined by political change in the form of, for example, the Common Understanding, and the impact that this has had on the relative power of the Council, European Parliament and Commission.

This is followed by the ‘institutional’ tension, which connotes for these purposes the way in which institutional change such as establishment of the new European Supervisory Authorities in the financial area has impacted on the regime for delegated and implementing acts in the Lisbon Treaty.

The penultimate tension is ‘legal form’ and the way in which the relative use of soft law and hard law can affect application of the normative assumptions underlying Article 290 and Article 291.

The discussion concludes with the ‘conceptual’ dimension, which signifies the ways in which administrative choice as to whether to develop policy through rulemaking or adjudication can affect the Lisbon dichotomy between the two kinds of act.

[This is a draft Chapter from a book: C-F. Bergstrom and D. Ritleng (eds.), Rulemaking by the Commission: The New System (Oxford: Oxford University Press, 2015)].