How the concept of essential elements of a legislative act continues to elude the Court: Parliament v. Council

Abstract:

Although the European Parliament v. Council of the European Union (C-355/10) case relates to the pre-Lisbon comitology regime, the question put to the Court is also of vital importance for the post-Lisbon regime of delegated acts under Article 290 TFEU. This provision prescribes that the dividing line between (formal) legislation and delegated acts corresponds to the dividing line between the essential and non-essential elements of legislation, whereby delegated acts can only deal with non-essential elements.

The distinction between essential and non-essential elements was already present in the old comitology regime, ever since the Koster case. In the present case the Court missed an opportunity to shed greater light on the dividing line between essential and non-essential elements of legislation. In its ruling, the Court merely confirmed that what is "essential" also depends on the policy field concerned; the new element (ie the notion of "political choices") introduced by the Court is far from clarifying either.