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The chapter begins by considering the core assumptions underlying the Lisbon model and the rationale for the division between delegated and implementing acts. The subsequent analysis then addresses the tensions and strains in the application of this divide. The ‘analytical and temporal’ tension that lies at the heart of the distinction between delegated and implementing acts is discussed. The focus then shifts to the ‘constitutional’ dimension, signifying in this respect the ways in which key constitutional assumptions have been undermined by political change and the impact that this has had on the relative power of the relevant institutions. This is followed by the ‘institutional’ tension. The penultimate tension is ‘legal form’ and the way in which it can affect application of the normative assumptions. The discussion concludes with the ‘conceptual’ dimension, which signifies the ways in which administrative choice can affect the dichotomy between the two kinds of act.

The procedures guiding the making of delegated and implementing acts have been conceived from a predominantly inter-institutional perspective and have not taken account of the participative democracy dimension. The system for delegation of powers set out in Articles 290 and 291 TFEU does not envisage, let alone structure, the relationships between decision-makers and the ‘outer’ sphere: those legally affected by the legal acts of the Union and the public. This dimension should not be ignored in the current constitutional framework, given that Articles 9, 10(3), and 11 TEU establish normative parameters that should shape the relationships between the institutions and citizens, and in the making of delegated and implementing acts. Therefore, since Articles 290 and 291 TFEU do not exhaust the constitutional framing of delegated and implementing acts, the EU legislature should provide a remedy by adopting procedural rules aimed at securing participation and transparency within the process.

According to a widespread assumption, the Treaty of Lisbon has established a three-tiered hierarchy between legislative, delegated, and implementing acts. This contribution challenges this view, arguing that only incomplete and partial hierarchies between different categories of acts adopted by the EU institutions exist. In particular, the distinction between delegated and implementing acts (Articles 290, 291 TFEU) constitutes a horizontal, rather than a vertical divide, placed at the same level of the hierarchy of norms. These two types of rulemaking powers are not mutually exclusive, given that the Treaty provides for a substantial overlap of their respective definitions. Delegated and implementing acts have essentially the same legal force, including the capacity to supplement or amend their basic act if the latter so provides, as explicitly foreseen in Article 290(1) TFEU. Accordingly, the choice between the two forms of Commission rulemaking is largely at the discretion of the EU legislature.

The European Parliament is often presented as a ‘winner’ of the Lisbon Treaty in this area. Indeed, Articles 290 and 291 TFEU grant Parliament powers in relation to the supervision of delegated acts and the design of arrangements for the adoption of implementing acts which it did not enjoy under old-style comitology. Moreover, as regards supervision of implementing powers, it achieved parity with the Council, at least on paper, in the sense that in theory neither is allowed to interfere with the exercise of the implementing powers conferred on the Commission. However, the introduction of the Appeal Committee can arguably be seen as the Council in all but name and the participation of national experts in the drafting of delegated acts is nothing else than the return of comitology by the back door.

Ever since the Lisbon Treaty introduced the new provisions on delegated rulemaking, the newly created institutional rules have undergone change. Some changes have occurred openly in the formal political arenas, and have been contested by the relevant institutional actors. By contrast, other changes have occurred in a more covert or invisible way, unfolding after the adoption of a formal rule in the course of its application, and may therefore be formalized at a later stage. The chapter focuses on the latter type of institutional change and its consequences and ask ‘Under what circumstances does “interstitial” institutional change occur, what are its dynamics, and its consequences?’ The comparison of four cases shows that the EP, in contrast to national parliaments, had real blocking power in the decision-making process and was able to force the Commission and the Council to offer some concessions and obtain a modification of delegation rules in its favour.

The notion of ‘essential elements of an area’ which appears in Article 290 TFEU demarcates a material preserve of the legislature, the origin of which is to be found in the Köster jurisprudence. If the content and function of this notion seem to remain the same, the new legal context created by the Lisbon Treaty raises uncertainties and new issues regarding the scope of the legislature’s domain. In the pre-Lisbon world, the notion of ‘essential elements of an area’ was designed to draw the border between what should be specified by primary acts and what may be regulated by secondary acts. Today there are reasons to wonder whether this notion confines only the EU legislature’s power to make legislative delegations or if it will continue to apply to the conferral by the EU legislature of implementing powers and to delegations contained in non-legislative primary acts.

This chapter explains the basic notions that will be used in the book, how they have emerged and what they mean; ‘primary’ and ‘secondary’ law, ‘legislative’ and ‘non-legislative’ acts, ‘delegated’ and ‘implementing’ acts, ‘delegation of powers’, ‘essential elements’ and ‘implementation’. The tone is neutral, careful not to reduce the complexity or interfere with the qualified assessments of all different authors. Focus is set on the development over time and the institutional context in which that development has taken place. An important ambition is to identify the legal sources which have been central for the development and also the sources which are today fundamental for the new system of delegation of powers. In addition to that statistics are presented on EU regulatory activity, which are central for all chapters of the book. Finally, the aim of the book is formulated and some important delimitations explained.

The last chapter of the book provides the general conclusions in which the striking patterns which can be drawn from the authors’ analyses are set out and the most forceful findings are identified. These patterns and findings are sorted within five central themes covering; the contrast between the constitutional expectations on the reform and its result; the seemingly smooth operation of the regulatory machinery; the over-simplified and still unclear implications for the institutional balance of powers; the unsolved and, thus, remaining problems where fundamental difference of opinion has persisted; and, finally, the judicial response. In addition, this chapter provides an answer to the basic question they addressed—whether the new system has really affected the old doctrine of delegation of powers—and discuss, briefly, some of the issues which call for further study.

This chapter discusses how the new system for delegation of powers has been put into practice by examining in some detail a number of classic key ‘sites’ for inter-institutional conflict. This includes new fora for inter-institutional relations such as the expert groups set up to consult on draft delegated acts and the Appeal Committees, providing the point of referral for comitology acts. It also explores the way in which the legislative process is being impacted by the choice between delegated and implementing acts, and the degree to which the EP and Council make use of opportunities to exercise their power to object to delegated acts or indeed to revoke the delegation of powers altogether. In conclusion, the chapter examines the impact that the new system has had on the long-standing tensions among the institutions and reflects on improvements as well as difficulties that can be expected in the future.

With the introduction of the category of delegated acts, the Lisbon Treaty ended an anomaly in the comitology system which allowed the European Commission to supplement or even amend a legislative act without the agreement of the legislature. The distinction between delegated and implementing acts has made the EU system more democratic, the European Parliament having acquired powers of supervision over legislative delegation equal to those of the Council. The EU system has also become more in keeping with the separation of powers, owing to a clearer delineation between matters that should fall to the legislative arm of government and those that should fall within the province of the executive. But there is a ‘grey zone’ between the two species of act and, in the absence of objective criteria provided by the Court of Justice, the choice between delegated and implementing acts will often remain a matter of political bargaining.

This chapter traces the evolution of the approach to executive rulemaking in the EU and the question of who is holder of executive power. It is argued that the Lisbon Treaty has ended a long controversy, in favour of executive federalism. The present model rests on the priority given to a decentralized system. This does not mean that there is no possibility for adopting executive norms at the EU level, where the power belongs to the Commission which only exercises it in cooperation with comitology committees. The Lisbon Treaty definitely clarifies the situation by substituting the old control by the ‘Council’ with a control by the Member States. The question of executive rulemaking now seems to be definitively settled and, due to the pragmatism of the institutions, there is now a stable situation. But the choice between the use of delegated acts and implementing acts remains a delicate question.