1. The fuzzy distinction between delegated and implementing acts

The first line of debate concerns conceptualising the distinctions between EU executive and Member State implementing actions. Conceptionally, in law and practice, the choice between executive rulemaking utilising delegated acts and executive rulemaking using implementing acts has not often been a clear-cut exercise. Both scenarios of explicit delegation of executive rulemaking powers to the Commission via delegated acts (Article 290) and implementing acts (Article 291 TFEU) establish a particular institutional balance, whereby the Commission is foreseen as the exclusive (Article 290 TFEU) or primary beneficiary alongside the Council of the EU (Article 291 TFEU) of the “delegation” of powers. In turn, the EU Treaties enshrine specific systems of oversight over the Commission’s delegated powers depending on each delegation scenario: (1) the possibility to object to the entry into force of specific delegated acts and to revoke entirely the delegation by the EP and the Council (Article 290 TFEU); (2) the principle of control by the Member States over the exercise of implementing powers by the Commission (Article 291 (3) TFEU).

The underlying EU policy implementation model is still formally premised on a default concept of “indirect administration” enshrined in Article 291 (1) TFEU, under which Member States, in principle, adopt all measures necessary to implement legally binding Union acts.Footnote ⁸ Implementing powers are to be exercised at the EU level (and conferred generally to the Commission and more rarely to the Council) quite restrictively, only when “uniform conditions” are needed for the implementation of EU binding acts. The trade-off for the limited centralisation of executive power at the EU level consists of subjecting the exercise of such powers (in particular when the Commission exercises them) to control by the Member States as “default-owners” of the power to implement EU law. However, the design of the control system is left to the EU legislator (Article 291 (3) TFEU).

As a result, the shaping of the detailed control system over the Commission’s implementing powers was for the first time adopted by both arms of the EU legislator in the form of EU Regulation 182/2011 (also known as “Comitology” Regulation 2011),Footnote ⁹ as opposed to the previous “Comitology” Decisions adopted by the Council alone.Footnote ¹⁰ Yet, in line with Article 291 (3) TFEU, “comitology” procedures are Member States’ control tools – like before Lisbon. However, in addition to Member States’ control mechanisms, the “Comitology” Regulation also enshrines a limited right of scrutiny for the EP and the Council, enabling them to oversee whether the Commission is acting within the boundaries of its mandate for implementing powers enshrined in the basic legislative act.Footnote ¹¹

Despite the formal delineations in the Treaties, the scope of application of delegated and implementing acts in Articles 290 and 291 TFEU has been formulated in inconsistent language and lacks a joint conceptual context. From the outset, this resulted in ambiguity and some degree of overlapping fields of application. For example, it is difficult to imagine how “implementing” a norm (the term used in Article 291 TFEU) could be undertaken without further “supplementing” the details and non-essential original provisions (the concept of Article 290 TFEU) of the main legislative act. The lack of conceptual legal clarity has led to legislative discretion and inter-institutional disputes in trilogue negotiations. Each negotiating institution has a pre-determined set of preferences for delegation via Article 290 or 291 TFEU due to differences in adoption procedures and oversight mechanisms attached to each act. Areas of uncertainty and potential overlaps between the two types of rulemaking powers delegated to the Commission (in particular between supplementing delegated acts and implementing acts of general application) are legendary.Footnote ¹² Therefore, EU legislative procedures and the reality of interinstitutional cooperation and practice have inevitably led to a further blurring of those few existing demarcation lines between Articles 290 and 291 TFEU.

2. Oversight over EU delegated powers

Second, the Treaty of Lisbon has not ended the conflict of how democratic oversight over executive rulemaking can be ensured. The formal albeit limited role of the EP and the Council in the oversight of the exercise of the Commission’s implementing powers via the “Comitology” Regulation (Article 11) along with the informal involvement of the Member States (via the systematic consultation and involvement of national experts by the Commission) in the making of delegated acts before their adoption are already telling signs of difficulties in maintaining each in a tightly separated category. This would appear like a creeping de facto collusion between the (control) systems of delegation under Articles 290 and 291 TFEU. Is this a sign of a dynamic development of the legal framework for the conditions under which executive delegated rulemaking powers are exercised by the Commission? Or is this a sign of institutional practice moving away from the constitutional framework?

One way of considering this point is to examine why the idea of creating a category of “delegated acts” in Article 290 TFEU was introduced to the abandoned Constitutional Treaty and the subsequent Treaty of Lisbon. At first sight, the basic idea behind this was to unload “non-essential” elements of legislative matters to an executive body to avoid overly detailed legislation in the EU, and to strengthen the EP’s control in overseeing ex-post the powers delegated to the Commission under Article 290 TFEU.Footnote ¹³ However, that is what pre-Lisbon “comitology” procedures were already allowed to do under the case law of the Court of Justice of the European Union (CJEU),Footnote ¹⁴ accepting basically two hierarchical levels in derived law: (1) acts with a legal basis in the EC Treaty provisions and (2) implementing acts with a legal basis in a secondary legal Act.Footnote ¹⁵

Therefore, the Treaty of Lisbon drafters intended to “tidy” matters by solving the underlying conflict of models of the legitimate exercise of public powers in the EU and the appropriate “institutional balance.”Footnote ¹⁶ Within the decades-old conflict on the conditions for delegation of executive competencies to the Commission under the system of “comitology” committees, the EP had repeatedly tried to establish the right to become involved in the supervision of delegated powers under a parliamentary model of legitimacy.Footnote ¹⁷ The development of the Lisbon Treaty’s typology must, therefore, also be seen – and reassessed – in view of the experiences with the intense inter-institutional disputes of the previous decades.Footnote ¹⁸

3. Additional “delegation of powers” scenarios

Third, one needs to consider the various “delegation of powers” scenarios established in addition to those enshrined in Articles 290 and 291 TFEU. Deliberately or by oversight, the drafters of the Treaty of Lisbon had failed to recognise in the formulation of delegation of rulemaking powers the growing role of EU agencies and bodies in the system of implementation of EU law, as well as the complex reality of EU “composite”Footnote ¹⁹ or “hybrid”Footnote ²⁰ structures and procedures creating an integrated European administration. The entire debate on distinguishing between EU and Member States’ powers in implementation is rather incomplete without an understanding of the role of EU agencies and bodies therein. Therefore, discussing forms of democratic oversight over implementation without understanding the reality of a multilevel and often composite or hybrid implementation of EU law, featuring a mix between EU and Member State agencies and bodies embedded in a close cooperation framework between the European and national levels appears somewhat anaemic.

Instead, EU agencies and bodies have been created mainly by EU legislative acts to develop expertise and act as coordinators of EU policy networks. They are designed to give recommendations, set standards, and issue guidelines for a more effective implementation of EU law. In some policy areas, they are supposed to draft delegated or implementing acts to be adopted by the Commission in procedures under Articles 290 and 291 TFEU, or by the Member States in their respective procedures. EU agencies and bodies are, therefore, some sort of “in-betweeners”Footnote ²¹ who can participate in composite rule-making procedures, giving decisive input into a final decision adopted by the CommissionFootnote ²² or a Member State body.Footnote ²³

4. EU agencies as a complicating factor of the post-Lisbon system of delegated powers

Fourth, although the CJEU set some conditions for the empowerment of EU agencies and other bodies in its ESMA/Short selling judgment,Footnote ²⁴ the large degree of discretion left to the EU legislator in designing such alternative delegation scenarios raises legitimate questions as to how such developments sit with the system of delegated powers in Articles 290 and 291 TFEU. In particular, whether they alter the interinstitutional balance and/or the balance of powers between the EU and its Member States reflected in these provisions.

The most central balancing exercise exists concerning policy-specific legal basis provisions allowing for the adoption of “measures” as well as other general legal basis provisions in the Treaties.Footnote ²⁵ As to the general legal basis, initially, this was the so-called “flexibility” clause, which is now in Article 352 TFEU. Today, most of the EU agencies, created by legislative act, have Article 114 TFEU as their legal basis.Footnote ²⁶ This allows for adopting measures for the approximation of Member State law, including Member State implementation of EU law (Article 291(1) TFEU). The CJEU confirmed earlier this understanding in cases such as ENISA and Smoke flavourings.Footnote ²⁷ According to that case law, by granting the EU legislature the power to adopt “measures for the approximation” of Member State legislative or administrative acts, Article 114 TFEU confers on the legislator discretionary powers as regards the “matter to be harmonised” and the “method of approximation” including by creating EU agencies and bodies.Footnote ²⁸ Next, in ESMA, the CJEU took EU agencies’ empowerment to the next level by generously extending the powers that may be entrusted to EU agencies and bodies to measures of general application while simultaneously relaxing the initial criteria of the so-called Meroni doctrine.Footnote ²⁹

We are, therefore, confronted with a seemingly inconsistent double approach. On the one hand, the Treaty generally reserves implementing powers to the Member States. Some implementing powers can be conferred on the Commission and, more rarely, on the Council when “uniform conditions” are required. The TFEU also formally designates the Commission as the seemingly unique EU institution that may amend/supplement EU legislative acts via delegated acts. On the other hand, outside the realm of Articles 290–291 TFEU, the Treaty arguably allows harmonising executive rulemaking powers by means of legislation, creating EU agencies and bodies and delegating powers to them. Where this double approach is leading, what its constitutional limits are, and whether a clarification of delegation of rulemaking powers beyond the Commission would be helpful, must be further discussed. Currently, the quickly evolving EU agencies’ system leaves many open questions. These concern the scope, conditions, limits and exercise of such delegated powers, how they may impact on the balance of powers within the EU institutional system as well as between the EU and its Member States. Open questions also remain regarding the control of such alternative delegated executive rulemaking powers.Footnote ³⁰

5. Hybrid multilayered executive frameworks and the system of delegated powers

Fifth, we should not ignore the composite and hybrid implementation of EU law through multilayered networks of regulators. The Union is based on a collaborative and cooperative model of integrated administration. Executive rulemaking powers – whether as delegated powers under Articles 290–291 TFEU or alternative delegation scenarios – are exercised within increasingly hybrid or composite models for implementing EU law and policies. Such models feature a mix of EU-level and national actors whose roles, tasks and powers are intricately intertwined.Footnote ³¹ Additionally, such hybrid frameworks may entail the involvement, in complex ways, of private actors who may also influence the exercise of executive rulemaking powers.

As illustrated by two contributions in this Special Issue examining the EU energy regulatory framework,Footnote ³² intricate configurations occur whereby delegated powers are exercised within networks of EU level and national regulators, sometimes with significant input from market players. Such policy areas are based on a distribution of powers in policy-specific ways linking, by procedure and by structural design, EU-level bodies and national actors. Examples of EU-level institutional structures illustrating this phenomenon include the network-oriented European Union Agency for the Cooperation of Energy Regulators (ACER),Footnote ³³ examined more comprehensively in this Special Issue,Footnote ³⁴ the Body of European Regulators for Electronic Communications (BEREC), an EU body set up as a cooperation network of European regulators, together with its Agency for Support for BEREC (the “BEREC” Office),Footnote ³⁵ as well as the European Data Protection Board (EDPB),Footnote ³⁶ with a similar composition of national Data Protection Authorities.

The same applies to procedures allowing EU agencies to conduct executive rulemaking in composite forms. Such are standard-setting by EU agencies for national implementation procedures and further fleshing out definitions of broad legislative terms in specific contexts, thus supplementing detail to broad legislative terms. Examples include standard-setting powers that leave the European Supervisory Authorities (ESAs) wide regulatory discretion to write rules defining acceptable risks for financial markets and the financial system’s stability.Footnote ³⁷ Some such standard-setting conducted by EU bodies and agencies, like the European Union Agency for the Cooperation of Energy Regulators (ACER), is also undertaken in forms of co-regulation as the example of codes in energy and trans-European networks.Footnote ³⁸ Network codes-setting standards regulate matters in areas with considerable economic and political sensitivity, such as energy security.

Such complex, multilayered and multi-actor frameworks and decision-making processes raise important questions and concerns about the extent to which they reflect the system of delegated powers and the balance of powers enshrined in the Treaties.

6. Taming delegated executive rulemaking through procedural standards

A sixth aspect concerns the important notion of procedure. Given the context of the highly diversified set of actors involved in executive rulemaking, procedural law is central to ensuring compliance with constitutional norms. This covers not only the already discussed questions of the choice of legal basis, the limits of delegation to preserve legality and safeguard the balance of powers, but also the procedures following the establishment of a draft act. More generally, EU executive rulemaking procedures have to be structured in a way to ensure compliance with constitutional principles, including matters of transparency in terms of access to documentation, information about upcoming rulemaking activities, clarification of procedures and responsibilities, as well as in terms of participation, consultation, and the duty of care.Footnote ³⁹ In this sense, there may well be the necessity of a set of meta-norms in the form of rules and principles that guide a rulemaking procedure and which thereby can infuse compliance with and realisation of core constitutional principles.

The discussions on inter-institutional relations and parliamentary oversight are also indicators of the necessities of such general procedural rules, which exist very partially in terms of the “Comitology” Regulation for the specific subsett of procedures after a Commission proposal is made for the adoption of an implementing act. However, more generally, procedural norms can enhance decisional quality by inter alia ensuring that a wide range of information and opinions is available to a rule-maker. Procedural norms should not be policy-specific but, where possible, should be applicable across sectors and constellations of actors involved in executive rulemaking. The Interinstitutional Agreement on Better Law-Making of 2016Footnote ⁴⁰ and the Commission guidelines on its implementationFootnote ⁴¹ apply to only very limited types of executive rulemaking. If procedural norms try to ensure that the right decision is made more often than not, preparatory stages of decision-making, from the moment it is put on the agenda to the moment of its formal adoption, are precisely the stages that may be essential for ensuring compliance with constitutional principles in EU law.

Fine-grained procedural standards can thus enhance the legitimacy and the intrinsic quality of EU executive rulemaking, facilitate better control of delegated executive powers, and foster clarity, coherence and constitutional compatibility within the increasingly eclectic post-Lisbon EU system of delegated powers.

7. Democratic legitimacy, control, accountability, transparency and balance of powers in delegated executive rulemaking

The seventh aspect concerns the Treaty of Lisbon’s objectives to simplify legal instruments, enhance transparency, strengthen democratic legitimacy, increase efficiency and contribute to a better division of powers between the Commission and the EU legislator in delegated rulemaking.Footnote ⁴² However, transparency and democratic control of “comitology” and “Article 290 TFEU” delegated decision-making remain problematic.

Over decades, the EP has continuously expressed dissatisfaction due to concerns about transparency and limited review and oversight in comitology procedures.Footnote ⁴³ Post-Lisbon, concern has been voiced that general or individual implementing acts (e.g. for GMO for crops, glyphosate, biocidal products, or endocrine disruptors) are not subject to in-depth parliamentary scrutiny, despite political relevance, due to limits on powers of oversight, confined to a mere “droit de regard” by the EP.Footnote ⁴⁴ One may consider further enhancing the role of national and/or EP parliamentary experts in “comitology” meetings as a way to systematically improve transparency, political accountability and democratic legitimacy of executive rulemaking for implementing acts.

As for delegated acts, the role of the EP is confined to ex-post controls, which formally places this institution on an equal footing with the Council. Yet the intergovernmental interests of the latter are put forward in practice by the Member States’ expert groups involved ex-ante in preparing the draft delegated act by the Commission. This may raise concerns regarding transparency and democratic accountability for delegated rulemaking in the EU, as well as the balance of powers between the EU institutions, and between the EU and its Member States. Thus, it appears that despite the institutional balance suggested by the wording of Article 290 TFEU, the balance of powers post-Lisbon in practice still favours the Council. Arguably, the involvement of expert groups mimicking “Comitology” additionally increases the influence of the Member States in adopting Commission delegated acts. Thereby, the balance of powers formally reflected in Article 290 TFEU is being reshaped to the benefit of the Council and not the EP as expected following the Lisbon Treaty’s changes to the rules.

The whole discussion over controlling Commission’s delegated executive rulemaking powers also risks remaining rather formal and theoretical in light of other developments shaped by institutional practice. There is apparently a degree of institutional neglect by the Council and the EP or, even more, a de facto collusion between the Council, EP and the Commission regarding the delegated and implementing acts adopted by the latter, with only rare instances of contestation of Commission’s (intended) actions.Footnote ⁴⁵ This suggests that the exercise of Commission’s delegated executive rulemaking powers might remain de facto too loosely controlled. This raises intriguing questions of how consistent such a practice is with the institutional balance reflected in Articles 290–291 TFEU, and how effective formal and informal counterbalancing powers and controlling mechanisms really are when relevant EU institutional actors lack the willingness or capacities to make full use of their potential.