Delegated Acts, Implementing Acts, and Institutional Balance Implications Post-Lisbon
| DOI | 10.1177/1023263X1302000406 |
| Date | 01 December 2013 |
| Published date | 01 December 2013 |
| Author | Zamira Xhaferri |
| Subject Matter | Article |
20 MJ 4 (2013) 557
DELEGATED ACTS, IMPLEMENTINGACTS,
AND INSTITUTIONAL BALANCE
IMPLICATIONS POST-LISBON
Z X*, **
ABSTRACT
e Treaty on the Functioning of the European Union introduces two new typologies
of non-legislative acts. Having an in uence on the institutional balance of powers, this
article re ects on the impact of the newly introduced changes of secondary legislation
on the institutional balance, involving either of the co-legislators and the Commission.
e overall results of this research point to the conclusion that the answers di er for each
typology of non-legi slative act.
Keywords: delegated acts; implementing acts; institutional balance of powers; post-
Lisbon comitology
* e author is a PhD resea rcher at the Depart ment of European and Intern ational Law of the Facu lty of
Law of Maastric ht University. Research for this ar ticle was conducted during a vi siting research stay
at the Sti ung Europa-Kolleg Hambur g / Institute for European I ntegration (University of Ha mburg).
e author acknowledges receipt of a resea rch grant awarded from Deutscher Akademischer
Austauschdiens t (DAAD, German Academic E xchange Service).
is art icle was submitted to the Maast richt Journal of European and Compa rative L aw in February
2013 and accepted for publicat ion in April 2013. Adaptations were mad e in October 2013.
** I owe Prof. Dr. Marten Breuer, Chair for Public Law wit h reference to Europea n Law and Public
International L aw at the University of Konst anz (Germany), a debt of immense gratit ude for his
invaluable comments. I would like to wholeheartedly thank my current PhD super visor, Prof. Dr.
Ellen Vos, Professor of Europ ean Law at the Maastricht Uni versity (the Netherlands) for her consta nt
support, constructive criticism and assessment of previous research done on this topic in the context
of my master-thesis (2011). Any inaccuracies and errors rema in fully the author’s, as do the v iews
expressed herein .
Zamira Xhaferri
558 20 MJ 4 (2013)
§1. IN TRODUCT ION
e Treaty on the Functioning of the Eu ropean Union (TFEU) introduces two ty pologies
of non-legislative acts, delegated and implementing acts.1 is article inquires
into the shi s of institutional balance of powers due to those changes, involving the
European Commission (the Commission), the Council of Ministers (the Council), and
the European Parliament (the Parliament). As these Treaty changes can alter, or as the
Commission sees it, restore the institutional balance,2 this article will examine what
the institutional power shi s are for the Commission, the Council and the Parliament.
To that end, this article draws on the current academic debate of what precisely either
category of non-legislative act entails, what the problems with their dichotomy are and
further en riches the discussion with empirica l data by looking at the practice.
To understand the rationale behind the post-Lisbon regime for non-legislative rule
making, a brief i ntroduction of the prior developments is due.
§2. RATIONALE BEHIND THE POSTLISBON TYPOLOGY OF
NONLEGISLATIVE ACTS
e extent of the right of oversight of the co-legislators over the Commission’s non-
legislative rule-making was subject to institutional tensions due to their continuous
1 See Article290 T FEU for delegated acts and A rticle291 TFEU for implementing a cts. Under the TFEU,
the comitology practice was split into delegated and implementing acts. Delegated acts represent a
new pattern of non-legislative acts where recourse to commit tees made up of representatives from
Member States is demised. e comitology prac tice therefore applie s to implementing act s only. P.
Craig, ‘Delegated Acts, Implementi ng Acts and the New Comitology Reg ulation’, 36European Law
Review 5 (2011), p.671–687; J. Bast, ‘New Categories of Acts a er the Lisbon Reform. Dynamics of
Parliamentarization in EU Law’, 49 Common Market Law Review 3 (2012), p. 885–927. J.Mendes,
‘Delegated and Implementi ng Rule Mak ing: Procedura lization a nd Constitution al Design’, 19European
Law Journal 1 (2013), p. 22–41. D. Curt in, H. Hofman n and J. Mendes, ‘Const itutionalising EU
Executive Rule -Making Proce dures: A Research Agend a’, 19European Law Journal 1 (2013), p.1–21; .
Christiansen a nd M. Dobbels, ‘Non-Legislative Rule-Making a er the Lisbon Treaty: Implementing
the New System of Comitology and Delegated Acts’, 19 European Law Jour nal 1 (2013), p.42–5 6;
A.H.Türk, ‘Oversight of Administrative Rule-Making: Judicial Review’, 19European Law Journal 1
(2013), p.126–142; A. Alemanno a nd A. Meuwese, ‘Impact Assessment of EU Non-Le gislative Rule-
Making: e Missing Li nk in New Comitolo gy’, 19European Law Journal 1 (2013), p.76–92; M. Kaedin g
and A. Hardacre, ‘Delegated a nd Implementing Acts: ‘New Com itology’, in A. Hardac re (ed.), How the
EU Institutions Work and… How to Work with the EU Institutions (John Ha rper Publishing, London
2011), p.190–1; P. Ponzano, ‘E xecutive’ and ‘Delegated ’ Acts: e situ ation a er the Lisbon Treaty’, in
S. Griller a nd J. Ziller (eds.), e Li sbon Treaty. EU Constitutionalism w ithout a Constitutiona l Treaty?
(Springer, Vienna 2008), p.135–41.
2 Commission White Paper on European Governance, COM (2001) 428 nal.See D. Muchna,‘ e
Importance of C omitology for the Decision-ma king Processes i n the Foodstu s S ector – Implications
of the 2006 Comitology Reform’, 31 Austrian Journal for Science, Technology, Law and Economy 4
(2007), p.175–82.
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