‘Delegated’ Legislation in the (new) European Union: A Constitutional Analysis
| Date | 01 September 2011 |
| Author | Robert Schütze |
| Published date | 01 September 2011 |
| DOI | http://doi.org/10.1111/j.1468-2230.2011.00866.x |
THE
MODERN LAW REVIEW
Volume 74 September 2011 No 5
‘Delegated’ Legislation in the (new) European Union:
A Constitutional Analysis
Robert Schˇtze
n
This article brings classic constitutionalism to an analysis of delegated legislation in the European
Union.To facilitate such a constitutional analysis, it starts witha comparative excursion introducing
the judicial and political safeguards on executive legislation in American constitutionalism. In the
European legal order, similar constitutional safeguards emerged in the last ¢fty years. First, the
Court of Justice developed judicial safeguards in the form of a European non-delegation doctrine.
Second,the European legislator has also insisted on political safeguardswithin delegatedlegislation.
Under the RomeTreaty,‘comitology’ was the de¢ning characteristic of executive legislation.The
LisbonTreaty represents a revolutionaryrestructuringof the regulatory process.The (old) Commu-
nity regime for delegated legislation is split into two halves. Article 290 of the Treatyon the Func-
tioningof the EuropeanUnion (TFEU) henceforth governs delegations of legislativepower,while
Article291 TFEUestablishes theconstitutional regime for delegations ofexecutivepower.
INTRODUCTION: CONSTITUTIONAL CONTROL OVER DELEGATED
LEGISLATION
The modern democratic principl ecommands that laws be adopted by a represen-
tative vote of the people in parliament.
1
Theideaofa‘governmentofthe
people,by the people, for thepeople’forms the cornerstoneof democraticconsti-
tutionalism.
2
Within the ideal ‘legislative state’, all general norms are adopted by
parliament.That the lattercannot delegate power ‘is a principle universally recog-
nised as vital to the integrity and maintenance of the [democratic] system of gov-
ernment ordained by the Constitution’.
3
This democratic ideal of the nineteenth
century encountered the technocratic reality of the ‘administrative state’ in the
twentieth century.
4
Modern Parliaments would simply have no time or expertise
to ‘master all the details of tea chemistry and packaging in order to specify the
n
Law School,Durham University.Thanks go to Dominik Hanf and two anonymous referees. Apre-
vious version of this article wasprese ntedat the Central European University (Budapest,July 2010).
1E. Zoller, Droit Constitutionnel (Paris: Presses Universitaires de France, 1999) 353. Cf Article I,
Section 1of the US Constitution: ‘All legislativePowers herein granted shall be vested in a Con-
gress of the United States,which shall cons ist ofa Se natea ndHouse of Representatives.’
2A. Lincoln,‘Gettysburg Address,1863’ in: H. S. Commager and M. Cantor (eds), Documents of
AmericanHistory ^ VolumeI (New York: Prentice Hall, 1988)428, 429.
3Field vClark 143 US 649 (1892), 692.
4Cf G. Lawson,‘TheRi se and Rise of the Administrative State’(1993 - 4) 107 Harv LR 1231.
r2011The Author.The Modern Law Review r2011The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2011) 74(5) 661^693
precisely allowable limits of dust, arti¢cial coloring, and the like that would
a¡ect suitability for consumption’.
5
Industrial societies required a ‘motorized
legislator’ ^ one that could accelerate the regulatory process ^ and found it in the
executive.
6
The advent of the legislating executive‘constitutes one of the most important
transformations of constitutionalism’.
7
In the administrative state, executive legis-
lation would become the numerical norm.
8
Executive legislation may thereby
derive from two sources. It may be ‘autonomous’ regulatory power directly
granted under the constitution;
9
or, it may be delegated to the executive on the
basis of parliamentary legislation. Inthe latter scenario, the delegation‘distorts’the
original balance of power and many constitutional orders therefore impose con-
stitutional safeguards to control‘delegated legislation’.
10
What are the constitutional safeguards imposed on delegated legislation in the
European legal order?
11
The European legal order has developed two constitu-
tional safeguards to protect its foundational valuesof federalism and democracy.
12
Judicially, the Court of Justice of the EuropeanUnion endorses a‘non-delegation’
doctrine. The European legislator is constitutionally prohibited from delegating
essential political choices to the executive.Yet evenwithin these substantive limits,
the European legislator has traditionally beenu nwilling to delegate power with-
5W. G ellhorn and C. Byse, Administrative Law: Cases and Comments (Mineola: Foundation Press,
1974 ) 62.
6C. Schmitt, Die Lageder Europa
ºischen Rechtswissenschaft (Tˇbi ngen: Universita
ºtsverlagTˇbingen,
195 0) 18.
7Zoller, n 1 above 436.
8H.W. R.Wade and C. F. Forsyth, AdministrativeLaw (Oxford: OxfordUniversity Press, 2000) 839
(emphasis added):‘thereis no more characteristic administrativeactivity than legislation’; as well as:
H. Pˇnder,‘Democratic Legitimation of Delegated Legislation ^ A Comparative View on the
American, British and German Law’(2009) 58 International and Comparative Law Quarterly 353
esp 355: ‘in all countries compared, admin istrative law-making powers became the rule rather
then the exception’. For a general overview, see also: A. von Bogdandy, GubernativeRechtsetzung
(Tˇbingen:Mohr Siebeck, 1999).
9For example: the 1958 French Constitution recognises ‘autonomous’ regulatory powers of the
executive. For an analysis of the distribution of legislative power between parliament and the
executive, see J. Bel l, French Constitutional Law (Oxford: Clarendon Press, 199 2) esp Chapter 3 ^
‘The Division of Lawmaking Powers:The Revolutionthat Never Happened?’
10 B.Schwartz,‘Delegated Legislation in America:Procedure and Safeguards’(19 48 ) 11 M LR 4 49.
11 A preliminary note on terminology:The Lisbon Treatyhas introduced a ‘formal’ or ‘procedural’
concept of legislation (cf Article 289(3) TFEU); yet this article remains loyal to a‘material’ or
‘functional’conception of legislation.This is not the result of a blind traditionalism, but has ana-
lytical advantages. A procedural de¢nition of legislation simply rests on a de¢ nitional ¢at by
identifying the nature of a norm through the procedure for its adoption. But this does not tell
us what is‘legislative’about the procedure. Ultimately, the procedural de¢nition is thus forced to
import ‘meta-constitutional’ elements into its concept of legislation. A functional de¢ nition of
legislation, by contrast, searches for material criteria that distinguish legislative from executive
acts; and thus allows us to apply the same concept of legislation across di¡erent historical and
(supra)national settings. Second, a functional conception of legislation corresponds to a func-
tional separation of powerdoctrine a nd underlies such constitutional constructs as‘delegated leg-
islation’or ‘executivelegislation’.To make matters more complex, the Lisbon Treaty has now also
introduced a ‘formal’de¢ nition of delegation. Delegated acts are now de¢ned by the procedure
established in Article 290 TFEU. However, again,th is article also employsa material concept of
delegation that includes ‘conferrals’of ‘implementing power’under Article 291 TFEU.
12 This article will not investigate constitutional safeguards protecting individual rights against
excessive executive legislation.
‘Delegated’ Legislation in the (new) European Union: A Constitutional Analysis
662 r2011TheAuthor.The Modern Law Review r2011The Modern Law ReviewLimited.
(2011)74(5) 661^693
out some political control. From the very beginning, the Council ^ representing
the Member States ^ would not delegate powers to the Commission ^ represent-
ing a supranational executive ^ without some intergovernmental control. It
insisted on the establishment of committees as political safeguards of federalism.
With the rise of the European Parliament to co-legislator in the European legal
order, a second value keenly claimed protection: democracy.With the demo-
cratization of primary legislation, Parliament insisted on political safeguards of
democracy within secondary legislation.
This article aims to analyse the European Union’s constitutional safeguards for
delegated legislation from inside the classic parameters of constitutionalism.
13
How hasthe European Court de¢ned the limits of the ‘non-delegation’ doctrine?
What political control mechanisms protect the Union’s foundational values of
federalismand democracyagainst excessive executive legislation? In order toassist
our understanding of the Europeanlegal order, the next sectionplaces these ques-
tions into a comparative constitutional context by analysing the constitutional
safeguards developed in the United States. The third section then looks at the
old structure of the executive regulatory process in the European Community.
Against this background, the fourth section analyses the changes brought by the
LisbonTreaty. Despite the formalfailure of the Constitutional Treaty, an executive
revolution has indeed taken place.
14
The Lisbon Treaty signi¢cantly re-regulates
the regulatory process by distinguishing between two forms of delegated legisla-
tion: ‘delegated acts’ and ‘implementing acts’. The former are covered by Article
290 TFEUand are said to concern a delegation of ‘legislative’power to the Com-
mission.The latter are dealt with byArticle 291TFEU and are intended to regu-
late the delegation of ‘executive’ power to the Commission (or Council).What
constitutional safeguards control the new forms of executive legislation? What is
their respective scope ofapplication?Tentative answers and some conclusions will
be presented in the ¢nal section.
AMERICAN CONSTITUTIONAL SAFEGUARDSAND DELEGATED
LEGISLATION
In order to bringa classic constitutional yardstickto an analysis of delegated legi-
slation in theEuropean Union, let us brie£ylook across the Atlantic for compara-
tive constitutional insights. The start of the American ‘administrative state’ has
been dated to1887 ^ a hundred years after the birth of the United States.
15
The
industrialising nation required ever more technical legislation, especially in the
areas of commerce and competition. Congress increasingly became unable to
keep upwith the requested legislative speed. Yet, nineteenth centuryconstitution-
13 For a criticism of the opposite approach,see n 182 below.
14 For the famous ^ opposite ^ conclusion after the constitutional reform leading to the Fifth
Republic of France, see J. Rivero in: Universit eŁde droit, d’e
Łconomie et de science d’Aix-Marseille, Le
Domaine de la loi et du Re
Łglement (Aix: Presses Universitaires d’Aix-Marseille,1978) 263:‘la revolu-
tion n’apas eu lieu’.
15 G. P. Mil ler,‘Independent Agencies’ (1986) Supreme Court Review 41 ^ linking the start of the
administrative statewith the birth of the Interstate Commerce Commission.
RobertSchˇtze
663
r2011The Author.The Modern Law Review r2011The Modern Law Review Limited.
(2011) 74(5) 661^693
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