Legislation, delegation and implementation under the treaty of Lisbon: Typology meets reality

European Law Journal

Volumn 15, Issue 4, 2009, Pages 482-505

  Hofmann, Herwig ^a  

^a UNIVERSITY OF LUXEMBOURG   (Luxembourg)

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EID: 67650318262     PISSN: 13515993     EISSN: 14680386     Source Type: Journal    
DOI: 10.1111/j.1468-0386.2009.00474.x     Document Type: Article

References (92)

1. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, [2007]OJ C306/1, cited in this article on the basis of the consolidated versions published in [2008]OJ C115/1 and [2008]OJ C115/47.
2. Such 'gaps'between the formal constitution and the institutional reality arise, eg, from the development of the use of forms of 'atypical legal acts', comitology, agencies and administrative networks. They can be problematic with respect to the legal framework governing executive action on the Union level. See, eg, G. de Búrca, 'The Institutional Development of the EU', in P. Craig and G. de Búrca (eds), The Evolution of EU Law (Oxford University Press, 1999), 61; D. Curtin, 'Delegation to Non-Majoritarian Agencies and Emerging Practices of Public Accountability', in D. Geradin, R. Munoz and N. Petit (eds), Regulation through Agencies in the EU (Elgar, 2005), 88.
3. [2004] OJ C310/1.
4. Final Report of Working Group IX on Simplification (CONV 424/02, 29 November 2002), at 2; for the general effect of the institutional balance, see, eg, K. Lenaerts and A. Verhoeven, 'Institutional Balance as a Guarantee for Democracy in EU Governance', in C. Joerges and R. Dehousse (eds), Good Governance in Europe's Integrated Market (Oxford University Press, 2002), at 35 et seq.
5. See for a summary of the debates leading up to the Constitutional Treaty, P. Stancanelli, 'Le système décisionnel de l'Union', in G. Amato, H. Bribosa and B. de Witte (eds), Genèse et destinée de la Constitution européenne (Bruylandt, 2007), 485.
6. The first pillar has a catalogue of legal acts laid down in Art 249 EC (regulations, directives, decisions as well as recommendations and opinions). This catalogue is not exhaustive. The EC Treaty provides for additional types of legal acts in individual treaty provisions. The second and third pillars each have their distinct typology of legal acts defined in the relevant articles of the EU Treaty (for the second pillar (Common Foreign and Security Policy) in Art 12 et seq; EU with 'principles and general guidelines', 'common strategies'and 'decisions'in Art 13(1)-(3) EU; 'joint actions'Art 14 EU and 'common positions'Art 15 EU; in the framework of the third pillar, Art 34(2)(a)-(d) provides for common positions, framework decisions, decisions and conventions).
7. Such parameters were the strengthening of the European Parliament within the institutional triangle, the transfer of an increasing amount of matters into (qualified) majority voting procedures in Council and the development of the system of delegating implementing powers to the Commission. These changes were accompanied by a dramatic enlargement of the number of Member States and the increase in policy areas addressed through European integration.
8. This typology is a further development of the 2004 draft Treaty establishing a constitution for Europe's (Constitutional Treaty) proposals. For further details on the Constitutional Treaty's typology of acts, see, eg, J. Bast, Grundbegriffe der Handlungsformen der EU (Springer, 2006); L. Burgorgue-Larsen, A. Levade and F. Picod (eds), Traitéétablissant une Constitution pour l'Europe Commentaire article par article, Tome 1 (Bruylant, 2007); C. Callies and M. Ruffert (eds), Verfassung der Europäischen Union Kommentar der Grundlagenbestimmungen (Beck Manz, 2006); V. Constantinesco, Y. Gautier and V. Michel, Le Traitéétablissant une Constitution pour l'Europe Analyses & Commentaires (Presses Universitaires de Strasbourg, 2005); J.-L. Sauron, Comprendre le Traitéde Lisbonne (Gualino Editeur, 2008).
9. For details, see H. C. H. Hofmann and A. Türk, 'Policy Implementation', in H. C. H. Hofmann and A. Türk (eds), EU Administrative Governance (Elgar, 2006), 76.
10. The connection between this theme and the initiatives to reform the typology of EC legal acts can be illustrated when looking at the European Parliament 1984 draft Treaty Establishing the European Union, [1984]OJ C77/33. The European Parliament therein intended to establish itself as a 'second chamber'co-legislating together with the Council and controlling and supervising delegation of executive powers to the Commission.
11. The regulatory model views the Community as a special purpose organisation referred to by one of its original proponents as 'Zweckverband'. According to this model, the sole purpose of the EU is to pool sovereignty and regulate issues with greater efficiency than the Member States governments would be able to manage individually. It is based on the idea of the EU as a Community with limited competences to regulate technical matters delegated by the Member States. See for an excellent summary of this model, K. Lenaerts and A. Verhoeven, 'Institutional Balance and Democracy', in Joerges and Dehousse, op cit n 4 supra, 35, at 55. A proponent of this approach is Majone; see, eg, G. Majone (ed), Regulating Europe (Routledge, 1996).
12. These discussions existed despite the fact that the ECJ, in one of its first cases, had declared that general decisions under the ECSC 'are quasi legislative measures adopted by a public authority with legislative effect erga omnes'. The ECJ used this terminology to describe the special kind of rule making by an authority of neither international public law character nor comparable to national systems. The Community's quasi-legislation has direct effect without the necessity of national ratification and is subject to judicial review only by the ECJ: Case 8/55, Fédération Charbonière de Belgique v High Authority of the European Coal and Steel Community [1954-1956] ECR 245, at 258. The ECJ was thereby more outspoken about the nature of Community rule making than the EEC Treaty had been.
13. H. P. Ipsen, Zur Exekutivrechtsetzung in der Europäischen Gemeinschaft', in P. Badura and R. Scholz (eds), Wege und Verfahren des Verfassungslebens (Beck, 1993), 425 with further references.
14. This article refers to the rules of procedure of the Council. Under Art 7 of the Council's rules of procedure ([2004]OJ L106/22), the Council acts in its legislative capacity within the meaning of the second subparagraph of Art 207(3) EC when it adopts rules which are legally binding in or for the Member States, by means of regulations, directives, framework decisions or decisions, on the basis of the relevant provisions of the treaties, with the exception of discussions leading to the adoption of internal measures, administrative or budgetary acts, acts concerning inter-institutional or international relations or non-binding acts (such as conclusions, recommendations or resolutions).
15. For a review of the discussions on the Intergovernmental Conference leading to the Treaty of Maastricht, see J. Cloos et al, Le Traitéde Maastricht: Genèse, analyse, commentaires (Bruylant, 2nd edn, 1994), at 369-373; for a full list of literature references, see H. C. H. Hofmann, 'A Critical Analysis of the new Typology of Acts in the Draft Treaty Establishing a Constitution for Europe', (2003) 7 European Integration Online Papers (EIoP) 1, available at http://www.eiop.or.at; H. C. H. Hofmann, Normenhierarchien im Europäischen Gemeinschaftsrecht (Duncker und Humblot, 2000).
16. See the comitology decisions of 1987, 1999 and 2006 (Council Decision of 17 July 2006 amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission, [2006]OJ L200/11; Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission, [1999]OJ L184/23; Council Decision of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission, [1987]OJ L197/33.
17. P. Stancanelli, 'Le système décisionnel de l'Union', in Amato etal, op cit n 5 supra, 485, at 501.
18. Articles 32-36 of the Treaty establishing a Constitution for Europe and their commentaries in Burgorgue-Larsen etal, op cit n 8 supra; Callies and Ruffert, op cit n 8 supra; Constantinesco etal, op cit n 8 supra; Sauron, op cit n 8 supra.
19. 'Constitutional charter'was the terminology the ECJ had used in earlier case-law to describe the EC Treaty's nature as the founding charter of the Community in Case 294/83, Les Verts [1986] ECR 1339, para 23.
20. This allows for its application in CFSP matters. Also, this wider definition will do away with the differentiation between 'normal'and 'atypical'decisions. The latter differentiation had caused confusion in the past, because not all languages have the terminology to differentiate between these different legal terms for these different forms of acts. For example, French and English use 'decision'for both. In Dutch and German the distinction was drawn between the formal decision under Article 249 EC and the atypical 'Besluit'or 'Beschluß', which are decisions without a (potential) addressee. The decision under the definition of Art 289 FEU will allow replacing the current CFSP 'joint actions'and 'common positions'. Also, what was so far the Council's comitology 'decision'will in future be replaced with a formal legislative act decided under co-decision (Art 291(3) FEU).
21. If one counts the level of treaty provisions (new Art 33 of the Treaty on European Union), the Treaty of Lisbon will contain four levels of acts, each with a different decision-making procedure provided for by the treaty.
22. eg in the area of services, such as Art 44(1) EC, which require the use of directives in order to obtain the freedom of establishment with respect to certain activities, as well as Arts 46(2), 47(1), 47(2) and 52(1) EC for other aspects thereof.
23. One might argue though that Art 296(3) FEU contains a sort of hidden opening clause for atypical acts. This Article states that the EP and Council 'when considering draft legislative acts...shall refrain from adopting acts not provided for by the relevant legislative procedure', Other languages than the English version clarify to a greater degree that this is meant to be a prohibition of atypical acts of formal legislation. The German text, eg, reads, 'so nehmen sie keine Akte an, die nach dem für den betreffenden Gesetzgebungsverfahren nicht vorgesehen sind'. The French version declares that the legislative bodies 's'abstiennent d'adopter des acts non-prévus par la procédure législative applicable au domaine concerné'. This provision indicates not only that the choices of the relevant Treaty provisions are to be adhered to-which states the obvious-but also that only with respect to legislative acts, the typology of acts that is provided for in the EU Treaty and the FEU final. On the level of implementing acts, types of acts other than those listed in Art 288 FEU (regulations, directives and decisions) may be adopted. Since this prohibition of adopting so-called atypical acts is explicitly limited to the level of legislative acts, in the absence of limits in the delegating act, delegated acts and implementing measures can be issued as atypical acts.
24. Article 25 EU (Lisbon) provides for (a) general guidelines; (b) decisions on (i) actions, (ii) positions and (iii) arrangements for implementation of the former; as well as (c) arrangements for cooperation between the Member States. Decisions are taken in the extraordinary decision-making procedure by the Council. Implementing measures under (b)(iii) can also be taken by the High Representative and the Member States (Art 26 EU (Lisbon)). The High Representative under Art 26(a) EU (Lisbon) shall ensure implementation of decisions on actions and positions in the area of the CFSP.
25. See Arts 288, 289 and 294 FEU. Of course there are also exceptions to this through special legislative procedures not defined in Art 294 FEU (ex. Art 251 EC), but in specific policy areas. Examples include budgetary provisions under Art 310 FEU. Other examples include the procedures to issue rules of procedure of institutions and statute of certain agencies.
26. See for a background to the legal basis disputes within the first pillar, K. Bradley, 'The European Court and the Legal Basis of Community Legislation', (1988) 13 European Law Review 379. The leading case for the extensive case-law on this matter is Case C-300/89, (Titanium-Dioxide) Commission v Council [1991] ECR I-2867, paras 22-25; see K. Bradley, 'L'arret dioxyde de titiane un jugement de salomon?', (1992) 28 Cahiers de Droit Européen 609. As an example of the legal basis disputes between the first and the third pillar matters, see Case C-176/03, Commission v Council [2005] ECR I-7879, paras 39, 45 and 51.
27. Limits of the legislator's competencies are the prohibition of the legislator to address matters which are reserved for specific institutions. For example, such competencies have been allocated in primary law in the area of monetary policy to the ECB. Other treaty-based rules substantively limiting the legislator's competencies derive from the definition of the inter-institutional balance. An example of such a rule can be found in the distribution of powers defined in the field of external relations-the conclusion of agreements between the Community and other parties as provided for in Art 216 FEU.
28. I will return to the difficulties of distinguishing these two different categories of non-legislative acts below in this article.
29. Case-law of the ECJ exists mainly with respect to the principle of subsidiarity under Art 5(2) EC. See especially Case C-84/94, Working Time Directive [1996] ECR I-5755; C-233/94, Deposit Guarantee Schemes [1997] ECR I-2405; C-377/98, Biotechnological Inventions [2001]ECR I-7079, paras 32 and 33; C-103/01, Protective Equipment for Firefighters [2003]ECR I-5369, para 47; more substantiated on the other hand, C-154/ 04, Alliance for Natural Health [2005]ECR I-6451, paras 101-106.
30. See for many C-84/94, ibid, at 5811.
31. This interpretation would be akin to the interpretation of the German Constitutional Court (Bundesverfassungsgericht) of the closely related formulation in Art 80(1) of the German Constitution (Grundgesetz) which requires a delegating act to define 'the content, the purpose and the extent'of the delegation (for case-law, see, eg, BVerfGE 80, 1, 21; BVerGE 68, 319, 333; BVerfGE 55, 207, 226). For earlier suggestions of referring to the German constitutional experience by introducing such wording into the definition of the EU typology of acts, see, eg, MEP Bourlanges, Eur Parl Deb Nr 3-404/135 (17 April 1991); MEP Rothley (Rapporteur), EP Committee on Institutional Affairs, Working Document on the categories of legal act of the European Union and the relationships between them (PE 211.103/rev, 15 March 1995). Drawing direct comparisons with the constitutional experience of Member States must however always be approached with caution. Given the highly contextual nature of individual constitutional provisions and interpretations, the ECJ will need to find an EU-specific approach to the interpretation of the non-delegation clause in Art 290 FEU.
32. An argument for this position arises from the comparison of the language versions of Article 290 FEU showing that defining the conditions is not optional but an essential element of the delegating legislative act. The English version of the text states that 'legislative acts shall lay down the conditions'. The French and German versions, eg, seem to be slightly clearer in this respect by stating that 'les actes législatifs fixent explicitement les conditions'and 'die Bedingugnen unter denen die Übertragung erfolgt, werden in Gesetzgebungsakten ausdrücklich festgelegt'.
33. See K. Bradley, 'Comitology and the Courts: Tales of the Unexpected', in Hofmann and Türk, op cit n 9 supra, 417; Case 25/70, Einfuhr und Vorratsstelle v Köster [1970]ECR 1161, paras 9-10.
34. Case 25/70, ibid.
35. Case 6/71, Rheinmühlen v Einfuhr- und Vorratstelle für Getreide [1971] ECR 823, at 841; Case 34/78, Yoshida v Kamer van Koophandel en Fabrieken voor Friesland [1979] ECR 115; Case 114/78, Yoshida v Industrie- und Handelskammer Kassel [1979] ECR 151 and Opinion of Advocate General Capotorti of 13 December 1978, [1979] ECR 137, at140. The ECJ determines the limits of delegation on a case-by-case basis according to the policy area in question. See, eg, Case T-285/94, Pfloeschner v Commission [1995]ECR II-3029, at 3047, para 51; Case 38/ 70, Deutsche Tradax GmbH v Einfuhr- und Vorratstelle für Getreide und Futtermittel [1971]ECR 145, at 154.
36. See, eg, C-303/94, Parliament v Council (Pesitcide) [1996] ECR I-2943.
37. Case 240/90, Germany v Commission [1992] ECR I-5383, at 5384, 5417-5419. None of the treaty provisions give a definition of the term of 'implementation'.
38. Case 25/70, op cit n 33 supra, at 1170, para 6.
39. Case 23/75, Rey Soda v Cassa Conguaglio Zucchero [1975] ECR 1279, at 1300, para 10 and 1301, para 14. See also Case 121/83, Zuckerfabrik Franken v Hauptzollamt Würzburg [1984] ECR 2039, at 2058; Joined Cases 133-136/85, RAU/BALM [1987] ECR 2289, at para 31; Case 46/86, Romkes v Officier van Justitie [1987] ECR 2685, at para 16; Case C-417/ 93, Parliament v Council [1995]ECR I-1185, at 1219, para 30; Case C-156/ 93, Parliament v Commission [1995] ECR I-2019, at 2047, para 18; Case C-303/94, Parliament v Council [1996] ECR I-2943.
40. That is not true of penalties. 'In order to delegate to the Commission the power to provide for penalties in the sector of the common agricultural policy, a delegation of power couched in general terms is sufficient': Case C-240/90, Germany v Commission [1992] ECR I-5383, at 5384 and 5434 et seq.
41. 'It must be pointed out that such a wide interpretation of the Commission's powers can be accepted only on the specific framework of the rules on agricultural markets... It can not be relied upon to justify a provision adopted by the Commission on the basis of its implementing powers in agricultural matters where the purpose of the provision lies outside that sphere but within a sector subject to an exhaustive set of rules laid down by the Council': Case 22/88, Industrie- en Handelsonderneming Vreugdenhil BV v Minister van Landbow en Visserij [1989] ECR 2049, at 2076.
42. eg Case 291/86, Central-Import Münster GmbH & Co. KG v Hauptzollamt Münster [1988] ECR 3679, at 3706.
43. Case C 303/94, op cit n 33 supra.
44. Both delegated acts, as well as implementing acts, are therefore not formal legislation. They may, however, contain substantive legislation and may thus, eg, be regarded as 'law'in the sense of Art 52(1) of the Charter of Fundamental Rights of the European Union, requiring that any limitation on the exercise of fundamental rights and freedoms expressed in the charter must be based on law. For further explanation of the distinction between formal and substantive legislation in the EC context, see A. Türk, The Concept of Legislation in EC Law (Kluwer, 2006), at 77-120 and 187-236.
45. The question where the idea for such an instrument and the motivation to include it into the typology of EU legal acts arises from will be addressed in the following section together with considerations on consequence for the institutional balance.
46. See, eg, annex lists fleshing out general provisions of legislation as was the case in T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v Council [2005] ECR II-3533 and Stancanelli, op cit n 5 supra, at 524 and 525.
47. In the earlier version of the draft Constitutional Treaty a third possibility was that the 'provisions of the delegated regulation were to lapse after a period set by the law'(CONV 571/03, 26 February 2003), at 7.
48. It is interesting to compare this approach with Art 38 of the French Constitution which allows for temporary delegation of legislative powers to the government. Article 38 of the French Constitution, however, gives exact conditions for such measures to remain in power after the end of the extraordinary time-limits. On the other hand, the powers which can be delegated are also more extensive than those under the power to delegate non-essential elements of legislation. Under French law, such powers may not be sub-delegated. See below for the possibility of sub-delegation under the construction of the typology of acts under Lisbon.
49. The list of possibilities in Art 290 FEU has been developed from conditions of delegation used in the British legal system's instruments to secure parliamentary review of delegated legislation. Legislation in the UK may be submitted to two basic procedures before being able to enter into force, known as the 'affirmative'and the 'negative'procedure. According to the (less used) affirmative procedure, no legislation may take effect until there has been approval of Parliament. According to the (more frequent) negative procedure, draft secondary legislation will take effect within a given period of time, unless there has been express disapproval by parliament: P. Leyland and T. Woods, Administrative Law (Oxford University Press, 4th edn, 2002), at 137.
50. Generally, a revocation of an act is seen to have the same legal value as the creation of an act. However, in this case, arguably, given that the non-revocation is described in Art 290 as a condition, the non-revocation could be regarded as condition for the validity of the act. So far, there is no need for an exception from Art 9d(2) EU, which stipulates that 'Union legislative acts may be adopted only on the basis of a Commission proposal except where the Treaties provide for otherwise'and no explicit exception from the requirement of a revocation exists.
51. This specificity of delegation problems arises from the Commission's exclusive right of initiative for legislative acts in Art 17(2) EU (Lisbon).
52. In most language versions, like in English, French, Spanish, Italian, Polish, Czech, Lithuanian, Slovak, Bulgarian, Danish and Dutch language versions, the wording of Art 290(2) FEU could be read as to contain a non-exhaustive list of examples. They read 'these conditions may be as follows', 'peuvent être les suivantes', 'que podrán ser las siguientes', 'che possono essere le seguenti', ''i moga by ćnastepujace', 'kterémohou být tyto', 'kurios gali būti', 'ktorémô.u byt takéto'and ', 'og som kan være følgende', 'Dit kunnen de volgende voorwaarden zijn'. The German language version, on the other hand, could be interpreted to sound stricter and require only the limited choice: 'wobei folgende Möglichkeiten bestehen'.
53. Article 273 FEU requires EU institutions to refrain from atypical acts only when enacting legislative measures.
54. Articles 202 and 211 EC will be replaced under the Treaty of Lisbon with the system of Arts 288-291 FEU.
55. See H. C. H. Hofmann, 'Agreements in EU Law', (2006) 31 European Law Review 800.
56. This can be illustrated by the effect of the mismanagement of contractual relations that was one of the reasons for the fall of the Santer Commission. See P. Craig, The Constitutionalisation of Community Administration, Jean Monnet Working Paper 3/03, at 20, available at http://www.jeanmonnetprogram.org.
57. See K. Lenaerts and M. Desomer, 'Towards a Hierarchy of Legal Acts in the European Union? Simplification of Legal Instruments and Procedures', (2005) 11 European Law Journal 774, at 754
58. The European Convention, Technical Comments, Draft of Arts 24-33 of the Constitutional Treaty, of 26 February 2003 (CONV 571/03), at 3 and 17; K. Lenaerts, Comment simplifier les instruments d'action de l'Union?, La convention Européen, Working Group IX, Working document 07 (22 Octobre 2002), at 2-4; Stancanelli, op cit n 5 supra, at 511.
59. See G. F. Schaefer and A. Türk, 'Legislation and Implementation: Theoretical Considerations and Empirical Findings', in The Role of Committees in European Policy-Making and Policy Implementation, Final Report (EIPA, 2002); Hofmann and Türk, op cit n 9 supra, at 74.
60. See Art 1(2) and (5) of Council Decision of 17 July 2006 amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission, [2006]OJ L200/11, including a new Art 2(b)2 on regulatory procedure with scrutiny into the comitology decision, which provides for EP supervision and limited participation. The 2006 comitology decision (amending the 1999 comitology decision) was formulated in view of the hierarchy of norms provided for in Art I-32 of the Constitutional Treaty, which, expanding the EP rights with respect to both the 1987 and the 1999 comitology decisions, had already contained provisions allowing implementing acts to amend non-essential provisions of a delegating act through the regulatory procedure. See M. Szapiro, 'Comitology - The Ongoing Reform', in H. C. H. Hofmann and A. Türk (eds), Legal Challenges in EU Administrative Law (Elgar, 2009) forthcoming.
61. This type of question has been subject to case-law of the ECJ in C-133/ 06, Parliament v Council (Refugee Status), 6 May 2008, nyr, paras 43-63 and C-93/00, Parliament v Council (Beef Labelling) [2001]ECR I-10119, paras 38-43. The Court stated that the principle of limited attribution of powers under Art 7(1) EC also required that each institution is to act within the limits of the powers conferred on it by the Treaty. It thereby found a measure adopted on a derived or secondary legal basis providing for a different decision-making procedure than that provided in the Treaty to be illegal. Advocate General Poiares Maduro in his Opinion in C-133/06, Refugee Status strictly advised the Court to adhere to this approach, while Advocate General Stix-Hackl in C-93/00, Beef labelling suggested to allow for acts with derived legal basis under certain conditions.
62. U. Wölker, Die Normenhierarchie im Unionsrecht in der Praxis', [2007] Europarecht 32, at 36.
63. As far as I can see, Advocate General Stix-Hackl had coined this phrase in her opinion in case C-93/00, op cit n 61 supra, para 41.
64. See the terminology used in C-133/06, op cit n 61 supra.
65. The examples for this type of approach delegate to the Council decision-making powers with a simplified procedure generally omitting participation rights by the EP and/or the Economic and Social Committee. Examples can be found in many policy areas. In case C-133/06 Refugee Status, the Council thus referred to an existing institutional practice establishing secondary legal basis. The most prominent example it cited might be within the merger control regulation, which in Art 1(5) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings-EC Merger Regulation, [2004] OJ L24/ 1, provides for a simplified amendment procedure without EP involvement. The ECJ followed the opinion of its Advocate General Maduro affirming that institutional practice cannot give the power to derogate from Treaty provisions. Thereby, the ECJ implicitly but importantly overrules the landmark ruling in case C-25/70, Einfuhr- und Vorratsstelle für Getreide und Futtermittel v Köster [1970] ECR 1161, para 6, which relied, inter alia, on consistent practice of the Community institutions to justify the legality of a comitology procedure. Institutional practice as reason for developing practices beyond the Treaty provisions-a notion from public international law-is therewith officially revoked in EC law.
66. So far as can be seen the argument of the illegality of a derived legal basis has been made only in the two above cited cases C-93/00 and C-133/ 06. In many other cases, where legal acts based on derived legal basis have been subject to the dispute, the ECJ did not review the legal basis of the act.
67. See P. Craig, EU Administrative Law (Oxford University Press, 2006), at 127.
68. This observation of course would also have been true with respect to Arts I-32-36 of the Constitutional Treaty from which Arts 288-291 FEU have been largely copied. As Mehdi and Picod rightly conclude, 'la situation finalement consacrée àpropos des acts non legislatifs apparaît pour le moins confuse'. See R. Mehdi and F. Picod, 'Article I-33', in Burgorgue-Larsen etal, op cit n 8 supra, para 26.
69. The new formulation of Art 263 FEU which regulates standing of non-privileged actors against acts of an abstract-general nature shows that with respect to standing in court, no differentiation of the kind proposed by Arts 290 and 291 FEU is necessary. Article 263 FEU refers to all types of 'regulatory acts'(delegated and implementing) as opposed to single-case implementing acts. It thereby implicitly only asks for the nature of an act-abstract-general or not-to establish standing in court.
70. See for the description of the classic model of executive federalism, eg, K. Lenaerts, 'Some Reflections on the Separation of Powers in the European Community', (1991) 28 Common Market Law Review 11, at 11 et seq; B. Dubey, 'Administration indirecte et fédéralisme d'exécution en Europe', (2003) Cahiers de Droit Européen 87. For a view which emphasises the cooperative nature of executive federalism, see, eg, P. Dann, 'European Parliament and Executive Federalism: Approaching a Parliament in a Semi-Parliament Democracy', (2003) 11 European Law Journal 549.
71. This is also related to the obligations arising from the 'principle of sincere cooperation'of the Member States under Art 4(3) EU (Lisbon) that 'Member States shall adopt all measures of national law necessary to implement legally binding Union acts'. This Article has replaced the former Art 10 EC, which states, inter alia, that the 'Member States shall take any appropriate measure, general or particular, to ensure fulfillment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union'.
72. Emphasis added.
73. See on the increasing importance of these composite administrative procedures, S. Cassese, 'European Administrative Proceedings', (2004) 68 Law and Contemporary Problems 21; G. della Cananea, 'The European Union's Mixed Administrative Proceedings', (2004) 68 Law and Contemporary Problems 197; M. P. Chiti, 'Forms of European Administrative Action', (2004) 68 Law and Contemporary Problems 37; C. Franchini, 'European Principles Governing National Administrative Proceedings', (2004) 68 Law and Contemporary Problems 183; E. Schmidt-Aßmann, 'Verwaltungskooperation und Verwaltungskooperationsrecht in der Europäischen Gemeinschaft', (1996) Europarecht 270; G. Sydow, 'Die Vereinheitlichung des Mitgliedstaatlichen Vollzugs des Europarechts in Mehrstufigen Verwaltungsverfahren', (2001) Die Verwaltung 517; G. Sydow, Verwaltungskooperation in der Europäischen Union (Mohr, 2004).
74. See for further analysis of the developments of the past decades, H. C. H. Hofmann and A. Türk, 'The Development of Integrated Administration in the EU and its Consequences', (2007) 13 European Law Journal 253 and H. C. H. Hofmann and A. Türk, 'Conclusions - Europe's Integrated Administration', in Hofmann and Türk, op cit n 9 supra.
75. Bradley, op cit n 33 supra; C. F. Bergström, Comitology-Delegation of Powers in the European Union and the Committee System (Oxford University Press, 2005). The EP in the 1960s-1980s originally wanted to see the Council barred from too many executive functions. It therefore favoured the Commission's independence from the Council's possibility of recourse through comitology procedures. With growing competence in legislative matters, it changed its position to call for a bigger involvement in the supervision function of comitology over the Commission's power of rule making.
76. See, eg, with further references A. E. Töller and H. C. H. Hofmann, 'Democracy and the Reform of Comitology, in M. Adenas and A. Türk (eds), Delegated Legislation and the Role of Committees in the EC (Kluwer, 2000), 25; M. Everson and C. Joerges, 'Re-conceptualising Europeanisation as a Public Law of Collisions: Comitology, Agencies and an Interactive Public Adjudication', in Hofmann and Türk, op cit n 9 supra, 512.
77. See Art 5a(3) of Council Decision 1999/468/EC of 28 June 1999 laying down the procedure for the exercise of implementing powers conferred on the Commission (Comitology Decision) as amended by Council Decision 2006/ 512/EC of 17 July 2006 amending Decision 1999/468/EC, [2006]OJ L200/11.
78. There under, the Commission shall present draft measures to the EP which by majority and the Council which by qualified majority voting, respectively, may oppose the adoption of the said draft by the EP. Reasons for such opposition may be the ultra-vires nature of the measure or that the EP holds that the draft measure presented by the Commission is not compatible with the aim or the content of the delegating legislation. See Arts 5(a)(3)(b) and 5(a)(4)(e) of Council Decision 1999/ 468/EC, n 77 supra.
79. This is unlike Art 202 EC, under which the comitology decision was taken by a unique quasi-legislative procedure by the Council acting unanimously upon a proposal from the Commission and after obtaining the opinion of the EP.
80. The explicit mentioning of financial services in the declaration might, on the other hand, also be interpreted as a commitment to the continuation of the Lamfalussy procedures, especially the level three procedures in which experts of the regulated service industries can contribute. See Lenaerts and Desomer, op cit n 57 supra, at 755.
81. D. Curtin, 'Delegation to Non-Majoritarian Agencies and Emerging Practices of Public Accountability', in Geradin etal, op cit, n 2 supra; D. Fischer-Appelt, Agenturen der Europäischen Gemeinschaft (Duncker und Humblot, 1999), 87.
82. Examples of agencies which have received legislative delegation for single case and restricted regulatory decision-making powers are the Office for the Harmonisation of the Internal Market (OHIM), which is empowered to take legally binding decisions on the registration of Community trade marks and other intellectual property rights (see Art 43(5) and 45(6) of Council Regulation 40/94 of 20 December 1993 ([1994]OJ L11/1) on the Community trademark (as amended in [1994]OJ L349/ 1 amd [1995]OJ L303/1). The Community Plant Variety Office (CPVO) has been delegated the power to adopt legally binding decisions in relation on the registration of plant variety rights (Art 62 of Council Regulation 2100/94 of 22 July 1994 on Community plant varieties, [1994]OJ L227/1 amended in [1995]OJ L258/1). Powers akin to regulatory powers have been granted to the European Air Safety Agency (EASA) to adopt decisions with regard to criteria for type certification and continued airworthiness of products, parts and appliances, and the environmental approval of products (Regulation (EC) 1592/2002 of the European Parliament and of the Council of 15 July 2002 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, [2002]OJ L240/1).
83. However, number 6 of the horizontal amendments to the EC Treaty in the Treaty of Lisbon provides for the replacement of the word 'institution'or 'institutions'in the EC Treaty to be replaced in all Articles of the FEU by 'institution, body, office or agency'or 'institutions, bodies, offices or agencies'. But these developments touch provisions on control of agency action not provisions on the extent of powers to be delegated.
84. Cases 9 and 10/56, Meroni v High Authority [1957/58] ECR 133. For a precise outline of the Meroni doctrine, see R. Dehousse, 'The Transformation of EU Governance', in Joerges and Dehousse, op cit n 4 supra, 220.
85. Such limitation of recipients of delegation might be intended to safeguard the coordinating role of the Commission for executive measures on the EU level. It, however, disregards the existing gap between the institutional reality in EU law and the constitutional situation. See for a discussion of these agency-related problems, E. Chiti, 'Decentralisation and Integration in the Communty Administration: A New Perspective on European Agencies, (2004) 10 European Law Journal 402; Craig, op cit n 67 supra, at 160-164 and 184; Craig, op cit n 67 supra, at 160-164 and 184; M. Everson, 'Independent Agencies: Hierarchy Beaters?', (1995) 2 European Law Journal 180; M. Koch, Die Externalisierungspolitik der Kommission (Nomos, 2004).
86. Whereas the power to issue delegated acts requires a legislative delegation, the power to issue implementing acts can explicitly be delegated by any 'legally binding Union act', including a delegated regulation, directive or decision under Art 290 FEU.
87. Case-law since Case 30/70, Scheer [1970]ECR 1197, para 18.
88. Case C-378/00, Commission v Parliament (LIFE) [2003]ECR I-937, paras 51-55.
89. See the European Commission, European Governance: A White Paper, COM (2001) 428 (25 July 2001), in which it suggested to restrict the role of Committees to mere advisory function. For further discussion, see Craig, op cit n 67 supra, at 112, 113 and 126, 127; M. Everson, 'Agencies: The "Dark Hour" of the Executive?', in Hofmann and Türk, op cit n 60 supra. The very negative stance of the Commission towards comitology has, however, in the past few years been softened in public. Even in policy areas in which the Commission has proposed legislation to create new agencies, comitology procedures continue to play an important role. Internally, however, critical positions are strongly voiced. See, eg, D. Tryantafyllou, 'Article I-36 Les règlements européens délégués', in Burgorgue-Larsen etal, op cit n 8 supra, para 18.
90. For a further analysis of the historic development, see Lenaerts and Desomer, op cit n 57 supra.
91. Also, the Treaty of Lisbon lists only unilateral forms of action such as implementing regulations and decisions. Contracts and soft law tools find no mention in the Articles on implementing acts.
92. The Treaty of Lisbon does not contain explicit guidelines for the transformation from the old to the new regime. Legal acts issued under the EU and EC treaties would therefore remain in force until amended or abolished. This approach at first sight seems wise in view of the difficulties with the attempt to transform the committees established before and after the first comitology decision was adopted in 1987 to the new system of comitology under the second comitology decision of 1999 (Council Decision of 28 June 1999 ([1999]OJ L184/23). In practice, however, the non-transformation will cause intransparency since, for a long period of time, the old and the new terminology will be used in parallel.