'Delegated' Legislation in the (new) European Union: A Constitutional Analysis

Modern Law Review

Volumn 74, Issue 5, 2011, Pages 661-693

  Schütze, Robert ^a  

^a DURHAM UNIVERSITY   (United Kingdom)

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EID: 84860014702     PISSN: 00267961     EISSN: 14682230     Source Type: Journal    
DOI: 10.1111/j.1468-2230.2011.00866.x     Document Type: Article

References (153)

1. E. Zoller, Droit Constitutionnel (Paris: Presses Universitaires de France, 1999) 353. Cf Article I, Section 1 of the US Constitution: 'All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives'.
2. A. Lincoln, 'Gettysburg Address, 1863' in: New York: Prentice Hall, H. S. Commager and M. Cantor (eds), Documents of American History - Volume I (1988) 428, 429.
3. Field v Clark 143 US 649 (1892), 692.
4. Cf G. Lawson, 'The Rise and Rise of the Administrative State (1993-4) 107 Harvard Law Review 1231.
5. W. Gellhorn and C. Byse, Administrative Law: Cases and Comments (Mineola: Foundation Press, 1974) 62.
6. C. Schmitt, Die Lage der Europäischen Rechtswissenschaft (Tübingen: Universitätsverlag Tübingen, 1950) 18.
7. H. W. R. Wade and C. F. Forsyth, Administrative Law (Oxford: Oxford University Press, 2000) 839.
8. (emphasis added): 'there is no more characteristic administrative activity than legislation'; as well as: H. Pünder, '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, administrative law-making powers became the rule rather then the exception'. For a general overview, see also: A. von Bogdandy, Gubernative Rechtsetzung (Tübingen: Mohr Siebeck, 1999).
9. For 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. Bell, French Constitutional Law (Oxford: Clarendon Press, 1992) esp Chapter 3 -'The Division of Lawmaking Powers: The Revolution that Never Happened?'.
10. B. Schwartz, 'Delegated Legislation in America: Procedure and Safeguards' (1948) 11 Modern Law Review 449.
11. A preliminary note on terminology: The Lisbon Treaty has 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 analytical advantages. A procedural definition of legislation simply rests on a definitional fiat 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 definition is thus forced to import 'meta-constitutional' elements into its concept of legislation. A functional definition 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 different historical and (supra)national settings. Second, a functional conception of legislation corresponds to a functional separation of power doctrine and underlies such constitutional constructs as 'delegated legislation' or 'executive legislation'. To make matters more complex, the Lisbon Treaty has now also introduced a 'formal' definition of delegation. Delegated acts are now defined by the procedure established in Article 290 TFEU. However, again, this article also employs a 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.
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: Université de droit, d'économie et de science d'Aix-Marseille, Le Domaine de la loi et du Réglement (Aix: Presses Universitaires d'Aix-Marseille, 1978) 263: 'la revolution n'a pas eu lieu'.
15. G. P. Miller, 'Independent Agencies' (1986) Supreme Court Review 41 - linking the start of the administrative state with the birth of the Interstate Commerce Commission.
16. Mistretta v United States 488 US 361 (1989) 371: 'The non-delegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government'.
17. Cf Metropolitan Washington Airports Authority v Citizens for the Abatement of Aircraft Noise 501 US 252 (1991) esp 274-6.
18. L. Tribe, American Constitutional Law (New York: Foundation Press, 2000) 141.
19. G. P. Miller, n 15 above, 64-5: 'This model has some vitality as a descriptive theory', but '[t]he fourth branch theory, however, cannot be reconciled with the written constitution'.
20. Cf P. Strauss, 'The Place of Agencies in Government: Separation of Powers and the Fourth Branch' (1984) 84 Columbia Law Review 573.
21. S. G. Calabresi and K. H. Rhodes, 'The Structural Constitution: Unitary Executive, Plural Judiciary (1991-92) 105 Harvard Law Review 1153.
22. On the various control models for administrative acts, see the brilliant analysis by D. S. Rubenstein, '"Relative Checks": Towards Optimal Control of Administrative Power (2009-10) 51 William and Mary Law Review 2169.
23. Field v Clark 143 US 649 (1892) 692.
24. United States v Grimaud 220 US 506 (1911) 516: 'Congress was merely conferring administrative functions upon an agent, and not delegating to him legislative power'. See also: Hampton & Co v United States 276 US 394, 409: 'If Congress shall lay down by legislative act an intelligible principle to which the person or body authorised to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power'.
25. W. Gellhorn and C. Byse, n 5 above, 62. In the words of another author, the Supreme Court followed an ingenious syllogism: '(1) Major Premise: Legislative power cannot be constitutionally delegated by Congress; (2) Minor Premise: It is essential that certain powers be delegated to administrative officers and regulatory commissioners; (3) Conclusion: Therefore, the powers thus delegated are not legislative powers' (Cf L. Fisher, 'Delegating Power to the President' (1970) 19 Journal Public Law 251, 252-3 (quoting: R. Cushman).
26. On the 'New Deal' see W. E. Leutchenburg, Franklin D. Roosevelt and the New Deal: 1932-1940 (New York, Harper & Row, 1963).
27. Schechter Poultry Corporation v United States 295 US 495 (1935).
28. Cf the National Industrial Recovery Act 1933, s 3(a) and (b).
29. Cf G. Lawson, 'The Rise and Rise of the Administrative State (1993-94) 107 Harvard Law Review 1231, 1240.
30. 'The Supreme Court has not invalidated a congressional statute on nondelegation grounds since 1935. This has not been for lack of opportunity.' However, for the argument that the Supreme Court only 'relocated' the doctrine, see C. R. Sunstein, 'Nondelegation Canons' (2000) 67 U Chi L Rev 315.
31. K. C. Davis, 'A New Approach to Delegation' (1969) 36 U Chi L Rev 713.
32. S. Breyer and R. B. Stewart, Administrative Law and Regulatory Policy (Boston: Little Brown, 1992) 93.
33. Immigration and Naturalization Service v Chadha 462 US 919 (1983).
34. The Immigration and Nationality Act 1952, s 244 © (1) provided: 'Upon application by any alien who is found by the Attorney General to meet the requirements of subsection (a) of this section the Attorney General may in his discretion suspend deportation of such alien. If the deportation of any alien is suspended under the provisions of this subsection, a complete and detailed statement of the facts and pertinent provisions of law in the case shall be reported to the Congress with the reasons for such suspension. Such reports shall be submitted on the first day of each calendar month in which Congress is in session'.
35. ibid, s 244 © (2): 'if during the session of the Congress at which a case is reported, or prior to the close of the session of the Congress next following the session at which a case is reported, either the Senate or the House of Representatives passes a resolution stating in substance that it does not favor the suspension of such deportation, the Attorney General shall thereupon deport such alien or authorize the alien's voluntary departure at his own expense under the order of deportation in the manner provided by law'.
36. Chadha n 37 above, 952.
37. On the 'presentment' requirement, see Chadha ibid, 946 et seq.
38. This view is controversial, and the Court has received significant academic support; see G. Lawson, n 31 above and L. Tribe, n 18 above.
39. Chadha n 37 above, 973 (emphasis added).
40. For an analysis of this point, see P. L. Strauss, 'Was there a baby in the Bathwater? A Comment on the Supreme Court's Legislative Veto Decision' (1983) 32 Duke LJ 789.
41. On this point, see S. G. Calabresi and K. H. Rhodes, n 20 above and L. Lessig and C. R. Sunstein, 'The President and the Administration' (1994) 94 Columbia Law Review 1.
42. This conclusion is not called into question by the 1996 Congressional Review Act (CRA). The latter requires agencies to submit major regulatory acts to Congress for review. While expedited in some minor ways, Congress can still only negate executive rules by following the 'ordinary' legislative procedure set out in Article I of the US Constitution. On the CRA and its shortened congressional committee process, see Note, 'The Mysteries of the Congressional Review Act' (2008-09) 122 Harv LR 2162.
43. On these committees, W. Gellhorn and C. Byse, n 5 above 113-116.
44. Cf Administrative Procedure Act 1946, § 553: 'Rule-Making'. The provision provides in subsection © that: 'the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation'.
45. For a masterful diagnosis of the representational 'imbalance' within this 'surrogate political process', see R. B. Stewart, 'The Reformation of American Constitutional Law (1974-75) 88 Harvard Law Review 1667, 1713et seq. In the words of the author (ibid): 'It has become widely accepted, not only by public interest lawyers, but by academic critics, legislators, judges, and even by some agency members, that the comparative over-representation of regulated or client interests in the process of agency decision results in a persistent policy bias in favor of these interests. Such overrepresentation stems from both the structure of agency decisionmaking and from the difficulties inherent in organizing often diffuse classes of persons with opposing interests'.
46. For a short analysis of the inter-institutional differences between the European Coal and Steel Community and the European Economic Community, see R. Schütze, 'On "Federal" Ground: The European Union as an (Inter)national Phenomenon' (2009) 46 Common Market Law Review 1069, 1070et seq.
47. The provision read: 'Each institution shall act within the limits of the powers conferred upon it by this Treaty'.
48. Case 25/1970 Einfuhr- und Vorratsstelle für Getreide und Futtermittel v Köster et Berodt & Co [1970] ECR 1161 (Köster).
49. Case 291/86 Central-Import Münster GmbH & Co. KG v Hauptzollamt Münster [1988] ECR 3679, at [13]. But see also: Case C-240/90 Germany v Commission [1992] ECR I-5383, at [41[-[2].
50. Germany v Commission ibid at [37].
51. Case 22/88 Industrie- en Handelsonderneming Vreugdenhil BV and Gijs van der Kolk - Douane Expediteur BV v Minister van Landbouw en Visserij [1989] ECR 2049 at [16]-[25].
52. This constitutional rule has exceptions. On so-called 'Henry VIII Clauses' in British constitutional law, see H. Pünder, n 7 above.
53. Case 38/70 Deutsche Tradex GmbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1971] 145 at [10].
54. Case 100/74 Société CAM SA v Commission [1975] ECR 1393, in which the Court confirmed the legality of Article 4 of (Council) Regulation 2496/74 amending the prices applicable in agriculture for the 1974/75 marketing year. That this technique has not been overruled by Case C-93/00 Parliament v Council [2001] ECR 10119, see only Commission Regulation No 413/2010 amending Annexed III, IV and V to Regulation No 1013/2006 of the European Parliament and the Council on shipments of waste so as to take account of changes adopted by OECD Council Decision C(2008) 156 ([2010] OJ L119/1). The amendment power of delegated legislation is not confined to provisions in an annex, cf Case 417/93 Parliament v Council [1995] ECR I-1185.
55. K. Lenaerts and A. Verhoeven, 'Towards a Legal Framework for Executive Rule-making in the EU? The Contribution of the New Comitology Decision' [2000] 37 Common Market Law Review 645, 652.
56. Cf Case 230/78 SpA Eridania-Zuccherifici nazionali et al v Minister of Agriculture and Foresty et al [1979] ECR 2749 at [8]; as well as: Case 46/86 Romkes v Officier van Justitie [1987] ECR 2671 at [16]: 'an implementing regulation... must respect the basic elements laid down in the basic regulation'. See more recently: Case C-303/94 Parliament v Council [1996] ECR 2943 at [30]-[33].
57. See in particular: Case C-156/93 Parliament v Commission [1995] ECR 2019. The case has led C. F. Bergström, Comitology: Delegation of Powers in the European Union and the Committee System (Oxford: Oxford University Press, 2005) 234 to comment the Court's past position in the following way: '[I]n a number of rulings the Court struck the balance between the notion of "implementation"- the scope for legislation adopted in accordance with simplified procedures - and "the basic elements"- requiring the use of normal procedures - in such a way as to encourage rather than prevent the Council and the Commission from outflanking the European Parliament'.
58. Case 230/78 SpA Eridania-Zuccherifici nazionali et al v Minister of Agriculture and Forestry et al [1979] ECR 2749 at [7].
59. K. Lenaerts, 'Regulating the Regulatory Process: "Delegation of Powers" in the European Community' (1993) 18 European Law Review 23, 34.
60. However, the Court has (occasionally) clarified that the Council could not 'derogate' from its own general acts by means of specific decisions; cf Case 119/77 Nippon Seiko KK and others v Council and Commission [1979] ECR 1303 at [24]: 'The Council, having adopted a general regulation with a view to implementing one of the objectives laid down in Article [133] of the [EC] Treaty, cannot derogate from the rules thus laid down in applying those rules to specific cases without interfering with the legislative system of the Community and destroying the equality before the law of those to whom the law applies'.
61. This phrase suggested the existence of clear guidelines. They would not be provided in the (subsequently adopted) Comitology Decisions. Bradley has thus heavily criticised the comitology system as failing to respect the wording of Article 202 EC. It 'deprives the requirement that the Council supply detailed reasons for reserving the exercise of implementing powers of its raison d'être' (cf K. St Clair Bradley, 'Comitology and the Law: Through a Glass, Darkely' (1992) 29 Common Market Law Review 693, 716).
62. Case 16/88 Commission v Council [1989] ECR 3457 at [10].
63. Case 257/01 Commission v Council [2005] ECR 345.
64. P. Strauss, 'The Place of Agencies in Government: Separation of Powers and the Fourth Branch' (1984) 84 Columbia Law Review 573.
65. While a few agencies emerged in the 1970s, there has been a real 'agencification' of the European legal order since the 1990s. Today, almost 40 European agencies exist in the most diverse areas of European law. For an inventory and functional typology of European agencies, see S. Griller and A. Orator, 'Everything under control?: the "way forward" for European agencies in the footsteps of the Meroni doctrine' (2010) 35 European Law Review 3 (Appendix).
66. Case 9/56 Meroni & Co, Industrie Metallurgiche, SpA v High Authority of the European Coal and Steel Community (1958) ECR 133.
67. Article 8 ECSC read: 'The High Authority shall be responsible for assuring the fulfilment of the purposes stated in the present Treaty under the terms thereof'.
68. Meroni n 82 above, 152 (emphasis added).
69. The most drastic expression of this expansive reading of Meroni is Case 98/80 Romano v Institut national d'assurance maladie-invalidité [1981] ECR 1241 at [20]: 'it follows both from Article [202] of the [EC] Treaty, and in particular by Articles [230] and [234] thereof, that a body such as the administrative commission may not be empowered by the Council to adopt acts having the force of law. Whilst a decision of the administrative commission may provide an aid to social security institutions responsible for applying Community law in this field, it is not of such a nature as to require those institutions to use certain methods or adopt certain interpretations when they come to apply the Community rules'.
70. In Meroni n 82 above, the Court repeatedly referred to the 'wide margin of discretion' that was delegated to the agency (ibid, 153 and 154; emphasis added). A close historical analysis could thus narrow the ruling to an early expression of the 'basic elements' principle: the High Authority was simply not allowed to delegate basic choices to an agency. For a similar reading, see Griller and Orator, n 52 above. The Court has itself (occasionally) signalled its willingness to limit the Meroni doctrine to a 'basis elements' doctrine for agencies, see Case C-164/98P DIR International Film Srl et al v Commission [2000] ECR I-447; and albeit in a different context, Case C-154-155/04 R (On the application of Alliance for Natural Health) v Secretary of state for Health [2005] ECR I-6541, especially at [90].
71. Regulation 17/62: First Regulation implementing Articles 85 and 86 of the [EEC] Treaty (OJ English Special edition: Series I Chapter 1959-1962, 87), Article 10(3): 'An Advisory Committee on Restrictive Practices and Monopolies shall be consulted prior to the taking of any decision following upon a procedure under paragraph 1, and of any decision concerning the renewal, amendment or revocation of a decision pursuant to Article 85(3) of the Treaty'.
72. C. Bertram, 'Decision-Making in the E.E.C.: The Management Committee Procedure (1967-68) 5 Common Market Law Review 246, 259.
73. Inactivity of the Council would lead to a positive confirmation of the Commission legislation; and even if the Council came to act, a minority of the Member States would be sufficient to back the Commission decision. While not having overlooked this dynamic (cf J. Weiler, 'The Community System: the Dual Character of Supranationalism' (1981) 1 Yearbook of European Law 267, 290.), its undervaluation may constitute a - major - crack in Professor Weiler's famed dual supranationalism thesis.
74. This procedural device was originally developed in the context of the common commercial policy, cf Article 12-14 of Regulation 802/68 on the common definition of the concept of the origin of goods (OJ English Special Edition: 1968 I/165), especially Article 14(3)©: 'If, within three months of the proposal being submitted to it, the Council has not acted, the proposed provisions shall be adopted by the Commission'.
75. Cf Article 7 of Council Directive 69/349 amending the Directive of 26 June 1964 on health problems affecting intra-Community trade in fresh meet (OJ English Special Edition: 1969 II/431); and Directive 74/63 on the fixing of maximum permitted levels for undesirable substances and products in feedingstuffs (OJ 1974 L 38/31), whose Article 10 would be subject to judicial review in Case 5/77 Tedeschi v Denkavit [1977] ECR 1555 (Tedeschi). The fourth paragraph of the provision read: 'The Commission shall adopt the measures and implement them forthwith where they are in accordance with the Opinion of the Committee. Where they are not in accordance with the Opinion of the Committee, or if no Opinion is delivered, the Commission shall without delay propose to the Council the measures to be adopted. The Council shall adopt the measures by a qualified majority. If the Council has not adopted any measures within 15 days of the proposal being submitted to it, the Commission shall adopt the proposed measures and implement them forthwith, except where the Council has voted by a simple majority against such measures'.
76. Case 23/75 Rey Soda v Cassa Conguaglio Zucchero n 55 above at [12] (emphasis added).
77. Tedeschi n 94 above esp at [53]-[56]. Tedeschi dealt with the 1969 'General Programme for the Elimination of Technical Barriers to Trade'. The latter contained a decision that in principle all directives that delegate power to the Commission should follow the regulatory committee procedure. This had been done with regard to feedingstuffs (cf Directive 74/63 - n 94 above). The Directive allowed the Commission, with the assistance of the Standing Committee for Feedingsstuff, to amend the basic directive but had thereby used the 'double safety net' procedure in Article 10(4). In Tedeschi, the Italian Government had tried to get the Standing Committee to amend Directive 74/63 to include 'potassium nitrates'. Italy did not wait for the requested amendment and banned the substance - invoking its right to apply unilateral safeguard measures. The Court not only confirmed the power of a Member State provisionally to ban undesirable substances, despite the existence of a European machinery to amend legislation, but also gave its approval to the double-safety net procedure. The Court's answer in this respect as sibylline: it recognised that the Council could stop the Commission from adopting (safeguard) measures under the double-safety net procedure; yet this was not regarded as 'paralysing the Commission'. For an extensive discussion of this difficult case, see Bergström, n 67 above at 142 et seq).
78. For this view, see K. Lenarts and A. Verhoeven, n 65 above, 653.
79. The normative or hierarchical status of these Comitology Decision appeared to be 'in between' the EC Treaty and ordinary legislation, cf Case C-378/00 Commission v Parliament and Council [2003] ECR I-937 at [39]-[42].
80. Council Decision 87/373 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1987 L 197/33). According to its Article 1, the Council was henceforth obliged to use control mechanisms 'which must be in conformity with the procedures set out in Articles 2 and 3'. Article 2 codified three main committee procedures. Procedure I concerned the advisory committee. Procedure II concerned the management committee, which was codified in two variants: Variant (a) and Variant (b). Procedure III set up the regulatory committee in two variants too, whereby Variant (b) codified the 'double safety net' procedure: 'If, on the expiry of a period laid down on each act to be adopted by the Council under this paragraph but which may in no case exceed three months from the date of referral to the Council, the Council has not acted, the proposed measures shall be adopted by the Commission, save where the Council has decided against the said measures by a simple majority.' Finally, Article 3 dealt with safeguard measures.
81. 'There is little doubt that such reform was required, given that there were more than 30 variants of the committee procedures in play at the time of the SEA, and that considerable energy was spent during the legislative process wrangling about the precise procedure to be incorporated in the primary regulation or directive.' Cf P. Craig, EU Administrative Law (Oxford: Oxford University Press, 2006) 107.
82. For a brief overview of the European Parliament's position, see K. St.C.Bradley, 'The European Parliament and Comitology: On the Road to Nowhere?' (1997) 3 European Law Journal 230, 231et seq.
83. Case 302/87 Parliament v Council (Comitology) [1988] ECR 5615. The Commission also tried to attack on the management committee procedure in Case 16/88 Commission v Council [1989] ECR 3457, claiming that the latter 'encroached upon the Commission's power under Article [270] of the [EC] Treaty to implement the budget on its own responsibility' (ibid at [15]). The Court however rejected this claim (ibid at [16]).
84. Cf Resolution of the European Parliament from 13 December 1990 on the Executive Powers of the Commission (comitology) and the Role of the Commission on the Community's External Relations (OJ 1991 C 19/273), 274: 'In the first reading, Parliament should systematically delete any provisions for procedures III(a) or III(b) and replace it by procedure II(a) or II(b) or, for proposals concerning the internal market put forward under Article 100a of the EEC Treaty, procedure I.' For the years of war and the various 'peace treaties' in the form of inter-institutional agreements, see Bergström, n 67 above, Chapter 4.
85. (Council) Decision 1999/468 laying down the procedures for the exercise of implementing powers conferred n the Commission (OJ 1999 L 184/23).
86. Article 2 offered a range of 'soft' criteria for the choice of committee. The Court subsequently clarified that the soft nature of the guidelines did not deprive them of all 'legal effects'. In Case C-378/00 Commission v Parliament and Council (Comitology II) [2003] ECR 937, the European legislator had selected the regulatory procedure - a choice that departed from the comitology criteria. The Court confirmed the non-binding character of the selection criteria in the 1999 Decision, but held that 'contrary to the contentions of the Parliament and the Council, the fact that the criteria laid down in Article 2 of the second comitology decision are not binding in nature does not prevent that provision from having certain legal effects, and in particular does not prevent the Commission legislature from being subject, when it departs from those criteria, to the obligation to state reasons on that point in the basic instrument adopted by it' (ibid at [50]). The European legislator was thus entitled to depart from the criteria, but had to sufficiently justify this departure (ibid at [62]). In this case, the legislator had failed to do so (ibid at [69]) and the relevant provision in the Regulation was consequently annulled.
87. Most importantly: the new Comitology Decision removed the two variants under the management and regulatory procedure (as well as the two variants of the safeguard procedure). The reformed core of the regulatory procedure was now contained Article 5(6) - third indent: 'If on the expiry of that period the Council has neither adopted the proposed implementing act nor indicated its opposition to the proposal for implementing measures, the proposed implementing act shall be adopted by the Commission'.
88. ibid, Article 4(3) and 5(5). And to allow Parliament to exercise its right of legislative supervision, it obtained the right to 'be informed by the Commission of committee proceedings on a regular basis' (ibid, Article 7(3)).
89. G. Schusterschitz and S. Kotz, 'The Comitology Reform of 2006 - Increasing the Powers of the European Parliament without Changing the Treaties' [2007] 3 European Constitutional Law Review 68, 72.
90. 'Although the European Parliament did not get equal rights, the amended Decision reflected, for the first time, the shift in the institutional balance due to the introduction of the co-decision procedure with the Treaty of Maastricht.' For a much more critical evaluation, see K. St. C. Bradley, 'Delegated Legislation and Parliamentary Supervision in the European Community' in: A. Epiney et al (eds), Challenging Boundaries (Baden-Baden: Nomos, 2007) 286, 288: 'At best, the 1999 decision paid lip-service to Parliament's claims for a greater role in supervising the adoption of measures to implement co-decision acts'.
91. In this latter sense: K. Lenaerts and A. Verhoeven, n 65 above, 680. This has also been said to reflect the position of the Council (cf Editorial Comment 'In the meantime...' (2006) 43 Common Market Law Review 1243, 1247).
92. (Council) Decision 2006/512 amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 2006 L200/11).
93. Recital 5 refers to the legally binding nature of the criteria applicable for the regulatory procedure with scrutiny, and Article 2(2) of the (amended) 1999 Decision states that the relevant measures 'shall be adopted' in accordance with the procedure.
94. The exclusion of individual decisions from the scope of the regulatory procedure with scrutiny was, according to Bradley, 'a bitter pill' for the European Parliament (cf K. St.C.Bradley, 'Halfway House: the 2006 Comitology Reforms and the European Parliament' (2008) 31 West European Politics 837, 846).
95. Statement by the European Parliament, the Council and the Commission concerning the Council Decision of 17 July 2006 amending Decision 1999/468 laying down the procedures for the exercise of implementing powers conferred in the Commission (OJ 2006 C 255/1).
96. Article 5a(3)(b) of the (amended) 1999 Comitology Decision.
97. G. Schusterschitz and S. Kotz, n 117 above, 68. The main exception occurs in the event of a negative opinion of the Committee. Here, the Council is completely free to reject the Commission proposal, while the Parliament must justify its rejection by means of one of the four grounds.
98. For this excellent point, see Bradley, n 117 above, 300.
99. On the temporal connection between the Constitutional Treaty and the 2006 Comitology Decision, see Editorial Comment, n 118 above, 1246.
100. Bergström, n 67 above, 320 et seq.
101. European Commission, European Governance: A White Paper COM(2001) 428.
102. 'If these orientations are followed the need to maintain existing committees, notably regulatory and management committees, will be put into question.'ibid.
103. Laeken Declaration of 15 December 2001 on the Future of the European Union.
104. Final Report of Working Group IX on Simplication, CONV 424/02.
105. The Working Group's 'scientific committee' was composed of J. C. Piris, M. Petite, and K. Lenaerts. The view of the third of these (cf WGIX - WD7) had the greatest impact on the Working Group. Lenaerts had advocated 'a clear distinction between the legislative and executive acts of the Union' according to the type of procedure followed (ibid, 2). Within the category of 'executive acts', a distinction was made between 'delegated legislation' and 'executive acts sensu stricto' (ibid, 4). The former allowed the Commission to modify a legislative act and it was therefore 'necessary to provide for a "heavy" comitology (intervention of a regulatory committee or of a management committee comprising representatives of the Member States) and of strict control by the European Parliament, which could include a right of call back for the legislator in certain cases' (ibid, 5). For executive acts sensu stricto 'a "light" comitology will suffice (assistance of a consultative committee, for instance) leaving the final word to the Commission, under the control of the European Parliament' (ibid, 6).
106. Final Report of Working Group IX (Simplification), 8 (emphasis added).
107. On the wide notion of 'implementation' under Article 202 EC, see above.
108. In exceptional cases, the Council may be the delegee under Article 291 TFEU, see below.
109. Emphasis added.
110. J. Bast, 'Legal Instruments and Judicial Protection' in A. von Bogdandy and J. Bast (eds), Principles of European Constitutional Law (Oxford: Hart Publishing, Oxford 2009) 345, 391. For a similar conclusion derived from comparative constitutional law, see J. P. Jacque, 'Introduction: Pouvoir Législatif et Pouvoir Exécutif Dans L'Union Européenne' in J-B. Auby and J. Dutheil de la Rochère, Droit Administratif Européen (Bruxelles: Bruylant, 2007) 25, 45: 'Dans les États membres, l'acte adopté par délégation a généralement valeur législative lorsque le législateur le confirme explicitement ou implicitement'.
111. Unfortunately, Article 290 TFEU contains the seeds for two possible definitions of the 'essential elements' doctrine. A first formulation refers to 'non-essential elements of the legislative act' (emphasis added), while the second formulation is broader and refers to the 'essential elements of an area' (emphasis added). This semantic ambivalence may well give rise to an uncertainty that has plagued the concept of 'minimum' standard in the context of complementary competences. There it is unsettled whether the Member States' power to adopt stricter measures must be viewed against each legislative act or against the policy area in general (cf R. Schütze, From Dual to Cooperative Federalism: The Changing Structure of European Law (Oxford: Oxford University Press, 2009) 272 et seq).
112. In the past, 'implementation' under Article 202 EC comprised both general and specific acts, cf Case 16/88 Commission v Council [1989] ECR 3457 at [11]: 'The concept of implementation for the purposes of that article comprises both the drawing up of implementing rules and the application of rules to specific cases by means of acts of individual application.' The reasons for a morphological restriction of 'delegated acts' to material legislation could be manifold. First, the Constitutional Treaty had itself defined 'legislative acts' by reference to the instrumental matrix of 'regulations' and 'directives'. It had therefore also endorsed a material criterion for the definition of 'legislation' (cf R. Schütze, 'Sharpening the Separation of Powers through a Hierarchy of Norms: Reflections on the Draft Constitutional Treaty's Regime for Legislative and Executive Law-Making' (EIPA Working Paper 2005/01) 11). Second, as discussed above, the 'regulatory procedure with scrutiny' established by the 2006 Comitology Decision had already been confined to generally applicable acts. Third, one could argue that where the Union adopts an individual decision in the form of a 'legislative act', this derogation from a functional separation of powers principle should only be allowed for politically 'essential' choices that would, if that reasoning is accepted, be beyond the substantive limits set by Article 290(1) TFEU.
113. The Treaty on the Functioning of the European Union distinguishes between an 'ordinary' and 'special' legislative procedures. The former is defined by Article 289(1) TFEU by reference to the co-decision procedure (cf Article 294 TFEU). As regards the 'special legislative procedure', Article 289(2) simply states: 'In the specific cases provided for in the Treaties, the adoption of a regulation, directive or decision by the European Parliament with the participation of the Council, or by the latter with the participation of the European Parliament, shall constitute a special legislative procedure'.
114. This position is advocated by the Commission, cf Commission Communication: Implementing Article 290 of the Treaty on the Functioning of the European Union, COM(2009) 673 final, 3: 'A delegation of power within the meaning of Article 290 is possible only in a legislative act. However, it makes little difference whether or not the legislative act was adopted jointly by Parliament and the Council, because Article 290 does not distinguish between the ordinary legislative procedure (formerly co-decision) and special legislative procedures'.
115. ibid, 4 (emphasis added): 'Firstly, [the Commission] believes that by using the verb "amend" the authors of the new Treaty wanted to cover hypothetical cases in which the Commission is empowered formally to amend a basic instrument. Such a formal amendment might relate to the text of one or more articles in the enacting terms or to the text of an annex that legally forms part of the legislative instrument... Secondly, the Commission wishes to stress the importance that should be attached to the verb, "supplement", the meaning and scope of which are less specific than those of the verb, "amend". The Commission believes that in order to determine whether a measure "supplements" the basic instrument, the legislator should assess whether the future measure specifically adds new non-essential rules which change the framework of the legislative act, leaving a margin of discretion to the Commission. If it does, the measure could be deemed to "supplement" the basic instrument. Conversely, measures intended only to give effect to the existing rules of the basic instrument should not be deemed to be supplementary measures'.
116. On the mutual exclusivity of Articles 290 and 291 TFEU, see below.
117. Cf Article 231 TFEU: 'Save as otherwise provided in the Treaties, the European Parliament shall act by a majority of the votes cast.' For the application of this rule to the context of the ordinary legislative procedure, see Article 294(13) TFEU.
118. In this sense: 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 744, 755.
119. To allow for a free choice beyond the control mechanisms expressly mentioned would be a serious constitutional retrogression. Ever since the Single European Act, the European legal order had insisted - in the pursuit of legal order and transparency - that the conditions imposed on delegated legislation be set in advance of the specific delegating act. From this teleological perspective, it is problematic to claim that it would be 'perfectly open to the institutions concerned (the Commission, the Council, and the European Parliament) to agree among themselves more far-reaching conditions to apply to any basic act after the entry into force of the Treaty of Lisbon' (D. Curtin, Executive Power of the European Union: Law, Practices, and the Living Constitution: Law, Practice, and Constitutionalism (Oxford: Oxford University Press, 2009) 123). If we accept that these additional conditions would need to be (exhaustively) defined in advance, on what legal basis should the 'Article 290 Comitology Regulation' be based? Article 291 TFEU? Article 352 TFEU appears to rule itself out on procedural grounds, since it does not allow for co-decision; and Article 114 TFEU would seem to exclude itself on substantive grounds for it is confined to the internal market. However, the view that Article 290 TFEU does not limit the power of the European legislator is unsurprisingly shared by the European Parliament, cf (Non-legislative) Resolution of 5 May 2010 'Power of Legislative Delegation' (INI/2010/2021) para 2: 'Article 290 TFEU gives the Legislator the freedom to choose which control mechanism(s) to put in place; considers that the two examples enumerated in Article 290(2), objection and revocation, are purely illustrative and that one could envisage subjecting a delegation of power to other means of control, such as an express approval by Parliament and the Council of each delegated act or a possibility of repealing individual delegated acts already in force'.
120. We should presume that where the primary legal base envisages the Council as the principal decision-maker, the (special) legislative act is unlikely to grant Parliament identical control powers for delegated acts.
121. For the same conclusion, albeit by a wrong route, see H. Hofmann, 'Legislation, Delegation and Implementation under the Treaty of Lisbon: Typology meets Reality' (2009) 14 European Law Journal 482, 493: '[T]here are reasons to argue that Article 290 TFEU contains a closed enumeration. One of these arguments is the exceptional nature of the delegation of legislative powers to the executive body, the Commission. The delegation being the exception, indicates the necessity of a narrow interpretation of the exception vis-à-vis the rule.' The problem with this argument is that the control mechanism in Article 290(2) TFEU can be seen as political limitation to the 'exception' of executive legislation and should, following the author's argument, be interpreted widely.
122. The Commission has already indicated its willingness to 'concede' influence to national authorities and experts, cf Commission Communication, n 144 above, 6-7 (emphasis added): 'Except in cases where this preparatory work does not require new expertise, the Commission intends systematically to consult experts from the national authorities of all the Member States, which will be responsible for implementing the delegated acts once they have been adopted. This consultation will be carried out in plenty of time, to give the experts an opportunity to make a useful and effective contribution to the Commission. The Commission might form new expert groups for this purpose, or use existing ones. The Commission attaches the highest importance to this work, which makes it possible to establish an effective partnership at the technical level with experts in the national authorities. However, it should be made clear that these experts will have a consultative rather than an institutional role in the decision-making procedure'.
123. The Lisbon Treaty grants the European legislator henceforth the 'harsher' option of revoking the delegation altogether. The Comitology system established under the EC Treaty had not contained a call-back mechanism (C. Bertram, 'Decision-Making' n 91 above, 246): '[T]he Council has no discretion to withdraw what it has once delegated. Having transferred powers to the Commission on the Commission's proposal, it can only take them back by the same procedure, i.e., on the Commission's initiative'.
124. Cf European Governance: A White Paper n 128 above. For the academic view that sees the Commission as the 'winner' of the Lisbon reform, see P. Craig, 'The Hierarchy of Norms' in T. Tridimas and P. Nebbia (eds), EU Law for the Twenty-First Century, Volume I (Oxford: Hart, 2004) 75, 81. However, we must not forget that one of the principal aims of the Lisbon reform was to encourage the European legislator to delegate more 'legislative' powers to the Commission. Whether the new regime will indeed have this effect is debated. A positive answer has been advocated by the Convention Working Group IX on Simplification, n 134 above, 9. For the opposite view, see C. F. Bergström, n 67 above, 358: 'To abolish comitology in the context of delegated acts (and reduce it in the context of implementing acts) will deprive all members of the Council - the Governments of their most valuable means for influence and continuous control. This, in turn, is likely to have a negative effect on their readiness to entrust the Commission with any potentially significant powers to adopt delegated acts'.
125. Despite the formal(ist) distinction between 'delegated' and 'implementing power', the acts adopted under Article 291 TFEU are, too, the result of a delegation in a primary act. On the material notion of 'legislation' and 'delegation', see n 11 above.
126. Article 291(2) TFEU. Articles 24 and 26 TEU are part of Title V of that Treaty dealing with specific provisions on the Common Foreign and Security Policy.
127. The confirmation of the constitutional option of a 'self-delegation' by the Council has been criticised as 'an anomaly in the overall picture of separation of functions' (cf K. Lenaerts and M. Desomer, n 148 above at 756). The fact that 'agencies' were not mentioned as direct recipients of implementing powers appears to confirm their subordinate and auxiliary status below the formal Union institutions.
128. In this sense, see H. Hofmann, n 151 above, 488: 'One of the weak points of this non-delegation clause introduced into the new typology of acts is that it is explicitly only formulated for delegated acts under Article 290 TFEU. From a teleological point of view, however, it should also be applicable for the distinction between legislative and implementing acts under Article 291 TFEU'.
129. On the European Union's executive federalism, see R. Schütze, 'Executive Federalism in the (new) European Union' [2010] 47 Common Market Law Review 1385.
130. The Lisbon Treaty presumes that there is no need to control the exercise of implementing powers exercised by the Council. This view indirectly cements the argument in favour of an exclusion of the European Parliament from the constitutional control regime established under Article 291 TFEU for the Commission. For while it may make little constitutional sense to provide for a mechanism of Member State control over actions of the Council, the European Parliament would theoretically have a legitimate interest in controlling the exercise of implementing power here. The exclusion of the Parliament from the control of implementing powers by the Council could thus be interpreted to mean that the Lisbon drafters wished generally to exclude the European Parliament for the control mechanisms to be established.
131. Article 291(3) TFEU. This power has now been exercised through the adoption of Regulation 182/2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers (Comitology Regulation) (2011) OJ L 55/13.
132. The fact that the new Comitology 'code' takes the form of a regulation means that some of its provisions may have direct effect; and, as such, be challengeable in national courts.
133. Cf P. Craig, 'The Role of the European Parliament under the Lisbon Treaty' in Wien: Springer, S. Griller and J. Ziller (eds), The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? (2008) 109, 123.
134. Commission Proposal for a 'Regulation of the European Parliament and of the Council laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers' COM(2010) 83 final.
135. Cf Köster n 52 above at [9]: 'The management committee does not therefore have the power to take decisions in place of the Commission or the Council. Consequently, without distorting the Community structure and the institutional balance, the management committee machinery enables the Council to delegate to the Commission an implementing power of appreciable scope, subject to its power to take the decision itself if necessary'.
136. This involvement of European institutions - as opposed to the Member States - has been criticised as a 'une méconnaissance profonde des principles de base de la comitology' (H. Kortenberg, 'Comitologie: le retour' (1998) 34 Revue Trimestrielle de Droit Européen 317, 319). For Kortenberg, the Council had in the past only been chosen because a conference of the Member States would have been impractical (ibid, 320): 'On aurait certes pu, pour bien marquer la distincion, envisager un retour à une conference des repésentantes des Etats membres, mais cette hypothèse soulevait des difficultés practiques don't celle du regime contentieux des actes qui auraient ete adoptés dans un tel cadre. L'evocation par le Conseil était la seule solution permettant d'assurer l'unité du droit communautaire'.
137. European Commission, Proposal for a new Comitology Regulation cf 2011 'Comitology Regulation' n 1624 above, 3. According to the eighth preamble of the Regulation, the Commission will exercise its implementing powers 'in accordance with one of only two procedures, namely the advisory procedure or the examination procedure'.
138. ibid, Article 2(2). Sub-paragraph (b) enumerates, inter alia, the common agricultural and fisheries policies and the common commercial policy.
139. ibid, Article 5(3): '[I]f the committee delivers a negative opinion, the Commission shall not adopt the draft implementing act.' However, the Commission - as chair of the committee - can still refer the draft act to an 'appeal committee' (Article 6). The appeal committee - staffed by Member States - can either confirm the negative opinion or replace it by a positive opinion (Article 6(3)).
140. Cf Final Report of the Working Group on Simplification above, n 134 above.
141. Commission Communication, n 144 above, 3.
142. Cf R. Schütze, n 159 above. For the view that already regarded the 'old' comitology system through the federal lens, see K. Lenaerts and A. Verhoeven, n 65 above, 654 et seq; as well as J. P. Jacque, 'L'éternel retour: reflexion sur la comitology' in G. Vandersanden et al (eds), Mélanges en hommage à Jean-Victor Louis: Volume 1 (Bruxelles: Université de Bruxelles, 2003) 211 et seq.
143. This has happened in the recent Regulation 1093/2010 establishing a European Supervisory Authority (European Banking Authority) [2010] OJ L331/12. Article 11 of the Regulation not only delegates the power to adopt regulatory technical standards under Article 290 TFEU, but also grants the Commission the power to adopt 'implementing acts pursuant to Article 291 TFEU' under Article 15 of the Regulation.
144. No implementing act can 'amend' the basic act - this function is now exclusively reserved to 'delegated acts'. Implementing acts can thus provide 'supplementary' rules, but these 'supplementary' (implementing) rules will not supplement the legislative act. They stand below the legislative act.
145. Article 290 TFEU indirectly protects federal values also as the European legislator is mixed and thus incorporates the views of the Member States in the Council.
146. The argument goes as follows: as the 'delegated act' only concerns 'non-essential' elements and since the delegation mandate must expressly and clearly specify the 'objectives, content, scope and duration of the delegation' (Article 290(1) TFEU), all future delegated acts should be seen as covered by the subsidiarity analysis of the basic legislative act.
147. On this point, see R. Schütze, n 159 above, 1411.
148. Contra, J. H. H. Weiler: 'Constitutional or unconstitutional? Formally, the question makes sense. Comitology is neither. It is non-constitutional - outside the classical parameters of constitutionalism... It is evident that unlike some who may celebrate the constitutionalisation of Comitology, I regard it as a normative disaster. If constitutionalism is to be brought to Comitology without its subversive effects, the Court would have to recognise the infranational character of the phenomenon, which defies the normal constitutional categories constructed in the context of a supranational understanding of the Community.' (cf J. H. H. Weiler, 'Epilogue: "Comitology" as Revolution - Infranationalism, Constitutionalism and Democracy' in C. Joerges and E. Vos, EU Committees: Social Regulation, Law and Politics (Oxford: Hart, 1999) 339, 343 and 346.) I find it hard to make (much) sense of this statement, but if it is intended to mean that considerations such as federalism and the democracy are not an integral part of comitology, it is clearly wrong. In this sense also, see inter alia K. Lenaerts and A. Verhoeven, n 65 above, 650: 'The lack of an adequate legal framework governing executive action at Community level is one of the causes of the so-called democratic deficit in the Union'; as well as J. P. Jacque, n 176 above, 212 and 221: 'La comitology a souvent été considerée comme une question technique. Mais derrière l'apparente technicité des procedures se dissimule une question constituionnelle importante, celle de la nature du fédéralisme que l'on souhaite construire'.
149. There do exist special judicial safeguards to protect individual rights against executive legislation in the Union legal order, but these are beyond the scope of this article.
150. Article 291(3) TFEU (emphasis added).
151. For the 'legitimacy crisis' within the American administrative process, see J. O. Freedman, 'Crisis and Legitimacy in the Administrative Process (1974-75) 27 Stanford Law Review 1041.
152. The 'Comitology Regulation' will, as we saw above, not apply to delegations to the Council.
153. For a first example of a 'delegated act' adopted under 290 TFEU, see Commission Delegated Regulation 1059/2010 supplementing Directive 2010/30/EU with regard to energy labelling of household dishwashers [2010] OL L314/1.