Legislation, Delegation and Implementation under the Treaty of Lisbon: Typology Meets Reality

• DOI: http://doi.org/10.1111/j.1468-0386.2009.00474.x
• Date: 01 July 2009
• Published date: 01 July 2009

eulj_474482..505

Legislation, Delegation and

Implementation under the Treaty of

Lisbon: Typology Meets Reality

Herwig Hofmann*

Abstract: The Treaty of Lisbon has introduced a complex new typology of acts, distin-

guishing between legislative, delegated and implementing acts. This reform, the first since

the Treaty of Rome, will have an impact on some of the most contested topics of EU law,

touching several central questions of a constitutional nature. This article critically analy-

ses which potential effects and consequences the reform will have. It looks, inter alia, at the

aspects of the shifting relation between EU institutions, the distribution of powers between

the EU and its Member States, as well as the future of rule-making and implementation

structures such as comitology and agencies.

Amongst the questions which have plagued the EU/EC legal system since its very

beginnings are how to distinguish legislation from implementation on the European

level, as well as the conditions for delegation of powers. The Treaty of Lisbon1is an

important step in the ongoing reform of the constitutional basis of the EU, addressing,

inter alia, these very issues. This article therefore looks at the consequences of this new

typology to the legal system of the EU and the effects of the distinction between

legislative, delegated and implementing acts on the balance of powers between institu-

tions, between the EU and Member States, and on the future of comitology and

agencies. The article begins with an overview of the background to the problematique of

delegation, hierarchies of norms and typology of acts within the context of the devel-

opment of the EU and the EC’s legal system. It continues with an analysis of the nature

and use of different levels of acts proposed by the Treaty of Lisbon. It then discusses

delegation of executive powers in the EU under the Treaty of Lisbon. Thereby, it takes

account of the gaps between the new Treaty provisions, on one hand, and problems

developed through decades of evolutionary developments of the legal system, on the

other.2

* Professor of European and Transnational Public Law at the University of Luxembourg and Director of its

Centre for European Law.

1Treaty 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.

2Such ‘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,

European Law Journal, Vol. 15, No. 4, July 2009, pp. 482–505.

© 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

I Delegation, Hierarchy and the Typology of Acts

The typology of acts under the Treaty of Lisbon has had a complex historical genesis.

It was born from the necessity to create a more self-effacing project than the Treaty

establishing a Constitution for Europe (Constitutional Treaty, CT)3had been. Both

have in common that they are reform treaties addressing institutional needs of the EU.

In both, one of the most important items on the agenda of reform was the simplification

of the legal system by creating a new typology of legal acts of the EU. Such a reform has

implications for many aspects of the legal and political system of the EU, most notably

the further development of the ‘institutional balance’ at the European level. This is the

European code for ‘separation of powers’ and its inherent ‘system of checks and

balances’.4A reform of the typology of acts also has implications for legitimacy of

governing through influencing transparency and intelligibility of legal acts and

decision-making mechanisms. It finally influences the distribution of powers between

the Member States and the EU.

The problem of the typology of acts addressed in the Treaty of Lisbon is not new.5

For nearly as long as the EC has existed, has there been debate about the necessity of

a re-classification of the typology of E(E)C and EU legal acts and delegation of

powers.6The parameters of the debate changed over time with generations of treaty

reforms, from the Single European Act to the Treaties of Maastricht, Amsterdam and

Nice,7and later the proposals for a treaty establishing a constitution for Europe

(Constitutional Treaty).8Alongside these ‘constitutional’ developments were no less

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.

4Final 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.

5See 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 Consti-

tution européenne (Bruylandt, 2007), 485.

6The 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).

7Such 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.

8This 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), Traité établissant 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 Traité

July 2009 Lisbon Treaty Legislation, Delegation and Implementation

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© 2009 Blackwell Publishing Ltd.