The Quest for Legitimacy in EU Secondary Legislation
The Theory and Practice of Legislation, Vol 2, No 1, p. 5-33
28 Pages Posted: 12 Feb 2014 Last revised: 29 Apr 2016
Date Written: July 11, 2014
According to classic democratic theory legislative decision-making presupposes some involvement of the people or their representatives. Their involvement is a prerequisite for the legitimacy of enacted legislation. At the same time, however, lacking public involvement is a weak spot of EU-legislative decision-making. This represents a growing problem because the European Union (EU) is built on and predominantly governed by EU law that is enacted in EU-legislation without direct input from the people. In fact more than 75% of EU legislation is currently enacted by the European Commission (EC). This lack of democratic pedigree of so-called ‘EU secondary legislation’ allegedly causes various legitimacy-related problems at the EU level. With the introduction of a new system on delegated and implementing acts by the Treaty of Lisbon, the EU however aims to address the apparent democratic deficit. This contribution takes up this call and against this backdrop answers the question whether the Lisbon 'arrangements' have, indeed, changed 'things for the better'. It presents a legitimacy review of the post-Lisbon regime on delegated and implementing acts of the last four years. We first look into the concept of legitimacy of EU secondary legislation to assess the post-Lisbon developments. After focusing on the question of whether the legitimacy of secondary legislation has increased since the Lisbon Treaty and in what respect we then turn to the Lisbon institutional and procedural empowerment of the European Parliament in the legislative procedure to see whether it has, in reality, increased the Parliament’s influence and control of EU legislation vis à vis the Council and the Commission. Our findings suggest that the high expectations for improving the legitimacy of EU secondary legislation have not (yet) materialized. Furthermore, facts and figures give cause for doubt as to the feasibility of achieving this objective in the near future.
Keywords: EU law, EU legislative process, EU secondary legislation, legitimacy, EU post-Lisbon, rule-making, delegation, implementing acts, delegated acts, comitology, European Commission, EU legislator, European Parliament, Lisbon Treaty, article 290 TFEU, article 291 TFEU
JEL Classification: K10, K20
Suggested Citation: Suggested Citation