Is There a Hierarchy of Legislative, Delegated and Implementing Acts?
In: Carl Fredrik Bergström and Dominique Ritleng (eds.), Rulemaking by the European Commission: The New System for Delegation of Powers (Oxford University Press 2016), 157-171
20 Pages Posted: 19 Aug 2015 Last revised: 19 Oct 2016
Date Written: August 17, 2015
According to a widespread assumption, the Lisbon Treaty has established a three-tiered hierarchy of legislative, delegated and implementing acts. The present paper challenges this view. It argues that only incomplete and partial hierarchies between different categories of acts adopted by the EU institutions do exist. In particular, the distinction between delegated and implementing acts (Articles 290, 291 TFEU) constitutes a horizontal divide, rather than a vertical one, placed at the same level of the hierarchy of norms within EU law. These two types of rulemaking powers conferred on the Commission are not mutually exclusive, given that the Treaty provides for a substantial overlap of their respective definitions. Delegated and implementing acts have essentially the same legal force, including the capacity to supplement or amend their basic act if the latter so provides, as explicitly foreseen in Article 290(1) TFEU. As a result, the choice between the two forms of Commission rulemaking is largely at the discretion of the EU legislature.
Keywords: EU law, European Commission, European Parliament, rulemaking, delegated acts, implementing acts, comitology, EU administration
JEL Classification: D72, D73, K19, K23, K39
Suggested Citation: Suggested Citation