JOURNAL: The Theory and Practice of Legislation

The latest issue of The Theory and Practice of Legislation (Hart Publishing) is out. 

It includes:

Introduction: The Legitimacy of EU Secondary Legislation

Wim Voermans and Josephine M.R. Hartmann

The Quest for Legitimacy in EU Secondary Legislation

Wim Voermans, Josephine M.R. Hartmann and Michael Kaeding

Abstract: 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, the lack of 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.

Primacy of the European Legislature? Delegated Rule-Making and the Decline of the “Transmission Belt” Theory

Rob van Gestel

Abstract: According to some a primacy of parliament doctrine is emerging at the EU level in the post-Lisbon era strengthening the position of the EP in the legislative process and tightening the grip on delegated rule-making via the new regime of Article 290/291 TFEU. In reality, however, new problems with delegation have come up, which seem to bypass the normative framework of Article 290/291. It is unlikely that the legitimacy of new modes of delegation can be guaranteed through a ‘transmission belt theory’ in which primary EU legislation serves to transfer democratic legitimacy to the executive, to administrative agencies and to other delegated rule-makers, at the same time constraining their actions so that they advance legislative goals. More attention should be paid to public participation, transparency and judicial review of rules outsourced by the primary legislature.

The Irony of Oversight: Delegated Acts and the Political Economy of the European Union’s Legislative Veto under the Treaty of Lisbon

Kevin M. Stack

Abstract: As part of the Treaty of Lisbon, the European Union adopted a legislative veto mechanism which grants the European Parliament and the Council of the European Union independent authority to revoke delegations to the European Commission or to override elements of the Commission’s “delegated acts.” This article provides a functional assessment of this new provision—Article 290 of the Treaty on the Functioning of Europe—as a basis for evaluating the way in which it alters the grounds of the legitimacy of secondary legislation in the EU. The article argues that Article 290 does little to augment the claim that secondary legislation reflects the views of the Parliament or Council, and ironically may increase the capacity of interest groups to shape the content of the Commission’s secondary legislation. Because the costs of collective action to formally override Commission acts are high for Parliament, principles of political economy predict that the members of Parliament will prefer individual negotiation with the Commission for concessions. Decades of experience with a legislative veto in the United States provide support for this theoretical prediction that a legislative veto’s primary impact in a system of separated powers is to augment negotiations between committees and even individual legislators with executive rule-makers. Yet these often non-transparent negotiations do not represent the Parliament as an institution, and thus do little to enhance the “parliamentary” legitimacy of the Commission’s delegated acts. Article 290’s legislative veto also supplants Member States’ prior gatekeeping role in the Commission’s processes for developing secondary legislation. As a result, this article exposes that with the adoption of Article 290, the primary grounds for the legitimacy of secondary legislation in the European Union—and for the project of EU administrative law—are technocratic and procedural.

The Adoption of Secondary Legislation through Comitology in the EU: Some Reflections on the Regulation (EU) 182/2011 in Comparison with the Pre-Lisbon Reform

Daniela Corona

Abstract: The Lisbon Treaty reform provided an important innovation in the EU regulatory activity by differentiating between the legislative delegation (art. 290 TFEU) and the executive delegation (art. 291 TFEU). In so doing, the central role of the European Commission in the Comitology procedures as well as the power of the European Parliament and the Council to control its executive powers have been modified. The new 2011 Comitology Regulation aimed at creating a more intelligible and transparent committees’ system where the EC is expected to act in a stricter framework. The paper argues that the new Regulation preserves the efficiency of the Comitology system; at the same time, however, it does not really improve the level of transparency and clarity in the way in which the committees’ procedures works. Moreover, as the practice clearly shows, the EC continues to enjoy a broad discretion in the adoption of implementing acts.