Rulemaking by the European Commission : the new system for delegation of powers / edited by Carl Fredrik Bergström, Professor of European Law, Uppsala University ; and Dominique Ritleng, Professor of Public Law, Strasbourg University.
2016
KJE5307 .R85 2016 (Map It)
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Title
Rulemaking by the European Commission : the new system for delegation of powers / edited by Carl Fredrik Bergström, Professor of European Law, Uppsala University ; and Dominique Ritleng, Professor of Public Law, Strasbourg University.
Published
Oxford, United Kingdom : Oxford University Press, 2016.
Copyright
©2016
Call Number
KJE5307 .R85 2016
Edition
First edition.
ISBN
9780198703235 (hbk.)
0198703236 (hbk.)
0198703236 (hbk.)
Description
xxvii, 280 pages ; 24 cm
System Control No.
(OCoLC)936302724
Summary
The last few years have seen major reforms to the delegation of powers and post-delegation supervision of the European Commission. In light of these reforms, Rulemaking by the European Commission: The New System for Delegation of Powers assesses whether the new system has really affected the old doctrine of delegation of powers, and if so, how? Specific questions answered include: have the objectives of the reform been achieved and what were these objectives? How does the new system affect the division of functions between the institutions of the EU and the institutional balance? Has this new system affected the relationship between the EU and its Member States, and if so, how does it concern its citizens? Presented by an interdisciplinary group of experts who have actively followed or participated in the process of reform, the book is structured in four parts: (1) the political and historical context in which the rule-making takes place, (2) the operation and functioning of the system before and after the reform, (3) the legal substance of a new framework for rule-making and the emerging case law from the Court of Justice of the EU, and (4) the procedural dimension, including the legal preconditions for non-institutional actors to participate.-- Provided by Publisher.
Bibliography, etc. Note
Includes bibliographical references (pages 271-278) and index.
Record Appears in
Table of Contents
Table of Cases
xi
Table of Legal Acts
xv
Table of Official Documents
xix
List of Abbreviations
xxiii
List of Contributors
xxv
1.
Introduction / Carl Fredrik Bergstrom
1
1.1.
Distinction Between Legislative and Non-legislative Acts
1
1.2.
Development of a Doctrine of Delegation of Powers
4
1.3.
New Preconditions in Primary Law
9
1.4.
Aim of the Book and its Delimitations
11
pt. I
INSTITUTIONAL EXPERIENCE
2.
Evolution of the Approach to Executive Rulemaking in the EU / Jean Paul Jacque
21
2.1.
Introduction
21
2.2.
Holder of Executive Power
22
2.3.
Defining the Concept of Implementation
27
2.4.
Adoption of Measures of Implementation
32
2.5.
Conclusion
35
3.
Reform of Comitology and Delegated Acts: An Executive's View / Paolo Ponzano
37
3.1.
Introduction
37
3.2.
Some Examples of Acts Adopted under Comitology Procedures
38
3.3.
Brief History of Comitology Procedures
40
3.4.
Regulatory Regime Established by the Lisbon Treaty
43
3.5.
New Comitology Procedures
45
3.6.
Delineation between Delegated and Implementing Acts
47
3.7.
Ruling of the Court of Justice in Biocides
48
3.8.
Modification of the Common Understanding
50
3.9.
Conclusion
51
4.
Delegation of Powers in the European Union: Political Problems, Legal Solutions? / Kieran Bradley
55
4.1.
Introduction: Parliamentary Participation in Second-level Policy-making
55
4.2.
Delegation and Conferral: Some General Issues
58
4.3.
European Parliament and Delegated Acts
63
4.4.
European Parliament and Implementing Acts
70
4.5.
Borderline between Delegating and Implementing Acts
77
4.6.
Future of Delegation: Balancing Eggs?
81
pt. II
EMPIRICAL ASSESSMENT
5.
Interinstitutional Tensions in the New System for Delegation of Powers / Mathias Dobbels
87
5.1.
Introduction
87
5.2.
Interinstitutional Tensions and Delegation: Potential Sites of Conflict
88
5.3.
Interinstitutional Tensions and Delegation: the Legislative Process
91
5.4.
Role of `Expert Groups' in the Preparation of Delegated Acts---Comitology Reinvented
94
5.5.
Scrutiny by the EU Legislator: Revocation of Powers and Objections to Drafts
98
5.6.
Scrutiny by the Member States: Introducing the Appeal Committee
99
5.7.
Conclusion
102
6.
Contest for Power in Delegated Rulemaking / Katarzyna Granat
105
6.1.
Introduction
105
6.2.
Theoretical Argument
105
6.3.
Incomplete Institutional Rules: Articles 290 and 291
107
6.4.
Empirical Cases
109
6.5.
Conclusion
126
pt. III
LEGAL EVALUATION
7.
Reserved Domain of the Legislature: The Notion of `Essential Elements of an Area' / Dominique Ritleng
133
7.1.
Introduction
133
7.2.
Origin: Going Back to the Koster Jurisprudence
137
7.3.
Function: Defining the Legislatures Domain and Opening a Wide Scope for Delegation
139
7.4.
Scope: a Limit to Legislative Delegation Only?
142
7.5.
Content: To Be or Not To Be Essential, That Is a Tricky Question
149
8.
Is There a Hierarchy of Legislative, Delegated, and Implementing Acts? / Jurgen Bast
157
8.1.
Introduction
157
8.2.
Commissions Delegated and Implementing Powers: two Distinctive Regimes of Control
159
8.3.
Relationship between Delegated and Implementing Acts: neither Exclusivity nor Subordination
165
8.4.
Conclusion
171
9.
Comitology, Rulemaking, and the Lisbon Settlement: Tensions and Strains / Paul Craig
173
9.1.
Introduction
173
9.2.
Lisbon Model: Core Assumptions
174
9.3.
Analytical and Temporal: the Fragile Divide between Articles 290 and 291
177
9.4.
Constitutional: Politics and Constitutional Architecture
187
9.5.
Institutional: Agencies, Conferral, Delegated Acts, and Implementing Acts
194
9.6.
Legal Form: Hard Law, Soft Law, and Articles 290 and 291
199
9.7.
Conceptual: Rulemaking and Adjudication
200
9.8.
Conclusion
201
pt. IV
PARTICIPATORY DIMENSION
10.
Judicial Protection for Private Parties in European Commission Rulemaking / Maria Bergstrom
205
10.1.
Introduction
205
10.2.
Systematic Analysis of Articles 263, 290, and 291
213
10.3.
Main Obstacles and Remaining Incoherencies
228
11.
Making of Delegated and Implementing Acts: Legitimacy beyond Institutional Balance / Joana Mendes
233
11.1.
Introduction
233
11.2.
Controls and Democratic Legitimacy
235
11.3.
Matter of Institutional Collaboration Only?
241
11.4.
Procedures and Democratic Legitimacy
246
11.5.
Conclusion
253
pt. V
GENERAL CONCLUSIONS
12.
Patterns and Findings: Five Central Themes / Dominique Ritleng
257
12.1.
Constitutional Narrative
257
12.2.
Practical Operation
259
12.3.
Institutional Implications
261
12.4.
Unsolved Problems
262
12.5.
Judicial Development
264
12.6.
New System?
266
Bibliography
271
Index
279