‘Detailing’ EU Legislation through Implementing Acts

Abstract

The concept and scope of implementing powers under Article 291 (2) TFEU have been subject to debate ever since the Treaty of Lisbon entered into force, and even prior to this in the general context of constitutional reform of the European Union (EU). In particular, the relationship between implementing powers and delegated powers—the latter regulated in Article 290 TFEU—has given rise to controversy. Several of those delineation issues have been settled by two Grand Chamber judgments and a series of subsequent rulings handed down by the Court of Justice of the EU (CJEU). In particular, the CJEU has established that while categorically distinct, the substantive scope of both types of powers partially overlaps and that the Union legislator has certain discretion to choose between them where this is the case. However, several open issues remain, and new questions have been raised by the Court’s decisions. The case law is not sufficiently clear as to the areas with respect to which both instruments of delegation are at the disposal of the Union legislator, and where the latter is confined to authorize only one of them. Legal uncertainty also exists regarding the question which limits, if any, apply to the discretion of the legislator in making its choice in the areas where there is an overlap. Finally, how the new context of implementing powers under the Lisbon Treaty affects the institutional balance between the Court itself and the Commission as the typical delegate of those powers has as yet received little attention.