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

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.