The Many Faces of Rulemaking in the EU

Abstract

The growing complexity of rulemaking in the EU challenges our conceptual understanding of European integration. Instead of falling into the ‘State-analogy’ trap and instead of denying the results of 60 years of supranational rule, scholars should use basic legal concepts to analyse current EU rulemaking, particularly the differences between treaty/negotiation on the one hand and statute/legislation on the other hand. In the beginning, EU law was clearly oriented towards a model of supranational legislation, but recently, elements of bargaining and negotiation have begun to gain importance, be it in form of the ‘Trilogue’ of legislative institutions, rulemaking by the European Council and Member States – even outside the Treaty framework – or in the form of contractual implementation elements and even delegated legislation. Similar effects are brought about by a transferal of rule-making capacities to agencies and by the growing informality of rulemaking. Legal scholarship should respond to these challenges by developing a theoretical pattern for the pluralist structure of the EU, domesticating the influence of expert knowledge and establishing general rules for rulemaking which go beyond what the Treaties currently provide.