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Conclusion

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A Fiduciary Approach to Delegated and Implementing Rule-Making in the EU

Abstract

Delegated and implementing acts are wide-spread and permeate our daily lives. However, despite their ubiquity and relevance, it is unclear how the Commission’s power to adopt these important acts relates to their subjects’ democratic rights. Given their direct impact, how can the Commission’s powers to adopt delegated and implementing acts be justified? I started out with searching for a justification of the Commission’s rule-making powers vis-a-vis the persons subject to these rules. I ended with a call for a mechanism through which the Commission accounts for its motives and a mechanism (possibly explanatory memoranda) through which the Commission explains which actors were involved in which way in the rule-making processes. Are these latter measures thus the answer to the question of how the Commission can be justified in exercising rule-making powers over persons within the Member States? The answer to this is that for this justification the abstract normative framework has to work together with concrete, must almost necessarily more evolutionary than revolutionary, procedural changes, in order to gain effect

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Notes

  1. 1.

    Commission Implementing Regulation (EU) 2015/1609 of 24 September 2015 approving propiconazole as an existing active substance for use in biocidal products for product-type 7 [2015] OJ L249/17.

  2. 2.

    Commission Implementing Regulation (EU) 2016/443 of 23 March 2016 amending Annex I to Regulation (EC) No 669/2009 as regards the list of feed and food of non-animal origin subject to an increased level of official controls on imports [2016] OJ L78/51.

  3. 3.

    Commission Implementing Directive 2012/25/EU of 9 October 2012 laying down information procedures for the exchange, between Member States, of human organs intended for transplantation [2012] OJ L275/27.

  4. 4.

    Cf. Majone (2001), p. 103.

  5. 5.

    Thus, much of Parliament’s powers has been described as a reaction to the ‘Commission crisis’ of 1999. Cf. Muntean (2000). This is also noted, even though is the accuracy of this claim of a ‘parliamentarisation’ is disputed, by Judge and Earnshaw (2002), p. 345.

  6. 6.

    Such opinions are voiced in ‘Comitology’ procedures. For an overview over the percentages of negative opinions cf. Sect. 1.3 above.

  7. 7.

    Fox-Decent (2005), p. 259; Fox-Decent (2011).

  8. 8.

    But see Friedrichs et al. (2005) who come to the same conclusion from an International Governance point of view.

  9. 9.

    Thus, a reasons brought forward to vote for Britain to leave the EU was the undemocratic character of “Commission law-making”. Interestingly it is much easier to find website trying to disprove this claim than sources making it. For the former cf. http://www.bbc.com/news/uk-politics-eu-referendum-36429482, http://www.heraldscotland.com/news/14329822. Facts give a lie to claim EU is an undemocratic bureaucracy/or http://www.huffingtonpost.co.uk/theresa-griffin/why-the-eu-isnt-a-mass-of-bureaucratsb9819604.html (all visited 9 July 2016). It is telling that these websites, often times themselves in favour of the UK remaining in the EU correctly state the EU legislative acts are not adopted by the Commission, without however explaining the Commission’s role in delegated and implementing rule-making. Even though these are technically no ‘laws’, as legal acts they would appear sufficiently similar to legislation to be called ‘laws’ in lay-men’s terms.

  10. 10.

    Baier (1986), p. 231.

  11. 11.

    Shapiro (1987), p. 623; Shapiro (2012).

  12. 12.

    Pettit (1998).

  13. 13.

    Ribstein (2001), p. 553.

  14. 14.

    von Bogdandy and Venzke (2012), p. 7.

  15. 15.

    Cf. the widely respected various studies conducted by Tom Tyler, for example Tyler (1994), p. 809; Tyler (1998); de Cremer and Tyler (2007), p. 639.

  16. 16.

    Shapiro (2012).

  17. 17.

    Thus, it does not rely on notions such as ‘nation’ or ‘Volk’ as the ultimate constituency and legitimising body, and a fiduciary relationship is founded not on s higher order of norms but on the relationship between the parties. This is not to say that it would not rely on the enforcement mechanism provided by the State. Courts play a very important role in fiduciary law.

  18. 18.

    Indeed, fiduciary law shares with European law that the idea of the public-private divide appears of little influence to its reasoning. Cf. Hans-W Micklitz, Yane Svetiev, and Guido Comparato, ‘European Regulatory Private Law – The Paradigms Tested’ (EUI Working Paper Law 2014/04, 2014), p. 6.

  19. 19.

    For the post-national character of the EU, cf. Curtin (1997).

  20. 20.

    Smith (2003).

  21. 21.

    Conaglen (2005), p. 452.

  22. 22.

    Getzler (2011), p. 973.

  23. 23.

    Royce (1908).

  24. 24.

    Hirschman (1970).

  25. 25.

    Finn (1989).

  26. 26.

    Consolidated Version of the Treaty on European Union [2010] OJ C83/13 (TEU) arts 4(3), 13(1).

  27. 27.

    Kahl (2011).

  28. 28.

    It is much more likely that an act be struck down for procedural defects than for abuse of power. The latter happens too rarely for it to be relevant to the further argument. See also Schwarze (2004), p. 85.

  29. 29.

    Case C-425/13 European Commission v Council of the European Union (2015) electronic reports of cases: Court reports—general (ECLI:EU:C:2015:483) para 69, Case C-73/14 Council of the European Union v European Commission (2015) electronic reports of cases: Court reports—general (ECLI:EU:C:2015:663).

  30. 30.

    Smith (2014), p. 608 and pp. 615 et seq.

  31. 31.

    Interestingly, this link between integration and loyalty has been made from very different perspectives: Cf. Majone (2001), p. 118 with Hatje (2001), p. 63.

  32. 32.

    This can also be referred to as the ‘domestication’ of EU authority, as the EU becoming an ‘us’ rather than a foreign ‘them’. For the term, cf., for example, Perez (2013).

  33. 33.

    Smith (2003).

  34. 34.

    Leib and Ponet (2012), p. 178.

  35. 35.

    Waldron (2012), p. 200.

  36. 36.

    Mendes (2016), p. 243.

  37. 37.

    Dana et al. (2007), p. 67.

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  1. Walldorf, Baden-Württemberg, Germany

    R. Eljalill Tauschinsky

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Tauschinsky, R.E. (2020). Conclusion. In: A Fiduciary Approach to Delegated and Implementing Rule-Making in the EU. Springer, Cham. https://doi.org/10.1007/978-3-030-26300-3_7

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  • DOI: https://doi.org/10.1007/978-3-030-26300-3_7

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