The legal framework for delegated and implementing powers ten years after the entry into force of the Lisbon Treaty

In: Chamon , M 2021 , ' The legal framework for delegated and implementing powers ten years after the entry into force of the Lisbon Treaty ' , ERA-Forum: scripta iuris europaei , vol. 22 , no. 1 , pp. 21-38 . https://doi.org/10.1007/s12027-020-00646-2

Abstract

This Article gives an overview of the legal framework governing the exercise of the delegated and implementing powers foreseen in Articles 290 and 291 TFEU in light of the most recent jurisprudence of the EU Courts in this field. It clarifies what essential elements are under Article 290 TFEU, how the Courts test this requirement and how it relates to the requirement under Article 290 TFEU that a delegation must also be specific. The article subsequently discusses and compares the control regimes in place under Articles 290 and 291 TFEU, noting that in post-Lisbon institutional practice they have evolved towards each other. Linked to this is the question how delegated and implementing powers differ. In light of the Court's jurisprudence the article concludes that it is up to the legislature to make this distinction and that the legislature can also create executive powers outside the framework of Articles 290 and 291 TFEU and grant them to EU agencies. The article concludes by flagging some open questions which the Court has not resolved yet.