Controlling Executive Rule-making after Lisbon: Delegated or Implementing Acts?

To control delegated rule-making by the EU Commission the Lisbon Treaty introduced a distinction between delegated and implementing acts. Both are executive acts decided by the EU Commission, but they are controlled by the EU legislators by different means. Delegated acts are controlled by new means of objection and revocation enjoyed equally by the European Parliament and the Council, whereas implementing acts are controlled solely by the member states. But what determines the choice between these two control regimes? Building on rational delegation theory this paper argues that the EU legislators are primarily motivated by institutional self-interest and aims for positions that enable them to influence future decisions. In this light the main fight is between the Council, which pursues exclusive member state control by comitology committees, and the European Parliament, which favors the new control regime introduced by the Lisbon Treaty. The paper will investigate how this fundamental conflict unfolds in daily legislation. It seeks to answer the following questions. Does the European Parliament always insist on using the delegated acts regime? If not, when is it willing to accept the implementing acts regime? To what extent are the European Parliament and the Council willing to compromise on the choice of delegation regime in order to gain substantive regulatory concessions? These questions will be investigated by tracing processes in four institutional arenas where negotiations on delegation take place: (1) Alignment of pre-Lisbon legislation to the new procedures; (2) negotiations on new legislative files; (3) court cases; and (4) re-negotiation of the so-called Common Understanding on delegated acts. The analyses are based on formal and informal documents, supplemented by a total of 12 interviews with relevant stakeholders in the European Commission, the administrations of the EU institutions, as well as officials from various member states’ permanent representations in Brussels.