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Rulemaking by the European CommissionThe New System for Delegation of Powers$
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Carl Fredrik Bergström and Dominique Ritleng

Print publication date: 2016

Print ISBN-13: 9780198703235

Published to Oxford Scholarship Online: March 2016

DOI: 10.1093/acprof:oso/9780198703235.001.0001

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Is There a Hierarchy of Legislative, Delegated, and Implementing Acts?

Is There a Hierarchy of Legislative, Delegated, and Implementing Acts?

Chapter:
(p.157) 8 Is There a Hierarchy of Legislative, Delegated, and Implementing Acts?
Source:
Rulemaking by the European Commission
Author(s):

Jürgen Bast

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198703235.003.0008

According to a widespread assumption, the Treaty of Lisbon has established a three-tiered hierarchy between legislative, delegated, and implementing acts. This contribution challenges this view, arguing that only incomplete and partial hierarchies between different categories of acts adopted by the EU institutions exist. In particular, the distinction between delegated and implementing acts (Articles 290, 291 TFEU) constitutes a horizontal, rather than a vertical divide, placed at the same level of the hierarchy of norms. These two types of rulemaking powers are not mutually exclusive, given that the Treaty provides for a substantial overlap of their respective definitions. Delegated and implementing acts have essentially the same legal force, including the capacity to supplement or amend their basic act if the latter so provides, as explicitly foreseen in Article 290(1) TFEU. Accordingly, the choice between the two forms of Commission rulemaking is largely at the discretion of the EU legislature.

Keywords:   Article 290 TFEU, 291 Article TFEU, delegated acts, implementing acts, separation of powers, hierarchy of norms, legislative acts, non-legislative acts, control, comitology

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