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Mendes, Joana --- "Executive rule-making: procedures in between constitutional principles and institutional entrenchment" [2017] ELECD 427; in Harlow, Carol; Leino, Päivi; della Cananea, Giacinto (eds), "Research Handbook on EU Administrative Law" (Edward Elgar Publishing, 2017) 371

Book Title: Research Handbook on EU Administrative Law

Editor(s): Harlow, Carol; Leino, Päivi; della Cananea, Giacinto

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781784710675

Section: Chapter 15

Section Title: Executive rule-making: procedures in between constitutional principles and institutional entrenchment

Author(s): Mendes, Joana

Number of pages: 28

Abstract/Description:

EU executive rule-making, as a phenomenon distinct from law-making tout court, has been the subject of significant institutional and academic discussion in EU law. The distinction between ‘measures directly based on the Treaty itself’ and ‘derived law intended to ensure their implementation’ has animated since the 1970s the debate on the legal and institutional limits of implementing acts, including on the relative competence of the Council and of the Commission in this respect. Since the Lisbon Treaty, with its new scheme of delegated and implementing acts – distinct from legislative acts in the sense of Article 289(3) TFEU – much of the discussion has shifted to the distinction between these two types of acts, an issue which recent Court judgments have not clarified. EU executive rule-making is far from being limited to the acts now recognized in the Treaty. In a broad sense, it includes all non-legislative acts of general application that produce external effects by concretizing the content of Treaty provisions or legislative acts and defining the criteria for the regulation of specific cases. Formally, acts of general application adopted directly on the basis of the Treaty outside of legislative procedures are executive rule-making. Guidelines, plans, publicly recognized private standards can also fall within this category. Insofar as they produce external effects, these different types of acts have in common the capacity to impact on rights and legally protected interests of natural and legal persons, as well as the ability to shape the acts of other public entities.