The Legislative Choice Between Delegated and Implementing Acts in EU Law
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The Legislative Choice Between Delegated and Implementing Acts in EU Law

Walking a Labyrinth

Edited by Eljalill Tauschinsky and Wolfgang Weiß

In the face of the current confusion about the use of arts 290 and 291 TFEU, there is need of further development of the theory of legislative delegation to the EU Commission. This timely book approaches this question from a practical perspective with a detailed examination of how the legislator uses delegated and implementing mandates in different fields of EU law. Offering an analysis of legislative practice and providing concrete evidence of how articles 290 and 291 TFEU are actually handled, it offers new insight into potential developments in EU administrative law.
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Chapter 6: EU delegation of powers in the field of financial markets regulation

Matteo Ortino

Abstract

This chapter addresses the issue of flexibility in the EU constitutional regime governing the delegation of powers. The issue is first studied from a judicial perspective, by analysing some fundamental judgments of the CJEU, and second from the perspective of the EU legislature, focusing on financial markets regulation. The chapter will argue that the EU financial rule-making process confirms that the legislative choice between Article 290 and Article 291 TFEU is mostly made on the basis of political and practical considerations, and not on the basis of the evanescent conceptual distinction between ‘supplementing’ and ‘implementing’ measures. This political discretion is supported by EU Treaty rules and their judicial interpretation. From a wider perspective, the chapter will also show that the field of EU financial markets regulation offers an interesting case study of the EU legislators’ ingenuity in devising the most – politically and practically – convenient institutional set up to delegate rule- and decision-making powers.

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