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 7: Beyond delegated and implementing acts: where do EU agencies fit in the Articles 290 and 291 TFEU scheme?

Merijn Chamon


In its post-Lisbon jurisprudence the CJEU has clarified how the new Treaty framework for comitology, i.e. Articles 290 and 291 TFEU, should be interpreted and applied by the political institutions. One of the questions under the new framework was the extent to which the EU legislature can confer executive powers on EU agencies even though this possibility is not foreseen in the Treaties. In the Short-selling case, the CJEU sanctioned this possibility without, however, integrating the conferral or delegation to agencies in the framework established by the Treaties. The chapter argues that this remains necessary in order to properly safeguard the Commission’s prerogatives under Articles 290 and 291 TFEU. The chapter identifies the building blocks that may constitute a third demarcation line that distinguishes Commission implementing acts from agency implementing acts. Finally, recent legislative practice in relation to the European Railway Agency, Frontex and the European Aviation Safety Agency is scrutinized to ascertain whether such a third demarcation line may also be identified in secondary legislation.

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