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  • EU administrative law scholarship and practice remain confused about the reach and interrelation of arts 290 and 291 TFEU, which created the categories of delegated and implementing Commission acts. The introduction of these two different instruments of executive rule-making by the Lisbon Treaty has prompted attempts in delineating them, based on constitutional theories of separation of powers or functional differentiation. These attempts have failed to a large extent, all the more since the CJEU’s relevant case law has not been helpful in constructing a proper distinction. Today, recourse to arts 290 and 291 TFEU by the legislator takes place in the tension created between the fact that the Treaties, informed by an abstract constitutional distinction between legislation and execution, appear to have created categorically different acts, and the fact that delegated and implementing rule-making procedures in practice have become increasingly similar to each other. In simplified terms, the problem is that delegated and implementing acts appear – in terms of their foundation in primary law – as fundamentally different acts that are, however, adopted in practice through similar procedures, at the same time as their content and legal effects are indistinguishable in many or even in most cases. Yet, if we accept that the creation of two forms of Commission acts was prompted by some form of legal necessity or legitimate political will, then understanding the difference between delegating and implementing acts remains paramount.

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Author:Eljalill Tauschinsky, Wolfgang Weiß
Parent Title (English):The Legislative Choice between Delegated and Implementing Acts in EU Law: Walking a Labyrinth
Publisher:Edward Elgar Publishing
Place of publication:Cheltenham
Editor:Eljalill Tauschinsky, Wolfgang Weiß
Document Type:Part of a Book
Date of Publication (online):2019/01/04
Publishing Institution:Deutsche Universität für Verwaltungswissenschaften
Publishing Institution:Deutsches Forschungsinstitut für öffentliche Verwaltung
Release Date:2019/01/04
Tag:EU; delegated acts; differentiation; implementing acts
GND Keyword:Europäische Union; Verwaltungsrecht
First Page:1
Last Page:18
Documents ordered by chairs:Lehrstuhl für Öffentliches Recht, insbesondere Europarecht und Völkerrecht (Univ.-Prof. Dr. Wolfgang Weiß)
Documents of the German Research Institute for Public Administration (FÖV):Sonstige Schriften
Licence (German):License LogoUrhG – es gilt deutsches Urheberrecht