‘Detailing’ EU Legislation through Implementing Acts

• Published in: Yearbook of European Law 2021-01, Vol.40, p.111-145
• Main Author: Englisch, Joachim
• Format: Article
• Language: English
• Subjects: Analysis; Judicial restraint; Judicial review; Law; Legal research; Legislation; Separation of powers; Treaties
• ISSN: 0263-3264; 2045-0044
• DOI: 10.1093/yel/yeab007

This paper is based on the assertion that the key to the remaining issues lies in a profound analysis of the complex interplay of both horizontal and vertical separation of powers, in the context of a delegation of norm-setting powers by the Union legislator. A consistent construction of implementing powers must carefully balance legislative, executive, and judicial competences at Union level, but must also appropriately take into account their constitutional embedding in conflicting interests of European integration and national procedural autonomy of Member States. Against this background, it will be argued that implementing powers can and must be conceptually distinguished from delegated powers, even where according to the CJEU the Union legislator may choose to confer one or the other category of powers to ‘detail’ the basic act. In this area of overlap, the Court’s scrutiny should be restrained—as the Court itself has already made clear—but it should nevertheless be exercised; the discretion of the Union legislator in choosing between the two instruments is thus not unlimited. Moreover, in light of the rationale of implementing acts in the vertical power relationship, as reinforced by the Lisbon Treaty, it should be accepted that interpretative implementing acts may ‘overrule’ prior case law of the CJEU (only) under certain conditions.