Delegation of Powers in the EU Legal System

Annalisa Volpato

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000563467
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The majority of rules adopted at the EU level are not issued by democratically elected institutions, but rather by administrative bodies which are empowered to exercise rule-making powers by legislative acts. This book analyses the legal mechanism through which these powers are conferred on the most relevant bodies in the EU institutional landscape, namely the European Commission, the Council, the ECB and EU agencies, and the democratic controls in place to limit and oversee the exercise of these powers.

Providing an overarching perspective of the delegation of powers, this book reflects on the notion of delegation and on the commonalities between the different forms of delegation identified. It focuses on the legal requirements and limits for the delegating act, the procedures for the exercise of such powers, the position of the acts in the hierarchy of norms, and their judicial review. Overcoming the fragmentation which characterized the development of the different forms of delegation in the EU, this analysis provides a clear, structured, and coherent picture of the legal framework for the delegation of powers in the light of the constitutional principles of this legal system.

Academics and practitioners will equally appreciate this highly accessible addition to the current debate in legal scholarship of the delegation of powers in the EU, as well as its explanations on comitology and the empowerment of EU agencies.

1 Defining delegation of powers

From State-based models to an EU notion

DOI: 10.4324/9781003174004-2

1. Introduction

The notion of delegation of powers is well established in the constitutional traditions of State legal systems. A review of the extensive literature on national legal systems shows that, at least in some cases, delegation is coherently conceptualised as a specific mechanism in law,¹ which is strongly linked to a specific idea of State and State action.² However, such a conceptualisation has not been equally developed in the EU legal system. Although frequently mentioned as a matter of course by the EU institutions (especially in the case law of the Court of Justice) and scholars since the very beginning of the European Communities to characterise a wide array of legal relationships, there is no consensus on a univocal notion of delegation.

1 See, inter alia, Heinrich Triepel, Delegation und Mandat in öffentlichen Recht (Stutgard und Berlin, 1942); Bogdan Iancu, Legislative Delegation: The Erosion of Normative Limits in Modern Constitutionalism (Springer-Verlag Berlin Heidelberg, 2012); Anna Alberti, La delegazione legislativa tra inquadramenti dogmatici e svolgimenti nella prassi (Giappichelli, 2015); Angelo Antonio Cervati, La delega legislativa (Giuffrè editore, 1972); Enzo Lignola, La Delegazione Legislativa (Giuffrè, 1956); Patrizia Magarò, Delega legislativa e dialettica politicoistituzionale (Giappichelli, 2003); Lorenza Carlassare, Regolamenti dell’esecutivo e principio di legalità (Cedam, 1966).

2 Iancu, 12.

Building from the conceptualisation developed at the national level, it is however possible to elaborate a definition suitable for the EU legal system. In particular, the analysis will focus on the notion of delegation developed in particular by Italian and German scholars, and on the interplay between this legal mechanism and the traditional democratic principles underpinning the constitutional structure of the nation States. The analysis will be integrated with references to other legal systems and to comparative law studies, when necessary. Without demanding completeness, an overview of the notion of delegation, its role in the constitutional structure of nation States, and its implications for certain fundamental principles will be provided in order to unveil the issues raised by this legal institution from a constitutional perspective also in the EU legal system.

2. A short history of the notion of delegation in State legal systems

2.1. The origins of the notion

Historically, since the very first mentions of the concept, delegation appears to have represented one of the mechanisms whereby a legal position is transferred from one person to another. In this generic sense of “transferring,” reference to the notion of delegation can be found already in the Corpus Iuris Civilis, where the words delegare and delegatus are used.³ As a result of the elaboration of the notion by legal scholars in medieval and modern times,⁴ the concept has acquired a more precise – and differentiated – meaning in private and public law. On the one hand, in private law, the notion of delegation was drastically reduced to indicate the assignment of a debt to another person and, in civil law systems, specifically a species of novation.⁵ On the other hand, in public law, the term has maintained a broader meaning, related to the grant of authority to a person to act on behalf of one or more others.⁶

3 Dig. Lib. I Tit. XXI; Dig. Lib. II Tit. XIV 40; Dig. Lib. IV Tit. IlI. However, any attempt to assimilate the delegation in public Roman law and Italian public law shall be avoided in light of the differences in the conception of the legal institution and of the structure of the public power; see Flaminio Franchini, La delegazione amministrativa (Giuffré, 1950), 13, citing Roberto De Ruggiero, “Intorno al concetto della ‘delegatio’ in diritto romano”, Rivista italiana di scienza giuridica (1889), 3; contra Giriodi, “I pubblici uffici e la gerarchia amministrativa”, in Orlando (ed.), Primo trattato completo di diritto amministrativo (Milano, 1900), 269.

4 W. Patrick Duff and E. Horace Whiteside, “Delegata Potestas Non Potest Delegari: A Maxim of American Constitutional Law”, 14 Cornell Law Review No. 2 (1929), 168–173. The authors notice interestingly that the pandectae, traditionally indicated as the source of the maxim “delegata potestas non potest delegari” (Dig. Lib. XXI Tit. V; Dig. 2.1.5; C. 3.15), which has heavily influenced the evolution of the legal institution of delegation especially in the US, actually uses the term “mandate” (“mandatam iurisdictionem”).

5 Bryon A. Garner, Black’s Law Dictionary (2016). See, for instance, Articles 1268 et seq. of Italian Civil Code.

6 Jonathan Law, A Dictionary of Law, 8th ed. (Oxford University Press, 2015).

Since those times, delegation represents a general legal institution of public law, but its meaning has changed significantly throughout history, in parallel with modifications as to how the notions of public power and legislation were understood.⁷ While in the medieval legal panorama the notion of delegation did not take on great relevance,⁸ with the rise of the legal systems based on the monocratic principle,⁹ both in the case of monarchies and of republics, the notion of delegation became a fundamental legal mechanism for the organisation and management of public power, which was vested centrally in the sovereign and, then, was distributed among the different authorities organised in an administrative structure.¹⁰ Delegation, thus, provided the formal justification for the exercise by the administration of certain powers nominally vested in the sovereign.

7 Cervati, 1.

8 Ibidem, 2, citing the studies of Triepel. See also Fabrizio Borasi and Giovanni Confrancesco, Separazione dei Poteri e Cultura dei Diritti (Giappichelli, 2014), 17.

9 Monocratic principle is meant here as the principle according to which the public power is conceived as deriving from a unitary source, being the will of the sovereign or of the people. See Cervati, 2.

10 Franchini, 26.

2.2. The evolution of the notion of delegation in the 20th century

The evolution of the notion of delegation reflects the fundamental transformation of the role of the State in society. While in the 19th century the role of the State was just to protect and ensure the rights of the individual, claims for a more decisive role of the State in society and economy rose in the 20th century.¹¹ To respond to technological, social, and economic transformations, State intervention expanded from economic governance to social protection, and it required not only a bigger public administration but also a more efficient exercise of public power.¹²

11 Roberto Bin and Giovanni Pitruzzella, Diritto costituzionale, IX ed. (Giappichelli, 2008), 56. See also Alf Ross, “Delegation of Power: Meaning and Validity of the Maxim delegata potestas non potest delegare”, 7 American Journal of Comparative Law (1958), 4.

12 Bin and Pitruzzella, 76.

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Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Table of Contents
• Abbreviations
• Table of cases
• Table of legislation
• Introduction
• 1 Defining delegation of powers: from State-based models to an EU notion
• 2 Delegations of powers in the EU: development, powers, and features
• 3 Limiting the delegation of powers: the delegating act
• 4 Limiting the delegation of powers: the procedures
• 5 The acts of the delegate and their judicial review
• Conclusions
• Bibliography
• Index