Rethinking the Constitutional Architecture of EU Executive Rulemaking: Treaty Change and Enhanced Democracy

Abstract

Fifteen years following the entry into force of the Lisbon Treaty, this article seeks to analyse its impact on EU executive rulemaking. It delves into the constitutional concerns arising from the architecture of Articles 290 and 291 Treaty on the Functioning of the European Union (TFEU), in particular relating to the institutional balance, the concept of implementation, the distinction between delegated and implementing acts and the legitimacy of the control mechanisms envisaged in the TFEU. The article argues that there is a need for reform and integration of Articles 290 and 291 TFEU in one Article dedicated to EU executive rulemaking, going beyond mere considerations of institutional balance. Such a reform entails a return to the essence of comitology as a general mechanism for consultation in and control of rulemaking, allowing Member States to deliberate with the Commission with a veto right for both the Parliament and the Council, embracing the idea of executive subsidiarity. It requires also to go beyond the old comitology mechanisms based on a pure interinstitutional perspective by connecting to Article 11 TEU (Treaty on European Union) and recognising the need for participatory engagement so as to enhance the legitimacy of EU executive rulemaking.