The Making of Delegated and Implementing Acts: Legitimacy Beyond Inter-Institutional Balances

The relative power of the Commission, the Parliament and the Council in the adoption of delegated and implementing acts, including the debate on the delimitation of the scope of these acts, has dominated the debate on the scheme of non-legislative acts introduced by the Lisbon Treaty. This chapter argues that approaching decision-making procedures of delegated and implementing acts only from an institutional lens is normatively insufficient, in two respects. First, it is incongruous with the Treaty provisions on democracy: not only an inter-institutional perspective is insufficient to ensure the democratic legitimacy of delegated and implementing acts, but also it ignores the relationships between the makers of legal acts and the outer sphere composed of citizens and legally affected persons. Secondly, it also overlooks core functions of procedures that are relevant to ensure the legitimacy of public acts. Procedures are a means to rationalise public action, by channeling information, weighing competing interests, and allowing scrutiny of the choices made. If designed accordingly, procedures could concretise democracy as a Union founding principle also in the making of delegated and implementing acts