Commission loyalty: A fiduciary approach to delegated and implementing acts

The non-representative character of the Commission’s powers has been used to level criticism at Commission acts. I review the Commission’s power to adopt some of the most important and numerous EU acts, namely delegated and implementing acts. These acts often take direct effect on the persons within the Member States. The question I ask is how the Commission’s power to adopt acts that legally bind the persons within the Member States can be justified normatively? I explain the most pervasive characteristics of the adoption of delegated and implementing acts, as well as their conceptual categorisation. I argue that delegated and implementing rule-making should be understood in the framework of institutional trust. The relation of institutional trust can in legal terms best be depicted under the framework of fiduciary law. The Commission here takes the role of fiduciary to the persons subject to delegated and implementing acts as beneficiaries. As a result, the Commission is under a duty of loyalty towards these persons. I argue that for this, the EU duty of loyalty should be expanded to include a Commission duty of disinterestedness and fairness. These should be operationalised through giving an account of its motives, and through greater transparency regarding the participation of interested groups in the adoption procedure. These procedures are only a small extension of already existing Commission obligations. However, reforming them as an expression of loyalty is able to re-invent the relation between the Commission and the persons subject to its acts