Controlling Executive Rule-Making after Lisbon: Delegated or Implementing Acts?

To control delegated rule-making by the EU Commission the Lisbon Treaty introduced two control regimes: the delegated and implementing acts regimes. Delegated acts are controlled by means of objection and revocation enjoyed equally by the European Parliament and the Council of Ministers, whereas implementing acts are controlled by traditional comitology committees – i.e., solely by the member states. But what determines the choice between these delegation regimes? Building on rational delegation theory this paper argues that the EU legislators are primarily motivated by institutional self-interest and aim for positions that enable them to influence future decisions. In this light the main fight is between the Council of Ministers, which pursues exclusive member state control by comitology committees, and the European Parliament, which favors the new delegated acts regime. The paper will investigate how this fundamental conflict over delegation unfolds. It does so by tracing processes in four institutional arenas where negotiations on delegation take place: (1) Alignment of pre-Lisbon legislation to the delegated and implementing act procedures; (2) negotiations on new legislative files; (3) court cases; and (4) re-negotiation of the socalled Common Understanding on delegated acts. The analyses are based on formal and informal documents supplemented by interviews with relevant stakeholders.