4

INSTRUMENTS AND
THE HIERARCHY OF NORMS

1 CENTRAL ISSUES
i. This chapter examines two related issues: t�an�egal instruments and the hier­
archy of norms.
ii. The EU has a number of legal and non-le a · struments that are used to attain Uniog_ objec­
tives. The principal legal instruments a e regulatiol'ls .�n,�These will often
be used in conjunction with eac ot er. The oundationa provision in an area may be a directive,
and regulations and decisions may supplement it. The foundational provision may alternatively
take the form of a regulation,which is then supplemented by further regulations,directives,or
decisions. The EU also has numerous soft law methods for developing Union policy. Formal and
informal law will commonly be used together, to attain EU goals.
iii. The Treaties lay down a number of conditions for the legality of such instruments. Thus rea­
sons must be given for all legal acts,and there are requirements concerning publication and
signature.
iv. The hierarchy of norms is the second issue addressed in this chapter. This phrase captures the
idea that in a legal system there will be a vertical ordering of legal acts,with those lower down the
hierarchy being subject to legal acts of a higher status;�rior ts:> the Lisbon Treaty a hierarchy of
norms could be discerned. There were, for example,'primary' regulations,directives, or decisions
that laid the legal foundations for policy in a partitular aiea, and these would be supplemented by
'secondary' regulaqons,directives,or decisions that dealt in greater detail with an issue covered
in the primary norm'. The secondary norms were clearly subject to the primary norms,and hence
lower in the hierar�hy.
v. The framers of the Lisbon Treaty felt, however, that it was desirable in terms of simplicity,
democratic legitimacy, and sepanitio of owers to have a more definite hierarchy of norms
than hitherto. Tuer� are no five principal tiers to the hierarchy of norms: the constituent
Treaties and Charter of Rights; genera "pfmc�p es of law; legislative acts; delegated acts;and
implementing acts.
vi. There are however problems with the Lisbon regime,in particular in relation to the distinction
between delegated and implementing acts. It is only when these problems have been understood
that we can decide whether simplicity,democratic legitimacy,and separation of powers have been
attained.
 I
I
106 INSTRUMENTS AND THE HIERARCHY OF NORMS
INSTRUMENTS 107

2 INSTRUMENTS must be publi shed i n _the Offici al J ournal. They enter into force on the date specified or, in the absence

th e of, on the twentieth day followi ng publicati on. Other directives, and deci sions which specify to
It is imp ortant to u ndersta nd the different types of EU instrument. Article 288 T FEU is the founda­ wtom t hey are addressed, must be notified to the addre ssee and take effect up on such n otification.
tional provi sion :

To exercise the Union's competences, the institutions shall ad opt regulations. directives, decisions.
(B) REGULATIONS
Regulations are bii�ding in th�ir entirety and
recommendati ons and opini ons. directly applicable i n all Member State s. It is
to thmk �f regu latio�s as akm to legi slation common
A regulation shall have general applicati on. It shall be binding in its entirety and directly applicable made by Member State s. There is some forc
na ogy, �m�e regu lations are e in thi s
in all Member States. ;_ ega� reaht'. _ me asure s of general applicati
on,applicable to all M ember
m the p ost-Li sbon world i s,
State s . The
A directive shall be binding, as to the result to be achieved, up on each Member State to which it is however, that regulations can be legislative del
i mplementmg acts. egated or
addressed, but shall leave to the national authorities the choice of fo rm and methods. ' '
A decisi on shall be binding in its entirety. A decisi on which specifies those to whom it is addressed R egulat'.ons ar sa id by Articl e 288 to be 'dire
. ctly appl ic able'. There are two p ossible i nter
shall be binding only on them. ti ons of thi s term\ . It might con note the ide a that i ndividu als h reta-
ave rights, which the y c an e P,.
Recommendations and opini ons shall have no binding f orce . through nat·�ona1_ courts. The ECJ has on occas 1orce
ion interpreted directly applicabl e in thi s mann
n

The better vi ew i s however that it relates to the er 3

way i n which i nternationa l n orms enter nati on
eg l s y st� ms. I n Me mber State �!
s with a dualist view of nati ona
�e � l and i ntern ational law, thi s must
one either by the natio nal s y
ste m transformi ng the meas ure
. . i nto nati onal law, or b a shorter
�at10nal act adoptmg the relevant internati on al act. The EU enacts th
ou sands o f regul:ti ons and
(A) INTRODUCTION
if e ac� had to be s ep aratel y m.
The more particu lar meani ng of the se legal acts will be examined below. It is ho"".ever i mp ortant to be corporated into e ach national lega l s ystem befor
e_ffective then the EC_ T would grind to a halt. The e it c ould be legall
aware o f five p oints that are relevant to a ll the se instrume nts . phras e 'directly applicable ' signifies that re u
t10ns are p art of nat10na l legal systems, without l a�
First, there is no formal hierarch between the se rovisions. Regu lations are n ot therefore 'supe- the need for tra nsformation or adopti on by natf
lega l me asure s .
1or o 1rectives, or vice versa. Regu lati ons, directives, and decisions will often be connected in the
onal

development of EU p ol icy in a particu lar are a.,There may, for example, be a 'foundationa l' regu lati on, Member States may nonetheless ne ed to modify th
eir law in order to compl y with
. a regulation, or
they may nee� to pas_ s consequential legal measures in order to give full effect to wha
and directives or deci si ons may be made pursu ant to thi s. The 'fou ndational' provision may equall y
by the regulation. Thi s do e s not alter the fact th t is demanded
be a directive or a decision. . _ at the regulation itself has legal
effect i n the Me mber
State s mdependently of any n ational law, and Me
S econdly, regulations, directive s, and deci sion s may take the form of legi slative, delegated, or mber States shou ld not p ass me
asures that conce al
the nature of the EU regulation.
implementing acts. The regu lations, directives, and deci sions do not alter their nature, but their
place within the overall hierarchy of n orms will dep end on whether they are legi slative, delegated, or
imple menting acts.
Thirdly, the Tre atie s may specify the type of instrument to be u sed, but will often not do so. Article Case 34/73 Variola v Amministrazione delle Finanze
296 T FEU states that where the Treatie s do not specify the type of act to be adopted, the institutions (1973] ECR 981
shall s elect it on a c ase -by-case ba si s, in compliance with the applicable procedure s and with the pri n­
ciple of prop ortion al ity. The ECJ was asked by a nati onal court whether the provisions of a regulation co uld be introduced
Fourthly, Article 296 TFEU impose s an obligation to give reasons1 for legal acts, and this includes into the legal order of a Member State by internal measures which reproduced the contents of the
_ .
reference to any proposals, initiatives, recommendations, requests, or opinions required by the Treaties. Community prov1s1 on .1n such a way that the subject-matter is br ought under national law'.
Finally, Article 297 TFEU specifie s ru le s for the making of the legal acts in Article 288. Thu s where
a regu lati on, directive, or d eci si on take s the form of a legislative act adopted under the ordi nary leg­ THE ECJ
.
islative proc edure it mu st be sign ed by the Pre sidents of the Europe an P arliament a nd the C ou ncil.
Legislative acts adopted under a special legislative procedure are signed by the President of the insti­ 10. The dirnct application of a Regulation means that its entry into force and its application in favour
_
of th ose subJect to 1t are independent of any measure of reception into national Jaw.
tution which adopted them. Legi slative acts mu st be published in the Official Journal and enter i nto
force on the date specified therein or, in the absence thereof on the twentieth day following that of By virtue of the obligati ons arising from the Treaty and assumed on ratification, Member States
their publication. are under a duty n ot to obstruct the direct applicability inherent in Regulations and other rules of
Community law.
Where the regulation, directive, or deci sion is a non-legislative act and does not specify to whom it
is addre ssed, it is signed by the Pre sident ofthe institution which adopted it. Regulations and directives
addre ssed to all Member State s, as well as deci sions which do not sp eci fy to whom they are addressed,
2 J Steiner 'Dire ct A
, The . . • PP1·1cab·1·
1 1ty rn EEC Law-A Chameleon Concept' (1982)
.
Principle of Direct 98 LQR 229,· A Dashwood,
Effect in European Community Law' (1978) 16 JCMS
1 Ch 15. 3
�z 229
108 J INSTRUMENTS AND THE HIERARCHY OF NORMS INSTRUMENTS I 109

were ho wever of a more generic nat ure, sett ing o ut the legal r ules to govern an inter-instit utional issue
Strict compliance with this obligation is an indispensable condition of simultaneous and uniform su ch asComitology, or providing the legal foundation for Community programmes.7
application of Community Regulations throughout the Community.
.
The English version of A rticle 288 is capable of covering both ty pes of decision. The German and
11 More particularly, Member States are under an obligation not to introduce any measure which Dutch wording ho wever signifies the generic rather than the individualized version of decision.8 The
mig�t affect the jurisdiction of the Court to pronounce on any question involving the 1nterpretat1on individualized sense o f decision will ho wever subsist, since it has b een an imp ortant fo rm of legal ac t
of Community law or the validity of an act of the institutions of the Community, which means that ever since the incep tion o f t he EEC.
no procedure is permissible whereby the Community nature of a legal rule 1s concealed from those
subject to it.
. . . . .
U d r Article 177 of the Treaty in particular the 1urisd1ct1on of the Court 1s unaffected bY any Provi- (E) INTER-INSTITUTIONAL AGREEMENTS
sion�; national legislation which purport to convert a rule of Community law into national law.
Inter-ins titutional agreements bet ween the Co uncil, Commission, and the European Parli ament have
long b een an important par t of the EU. They are a form of 'constitutional glue' th ro ugh which the
is really a deci�ion . This arose
A n individual may allege that a measure which is called a regulation _ m ajor instit utional play ers can resolve high-level issues, p rovid e guiding principles, or l ay the founda­
i du al s ou ght to annu l a meas ure b ecause what_ w as A r ticle 230 EC lim­
most c ommonly wh en an indiv tions for more concrete legislative action. Such agreements have b een made on to pics of consti tutional
ions. The test o f w�ether a
ited the ability of individuals to challenge measures in the form o f regulat significance such as subsidiarity, transpa rency, the budget, and p articipation rights . 9
measure really is a regulation is one o f sub stance
, and not form. The fact that the contested act 1s call ed A rticle 295 TFEU no w pro vides that the Europ ean Parliament, Co uncil, and Commission shall
4
a regulation is not therefo re conclusive . consult each ot her and by common agreement make arrangements for their c oop eration. It al so stip u­
lates that they may, in compliance wi th t he Treaties, conclude inter-institu tional agreements which

(c) DIRECTIVES may be o f a binding nat ure. There is therefore sp ecific T reaty foundation for rendering inter-institu­
tional agreements binding.
e to b e ad� ressed to all
Direc tives differ from regulations in t wo important way s. They do not hav
o t h e en d t o b e ac h ie v e d whi le lea vi n g some chmce �s to f�rm
Memb er States, and they are binding as t
ility to act t h ro ugh dir ecti v e s a s w ell as regulations gi ves (F) RECOMMENDATIONS, OPINIONS, AND SOFT LAW
and metho d to the Memb er States. The ab
lic a bi lit y o f r e gul at i o n s means th at th e y have to b e capable
t he EU valuable flexibility. The direc t app A rticle 288 states that recommendations and opinions have no binding force. While this precludes
o f all t h e M em b er St a t es just as th e y are . Normally every
o f b eing 'p arachuted' into the legal sy stems such measu res from having di rect effect, i t does not immunize them from the judicial process. It is
't' must b e crossed, and every 'i' must b e dot te d i n r e gu la t ions , s in c e M e mb e r S : ates �ust not ta�p.er open to a national court to make a reference to the ECJ concerning the interpretation or validity of
with them . There might ho wever b e areas wh ere it w as diffi cult to d e v ise re gu la t i o n s �1th the reqms1te such a measure . 0
1
sp ecificity, which were sui ted to immediate imp a c t i n th e M em b e r S t a � e s, m o r e
� � oally � e �ause :he
s e
Recommendations and opinion s are, subject to the preceding p oint, forms o f soft law.11 They are
d th e r e are v a ria tio n s m t h e p olitical , adm1mstrative,
Memb er States have differing legal sy stems, an not ho we ver the only sp ecies of soft law. The Commission has, fo r exa�ple, issued p olicy guid elines
and social arrangements within t he Memb er S tates . . 12
in the area of state aids to in dic ate how it will exercise i ts discretion. There are moreo ver ot her EU
. . a certam area, or
Directives are particularly useful when the aim is to harmonize the laws w1thm initiatives, such as the op en method o f coord ination, which straddle the divide b et ween soft and
u se di scre ti o n is le ft to M em b er S tates as to ho w
to intro duce complex legislative change . This is b e c a hard law. 13
o w e v e r b e though t th at di rect iv es are a g ue . They
the directive is to be implemented. It sho uld not h : The admixt ure o f formal and informal law is a common fe ature o f any legal order. This feature
wi ll b e set o u t in c o n s id er abl e eta1l . Th e force
are not. The ends which Memb er States have to meet � has b een p ositively laude d in the EU, rather than s een as a caus e for ap ology or criticism. Thus the
of directives has b een increased by ECJ rulings. Th e C ourt h el d t ha t di rect iv es h a v e di rect e ffe
� en�­
t ,
Commission in its 2000 Review of the Internal Market S trategy included a neat checklist o f the legis­
e state , 5 an d t h at a M em b e r S tate can b e lia ble m
bling individuals to rely on them in actions against th 14
lative and non-legislative measu res it intended to take in order to attain the single market . The same
6
damages fo r non-implementation o f a directive . readiness to use the full range of p ol icy instr uments was apparent in the Nice Europ ean Co uncil .

(D) DECISIONS
7 A von Bogdandy, J Bast, and F Arndt, ' Legal Instruments in European Union Law and their Reform: A Systematic
ch speci�e� those
A r ticle 288 TFEU states that a decision is binding in its entirety, and a decision whi Approach on an Empirical Basis' (2004) 23 YBEL 91, 103-106.
c apt ures the duality in th e u se of dec1s1ons as 8 B de Witte, 'Legal Instruments and Law-Making in the Lisbon Treaty' in S Griller and J Ziller (eds), The Lisbon
to whom it is a ddressed is binding only on t hem. This
Treaty: EU Constitutionalism without a Constitutional Treaty (Springer, 2008) 95-96.
legal acts p rior to the Lisb on Treaty. . . . 9 Chs 1, 5.
ddressee �, as
In most instances decisions w ere used as binding legal acts m relat10n to specific a _ 10 Case C-322/88 Grimaldi v Fonds des Maladies Professionelles (1989] ECR 4407.
f comp etition and sta t e aid s . S ome dec1s10ns 1 1 K Wellens and G Borchardt, 'Soft Law in European Community Law' (1989) 14 ELRev 267; J Klabbers, 'Informal
exemplified by the many decisions made in the context o
Instruments before the European Court ofJustice' (1994) 31 CMLRev 997; L Senden, Soft Law in European Community
Law (Hart, 2004).
1 2 Ch 29.
4 Ch 14. 13 Ch 6.
s Ch 7. 14 COM(2000) 257 final.
6 Ch 8.
110 I INSTRUMENTS AND THE HIERARCHY OF NORMS
In the implementation of the Social Agenda 'all existing Com�uni: y instruments bar none must
be used: the open method of coordination, legislation, the socia_ l dialogue, the �;ructural Funds,
,
the support programmes, the integrated policy approach, analysis _and research . A �lance at the
.
Commission's work programme for any year will reveal the interact10n between legislative and non-
legislative techniques for attaining EU objectives. 16
The admixture of formal and informal law, while inevitable, can nonetheless give nse to problems.
. .
It may be difficult for those affected to understand what the 'law' actua_lly is in � p�rticul�r area.
Recourse to informal law may also prevent the Council and EP from havmg effective mput mto the
resulting norms.
3 HIERARCHY OF NORMS
(A) RATIONALE
Prior to the Lisbon Treaty the legal acts of the Community were those specified ab�ve. Regu�ations,
directives, and decisions could be used either as the 'primary' norm to govern a �articular topic, or as
a 'secondary' norm made pursuant to the 'primary' norm. The EC Treaty contamed however no for­
JJJ.a,l..hirrarchy of legal acts. This has now changed. 'J;be Constitutional Treaty included reform of l�l
acts and created a hierarchy of norms. The Lisbon Treaty retained a hierar�hyof!egal act� �lth?ugh
the nomenclature was altered because it was felt by the European Council that the words law and
'lawmaking' in the Constitutional Treaty should be excised on the ground that they carried 'federal'
and 'constitutional' resonance.
The provisions in the Constitutional Treaty on the hierarchy _of n�rm�tollo��d . with s�me modi­
fications the recommendations of Working Group IX on Simphficatlon, but rt 1s mstructlve to note
' The general principles have been largely fashioned by the Union Courts. They have read princi­
the caut;onary warning of the Group, that 'nothing is more complicated than si �plifi�a�ion'. 19 The
Working Group sought to attain a number of objectives: simplification, democratrc legitimacy, �nd
separation of powers. The hierarchy of norms was said to be 'the conse e of a be�ter �e ara n
of powers'. 20 There was to e a c earer delineation between matters that fell to the legislative arm of
15 Nice European Council, 7-9 Dec 2000, Annex 1, (28].
Commission Work Programme 2014, COM(2013) 739 final, Annex.
. (eds), European
16
!®Von Bogdandy, Bast, and Arndt (n 7); P Craig, 'The Hierarchy of Norms' in T Tridimas and P Nebbia
cTnion Law for the Twenty-First Century: Rethinking the New Legal Order (Hart, 2004) 75-93; K Lenaerts and M D �somer,
'Towards a Hierarchy of Legal Acts in the European Union? Simplification of Legal Instr_uments and Pro�ed�res (20?�)
11 ELJ 744; J Liisberg, 'The EU Constitutional Treaty and its Distinction between Leg1slat1ve a �d Non-�egisl�t'.v� Acts m
B Olsen and K Sorensen (eds), Regulation in the EU (Thomson, 2006) 133-168; P Stancanelli, Le _systeme dec1S1onnel de
['Union' in G Amato, H Bribosia, and B de Witte (eds), Genesis and Destiny of the European Const1tut1on (Bruylant, 2007)
485-543; de Witte (n 8); H Hofmann, 'Legislation, Delegation and Implementation under the Treaty of Lisbon: Typology
Meets Reality' (2009) 15 ELJ 482; P Craig, The Lisbon Treaty: Law, Politics, and Treaty Reform (Oxford :7mvers1ty Press,
2010) ch 7; B Driessen, 'Delegated Legislation after the Treaty ofLisbon_ : An Analysis of�rt1cle 290 TFEU (20� 0) 35 ELRev
837; p Craig, 'Delegated Acts, Implementing Acts and the New Comitology Regulat'.on (�011) 36 ELRev 67�, S Peer� and
M Costa, 'Accountability for Delegated and Implementing Acts after the Treaty of Lisbon (2012) 18 ELJ 427, J Bast, New
Categories of Acts after the Lisbon Reform: Dynamics of Parliamentarization_in EU Law' (?012) 49 CMLRev 885; J_ M_endes,
'Delegated and Implementing Rule Making: Proceduralisation and Const1tut1onal Design (2013) 19 ELJ 22; T Chnstiansen
and M Dobbels, 'Non-Legislative Rule Making after the Lisbon Treaty: Implementmg the New System ofComitology and
Delegated Acts' (2013) 19 ELJ 42; M Kaeding a�d A Hardacre, 'The European_ Parliament and '.he Future of Cmmtol?gy
after Lisbon' (2013) 19 ELJ 382; p Craig, 'Comitology, Rulemakmg and the Lisbon Settlement Ten�10ns and Strams Ill
C-F Bergstrom and D Ritleng (eds), Rulemaking by the Commission:_ The �ew System (Oxford Umversity Press, 2015).
1 8 CONV 424/02, Final Report of Working Group IX on S1mphficat10n, Brussels, 29 Nov 2002.
19 Ibid 1.
20 Ibid 2.
HIERARCHY OF NORMS j 111
government and those that were for the executive. We shall consider in due course whether these aims
have been realized.
(n) TREATIES AND CHARTER
It is common when discussing the hierarchy of norms to focus on legislative, delegated, and imple­
menting acts, and the hierarchy between them. This is indeed a central part of the subject. It is how­
ever incomplete. It is the constituent Treaties, the TEU and TFEU, which sit at the top of the hierarchy
_9f norms in the E !:!. The Charter of Rights has the same status, since Article 6(1) TEU states that the
Charter has the same legal value as the Treaties. The Treaty provisions will themselves be construedin
the light of the Charter, in order to give the interpretation that best fits with Charter rights. Any legis­
lative act must, as we have seen in the previous chapter, be made pursuant to some Treaty Article, and
the Union Courts will determine the scope and interpretation of such Treaty and Charter provisions.
(c) GENERAL PRINCIPLES
The point made in the preceding section is important and obvious. The subject matter in this sec­
tion is less obvious for those who are not yet familiar with EU law.]Ee second tier of the hierarchy
of norms belongs to what are known as general principles of law. 2 1 They sit below the constituent
Treaties, and ma be use w en m erpre mg partrcu ar reaty Articles. They sit above legislative,
delegated, and implementing acts: genera pnncip es can e used not only to interpret such acts, but
also as a ground for invalidation if a particular legislative, delegated, or implementing act contravenes
these principles.
ples such as proportionality, fundamental rights, legal certainty, legitimate expectations, equality, the
precautionary principle, and procedural justice into the Treaty, and used them as the foundation for
judicial review under Articles 263 and 267 TFEU. This is examined in more detail below, 22 but the role
played by such principles must be understood here.
All developed legal systems embody principles of judicial review, which will normally be part of
administrative law, and provide the basis for legal challenges to governmental action. These principles
may be developed by the courts. They may be laid down by statute or code. They may be formed from
an admixture of the two.
In the EU, the Treaty forms the starting point for elaboration of the grounds of review. Article
263(2) TFEU stipulates that judicial review shall be available for lack of competence, infringement
of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to
their application, or misuse of powers. The influence of French juristic thought is clearly imprinted on
these grounds of review. Article 263 TFEU nonetheless accorded the ECJ, and later the CFI (now the
General Court), considerable latitude in fashioning the principles of judicial review.
The EC]'s role was facilitated by the broad wording of Article 263(2), especially the third ground of
review, 'infringement of the Treaties or any rule of law relating to their application'. The intent might
simply have been to ensure that Commission decision-making complied not only with the primary
Treaty Articles, but also regulations, directives, etc, passed pursuant thereto. If this had been the
intent it could however have been expressed far more simply. The intent might alternatively have been
to capture compliance not only with secondary legislation, but also with other rules of law relating to
1
2 T Tridimas, The Genera/Principles of EU Law (Oxford Univers
ity Press, 2nd edn, 2006); P Craig, EUAdministrative
Law (Oxford University Press, 2nd edn, 2012).
22 Ch 15.
112 I INSTRUMENTS AND THE HIERARCHY OF NORMS
HIERARCHY OF NORMS
J 113
the application of the Treaty that might be developed by the C ourts. In any event, the very ambiguity
in the phrase and the fact that the travaux preparatoires for the Rome Treaty were not available for 1 82 . As regards env ironm e ntal matters . ry_pri. nc1ple .
the pre t1ona .,s expressly e nsh rin ed i n Artic
thirty years provided the ECJ with a window through which to justify the imposition of administra­ 1 74(2 ) EC, which establ ishes the bindi �;:at p ri n le
ng �at c,pl e . _Fu rther mo re. _Article
tive law principles as grounds of review. protecti ng hum an health am ong the obje 1 74(1 ) incl udes
ctive�:tc o , n the envi ron me n t.
Article 19 TEU (ex Article 220 EC) was also important in this respect. It charged the Union C ourts . 183 ._ Therefore, alth ough the p recau
ti onar y princ:: i:'%��� i��:d ,n the Trea
ty o n ly .,n connec-
u

with the duty of ensuring that in the interpretation and application of the Treaty the law should be t1 on with e n vironme ntal p olicy· it is bro . scope. It .,s .inte n ded to be app
. ade r 1n
observed. This might have been interpreted in a limited manner to c onnote the idea that, for example,
a high level of protection of heal th , c
on su m er safety and th e
. 1-1ed 1· n order to e nsu re
.
spheres of activity In particula r, Article e n_v,ro· nme t i n all th e Comm u nity's
C ommission decisi ons should be made within the limits of the primary Treaty Articles and second­ 3(p) EC inclu de ,
. s a con tributi on to the attai n men t of a high
n

level of heal th protecti on' am ong th e p o . . · s· .

ary legislati on. The word 'law' within this Article was however open to a broader interpretation that 1·1c1 es an d act1v1t1es of th e Comm u n,ty.
EC refers to a high l evel of con sum er p 1m1/a rly, Article 1 53
was used by the ECJ to fashion a system of general principles through which the legality of Union and . .
tect·10n an d Art,cle 1 74(2 ) EC assigns a . ·
t1on to Co mmu nity p o licy on the e n v iron . high level of protec-
ro

Member State action could be determined. men t . More over, the req u irem ents relating to that high level
of protect ion of the e n
viron ment and h u ma n h ea l t h are expressly
The judicial task of elaborating principles of judicial review was further facilitated by more specific · i ntegrat ed i· n to t h e defi. n . .
impl e m e ntatio n of all Co mmu n ity p o r . . 1t1es
. . unde r Artic 1t1on a nd
Treaty Articles, which made reference to , for example, non-discrimination. It was then open to the ,c,es and act1v le 6 EC and Articl e 1 52(1 ) EC
resp ectively.
ECJ to read these particular Treaty references as indicative of a more general principle of equal treat­ 1 84. It follows that the preca u tionary princ .
ipl e can be defin ed as a ge
ment and non-discrimination that underpinned the legal order. 23 law requiring the comp etent authorit ies .
. iple of Com mu n ity
n eral princ
to ta k app ropriate measu res to prevent spec
In developing these concepts the ECJ and the CFI drew upon Member State administrative law to public health safety and the envi ronm i fic p ote ntial risks
e_n t :y giving p recedence to th e requ i re
do ctrine. They did not systematically trawl through the legal systems of each Member State in order to protecti on of th�se i nterests over eco '. · · · · ments related to the
no m1c 1n ter ests Since th e C
find common principles. The appro ach was to consider principles in the major national legal systems, ble, in all th ei r sph eres of activ i ty, for the p r � ; mm �nity i nst1tu t1 ons_ a re resp onsi-
otectio n f p ublic heal . . h, sa ety and the envi ronme nt, the
to use those that were best developed, and to fashion them to the EU's own needs. 24 German law was preca u tionary pri nciple can be regarded
as an autono mou s princ ipl e stem m i ng
perhaps the most influential. It was German jurisprudence on, for example, proportionality and legit­ tioned Treaty provisions. f rom the above me n -
imate expectations that was of principal significance for the development of EU law in these areas. 1 85. It is settled case-law that, in the field
of p ublic h ealt_h, the prec . . .
where the re is u nce rtai n ty as to the ex·1s auti nary princ iple impl i es that
The general principles afford the EU C ourts c onsiderable power over the interpretati on of Treaty te nce or exte nt of risks to hum a n h ea It h ,
. t1.ons may
o

take p reca u tionary measures with ou t ha . . t h e .

1 n st1tu
Articles and the interpretation and validity of other Union acts, as will be apparent from discussion v,ng to wa,t until the real i ty a nd se riousness of thos
throughout this book. The EU C ourts als o have considerable power over whether to recognize a new becom e fully apparent · · · Prior to the e ns · e risks
h ri n eme nt ,n case-law of th e precautio na .
basis of the Treaty provisions, that p ri ncipl . r y princ iple,
. on th e
general principle of EU law, as exemplified by the following cases. e was .,mp r,c,t. IY applied .,n the review of p
rop orti o nal i ty . . .

The CFI was therefore willing to extr . .

apo1ate from 1im1 ted Treaty references to the precautionary
ciple, and from menti on of the pr1nc1. . prin-
C a s e s T-74, 76, 83- 85, 1 32, 1 37 a n d 1 41/00 Artegodan GmbH and Others v Commission · ple m some case law, and enshrme .
· 1·t as a genera 1 pnn
It is nonetheless clear that the EU C our ciple oflaw.
ts have cons1.derable discret"10n as to w
hether to recognize a
[2002] ECR 1 1-4945
new general principle of law. 25
[N ote Lisbon Treaty renumbering: Arts 6, 1 52, 1 53, 1 74, 175 EC a re now
Arts 1 1 , 1 68, 1 69, 1 9 1 , 1 92 TFEU]
(n) LEGISLATIVE ACTS
The case co ncern ed ma rketi ng autho rizati ons issued for drugs to co ntrol obesity. Th e Comm issio n Article 289 TFE U is the governing . .
· prov1s10 n that deals with legislative acts. It provides as follows.
withdrew th e auth ori zatio ns pursuant to D i rective 65/65 on the basis of sci enti fic adv ice that the dr ugs
m ight be ha rmful to health . Th e applicants sought annulment of the Commissi on decisi o ns, a nd the CFI 1 . The ordi n a ry legislative procedu re shall
considered the stat us of the p recauti ona ry pr i ncipl e i n EU law. consist in the J. oint
. .
adopti on by the European Parl iame n t
a nd the Coun ci l of a regulati on · di rective . ·
or dec1s1. on on a prop osal from the comm ,ss,
dure is defined in Articl e 294 _ · on . T his proce-
THE CFI 2. I n the specific cases provided for b .
Y th e Treat, es, th e adopti. on of a regu lation , dir
sion by th e European Parlia men t with th e r _ ective or deci-
1 81 . [W)he re the re is scie nti fic u nce rta i nty, i t is for the compete nt auth ority to assess the medici nal par 1c1pat1on of the Cou nc ", or by the latter
patio n of the Europea n Parliament, shall cons . w i th the parti ci-
p roduct i n q u estion i n acco rda nce with the preca u tio na ry p rinc iple . It is therefore app ropr i ate to recall t 1tute a special leg,slat,v e procedur e .
3 · Legal acts adopted by leg1s . lat1ve
. procedure shall co
th e or igi n a nd co n te nt of that pr i ncipl e before expla ini ng i ts effect on the rul es of ev ide nce in co nnecti on
with the syste m of pr ior auth or isation of medici nal p roducts.
4. 1
of a g r
:�:e ;:::�:��:= � o �
t � :� ��::
r t nsti tute legislative acts.
the Tre ti s, legislati ve acts may be adopted
n ;a r�,ament, on a recomm endation from the
on th e initiative
Eu ropean
Central Bank or at the req uest of th e Co:�P��
o

r o u st,ce or the E u ropean I nvestm ent Ba

n k.

23 Cases 117/76 and 16/77 Ruckdeschel v Hauptzollamt Hambourg-St Annen (1977] ECR 1753, [7].
24 Case 14/61 Hoogovens v High Authority [1962] ECR 253, 283-284, AG Lagrange. 2 5 Compare Case C-10
1 /08 Aud1 olux SA ea v Groupe Bruxelles Lambert SA (GBL) [2009
] ECR I-9823.
 HIERARCHY OF NORMS I 115
MS'
THE HIERARCHY OF NOR
1 14 I INSTRUMENTS AND

. . ive The Lisb on Treat y establi shed two categories of act below that of legislative acts : delegated and
acts ado pted by a legi slat
. . legislative acts are 1ega1 .
The b asic premise of Art'ic1e 289 TFEU is t hat decisions: provid d h implementing acts . The procedu re for the making of suc h acts will be con sidered i n the sub sequent
regulat ions , di rect ives , or
g th at c an b e le islat ive are c hapter. The pre sent di scussion is concerned wit h the nature of delegated and implementi ng acts and
t at
. Th
e

proce d _ _ of the Li b
ative acts for the purp oses
e�ure t he wi ll b e legisl
al acts
the cr iter ia fo r the divide b etween them. The rationale for the divide was to disti nguish b etw een sec ­
e le

t he y are adopt;d �y a 1�;1

ure s on

: :�;:�: � i p d , whi ch is the succes-

is will b e t e ordin ar y legi
sla 1

Treat y. The de au t posi io_n is . . d in certai n i nstances. 6

2 ondar y measures t hat were 'legi slat ive ' i n nature , delegated ac ts , and those that could be regarded as
slat ve roce ure

edure is however mandate

-d i i . more 'executive', implementi ng acts . The diffic ult ies of this divide were however ne ver fully thought
� f�llows fro1:1
t� ! :�:: ;::�;� nition o
f a legislative act is purely formal. �is
s c e 1 1

f : ��
on
� through in the del ib eration s on the C on stitut ional or Li sbon Treaty,and it is doub tful whether the
ec s
p�
sor to o

The p deC1-
. any legal act, whether in the form of a regulation, directive, or
U.
t
3) TFE
m
289( o bjective has been reali z ed.
nt
i
orta
f Ar
im

the w ding dure is a legislative

o r special legislative proce
. is . rd ance with the ord'mar y
t cle
d i
o
n A brief word by way of backgr ound to the pre-Lisbon position is necessar y to understand the c ur­
or

sion, w h h enacted by the

sb on Treaty Th1s 1corma 1·1sm is s y mmetrical ·· any legal act
n acco
Li
ac t e
f th
e
' rent regi me . Prior to the Lis bon Treat y t here was no divide between what are now termed delegated
ic

act £or h p p .' l act is not en acted

. .
islative procedure is b y
definition a legislative act; and if a lega
oses o e

ordi nar y or special leg

ur
and implementi ng ac ts . The standard p attern w as a 'primar y' regulation or directive that governed a
t e

. . qu n of th is formalism .
o�::t:�: 1 1 t' t There are two
� �h !t d ; : � · policy area, which was complemented by 'secondar y' legal measures that 'implemented' the primar y
in this act. If a legi sl at ive
e e ces

;s �;: :e�::::t to its status as a legislative

cons
en oes o

The first is t at t . e con en

er
rules in acc ordance wit h A rticle 202 EC. This admixtu re of pr imar y and secondar y rules is comm on
man

it is by d fi i i gislative act, not-

. tment of a le al act t hen
procedure is prescnbed fo r the enac . ive in nature. The in legal s y stems. The C ouncil recogn ized from t he outset of t he EEC that not ever y thing could b e done
e n t on a le

�t well b e regarded as d ini

w ithstan�ing th�t t�e co;;::: �:::::;: �; :;! for the passage by primar y regulation and t hat it would need to delegate power to the Commission to make second­
strat
d
a m

r a d not prescribe a legisl at i p

s e

converse is equa ly rue

. ar y no rms . The C ounc il was however unwilling to acco rd the C omm i ssion a blank cheque , b ecause it
. . ve act, even 1'f J. Udged by its content it lay s down rules of general
ve roce ure

ot a legislati
of a legal act then it is n . . . realiz ed that regulato r y choic es and content ious issues could b e resolved t hrough such measures , the
. b ; � t'�ve ter ms b e regarded as le
gislative m nature.
applicat i h w ld devil being in the detail.
ts that constitute leg-
l' tic approach is t hat the only legal ac
m su t

�e second consequ:n:: :
t at ou

This was the rationale for the birth of what b ecame known as C omitology, whereby national tech­
on

re those made in acco rd with t he ordinary

. e ;f :h::��: Treaty a
islative acts for t he pu P . . 289( l)-(2) TFEU, i ncluding in the case of t he nocrats w ould sit with the C omm ission when it made these secondar y measu res , with the p ossibil­
ance

d A cle it y of sending them to the C ouncil in accordance wit h the management and regulatory committee
or sp eci al legi�lative pecific cases provided f�r by
;: �:d u:: is mandated in the s
latter t he reqmrem�n� t;.:t t�: :; e:::�
r

pro cedures if the national technocrats disagreed w it h the C omm ission's proposal. These committee
. y Articles do not specify the ordmar y
nse to problems because c erta m Treat
o

the Treaties . Thi s gives pro cedures wi ll be analy sed b elow. 28 Suffice it to say for the present that they gave tec hnocrats who
der are prima fiacie not l egislative
. .
or sp ec i al leg1s1 ati· ve proce
du re , and hence the acts made thereun were Memb er State representatives input into t he making of the secondar y measure. The committees'
s of t he EC Tre aty clearly
the predecessor prov ision
measu res enacted under
acts , 27 even though the power flowed from t he fact t hat if they disagreed with the C omm ission's proposal it could b e referred
were legislative in n ature . back to the C ouncil, which could then veto t he meas ure.
The European P arliament was not happy with this regime, because alt hough it had some role i n
t he C om itology pro cess , it wa s ver y much dominated by C ounci l and Member State interests . The
C ommission o pp osed C om itology seeing it as an unwarranted constraint on its executive autonomy.
(E) DELEGATED ACTS
sets the condit ion s and cont
rols over
or y of delegated act , and
Article 290 TFEU defines the new categ The front line Directorates -General might have b een content working with national techn ocrats, but
the making of such a cts . the higher levels within the C omm iss ion were never happy w it h management and regulator y com­
mittees . The strategy w as to devise some method whereby it could b e freed from these l imitations .
e a c\s of ge n-
mmissio n th e powe r to adopt n on-l egislativ
29

1 . A l e.gisl.ativ e act may del egate to th e C o s f the l g1s l at1v e ac .

It advoc ated a regime of ex ante and ex post constraints on non-legislative acts of t he kind that are
er al a pplica t i o n to suppl e
ment or a:�nd �erta in n on - essenti al el e ment explicitly defi ned n ow contai ned in A rticle 290 TFEU. C omitology in its pre-Lisbon form therefore n o longer operates
be
e
shall
o

du ation of th e delega tion of power

Th e ob1_ect1ves, conte nt, in relation to delegated acts,although some 'adv isor y' comm ittees c omposed of n ational experts con­
r ese rv ed for th e l egisl ative act a nd
.
1n th e l eg1sl at1ve acts. T h e ::::�ti: 1 el e m
ents of . a n area sh all be t inue to exist i n relati on to delegated acts , and a rev ised for m of C om itology op erates in relati on to
eg 0
ac�or��n ��� ��a�l n�: ��:�::���� �� �: a �� ;�� : °;;i::� 0 which th e del ega ti on is subj
ect ; th ese i mplementing ac ts . A rt icle 290 now governs delegated acts, which have a nu mb er of feature s.

g a a c t y d n 0
First, t hey are describ ed as 'non legislative acts of general application'. The y are, however,only n on ­
con ditions m ay be as follows: ega tion,
. . legislative i n t he fo rmal sense that they are not legislative acts,b ecause the y have not b een made by
rli m t or th Coun cil m ay d ecide to revo ke th e del
(a) the Europ ean P the ordinar y or special legislative procedure. Many such delegated acts will nonet heless be legislative
expressed by th e Europe an
n ly if n o obj ectio_n h a_s been
a en e

(b) th e delegated act m ay enter i nto force o

a

in nature. This view i s reinforced by the fact that they are said to b e of gen eral application, and can
et by th e l eg1sl t1v ct .
Parli a m en; or the C ou ncil withi n a p eriod s .
1. onty of .its co mpan ent
supplement or amend ce rta in n on- essent i al elements of legi slative acts , and b ecause there is a sep arate
arli a m e nt sh a ll a ct by a m a
a e a

( ) d (b) , the Eur p n P

For th e purp oses of . .
m a1 onty.
o ea

m e mbers, a nd th e C ouncil by a qualified

a a n

d' sh ll b inserted in th e t i tl e of d el egate

d acts. 28 Ch 5.
_
3 Th e adj e ctiv 'd l g t
29 European Governance, COM(2001) 428 final, [20]-[29]; Institutional Architecture, COM(2002) 728 final, [1 . 2],
e e e a e a e

[1.3.4]; Proposal for a Council Decision Amending Decision 1999/468/EC Laying Down the Procedures for the Exercise
oflmplementing Powers Conferred on the Commission, COM(2002) 719 final, 2; Final Report of Working Group IX on
26 Ch 5. Simplification, CONV 424/02, Brussels, 29 Nov 2002, 12 .
n Treaty (n 17) ch 7.
27 s ee, eg, Arts 103 , 109 TFEU; Craig, The Lisbo
116 I INSTRUMENTS AND THE HIERARCHY OF NORMS
provision dealing with administrative decisions. 30 The re ality is therefore that a delegated act will
often be what would be regarded as secondary or delegated legislation. This was recognized by the
Working Group,which depicted these acts as a new category oflegislation. 31 It was also acknowledged
by the Europe an P arliament's Committee on Legal Affairs, whose report was based on the premise
that delegation was a 'delicate operation',whereby the Commission was instructed to exercise a power
that was 'intrinsic to the legislator's own role'. 32
Secondly, the legislative act must define the objectives, content,scope,and duration of the del­
egation of power. This is reinforced by the injunction that the essential objectives of an area must
be reserved to the legislative act, and cannot be delegated. These Fequirements are policed by the
Union Courts, although judicial review to determine whether the essential elements of an area were
adequately laid down in the primary act has not hitherto been intensive or searching. 33
Thirdly, the delegated act can 'amend or supplement' non-essential elements of the legislative act.
Any general measure that amends or supplements a legislative act must be a delegated act made under
Article 290,not Article 291. The me aning of amend and supplement is therefore crucial,because dif­
ferent controls operate under Articles 290 and 291. The two categories should be mutually exclusive,
as accepted by the Commission. 3 4 The term 'amend' denotes a delegated act that formally changes
some non-essential element of the legislative act. The word 'supplement' is not subject to such ready
definition,35 but it has in the past been used in a symmetrical manner with 'amend ', such that
the former connotes the addition of non-essential elements,while th.e latter captures the deletion
thereof. 36 This interpretation was evident in the 2009 Commission Communication. 3 7 The difficulty
of this divide will become apparent below when discussing implementing acts.
The fourth feature of delegated acts is that they are subject to the controls specified in Article 290:
the EP or the Council is empowered to revoke the delegation and can veto the particular delegated
act. The efficacy of these controls will be analysed below. 3 8
(F) IMPLEMENTING ACTS
Article 291 defines the new category of implementing act,which can be made pursuant to a legislative
act or a delegated act. This follows from Article 291, which specifies that implementing acts can be
made pursuant to any legally binding Union act.
1 . Member States shall adopt all measures of national law necessary to implement legally binding
Union acts.
2. Where uniform conditions for implementing legally binding Union acts are needed, those acts
shall confer implementing powers on the Commission, or, in duly justified specific cases and in the
cases provided for in Articles 24 and 26 of the Treaty on European Union, on the Council.
30 Art 288 TFEU.
31 Final Report of Working Group IX (n 29) 8.
32 Committee on Legal Affairs, On the Power of Legislative Delegation, A-7 0110/2010, Rapporteur J Sjazer,
Preamble C.
33 Ch 5.
3 4 Implementation ofArticle 290 ofthe Treaty on the Functioning ofthe European Union, COM(2009) 673 final, [2.2].
35 Ibid [2.3].
3 6 2006/512/EC: Council Decision of 17 July 2006 amending Decision 1999/468/EC laying down the procedures for
the exercise of implementing powers conferred on the Commission [2006] OJ L200/1 l.
37 COM(2009) 673 (n 34) [2.3].
3 8 Ch 5.
HIERARCHY OF NORMS I 117
3 . For the purposes of paragraph 2, the European Parliament and the Council, acting by means of
regulations in accordance with the ordinary legislative procedure, shall lay down in advance the rules
and general principles concerning mechanisms for control by Member States of the Commission's
exercise of implementing powers.
4. The word ' implementing' shall be inserted in the title of implementing acts.
It is important once again to take a step back in order to understand the change made by the Lisbon
Tre �ty. We have alr�ady seen that pre -Lisbon the making of secondary measures was governed by
Article 202 EC, which was framed so as to allow delegation of power to the Commission for the
'implementation' of rules laid down by the Council,subject to the Comitology procedure. There was
significant variation as to the secondary measures concluded pursuant to Article 202 EC. In reality
there was a spectrum of secondary norms,with 'pure' rule-making at one end,'pure' implementation
a� the other, and many measures falling between the two. This did not however matter pre-Lisbon
smce the same Tre aty provision,Article 202 EC,applied to all such measures. 3 9
The term 'implementation' as used in Community legislation and official websites thus covered
what are now termed delegated acts,as well as the terrain now covered by implementing acts. Thus
the standard format in EC legislation was to empower the Commission to make 'implementing provi­
sion�','i�plementing rules',or 'determine detailed rules',subject to Comitology,and the paradigm
application was through rule-making or decision-making that amended or supplemented the pri­
mary legal norm. 40 The same terminology was evident on official websites,where the term 'imple­
menting provisions' c arried the broad connotation used in Community legislation. 4 1
The post-Lisbon world requires us to distinguish between delegated acts and implementing acts.
Delega_ted acts are of general application and amend or supplement the legislative act. Implementing
acts will normally be of general application, since Article 291 specifies their use in circumstances
where uniform conditions for implementing legally binding acts are needed. The key distinguishing
feature is therefore that implementing acts execute the legislative act without amendment or supple­
mentation. Consider the Commission's approach to this issue.
Implementation of Article 290 of the Treaty on the Functioning of the European Union
C O M (2009) 673 fin a l
Firstly, i t believes that b y using the verb 'amend' t h e authors of the new Treaty wanted to cover
hypothetical cases in which the Commission is empowered formally to amend a basic instrument.
Such a formal amendment might relate to the text of one or more articles in the enacting terms or
to the text of an annex that legally forms part of the legislative instrument. It makes little difference
whether the annex contains purely technical measures; as soon as the Commission is empowered
to amend an annex containing measures of general application, the regime of delegated acts must
be applied.
Secondly, the Commission wishes to stress the importance that should be attached to the verb 'sup­
plement', the meaning and scope of which are less specific than those of the verb 'amend'.
39 The nature of the secondary measure could after 2006 impact on the precise version of the Comitology procedure.
40 Craig, The Lisbon Treaty (n 17) 271.
41 See, eg, http://ec.europa.eu/competition/antitrust/legislation/regulations.html; http://ec.europa.eu/information_
soc1ety/pohcy/ecomm/implementation_enforcement/index_en.htm; http://ec.europa.eu/internal_market/services/
services-dir/implementation_en.htm.
l l8 I INSTRUMENTS AND THE HIERARCHY OF NORMS
HIERARCHY OF NORMS I l l9

s j
�;�!;:;�; ;::; e a� ;::1�:;1::; i:;te ::!t:::: :t; a::�� �;;; :: : ;::::;xerds ed br the
c
The Commissi o n believes t ha t in order to determine whether a me a sure 'suppl eme nts' the basic
x s 0 1 r e
i nstrument, the legislator should assess whet her t he fu t ure measure specifica lly adds n ew n o n­
on to� gy pr ocedure. The danger is that b

�£;I:i�Ef?i:�:���J�jt���f�f�gf:ffI�f:��::;;:i�:{�;:����:�I::·:ir:E:;i:���
once the Commission has de cided that a
essen t ia l rules which cha nge the framework of the legislat ive act , le a ving a marg in of discretio n t o � t � ;::::r: s�10:7l
the Commissio n . If it does, t he me asure co uld be deemed to 'supplement' the basic instrument.
Co nversely, me asures intended o nly to give effect to the existing rules of the basic instrument sho uld
not be deemed to be supplementa ry me asures.

The Commission c aptures the criterion that must be applied to distinguish delegated and implement­
:�:':;;,��·::;;,:� d:;,�:�� ::� :::;::
J I

ing ac ts. There a re, however, three difficulties with this criterion, which c all into question the plausi­ ::,�:;r:�,;7,b;,":�:.�::,t�:: ��fo:
0

bility of the divide betwe en delegated and implementing acts. 42

Fi rst,there is 'the language problem': all seconda r y me asures involve some addition to the prima r y
a ct. Many thousands of s ec ondary measures have been enacted since the inception of the EEC. In the
pa radigm c ase they bring greater exactitude to the meaning of an Article of the primary act. Thu.s, for Case C-427/1 2 Commission v European Parliament and Council
example , there might be a complex prima r y a ct dealing with agr iculture, and a seconda r y measure EU:C:20 1 4: 1 70
specifies in greater detail one pa rt of the primar y a ct relating to, for example, the requirements for the A legis la tive a ct had been en acted co
indep endence of agencies that pay money pursuant to the prima r y regulation. Such measures cle a rly ��;:�e 1mplement1ng regulatio ns pursu
ncer n ing biocida l pro ducts a nd empo were
d t he Commission
'add something' to the primar y act. This will be equally true for any measure classified as an imple ­
a nt to Ar t icle 2 9 1 . The Commis
sion co ntend ed t hat Artic l e
o l d ra ther be used , beca
use the regula ti o n suppleme n ted the legisl
menting act in the post-Lisbon world, since the very specification of uniform conditions of implemen­ be reg a r�ed a s a deleg ated a ct. I t conte ative a ct a nd thus sho uld
n ded tha t the cho ice a s
tation will be 'adding something' to the enabling provision in the legislative or delegated act. The key me n t 1ng a ct should be ba sed o n object
bet ween a deleg a ted a nd · Ie_
ive fa cto rs t hat were a menable to judic
issue is therefore whether what is added will be rega rded as amending or supplementing the prima r y s e t1ve sc opes of Articles 290 a nd 291 i a l review a n:��;�he
TFEU were mu tu a l ly exclusive. The Co
act. This demands the following evaluation. ;�a � I tthe purpose
wa s to a d opt n o n-esse nt ia l rules of gene
mmissi o n a rgued
ral a pplication , which com leted th
It might be considered that the Article in the legislative a ct has sufficiently resolved the relevant no m a t1ve fra_mewo rk of t
he l egisl at ive a ct , t he n those rules supp
l eme nted the legisla tive
issues,the conclusion being that the seconda r y measure, while obviously imbuing the Article of the o �e ma de vi a Ar ticle 290. If however the
purpose wa s merely to give effect to the
a�t a nd ha;

legislative a ct with greater detail, does not supplement it by adding any 'new' non-essential element so
: own i n the b rules a lrea dy l a id
a sic act whi l e ensur i ng u
n ifo rm co n dit i o ns of a pplic
a tion within the EU t he n Artic
as to trigger the need fo r recourse to Article 290, the conclusion being that Article 291 c an be used. It co uld be used. le 291

might in other instances be concluded that the relevant Article in the legislative act is less definitive,
the c onclusion being that while it has provided sufficient guide as to ess ential principles, the second­ THE CJ E U
a r y me asure has nonetheless supplemented it by the addition of 'new' non- essential elements, the
conclusion being that A rticle 290 must be used. 38. When the E U legislature co nfers, i n
a l egislative a ct , a deleg a ted power o n
the Commissio n
The divide betwe en the terrain of delegated and implementing acts will turn on the preceding pursu ant to Art icle 290(1 ) _T FEU, the Comm
issio n is ca lled o n to ad opt rules which
supp l ement o r
determination. It is difficult to regard this as satisfactor y. It is bound to generate inter-institutional
ame n d cer ta in n o n-essenti al eleme n ts o
f tha t act. In a cco rda n ce with the secon
Articl e 2900) TFE_U. the objecti_ves, conte d subpa ragra ph of
disputes as to whether recourse should be had to Article 290 or 291 TFEU. It c alls into question the nt, scope a nd dura tio n of
the deleg a ti o n of p ower must
be
explici t ly defined in the leg1sla t1ve a ct g r
normative foundation fo r the differential controls that operate in relation to delegated and imple­ anting such a deleg a ti o n .
Tha t requiremen t implies that the
rpose of gra nt ing a deleg ated power is to a
menting acts. There will ine vitably be instances where juxtaposition of acts reve als scant reason as to t
chieve the adopt ion of rules coming within
the reg ulatory
ramewo rk as defi n ed by the basic legisla
why the 'supplementation' of the legislative act in the one instance should be rega rded as a 'new' non­ tive a ct.
9. By co ntrast , whe n the EU legis lat ure
essential element, such that a delegated a ct is required, whil e in other instances this is not so, such that
co nfers an implementing power on the C
ommission o n
th: basis of Ar ticle_ 291_ (2) TFEU , the Co
an implementing act can be used. th e co nte n t of a leg1sl at 1ve
mmissi o n is ca l l ed on to provide further
deta il i n rela ti on to
a ct, in o rder to ensur e tha t
S econdly, the preceding difficulty is exacerbated by the 'time problem'. It is not possible to decide M ember states.
it is implemented under unifo rm co nditio ns
in all
con clusively whether a s econda r y me asure falls into the catego r y of delegated o r implementing a cts 40. It must be noted that the EU legis lat
ure has discretio n when it decides to con
acc ording to the fo regoing criterion until it is made, more esp ecially because any draft measure power o n t he Comm1ss1 on pursua n t to Articl fer a delegated
e 290(1 ) TFEU or a n implementi·ng Power
may be changed piior to final enac tment. However the choice between delegated and implementing . .
A rfIC I e 291 (2) TFEU ._ Co nsequ ently, Jud1c1. pursu ant to
a l review is limited to manif
a c t has to be made at an ea rly stage, because the procedures for their making a re ver y different. 43 whether the EU l egisla ture could re a so n a
est erro rs of assessment a s to
bly ha ve ta ke n the view, first, tha t, in o rder
nted, the leg a l fra mewo rk which it la id do wn to be imple­
reg a rding t he system of fees referred to i n Ar
��
o _eg� lation N o 528/2 012 needs o n ly the a ticle 80(1)
dditi o n of further deta il, without its n on -esse
ha v1 ng to be amended o r supp leme nted ntia l eleme n ts
an d . seco n di Y, that the prov1s · ·
. . . 1o ns of Regul a tio n N o 528/2 012
42 Craig, The Lisbon Treaty (n 17); Craig, 'Delegated Acts' (n 17). relating t o that system requir e uniform co n di tio ns fo r implemen tatio n .
43 Title V TEU.
120 I INSTRUMENTS AND THE HIERARCHY OF NORMS CONCLUSIONS j 121

The Court concluded in p aragraph 40 that it would on ly revi ew the legislative c hoice be twe en del­ :::;:n�:� io� ::;:;�::;;::::�;�:�:: : :�:�gislative act. Implementi ng acts are premised
u l

egated and implementi ng acts if there was a man ifest error. This approach obvi ated the ne ed for it t e t .
to give clear guidance on the divisi on between the two ki nds of act. The Court however elides two This leaves an interesti ng inquiry as to acts that do not fit these c e · .
p
rd _a�mi n
_ istra�ive decision addressed to a partic ular perso:,t:::�· ���:�;:�! ;h: ::�:�

E�f���fi:: r;A:: ;�::�:V!i��r�::�;:,��n�:t:E,tr:fi;i�;���;f:::;f��:�:

disti nct issues,these being the legislature's power to use both delegated and implementing ac ts,and
o x

:i ;: ::: ecis10n 111

a

whether the conditi ons for the application of the respe ctive types of act have be en met. Artic1e 288 TFEU. It wi ll not be a legislative t ·f · ·
It is tru e that the legislature has 'discretion' as to the former issue, but only i n the reduction ist sense
that the Lisbon Tre aty makes provision for both delegated and implementing acts, with the conse ­
quence that it is open to the EU legislature in the legislative act to choose whether further rules shou ld r imp emen -
be made pursuant to Article 290 or Article 291. This provides however no foundation for the conclu­ tat10n as that term is used in Article 291. We m ight conclude that such deci.s10 .
ns ca nnot lega lly be
sion that the EU legislature has 'discretion' as to the latter issue, whi ch is whether the conditions for de Th· wo:.ld h wever le ad to very considerable practi cal difficulties and would fly in th
. e fac e of
;� r icie 2;; , w ich c�early contemplates a decision addressed to a partic ular person The alt
the application of Article 290 or Article 291 have been met in any p articular instance. Thus the fact . t·i
is to ac � ept that sue� decisi ons ca n be legally made, but to
that the EU legislature may take the vi ew that,for example, an implementing act will suffi ce for rules _ acknowledge that they ma� not fit:::: t�:
ca ego nes of legislative , del egated, or i mplementi ng act, th
made pursuant to the legislative act because they on ly add some further deta il that does not thereby e corol lary bei ng that the hiera rchy of legal
:
ac s c�mp osed of these categori es do es not capture the wa .
amend or supple ment its non -esse nti al elements does not 'make it s o '. ys in which legal norms are made 111 the
It can be accepted that when re viewi ng the choice made by the legislature the Court should consider po st-Lisbon world.
co dl , while the Lisbon Tre aty dismantled the forma l pillar
the reasons why it chose to proceed vi a a delegated act rather than an implementi ng act, or vice versa. . � system, there are nonethel ess
This is however to say no more than that when exercising judicial review a Court should be properly d is� me;r u�es conc ern mg .
the legal ac ts that c an be used for the C ommon Foreign and S ec uri·ty
in formed as to the reason ing that underpinned the decision of the body bei ng reviewed. It provides P olicy (CFSP). 44 Arti cle 25 TEU provides that the Un ion shall c onduct the CFSP through a nu m
. ber
no fo undation for the conclusion that the body subje ct to review has 'discretion' as to whether the of measures. G enera 1 gm·delmes must be defi n ed, this bei ng a matter for the E uro e an C o u nc 4
il 5
. .
conditions for the application of delegated or implementi ng acts are met, with the consequence that D ecis10ns_ shou ld be adopted defin i ng acti ons to be u ndertaken by the Uni on, positfo ns to be tak�n
the C ourt uses only light touch review for manifest error. by the Umon, and arrangements for the i mplementati on of the precedi ng de cisi ons Thes e decis10 · · ns
.
are taken pr·u� an· 1Y bY the C ounci 1 on the ba sis of the genera ·
The re al lesson from this case is that the analytical divide betwee n delegated and implementi ng . 46 l g uidelines decided by the Euro ean
acts is fragile . The CJEU w as fa ced with a choi ce. It could cho ose to give gu idance as to the nature o f
Coun�il . I� is ho:we ver unclear whether the term 'dec isi on' us ed in this c ontext be ars the fam e
this divide, but this would lead to the analytical criteri on set out above, or something ana logous as m_g _ as i � Articl� 288 TFEU, although this seems doubtful given the specific contexts in whi ch
� a;
e

suggested by the Commission in the instant case. This would then i nvite frequent c hallenges as to n is used 111 relati on to the CFSP. L egislative a cts cannot be u
ndertake n i n rel ati on to

whether an act fell on the right or wrong side of this analyti ca l divide, a scena rio that the Cou rt wou ld th: C;;;:�
not welcom e. The Court therefore chose the alternative ro ute, whi ch wa s to avo id c lo se analy tic a l

scruti ny of the dichotomy betwe en the two typ es of act through recourse to the intensity o f re view,
manifest error bei ng said to be w arranted because of the 'dis cretion' p ossessed by the legislature. This

will discourage claimants from challengi ng the co rrectness of the use of delegated or implementing
acts, because of the diffi cu lty of pro vi ng man ifest error.
This cannot however conceal the paradox that bes ets this area. The disti nction be tween delegated
and i mpleme nting acts w as ado pted bec ause it was felt to be i mp ortant constitutiona lly and pragmati­
cally. The p aradox is that it is the very proble matic nature of this divide which led the Court to back
away from addre ssi ng the substantive distinction betwe en the two typ es of act, and to sidestep the
issue by assign i ng 'discreti on' as to its application to the EU legislature,to be p oli ced only through
light touch review for manifest error.
4 CONCLUSIONS
i. :e. �U has thre e :incipal types of formal legal norms at its dispos al, regulations, directives, and
P
ec1S1ons. I n most mstances th e EU can cho ose which type of lega l pro vision to use .
ii. EU policy in an y partic ular area will be made by various formal legal norms. A basic regulation
can be �ade mor� �oncrete through further regulations, or through dire ctive s or decisi ons. The
fo undati onal provis10n may alternatively be a directive or even a decision, which can then be com ­
e ented by �econdary norms c ast i n term s of regulations, directives, or decisi ons. These forma l
[1 �
ega n orm s wil l be supple mented by a variety of so ft law devices.

iii. The Lisbon Treaty i nstituted a more formal hierarchy of legal norms than existed hitherto There
·
· thi· s hi· erarchy: the constituent Treaties,TEU and TFEU,and the
are now five categon· es w i·th111
.
(G) INCOMPLETE CATEGORIZATION
Charter of Rights; ge�eral pri ncipl es of law; legislative acts; delegated acts; and implementi ng
The discussion thus far has considered the schema of legal acts in the Lisbon Treaty and the problems
acts. There are four pomts to note about this hierarchy.
presented by this novel regi me. There are however two respects i n which the Lisbon categorization is
i ncomplete .
First, c ertain acts do not seem to fit the pre ceding categories. We have seen that legislative acts,
delegated acts, and implementi ng acts can in principle take the form of reg ulations, directives, or 44 Ch 10.
decisions,subject to the caveats noted above. We have also se en that each typ e of legal act has its own 45 Arts 26(1), 42(2) TEU.
criteria . L egislative acts a re defi ned formally i n accordance with the proc edure for their enactment. 46 Arts 26(2), 28, 29, 42(4), 43 TEU.
47 Art 31 TEU.
Delegated acts must be made pursuant to a legislative act,they must be or general appli cation, and
122 I INSTRUMENTS AND THE HIERARCHY OF NORMS
FURTHER READING I
iv. First, the elaboration of general principles of law lies principally with the Union Courts. This
123
ME NDE S, J, 'Delegated and Imp
lementing Rule Ma king.. Proced . .
gives them considerable power to decide what constitutes a general principle of EU law, and how it Design' (2013) 1 9 ELJ 22 urahsa tion and Constitutional
should be applied. This is important because general principles shape the interpretation of Treaty
STANCANELLI,P, 'Le systeme dec
provisions and other Union acts, and because they are also a ground for invalidation of legislative, isionnel de l'Union' in G Amato, . .
Genesis and Destiny ofthe Europe . H Bnb osia,and B de Witte (eds),
delegated,and implementing acts. an Cons t't
I u twn (Bruy1ant, 200
7) 485
VON BOGDANDY, A, BAST, J,AND
v. Secondly,certain elements within this hierarchy are defined in purely formal terms. Thus, for ARNDT, F 'Le al Instruments
Reform: A Systematic Approach m European Union Law and the
example, the definition of legislative acts is formal in the sense that it connotes acts made in on an E�p·mc .
� a l B asrs ir
' ( 2004) 23 YBEL 91
accordance with a legislative procedure, irrespective of the nature of the measure enacted. The
definition of delegated acts is also formal, insofar as they are said to be non-legislative, since
this simply means that these acts have not been made in accordance with the procedure for
legislative acts.
vi. Thirdly, the distinction between delegated and implementing acts is problematic. The rationale
was to distinguish between secondary measures that were 'legislative' in nature, delegated acts,
and those that could be regarded as more purely 'executive',implementing acts. The difficulties of
realizing this divide were however never fully thought through. The distinction turns on a crite­
rion that is questionable in terms of principle and very difficult to apply, 'the language problem',
and this difficulty is exacerbated by the 'time problem'. The consequence is that different control
mechanisms will be applied to secondary measures, where the distinction between the measures
is a fine one, judged by the criterion demanded by the Treaty provisions. This is not satisfactory,
nor is the CJEU's decision to engage in only minimal review.
vii. Fourthly,the hierarchy of norms is incomplete,in the sense that there are certain legal acts that
do not readily fall within any of these categories.

5 FURTHER READING
BAST, J, 'New Categories of Acts after the Lisbon Reform: Dynamics of Parliamentarization in EU
Law' (2012) 49 CMLRev 885
CHRISTIANSEN, T, AND DoBBELS, M, 'Non-Legislative Rule Making after the Lisbon
Treaty: Implementing the New System of Comitology and Delegated Acts' (2013) 19 ELJ 42
CRAIG, P,The Lisbon Treaty: Law, Politics, and Treaty Reform (Oxford University Press,2010) ch 7
--'Delegated Acts, Implementing Acts and the New Comitology Regulation' (20 1 1) 36 ELRev 671
- - 'Comitology, Rulemaking and the Lisbon Settlement: Tensions and Strains' in C-F
BERGSTROM and D RITLENG (eds), Rulemaking by the Commission: The New System (Oxford
University Press,2015)
DE WITTE, B, 'Legal Instruments and Law-Making in the Lisbon Treaty' in S Griller and J Ziller
(eds), The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty (Springer, 2008) 79
DRIESSEN, B, 'Dekgated Legislation after the Treaty of Lisbon: An Analysis of Article 290 T FEU'
(2010) 35 ELRev 837
HOFMANN,H, 'Legislation,Delegation and Implementation under the Treaty of Lisbon: Typology
Meets Reality' (2009) 15 ELJ 482
LENAERTS, K, AND DESOMER, M, 'Towards a Hierarchy of Legal Acts in the European Union?
Simplification of Legal Instruments and Procedures' (2005) 1 1 ELJ 744