The evolution of legislative delegation in the last two decades displays a correspondence between essentiality and representation, in both parliamentary and participatory meaning; at the same time, “political sensitivity” of matters deemed contiguous to the sovereign nucleus of Member States still follow intergovernmental decision making schemes. After Lisbon, “new essential elements” has come to define the limit of delegated legislative powers under Art. 290 TFUE, whereas implementing measures are confined to a merely executive role. In the light of the previous case law, such concept shows adequate flexibility to serve as an overall criterion to the systematization of EU acts. It expresses a dynamic relation between continuity from one act to the other and invasivity, that is, the way individuals or States perceive the discipline as having an attitude to penetrate their legal sphere. “New essential elements” therefore operate as indicators of a material supremacy attaching to the “most representative” act, beyond any formal classification or hierarchy. Such de-formalisation process is rooted in the evolution of national systems and can be seen as part of a common European constitutional law: evidence of that may be found in the case law of national Courts. When faced with delegation, Italian Constitutional Court is prone to refer to such arguments when assessing the limits of the delegatedact,regardlesstotheformalcriteriaprovidedforinArt.76 of the Constitution. Likewise, German BVG has construed Wesentlichkeit as a legal concept and has translated into material law the “requirements for delegation” provided for in Art. 80 of the Grundgesetz. As compared to the case law of the US Supreme Court — paying a very modest tribute to formalistic schemes — delegated legislation in Europe seems to be in transition from formal to material models. Therefore, when tackling legal issues concerning delegation, preference for the emerging material model must be balanced with the due respect for national constitutional traditions, in so far as the respective systems have not departed (yet?) from a mainly formalistic framework.

“Nuovi elementi essenziali”, ovvero del posto della normativa delegata nella sistematica delle fonti del diritto europeo

Vosa G
2014-01-01

Abstract

The evolution of legislative delegation in the last two decades displays a correspondence between essentiality and representation, in both parliamentary and participatory meaning; at the same time, “political sensitivity” of matters deemed contiguous to the sovereign nucleus of Member States still follow intergovernmental decision making schemes. After Lisbon, “new essential elements” has come to define the limit of delegated legislative powers under Art. 290 TFUE, whereas implementing measures are confined to a merely executive role. In the light of the previous case law, such concept shows adequate flexibility to serve as an overall criterion to the systematization of EU acts. It expresses a dynamic relation between continuity from one act to the other and invasivity, that is, the way individuals or States perceive the discipline as having an attitude to penetrate their legal sphere. “New essential elements” therefore operate as indicators of a material supremacy attaching to the “most representative” act, beyond any formal classification or hierarchy. Such de-formalisation process is rooted in the evolution of national systems and can be seen as part of a common European constitutional law: evidence of that may be found in the case law of national Courts. When faced with delegation, Italian Constitutional Court is prone to refer to such arguments when assessing the limits of the delegatedact,regardlesstotheformalcriteriaprovidedforinArt.76 of the Constitution. Likewise, German BVG has construed Wesentlichkeit as a legal concept and has translated into material law the “requirements for delegation” provided for in Art. 80 of the Grundgesetz. As compared to the case law of the US Supreme Court — paying a very modest tribute to formalistic schemes — delegated legislation in Europe seems to be in transition from formal to material models. Therefore, when tackling legal issues concerning delegation, preference for the emerging material model must be balanced with the due respect for national constitutional traditions, in so far as the respective systems have not departed (yet?) from a mainly formalistic framework.
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/20.500.11769/544292
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