Delegated or Implementing Acts? Formal and Substantial Criteria in the systematic understanding of EU legal acts

In the aftermath of the Lisbon Treaty, the newly fashioned system of EU legal acts proves consistent with a process of ongoing de-formalisation in the relationships among the sources of law, involving Union law as well as, to a limited extent, national laws. However, the first ECJ judgement concerning the relations between Art. 290 and 291 TFEU takes an ambiguous position: despite the historical approach, a prognostic evaluation of the nature and quality of the power conferred is held possible in principle – though solved in the negative – prior to the adoption of the secondary act. The Court avoids dismissing the power to review a basic act, with a view to making a sharper use of it in case new patterns of juridification arise in the future (i.e. specific “types” of delegation are agreed to fall within the scope of Art. 290 TFEU). In spite of the effort to minimise the theoretical issues at stake, it seems blatantly difficult to reconcile the achievements of a non-formalised and poly-centric system of lawmaking with a prudent, mellifluous tribute to the national traditions and to the State-based understanding of legal acts.