Delegated Rule-making in Times of Crisis: New Challenges for Democratic Scrutiny?

Abstract

The delegation of powers to the European Commission, facilitating the adoption of non-legislative acts to implement centrally provisions of European legislation, has long been an essential part of administrative governance in the European Union. However, the established practice of delegating legslative and implementing powers to the European Commission has increased over the last decade, at the same time in the context of the various crises that the EU has had to confront during this period. The crisis context has generally demonstrated that executive institutions often emergency politics, and the amplified use of delegated powers in such circumstances raises questions about the capacity of legislative institutions to carry out their usual control and scrutiny functions. The concern here is whether – at times when the established mechanisms of control need to be carried out in times of crisis, under greater time pressure – there is the risk of legislative institutions (that had originally delegated powers to the Commission) are being sidelined, with the detrimental effects that this may have on the democratic accountability of the whole process. Against this background of normative question-marks, this article examines empirically to what extent the scrutiny of the Commission’s adoption of delegated powers has fundamentally changed during times of emergency. In particular, it provides an analysis of the use of delegated powers by the European Commission in the context of the EU’s response to the Covid-19 pandemic in order to establish whether the Council and the European Parliament managed to enable the usual control mechanisms effectively. By way of conclusion, the article discusses the implications of the findings for the wider discussion and the future use of emergency governance in the European Union.