Professor of European Law, Utrecht University, the Netherlands. This article partly builds on a study that has been conducted for the European Parliament. See L.A.J. Senden and A. van den Brink, Checks and Balances of EU Soft Law, PE 462/433, March 2012, available at http://www.europarl.europa.eu/committees/el/studiesdownload.html?languageDocument=EN&file=67648.
Soft Post-Legislative Rulemaking: A Time for More Stringent Control
Article first published online: 21 DEC 2012
© 2013 Blackwell Publishing Ltd
European Law Journal
Volume 19, Issue 1, pages 57–75, January 2013
How to Cite
Senden, L. (2013), Soft Post-Legislative Rulemaking: A Time for More Stringent Control. European Law Journal, 19: 57–75. doi: 10.1111/eulj.12013
- Issue published online: 21 DEC 2012
- Article first published online: 21 DEC 2012
- Manuscript Accepted: OCT 2012
- Manuscript Received: SEP 2012
The Commission's soft post-legislative rulemaking by way of communications, notices, codes and similar instruments has become an increasingly important tool for the adequate functioning of the system of shared administration in the EU. However, the development of its legal framework has not kept pace with this, as the Treaty on the EU nor the Treaty on the Functioning of the EU (TFEU) recognise this regulatory phenomenon. As a result, its current procedural control is of a very ad hoc nature. Given the risks this rulemaking involves for the legitimacy of the EU, its practical and legal importance for legal practice and the way in which the Treaty of Lisbon has sought to condition and control the behaviour of the Union institutions, it is argued that the time is ripe for a more stringent and consistent procedural control of soft post-legislative rulemaking. Some options to realise this are presented for further research.