The Making of Delegated and Implementing Acts Legitimacy beyond Institutional Balance

The procedures guiding the making of delegated and implementing acts have been conceived from a predominantly inter-institutional perspective and have not taken account of the participative democracy dimension. The system for delegation of powers set out in Articles 290 and 291 TFEU does not envisage, let alone structure, the relationships between decision-makers and the ‘outer’ sphere: those legally affected by the legal acts of the Union and the public. This dimension should not be ignored in the current constitutional framework, given that Articles 9, 10(3), and 11 TEU establish normative parameters that should shape the relationships between the institutions and citizens, and in the making of delegated and implementing acts. Therefore, since Articles 290 and 291 TFEU do not exhaust the constitutional framing of delegated and implementing acts, the EU legislature should provide a remedy by adopting procedural rules aimed at securing participation and transparency within the process.