Delegation or Implementation? The Ambiguous Divide

Central to the legal acts' architecture designed in Lisbon is the concept of essential elements, defining the exclusive domain of legislation; derived acts are shaped as delegation and implementation. Recent case law suggests that two separate conceptions of the EU legal acts system lie at the heart of this construction, each of them tied to a different understanding of the essential elements. One may be called static: it is forged in the image of delegation in constitutional law, and conceives of essential elements as binding meta-norms contained in the basic act. The other may be called dynamic: arising from the Communities' institutional practice, it is grounded in the institutions' reciprocal political autonomy and refers to essential elements as stemming from a legal/political evaluation involving both the basic and the derived act, while pointing to the substantive legitimation of law-making. Though at odds as a matter of pure logic, both conceptions seem indispensable to enhance the legitimation of EU law-making; yet how this legitimation actually works is an open issue for debate.