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19 Eur. L.J. 1 (2013)

handle is hein.journals/eurlj19 and id is 1 raw text is: 


European Law Journal, Vol. 19, No. 1, January 2013, pp. 1 21.
C 2013 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA




          Constitutionalising EU Executive

                 Rule-Making Procedures:

                      A Research Agenda


     Deirdre Curtin, Herwig Hofmann and Joana Mendes*





Abstract: The existence or non-existence of procedural rules for executive rule-making
in the EU is not merely a 'technical' question free of constitutional value choices. This
article argues that constitutional principles, such as transparency, openness and partici-
patory democracy,  highlighted by the Treaty of Lisbon constitute decisive normative
standards for the design of administrative procedures in the EU, with a considerable
impact  on substantive outcomes. We  apply such principles to executive rule-making
procedures in the EU, highlight the salience of this discussion and argue that systema-
tisation of executive rule-making procedures is needed in order to implement constitu-
tional principles in a complex and plural environment.


I   Introduction
The  EU  is a legal system that, despite in historical terms being a young structure, has
developed and  transformed itself many times. One of the ways in which the EU polity
has evolved in recent years is in the nature and breadth of the tasks it performs, as
well as the range of actors who perform  them. As  might be expected, there is not
always a smooth  link between growth in policy-making powers now  touching almost
every imaginable public policy objective on the one hand, and the institutional struc-
tures, decision-making procedures  and  constitutional framing on the  other. This
mismatch,  in part, results from the fact that the evolution of the EU does not always
take place according to a specific 'constitutional' blueprint. More than at the national
level, the EU's institutional structures and decision-making procedures evolve beyond
its formal constitutional frame, responding to the needs of the time and of specific
policy areas, and reshape its constitution accordingly.' Yet one stable characteristic of




*  Deirdre Curtin and Joana Mendes, Professor of European Law and Assistant Professor, University of
   Amsterdam; Herwig C. H. Hofmann, Professor of European and Transnational Public Law, University
   of Luxembourg. The contributions to this special edition build on work undertaken by the members of
   the working group on 'rule-making', of the Research Network on EU Administrative Law-ReNEUAL
   (http://www.reneual.eu), and were presented and discussed at conferences and workshops in Amsterdam
   and Luxembourg in 2011.
   See further, D. Curtin, Executive Power of the European Union (Oxford University Press, 2009).

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