Delegated Rulemaking in Times of Crisis Rethinking Emergency Powers in the EU

The insurgence of different transnational crises over the course of the last decade has uncovered several vulnerabilities in the administrative governance of the European Union (EU) and raised questions about its crisis management capacity. Emergency response traditionally lies in the hands of the member states, but the increasing spillovers, overlaps, and intertwining elements of crises have showcased a clear need for a collective European crisis management. Beyond a couple of very specific and isolated exceptions, the Treaties do not envision fully-fledged emergency powers. Consequently, the EU has had to often resort to the creation of mechanisms outside the scope of the Treaties, later incorporating them in its legal framework and thus casting further doubts on the democratic legitimacy of the process. The executive institutions are generally in charge of emergency politics, leaving the legislative branch little room to carry out its normal functions. The legitimacy of crisis management in general is in any case subject to frequent questioning, as it tends to favour effectiveness and efficiency over the fulfilment of a thorough democratic process. The long-standing practice of delegated rulemaking pursuant to Arts. 290 and 291 of the Treaty on the Functioning of the European Union (TFEU) has significantly increased in the last few years. This has included, though it was not limited to, the management of the most recent crises. Delegated and implementing acts, while traditionally carrying the burden of a disputed transparency and accountability, are rooted in the Treaties and arguably ensure the adoption of measures quickly and effectively. Despite their relatively limited scope, they have been increasingly adopted among the plethora of measures of EU crisis decision-making. Against this background, this thesis analyses the role of delegated and implementing acts in the crisis management strategy of the EU. It focuses in particular on their implications on the democratic legitimacy of EU decision-making during crises, evaluating the potential trade-off between their controversial accountability against their democratic ground and procedural effectiveness. The general objective of this work is to evaluate the impact of delegated rulemaking on EU crisis management through the lens of democratic legitimacy – specifically, input, throughput, and output. The empirical contribution of this thesis is articulated by means of a comparative analysis of the most recent crises faced by the EU, namely the sovereign debt crisis, the so-called refugee crisis, the Covid-19 pandemic, and the consequences to the war in Ukraine. The data, also collected by means of semi-structured interviews with EU officials in Brussels, and overall findings suggest that delegated rulemaking is an effective tool of crisis management, but it is nevertheless subject to several limitations. Its democratic standing, however, does not fundamentally impinge on the already output-driven legitimacy of emergency politics. Future research could be aimed at further exploring the potential for integrating emergency ruling by decree in EU governance.