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Commission loyalty: A fiduciary approach to delegated and implementing acts

Tauschinsky, R.E.

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Citation for published version (APA):Tauschinsky, R. E. (2016). Commission loyalty: A fiduciary approach to delegated andimplementing acts.

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Commission Loyalty

A Fiduciary Approach to Delegated and

Implementing Acts

ACADEMISCH PROEFSCHRIFT

ter verkrijging van de graad van doctoraan de Universiteit van Amsterdamop gezag van de Rector Magnificus

prof. dr. ir. K.I.J. Maexten overstaan van een door het college voor promoties

ingestelde commissie,

in het openbaar te verdedigen in de Agnietenkapelop vrijdag 2 december 2016, te 10:00 uur

doorRuth Eljalill Tauschinsky

geboren te Heidelberg, Duitsland

Faculteit der Rechtsgeleerdheid

Promotiecomissie:Promotor: prof. dr. D.M. Curtin, Universiteit van AmsterdamCopromotor: dr. J.M. Mendes, Universiteit van Amsterdam

prof. dr. P.P. Craig, University of Oxfordprof. dr. H.C.H. Hofmann, University of Luxembourg

prof. dr. G.T. Davies, Free University Amsterdamprof. dr. M. de Wilde, University of Amsterdam

prof. dr. C. Mak, University of Amsterdamprof. dr. A.A.M. Schrauwen, University of Amsterdam

Contents

Table of EU Cases (Alphabetical) vii

Table of EU Cases (Chronological) xvii

Table of Common Law Cases xxvii

Table of Legislation (Chronological) xxix

1 Introduction 1

1.1 Setting the Scene 1

1.2 Introducing Delegated and Implementing Acts 5

1.2.1 The Content of Delegated and Implementing Acts 6

1.2.2 How Delegated and Implementing Acts are Adopted 9

1.3 Commission Discretion 13

1.4 The Commission and its ‘Subjects’ 17

1.5 Research Perspective 22

1.6 Outline 23

2 Trusting Discretion 29

2.1 The ‘Nature’ of Delegated and Implementing Acts 32

2.1.1 Delegation 34

2.1.2 Implementation 39

2.1.3 Administration 45

2.2 Exercise of Authority & Discretion 51

2.2.1 Freedom and Power 52

2.2.2 Conditions and Consequences 55

iii

Contents

2.2.3 The Importance of Trust 58

2.3 Summary 64

3 Fiduciary Discretion 67

3.1 What is ‘Fiduciary’? 70

3.1.1 A Description of the Term 70

3.1.2 ‘Fiduciary’ as a General Legal Notion 74

3.1.3 Public Fiduciary Law 76

3.2 The Role of the Fiduciary 83

3.3 Fiduciary Obligations? 89

3.3.1 The Obligation of Loyalty 89

3.3.2 Public Loyalty 93

3.4 Summary 96

4 Who is Who (and What) 97

4.1 Who is the Fiduciary? 100

4.1.1 Constructing the Fiduciary Commission 100

4.1.2 Delimiting the Fiduciary Role 105

4.2 Who is the Commission a Fiduciary to? 108

4.2.1 Description in the Treaties 113

4.2.2 Description in Mandating Legislation 126

4.2.3 Relation to Member States 131

4.3 What is the Object? 135

4.4 What are the Legal Consequences? 140

4.5 Summary 143

5 Manifesting Loyalty 145

5.1 Loyalty in EU Law 152

5.1.1 EU Loyalty and the Fiduciary Role of the Commission 152

5.1.2 Rules of Loyalty 158

5.1.3 Commission Loyalty 166

5.2 Primacy of the ‘Subject’s’ Interests 169

5.2.1 Disinterestedness 172

5.2.2 Accounting for Motives 181

5.3 Equal Deliberative Engagement 187

5.3.1 Fairness 190

5.3.2 Procedural Transparency 196

5.4 Summary 200

iv

Contents

6 A Loyal Commission 2036.1 Making the Commission Disinterested:

Accounting for Motives 2056.1.1 Accounting for Motives in EU law 2086.1.2 Accounting for Motives

in Delegated and Implementing Acts 2176.2 Making the Commission Fair: Procedural Transparency 221

6.2.1 Procedural Transparency in EU law 2236.2.2 Procedural Transparency

in Delegated and Implementing Acts 2316.3 Summary 235

7 Conclusion 2377.1 Explanation and Justification 2407.2 Trust and Trustworthiness 2437.3 Fiduciary Commission and Beneficiary Subjects 2467.4 Commission Loyalty 2507.5 Paradigms and Change 254

8 Summary 257

9 Samenvatting 263

10 Acknowledgments 269

Bibliography 271

v

Table of EU Cases(Alphabetical)

A Roquette Freres v Council of theEuropean Communities(138/79) [1980] ECR 03333(ECLI:EU:C:1980:249) . . .226

Acciaierie di Bolzano SpA vCommission of theEuropean Communities(T-158/96) [1999] ECR II–3927(ECLI:EU:T:1999:335) . . .224

Alexandre Achughbabian v Prefetdu Val-de-Marne(C-329/11) [2011] ECR I–12695(ECLI:EU:C:2011:807) . . .159

An Bord Bainne Co-Operative vMinister for Agriculture(92/77) [1978] ECR 00497(ECLI:EU:C:1978:36) 230

Andrea Francovich and DanilaBonifaci and others vItalian Republic (C-6/90and C-9/90) [1991] ECR I–

05357(ECLI:EU:C:1991:428) . . .117, 118, 157

Association internationale desutilisateurs de fils defilaments artificiels etsynthetiques et de soienaturelle (AIUFFASS) andApparel, Knitting &Textiles Alliance (AKT) vCommission of theEuropean Communities(T-380/94) [1996] ECR II–02169(ECLI:EU:T:1996:195) . . .142

AstraZeneca AB and AstraZenecaplc v EuropeanCommission (C-457/10 P)(2012) electronic reports ofcases: Court reports –general(ECLI:EU:C:2012:770) . . .225

Atlanta AG and others vCommission of the

vii

TABLE OF EU CASES (ALPHABETICAL)

European Communitiesand Council of theEuropean Union (C-104/97P) [1999] ECR I–6983(ECLI:EU:C:1999:498) . . .192

Atlanta AG, AtlantaHandelsgesellschaft Harder& Co GmbH, AfrikanischeFrucht-Compagnie GmbH,Cobana Bananeneinkaufs-gesellschaft mbH & CoKG, Edeka FruchtkontorGmbH, InternationalFruchtimport GesellschaftWeichert & Co and PacificFruchtkontor GmbH vCouncil of the EuropeanUnion and Commission ofthe EuropeanCommunities (T-521/93)[1996] ECR II–1707(ECLI:EU:T:1996:184) . . .192

Austria v Commission (ApplicationT-356/15) [2015] OJC337/14 . . . . . . . . . . . . . 137

Berlington Hungary Tanacsado esSzolgaltato kft and othersv Magyar Allam(Hungarian State)(C-98/14) (2015) electronicreports of cases: Courtreports – general(ECLI:EU:C:2015:386) . . .179

Chalkor AE Epexergasias Metallonv European Commission(C-386/10 P) [2011] ECRI–13085

(ECLI:EU:C:2011:815) . . .225

Commission of the EuropeanCommunities v ChambreSyndicale Nationale desEntreprises de Transportde Fonds etValeurs(Sytraval) andBrink’s France SARL(C-367/95 P) [1998] ECRI–1752(ECLI:EU:C:1998:154) . . .192

Commission of the EuropeanCommunities v FederalRepublic of Germany(C-195/90) [1990] ECR I–3175(ECLI:EU:C:1992:219) . . .158

Commission of the EuropeanCommunities v ImperialChemical Industries plc(ICI) (C-286/95 P) [2000]ECR I–02341(ECLI:EU:C:2000:188) . . .226

Commission of the EuropeanCommunities v ItalianRepublic (C-101/91)[1993] ECR I–00191(ECLI:EU:C:1993:16) 153

Commission of the EuropeanCommunities v Jego-Quere& Cie SA (C-263/02)[2004] ECR I–03425(ECLI:EU:C:2004:210) . . .158

Commission of the EuropeanCommunities v Kingdomof Belgium (52/84) [1986]ECR 100

viii


(ECLI:EU:C:1986:3) . 166Commission of the European

Communities v Kingdomof Denmark (C-392/02)[2005] ECR I–9842(ECLI:EU:C:2005:683) . . .158, 181, 193

Commission of the EuropeanCommunities v Republicof Ireland (C-459/03)[2006] ECR I–04635(ECLI:EU:C:2006:345) . . .159, 165

Conseil national de l’ordre desarchitectes v NicolasDreessen (C-31/00) [2002]ECR I–00663(ECLI:EU:C:2002:35) 165

Council of the European Union vEuropean Commission(C-409/13) (2015)electronic reports of cases:Court reports – general(ECLI:EU:C:2015:217) . . .107

Council of the European Union vEuropean Commission(C-73/14) (2015) electronicreports of cases: Courtreports – general(ECLI:EU:C:2015:663) . . .251

Council of the European Union vSophie in ’t Veld(C-350/12 P) electronicreports of cases: Courtreports – general(ECLI:EU:C:2014:2039) . .178

Courage Ltd v Bernard Crehan andBernard Crehan v CourageLtd and Others (C-453/99)

[2001] ECR I–06297(ECLI:EU:C:2001:465) . . .118

Criminal proceedings againstAntoine Kortas (C-319/97)[1999] ECR I–3160(ECLI:EU:C:1999:272) . . .160, 163

Criminal proceedings against GavrilCovaci (C-216/14) (2015)electronic reports of cases:Court reports – general(ECLI:EU:C:2015:686) . . .224

Criminal proceedings against MariaAmelia Nunes andEvangelina de Matos(C-186/98) [1999] ECR I–04883(ECLI:EU:C:1999:376) . . .166

Daniele Possanzini v EuropeanAgency for theManagement ofOperational Cooperationat the External Borders ofthe Member States of theEuropean Union (Frontex)(F-124/11) (2013) Reportsof Staff Cases: CivilService Tribunal(ECLI:EU:F:2013:137) 224

Detlef Nolle, trading as “EugenNolle” v HauptzollamtBremen-Freihafen(C-16/90) [1991] ECR I–05163(ECLI:EU:C:1991:402) . . .229

DEUKA v Einfuhr- undVorratsstelle Getreide

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(5/75) (ECJ, 28 May 1975)129

Digibet Ltd and Gert Albers vWestdeutsche LotterieGmbH & Co OHG(C-156/13) (2014)electronic reports of cases:Court reports – general(ECLI:EU:C:2014:1756) . .179

Elodie Giersch and Others v Etatdu Grand-Duche deLuxembourg (C-20/12)(2013) electronic reports ofcases: Court reports –general(ECLI:EU:C:2013:411) . . .136

European Commission v Council ofthe European Union(C-425/13) (2015)electronic reports of cases:Court reports – general(ECLI:EU:C:2015:483) . . .251

European Commission v EuropeanParliament and Council ofthe European Union(C-427/12) (2014) not yetpublished: Court reports –general(ECLI:EU:C:2014:170) . 6,29

European Commission v EuropeanParliament and Council ofthe European Union(C-88/14) (2015) electronicreports of cases: Courtreports – general(ECLI:EU:C:2015:499) . 6

European Commission v Moravia

Gas Storage as (C-596/13P) (2015) electronicreports of cases: Courtreports – general(ECLI:EU:C:2015:203) . . .229

European Parliament v Council ofthe European Union(C-21/94) [1995] ECR I–01827(ECLI:EU:C:1995:220) . . .226

European Parliament v Council ofthe European Union(Europol) (C-363/14)(2015) electronic reports ofcases: Court reports –general(ECLI:EU:C:2015:579) . . .7–9, 137, 138

European Parliament v Council ofthe European Union(Schengen Border Code)(C-355/10) [2012]electronic reports of cases(ECLI:EU:C:2012:207,Opinion of AG Mengozzi)7, 38, 138

European Parliament v Council ofthe European Union(Schengen Border Code)(C-355/10) (2012)electronic reports of cases:Court reports – general(ECLI:EU:C:2012:516) . 7,8, 137, 138

European Parliament v EuropeanCommission (C-65/13)(2014) electronic reports ofcases: Court reports –general(ECLI:EU:C:2014:2289) 6

x


Federation Charbonniere deBelgique v High Authorityof the European Coal andSteel Community (8/55)[1955] ECR 00291(ECLI:EU:C:1956:11) 142

Federal Republic of Germany vCommission of theEuropean Communities(C-344/01) [2004] ECR I–02081(ECLI:EU:C:2004:121) . . .141

Federal Republic of Germany vCommission of theEuropean EconomicCommunity (24/62) [1963]ECR 131(ECLI:EU:C:1963:14) 210

Federal Republic of Germany vCouncil of the EuropeanUnion (C-280/93) [1994]ECR I–5039 . . . . . . . . . 178

Federal Republic of Germany vCouncil of the EuropeanUnion (C-359/92) [1994]ECR I–03681(ECLI:EU:C:1994:306) . 8

Federal Republic of Germany vEuropean Parliament andCouncil of the EuropeanUnion (C-376/98) [2000]ECR I–08419(ECLI:EU:C:2000:544) . . .136

FEDIOL v Commission of theEuropean Communities(191/82) [1983] ECR 02913(ECLI:EU:C:1983:259) . . .194

Franco Giuffrida v Council of theEuropean Communities

(105/75) [1976] ECR 1405(Opinion of AG Warner,ECLI:EU:C:1976:109) 209

Franco Giuffrida v Council of theEuropean Communities(105/75) [1976] ECR 01395(ECLI:EU:C:1976:128) . . .209

French Republic v Commission ofthe EuropeanCommunities (C-301/87)[1990] ECR I–351(ECLI:EU:C:1990:67) 195

French Republic v EuropeanParliament (Joined Cases358/85 and 51/86) [1988]ECR 4846(ECLI:EU:C:1988:431) . . .154, 155, 164

French Republic v High Authorityof the European Coal andSteel Community (1/54)[1954] ECR 7(ECLI:EU:C:1954:7) . 210

Grand Duchy of Luxembourg vEuropean Parliament(230/81) [1983] ECR 258(ECLI:EU:C:1983:32) 154

Greenpeace Energy and Others vCommission (ApplicationT-382/15) [2015] OJC337/22 . . . . . . . . . . . . . 137

Hungary v European Commission(T-320/11) (2012)electronic reports of cases:Court reports – general(ECLI:EU:T:2012:705) . . .165

Inspecteur van de Belastingdienst vX BV (C-429/07) [2009]

xi


ECR I–04833(ECLI:EU:C:2009:359) . . .166

Inuit Tapiriit Kanatami and othersv European Parliamentand Council of theEuropean Union (OrderT-18/10) [2011] ECR II–05599(ECLI:EU:T:2011:419) 21,127

J J Zwartveld and Others (1)(C-2/88 Imm) [1990] ECRI–3367(ECLI:EU:C:1990:315) . . .161, 162

Jean-E Humblet v Belgian State(6/60) [1960] ECR 01125(ECLI:EU:C:1960:48) 157

Kuhne & Heitz NV v Produktschapvoor Pluimvee en Eieren(C-453/00) [2004] ECR I–00837(ECLI:EU:C:2004:17) 158

Kingdom of Spain v EuropeanCommission (T-402/06)[2013] electronic Reportsof Cases(ECLI:EU:T:2013:445) . . .225

Kingdom of Spain v EuropeanParliament and Council ofthe European Union(C-146/13) (2015)electronic reports of cases:Court reports – general(ECLI:EU:C:2015:298) . . .142, 208

Kingdom of Sweden v EuropeanCommission (T-521/14)

(2015) electronic reports ofcases: not yet published(ECLI:EU:T:2015:976) 37

Kingdom of the Netherlands vCommission of theEuropean Communities(C-405/07 P) [2008] ECRI–08301(ECLI:EU:C:2008:613) . . .228

Koninklijke Scholten-Honig NV andDe VerenigdeZetmeelbedrijven ”DeBijenkorf” BV vHoofdproduktschap voorAkkerbouwprodukten(125/77) [1978] ECR 01991(ECLI:EU:C:1978:187) . . .230

Kreis Warendorf v Ibrahim Alo andAmira Osso v and RegionHannover (C-443/14)(2016) electronic reports ofcases: Court reports –general(ECLI:EU:C:2016:127) . . .110

Laboratoires pharmaceutiquesBergaderm SA andJean-Jacques Goupil vCommission of theEuropean Communities(C-352/98 P) [2000] ECRI–5291(ECLI:EU:C:2000:361) . . .192

Laboratoires pharmaceutiquesBergaderm SA andJean-Jacques Goupil vCommission of theEuropean Communities

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(T-199/96) [1998] ECR II–2805(ECLI:EU:T:1998:176) . . .192

Landtag Schleswig-Holstein vCommission of theEuropean Communities(C-281/08 P) [2009] ECRI–00199(ECLI:EU:C:2009:728) . . .162

Landtag Schleswig-Holstein vCommission of theEuropean Communities(T-236/06) [2008] ECR II–00462(ECLI:EU:T:2008:91) 162

Meroni & Co v High Authority ofthe European Coal andSteel Community (9/56)[1958] ECR English specialedition–133(ECLI:EU:C:1958:7) 8, 37

Microban International Ltd andothers v EuropeanCommission (T-262/10)[2011] ECR II–7702 . . . 21

Miranda Mirossevich v HighAuthority of the EuropeanCoal and Steel Community(10/55) [1955] ECR 00365(ECLI:EU:C:1956:14) 142

Nordspedizionieri di Danielis Livio& C Snc, Livio Danielisand DomenicoD’Alessandro vCommission of theEuropean Communities(C-62/05 P) [2007] ECR I–08647

(ECLI:EU:C:2007:607) . . .225

NV Algemene Transport- enExpeditie Ondernemingvan Gend & Loos vNederlandse Administrieder Belastingen (26/62)[1963] ECR English specialedition–(ECLI:EU:C:1963:1) . . 98,116, 122

Orange Polska SA v EuropeanCommission (T-486/11)(2015) electronic reports ofcases: Court reports –general(ECLI:EU:T:2015:1002) . .224

Peter Gauweiler and Others vDeutscher Bundestag(C-62/14) (2015) electronicreports of cases: Courtreports – general(ECLI:EU:C:2015:400) . . .229

Portuguese Republic and Kingdomof Spain v Council of theEuropean Communities(Joined Cases C-63/90 andC-67/90) [1992] ECR I–5142(ECLI:EU:C:1992:381) . . .163

Raymond Kohll v Union des caissesde maladie (C-158/96)[1998] ECR I–1931(ECLI:EU:C:1998:171) . . .136

Rewe-Zentral AG v Bun-desmonopolverwaltung fur

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Branntwein (120/78)[1979] ECR 00649(ECLI:EU:C:1979:42) 178

Richard Dahms GmbH vFrankischerWeinbauverband eV(C-379/04) [2005] ECR I–8725(ECLI:EU:C:2005:609) . . .192

Roquette Freres SA (C-94/00)[2002] ECR I–9011(ECLI:EU:C:2002:603) . . .162

SAG ELV Slovensko as and Othersv Urad pre verejneobstaravanie (C-599/10)(2012) electronic reports ofcases: Court reports –general(ECLI:EU:C:2012:191) . . .224

Societe francaise des BiscuitsDelacre ea v Commissionof the EuropeanCommunities (C-350/88)[1990] ECR I–00395(ECLI:EU:C:1990:71) 230

SpA Ferriera Valsabbia and others vCommission of theEuropean Communities(154/78) [1980] ECR 00907(ECLI:EU:C:1980:81) 142

Stergios Delimitis v Henninger BrauAG (C-234/89) [1991]ECR I–977(ECLI:EU:C:1991:91) 162

Stichting ter Exploitatie vanNaburige Rechten (SENA)v Nederlandse OmroepStichting (NOS)

(C-245/00) [2002] ECR I–1253 (Opinion of AGTizzano) . . . . . . . . 196, 223

Technische Universitat Munchen vHauptzollamtMunchen-Mitte (C-269/90)[1991] ECR I–05469(ECLI:EU:C:1991:438) . . .229

The Queen v Secretary of State forTransport, ex parte:Factortame Ltd and others(C-213/89) [1990] ECR I–02433(ECLI:EU:C:1990:257) . . .157

Union des associations europeennesde football (UEFA) vEuropean Commission(C-201/11 P) (2013)electronic reports of cases:Court reports – general(ECLI:EU:C:2013:519) . . .230

Union nationale des entraıneurs etcadres techniquesprofessionnels du football(Unectef) v GeorgesHeylens and others(C-222/86) [1987] ECR4097(ECLI:EU:C:1987:442) . . .186

United Kingdom of Great Britainand Northern Ireland vEuropean Parliament andCouncil of the EuropeanUnion (C-270/12) (2013)electronic reports of cases:Court reports – general(ECLI:EU:C:2014:18) 8, 9

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UPC Nederland BV v GemeenteHilversum (C-518/11)(2013) electronic reports ofcases: Court reports –general(ECLI:EU:C:2013:709) . . .159

Ursula Becker v FinanzamtMunster-Innenstadt (8/81)[1982] ECR 00053(ECLI:EU:C:1982:7) . 117

Volvo Car Germany GmbH vAutohof WeidensdorfGmbH (C-203/09) [2010]ECR I–10721

(ECLI:EU:C:2010:647) . . .225

Vorarlberger Gebietskrankenkasseand Alfred Knauer vLandeshauptmann vonVorarlberg and RudolfMathis (C-453/14) (2016)electronic reports of cases:Court reports – general(ECLI:EU:C:2016:37) 136

Yvonne van Duyn v Home Office(41/74) [1974] ECR(ECLI:EU:C:1974:133) . . .117

xv

Table of EU Cases(Chronological)

1/54 French Republic v HighAuthority of the EuropeanCoal and Steel Community[1954] ECR 7(ECLI:EU:C:1954:7) . 210

8/55 Federation Charbonniere deBelgique v High Authorityof the European Coal andSteel Community [1955]ECR 00291(ECLI:EU:C:1956:11) 142

10/55 Miranda Mirossevich v HighAuthority of the EuropeanCoal and Steel Community[1955] ECR 00365(ECLI:EU:C:1956:14) 142

9/56 Meroni & Co v HighAuthority of the EuropeanCoal and Steel Community[1958] ECR English specialedition–133(ECLI:EU:C:1958:7) 8, 37

6/60 Jean-E Humblet v BelgianState [1960] ECR 01125(ECLI:EU:C:1960:48) 157

24/62 Federal Republic of Germany

v Commission of theEuropean EconomicCommunity [1963] ECR131 (ECLI:EU:C:1963:14)210

26/62 NV Algemene Transport- enExpeditie Ondernemingvan Gend & Loos vNederlandse Administrieder Belastingen [1963]ECR English specialedition–(ECLI:EU:C:1963:1) . . 98,116, 122

41/74 Yvonne van Duyn v HomeOffice [1974] ECR(ECLI:EU:C:1974:133) . . .117

5/75 DEUKA v Einfuhr- undVorratsstelle Getreide(ECJ, 28 May 1975) . 129

105/75 Franco Giuffrida v Councilof the EuropeanCommunities [1976] ECR1405 (Opinion of AGWarner,

xvii

TABLE OF EU CASES (CHRONOLOGICAL)

ECLI:EU:C:1976:109) 209105/75 Franco Giuffrida v Council

of the EuropeanCommunities [1976] ECR01395(ECLI:EU:C:1976:128) . . .209

92/77 An Bord BainneCo-Operative v Ministerfor Agriculture [1978] ECR00497(ECLI:EU:C:1978:36) 230

125/77 Koninklijke Scholten-HonigNV and De VerenigdeZetmeelbedrijven ”DeBijenkorf” BV vHoofdproduktschap voorAkkerbouwprodukten[1978] ECR 01991(ECLI:EU:C:1978:187) . . .230

120/78 Rewe-Zentral AG v Bun-desmonopolverwaltung furBranntwein [1979] ECR00649(ECLI:EU:C:1979:42) 178

154/78 SpA Ferriera Valsabbia andothers v Commission ofthe EuropeanCommunities [1980] ECR00907(ECLI:EU:C:1980:81) 142

138/79 A Roquette Freres vCouncil of the EuropeanCommunities [1980] ECR03333(ECLI:EU:C:1980:249) . . .226

8/81 Ursula Becker v FinanzamtMunster-Innenstadt [1982]ECR 00053(ECLI:EU:C:1982:7) . 117

230/81 Grand Duchy ofLuxembourg v EuropeanParliament [1983] ECR258 (ECLI:EU:C:1983:32)154

191/82 FEDIOL v Commission ofthe EuropeanCommunities [1983] ECR02913(ECLI:EU:C:1983:259) . . .194

52/84 Commission of the EuropeanCommunities v Kingdomof Belgium [1986] ECR 100(ECLI:EU:C:1986:3) . 166

358/85 and 51/86 French Republicv European Parliament[1988] ECR 4846(ECLI:EU:C:1988:431) . . .154, 155, 164

C-222/86 Union nationale desentraıneurs et cadrestechniques professionnelsdu football (Unectef) vGeorges Heylens andothers [1987] ECR 4097(ECLI:EU:C:1987:442) . . .186

C-301/87 French Republic vCommission of theEuropean Communities[1990] ECR I–351(ECLI:EU:C:1990:67) 195

C-2/88 Imm J J Zwartveld andOthers (1) [1990] ECR I–3367(ECLI:EU:C:1990:315) . . .161, 162

C-350/88 Societe francaise desBiscuits Delacre ea vCommission of theEuropean Communities

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[1990] ECR I–00395(ECLI:EU:C:1990:71) 230

C-213/89 The Queen v Secretary ofState for Transport, exparte: Factortame Ltd andothers [1990] ECR I–02433(ECLI:EU:C:1990:257) . . .157

C-234/89 Stergios Delimitis vHenninger Brau AG [1991]ECR I–977(ECLI:EU:C:1991:91) 162

C-6/90 and C-9/90 AndreaFrancovich and DanilaBonifaci and others vItalian Republic [1991]ECR I–05357(ECLI:EU:C:1991:428) . . .117, 118, 157

C-16/90 Detlef Nolle, trading as“Eugen Nolle” vHauptzollamtBremen-Freihafen [1991]ECR I–05163(ECLI:EU:C:1991:402) . . .229

C-63/90 and C-67/90 PortugueseRepublic and Kingdom ofSpain v Council of theEuropean Communities[1992] ECR I–5142(ECLI:EU:C:1992:381) . . .163

C-195/90 Commission of theEuropean Communities vFederal Republic ofGermany [1990] ECR I–3175(ECLI:EU:C:1992:219) . . .158

C-269/90 Technische UniversitatMunchen v Hauptzollamt

Munchen-Mitte [1991]ECR I–05469(ECLI:EU:C:1991:438) . . .229

C-101/91 Commission of theEuropean Communities vItalian Republic [1993]ECR I–00191(ECLI:EU:C:1993:16) 153

C-359/92 Federal Republic ofGermany v Council of theEuropean Union [1994]ECR I–03681(ECLI:EU:C:1994:306) . 8

C-280/93 Federal Republic ofGermany v Council of theEuropean Union [1994]ECR I–5039 . . . . . . . . . 178

T-521/93 Atlanta AG, AtlantaHandelsgesellschaft Harder& Co GmbH, AfrikanischeFrucht-Compagnie GmbH,Cobana Bananeneinkaufs-gesellschaft mbH & CoKG, Edeka FruchtkontorGmbH, InternationalFruchtimport GesellschaftWeichert & Co and PacificFruchtkontor GmbH vCouncil of the EuropeanUnion and Commission ofthe EuropeanCommunities [1996] ECRII–1707(ECLI:EU:T:1996:184) . . .192

C-21/94 European Parliament vCouncil of the EuropeanUnion [1995] ECR I–01827(ECLI:EU:C:1995:220) . . .226

T-380/94 Association

xix


internationale desutilisateurs de fils defilaments artificiels etsynthetiques et de soienaturelle (AIUFFASS) andApparel, Knitting &Textiles Alliance (AKT) vCommission of theEuropean Communities[1996] ECR II–02169(ECLI:EU:T:1996:195) . . .142

C-286/95 P Commission of theEuropean Communities vImperial ChemicalIndustries plc (ICI) [2000]ECR I–02341(ECLI:EU:C:2000:188) . . .226

C-367/95 P Commission of theEuropean Communities vChambre SyndicaleNationale des Entreprisesde Transport de Fonds etValeurs(Sytraval) andBrink’s France SARL[1998] ECR I–1752(ECLI:EU:C:1998:154) . . .192

C-158/96 Raymond Kohll v Uniondes caisses de maladie[1998] ECR I–1931(ECLI:EU:C:1998:171) . . .136

T-158/96 Acciaierie di BolzanoSpA v Commission of theEuropean Communities[1999] ECR II–3927(ECLI:EU:T:1999:335) . . .224

T-199/96 Laboratoirespharmaceutiques

Bergaderm SA andJean-Jacques Goupil vCommission of theEuropean Communities[1998] ECR II–2805(ECLI:EU:T:1998:176) . . .192

C-104/97 P Atlanta AG and othersv Commission of theEuropean Communitiesand Council of theEuropean Union [1999]ECR I–6983(ECLI:EU:C:1999:498) . . .192

C-319/97 Criminal proceedingsagainst Antoine Kortas[1999] ECR I–3160(ECLI:EU:C:1999:272) . . .160, 163

C-186/98 Criminal proceedingsagainst Maria AmeliaNunes and Evangelina deMatos [1999] ECR I–04883(ECLI:EU:C:1999:376) . . .166

C-352/98 P LaboratoirespharmaceutiquesBergaderm SA andJean-Jacques Goupil vCommission of theEuropean Communities[2000] ECR I–5291(ECLI:EU:C:2000:361) . . .192

C-376/98 Federal Republic ofGermany v EuropeanParliament and Council ofthe European Union [2000]ECR I–08419(ECLI:EU:C:2000:544) . . .136

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C-453/99 Courage Ltd v BernardCrehan and BernardCrehan v Courage Ltd andOthers [2001] ECR I–06297(ECLI:EU:C:2001:465) . . .118

C-31/00 Conseil national de l’ordredes architectes v NicolasDreessen [2002] ECR I–00663(ECLI:EU:C:2002:35) 165

C-94/00 Roquette Freres SA [2002]ECR I–9011(ECLI:EU:C:2002:603) . . .162

C-245/00 Stichting ter Exploitatievan Naburige Rechten(SENA) v NederlandseOmroep Stichting (NOS)[2002] ECR I–1253(Opinion of AG Tizzano)196, 223

C-453/00 Kuhne & Heitz NV vProduktschap voorPluimvee en Eieren [2004]ECR I–00837(ECLI:EU:C:2004:17) 158

C-344/01 Federal Republic ofGermany v Commission ofthe EuropeanCommunities [2004] ECRI–02081(ECLI:EU:C:2004:121) . . .141

C-263/02 Commission of theEuropean Communities vJego-Quere & Cie SA[2004] ECR I–03425(ECLI:EU:C:2004:210) . . .158

C-392/02 Commission of the

European Communities vKingdom of Denmark[2005] ECR I–9842(ECLI:EU:C:2005:683) . . .158, 181, 193

C-459/03 Commission of theEuropean Communities vRepublic of Ireland [2006]ECR I–04635(ECLI:EU:C:2006:345) . . .159, 165

C-379/04 Richard Dahms GmbH vFrankischerWeinbauverband eV [2005]ECR I–8725(ECLI:EU:C:2005:609) . . .192

C-62/05 P Nordspedizionieri diDanielis Livio & C Snc,Livio Danielis andDomenico D’Alessandro vCommission of theEuropean Communities[2007] ECR I–08647(ECLI:EU:C:2007:607) . . .225

T-236/06 LandtagSchleswig-Holstein vCommission of theEuropean Communities[2008] ECR II–00462(ECLI:EU:T:2008:91) 162

T-402/06 Kingdom of Spain vEuropean Commission[2013] electronic Reportsof Cases(ECLI:EU:T:2013:445) . . .225

C-405/07 P Kingdom of theNetherlands v Commissionof the EuropeanCommunities [2008] ECR

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I–08301(ECLI:EU:C:2008:613) . . .228

C-429/07 Inspecteur van deBelastingdienst v X BV[2009] ECR I–04833(ECLI:EU:C:2009:359) . . .166

C-281/08 P LandtagSchleswig-Holstein vCommission of theEuropean Communities[2009] ECR I–00199(ECLI:EU:C:2009:728) . . .162

C-203/09 Volvo Car GermanyGmbH v AutohofWeidensdorf GmbH [2010]ECR I–10721(ECLI:EU:C:2010:647) . . .225

T-18/10 Inuit Tapiriit Kanatamiand others v EuropeanParliament and Council ofthe European Union [2011]ECR II–05599(ECLI:EU:T:2011:419) 21,127

T-262/10 Microban InternationalLtd and others vEuropean Commission[2011] ECR II–7702 . . . 21

C-355/10 European Parliament vCouncil of the EuropeanUnion (Schengen BorderCode) [2012] electronicreports of cases(ECLI:EU:C:2012:207,Opinion of AG Mengozzi)7, 38, 138

C-355/10 European Parliament vCouncil of the European

Union (Schengen BorderCode) (2012) electronicreports of cases: Courtreports – general(ECLI:EU:C:2012:516) . 7,8, 137, 138

C-386/10 P Chalkor AEEpexergasias Metallon vEuropean Commission[2011] ECR I–13085(ECLI:EU:C:2011:815) . . .225

C-457/10 P AstraZeneca AB andAstraZeneca plc vEuropean Commission(2012) electronic reports ofcases: Court reports –general(ECLI:EU:C:2012:770) . . .225

C-599/10 SAG ELV Slovensko asand Others v Urad preverejne obstaravanie (2012)electronic reports of cases:Court reports – general(ECLI:EU:C:2012:191) . . .224

F-124/11 Daniele Possanzini vEuropean Agency for theManagement ofOperational Cooperationat the External Borders ofthe Member States of theEuropean Union (Frontex)(2013) Reports of StaffCases: Civil ServiceTribunal(ECLI:EU:F:2013:137) 224

C-201/11 P Union des associationseuropeennes de football(UEFA) v EuropeanCommission (2013)

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electronic reports of cases:Court reports – general(ECLI:EU:C:2013:519) . . .230

T-320/11 Hungary v EuropeanCommission (2012)electronic reports of cases:Court reports – general(ECLI:EU:T:2012:705) . . .165

C-329/11 Alexandre Achughbabianv Prefet du Val-de-Marne[2011] ECR I–12695(ECLI:EU:C:2011:807) . . .159

T-486/11 Orange Polska SA vEuropean Commission(2015) electronic reports ofcases: Court reports –general(ECLI:EU:T:2015:1002) . .224

C-518/11 UPC Nederland BV vGemeente Hilversum(2013) electronic reports ofcases: Court reports –general(ECLI:EU:C:2013:709) . . .159

C-20/12 Elodie Giersch and Othersv Etat du Grand-Duche deLuxembourg (2013)electronic reports of cases:Court reports – general(ECLI:EU:C:2013:411) . . .136

C-270/12 United Kingdom of GreatBritain and NorthernIreland v EuropeanParliament and Council ofthe European Union (2013)electronic reports of cases:

Court reports – general(ECLI:EU:C:2014:18) 8, 9

C-350/12 P Council of theEuropean Union v Sophiein ’t Veld electronicreports of cases: Courtreports – general(ECLI:EU:C:2014:2039) . .178

C-427/12 European Commission vEuropean Parliament andCouncil of the EuropeanUnion (2014) not yetpublished: Court reports –general(ECLI:EU:C:2014:170) . 6,29

C-65/13 European Parliament vEuropean Commission(2014) electronic reports ofcases: Court reports –general(ECLI:EU:C:2014:2289) 6

C-146/13 Kingdom of Spain vEuropean Parliament andCouncil of the EuropeanUnion (2015) electronicreports of cases: Courtreports – general(ECLI:EU:C:2015:298) . . .142, 208

C-156/13 Digibet Ltd and GertAlbers v WestdeutscheLotterie GmbH & CoOHG (2014) electronicreports of cases: Courtreports – general(ECLI:EU:C:2014:1756) . .179

C-409/13 Council of the EuropeanUnion v EuropeanCommission (2015)

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electronic reports of cases:Court reports – general(ECLI:EU:C:2015:217) . . .107

C-425/13 European Commission vCouncil of the EuropeanUnion (2015) electronicreports of cases: Courtreports – general(ECLI:EU:C:2015:483) . . .251

C-596/13 P European Commissionv Moravia Gas Storage as(2015) electronic reports ofcases: Court reports –general(ECLI:EU:C:2015:203) . . .229

C-62/14 Peter Gauweiler andOthers v DeutscherBundestag (2015)electronic reports of cases:Court reports – general(ECLI:EU:C:2015:400) . . .229

C-73/14 Council of the EuropeanUnion v EuropeanCommission (2015)electronic reports of cases:Court reports – general(ECLI:EU:C:2015:663) . . .251

C-88/14 European Commission vEuropean Parliament andCouncil of the EuropeanUnion (2015) electronicreports of cases: Courtreports – general(ECLI:EU:C:2015:499) . 6

C-98/14 Berlington HungaryTanacsado es Szolgaltatokft and others v Magyar

Allam (Hungarian State)(2015) electronic reports ofcases: Court reports –general(ECLI:EU:C:2015:386) . . .179

C-216/14 Criminal proceedingsagainst Gavril Covaci(2015) electronic reports ofcases: Court reports –general(ECLI:EU:C:2015:686) . . .224

C-363/14 European Parliament vCouncil of the EuropeanUnion (Europol) (2015)electronic reports of cases:Court reports – general(ECLI:EU:C:2015:579) . . .7–9, 137, 138

C-443/14 Kreis Warendorf vIbrahim Alo and AmiraOsso v and RegionHannover (2016) electronicreports of cases: Courtreports – general(ECLI:EU:C:2016:127) . . .110

C-453/14 VorarlbergerGebietskrankenkasse andAlfred Knauer vLandeshauptmann vonVorarlberg and RudolfMathis (2016) electronicreports of cases: Courtreports – general(ECLI:EU:C:2016:37) 136

T-521/14 Kingdom of Sweden vEuropean Commission(2015) electronic reports ofcases: not yet published(ECLI:EU:T:2015:976) 37

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T-356/15 Austria v Commission[2015] OJ C337/14 . . 137

T-382/15 Greenpeace Energy and

Others v Commission[2015] OJ C337/22 . . 137

xxv

Table of Common LawCases

Armitage v Nurse [1998] Ch 241 90,135

Australian Securities andInvestments Commission vCitigroup Global MarketsAustralia Pty Limited[2007] FCA 963 . . . . . . . 90

Beloved Wilke’s Charity, Re [1851]EWHC Ch J52, (1851) 42ER . . . . . . . . . . . . . 194, 195

Boardman and another v Phipps[1966] UKHL 2 . . . . . . 181

Breen v Williams (1996) 186 CLR71 . . . . . . . . . . . . . . 135, 175

Bristol and West Building Society vMothew (CA) [1998] Ch 184, 90, 98, 103

Bromley London Borough Council vGreater London Counciland another [1983] AC 76878, 88

Citibank NA v MBIA Assurance SA[2006] EWHC 3215 . . . 87,135

Edge v Pensions Ombudsman [2000]Ch 602 . . . . . . . . . . 85, 195

Gisborne v Gisborne (1877) II AC195

Guerin v The Queen (1984) 2 SCR335 . . . . . . . . . . . . . . . . . . . 79

Hastings-Bass (deceased), Re,Hastings and Others vInland RevenueCommissioners [1975] Ch25 . . . . . . . . . . . . . . 147, 227

Hospital Products Ltd v UnitedStates Surgical Corp(1984) 156 CLR 41 . . . 85,135, 175

James, Ex parte [32 ER 385], (1803)8 Vesoy Junior . . . . . . 141

Keech v Sandford [1726] EWHC ChJ76 . . . . . . . . . . . . . . . . . . 170

KM v HM (1992) 3 SCR 6 72, 140

Laura Norberg v Morris Wynrib[1992] CanLII(http://canlii.ca/t/1fs90

xxvii

TABLE OF COMMON LAW CASES

retrieved on 2015-11-26) .85, 88, 103

Lloyds Bank plc v Duker and others[1986] S.N. 3857, (1987) 1WLR . . . . . . . . . . . . . . . . 195

Meinhard v Salmon et al 249 NY458 (1928) . . . . . . . . . . . 140

Nestle v National Westminster plc(1) [1988], [2000] WTLR .194

Nestle v National Westminster plc(2) [1992] EWCA Civ 12,(1993) 1 WLR . . . . . . . 195

Paterson v Bowes (1853) 4 Gr 17072

Prescott v Birmingham Corporation1953 P. 7398, (1955) 1 Ch210 . . . . . . . . . . . . . . . 78, 88

Reading v Attorney General [1951]UKHL 1 . . . . . . . . . . . . . . 92

Rex v Roberts ex parte Scurr andothers (1924) 2 KB 659 78

Richard Hugh Frame v EleanorMargaret Smith and

Johnston Smith (1987) 2SCR 99 . . . . . . . 77, 85, 98

Roberts v Hopwood and others[1925] AC 578 . . . . . . . . 78

Ronald Edward Sparrow v TheQueen (1990) 1 SCR 107579

Roncarelli v Duplessis [1959] SCR121 . . . . . . . . . . . . . . . . . . . 55

Securities and ExchangeCommission v CheneryCorporation 318 US 80(1943) . . . . . . . . . . . 89, 146

Simon John Evelyn Boscawen & orsv Narip Deep Singh Bajwa& anr and Abbey Nationalplc v Simon John EvelynBoscawen & ors [1995]EWCA Civ 15 . . . . . . . . 72

Tate v Williamson [1886] LR 2 ChApp . . . . . . . . . . . . . . . . . 105

Tsartlip Indian Band v Canada(Minister of Indian Affairsand NorthernDevelopment) (2000) 2 FC170

xxviii

Table of Legislation(Chronological)

Council Regulation 1430/79 on therepayment or remission ofimport or export duties[1979] OJ L175/1

art 13 . . . . . . . . . . . . . . . . . . . . 225Council Directive 86/653/EEC on

the coordination of thelaws of the Member Statesrelating to self-employedcommercial agents [1986]OJ L382/17

art 17 . . . . . . . . . . . . . . . . . . . . 225

Directive 2016/97 on insurancedistribution (recast) [2016]OJ L26/19

preamble (67) . . . . . . . 232, 233

Regulation 1049/2001 regardingpublic access to EuropeanParliament, Council andCommission documentsOJ L145/43 . . . . 142, 180

Commission Regulation 692/2008implementing andamending Regulation (EC)

No 715/2007 of theEuropean Parliament andof the Council ontype-approval of motorvehicles with respect toemissions from lightpassenger and commercialvehicles (Euro 5 and Euro6) and on access to vehiclerepair and maintenanceinformation [2008] OJL199/1 . . . . . . . . . . . . . . . . 2

Commission Regulation 244/2009implementing Directive2005/32/EC of theEuropean Parliament andof the Council with regardto ecodesign requirementsfor non-directionalhousehold lamps [2009] OJL76/3 . . . . . . . . . . . . . . . . . 3

Regulation 1007/2009 on trade inseal products [2009] OJL286/36 . . . . . . . . . . . . . 127

art 3(1) . . . . . . . . . . . . . . . . . . . . 128

xxix

TABLE OF LEGISLATION (CHRONOLOGICAL)

Commission Decision 2010/138amending its Rules ofProcedure [2010] OJL55/60 . . . . . . . . . . . . . . 107

Delegated Regulation 1059/2010supplementing Directive2010/30/EU of theEuropean Parliament andof the Council with regardto energy labelling ofhousehold dishwashers[2010] OJ L314/1 . 2, 103

Commission Regulation 737/2010laying down detailed rulesfor the implementation ofRegulation (EC) No1007/2009 of the EuropeanParliament and of theCouncil on trade in sealproducts [2010] OJ L216/1128

art 3 . . . . . . . . . . . . . . . . . . . . . 128

Directive 2011/83 on consumerrights, amending CouncilDirective 93/13/EEC andDirective 1999/44/EC ofthe European Parliamentand of the Council andrepealing CouncilDirective 85/577/EEC andDirective 97/7/EC of theEuropean Parliament andof the Council [2011] OJL304/64 . . . . . . . . . . . . . 130

Regulation 182/2011 laying downthe rules and generalprinciples concerningmechanisms for control byMember States of theCommission’s exercise ofimplementing powers[2011] OJ L55/13 . . . . 213

art 2(1) . . . . . . . . . . . . . . . . . . . . . . 12

art 3 . . . . . . . . . . . . . . . . . . . . . . 14(4) . . . . . . . . . . . . . . . . . . . . 213

art 4 . . . . . . . . . . . . . . . . . . . . . . 12(1) . . . . . . . . . . . . . . . . . . . . . . 16(2) . . . . . . . . . . . . . . . . . . . . . . 15

art 5 . . . . . . . . . . . . . . . . . . 12, 16art 6 . . . . . . . . . . . . . . . . . . . . . . 12art 10 . . . . . . . . . . . . . . . . . . . . 115

(4) . . . . . . . . . . . . . . . . . . . . . . 12art 11 . . . . . . . . . . . . 12, 36, 115

Commission Directive 2012/25/EUlaying down informationprocedures for theexchange, betweenMember States, of humanorgans intended fortransplantation [2012] OJL275/27 . . . . 20, 132, 238

Implementing Regulation 29/2012on marketing standards forolive oil [2012] OJ L12/143

Delegated Regulation 205/2012amending Annex II toRegulation (EU) No510/2011 of the EuropeanParliament and of theCouncil with regard to thedata source and the dataparameters to be reportedby Member States [2012]OJ L72/2 . . . . . . . . . . . 132

Regulation 528/2012 concerning themaking available on themarket and use of biocidalproducts [2012] OJ L167/1213

Regulation 649/2012 concerning theexport and import ofhazardous chemicals [2012]

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OJ L201/60 . . . . . . . . . . 20

Delegated Decision 2012/678 oninvestigations and finesrelated to themanipulation of statisticsas referred to inRegulation (EU) No1173/2011 of the EuropeanParliament and of theCouncil on the effectiveenforcement of budgetarysurveillance in the euroarea [2012] OJ L306/21 . .132

Delegated Regulation 114/2013supplementing Regulation(EU) No 510/2011 of theEuropean Parliament andof the Council with regardto rules for the applicationfor a derogation from thespecific CO2 emissionstarget for new lightcommercial vehicles [2013]OJ L38/1 . . . . . . . . . 2, 213

Regulation 167/2013 on theapproval and marketsurveillance of agriculturaland forestry vehicles [2013]OJ L60/1 . . . . . . . . . . . . 231

art 69 . . . . . . . . . . . . . . . . . . . . 232

preamble (16) . . . . . . . . . . . . 233

Commission ImplementingRegulation 354/2013 onchanges of biocidalproducts authorised inaccordance withRegulation (EU) No528/2012 of the EuropeanParliament and of theCouncil [2013] OJ L109/441, 103, 213

Commission ImplementingRegulation 402/2013 onthe common safetymethod for risk evaluationand assessment andrepealing Regulation (EC)No 352/2009 [2013] OJL121/8 . . . . . . . . . . . . . . . . 3

Implementing Regulation 485/2013amending ImplementingRegulation (EU) No540/2011, as regards theconditions of approval ofthe active substancesclothianidin,thiamethoxam andimidacloprid, andprohibiting the use andsale of seeds treated withplant protection productscontaining those activesubstances [2013] OJL139/12 . . . . . . . . . . . . . 205

Delegated Regulation 1047/2013amending CommissionDelegated Regulation (EU)No 114/2013 for thepurpose of correcting the2010 average specific CO2

emissions specified for themanufacturer Piaggio[2013] OJ L285/1 98, 224

Regulation 1308/2013 establishing acommon organisation ofthe markets in agriculturalproducts and repealingCouncil Regulations(EEC) No 922/72, (EEC)No 234/79, (EC) No1037/2001 and (EC) No1234/2007 [2013] OJL347/671

xxxi


art 229 . . . . . . . . . . . . . . . . . . 232

Directive 2014/59 establishing aframework for the recoveryand resolution of creditinstitutions andinvestment firms andamending CouncilDirective 82/891/EEC,and Directives2001/24/EC, 2002/47/EC,2004/25/EC, 2005/56/EC,2007/36/EC, 2011/35/EU,2012/30/EU and2013/36/EU, andRegulations (EU) No1093/2010 and (EU) No648/2012, of the EuropeanParliament and of theCouncil [2014] OJ L173/

Art. 115 . . . . . . . . . . . . . . . . . . 36

Regulation 516/2014 establishingthe Asylum, Migrationand Integration Fund,amending CouncilDecision 2008/381/EC andrepealing Decisions No573/2007/EC and No575/2007/EC of theEuropean Parliament andof the Council and CouncilDecision 2007/435/EC[2014] OJ L150/168 . 129

Regulation 806/2014 establishinguniform rules and auniform procedure for theresolution of creditinstitutions and certaininvestment firms in theframework of a SingleResolution Mechanism anda Single Resolution Fundand amending Regulation

(EU) No 1093/2010 [2014]OJ L225/1 . . . . . . . . . . 231

Regulation 1141/2014 on thestatute and funding ofEuropean political partiesand European politicalfoundations [2014] OJL317/1

art 37 . . . . . . . . . . . . . . . . . . . . 232

Delegated Directive 2015/13amending Annex III toDirective 2014/32/EU ofthe European Parliamentand of the Council, asregards the flowrate rangeof water meters [2015] OJL3/42 . . . . . . . . . . . . . . . 132

Implementing Regulation 2015/51approving the activesubstance chromafenozide,in accordance withRegulation (EC) No1107/2009 of the EuropeanParliament and of theCouncil concerning theplacing of plant protectionproducts on the market,and amending the Annexto CommissionImplementing Regulation(EU) No 540/2011 andallowing Member States toextend provisionalauthorisations granted forthat active substance[2015] OJ L9/22 . . . . . 131

Delegated Regulation 2015/791amending Annex I toRegulation (EU) No1305/2013 of the EuropeanParliament and of theCouncil on support for

xxxii


rural development by theEuropean AgriculturalFund for RuralDevelopment [2015] OJL127/1 . . . . . . . . . . 41, 121

Regulation 2015/848 on insolvencyproceedings (recast) [2015]OJ L141/19

art 89 . . . . . . . . . . . . . . . . . . . . 232Delegated Directive 2015/863

amending Annex II toDirective 2011/65/EU ofthe European Parliamentand of the Council asregards the list ofrestricted substances[2015] OJ L137/10 . . 132,205

Implementing Regulation 2015/1013laying down rules inrespect of Regulation (EC)No 273/2004 of theEuropean Parliament andof the Council on drugprecursors and of CouncilRegulation (EC) No111/2005 laying downrules for the monitoring oftrade between the Unionand third countries in drugprecursors [2015] OJL162/33

preamble (4) . . . . . . . . . . . . . 232Implementing Regulation 2015/1014

establishing theCommunity list of aircarriers which are subjectto an operating ban withinthe Community [2015] OJL162/65 . . . . . . . . 121, 233

Implementing Regulation 2015/1609approving propiconazole as

an existing activesubstance for use inbiocidal products forproduct-type 7 [2015] OJL249/17 . . . . . . . 2, 41, 237

Regulation 2015/1775 amendingRegulation (EC) No1007/2009 on trade in sealproducts and repealingCommission Regulation(EU) No 737/2010 [2015]OJ L262/1 . . . . . . . . . . 127

Implementing Regulation 2015/1850laying down detailed rulesfor the implementation ofRegulation (EC) No1007/2009 of the EuropeanParliament and of theCouncil on trade in sealproducts [2015] OJ L271/1127

Implementing Regulation 2015/2198approving the activesubstance rescalure, inaccordance withRegulation (EC) No1107/2009 of the EuropeanParliament and of theCouncil concerning theplacing of plant protectionproducts on the market,and amending the Annexto CommissionImplementing Regulation(EU) No 540/2011 [2015]OJ L313/35 . . . . 103, 189

Preamble (1) . . . . . . . . . . . . . 189

Implementing Decision 2015/2433amending ImplementingDecision 2014/709/EU asregards the animal healthcontrol measures relating

xxxiii


to African swine fever incertain Member States[2015] OJ L334/46 . . 120,132

Implementing Regulation 2016/265on the approval of theMELCO Motor Generatoras an innovativetechnology for reducingCO2 emissions frompassenger cars pursuant toRegulation (EC) No443/2009 of the EuropeanParliament and of theCouncil [2016] OJ L50/30224

Implementing Regulation 2016/305amending Regulation (EU)No 37/2010 as regards thesubstance ‘gentamicin’[2016] OJ L58/35 . . . . 212

Implementing Regulation 2016/312correcting Regulation (EU)No 37/2010 as regards thesubstance ‘tylvalosin’[2016] OJ L60/3 . . . . . 211

Implementing Regulation 2016/388imposing a definitiveanti-dumping duty onimports of tubes and pipesof ductile cast iron (alsoknown as spheroidalgraphite cast iron)originating in India [2016]OJ L73/53

preamble (5) . . . . . . . . . . . . 233Implementing Regulation 2016/405

determining the quantitiesto be added to the

quantity fixed for thesubperiod from 1 July to30 September 2016 underthe tariff quotas opened byImplementing Regulation(EU) 2015/2077 for eggs,egg products and eggalbumin originating inUkraine [2016] OJ L74/30232

Implementing Decision 2016/417excluding from EuropeanUnion financing certainexpenditure incurred bythe Member States underthe European AgriculturalGuarantee Fund (EAGF)and under the EuropeanAgricultural Fund forRural Development(EAFRD) [2016] OJL75/16 . . . . . . . . . . . . . . 233

Implementing Regulation 2016/432amending Regulation (EC)No 1484/95 as regardsfixing representative pricesin the poultrymeat andegg sectors and for eggalbumin [2016] OJ L76/26231

Implementing Regulation 2016/443amending Annex I toRegulation (EC) No669/2009 as regards thelist of feed and food ofnon-animal origin subjectto an increased level ofofficial controls on imports[2016] OJ L78/51 233, 237

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xxxv

1

Introduction

1.1 Setting the Scene

An interested reader, when glancing through a random issue of the Offi-cial Journal of the EU, would quickly gain the impression that the EUhardly ever legislates, but is instead mostly occupied with implementationand possibly the amendment and supplementation of the rare legislativeinstance. The number of delegated and especially implementing acts isso extensive in comparative terms that in a general list of simply all EUlegal acts adopted it would be difficult to spot any legislative acts at all.1

At the same time, the reader, when glancing through the Treaties of theEU, would get the impression that legislative acts are the only importantregulatory output. The Treaties employ much more care, are much moreelaborate and have a greater number of provisions when establishing theadoption procedure of legislative acts compared to those of delegated andimplementing acts.

This seems incongruous when recalling the public debate on the demo-

1In a random sample of 20 official journals (L-series) from August and September2015 (OJ numbers 221-240), I found 1 legislative act and 66 non-legislative acts(excluding from the selection acts obviously relating to the Common Security andForeign Policy or to international relations). The numbers only change very slightlywhen only acts of general application are counted (including decisions addressedto all Member States); in this case, 1 legislative act is observed compared to 58non-legislative acts.

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introduction

cratisation of the EU. The increasing role of the European Parliament isgenerally perceived as the hallmark of democratisation. In this sense, aninterested reader might be glad to know that the body which representsher on the EU level has received more powers over time. Yet, in view of thesheer number of ‘Commission Delegated Regulations’ and ‘CommissionImplementing Decisions’ which are adopted by the Commission and not byParliament or the Council, she might wonder about the actual relevanceof her interests in EU rule-making. There is a certain incongruity betweenthe Treaty aspirations and the modus operandi of EU policy making. Thisis an imbalance between the main regulatory output and the doctrine anddebate of its democratic credentials.

At the same time, delegated and implementing acts are by no meansirrelevant. They are certainly often short, as well as very specific ortechnical. However, it is clearly those acts that mostly determine whatpolicies actually mean ‘on the ground’, as their specific provisions willdetermine the effectiveness, intrusiveness, coherence and ease of use of apolicy regime.

For example, these acts permit the use of biocides (i.e. extremelypoisonous substances) in specific products2 or determine how an exemptionto CO2 emission requirements for cars can be obtained.3 Commission actsalso set out measuring and monitoring procedures, which were at issue inthe VW emission scandal uncovered at the time of writing.4 Likewise, theubiquitous labels on household appliances are designed by the Commission,and its acts also determine how to measure under which category anappliance falls.5

2Cf for example Commission Implementing Regulation (EU) 2015/1609 of 24 September2015 approving propiconazole as an existing active substance for use in biocidalproducts for product-type 7 [2015] OJ L249/17.

3Commission Delegated Regulation (EU) No 114/2013 of 6 November 2012 supple-menting Regulation (EU) No 510/2011 of the European Parliament and of theCouncil with regard to rules for the application for a derogation from the specificCO2 emissions target for new light commercial vehicles [2013] OJ L38/1.

4Commission Regulation (EC) No 692/2008 of 18 July 2008 implementing and amend-ing Regulation (EC) No 715/2007 of the European Parliament and of the Councilon type-approval of motor vehicles with respect to emissions from light passengerand commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair andmaintenance information [2008] OJ L199/1.

5These are typically the white labels with a list of categories ranging from A (orsometimes A+++) to F found on appliances in stores. See for example Commission

2

1.1 setting the scene

An interested reader may also remember some less reputable endeavoursof EU rule-making, and recall the much ridiculed6 proposed ban onolive oil jars in restaurants7 and the much lamented ban on traditional,incandescent, light-bulbs that was actually effected.8 Both took the formof implementing acts.9

In this way, delegated and implementing acts – those acts adopted undera legislative mandate as described in Arts. 290 and 291 TFEU and thatpopulate the Official Journal in great numbers – govern our lives in manysmall (or not quite so small) ways. It does not seem excessive to claimthat the EU’s action in this field is as important for its success and failure– whether measured in economic, social or political terms – as legislativeacts. Delegated and implementing acts are likely to decide where the costsof a new policy are incurred10 and they validate or invalidate ideas on howwe should live; for example, by effectively deciding how acceptable risklevels can be determined.11 We are governed as much by EU delegated

Delegated Regulation (EU) No 1059/2010 of 28 September 2010 supplementingDirective 2010/30/EU of the European Parliament and of the Council with regardto energy labelling of household dishwashers [2010] OJ L314/1.

6Cf, for example, the coverage in the guardian at the time: http://www.theguardian.com/lifeandstyle/2013/may/23/olive-oil-producers-rage-european-u-turn.

7The legal act in question would have constituted an amendment to CommissionImplementing Regulation (EU) No 29/2012 of 13 January 2012 on marketingstandards for olive oil [2012] OJ L12/14. This act has been amended severaltimes. For the amendment history and a consolidated version see http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02012R0029-20141213.

8Commission Regulation (EC) No 244/2009 of 18 March 2009 implementing Directive2005/32/EC of the European Parliament and of the Council with regard to ecodesignrequirements for non-directional household lamps [2009] OJ L76/3.

9Technically, this ban took the form of a Commission act, as implementing acts wereintroduced together with delegated acts only by the Treaty of Lisbon (Treaty ofLisbon amending the Treaty on European Union and the Treaty establishing theEuropean Community, signed at Lisbon, 13 December 2007 (entered into force1 December 2009) [2007] OJ C306/1). However, the Commission acts which werecommon before the Lisbon Reform translate into delegated and implementing actsafter this reform. Given that only the process for their adoption has changed, Itreat the pre-Lisbon acts and the post-Lisbon acts in the same manner. However,the description of adoption procedures I provide below refers to the post-Lisbonsituation.

10For example, by determining whether the companies registering products with biocideshave to pay for tests certifying their safety.

11Commission Implementing Regulation (EU) No 402/2013 of 30 April 2013 on the

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introduction

and implementing acts, as we are by EU legislation.

This situation prompts questions about delegated and implementingacts. These are questions about their status in legal terms, i.e. howthey are defined and how they are adopted. But more importantly, theseare questions of what the Commission powers to adopt delegated andimplementing acts mean for persons, such as the interested reader. Bywhat right can the Commission adopt all these acts? How can a readersubject to Commission acts be sure that the Commission has her bestinterests in mind when adopting them?

Beyond satisfying curiosity, the answer to these questions exhibitsfundamental traits of the EU as a polity. In a democratic rule of law, thedistribution of public authority cannot be arbitrary, but there must bereasons why a specific body has certain powers. These reasons correspondto the constitutional doctrine of a polity, at the same time as elucidatinghow this doctrine is operationalised. The way in which regulatory powersare justified reflects the constitutional values of a polity. If the EU aspiresto operate under a democratic rule of law, there need to be reasons forthe Commission powers which reflect this.

The question how the Commission’s powers to directly regulate personswithin the Member States can be justified refers to the current relationshipbetween the EU and these persons. It is not answered by a retelling of thehistory of the Commission’s powers and the legal development of the EU,even though many of the features that are remarkable from a relationalperspective can be traced historically.

Indeed, the considerable neglect of the EU institutions’ relationshipto individuals in EU legal doctrine is easily explained by history. Thisneglect is noticeable especially when comparing the relationship of the EUto individuals with the relationship of the EU to its Member States. TheEU’s origins as an international organisation explain the strong positionof Member States and the weak position of individuals.

Such explanations cannot however serve as an answer to the questionwhat the relationship is between the Commission and the persons subjectto its rule-making, nor the questions how the Commission ought to behave.A historical perspective falls short of providing a framework which canjustify and guide the interactions between the Commission and the persons

common safety method for risk evaluation and assessment and repealing Regulation(EC) No 352/2009 [2013] OJ L121/8.

4

1.2 introducing delegated and implementing acts

subject to its authority. Instead, another framework is needed to providenormative justification for the Commission’s power to adopted delegatedand implementing acts.

I will first explain what delegated and implementing acts are, beforelaying out my argument about how the Commission’s powers to adoptthem can be justified.

1.2 Introducing Delegated and ImplementingActs

As a matter of definition, delegated and implementing acts are acts adoptedpursuant to Arts. 290 (delegated acts) and 291 TFEU (implementingacts).12 These articles set up a regime under which the Commissioncan adopt delegated acts to supplement and amend legislation,13 andimplementing acts where uniform implementation of Union (legislative)acts is required.14

These articles, and the regime or regimes they create, have been thesubject of much attention since their inclusion in the Treaties,15 mostof which has been focused on their difference and interrelation.16 Thedivision of Commission acts into ‘delegated’ and ‘implementing’ acts wasoriginally meant to express a categorical difference, and thus to simplifythe field of Commission rule-making.17 Most importantly, delegated acts

12See, for example, Herwig Hofmann, ‘Legislation, Delegation and Implementationunder the Treaty of Lisbon: Typology meets Reality’ (2009) 15(4) European LawJournal pp 482–505, Jurgen Bast, ‘New Categories of Acts After the Lisbon Reform:dynamics of parliamentarization in EU law’ (2012) 49 Common Market Law Re-view pp 885–928, Robert Schutze, ‘‘Delegated’ Legislation in the (new) EuropeanUnion: a Constitutional Analysis’ (2011) 74/5 Modern Law Review pp 661–693,Thomas Kroell, ‘Delegierte Rechtsetzung und Durchfuhrungs-recht-setzung unddas institutionelle Gleichgewicht der Europaischen Union’ (2011) 66 Zeitschrift furoffentliches Recht pp 253–298.

13Consolidated Version of the Treaty on the Functioning of the European Union [2010]OJ C83/47 (TFEU) art 290.

14Art 291 TFEU.15For an early comment see, for example, Hofmann (n 12) or Paul Craig, The Lisbon

Treaty; law, politics and treaty reform (Oxford, 2010).16Such as, for example, Paul Craig, ‘Delegated Acts, Implementing Acts and the New

Comitology Regulation’ (2011) 36(5) European Law Review pp 671–687, Bast (n 12).17This division was originally proposed in the Constitution for Europe, and was the

5

introduction

were seen to be more ‘legislative’ in nature, thus requiring the involvementof the European Parliament to a much higher degree, than implementingacts.18 However, concrete delegated and implementing acts often do notexhibit any categorical differences in content.

Since the Treaties provide differing legal bases (and since, as I will showbelow19 the adoption procedures are not the same), a choice neverthelesshas to be made between these two instruments. This choice has beenbrought before the European Court of Justice repeatedly.20 However, theCourt has so far given little objective guidance on how the choice betweendelegated and implementing acts is to be made, instead maintaining thatParliament and the Council have a large measure of discretion in choosingbetween the two.

In any case, the focus of this thesis is not the difference between delegatedand implementing acts. This focus lies instead on certain characteristicswhich they have in common: namely the fact that they both constitutegenerally binding legal acts which are adopted by the Commission.

1.2.1 The Content of Delegated and ImplementingActs

Delegated and implementing acts are connected to other Union acts,namely legislative acts. The specific mandate to either supplement andamend or to implement legislation is part of the piece of legislation inneed of supplementation or implementation.

It is possible to immediately see a difference between delegated/ imple-menting acts and legislative acts, namely that the former are more specific.Whereas legislative acts will regulate, for example, different chemicals for

outcome of the discussion in the ‘Working Group on Simplification’. Cf ConventionWorking Group IX, Final Report of the Working Group IX on Simplification (CONV424/02, WG IX 13, 2002) .

18Power of legislative delegation [2010] European Parliament Resolution,P7 TA(2010)0127.

19Cf section 1.2.2.20Case C-427/12 European Commission v European Parliament and Council of the Euro-

pean Union (2014) not yet published: Court reports – general (ECLI:EU:C:2014:170);Case C-65/13 European Parliament v European Commission (2014) electronic re-ports of cases: Court reports – general (ECLI:EU:C:2014:2289); Case C-88/14European Commission v European Parliament and Council of the European Union(2015) electronic reports of cases: Court reports – general (ECLI:EU:C:2015:499).

6


various products, delegated/ implementing acts might regulate just onegroup of chemicals or just one use.

In most cases, the limitation of subject matter which is part and parcel ofthe act of delegation will be the most important mechanism to determiningthe content of delegated and implementing acts. Thus the mandate willdefine the task of the Commission to be achieved through adopting adelegated or implementing act. Such tasks can involve updating listsof substances on the market, the creation of an authorisation regime orpermission to place a specific product on the market (where the producthas characteristics making this permission necessary, i.e. being dangerousto human health).

In addition to this intrinsic limitation, Art. 290 TFEU on delegated actsexpressly states that all ‘essential elements’ must be regulated through alegislative act and not through a delegated act, and the Court has sinceheld the same for implementing acts.21 While there is no comprehensivedefinition of ‘essential element’, this is considered to appropriately delimitthe acts that can be adopted on the basis of a Commission mandatefrom the choices to be made by Parliament and Council. Interestingly,in virtually all cases this jurisprudence evolves around the question ofwhether or not a delegated or implementing act needs to be struck downas invalid because it illegally regulates essential elements.22 Only rarely

21The ‘essential elements’ doctrine was developed by the CJEU long before the LisbonTreaty was envisioned, with the Lisbon Treaty thus codifying case law. In thesecases the Court did not make any substantive difference between delegation andimplementation for this non-essentialness requirement, so that the case-law doctrinemust be considered to apply to both. The Court recently made this clear in Case C-363/14 European Parliament v Council of the European Union (Europol) (2015)electronic reports of cases: Court reports – general (ECLI:EU:C:2015:579) para 46.

22For a summary of this jurisprudence see Case C-355/10 European Parliament vCouncil of the European Union (Schengen Border Code) [2012] electronic reports ofcases (ECLI:EU:C:2012:207, Opinion of AG Mengozzi) para 26 et seq The Courtfocused on the invalidity of the specific delegated/ implementing act even whereit was quite clear that any act adopted under the delegation of power would sufferfrom the same faults, and the question was thus whether the act of delegation waslegal rather than whether the adopted delegated act was legal. See Case C-355/10European Parliament v Council of the European Union (Schengen Border Code)(2012) electronic reports of cases: Court reports – general (ECLI:EU:C:2012:516).For a discussion of this case see Maarten den Heijer and Eljalill Tauschinsky,‘Where Human Rights Meet Administrative Law: Essential Elements and Limitsto Delegation: European Court of Justice, Grand Chamber C-355/10: European

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introduction

does the Court review the legality of the actual act of delegation,23 andwhere it does, the Court has shown considerable reluctance to engage withthis question.

In many cases, however, it is not the normative effect of the ‘essentialelements’ doctrine that will determine the content of delegated/ imple-menting acts. Rather, this doctrine is an expression of the more limited‘nature’ (for want of a better word) of delegated and implementing acts.These acts serve to further implement, update or adapt a specific andlimited aspect of the legislative regime.

This narrow shape and content is often described by the term ‘technical’.However, it would be a mistake to take this as a synonym for ‘harmless’;a dagger is not less dangerous by virtue of its narrowness and neither is alegal act. Firstly, the relation between ‘essentialness’ and contentiousnessor salience is not entirely settled and much less evident. It is true that theCourt has described some markers of ‘essentialness’ in terms of salience,namely effects on human rights.24 However, in other recent cases, the

Parliament v. Council of the European Union’ (2013) 9(3) European ConstitutionalLaw Review pp 513–533.

23But see Case C-359/92 Federal Republic of Germany v Council of the EuropeanUnion [1994] ECR I–03681 (ECLI:EU:C:1994:306), and also Case C-270/12 UnitedKingdom of Great Britain and Northern Ireland v European Parliament and Councilof the European Union (2013) electronic reports of cases: Court reports – general(ECLI:EU:C:2014:18). This latter case did not concern delegation to the Commission,but to the European Securities Market Authority (ESMA). While the Meroni case(Case 9/56 Meroni & Co v High Authority of the European Coal and Steel Community[1958] ECR English special edition–133 (ECLI:EU:C:1958:7)) is still often cited as aprecedent for questions of delegation, the facts should be somewhat distinguishedfrom the present case. The delegation of power in Meroni was a delegation from aTreaty body (the High Authority) to a body established by secondary law, and thatit served to take the exercise of power outside the systems of protection establishedby the Treaties. These two factors play an important role in the Courts reasoning inMeroni. Neither of these would come into play concerning delegated/ implementingacts, which are adopted by a Treaty body (the Commission) and which have tocomply in full with the procedural protections granted by EU law.

24The Court adopted the somewhat circular formula that, where a legal act containsthe potential to interfere with human rights such as to require the involvement of thelegislator, the legal act may not take the form of a delegated act. Schengen BorderCode (n 22) para 77. Despite the circularity, it becomes clear that the interferencewith human rights is in itself liable to constitute an essential element of a regime.However, the conditions under which interference with human rights is likely to berecognised as constituting an ‘essential element’ are unclear; in Europol (n 21), the

8


Court does not accept arguments about salience as arguments for theillegality of an act of delegation.25

Secondly, it is the very narrowness that has the potential for creatingstrong effects. I make this point by comparing delegated/ implementingacts to legislative acts, and by assuming that these legislative acts areper force broader, for example because they have to regulate more issueareas or because they have to regulate further ahead of time. It is thevery broadness which is bound to allow, if not for an escape, then at leastfor a weaker form of implementation of the law to any specific situationwhere so desired; in general, broader legislation will leave more freedomand latitude as ‘wiggle room’. Narrow delegated and implementing actsare likely to have done away with this latitude, as they are more able tospecify details of their application.

Indeed, it is possible to make or break a policy at the stage of delegatedand implementing acts, it is possible to create a ‘liberal’ or ‘communitarian’instrument depending on how burdens are distributed, it is possible tostructure it very vaguely so as to have no effect, or to over-detail andover-bureaucratise an instrument so as to defeat its application. All theseoptions are available at this stage and some options are available only atthis stage – when one can be relatively certain of the parties active ina given field and how a certain regulatory choice will affect them. Eventhough the delegated and implementing acts are thus somewhat restricted,non-essential and ‘technical’, these terms should not be taken to meanthat they are somehow irrelevant.

1.2.2 How Delegated and Implementing Acts areAdopted

Seeing that their content is at the same time ‘technical’ and highly relevant,how are such acts drafted and adopted? The first thing to notice in this

Court found that the fact that a decision impacted on fundamental rights could notchange the analysis that it did not fall within the responsibilities of the legislature:ibid para 51.

25C-270/12 ESMA (n 23). Instead, in a questionable use of the term, the Court appearsto use the ‘technical nature’ as a defence against the accusation of a too broaddelegation of powers.

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regard is that these are acts virtually always adopted by the Commission.26

This authorship by the Commission differentiates delegated/ imple-menting acts from legislative acts, which are adopted by the Counciland Parliament at the initiative of the Commission.27 The differencebetween delegated/ implementing and legislative acts is thus not that theCommission is not involved in drafting legislative acts but rather thatParliament and the Council are not involved in the adoption of delegated/implementing acts. Whereas Parliament and the Council ultimately bearresponsibility for legislative acts, delegated/ implementing acts are adoptedwithout involving other Treaty bodies in the drafting process.28

In principle, once the Commission has received the legislative mandatefor a delegated or implementing act, it can ‘go to work’. The mandatecould specify requirements, either procedurally (e.g. the Commissionmight have to consult with specific bodies or specific kinds of parties)or substantively (e.g. the Commission might be obliged to take intoaccount specific interests or policies) on top of a description of what theCommission’s task in adopting these acts is, and the Commission has toinclude these requirements in the adoption process. However, such furtherrequirements are rarely found in any but the most general terms.

In any case, this ‘getting to work’ will in a great majority of caseshave as a first step expert and Member State consultations.29 Often theCommission will be able to use an established expert group or Comitologycommittee for this, though this is not necessarily the case. The Commissionmight present a full draft to this expert group or it might consult in a moreopen manner. At times, the Commission will opt for an impact assessmentas a preliminary study into the policy options available, although this

26Delegated acts are always adopted by the Commission and implementing acts areadopted by the Council only in “duly justified specific cases” (Cf Art 291(2) TFEU).In a random 14 day period (22 March 2016 – 4 April 2016), out of 32 implementingmeasures, 1 was adopted by the Council.

27Cf Art 294 TFEU for the ‘ordinary legislative procedure’. Also special legislativeprocedures include the Council and Parliament and are initiated by the Commission.

28Even though Parliament and the Council have the opportunity to veto delegated actsand can also withdraw the delegation of power in the case of implementing acts,this does not constitute authorship in any meaningful way, as Parliament and theCouncil are confronted with complete and fully drafted acts and cannot influencethe choices made therein.

29Cf also Interinstitutional Agreement of Better Law-Making [2016] Council Document,15506/15, recital 7.

10


only happens in a small number of cases.30

Once the Commission has worked out a final draft with the help of theseconsultation processes, it will submit this draft. In the case of delegatedacts, the draft is submitted to Parliament and the Council. These thenhave the opportunity to veto the act, normally within 2 months. Withoutthe veto, the act will enter into force without further delay. A veto byeither Parliament or the Council prevents a delegated act from enteringinto force, forcing the Commission back to start the adoption processagain from the beginning.

In the case of implementing acts, the draft is submitted to a Committeeof Member States representatives, which is commonly referred to as a

30Of the 59 impact assessments conducted in 2014, 13 pertained to Commissionacts implementing, supplementing or amending legislation and 24 to proposals forlegislative acts. The rest pertained to white papers, guidelines or CommissionCommunications. In 2015, significantly less impact assessments were conductedoverall (16), of which 6 pertained to Commission acts (Cf http://ec.europa.eu/smart-regulation/impact/index en.htm). Given the high number of Commission acts, Iestimate that an impact assessment was attached to less than 1% of Commissiondelegated/implementing acts, although this number needs to be corrected for thosecases where a delegated or implementing act is adopted following the recommendationof an agency, which might have conducted an Impact Assessment at that stage ofthe procedure (Cf, for example, European Commission, ‘Commission DelegatedRegulation (EU) .../... of 9.3.2016 supplementing Regulation (EU) No 596/2014 ofthe European Parliament and of the Council with regard to regulatory technicalstandards for the appropriate arrangements, systems and procedures as well asnotification templates to be used for preventing, detecting and reporting abusivepractices or suspicious orders or transactions’ (Explanatory Memorandum) C(2016)1402 final). As the Commission seeks to expand the use of impact assessment andthis is also mentioned in the 2016 inter-institutional agreement (InterinstitutionalAgreement of Better Law-Making [2016] Council Document, 15506/15, para 12 etseq.), this percentage could change in the future, although it is unlikely to riseto a significant share of delegated and especially implementing acts in the nearfuture. See European Commission, ‘Communication from the Commission to theEuropean Parliament, the Council, the European Economic and Social Committeeand the Committee of the Regions: Better regulation for better results – An EUagenda’ (Communication) COM(2015) 215 final and European Commission, ‘BetterRegulation Guidelines’ (Staff Working Document) SWD(2015) 111 final. For astudy of the potential of this tool precisely for delegated and implementing acts cfAlberto Alemanno and Anne Meeuwse, ‘Impact Assessment of EU Non-LegislativeRulemaking: The Missing Link in ‘New Comitology’’ (2013) 19(1) European LawJournal pp 76–92.

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‘comitology committee’. This committee will ‘deliver an opinion’,31 whichformally takes the form of voting on it.32 The significance of the opiniondiffers according to the two different ‘comitology procedures’ available.In the advisory procedure it is (unsurprisingly) simply advisory, and theCommission is able to go ahead with the adoption of the act whicheverway the vote goes. In the examination procedure, the committee is ableto veto an act by negative opinion, although the Commission can seek tohave the veto overruled by the appeals committee.33 Which procedure isapplicable will have been specified in the legislative act on the basis ofwhich the implementing act is adopted.34

According to the Comitology Regulation, the Commission also forwardsdraft implementing acts to Parliament and the Council.35 This gives themthe opportunity for scrutiny and to inform the Commission if they considerthat a draft implementing act exceeds the Commission’s mandate,36 eventhough this does not oblige the Commission to withdraw.37

The adoption process leaves a central space for Commission discretion ondelegated and implementing acts. As I will explain below, the Commissionis the proper author of these acts, as it is the Commission’s decisions thatdetermine their content. While Commission discretion in this is shaped bythe adoption processes, the decision-making capacity and responsibilityare not displaced

31Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16February 2011 laying down the rules and general principles concerning mechanismsfor control by Member States of the Commission’s exercise of implementing powers[2011] OJ L55/13, arts 4, 5.

32Committee Opinions are usually given with the help of a voting sheet, which allows forgiving a favourable, unfavourable or no opinion. The individual votes of Committeemembers are aggregated into the opinion of the Committee.

33Comitology Regulation (n 31) arts 5, 6.34ibid, art 2(1).35ibid, art 10(4).36ibid, art 11.37The Commission lists 4 instances in which Parliament has made use of this opportunity

for scrutiny. Cf European Commission, ‘Report from the Commission to theEuropean Parliament and the Council on the Implementation of Regulation (EU)182/2011’ (Communication) COM(2016) 92 final, p. 8.

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1.3 commission discretion

1.3 Commission Discretion

The above raises the question of how to ensure that the Commission takesthe right decisions? And how can the ‘right decision’ be determined? Theproblem implicit in the relation described here between the Commissionand the persons directly subject to its rule-making, is the problem ofdiscretionary power. This is because despite all the control mechanisms,all the scrutiny of the various fora and actors, the Commission is left with asignificant freedom in choosing the content of delegated and implementingacts.

Given the ‘victory’ that Parliament achieved with its right of vetoover delegated acts, enshrined in Art. 290 TFEU, this might be counter-intuitive. Indeed, delegated and implementing acts are not free in thesense that the Commission drafts them autonomously. There are variousmechanisms for involvement, though not control, by individual and insti-tutional actors, including Member States. Yet, I contend that all of these‘participatory’ mechanisms cannot tip the balance of power away from theCommission to other actors. The Commission still enjoys a large degreeof choice in deciding on the content of delegated and implementing acts.

As mentioned above, the first stage in drafting delegated38 and imple-menting acts (at least the first stage visible to the outside observer) iswhen they are discussed by expert groups.39 While expert groups mayprovide valuable feedback to the Commission, it is in their nature that

38Given the practice of the Commission to consult expert groups in the great majorityof cases, the resistance of the Commission towards an obligation of the Commissionto also consult experts for delegated acts loses some of its practical relevance.For evidence of the Commission’s opinion, see the Letter to the Council fromMr Maros Sefcovic, Vice-President of the European Commission [2014] CouncilDocument, 7792/14. The matter has been resolved by the last InterinstitutionalAgreement, which establishes that ‘in principle’ experts are consulted also as a partof the procedure to adopt delegated acts. Cf Interinstitutional Agreement of BetterLaw-Making [2016] Council Document, 15506/15.

39It is a challenge to formulate a definition of ‘expert group’ that would capture allthe bodies and fora that should be included under this heading (Torbjorn Larsson,Precooking in the European Union: the World of Expert Groups (Stockholm, 2003)p. 14. The Commission’s own definition can be found in Rule of the ‘HorizontalRules for Commission Expert Groups’ (European Commission, ‘Communicationfrom the President to the Commission – framework for Commission Expert Groups:Horizontal Rules and Public Register’ (Communication) C(2010) 7649 final, Annex).

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the Commission decides what it takes away from the discussion; theiradvice is in no way binding. Moreover, even though expert groups are‘independent’ in that their members are not Commission officials, it is oftenthe Commission which has set up the group and determines membership.In this, the Commission has already made a pre-selection of what kindof advice it is likely to get from the group by having determined whichexpertise and interests are represented in it. In some cases, it is evenpossible to speak of the Commission controlling (some of) these expertgroups40 and them being a tool to the Commission.41

Thus, while expert groups are important in formulating delegatedand implementing acts, they do not serve to diminish the Commission’sdiscretion. Rather, they serve to elucidate the possible policy optionsavailable and their consequences, and might actually serve to broaden theCommission’s horizon for action rather than restricting it. In any case,the choice for a specific option lies fully with the Commission.

The picture changes slightly when moving further along the adoptionprocess. While the actual influence might be smaller, Parliament and theCouncil, or the comitology committees might have more control over thecontent of delegated and implementing acts, in that they can formallyrestrict the Commission in its freedom of choice.

Firstly, the Commission has less choice in the composition of thesebodies. The composition of Parliament and the Council is of course laiddown by the Treaties and the members of comitology committees are notdetermined by the Commission, but are instead provided by the MemberStates and they act, in this capacity, as Member State representatives.42

Secondly, the Commission is for the most part not free in deciding whataction to take regarding the opinion voiced by these bodies. While it istrue that the Commission does not need to follow the committee’s opinionin the advisory procedure, it is nevertheless obliged to “take the utmost

40Larsson (n 39) p. 19.41ibid, p. 118. That expert group composition is at the discretion of the Commission is

also the focus of the EU Ombudsman in complaint 1682/2010/BEH (European Om-budsman, Decision of the European Ombudsman closing her inquiry into complaint1682/2010/(ANA)BEH against the European Commission (19 December 2013))and the own initiative inquiry: European Ombudsman, Own Initiative Inquiryconcerning the Composition of Commission Expert Groups (OI/6/2014/NF, 2014).

42Comitology Regulation (n 31) art 3.

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1.3 commission discretion

account”43 of it. In practice this means that the Commission is placedunder a heavier burden of justification in the case of a negative opinionby a comitology committee, as the Commission has to give a reasonedopinion when nevertheless going ahead with a measure.44

When adopting an implementing act under the examination procedure orwhen adopting a delegated act, the effects of the choices of the comitologycommittees or Parliament and Council are more restrictive on the freedomof choice by the Commission. Thus, a negative opinion by the committeein the examination procedure precludes the Commission from adopting anact. A difference of opinion between Commission and Committee will bereferred to the Appeals Committee, the opinion of which decides the fateof the proposed implementing act. A veto by Parliament or the Council islikewise fatal to an act.

However, these restrictive options do little to counter the basic fact ofCommission discretion in the adoption of delegated and implementing acts.The reasons for this are threefold. Firstly, it is necessary to rememberthat the possibility of negative opinions and vetoes are in most casesonly a ‘shadow’, they rarely materialise. It might be likely that theCommission acts under the shadow of such negative opinions or veto,but this shadow will necessarily become thinner the less this threat isacted out. Parliament and Council have never successfully vetoed a draftdelegated act,45 and the number of negative opinions by a committee inthe examination procedure remains quite small,46 with the fraction of

43ibid, art 4(2).44Thomas Christiansen and Matthias Dobbels, ‘Non-Legislative Rule Making after the

Lisbon Treaty: Implementing the New System of Comitology and Delegated Acts’(2013) 19(1) European Law Journal pp 42–56, p. 48.

45Even though there was an attempt to veto the Schengen Border Code in Parliament,the vote did not result in the necessary majority to do so.

46According to the latest available report (European Commission, ‘Report from the Com-mission on the working of Committees during 2014’ (Communication) COM(2015)418 final), of the 1889 opinions delivered in 2014, not one was negative, and therewere only 51 cases (less than 3%) in which no opinion was delivered. In fact, the lasttime a negative opinion was delivered appears to have been in 2011 (Cf EuropeanCommission, ‘Report from the Commission to the European Parliament and theCouncil on the Implementation of Regulation (EU) 182/2011’ (Communication)COM(2016) 92 final, Table 1) These numbers include advisory and examinationprocedures. Where no opinion was delivered in an examination procedure, theCommission went ahead with adopting the draft implementing act in about 95% ofthe cases (Cf ibid, Table 3), making this virtually equivalent to a positive opinion.

15

introduction

negative opinions in the decisions of the appeals committee approachingzero.47

Secondly, all these procedures are structured in a way that concernsby either committees or Parliament and the Council have to be quiteconsiderable to carry any weight. If committees or the Council do notadopt a negative opinion/veto by qualified majority,48 no action is deemedto have been taken49 (except in the advisory procedure50). The majorityrequired in Parliament is even greater, namely the majority of its compo-nent members.51 This majority requirement is stronger than that for theadoption of legislation. Thus, to be able to use the tools at their disposal,it is not enough for these bodies to have formed concerns. They also needto be able to decide on restrictive action by a strong majority. The moredifficult it is to formally voice doubts or effect restrictions, the greater thepractical freedom of the Commission to carry its choices through to theentering into force of a legal act.

Thirdly, while committees, Parliament and the Council might be ableto take a somewhat more proactive attitude than they currently do, theirinvolvement is intentionally complimentary to the Commission decision-making. This is not only based on the fact that the Commission, whenpresenting the drafts and often when defining issue areas, is able to framethe issue and formulate prima facie the choices available, although this isan important factor. More fundamentally, it is necessary to keep in mindthat Parliament and the Council delegated the task of adopting theseacts to the Commission, even though they are not obliged to do so. It is

47In 2014, 13 cases were referred to the appeals committee, which did not deliver asingle negative opinion, although did not give an opinion in 11 cases. In all casesthe Commission did adopt the implementing measure in question. Cf EuropeanCommission, ‘Report from the Commission on the working of Committees during2014’ (Communication) COM(2015) 418 final, p. 7. The only time the appealscommittee delivered a negative opinion was in 2011. Cf European Commission,‘Report from the Commission to the European Parliament and the Council on theImplementation of Regulation (EU) 182/2011’ (Communication) COM(2016) 92final, Table 2.

48Cf Consolidated Version of the Treaty on European Union [2010] OJ C83/13 (TEU)art 16.

49See Art 290(2) TFEU and Comitology Regulation (n 31) art 5.50In the advisory procedure, an opinion is adopted by the majority of the component

members. Cf ibid, art 4(1).51Art 290(2) TFEU.

16

1.4 the commission and its ‘subjects’

nonsensical to then attempt to take over the decision again. Likewise, thevery function of the examination committee is to aid the Commission inadopting implementing acts. If it were to seriously curb the Commission’sdiscretion, in effect it would need to take over the decision process; atask it is neither willing nor able to take on. Instead, placing the bruntof the decision making process with the Commission should be seen asa deliberate choice and a fundamental characteristic of delegated andimplementing rule making.

Indeed, it is not necessary to assume that any of the above is in it-self a problem, and I do not believe that this Commission discretion isreprehensible in itself. Often when the Commission has been delegateddecision-making power, there is a good case to be made for its discre-tion. Of course, the Commission should also only be delegated choicesthat it can legitimately take, but once it has been delegated rule makingcompetences the Commission’s discretion should be accepted.

At the same time, it is important to recognise the framework of theCommission’s authority. In contrast to private autonomy, there are re-strictions on the Commission’s public use of discretion. While privateindividuals are allowed to make bad or nonsensical choices when actingautonomously, it is a requirement of public authorities that they act rea-sonably, non-arbitrarily and without bias. It is part of the very definitionof a public authority that it does not act autonomously, but that it isbound in an important sense: the exercise of public power in our societiesis based on underlying conditions.52 The most basic condition is that theauthority does not act autonomously or in its private interest, but acts onbehalf of the persons subject to it.

1.4 The Commission and its ‘Subjects’

The Commission’s discretion in the exercise of public authority is shapedby the context in which the Commission acts. The Commission has acertain function to fulfil, a role, which is formed by the relation in which it

52Fox-Decent frames these conditions as conditions for non-domination: Evan Fox-Decent, ‘Fiduciary Authority and the Service Conception’ in Andrew Gold and PaulMiller (eds), Philosophical Foundations of Fiduciary Law (Oxford University Press2014) pp 363–387 they could also be called democratic (though non-representative)conditions.

17

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takes place. This relation in turn is formed by both, the Commission, andthe parties the Commission interrelates with in the exercise of its discretion.To understand how the Commission can relate to the persons subject toits authority it is important to understand what kind of organisation theCommission is.

What kind of organisation the Commission represents and what functionit has, is the subject of a number of academic inquiries. The Commissionhas been described as an increasingly ‘normal’, Weberian administration,53

as the motor of European integration,54 as the heart of the Union55

or as (threatened to be) taken over by lobbyists56 to name just a fewcontributions. Yet, none of these descriptions give any but the most vagueand stereotypical descriptions of who the Commission is to the personssubject to its acts. What is the relation of the Commission to the subjectsof the powers it exercises?

The Commission is staffed in the same manner as many other admin-istrations:57 partly by experts on specific subject matters and partly bycareer officials. This staff are employed directly by the Commission and areresponsible only to the Commission and the Union. Commissioners, thehead of the Commission, are provided by national governments althoughthey are sworn to independence.58

The Commission is thus not a representative organ. Not only is its mainconstitutive principle mentioned in the Treaties independence, the Com-mission is also not part of the representative democratic set up mentioned

53Anchrit Wille, The Normalization of the European Commission: Politics and Bureau-cracy in the EU Executive (Oxford University Press 2013).

54Myrto Tsakatika, ‘Claims to Legitimacy: The European Commission between Conti-nuity and Change’ (2005) 43(1) Journal of Common Market Studies pp 193–220, p.198.

55Neill Nugent, At the Heart of the Union: Studies of the European Commission(2nd edn, Palgrave McMillan ).

56Justin Greenwood, Interest Representation in the European Union (3rd edn, PalgraveMacmillan 2011).

57For more on the organisational structure of the Commission, see Morten Egeberg,‘The European Commission’ in Michelle Cini (ed), European Union Politics (2nd edn,Oxford University Press 2007) pp 137–153.

58This independence is stressed in Art 17 (3) TFEU, it is also mentioned no less thanthree times in the ‘solemn undertaking’ that Commissioners swear before the Courtof Justice. See the Annex to the Commission Press Release IP/10/487 of 3 May2010.

18


in the Treaties.59 The Commission’s duty to hold consultations is men-tioned only with the goal of ensuring transparency and coherence.60 Eventhough Parliament can put questions to the Commission, the Commissionis not responsible to Parliament in the traditional sense;61 Parliament canonly indirectly draw consequences from the answers provided.

Thus the situation at hand is that delegated/ implementing acts –these acts which are the main regulatory output of the EU and whichare liable for regulating sensitive issue areas – are drafted and adoptedby an institution which is characterised by its independence and non-representative constitution. This situation raises profound questions.These questions can be formulated as inquiring into the source of theCommission’s authority, or as inquiring into the legitimacy of delegated andimplementing acts, or into the democratic credentials of this arrangement.However phrased, in essence these questions are asking about the right ofthe Commission to pass these rules. How is this situation justified?

This question is not one which is readily answered by EU legal doctrine.When following an ‘international’ of ‘intergovernmental’ perspective, theCommission would have no direct relation to persons such as our interested

59Art 10 TEU. While the appointment of Commission involves the EU Parliament, theCouncil and the European Council (cf Art 17(7) TEU, and Parliament can censurethe Commission (cf Art 17(8) TEU), the Commission is nevertheless not allowed tobe instructed by Parliament in the fulfilment of its duties (cf Art 17(3) TEU). Inany case, the censure of the Commission has such far reaching and uncontrollablepolitical effects that does not appear a viable option for influencing the Commissionin respect to specific delegated or implementing acts.

60Art 11(3) TEU. For an argument of how the related Commission White paper onGovernance (European Commission, ‘European Governance - A White Paper’ (Com-munication) COM(2001)428 final) does not actually answer democratic concerns, seeTsakatika, ‘Claims to Legitimacy: The European Commission between Continuityand Change’ (n 54).

61This is true even though Parliament has throughout the integration process gainedsignificant powers over the Commission, particularly with the Amsterdam Treatyrevisions. Cf David Judge and David Earnshaw, ‘The European Parliament andthe Commission Crisis: A New Assertiveness?’ (2002) 15(3) Governance pp 345–374. Cf also Andreas Føllesdal and Simon Hix, ‘Why There is a DemocraticDeficit in the EU: A Response to Majone and Moravcsik’ (2006) 44(3) Journal ofCommon Market Studies pp 533–562, p. 535 who claim that: “In no sense is theEU’s executive ‘elected’ by the European Parliament.” On the internal, functionallimits of Parliamentary control in the EU cf Giandomenico Majone, ‘The EuropeanCommission: The Limits of Centralization and the Perils of Parliamentarization’(2002) 15(3) Governance pp 375–392, p. 383 et seq.

19

introduction

reader. Instead, it would have a relation to the EU Member States, withwhich our reader is related to through her nationality or arrangements ofresidence.

However, this international view is clearly no longer able to capture theEU. It has frequently been noted that the EU has developed beyond beingan international organisation or even a supranational entity, in the sensethat the Union cannot be understood as happening on top or outside of theMember States. The EU has succeeded in piercing the veil of statehoodto affect the individual persons directly. The legal institution of a distinctEU citizenship is the representation of this situation par excellence.

This direct relationship materialises on a daily basis in large and smallways through EU rules. EU rules have the potential to exercise direct effectby directly creating rights or duties for citizens. Beyond this direct steeringcapacity, EU rules can also be seen as factual actions62 on the ground;allowing or disallowing the import and export of specific products,63

prescribing the use of certain (production) processes or providing for theexchange non-tradeable materials (i.e. organs).64

The relation between the Commission and individual persons is thusmainly characterised by the fact that these persons are subjected toCommission decisions. Legally, they are vulnerable to the changes in theirfactual and legal situation that the Commission is empowered to effect.While these persons are equally vulnerable to Parliament and the Council,this relationship of subjectivisation is complemented (or even justifiedand determined) by another aspect of the relationship, namely that ofdemocratic representation.65 In the case of the Commission, there is norepresentative aspect and the relationship of ruler and subject appearsthe only (direct) link.66

62Analogous to general ‘administrative’ action. Cf Bas Schotel, ‘Legislation, EmpiricalResearch and Juridical Law’ (2013) 1(3) The Theory and Practice of Legislationpp 501–532, p. 524 et seq.

63Regulation (EU) No 649/2012 of the European Parliament and of the Council of4 July 2012 concerning the export and import of hazardous chemicals [2012] OJL201/60.

64Commission Implementing Directive 2012/25/EU of 9 October 2012 laying downinformation procedures for the exchange, between Member States, of human organsintended for transplantation [2012] OJ L275/27.

65See Art 10 TEU. Of course this article simply sums up the relation which is practicallyconstructed through national and European electoral mechanisms.

66This difference between delegated/ implementing acts and legislative acts also seems

20


At the same time, this ruler-subject relationship takes place in thecontext of a regime which self-identifies as democratic and which is in-tertwined only with democratic Member States. Many Member States’administrations67 are subordinated to their Parliament or to a directlyelected President. However, the Commission can hardly be conceived assubordinate to Parliament or the Council. The fundamental requirementof boundedness of democratic authority to the persons subject to it is atodds with a body which is only ruler, without itself being subordinateto the popular sovereign. And indeed, I argue the Commission is notonly a ruler. Because its powers are exercises of public authority in ademocratic system, it is in effect bounded to the interests and needs of thepersons subject to delegated and implementing acts. This boundedness isimplicitly evident in many procedures (such as consultations) and concerns(such as the need for citizen’s trust), but it would do well to be recognisedmore clearly.

My goal in this thesis is to develop and apply a normative frameworkwhich is able to structure effectively the Commission’s power to adoptdelegated and implementing acts. Such a framework cannot be based onelectoral representation or the assertion of limited, ’technocratic’ account-ability. Instead it needs to be built from the position of the Commissionand its relation to the subjects of its acts. This is the fiduciary frameworkproposed in this book.

I argue that the answer to the question of why the Commission has theright to adopt generally binding legal rules should be that the Commissionis the fiduciary of the persons subject to these rules. This position ofauthority in a democracy which is not restricted through representativemechanisms should be understood as a fiduciary position. This perspective

to have been the basis for the inclusion of a new sentence in Art 263 TFEU,which allows individuals to challenge a “regulatory act which [...] does not entailimplementing measures” without being individually concerned, as they must be inthe case of legislative acts. This ‘regulatory act’ has been interpreted by the Courtas referring to delegated and implementing acts. Cf Order T-18/10 Inuit TapiriitKanatami and others v European Parliament and Council of the European Union[2011] ECR II–05599 (ECLI:EU:T:2011:419) paras 38 et seq. and Case T-262/10Microban International Ltd and others v European Commission [2011] ECR II–7702,paras 21 et seq.

67Administrations are then functional equivalents of the Commission – an argumentwhich I will also discuss below in chapter 2.

21

introduction

centres on the relation between the Commission as ‘fiduciary’ and thepersons subject to its rule-making as the ‘beneficiaries’. Fiduciary relationsare characterised by the requirement of loyalty of the fiduciary to thebeneficiaries. As a consequence, the power of the Commission to adoptdelegated and implementing acts calls for the imposition of duties ofloyalty on the Commission towards the persons subjects to these acts.

1.5 Research Perspective

The task I set out to do is to develop the fiduciary perspective of theCommission into a normative framework for its decisions on delegatedand implementing acts. The underlying research question is: How canit be justified that the Commission has the power to adopt delegated andimplementing acts?

In restricting or applying conditions to the Commission’s freedom ofaction, this framework does not call into question the very existence ofCommission discretion. Indeed, I accept this fact as a necessary componentof delegated and implementing acts, and instead turn to ask which condi-tions validate the Commission’s choices as proper exercises of authority inthe EU, thus distinguishing them from autonomous acts of power.

This is an account of how the Commission should be restricted inadopting delegated and implementing acts from a relational perspective.I conceive of such restrictions as flowing from the dynamics of the rela-tionship between the Commission and individual persons, between publicauthority and subjects.

This study is thus firstly an exercise in reconstruction. The aim is notto discover previously unknown or disregarded facts, nor is it to set outwhat the law is. Instead, it is to construct the adoption of delegatedand implementing acts by the Commission in a way that explains andjustifies the fact that the Commission has this power over persons withinthe Member States.

Consequently, I seek to develop a normative framework. By this, I meana framework that can guide action. A normative framework necessitatesboth certain theoretical depth to connect to the relational dynamic, aswell as being sufficiently operational to be applicable to the day to daybusiness of making delegated and implementing acts. Thus, I will firstdevelop a theoretical account, and in the later chapters of this book will

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1.6 outline

turn to the question of its procedural operationalisation.

This study is not based on the assumption or expectation that the EUwill develop into a kind of state or that it currently exhibits significantstate-like features. It is more of the opposite conviction; namely that itis not useful to assume that state analogies go beyond the illustrative.68

Recognising that the EU is not a state also makes it necessary to turn toconcepts which do not rely on the state for their explanatory or normativecapacity.

Its independence from a concept of the state is an important advantagefor a fiduciary approach: fiduciary law presents a legal account of theconstruction and exercise of authority which does not depend on the ‘state’as a concept. Its use and consequences do not imply the EU having tobecome more like a state – something that the EU appears to be resistingin any case. Fiduciary mechanisms of binding an authority to the personssubject to it are able to play a part in a truly post-national democracy,because they do not rely on a ‘national’ (social, cultural, associative)bounded community. Fiduciary law is an account of authority whichapplies across private and public law and does not depend on the existenceof a state69 for the creation and justification of its normative structure.

The fiduciary perspective is further able to deal with relationships ofauthority without having to reduce them to representative or participativemechanisms, and without reducing them to mechanisms of control.70 Atthe same time, the fiduciary framework does construct the subordinationof the authority to the judgement of those subject to its rule-making,making this a fundamentally democratic endeavour.

1.6 Outline

In this chapter I have already introduced delegated and implementingacts. I have elaborated on what they are and how they are adopted. For

68Deirdre Curtin, Postnational Democracy (Kluwer Law International 1997) p. 7 etseq.

69Thus, it does not rely on notions such as ‘nation’ or ‘Volk’ as the ultimate constituencyand legitimising body. This is not to say that it would not rely on the enforcementmechanism provided by the state. Courts play a very important role in fiduciarylaw.

70Such as calls for ‘democratic accountability’ often do.

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this, the previous sections contain a short description of the legal basis inthe Treaties as well as the provisions determining the procedure for theadoption of delegated and implementing acts.

In the next chapter I will elaborate on how the adoption of delegatedand implementing acts can be conceptualised. Guiding questions hereare, what it means to ‘delegate’ and to ‘implement’ and what it meansto treat these acts as ‘administrative’ acts, as is often done. From this Idevelop a description of the specific form of public authority and discretionthat is the adoption of delegated and implementing acts: namely publicauthority which can only in a very limited way be controlled by electedbodies. Even though the limits of the Commission’s discretion are partof the delegation under Art. 290 and 291 TFEU, the choices to be madewithin the Commission’s discretion are hardly guided by the existinglegal framework. Chapter 2 is thus a conceptual analysis of commonperspectives in public and institutional law. The analysis centres onconcepts such as authority, competence and discretion.

This description provides a better grasp on the shape of the authoritythat is to be justified. I argue that the appropriate relational mechanismis that of institutional trust. Institutional trust can account for theconferral of such independent powers as the power to adopt delegated andimplementing acts. At the same time, this framework gives normativeguidance by calling for trustworthiness.

The legal framework mapping relationships of institutional trust is thatof fiduciary law. Fiduciary law is thus able to explain the Commission’spowers to adopt delegated and implementing acts. I introduce the frame-work of fiduciary law in chapter 3. I elaborate on the origins of the notionof ‘fiduciaries’, on its applicability and its use in public law. Fiduciaryrelations are characterised by vulnerability of one party to the decisionsof another party. The latter’s decisions cannot be controlled by the vul-nerable party, but the power of the deciding party is necessary for the aimof the relationship. This elaboration enables a description of the role ofa fiduciary, a role which is premised on acting on behalf of another in arelationship of trust and confidence. The legal obligation correspondingto this role is the duty of loyalty.

In chapter 4 I apply the fiduciary framework to the Commission adoptingdelegated and implementing acts. Describing the Commission’s powers asfiduciary powers puts the Commission in the role of the fiduciary. Indeed,

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1.6 outline

the Commission factually has the power to affect the lives of numerablepersons directly, and these persons are vulnerable to the Commission’sdecisions. The fiduciary framework derives from this the normative de-scription of the situation, namely that the Commission in this context isrequired to decide on behalf of the persons vulnerable to its decisions sothat these powers can be justified by institutional trust.

I further seek to elaborate in chapter 4 who these vulnerable personsshould be understood to be. It is first and foremost EU citizens whichare the subjects of Commission rule-making, and which, by their statusas citizens, have the right to insist on the loyalty of the Commission. Inaddition to this, delegated and implementing acts often regulate legalpersons, i.e. corporations, which constitute in large part the internalmarket. Lastly, some policy regimes seek to protect further groups ofspecifically vulnerable persons, such as indigenous minorities or refugees.

This construction of the legal relationship in which the Commission’spowers take effect is completed by an elaboration of the subject matter ofthe relationship and its possible legal consequences. This subject matteris found in the mandate, but is further restricted by doctrine, such as therequirement to not to regulate ‘essential elements’ through delegated orimplementing acts.

For the legal consequences of fiduciary relations it is first relevant toinquire into the possibilities of determining breaches. Indeed, currentstandards of proof would make it very hard to prove any breaches tothe overarching obligation of loyalty. As a solution, obligations of loyaltyshould be further concretised and proceduralised so as to enable theirenforcement.

This proceduralisation is the subject of chapter 5. The focus of thischapter is the conditions for justifying the Commission’s power within theirrelational context. The fiduciary’s powers are justified on the conditionsof its loyalty, the question is thus one about the proceduralisation of thisloyalty. EU law already puts the Commission under a duty of loyalty, onewhich might very well be understood in fiduciary terms. However, thisduty is not owed to the subjects of its delegated and implementing rule-making. The Commission’s duty of loyalty includes only loyalty towardsthe other institutions and the Member States, not the persons subject todelegated and implementing acts.

A duty of loyalty towards these persons should be conceptualised as

25

introduction

a duty of disinterestedness on the one hand, and a duty of fairness onthe other. Disinterestedness and fairness work against disloyal behaviourdue to either self-interest or instrumentalisation through particularisedinterest.

A mechanism to cater for disinterestedness is a requirement on theCommission to give an account of its motives. As disinterestedness ismainly dependent on a fiduciary’s motivation, and not on the achievedresults, it is this motivation that the Commission should signal in orderto show loyalty and gain trustworthiness.

A mechanism for fairness is greater transparency of who is included inthe adoption processes of delegated and implementing acts. While thisdoes not directly guarantee procedural fairness, this additional requirementof openness enables a debate about the parameters of procedural fairnessand allows the Commission to show how it implemented its idea of fairnessin a given process.

Chapter 6 describes how these mechanisms can be introduced into theprocesses of adopting delegated and implementing acts. Accounting formotives requires a setting where the Commission is able to deliberatewith the necessary candidness towards a forum which has the necessaryindependence from the Commission’s perspective. However at the momenteach of the bodies or fora involved appears to be seeking to furtherits own agenda. Even expert groups are constituted more by interestrepresentatives than knowledgeable independent persons. Thus it appearssuch a mechanism would have to be created expressly.

Transparency regarding the adoption process can be implemented byextending the reasoning requirement to include a duty to give reasons fora given procedure and for the representation of the groups participatingtherein. Documents accompanying delegated and implementing acts whenreferred to Parliament or the Council in exceptional cases already includethis information. Moreover, it is information which should be readilyavailable to the Commission in any case, so that its inclusion should notrepresent an undue burden.

Lastly, I conclude in chapter 7. Even though EU law is currently fallingshort of setting out an appropriate justification of the Commission’s powerto adopt delegated and implementing acts, such a justification can beconstructed. Constructing the relationship between the Commission andthe persons within the Member States which are direct subjects of its

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1.6 outline

rule-making as a relationship of institutional trust, and drawing it withinthe ambit of fiduciary law provides this justification. This justificationrelies on the argument that fiduciary powers are conditioned on fiduciaryloyalty.

In order for the Commission to show this loyalty, the concept of loyaltyin EU law needs to be expanded beyond its current limits. The relationshipbetween the Commission and individual persons follows a different dynamicthan that between the Commission and the Member States. Duties ofdisinterestedness and fairness can, through the mechanisms of accountingfor motives and procedural transparency, be implemented into the adoptionprocesses with relatively little effort. Nevertheless, they present a shift inthe normative background and signal that the Commission and the peoplesubject to its rule-making engage in a relationship of institutional trust.

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2

Trusting Discretion

In this chapter I seek a better understanding of what it means that theCommission adopts delegated and implementing acts – what it meansfor the Commission and what it means for the persons subject to theseacts. I derive this understanding from taking a closer look at the termsusually used to describe this situation, namely at the terms of delegation,implementation and administration.

It is important first to clarify that by the terms ‘delegation’ or ‘imple-mentation’ I do not mean to simply interpret the wording of Art. 290TFEU or Art. 291 TFEU. Instead, ‘delegation’ and ‘implementation’ asconcepts apply to both delegated and implementing acts. This meansthat even though the words ‘delegation’ and ‘implementation’ are usedto distinguish between acts based on Art. 290 TFEU and those based onArt. 291 TFEU in their titles, as broader concepts they do not describeeither of these acts to the exclusion of the other.1

1Indeed, very little in the definition of either acts is able to distinguish it substantivelyfrom the other: Paul Craig, ‘Delegated Acts, Implementing Acts and the NewComitology Regulation’ (2011) 36(5) European Law Review pp 671–687; Jurgen Bast,‘New Categories of Acts After the Lisbon Reform: dynamics of parliamentarization inEU law’ (2012) 49 Common Market Law Review pp 885–928. The Court also foundthat the legislating institutions have a great margin of discretion in determiningwhether a specific legal subject falls under Art. 290 or 291 TFEU. Case C-427/12European Commission v European Parliament and Council of the European Union(2014) not yet published: Court reports – general (ECLI:EU:C:2014:170) paras35-40.

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The concept of ‘administration’ is included in this list, because much ofthe literature more or less explicitly treats delegated and implementingacts as ‘administrative law’.2 This is a result of the Treaty separating‘legislative’ acts from other acts. Especially where Union acts so clearlydepend on a ‘legislative’ mandate, the label ‘administrative’ is intuitive.However, it is important to question what consequences this label has,without at the same time taking recourse to specific national descriptionsof what ‘administrations’ are.

In the introduction I have already set out that the Commission is not arepresentative of the subjects of its rules. It is not described as organisedaccording to representative democracy in Art. 10 TEU, nor is therean electoral mechanism which could sustain this claim.3 Instead, theCommission is set up to function independently.4

It is also not plausible to argue that the Commission, when adoptingdelegated and implementing acts, is controlled by the democratic repre-sentatives. Parliament and the Council are involved with delegated andimplementing acts to such a small extent, that they only scrutinise, i.e.closely consider, delegated and implementing acts in exceptional cases.

Extrapolating from ‘delegation’, ‘implementation’ and ‘administration’a conceptual understanding of delegated and implementing acts can bederived. In my description of these concepts, I base myself on a review ofthe literature on delegation, implementation and administration. On thisbasis, I will discuss what I would like to add to the existing construction ofCommission authority. As a result of this inquiry a clearer understandingof the Commission’s powers will emerge. As this power is a discretionarypower which is not able to rely on representative mechanisms for itsjustification, a different mechanism is needed to justify this situation. For

2Cf Herwig Hofmann, Gerard Rowe, and Alexander Turk, Administrative Law andPolicy of the European Union (Oxford University Press 2011); Joana Mendes, Law,Public Interest and Interpretation: Prolegomena of a Normative Framework onAdministrative Discretion in the EU (Research Paper 519, Yale Law School, JohnM Olin Center for Studies in Law, Economics, and Public Policy 2014) .

3While the Parliament is involved in the appointment of the Commission and caneffect its dismissal (cf Consolidated Version of the Treaty on European Union [2010]OJ C83/13 (TEU) arts 17(7), 17(8)), a dismissal of the college of Commissioners byParliament is such a ‘nuclear’ option that it cannot be used to describe the normalrelations of accountability between these two institutions.

4Art 17(3) TEU.

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this, I will offer the mechanism of institutional trust. Soliciting this trustis to present oneself as trustworthy, as exhibiting behaviour that justifiesthe vulnerability that being subject to the Commission’s powers implies.

The relevance of this ‘balancing out’ between a position of trust andthe requirement of trustworthiness lies in its potential to strengthen thedemocratic character of the relationship between the Commission andthe persons subject to its rule-making. This argument can be linkedto ‘republican’ ideas, in particular the maxim that all relations, andespecially relations of authority, must be ordered in such a way as toprevent domination5 and to pay tribute to subjects as mundige Burger.6

This is not the usual way to think about the EU. The EU does not seemto be ‘about the people’. Originally conceived as a community of MemberStates, it has never fully embraced its relationship with its individualsubjects. The question of ‘why the Commission has been given its powers?’can be answered from this historical perspective, referring to the evolutionof the EU. Yet this answer is at best able to explain, but not able tojustify, the Commission’s powers.

The adage of the EU not being ‘about the people’ becomes questionablewhen recognising that the EU, and especially the Commission, has realregulatory authority over numerous persons. The claim of the EU notbeing ‘about the people’ would be either dismissing the significant effectthat EU regulatory acts have on individuals’ lives or paint the EU as beingetatist or elitist, denying its democratic aspirations. Instead, the below isan elaboration of how the adoption of delegated and implementing acts isindeed ‘about the people’.

5See also Phillip Pettit, ‘Republican Theory and Political Trust’ in Valerie Braithwaiteand Margaret Levi (eds), Trust & Governance (Russel Sage Foundation 1998)pp 295–314. For another example of the connection of this concern with fiduciaryprinciples see Evan Fox-Decent, ‘Democratizing Common Law Constitutionalism’(2010) 55 Mc Gill Law Journal pp 511–535.

6I refer to this term as echoing Kant (Immanuel Kant, ‘Beantwortung der Frage:Was ist Aufklarung?’ in Ehrhard Bahr (ed), Was ist Aufklarung? Thesen undDefinitionen (first published 1783, Phillip Reclam jun 1980)). In English, this termwould refer to a mature, independent and responsible citizen.

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2.1 The ‘Nature’ of Delegated andImplementing Acts

The main conceptualisations of the Commission adopting delegated andimplementing acts are those of the Commission being engaged as anagent with a delegated exercise of power, being engaged in implementinglegislation and being engaged in EU administration. When using theconcepts of ‘delegation’ and ‘implementation’ I do not refer to their legaldefinition but rather to their philosophical construction. I am thus notgoing to interpret Arts. 290 and 291 TFEU,7 but rather I am going toinquire into the ‘social’ meaning of these words, viewing both 290 and291 TFEU as delegation as well as implementation. What does it meanto be a recipient of an act of authority where the authority has beendelegated from a principal? What does it mean to implement a policy?What does it mean to be the canvas or recipient of such implementation?And lastly, what does it mean to act as an administration and what is itlike to interact with one?

One important factor in this inquiry is that the EU is not a nationalsystem. This means that descriptions of rule-making which have beendeveloped on the basis of national law have to be applied to the EU withgreat care. While many have an intuitive understanding of administrativeactions and their conditionality, most contributions hardly take timeto differentiate between which aspects of this understanding are simplyhabits of mind or culture and which belong properly to the conceptemployed. Instead, it is necessary to ask what delegation, implementationand administration describe when they are not connected to any specificnational context, and only then can these terms be used to inform ourunderstanding of EU delegated and implementing acts.

Categorising delegated and implementing acts in this way helps to seethem as examples of a broader class of human (and organisational) action.It is in the first instance an analytical or constructive mechanism, a sense-making device.8 Such categorisations help to understand what kind of

7Consolidated Version of the Treaty on the Functioning of the European Union [2010]OJ C83/47 (TFEU).

8‘Sense-making’ refers literally to what it suggests, the process of an actor making senseof her world, building knowledge and the ability to act as well as to evaluate. CfBrenda Dervin, ‘Sense-making Theory and Practice: an Overview of User Interests

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2.1 the ‘nature’ of delegated and implementing acts

action it is to adopt a delegated and implementing act. This means it isimplicit in the act of categorising to compare it to other forms of actionpreviously classified and to find it to have much in common.

Yet, categorisation goes beyond comparison and ordering, it involvesmore than claiming that one thing is similar to a group of other things.Through categorisation it is also possible to map the relations between (inthis case) the adoption of delegated and implementing rules and other formsof legal and political action. A categorisation of an act as ‘technical’ relatesit to the electorate in a different way than the categorisation as ‘political’,even though the two are not mutually exclusive. In this way categorisations,for example, as administrative, also contain an understanding of how theinstitution enacting the rules relates to their subjects.

Lastly, this labelling has normative consequences. Placing the adoptionof delegated and implementing acts into a specific category justifies theapplication of the same normative criteria to the adoption of delegatedand implementing acts which apply to other acts in the same category.The normative requirements which connect to a specific categorisationshape the expectations in the relationship between the Commission andthe persons subject to its rules. Ultimately, categories help decide whethera relationship works or whether it is in need of reform.

The categories of delegation, implementation and administration are notmutually exclusive, in fact they share a significant amount of ‘conceptualspace’. However, they are also not congruent as each has a different centreof gravity, as will become clear below.

This categorisation or classification will help to make sense of delegatedand implementing rule-making. It will become clear that while theseclassifications as administrative, implementing and delegated are apt, they

in Knowledge Seeking and Use’ (1998) 2(2) Journal of Knowledge Managementpp 36–46 and other works by her, reviewed by Rejvo Savolainen, ‘The Sense-MakingTheory: Reviewing the Interests of a User-Centred Approach to Information Seekingand Use’ (1993) 29(1) Information Processing & Management pp 13–28. The conceptis widely used in literature on information management and learning: Cf for exampleArjen Boin, Magnus Ekengren, and Mark Rhinhard, Making Sense of Sense-Making:The EU’s Role in Collecting, Analysing, and Disseminating Information in Timesof Crisis (Research Report Presented to the Swedish Civil Contingencies Agency,Swedish National Defense College 2014). Categorisation is a sense-making device,because it allows to draw inferences from information about a specific process andto thus turn this information into ‘actionable’ knowledge.

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do leave some questions still to be answered. Yet, they describe how publicauthority can touch individual persons very concretely, and already hintat some normative consequences which flow from this relationship.

2.1.1 Delegation

Acts of delegation are often linked to agency relationships and are fre-quent occurrences in all fields of law, yet the concept of delegation hasa particularly important place in EU law. This is evident, for example,in the principle of conferral.9 Delegation denotes the derived nature ofan exercise of power, and focuses on the ‘handing over’ of power. Thisconferral has two aspects: firstly that the principal who is handing overthe power has a certain ‘natural’ claim to it, and secondly that after theact of delegation the principal depends on the delegatee for fulfilling thefunctions the power is constructed for.10 This latter aspect explains thereasons for delegating in the first place, namely that the delegatee is insome way better placed to fulfil this function. It is the discussion of thisinstrumental superiority – being better placed – that much of the debateon specific relationships of delegation evolves around.11

Delegated and implementing acts are described by the concept of ‘dele-gation’, because they both depend on an explicit conferral of the power toadopt these acts, an act of delegation. A provision in a legislative act isnecessary to confer any specific rule-making capacity on the Commission,but the possibility of such acts of delegation is provided for by the Treaties.

9Art 5(1) TEU. See also Peter Lindseth, ‘Delegation is Dead, Long Live Delegation:Managing the Democratic Disconnect in the European Market Polity’ in ChristianJoerges and Renaud Dehousse (eds), Good Governance in Europe’s Integrated Market(Oxford University Press 2002) pp 139–163.

10For a critical discussion of the relevance and performative value of this latter aspect,see Kathleen McNamara, ‘Rational Fictions: Central Bank Independence and theSocial Logic of Delegation’ (2002) 25(1) West European Politics pp 47–76.

11The conditions for overall better outcomes, especially from the perspective of theprincipal, is also at the heart of principal-agent theory. While this theory possiblymade the greatest contribution to understanding the dynamics of delegation, italso has significant limitations in its unequivocal use of rational choice modelsfor explaining the interests and behaviour of both principals and agents. For ashort discussion, see Mark Thatcher and Alec Stone Sweet, ‘Theory and Practice ofDelegation to Non-Majoritarian Institutions’ (2002) 25/1 West European Politicspp 1–22.

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The Treaties prescribe that the recipient of that power is the Commis-sion.12 It is part and parcel of the institutional balance of the EU thatthe Commission would also be better placed functionally to adopt theserules.13

Even though delegated and implementing acts share many characteris-tics, the argument can be made that delegation of power under Art. 290TFEU needs to be differentiated from ‘delegation’ or conferral of powersunder Art. 291 TFEU. While it is clear that there are formal and proce-dural differences between Art. 290 and Art. 291 powers,14 it is less easyto determine how delegation under Art. 290 TFEU differs from delegationunder Art. 291 TFEU in kind. In literature notions of ‘legislative’ vs‘executive’ rule-making have been discussed.15 However, even if legislativedelegation can be meaningfully differentiated from executive delegation,they will both be acts of delegation and thus can be described togetherwithin this category.

As a concept, ‘delegation’ links the authority exercised in the adoptionof delegated and implementing acts back to those institutions adoptingthe basic act that delegated the power to the Commission in the firstplace. The ‘delegation’- perspective is focused on the origins of theCommission’s powers, more than on their exercise and impact. Theconcept of delegation incorporates the principal of a power (in this casethe legislator) and the agent (the Commission) without much conceptualspace for any beneficiaries aside from the principal. ‘Delegation’ thus

12The Commission is explicitly mentioned as being normally the only possible recipientfor the power to adopt either delegated or implementing acts (with the Councilbeing the recipient of the power to adopt implementing acts only in exceptionalcases). Arts 290, 291 TFEU.

13For discussion of the Commission’s role in the institutional balance, see Koen Lenaertsand Amaryllis Verhoeven, ‘Institutional Balance as a Guarantee for Democracy inEU Governance’ in Christian Joerges and Renaud Dehousse (eds), Good Governancein Europe’s Integrated Market (Oxford University Press 2002) pp 35–88 p. 49 et seq.

14The most basic formal difference lies in the difference in name, i.e. ‘delegated’ vs‘implementing’ as part of the title. Procedural differences lie in the way in whichParliament and Member States are involved in the decision making. Cf section 1.2above.

15Cf, for example, Paolo Ponzano, ‘‘Executive’ and ‘Delegated’ acts: The Situationafter the Lisbon Treaty’ in Stefan Griller and Jacques Ziller (eds), The LisbonTreaty: EU Constitutionalism without a Constitutional Treaty? (Springer 2008)pp 135–141. Cf also Power of legislative delegation [2010] European ParliamentResolution, P7 TA(2010)0127.

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does not necessarily give a very clear picture of the relation between theCommission and the persons subject to delegated and implementing acts,as this relation is ancillary and not central to the concept. In EU law, thismight explain why so many discussions of delegated and implementing actsfocus on the powers of Parliament and the Council (and the Commission),and lose sight of the subjects of the delegated power.

Yet, despite their involvement in the rule-making procedures, Parlia-ment and the Council do not have a firm hold on the rule-making exercise.The formal legal framework provides that the delegation of powers forthese acts always has a clear time limit,16 and the power can furthermorebe withdrawn if Parliament or the Council consider that its disadvan-tages outweigh its advantages. In practice, however, it appears to bevery difficult for these bodies to oversee all delegated and implementingrule-making activities, and Parliament and the Council do not form aninstitutional opinion on each and every exercise of delegated and imple-menting authority.17

16But see the delegation for an indeterminate time in Directive 2014/59/EU of theEuropean Parliament and of the Council of 15 May 2014 establishing a frameworkfor the recovery and resolution of credit institutions and investment firms andamending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC,2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU,and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the EuropeanParliament and of the Council [2014] OJ L173/, Art. 115.

17Most of the research on how the Commission interacts with the Council and Parliamentwhen drafting delegated and implementing acts centres on the capacity of Parliamentand the Council to veto especially delegated acts (but note also Regulation (EU)No 182/2011 of the European Parliament and of the Council of 16 February 2011laying down the rules and general principles concerning mechanisms for controlby Member States of the Commission’s exercise of implementing powers [2011] OJL55/13, art 11): Cf Thomas Christiansen and Matthias Dobbels, ‘Non-LegislativeRule Making after the Lisbon Treaty: Implementing the New System of Comitologyand Delegated Acts’ (2013) 19(1) European Law Journal pp 42–56; Kevin M. Stack,‘The Irony of Oversight: Delegated Acts and the Political Economy of the EuropeanUnion’s Legislative Veto Under the Treaty of Lisbon’ (2014) 2(1) Theory andPractice of Legislation pp 61–84; Michael Kaeding and Kevin M. Stack, ‘LegislativeScrutiny? The Political Economy and Practice of Legislative Vetoes in the EuropeanUnion’ (2015) 53(6) Journal of Common Market Studies pp 1268–1284. However,the problem starts earlier, namely at the level of scrutiny. For contributions inthis regard, see Rob van Gestel, ‘Primacy of the European Legislature? DelegatedRule-Making and the Decline of the “Transmission Belt” Theory’ (2014) 2(1) Theoryand Practice of Legislation pp 33–59; Daniela Corona, ‘The Adoption of Secondary

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At the same time as being focused on the ‘principal’, ‘delegation’ impliesa certain measure of ‘autonomy’ of the body which has received thepowers.18 Were the principal to control every action of the delegatee, therewould not only be no sense in delegation, it would also not be called areal act of delegation. This ‘autonomy’ should stay in inverted commas;it cannot be compared to private autonomy, but takes the much morerestricted form of discretion. Delegation, as discretion, is placed in thetension between control by the principal and choices of the delegatee.This discretion is intended, since it is necessary to give the delegatee theopportunity to use her advantageous position for decision-making.19

However, delegation is not entirely utilitarian and discretion has animportant limitation in that the delegatee is not free to dispose of herdecision-making power. She is not free to pass it on to a third party, even ifthere might be utilitarian considerations that recommend this,20 and she islikewise not free to renounce the power delegated.21 Such prohibitions are

Legislation through Comitology in the EU: Some Reflections on the Regulation(EU) 182/2011 in Comparison with the Pre-Lisbon Reform’ (2014) 2(1) Theory andPractice of Legislation pp 85–107.

18Robert L. Brown, ‘Measuring Delegation’ (2010) 5 Review of International Organisa-tions pp 141–175, p. 143.

19This intentional discretion is complemented – and boosted – by the necessary in-completeness of any act of delegation. Peter Grajzl, ‘A Property Rights Approachto Legislative Delegation’ (2011) 12 Economics of Governance pp 177–200, p. 178.Thus, the document or communication which marks the act of delegation can nevercover all eventualities and can never be sure to entirely preclude misunderstanding.This unintentional ‘autonomy’ can be much more than a residual artefact as reportedby Susan Shapiro: Susan Shapiro, ‘Do Advance Directives Direct?’ (2015) 40(3)Journal of Health Politics, Policy and Law pp 487–530.

20This was assumed to be a salient aspect already by Locke (John Locke, SecondTreatise of Government (first published 1690, Project Gutenberg, 2010) Sec 380; forfurther explanations, see Peter H. Aranson, Ernest Gellhorn, and Glen O. Robinson,‘A Theory of Legislative Delegation’ (1982) 68/1 Cornell Law Review pp 1–67, p. 4.The prohibition to further delegate powers ascribed to an institution by the Treatiesis also the content of the Meroni doctrine in EU law, stemming from Case 9/56Meroni & Co v High Authority of the European Coal and Steel Community [1958]ECR English special edition–133 (ECLI:EU:C:1958:7). For further discussion in thepresent context see Robert Schutze, ‘‘Delegated’ Legislation in the (new) EuropeanUnion: a Constitutional Analysis’ (2011) 74/5 Modern Law Review pp 661–693.

21Cf Case T-521/14 Kingdom of Sweden v European Commission (2015) electronicreports of cases: not yet published (ECLI:EU:T:2015:976), in which the Courtreprimanded the Commission for not having adopted a delegated act it had been

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justified with reference to the distributive effect of delegation: delegationalso constitutes a (re)distribution of authority.22

Rule-making as delegated action is bound to the original act of dele-gation. Thus, formal restrictions that apply to the principal’s exercise ofpower containing the mandate for a delegated and implementing act arelikely to also apply to the delegated or implementing act stemming fromit.23

Normatively, the concept of ‘delegation’ makes the delegatee subjectto accountability requirements.24 Because the power is not ‘original’ but‘derived’ and conditional, the existence of the conditions for conferral needto be established continually.25 In line with the focus on the perspectiveof the principal, this accountability will often be understood as directedtowards the principal, although this is not necessarily the case. The logicof delegation is that the delegatee is better able to fulfil the task than theprincipal and sometimes the principal might not be very well placed toexercise oversight over the delegatee.26

To sum up, the discussion of the classification of delegated and im-plementing acts as ‘delegation’ serves to show the disconnect betweenauthority and subject, between the Commission and the individual personsit regulates, rather than a construction of their relation. By focusing thegaze on the ‘principal’ undertaking the act of delegation, it directs the

tasked with.22Burkard Eberlein and Edgar Grande, ‘Beyond Delegation: transnational regulatory

regimes and the EU regulatory state’ (2005) 12/1 Journal of European Public Policypp 89–112, p. 90.

23For a discussion based on this assumption, see Case C-355/10 European Parliamentv Council of the European Union (Schengen Border Code) [2012] electronic reportsof cases (ECLI:EU:C:2012:207, Opinion of AG Mengozzi) para 79, which discussesthe limits that the legal base of the basic act exercises on the delegated act.

24For an example of this link see the discussion in Deirdre Curtin, ‘Delegation to EUNon-Majoritarian Agencies and Emerging Practices of Public Accountability’ inDamien Gerardin, Rudolphe Munoz, and Nicolas Petit (eds), Regulation throughAgencies in the EU: a new paradigm of European governance? (Routledge 2006)pp 87–117.

25Thus, Stewart understands accountability as “institutional arrangements for confer-ring and controlling the use of power”. Richard B. Stewart, ‘Remedying Disregardin Global Regulatory Governance: Accountability, Participation and Responsiveness’(2014) 108 American Journal of International Law pp 211–270, p. 245.

26In these cases, oversight by independent bodies is common. This is arguably oneaspect of the judiciary function in the institutional balance.

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focus away from those the delegated rule-making is aimed at.

At the same time, the concept of delegation also serves to underpinthe autonomy or discretion of the Commission in adopting delegatedand implementing acts. This discretion, which has been described in thechapter above, can be explained conceptually by what ‘delegation’ means.Delegation necessarily includes a separation of the rule-making powersfrom the principal so as to accomplish the transferral to the agent. Thisrelocation of power creates much of the independence of the Commission.

2.1.2 Implementation

The goal or function of the conferral of rule-making powers is betterillustrated by the concept of ‘implementation’. ‘Implementation’ directsthe gaze to another aspect of delegated and implementing acts, namely totheir taking effect. ‘Implementation’ describes delegated and implementingacts, because these are acts that put the law into practice and are oftenrequired for the practical effect of the law.27

Through implementation’s focus on (behavioural) change outside the le-gal sphere, classifying delegated and implementing acts as implementationalready describes the considerable relevance of the relation between the im-plementing body and the subject whose situation the policy is set to affect.However, given the empirical and behavioural focus of the overwhelmingmajority of implementation research, the concept of implementation isweak in providing normative guidelines regarding how the implementer isexpected to relate to the subject.

Implementation as a socio-political phenomenon is a rather new subjectof study and has only received scientific attention since the seventies.28

Before this time, implementation was not thought of as a phenomenon initself. The effect ascribed to policies was based on their inherent effective-

27Stine Andersen, The Enforcement of EU Law: the role of the European Commission(Oxford University Press 2012) pp. 165, 167.

28For early literature on implementation see Jeffrey L. Pressman and Aaron Wildavsky,Implementation: how great expectations in Washington are dashed in Oakland; or,why it’s amazing that federal programs work at all, this being a saga of the economicdevelopment administration as told by two sympathetic observers who seek to buildmorals on a foundation of ruined hopes (3rd edn, University of California Press1984) or Erwin C. Hargrove, ‘Implementation’ (1976) 5(1) Policy Studies Journalpp 9–15.

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ness or correctness as well as based on the obedience of administratorsor subjects. In literature it is now common thought that a policy canbe well thought through, and can be in the hands of well-meaning andfavourably disposed individuals, but nevertheless fail to have the desiredeffect.29 This insight marks the start of implementation studies, namelyresearch into those processes that transform a decision into an effect.

Implementation focuses on a conversion process. It is the process ofturning an idea (or decision) into reality. Implementation as a scientificconcept usually denotes a behavioural or empirical rather than normative,formal or moral perspective,30 as it is focused on what is necessary toachieve results, not how people ought to react to a certain policy.

In the EU, the term ‘implementation’ is particularly connected to thedynamics of the multi-level system of governance,31 in which policiesformulated at the Union level are transposed by the Member States totake effect.32 This is expressed in Art. 291 TFEU, which refers primarilyto the implementation by Member States, with the Union only stepping

29This is the central tenet in Pressman and Wildavsky (n 28), but see also BenjaminL. Crosby, ‘Policy Implementation: The Organizational Challenge’ (1996) 24(9)World Development pp 1403–1415; Ian Scott, The Public Sector in Hong Kong:Government, Policy, People (Hong Kong University Press 2010) p. 201.

30Søren C. Winter, ‘(Section 5: Implementation) Introduction’ in B. Guy Peters andJon Pierre (eds), Handbook of Public Administration (Sage 2003) pp 205–211 p. 206.

31Simona Milio, From Policy to Implementation in the European Union: the Challengeof a Multi-level Governance System (Tauris Academic Studies 2010) p. 11 et seq.For an elaboration on the concept of multi-level governance see Deirdre Curtin andIge Dekker, ‘The EU as a ‘Layered’ International Organization: Institutional Unityin Disguise’ in Paul Craig and Grainne de Burca (eds), The Evolution of EU Law(Oxford University Press 1999) pp 83–136, Andy Smith, ‘Multi-Level Governance:What it is and How it can be Studied’ in B. Guy Peter and Jon Pierre (eds),Handbook of Public Administration (Sage 2003) pp 377–386, and the contributionsin Ian Bache and Matthew Flint, Multi-Level Governance (Oxford University Press2004). For a recent review of the field see Paul Stephenson, ‘Twenty years ofmulti-level governance: ‘Where Does It Come From? What Is It? Where Is ItGoing?’’ (2013) 20(6) Journal of European Public Policy pp 817–837.

32Ulf Sverdrup, ‘Implementation’ in Paolo Graziano and Maarten P. Vink (eds), Euro-peanization: new research agendas (Palgrave Mcmillan 2007) pp 197–211 p. 197;Miriam Hartlapp, ‘Two Variations on a Theme? Different Logics of ImplementationPolicy in the European Union and the International Labour Organization’ in JuttaJoachim, Bob Reinalda, and Bertjan Verbeek (eds), International Organizationsand Implementation: Enforcers, Managers, Authorities? (London and New York,2008) pp 21–34.

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in conditionally.

Implementation is concerned with exercising power, based on a legalmandate.33 Implementation is the ‘completion’ of the policy process.34

Law has often no social effect without implementation; in this sense,implementation is ‘realisation’.35

This exercise of power can take the form of commanding behaviour,but can also be manifested in the creation of structures and the formalenabling or certifying of behaviour and social institutions. In effectiveimplementation, these different forms mix together, in a web of interactionsbetween public officials and private individuals.36

This variety of form is well mirrored in the very different forms ofdelegated and implementing acts and the different uses to which they areput. Indeed, the classification as ‘implementation’ is helpful in elucidatingwhat an act publishing the distribution of funds to Member States37 hasin common with an act setting up an authorisation regime for dangerouschemicals.38 Even though the two differ in subject matter, in the kinds oflegal institutions they create and in the way they affect the legal positionof their subjects, both acts further concretise and realise the policy thatwas laid down in their basic legislative instrument.

‘Implementation’ is the process of making the ideas of the legislator

33Alexander Boer and Tom van Engers, ‘Knowledge about Implementation of the Law:Reflections on knowledge representation and the role of the state in making the lawwork’ (Leibniz Centre for Law Working Paper, Amsterdam, 2014).

34Denis Galligan, Law in Modern Society (Oxford University Press 2006) p. 310.35Marta Roca i Escoda, ‘De la Mobilisation du Droit a la Realisation du Droit’ (2011)

94 Politix pp 59–80.36Kenneth Hanf and Theo A.J. Toonen, ‘Editor’s Introduction’ in Kenneth Hanf and

Theo A.J. Toonen (eds), Policy Implementation in Federal and Unitary Systems(Martinus Nijhoff Publishers 1985) pp V–XI p. VII et seq.

37Commission Delegated Regulation 2015/791 of 27 April 2015 amending Annex I toRegulation (EU) No 1305/2013 of the European Parliament and of the Councilon support for rural development by the European Agricultural Fund for RuralDevelopment [2015] OJ L127/1.

38Commission Implementing Regulation (EU) No 354/2013 of 18 April 2013 on changesof biocidal products authorised in accordance with Regulation (EU) No 528/2012 ofthe European Parliament and of the Council [2013] OJ L109/4; Commission Imple-menting Regulation (EU) 2015/1609 of 24 September 2015 approving propiconazoleas an existing active substance for use in biocidal products for product-type 7 [2015]OJ L249/17.

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apply to social reality.39 The concept of ‘implementation’ draws attentionto the fact that the specific task at hand largely depends on the matchof these legislative ideas with the (possibly various) individual situationson the ground.40 This is not so much a question of accuracy, but more ofgovernability.41

It might be useful to envisage the implementation process as a journeyof which the legislative mandate presents the starting point and the effecton the ground the end point. Quite evidently, the specific structure forthe landscape in which this journey of implementation takes place isinfluenced by the original decision or policy to be implemented. Yet, theoriginal policy cannot determine the actual path to be travelled furtheralong the road. Majone and Wildavsky are very outspoken in pointingthis out and declare that “[w]e require the impossible when we expectour bureaucrats to be at the same time literal executors and successfulimplementers of policy mandates.”42 Instead, and possibly turning thehierarchy around, when implementation is taken to perfect policy, thiscan also mean changing it.43 The argument is that as policies are madebefore the fact, they are imperfect and immature. They can only matureas developments and implementation unfolds.44

39Thus, it can in some contexts be used as an equivalent to achieving social change. Cf,for example, Clem McCartney, ‘Implementing Policies for Shared Societies’ in MariFitzduff (ed), Public Policies in Shared Societies, a comparative approach (PalgraveMacmillan 2013).

40Roca i Escoda (n 35).41Governability marks the overall capacity for a system to be steered. For elaborations

of the concept in the context of policy-making and policy implementations seeJan Kooiman, ‘Exploring the Concept of Governability’ (2008) 10(2) Journal ofComparative Policy Analysis pp 171–190. For a more classic elaboration see RalfDahrendorf, ‘Effectiveness and Legitimacy: on the “Governability” of Democracies’(1980) 51(4) The Political Quarterly pp 393–410.

42Giandomenico Majone and Aaron Wildavsky, ‘Implementation as Evolution (1979)’in Jeffrey L. Pressman and Aaron Wildavsky (eds), Implementation: how greatexpectations in Washington are dashed in Oakland; or, why it’s amazing that federalprograms work at all, this being a saga of the economic development administrationas told by two sympathetic observers who seek to build morals on a foundation ofruined hopes (3rd edn, University of California Press 1984) pp 163–180 p. 175.

43Along this line, Lipsky famously claims that field workers delivering policies are thereal ‘policy-makers’. Michael Lipsky, Street-Level Bureaucracy: Dilemmas of TheIndividual in Public Service (Russell Sage Foundation 1980) ch. 2.

44Majone and Wildavsky (n 42) p. 178.

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Implementation involves a learning process, which should not be re-stricted to the ‘implementer’ on the ground, but also feed back to theoriginal policy-maker. In this way, implementation is the test for thehypothesis implicit in legislation. The original decision implicitly or ex-plicitly includes a set of assumptions on how to act to reach a certainresult. Implementation is testing this set of hypotheses by putting itinto practice45 – whereby this legitimately includes the possibility that ahypothesis proves to be wrong.

Using the classification of ‘implementation’ for delegated and implement-ing acts then denotes (as does ‘delegation’) the link and dependence on aprior decision or act, and points again to the derived aspect of delegatedand implementing acts. Again mirroring the concept of ‘delegation’, ‘im-plementation’ also ascribes implementing rules a certain independence inmaking clear that, while dependent on the original decision, implementingrules are not determined by it. Where ‘delegation’ made this claim, it wasbased more on the relation between the actors of principal and agent, whilefor ‘implementation’ this claim is based more on the action of legislatingon the one hand and implementing on the other hand.

Moreover, the fact that implementing rules are not determined by leg-islation is not only based on the practical necessities of administrativediscretion, but it is also an important and desirable feature of implemen-tation. Delegated and implementing acts serve tasks which legislativeacts cannot serve: legislation can neither be as specific nor as timely asdelegated and implementing acts.46

Referring to delegated and implementing acts as ‘implementation’ alsomeans that it is not possible to derive a substantive hierarchy betweenlegislative acts and delegated or implementing acts. Policy-makers need tokeep an eye on implementation processes in the same way as implementerswithin the format of the policy. It is possible that the fact that theCommission is the party implementing EU policies at Union level and is

45Angela Browne and Aaron Wildavsky, ‘Implementation as Exploration (1983)’ inJeffrey L. Pressman and Aaron Wildavsky (eds), Implementation: how great ex-pectations in Washington are dashed in Oakland; or, why it’s amazing that federalprograms work at all, this being a saga of the economic development administrationas told by two sympathetic observers who seek to build morals on a foundation ofruined hopes (3rd edn, University of California Press 1984) pp 232–256 p. 254.

46A case in point is the virtually daily adjustment of customs duties taking the form ofimplementing acts by the Commission.

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at the same time the only institution with the power to initiate legislationcaters to this important need for feedback.

At the same time, the concept of ‘implementation’ integrates the subjectof a rule into the picture. The very act of implementing is located in theinteraction with these subjects; in this way an ‘act of implementation’is defined by its (immediate) capacity to change subject’s behaviour orthe situation of subjects. The measure of implementation is how (much)these subjects are impacted – impact is, to use social science terminology,the dependent variable.47 This presents an important extension of thepicture painted by the concept of ‘delegation’. Because it seeks out impactand change, ‘implementation’ is better able to support inferences abouthow the Commission relates to the persons subject to its rule-makingthan ‘delegation’. As the implementing agency, the Commission is theinstitutional actor that brings about (or aims to bring about) change inthe behaviour and situation of the persons within the Member States.

Normatively, the classification as ‘implementation’ denotes the need fora certain sensitivity to the subjects of implementing rules. In the minimalcase, this sensitivity is instrumental, since the impact of a policy canhardly be achieved reliably without an implementing instrument beingbased on a good understanding of the situation and restraints that thepersons affected are subject to.

Beyond the minimal case, this sensitivity is central to the concept ofimplementation. Where a policy aims at a change in the legal, political orsocial situation of individuals, these individuals and their legal, politicalor social context are at the very core of the issues that ‘implementation’engages with.

However, even though the persons subject to a rule are central to it,the concept of ‘implementation’ provides more analytical than normativeguidance. The concept of implementation offers little guidance into howthe rule-makers are supposed to interact with the persons subject to their

47Renate Mayntz, ‘Zur Einleitung: Probleme der Theoriebildung’ in Renate Mayntz(ed), Implementation Politischer Programme II: Ansatze zur Theoriebildung (West-deutscher Verlag 1983) pp 7–24 p. 16. Often, effectiveness is taken as the measure forimplementation: Roca i Escoda (n 35) p. 73. The relevance of impact is sometimeseven criticised as too high and ‘implementation’ is criticised as being goal orientedto a problematic degree. Cf Renate Mayntz, ‘Governance Theory als fortentwickelteSteuerungstheorie?’ in G. F. Schuppert (ed), Governance Forschung (Nomos 2005)pp 11–18.

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rules. Moreover, it offers no guidance on the values which should informthis interaction.

2.1.3 Administration

The concept of ‘administration’ includes more of such normative guidelines.‘Administration’ is a legal concept as well as a subject of often moreempirical political science and sociological research.

Delegated and implementing acts are often treated as a form of ad-ministrative action.48 The administrative label appears to come rathernaturally, often without further motivation. This is arguably supported bythe creation of ‘legislative acts’ through the Treaty of Lisbon, a categorisa-tion which makes the use of complimentary categories like ‘administrativeacts’ even more intuitive.

The administrative label appears to be based on either intuitions ofseparation of power49 or on intuitions of hierarchy of norms.50 Thus,according to a (simplified) separation of powers logic, rules not adoptedby Parliament (or a comparable legislative institution), are administrativeor executive rules. According to a hierarchical view, those rules that arederived from legislative acts and thus fall below them in hierarchy, areadministrative acts.

In many cases, the label ‘administrative’ is (implicitly) modelled onnational legal systems,51 attempting to order the European legal spaceaccording to nationally developed criteria. Such a categorisation runsthe risk of ‘methodological nationalism’52 and consequently might be

48For example, Joana Mendes, ‘The Making of Delegated and Implementing Acts:Legitimacy Beyond Inter- Institutional Balances’ in Carl Fredrik Bergstom andDominique Ritleng (eds), Law-Making by the EU Commission: The New System(Oxford University Press 2016) pp 233–254. So, generally, also Hofmann, Rowe, andTurk (n 2). Even though, when specifically dealing with delegated and implementingacts, they are described as ‘subordinate legislation’. ibid chapter 15.

49Mendes, ‘The Making of Delegated and Implementing Acts’ (n 48).50Hofmann, Rowe, and Turk (n 2).51An example for explicitly deriving the understanding of administrations from national

law is Jurgen Schwarze, European Administrative Law (2nd edn, Sweet and Maxwell2006).

52For an explanation of the phenomenon cf Daniel Chernilo, ‘The Critique of Method-ological Nationalism: Theory and History’ (2011) 106(1) Thesis Eleven pp 98–117.For an account of the problem it causes for EU law cf Christian Joerges, ‘The

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misleading in not taking the postnational character of the EU legal ordersufficiently into account. However, this does not mean that the label‘administration’ for delegating and implementing acts is not a fitting one.

Literally, or most basically, to administer is to attend to one’s own orsomeone else’s affairs.53 In terms of the state, this is then to attend topublic affairs. While this definition does not serve to exclude other publicpowers, such as the legislature, the judicature or the core executive, itnevertheless provides a focus for the concept of administration: the dayto day management of community. The fact that this does not yet serveto exclude other institutions, is also a case in point, as the definition ofadministration using the substantive content of its acts seems impossible.Often, and certainly in the EU context, the content of administrativeacts could just as well have been the content of legislation, or of a courtdecision, depending on the case. Given two (hypothetical) acts of thesame content, one being enacted by administration and another by eitherlegislature or judicature, it is rather the focus, scope and status of theacts which differ.

Applied to delegated and implementing acts, their categorisation asadministrative acts acknowledges that, even though these are acts ofgeneral application, they are concerned with the details of a policy andthat their lifetime is likely (though not yet determined) to be rathershort. In addition, ‘administrative’ also already describes the adoptionof these acts by a non-representative body, in juxtaposition to legislationsanctioned by Parliament.

What these characteristics mean is a matter under debate. Thereare several theories of administration which have had impact on socialsciences and law, which conceptualise ‘administrations’ so differently thatthey have contrasting perspectives on how the administration and the‘administres’54 relate.

Challenges of Europeanization in the Realm of Private Law: A Plea for a newLegal Discipline’ (2004) 14 Duke Journal of Comparative and International Lawpp 149–196. Even though this latter contribution focuses on private law, there is noreason to believe EU public law to stand aloof.

53Cf the entry for ‘administer’ in The New Oxford Dictionary of English (OxfordUniversity Press 1998).

54The term ‘administre’ is a French administrative law concept. It is proper counterpartto the administration, which deals not only with citizens, but also aliens and notonly with natural, but also with legal persons. I use it here, as it describes more

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There is a very significant strand in the literature on administrationswhich sees no relational links between the administrations and the admin-istres. Starting from Weber,55 who was one of the first to systematicallyfocus on the phenomenon or concept of administrations,56 administrationis often considered to be attaching to a rule, to government.57 Thus, itis its relation to this ruler and its role in concentrating, consolidatingand exercising power that is relevant, whereby this exercise of power isadministrative action, without much concept of the ‘real world’ effect ofit.

Many of the aspects that Weber raises58 are still relevant today, par-ticularly the aspect of administrations as exercising delegated (and thus‘borrowed’) powers and that of administrations as objective and rational.59

precisely than any English language term the ‘subjects’ of an administration. Fora discussion of the position of the administre in the system of legal protection seeJean Rivero, ‘Controle Juridictionnel et Nouvelles Protections de l’Adminis-tre:Rapport de Synthese’ in Charles Debbasch (ed), Administration et Administres enEurope (Editions du CNRS 1984) pp 325–336, for discussion of more proceduralnorms see Jacques Chevalier, ‘De l’Administration Democratique a la DemocratieAdministrative’ (2011) 137-138(1) Revue francaise d’administration publique pp 217–227.

55See the ’Herrschaftssoziologie’ developed by Weber, specifically his thoughts on’burokratische Herrschaft’: Max Weber, Wirtschaft und Gesellschaft (Koln andBerlin, 1964) ch. IX(2).

56Renate Mayntz, Soziologie der offentlichen Verwaltung (juristische Verlad CF Muller1978) p. 5. Weber is still widely cited today where-ever research on administrationor bureaucracy is conducted, and his account of administrations remains orthodoxyto this day. Thus, for example, Anchrit Wille’s account of a ‘normal’ administrationis a Weberian administration. Anchrit Wille, The Normalization of the EuropeanCommission: Politics and Bureaucracy in the EU Executive (Oxford UniversityPress 2013).

57Any author writing in English about Weber will be faced with a dilemma in translation:Weber uses the term ‘Herrschaft’ which is not congruent with any term in the Englishlanguage (although possibly closest to ‘rule’ as in ‘the rule of Henry VIII’). While it ismostly translated as ‘authority’ in English, this translation is somewhat misleading.‘Herrschaft’ is much more archaic (and can even be coercive), and ‘authority’ appearstame in comparison.

58While Weber discusses a number of forms of administrations, according to him theform that an administration takes in a modern state is that of a bureaucracy (Weber(n 55) p. 697). Indeed, the bureaucratic form is so accepted that today one mighteven use the terms ‘administration’ and ‘bureaucracy’ interchangeably. See, forexample Enrico Peuker, Burokratie und Demokratie in Europa (Mohr Siebeck 2011).

59Weber (n 55) p. 703 et seq.

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Both of these aspects play a role in the adoption of delegated andimplementing acts. As discussed above, their derived character is clearlyvisible in their need for a legislative basis. While within the EU theprinciple of conferral60 has a broader application, since the whole of theEU is conceived as a ‘derived’ regime,61 it is relevant in a stronger andmore narrow sense to delegated and implementing acts, whose mandate isoften more specific and limited than the conferral by Treaty provisions onEU institutions.

The second aspect of objective rationality is relevant to the discussionof how delegated and implementing acts are properly adopted. Theconventional wisdom is that these are appropriately adopted by a bodywith a professional (and not political) mandate, with the help of experts.This wisdom is based on the understanding of delegated and implementingacts as non-political.62

Realising the problems with isolated bureaucracies and the deficiencies intheir justification, Habermas develops a view on administration as a specificpublic discourse involving the persons affected. Habermas recognises thatlegislation often does not provide the administration with directives thatenable it to simply strive for a well-defined public interest. Instead,increased levels of discretion, increased powers and broader responsibilitiesrequire the administration to embark into more ‘political’ (ends-related,communicative) terrain.63 This can be accepted as legitimate, in as far as

60Art. 5 TEU.61This situation is central to the claim by Peter Lindseth that the EU as a whole has

an administrative character. Cf Peter Lindseth, Power and Legitimacy: Reconcil-ing Europe and the Nation State (Oxford University Press 2011); Peter Lindseth,‘Constitutionalism Beyond the State? The Administrative Character of EuropeanGovernance Revisited’ (2012) 33/5 Cardozo Law Review pp 101–113. For a discus-sion see: Turkuler Isiksel, ‘Special Book Review Symposium Power and Legitimacy’(2012) 8 European Constitutional Law Review pp 128–138, Stefano Bartolini, ‘SpecialBook Review Symposium Power and Legitimacy’ (2012) 8 European ConstitutionalLaw Review pp 139–147, Bruno deWitte, ‘Special Book Review Symposium Powerand Legitimacy’ (2012) 8 European Constitutional Law Review pp 148–152 andDaniel Kelemen, ‘The European Union’s Legitimacy: Administrative not Consti-tutional, or Administrative then Constitutional?’ (2011) 18 Columbia Journal ofEuropean Law pp 157–164.

62For a critical discussion of the idea that administrations are rational and non-politicalsee Elizabeth Fisher, Risk Regulation and Administrative Constitutionalism (HartPublishing 2007).

63Jurgen Habermas, Between Facts and Norms: contributions to a discourse theory of

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the factual power of the administration is still founded in communicativedecision-making processes.64 Such processes can also be participative orconsultative procedures.

For Habermas, the ‘red line’ for inadmissibility or illegitimacy is thatadministrators must have no access to own, personal reasons, in that theycannot reason as individuals, but instead are required to reason as officialsor as public authority. Their personal views and preferences must beabsent from justification of decisions.65

Administrative acts, as well as legislation, are then the outcome ofa discourse and both are co-created by the persons subject to them.Administration is communal action as is legislation. This stresses thepublic participation in administration, instead of its removal from thegeneral public.

However, such notions must be viewed with care in the case of delegatedand implementing acts. The elements of public participation in theadoption of delegated and implementing acts often do not take the form of afree and open debate with the public, but instead are highly pre-structuredand targeted.66 In the adoption process of delegated and implementingacts, consultations are usually limited to the selected organised interestspresent in expert groups, and the Member States organised in the Counciland Comitology Committees as well as the European Parliament.

Nevertheless, the focus on discourse and decisions brings with it thequestion of the subjects of administrations. This focus is even strongerin another notion which arguable also lies at the core of the concept of‘administration’, namely that of ‘service’. Administrative staff are oftendescribed as ‘civil servants’ and their task can be understood to be thatservice. Indeed, some writers use the term ‘administration’ synonymouslywith ‘government services’ or ‘public services’,67 whereby the raison d’etreof the administration is the provision of services to the citizens. To be

law and democracy (William Rehg tr, MIT Press 1996) p. 190.64ibid, p. 191.65ibid, p. 192.66See, for example the description of existing participation possibilities and the critique

of them being too closed and instrumentalised in Joana Mendes, Participation inEU Rule-Making: A Rights-Based Approach (Oxford University Press 2011) chs.6-8.

67See, for example, John M. Gaus, ‘Notes on Administration’ (1931) 25/1 AmericanPolitical Science Review pp 120–134.

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useful, these services correspond to the needs of the population. Conse-quently, it is the task of administrations to respond to (changes in) theneeds of individual persons, which can correspond to technological orsocial change.68

In this, an administration has an important political function,69 namelyto assist the popular sovereign in her role as sovereign. In a (absolute)monarchy, the administration serves the crown, in a democracy, theadministration serves its subjects.

Consequently, individual person’s direct connection with the adminis-tration is essential. For affected persons to fulfil their political role in ademocracy, administrations must have frequent interactions with them,so as to be able to assist them. This is both, to find out about the needsand will of the sovereign people, as well as to deliver the services needed:Citizens depend on administrations for assistance in fulfilling their ownpolitical role. In order to do this, administrations collect and disseminateinformation, which is necessary as the basis for political action. Thisaction on the other hand also often ultimately takes the form of rules,such as delegated and implementing acts.

Public administration is characterised by the tension between the goals ofserving the community and serving the individual: atomist/ individualistand unitarian views are contradictory at times. However, the goal of‘serving’ is central in both cases.

This view also describes a lack of predefined power relations across publicadministration (in contrast to legal, institutional relations of delegationand account). The goal of serving allows for functional differentiation, butresists to a certain extent a categorical subordination of one institution toanother. Every institution in a democratic polity will equally serve thepeople, though each in their own way.

This argument of the difficulties in effecting hierarchies can also beapproached from a different direction, namely that of capacities. Whilethere might be a formal subordination under ‘political institutions’, thepractical distribution of expertise may actually make the administratormore powerful than her political superiors.70

68John M. Gaus, Reflections on Administration (University, Alabama, 1947) p. 23.69Johan P. Olsen, ‘Citizens, Public Administration and the Search for Theoretical

Foundations’ (2004) 37/1 Political Science and Politics pp 69–79.70Johan P. Olsen, ‘Towards a European Administrative Space?’ (2003) 10/4 Journal

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2.2 exercise of authority & discretion

As a consequence delegated and implementing acts take an importantintermediary function between legislation and ‘real life’. An importantpart of this process is the determination of the factual context in whichthe legislative intent takes effect.

A relevant aspect of this attachment to ‘real life’ is the requirement fordelegated and implementing acts to be sensitive to the needs, interestsand opinions of the ‘administres’. This requirement is based not onlyon reasons of efficiency,71 but also on an understanding of the ‘service’function of administrations. Thus, delegated and implementing acts shouldbe an expression of service to the persons subject to them.

2.2 Exercise of Authority & Discretion

It emerges from the above discussion that Commission powers to adopteddelegated and implementing acts are rather concrete and often limited,but they are also often wielded rather autonomously guided only byprinciples of rationality and professionalism. The concepts of delegation,implementation and administration make it easier to inquire into therole of Parliament and the Council in the adoption of delegated andimplementing acts, than into the relation between the Commission andthe persons subject to its rule-making. However, implicit in these conceptsis an understanding also of the latter.

Moreover it seems that the Commission is allowed to hold itself relativelyaloof from individual persons and to direct its accounts and justificationstowards the other EU institutions. At the same time, the positive impacton the persons within the Member States is the ultimate measure ofsuccess of a policy and the metric the Commission uses to justify itsactions to the other EU institutions. The Commission is delegated thepower to adopt delegated and implementing acts precisely because theCommission has been uniquely placed to achieve this impact.

of European Public Policy pp 506–531, p. 512. This view is also voiced by Weber,Weber (n 55) p. 165.

71Even though this aspect is where the focus of the Commission lies. See European Com-mission, ‘European Governance - A White Paper’ (Communication) COM(2001)428final and European Commission, ‘Communication from the Commission to theEuropean Parliament, the Council, the European Economic and Social Committeeand the Committee of the Regions: Better regulation for better results – An EUagenda’ (Communication) COM(2015) 215 final.

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Nevertheless, in adopting delegated and implementing acts, the Commis-sion could be seen as serving the persons within the Member States, andas mitigating between individual and communal needs and interests. Inthis view, the persons affected and the Commission together discursivelyshape the day to day coordinates of life in the EU.

Yet, overall, the notion of autonomy of the Commission as rule-makerstands out. However constrained and ‘integrated’, it is still the Commissionthat authors these acts which bind it, and has the discretion to form andshape them. As a result, Commission delegated and implementing rule-making should be understood as an exercise of authority and discretion.Authority here describes the power to issue directives which in turn areaccepted and obeyed,72 and discretion refers to the capacity of an actorexercising authority to decide on the content of such a directive among anumber of options.

While this authority and discretion is not necessarily something to becondemned, it is certainly something in need of explanation. Characteris-ing delegated and implementing acts as exercises of discretionary authorityand keeping in mind the public character of Commission rule-making,presents a starting point for further inquiry into the Commission’s positionwhen adopting delegated and implementing acts.

2.2.1 Freedom and Power

The concept of discretion is a rather iridescent one. This is not becauseit is in itself hard to understand, on the contrary, freedom of choice indecision-making is very familiar to everyone in connection to both privateand public functions – just as familiar as the understanding that thisfreedom comes with limitations.

Rather, the iridescence of the term comes from its connotations. Discre-tion is often discussed together with arbitrariness73 and power. Becauseof this, it can easily be accused of being undemocratic. Free, ‘unfettered’public powers, unforeseeable and unrestricted actions of public authoritiesare indeed suspect in democratic thought.

72Herbert C. Kelman and V. Lee Hamilton, Crimes of Obedience: Towards a SocialPsychology of Authority and Responsibility (New Haven, 1989) p. 54 et seq.

73Timothy Endicott, ‘Arbitrariness’ (2014) 28(1) Canadian Journal of Law and Ju-risprudence pp 49–71.

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Nevertheless, the Commission is only awarded the ‘freedom’ to decide ondelegated and implementing acts because it is desirable for it to hold thatpower, as we, the persons subject to its rules, need it to make use of it forus. The Commission has been delegated power so that the administrationis free to take the ‘right’ decision, once it is precisely determined what is‘right’ or when the time has come to act. The problem at the heart ofdiscretion is that, just as the administration has the capacity to do the‘right’ thing, it also necessarily has the capacity to not do the right thing.It is possible to condemn wrongful action after the fact, but not to shapethe Commission’s powers so precisely that there would be no capacity toact wrongly.

The drawback of limiting the administration’s discretion is that this alsolimits its power to take the ‘right’ action. If the Commission’s discretionis limited, this makes the Commission weaker – in the face of its politicalpatrons or the popular sovereign, but also weaker in the face of the task itis required to fulfil.74 Discretion is not only a factor in inter-institutionalinteractions, but it is more importantly relevant for the Commission tofulfil the function it is required to fulfil.

Yet, if the Commission is to have discretion in order to be able toregulate well – to take the ‘right’ action – it is presumably possible todetermine which Commission action has been ‘good’ or ‘right’ and whichhas not. The appropriateness of Commission action is not exhausted byits effectiveness in achieving its purpose, even if its discretion is given fora specific task. Instead there are a number of conditions on the exerciseof public discretion, framed in terms of individual rights, and (legal)principles such as ‘good administration’75 or ‘good governance’.76

74This is summed up well by Larry Ribstein with a view to fiduciary relationships:“parties in the limited category of relationships involving open-ended delegationof power cannot contract to limit the manager’s power without undermining thebeneficiary’s objective in delegating power”. Larry E. Ribstein, ‘Fencing FiduciaryDuties’ (2011) 91 Boston University Law Review pp 899–920, p. 904.

75Charter of Fundamental Rights of the European Union (2010) [2010] OJ C83/389 (EUCharter) art 41. Even though the charter lists individual rights, ‘good administration’arguably is of broader application. For an elaboration on ‘good administration’see Theodore Fortsakis, ‘Principles Governing Good Administration’ (2005) 11(2)European Public Law pp 207–217; Joana Mendes, ‘Good Administration in EU Lawand the European Code of Good Administrative Behaviour’ (EUI Working Paper2009/09, Florence, 2009).

76Ngaire Woods, ‘Good Governance in International Organizations’ (1999) 5(1) Global

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The problem with telling right from wrong is complicated further by theimpact of Commission rule-making. Because rule-making changes the legalposition of the persons affected and reorders relations among the personssubject to a rule, this makes these very same persons ill-equipped to judgea specific rule-making exercise ‘good’ or ‘bad’, even after the fact when allpertinent information is known. The Commission is a public authority andthus has the function to pass directives; to order its ‘subjects’ co-existence,to achieve progress or to react to market distortions. In this function, theCommission not only works for the persons subject to its acts, but alsoon them, as the actions necessary to fulfil the Commission’s function areactions resulting in changes in these persons factual and legal positions.77

The persons subject to Commission acts cannot be good arbiters of theCommission’s success when they are deeply involved in the processes ofchange and are changed by them. This is true especially for long termpolicy objectives. In effect this makes the ‘objective’ evaluation of thecontent of delegated and implementing acts so hard as to make it unfit forbasing any restrictions of the Commission’s rule-making discretion on it.

Instead it is necessary for the Commission to have discipline: someforce to form the decision without a priori determination of this decision.Authorship should lie with the Commission, because the Commission hasbeen delegated this powers for the very reason that it is the institutionbest placed to dispense them. It is therefore undesirable for an outsidebody to control the Commission’s decisions, instead it is necessary forthe Commission to constrain itself. It is necessary for the Commission toreliably reach the ‘right’ decision, without it losing its power.78

This requires two things: firstly a way to tell a right decision from awrong one, so as to then secondly be able to install a framework thatdisciplines the Commission to choose those right decisions. In short, whatis necessary is a normative framework.

Governance pp 39–61, Beate Kohler-Koch and Berthold Rittberger, ‘The ‘GovernanceTurn’ in EU Studies’ (2006) 44 Journal of Commom Market Studies pp 27–49, pp.29, 37.

77Barry Barnes, The Nature of Power (Polity Press 1988) p. 58.78John Braithwaite, ‘Institutionalizing Distrust, Enculturing Trust’ in Valerie Braith-

waite and Margaret Levi (eds), Trust & Governance (Russell Sage Foundation 1998)pp 343–375 p. 344.

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2.2.2 Conditions and Consequences

The discretion and authority of the Commission that allows it to adoptdelegated and implementing acts does not translate into entirely free powerand unfettered freedom of choice.79 The very act of creating this powerand freedom of the Commission at the same time creates limits to them.Thus, the Commission’s power is co-original with conditionality on thatpower, and its ability to choose is subject to certain limits from the veryoutset.80

These are not only the ‘outer limits’ of a power, i.e. that the Commis-sion’s mandate pertains to some tasks, but not to others. Of course therequirement to act intra vires, that is within its mandate, is an automaticrestriction on the Commission’s action. But what is more importantis that, beyond this restriction, thus squarely within the mandate, theCommission’s power and freedom of choice are necessarily limited.

Such limitations are often described under the heading of ‘legitimacy’and in as much as this term describes internal limitations on the exerciseof power, the discussion here concerns legitimacy. However, this term hasbecome so burdened with specific value systems, particularly the onesexpressed by human rights, representative democracy and the rule of law,that I will refrain from using it here so as to not create confusion. Asimportant as human rights, representational mechanism and the rule oflaw are, these are not the focus of my argument.

Of course, these ideas do share certain aspects with the framework pre-sented here, and the project draws relevance in particular from democraticconcerns, specifically from the principle of popular sovereignty.81 However,

79For a focus on the power or ‘space of freedom’ aspect of discretion, cf, for example,Randall L. Calvert, Matthew D. McCubbins, and Barry R. Weingast, ‘A Theoryof Political Control and Agency Discretion’ (1989) 33(3) American Journal ofPolitical Science pp 588–611; Ann Forstyh, ‘Administrative Discretion and Urbanand Regional Planners’ Values’ (1999) 14(1) Journal of Planning Literature pp 5–15; Fabio Franchino, ‘The Commission’s Executive Discretion: Information andComitology’ (2000) 12(2) Journal of Theoretical Politics pp 155–181. Cf alsoCartwright J. who famously (though dissenting) claimed that administrative organs,acting within the province of their powers are a law unto themselves. Roncarelli vDuplessis [1959] SCR 121, p. 167, 168.

80Joana Mendes, ‘Discretion, Care and Public Interests in the EU Administration:Probing the Limits of the Law’ (2016) 53 Common Market Law Review pp 419–452.

81Cf e.g. Mark Philp, ‘Delimiting Democratic Accountability’ (2009) 57 Political

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I do not share the assumption that this popular sovereignty is necessar-ily expressed (only) by representative institutions.82 Instead, I focus onaspects of the public mandate connected to ideas of entrustment,83 anaspect which is of heightened relevance in the case of non-representationalinstitutions.

My argument focuses on the conditions that underlie the exercise ofpublic authority and the granting of discretion. These conditions areconnected to the public function of this power. While there are at leasttwo different conceptualisations of what ‘public’ means, both a more indi-vidualistic and a more organic, communitarian understanding84 orientatethe powers of a public body to the persons subject to that authority.

It is characteristic of such public institutions that they are a “unit atthe service of the human beings for whom [they are] responsible”.85 Sucha description defines a public authority by being in the service of andresponsible for individuals. In this way, these individuals are ‘constituents’of public authority.

From this foundational role of individuals for public authority, anotherrestriction of the exercise of public authority can be derived. This is thatpublic authority adheres to the dignity of its subjects, whereby ‘subjects’refers not only to a group (and emphatically not only to the majority),but also to individuals. This dignity is a fundamental part of the legal

Studies pp 28–53 or Alexander Somek, Individualism (Oxford University Press 2008)ch. 1.

82Even though this appears to be the predominant assumption: “[t]he world owes to theFederalist Papers the idea that the principle of democracy finds its most importantexpression in representative institutions”; Armin von Bogdandy, ‘The EuropeanLesson for International Democracy: the Significance of Arts. 9-12 EU Treaty forInternational Organizations’ (2012) 23(2) European Journal of International Lawpp 315–334, 326.

83Such ideas were stronger in the pre-Federalist discussion of representation (for adescription of the Federalist understanding and its context see Beatrice Brunhober,Die Erfindung “demokratischer Reprasentation” in den Federalist Papers (MohrSiebeck 2010)), but have since become dissociated from the term.

84For an explanation of these see Udo Pesch, The Predicaments of Publicness (Leiden,2005).

85Christian Tomuschat, International Law: Ensuring the Survival of Mankind on theEve of a New Century (Recueil des cours: Collected Courses of the Hague Academyof International Law, vol 281, Martinus Nijhoff 1999) p. 95, see also 161 et seq.Tomuschat here refers to states, but his statement can be taken to use states as theparadigmatic case for organisations of public authority.

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system (and traditionally connected to adjudication), but also comes tothe fore in administrative procedures.86 The recognition of the dignifiedagency of individual persons requires that the Commission is under a‘duty of regard’87 towards them.88 This regard precludes domination.

It follows that the Commission’s powers are justified when there is amechanism that enables the differentiation between ‘good’ and ‘bad’ use ofthese powers. On the basis of this mechanism a normative structure can becreated that disciplines the Commission’s exercise of rule-making powers.In sum, what is required is a concept that describes a ‘political balance’ (asan analogy to the institutional balance between the institutions governingthe EU). This balance serves as a structure to justify the powers theCommission has, by juxtaposing these powers with a mechanism for theirrestriction and acceptance. This structure should capture the power ofthe Commission to bind individual persons directly, as well as its functionof serving these persons. It should capture the vulnerability of the personssubject to delegated and implementing acts towards the Commission’saction at the same time as the Commission’s obligation of regard for thesepersons’ dignity.

Such a mechanisms can be found in the notion of trust, either as referringto the attitude between actors or as a legal institution. As an attitude,trust is a device to bind one actor to the expectations of another, at thesame time as conferring resources or influence. As a legal institution, trusts(or rather, more generally fiduciary law) reconcile the tension betweenconferring discretion and responsibility.

In the section below, I will first explain the role that trust plays forauthority and discretion, before turning to the potential of the legalinstitution of fiduciaries in the next chapter.

86Jeremy Waldron, ‘How Law Protects Dignity’ (2012) 71(01) Cambridge Law Journalpp 200–222.

87Jerry L. Mashaw, ‘Administrative Due Process: The Quest for a Dignitary Theory’(1981) 61 Boston University Law Review pp 885–931; Stewart (n 25).

88This ‘duty of regard’ can be connected to the ‘other-regarding’ nature of publicauthority, described in Bo Rothstein and Jan Teorell, ‘What is Quality of Govern-ment? A Theory of Impartial Government Institutions’ (2008) 21(2) Governancepp 165–190 and Lionel Smith, ‘Loyalty and Politics: From Case Law to StatuteLaw’ (2015) 9 Journal of Equity pp 130–149.

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2.2.3 The Importance of Trust

Trust has a long tradition in political constitutional thought. Writersfrom Confucius89 to Montesquieu,90 mention the relevance of the people’strust as a resource of power of the rulers. Locke’s second treatise ongovernment turns on the idea of trust,91 and his ideas still have purchasetoday.92 Even Hobbes has been described as firmly relying on the powersof trust.93 Currently, polls asking about trust in public authorities aretaken as important indicators of the well-being of polities.94

The common argument on the relevance of trust for public authorityis that the deference of the subjects that is fundamental for authorityis sustainably created by the existence of trust. At the same time, thenecessity of relying on trust puts authorities under certain conditions. Butwhat is it that connects authority to trust?95 How does trust create the

89Confucius [Roger T. Ames and Henry Rosemont], The Analects of Confucius: aphilosophical translation (Ballantine Books 1998). The most cited passage here is inbook 12, section 7, however, the concept of trust or trustworthiness is mentionedfrequently throughout the analects. For the modern impact see Daryl Koehn,‘Confucian Trustworthiness and the Practice of Business in China’ (2001) 11(3)Business Ethics Quarterly pp 415–429. For an elaboration on the Chinese term thatConfucius uses and its translation into the western concept of trust see: CeciliaWee, ‘Xin, Trust and Confucius’ Ethics’ (2011) 61(3) Philosophy East and Westpp 516–533.

90Charles de Secondat (Baron de Montesquieu), The Spirit of Laws (Thomas Nugenttr, first published 1752, Batoche Books 2001), cf also Robert G Natelson, ‘TheConstitution and the Public Trust’ (2004) 52 Buffalo Law Review pp 1077–1178, p.1132.

91Locke (n 20) specifically Section 139 et seq.92Cf Donald L. Doernberg, ‘“We the People”: John Locke, Collective Constitutional

Rights, and Standing to Challenge Government Action’ (1985) 73 California LawReview pp 52–118 and Jason Stuart Maloy, ‘Two Concepts of Trust’ (2009) 71/2Journal of Politics pp 492–505.

93Frederick Weil, ‘The stranger, prudence, and trust in Hobbes’s theory’ (1987) 15Theory and Society pp 759–788.

94For example, TNS opinion & social, Standard Eurobarometer 83: Public Opinion inthe European Union (First Results) (2015) 〈http://ec.europa.eu/public opinion/archives/eb/eb83/eb83 first en.pdf〉 p. 6 et seq. For an analysis of such polls seeRussell J. Dalton, ‘The Social Transformation of Trust in Government’ (2005) 15(1)International Review of Sociology pp 133–154.

95The model of authority based on trust is linked to, but differs from arguments aboutthe morality of law, as it is about deference to trust actors, not about deference tothe institution of ‘law’: Tom R. Tyler, ‘Trust and Democratic Governance’ in Valerie

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government’s right to command and the power to do so?96

In inquiring about an institutional relationship, this research is notabout individual, psychological kinds of trust. I do not ask whetherspecific individuals or a group of individuals have actual attitudes of trusttowards the EU Commission. Instead, I inquire into more public, politicalattitudes.

Trust in a public institution is the belief in the institution’s goodwill.97

This belief explains the willingness to create public institutions and si-multaneously creates their authority. Where a person believes that aninstitution has her best interests at heart in issuing directives, she willfollow these directives to achieve her best interests.98 All that is requiredto induce compliance of the subject, is the belief that the directive isissued for her greater good.99 Where this belief is generalised from the

Braithwaite and Margaret Levi (eds), Trust & Governance (Russel Sage Foundation1998) pp 269–294 p. 277 For an account of the morality of law, the strong relationalaspects of which connect rather well to the relational approach presented here, seeLon L. Fuller, The Morality of Law (revised edition, Yale University Press 1973).

96For this definition of authority, see Kelman and Hamilton (n 72) p. 53.97For a definition of trust as the belief in goodwill, see the seminal work: Anette Baier,

‘Trust and Antitrust’ (1986) 96/2 Ethics pp 231–260, p. 234 The term ‘goodwill’hereby should not be over-interpreted: it can refer merely to the willingness ofa person to not exploit the vulnerabilities of another, such as formulated in thedefinition of trust in Margaret M. Blair and Lynn A. Stout, ‘Trust, Trustworthiness,and the Behavioral Foundations of Corporate Law’ (2001) 149(6) University ofPennsylvania Law Review pp 1735–1810, p. 1740. For a more recent, elaboratedescription of trust (partly criticising Baier), see Olli Lagerspetz and Lars Hertzberg,‘Trust in Wittgenstein’ in Pekka Makela and Cynthia Townley (eds), Trust: Analyticaland Applied Perspective (Rodopi 2013) pp 31–52.

98Similarly, a persons will acquiesce to her grandmother’s request to ‘come with’ whenshe believe the grandmother is leading her to the coffee table for cakes, and shewill follow the doctor’s instructions to take bitter medication, if she believes this isuseful for her health. For an elaboration on this argument with further referencesfor empirical evidence see Tyler, ‘Trust and Democratic Governance’ (n 95) p. 272et seq

99This belief should be differentiated from the belief that matters would be worsewithout government: John Dunn, ‘Trust and Political Agency’ in Diego Gambetta(ed), Trust: Making and Breaking Cooperative Relations (Basil Blackwell 1988)pp 73–93 p. 287. The kinds of behaviours necessary to assert these two differmarkedly. Generally, being trusted increases the degrees of freedom of the trusted,opening up new possibilities for action and being forgiven more easily for minormistakes: Claus Offe, ‘How Can We Trust Our Fellow Citizens?’ in Mark E. Warren(ed), Democracy & Trust (Cambridge University Press 1999) pp 42–87 p. 51.

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instance into an attitude towards the authority issuing directives, this isreferred to as trust.100

At the same time, the fact that a person is motivated by her trust in aninstitution to comply with its directives also has the consequence that theinstitution is bound to maintain the conditions for this trust in order tosecure compliance.101 Consequently, the institution has to maintain thesubjects belief in its goodwill in order to keep its authority; it has to betrustworthy. This requirement of trustworthiness constitutes an internallimit on the discretion of the institution.102

The requirement of trustworthiness should not be underestimated.103

The existence of trust is a mark of our positive attitude and lack of primafacie suspicion. Nevertheless, this attitude is based on an assessment ofthe information about the institution claiming authority. While it is animportant characteristic of such assumptions that they cannot ultimatelybe verified,104 this does not exclude sensitivity to the vulnerability to aninstitution’s bad intentions.105

100This is of course a rather short and compacted account of the way that trust andauthority connect. The concept of trust alone has long been a puzzle to manythinkers, as, for example, Hawthorn’s insistence that the conditions for trust areimpossible to meet, shows: Geoffrey Hawthorn, ‘Three Ironies in Trust’ in DiegoGambetta (ed), Trust: Making and Breaking Cooperative Relations (Basil Blackwell1988) pp 111–126. ‘Authority’ is no less debated a concept.

101Cynthia Farina and ABA Committee on Government Standards, ‘Keeping Faith:Government Ethics & Government Ethics Regulation’ (1993) 45 AdministrativeLaw Review pp 287–341, p. 292.

102Cf in the same line, though with different terms, Raz’ condition of governmentrespecting its citizens and providing ‘full citizenship’ in order for the people toreasonably trust them. Without the reasonable expectancy of this trust, governmentcannot be justified to use coercive means for the good of the people. Joseph Raz,‘Liberty and Trust’ in Robert George (ed), Natural Law, Liberalism, and Morality:Contemporary Essays (Oxford University Press 2001) pp 113–129.

103Cf also Onora O’Neill, A Question of Trust (Cambridge University Press 2002).104Because of this, Luhmann treats trust as a leap of faith: Niklas Luhmann, Vertrauen:

ein Mechanismus zur Reduktion sozialer Komplexitat (Stuttgart, 1968) p. 23, 31.105Mark E. Warren, ‘Democratic Theory and Trust’ in Mark E. Warren (ed), Democracy

and Trust (Cambridge University Press 1999) pp 310–345 p. 331. Some commenta-tors describe trust as the outcome of the cost-benefit analysis of the risk of becomingvulnerable (for example Russell Hardin, ‘Trust in Government’ in Valerie Braithwaiteand Margaret Levi (eds), Trust & Governance (New York, 1998) pp 9–27 or James SColeman, Foundations of Social Theory (Belknap Press 1990) p. 91 et seq). While Ifind this description questionable, I also submit that the precise reasons for trust

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Trust works so as to put an obligation on public institutions, throughthe normative expectation that the rule-maker will act in the interests ofthe persons trusting her. As Patterson puts it: “At its core [trust] involvesthe joint construction of an obligation in which the trustor assumes arisk and the trustee an obligation to justify the taking of that risk.”106

This also translates into that, where it is necessary that an institution betrusted, it is necessary to justify this trust by behaving in a trustworthyway.107

I submit that the necessity for trust, and thus also trustworthiness, doesarise in the case of the Commission adopting delegated and implementingacts. It creates the assumption that the Commission has to justify itsexercise of authority, such as the adoption of a delegated or implementingact. This justification needs to fit with the manner in which this authorityis exercised. Consequently, the grounds available for such a justificationare limited. For example, the Commission cannot take recourse to argu-ments of representation. Yet, the Commission, when adopting delegatedand implementing acts, fulfils the role of a public institution within ademocratic polity. The justification for its powers thus needs to include amechanism to bind the Commission’s decision-making to the needs andinterests of the persons subject to delegated and implementing acts.108

Trust this way constructs the needs and interests of the persons subjectto the acts as the origins of the rules that bind them.

To seek trust is to submit to the judgement of those whose trust issought.109 As the decision to trust110 lies with those bestowing trust,

are not very relevant for the further treatment of the subject here. For a discussionof the rational choice and more behavioural conceptualisations of trust see alreadyVirginia Held, ‘On the Meaning of Trust’ (1968) 78(2) Ethics pp 156–159.

106Orlando Patterson, ‘Liberty against the Democratic State: on the historical contem-porary sources of American distrust’ in Mark E. Warren (ed), Democracy & Trust(Cambridge University Press 1999) pp 151–207 p. 153.

107For a comparison and an elaboration of the relation of the kind of trust or trust-worthiness regarding trust in an institution with trust as the more interpersonal,psycho-sociological attitude of trust see: Braithwaite (n 78) p. 344 et seq.

108For a more empirical reasoning that the Commission in the fulfilment of its dutiesindeed relies on trust relationships see; Myrto Tsakatika, ‘Claims to Legitimacy:The European Commission between Continuity and Change’ (2005) 43(1) Journalof Common Market Studies pp 193–220, p. 198 et seq, Myrto Tsakatika, PoliticalResponsibility and the European Union (Manchester University Press 2008).

109Braithwaite (n 78) p. 353 et seq.110In as much as it is possible to speak of a ‘decision’ here. For a discussion of the

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deference will have to be achieved by establishing the trustworthiness ofthe trustee.111 Trustworthiness is ultimately defined by the prospectivetrustor, and it is his standards that the trustee has to submit to. Thisunderstanding is very relevant in counteracting possible paternalistic ten-dencies of the trust discourse, and it is these standards of trustworthinessthat I will focus on. Such standards describe the normative frameworkthat determines the authority of the Commission to adopt delegatedand implementing acts, as these standards of trustworthiness are theparameters of deference to the Commission’s authority to bind and direct.

Part of this judgement of trustworthiness might be indirect112 andthus based on the fact that institutions for which authority is alreadyestablished apparently trust the prospective trustee.113 Thus, the factthat it was ‘our’ representative institutions, Parliament and the Council,(in contrast to, say, a foreign government or an industrial syndicate) thatbestowed the mandate on the Commission to act, should be a factor infavour of the Commission’s trustworthiness. Indeed, in many discussionsof the Commission’s delegated and implementing powers, it is implicitlytreated as sufficient to establish the Commission’s authority.

However, this indirect trust is usually treated as relevant where there isno direct relation (as yet) between the one bestowing trust and its recipient.Where this direct relation exists, it is hard to argue that reliance on a third

intentional aspects of trust see Jane Mansbridge, ‘Altruistic Trust’ in Mark E.Warren (ed), Democracy & Trust (Cambridge University Press 1999) pp 290–309 p.294 et seq.

111Interestingly, most writers on trust treat trustworthiness as something to be deter-mined by a person when considering whether or not to trust without switching theperspective to what this means for those who rely on being trusted (with the notableexception of Lawrence E. Mitchell, ‘The Importance of Being Trusted’ (2001) 81Boston University Law Review pp 591–617). However, the point that trustwor-thiness is a matter of judgement is strongly made: Tyler, ‘Trust and DemocraticGovernance’ (n 95) p. 280 et seq. For further reasoning on trustworthiness and trustsee: Rom Harre, ‘Trust and its Surrogates: Psychological Foundations of PoliticalProcess’ in Mark E. Warren (ed), Democracy & Trust (Cambridge University Press1999) pp 249–272 p. 258, O’Neill (n 103).

112Patterson (n 106) p. 154, Susan Shapiro, ‘The Social Control of Impersonal Trust’(1987) 93(3) American Journal of Sociology pp 623–658.

113Of course it depends what this authority is founded on: Indirect trust can beestablished by someone trusted, but not by someone whose authority is based oncontrol by its subjects or to whose power they submit to for instrumental reasons(according to a principal- agent model of delegated authority).

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party should eclipse the judgement of trustworthiness that is drawn fromthe interaction between trustor and trustee directly. This direct relationis established by the Commission passing (delegated and implementing)acts that affect (bind, direct, etc.) individual persons directly. I haveargued above that the Commission is not so restricted by its relation toParliament, the Council or (comitology) committees that it were possiblein effect to trace the choices made in delegated and implementing acts backto them.114 This is why there are further standards of trustworthinessrelevant to the Commission.115

Nevertheless, it is important to state that not all trust relations takethe form of specific individual attitudes and commitment. Instead, theconcept of trust used here refers to impersonal or institutionalised trust;‘trust as an obligation’.116 This kind of trust is characterised by the factthat persons “invest resources, authority, or responsibility in another toact on their behalf for some uncertain future return.”117 Rather than beingrooted in personal feelings, this trust finds its expression in the politicaland social institutions and our cooperative interaction with them.118

This institutional trust, focusing on the trustee rather than the one giv-ing trust, finds its doctrinal expression in the position of the ‘fiduciary’;119

literally the one carrying trust.120 In the next chapter I will explain the

114For a more general argument of such a restriction virtually never being the case andthere thus always being a direct dependency of the persons subject to a decision onthe decisions by government bodies, see Pettit (n 5) p. 300 et seq.

115Specifically which these are is the subject of the following chapter.116Braithwaite (n 78).117Shapiro, ‘The Social Control of Impersonal Trust’ (n 112) p. 626.118Indeed, behaviour can be based on impersonal trust in spite of a situation of individual

attitudes of suspicion, such as when President Bill Clinton was voted into office in1997 despite the majority of voters reporting that they distrusted him personally.Cf Patterson (n 106) p. 200 et seq. For a slightly different definition of ‘personal’ vs‘impersonal’ trust, namely as motivated in their goodwill in relational or independentterms, see Pettit (n 5). In Pettit’s term, political trust has necessarily a personalcomponent, even if it is institutionalised. ibid p. 299 et seq.

119Cf Susan Shapiro, ‘The Grammar of Trust’ in Jocelyn Pixley (ed), New Perspectiveson Emotion in Finance (Routledge 2012) pp 99–118, relying on Tamar Frankel (seeTamar Frankel, ‘Fiduciary Law’ (1983) 71/3 California Law Review pp 795–836;Tamar Frankel, ‘Fiduciary Duties as Default Rules’ (1995) 74 Oregon Law Reviewpp 1209–1277 and cf Braithwaite (n 78), relying on Paul Finn (see Paul Finn, ‘PublicTrust and Public Accountability’ (1994) 3(2) Griffiths Law Review pp 224–244).

120At least a public kind of trust. For an elaboration of the origins of the concept see

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legal model of a fiduciary and apply it to the Commission when adoptingdelegated and implementing acts.

2.3 Summary

In this chapter I elaborated on how the adoption of delegated and imple-menting acts can be conceptualised. I have inquired into the conceptsof delegation, implementation and administration in order to develop abetter understanding of rule-making such as the adoption of delegatedand implementing acts by the Commission. These three concepts havehelped understand the relationship between the Commission and thepersons subject to these rules, but have also shown where the commonconceptualisations are lacking.

The description of what it means to be a ‘delegatee’, to ‘implement’ andwhat it means to treat these acts as ‘administrative’ acts, as is often done,is the basis of a better understanding of the shape of the public authorityor discretion exercised by the Commission in the adoption of delegatedand implementing acts. It has emerged from the inquiry into the conceptsof delegation, implementation and administration that in the adoption ofthese rules the Commission is exercising authority and discretion. Thelimits and control of discretion that are part of the delegation under Arts.290 and 291 TFEU nevertheless leave the choice between several legaloptions to the Commission. The exercise of discretionary authority is asensitive issue because it requires appropriate justification and appropriateguidance in order to fit into the democratic rule of law that the EU isaspiring to be. This public authority can hardly be controlled by electedbodies.

An inquiry into the concept of delegation, implementation and admin-istration helps in answering the question about the justification of theCommission’s powers to adopt delegated and implementing acts becauseit aids in understanding the nature of this power. Which form the justi-fication takes needs to be appropriate to the specific authority and the

Alan Watson, ‘The Origins of Fiducia’ (1962) 79 Zeitschrift der Savigny-Stiftungfur Rechtsgeschichte pp 329–334. Relationships where trust creates authority arealso understood as fiduciary relationship by Tom R. Tyler and Yuen J. Huo, Trustin the Law: Encouraging Cooperation with the Police and the Courts (Russell SageFoundation 2002) pp. 62-63.

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2.3 summary

character of the rule-making institution. Given the non-representativecharacter of delegated and implementing rule-making, the appropriateform of justification can be found in the concept of institutional trust. Ifthe Commission can command institutional trust of persons subject tothis rule-making, its powers to adopt these rules are justified. Institutionaltrust can support the conferral of such powers as the power to adoptdelegated and implementing acts.

At the same time, this framework is normative as it refers to theconditions the Commission is to be regarded trustworthy. Institutionaltrust relies on being embedded in a normative framework that is conductiveto this trust. This normative framework finds an expression in the fieldof fiduciary law. In the next chapter I will introduce this field of law inmore detail and explain the institution of the fiduciary and the obligationsattached to it.

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3

Fiduciary Discretion

In a democratic system of government, the authority of public bodies relieson the voluntary consent by those governed. This consent can be grantedor withdrawn, and the decision to do so ultimately is not one of the holdersof authority but of those governed by it. As consent is voluntary, it can bewithdrawn at any time and for any reason. Recognising this also for the EUshould be grounds for giving the persons directly subject to Commissionacts a more central place within the EU’s decision making processes. Theadoption of delegated and implementing acts by the Commission shouldbe ‘about the people’, even if it is not by the people.

This incorporation of the affected persons needs and interests intodelegated and implementing rule-making is required in order to justifythe power that the Commission has over the persons within the MemberStates. The Commission’s authority cannot be based on representation,but needs to instead be based on institutional trust. This trust requiresmechanisms of creating and signalling trustworthiness. Trustworthinessin turn requires to exhibit ‘goodwill’, an attitude of care, to the personssubject to the Commission’s powers.

Such trust relations are described legally in the framework of fiduciarylaw.1 Fiduciary law is the law that deals with trustees, agents, guardians,

1Paul Finn, ‘Public Trust and Public Accountability’ (1994) 3(2) Griffiths Law Reviewpp 224–244; Paul Finn, ‘The Forgotten “Trust”: The People and the State’ inMalcolm Cope (ed), Equity: Issues and Trends (The Federation Press 1995) pp 131–

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stewards and other persons in a position of authority. Fiduciary law isbest known in common law countries. The specific legal system of Britainand many of its former colonies with its separation of law and equityhave made it a fertile ground for the development of fiduciary law ideas.Nowhere else has the notion of ‘fiduciary’ and ‘trusteeship’ gained quitethe same symbolic and evocative potential.

However, this does not mean that the underlying relational structure anddistribution of fiduciary obligations would not be familiar more broadly.The same fundamental legal tenets can be found in many legal systems.2

The protection of trust relationships is a common social need. It is uponthis relational structure and distribution of obligations that I build myfiduciary account – an account of public fiduciary principles.

A fiduciary approach elucidates the relationship between the personssubject to delegated and implementing acts and the Commission. Whetherphrased in terms of ‘democratic deficit’, or in terms of ‘accountability’,or in terms of ‘participation’ there is a pervasive question of how thisrelationship between the persons subject to the Commission’s powers andthe Commission is to be understood. Even where these concepts havebeen repeated ad nauseam, the question of our place within the EU andthe EU’s place in our (political, economic) lives is still unanswered. Thefiduciary perspective takes as point of departure this place of the EUin the lives of its ‘subjects’ and constructs the normative aspects of therelationship from it.

Because fiduciary law is not dependent in its reasoning on notionsnecessarily connected to states,3 it is a fertile source of inspiration for

151; Matthew Harding, ‘Trust and the Fiduciary: Philosophical Foundations ofFiduciary Law’ (PhD thesis, Oxford University 2007); Susan Shapiro, ‘The Grammarof Trust’ in Jocelyn Pixley (ed), New Perspectives on Emotion in Finance (Routledge2012) pp 99–118.

2Richard Helmholz and Reinhard Zimmermann, ‘Views of Trust and Treuhand: An In-troduction’ in Richard Helmholz and Reinhard Zimmermann (eds), Itinera Fiduciae:Trust and Treuhand in Historical Perspective (Duncker & Humblot 1998) pp 27–44;D. J. Hayton, S.C.J.J. Kortmann, and H.L.E. Verhagen, Principles of EuropeanTrust Law (Kluwer & WEJ Tjeenk Willink 1999).

3Thus, it does not rely on notions such as ‘nation’ or ‘Volk’ as the ultimate constituencyand legitimising body. This is not to say that it would not rely on the enforcementmechanism provided by the State. Courts play a very important role in fiduciarylaw.

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EU law as a postnational legal system.4 Fiduciary law is an accountof authority which applies across private and public law and does notdepend on the existence of a state for the creation and justification ofits normative structure. In this way, it has a conceptual advantage overmost accounts of EU ‘administrative’ rule-making, given that much ofadministrative law theory is intimately linked with the existence of, if notspecific to, a national legal order.

In the previous chapter, I described how the EU Commission’s authorityto pass delegated and implementing acts can be explained vis-a-vis thepersons subject to these acts by a relationship of formal, institutionaltrust. I have already alluded that in legal terms, such a relationship wouldbe called a fiduciary relationship. In this chapter, I will expand on this‘fiduciary relationship’, explaining what it is, how it can be constructedand what normative consequences it has.

The fiduciary perspective arises from a long tradition of political, philo-sophical and legal thought. Very often the term ‘fiduciary’ is introducedinto a debate with the intention of declaring certain obligations incumbenton the fiduciary, although these obligations are not necessarily clearlydefined obligations of positive law.5 In the present context, the fiduciaryperspective will be introduced with the aim of providing a way to explainand construct the relationship between the Commission and the personssubject to its powers.

Yet, also in the present case there are normative consequences whichfollow from the application of the fiduciary framework. More generally,imposing a duty of loyalty on the Commission, namely loyalty towardsthe persons subject to its acts mitigates vulnerabilities resulting from therelationship. This duty of loyalty is the cornerstone of fiduciary obligations.

4For the postnational character of the EU, cf Deirdre Curtin, Postnational Democracy(Kluwer Law International 1997).

5For example, the original constitution of Maryland, used the declaration that publicoffice holders are fiduciaries as a reason for their duties to accountability, prohibitionof abuse of powers and the ‘beneficiary’s’ residual right to collapse the trust (i.e. the’right to revolution’). Cf Article IV in the 1776 Maryland declaration of rights (thatprepends the other Articles of the Constitutions): “[A]ll persons invested with thelegislative or executive powers of government are the trustees of the public, and, assuch, accountable for their conduct; wherefore, whenever the ends of government areperverted, and public liberty manifestly endangered, and all other means of redressare ineffectual, the people may, and of right ought, to reform the old or establish anew government.”

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In the last part of this chapter I will explain why this is so, and how suchloyalty should be understood in a public law context.

In the following I will first introduce what fiduciaries are. I will explainthe term and give a short introduction into fiduciary law, explaining its usein the public law context as well as its understanding of the fiduciary role.I will then go on to introduce the fiduciary’s obligation of loyalty. Thischapter will give the theoretical background to the fiduciary constructionof the relationship between the Commission and the persons subject todelegated and implementing acts in the chapter thereafter.

3.1 What is ‘Fiduciary’?

3.1.1 A Description of the Term

The term fiduciary comes from the latin ‘fiducia’ which describes a legallyrecognised form of trust.6 Fiduciary relations in Roman Law denotedrelations which were marked by a difference in power or influence. Thepowerful or influential partner in the relationship would be the fiduciary.This could be a spouse, a guardian or a magistrate or simply any one inrelation to a minor or especially weak person.7 The fiduciary would needto show ‘fides’ towards the weaker partner in the relationship.

‘Fides’ formed one of the basic principles of the legal system in historicRome,8 and appears to have propagated a number of related terms whichall have a similar, but more specific meaning, such as ‘bona fides’ or ‘fidespublica’.

Yet, despite it clearly being a legal norm in Roman law,9 it appears tohave been notoriously hard to describe the legal content of ‘fiducia’ withany precision.10 It is not entirely possible to disentangle the legal dutiesassociated with it from moral duties. This trait seems to have persisted

6Cf Dieter Norr, ‘Mandatum, fides, amicitia’ in Dieter Norr and Shigeo Nishimura(eds), Mandatum und Verwandtes (Springer 1993) pp 13–37 who describes one kindof such a relationship, the friendship (amicitia) and its obligations.

7Ernest Vinter, A Treatise on the History and Law of Fiduciary Relationship andResulting Trusts (Stevens 1938) p. 3 et seq.

8Marc de Wilde, ‘Fides publica in Ancient Rome and its Reception by Grotius andLocke’ (2011) 79 Legal History Review pp 455–487, p. 458.

9ibid, p. 461.10ibid, p. 459.

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3.1 what is ‘fiduciary’ ?

through history; also in (old) English equity law, fiduciary duties havebeen at least as much a matter of conscience as of law.11

To this day, fiduciary claims can be ascribed an aspect of the (legally)normative clearly going beyond the (legally) positive,12 and fiduciaries areascribed certain ‘moral’ characteristics by law.13 This ‘moral’ characteristichas been described as the obligation of self-denial,14 of altruism15 or other-regardingness,16 disinterestedness17 or loyalty18 towards those who arethe subjects of the fiduciary’s authority: her ‘beneficiaries’.19

In many ways, fiduciary (procedural) obligations are the attempt todeal with the possibility of abuse20 which is inextricably interlinked withthe confidence or discretion founding the fiduciary relationship. Thispossibility of abuse is also what many commentators focus on. It is at thecore of many conflicts brought before Court and a matter the judgmentsin these cases show great awareness of. However, it is necessary to becareful so as to not distort the picture of fiduciary relations by focusing

11L.S. Sealy, ‘Fiduciary Relations’ (1962) 69 Cambridge Law Journal pp 69–81, p. 69.12L.S. Sealy, ‘Fiduciary Obligations’ (1963) 70 Cambridge Law Journal pp 119–140, p.

123.13Tamar Frankel, ‘Fiduciary Law’ (1983) 71/3 California Law Review pp 795–836, p.

830.14Sarah Worthington, ‘Fiduciaries: When Is Self-Denial Obligatory?’ (1999) 58(3)

Cambridge Law Journal pp 500–508.15Lynn A. Stout, ‘In Praise of Procedure: an Economic and Behavioural Defense of

Smith v. Van Gorkom and the Business Judgement Rule’ (2002) 96(2) NorthwesternUniversity Law Review pp 675–694, p. 677.

16Lionel Smith, ‘Loyalty and Politics: From Case Law to Statute Law’ (2015) 9 Journalof Equity pp 130–149.

17Peter Birks, ‘The Content of Fiduciary Obligation’ (2000) 34 Israel Law Reviewpp 3–38.

18Deborah DeMott, ‘Fiduciary Obligations under Intellectual Siege: ContemporaryChallenges to the Duty to be Loyal’ (1992) 30(2) Osgoode Hall Law Journal pp 471–497; Deborah DeMott, ‘Breach of Fiduciary Duties: on Justifiable Expectations ofLoyalty and their Consequences’ (2006) 48 Arizona Law Review pp 925–956.

19There is no generally applicable word for those subject to a fiduciary’s decision asinstead the different forms of fiduciary relationships all use their own terms. Iuse ‘beneficiary’, which is originally the subject of a trustee’s decision, as sucha general term. Cf also Tamar Frankel, ‘Towards Universal Fiduciary Principles’(Boston University School of Law Working Paper 09/12, Boston, MA, 2012) p. 3,who instead chooses the term ‘entrustors’. I prefer ‘beneficiary’, because it allowsbetter differentiation between the settlor (who would also be an ‘entrustor’) and thebeneficiary function.

20Frankel, ‘Fiduciary Law’ (n 13) p. 817.

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on those cases in where the relationship broke down.

It is the virtue of fiduciary law to be responsive to the weakness anddependence of one party, and the influence of the other party.21 However,as Jacobson put it: “No person willingly and irredeemably puts himselfat the mercy of another, but he will often ask another to strengthen him,to act on his behalf.”22 Likewise, one can claim that no person willinglyundertakes to forego her own interest and to act only on another’s behalf,but she might like to use the power and influence over someone that shehas been granted on the condition of acting in this other-regarding way.

This more general meaning of the word ‘fiduciary’, as denoting some-one in possession of trust and confidence and therefore in a position ofauthority, can be juxtaposed with a more technical meaning of the word.This technical meaning exists especially in the traditional common lawjurisdictions of the Commonwealth as well as in the US. It is a result ofthe particularities of these legal systems and the result of their specificlegal developments.

Important as these aspects are for fiduciary law, these are not theaspects I am prima facie interested in. Many actual cases in the field oftrusts, agency or other fields of fiduciary law have virtually nothing to dowith questions of trust, confidence and vulnerabilities. Instead, they mightrevolve around such questions as the traceability of proceeds,23 becausethis has effect on the available legal remedies. If fiduciary law is successfullyinvoked, this might similarly have consequences for the standing of theparties,24 the applicable statute of limitations25 and the possibility toobtain damages versus disgorgement of profits.26 The corresponding rulesof fiduciary law have practical legal consequences for fiduciaries andbeneficiaries, and they have been based on the underlying structure of the

21Deborah DeMott, ‘Beyond Metaphor: An Analysis of Fiduciary Obligation’ (1988) 5Duke Law Journal pp 879–924, p. 905.

22Arthur R. Jacobson, ‘The Private Use of Public Authority: Sovereignty and As-sociations in the Common Law’ (1980) 29 Buffalo Law Review pp 599–665, p.635.

23Simon John Evelyn Boscawen & ors v Narip Deep Singh Bajwa & anr and AbbeyNational plc v Simon John Evelyn Boscawen & ors [1995] EWCA Civ 15.

24Paterson v Bowes (1853) 4 Gr 170, also described in Smith, ‘Loyalty and Politics’(n 16).

25KM v HM (1992) 3 SCR 6.26Paterson v Bowes (n 24).

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fiduciary relationship by the Courts finding them. However, this does notmean that they are necessary to understand the structure of a fiduciaryrelationship or that they would necessarily apply throughout all fiduciaryrelationships.

These technical legal rules of fiduciary law are not decisive for theargument presented here for a number of reasons. Firstly, these ‘technical’rules of fiduciary law are not applicable in the EU as a matter of jurisdiction.The judgments finding these technical rules have legal effect in the national(i.e. UK) legal order, but not across the EU.

Secondly, EU law makes no reference to fiduciary law in connection tosuch questions for which the existence of a fiduciary relationship is relevantin equity. For EU legal rules, it is very rarely relevant whether a fiduciaryrelationship is at play. Thus, the rules of evidence are determined bythe Statutes of the CJEU27 and rules of standing by Art. 263 TFEU. Inneither of those, and likewise neither in any of the rules of limitations28

nor the available remedies does a possible fiduciary position play a role.The only way in which fiduciary law in the technical sense could enterthe legal relationship between the Commission and the persons within theMember States is if there were a legal principle to that effect common toall Member States29 – an unlikely proposition, given that these technicallegal rules at times even differ between the different jurisdictions withinthe UK.

Thirdly, applicability of these technical legal rules of fiduciary law is notthe aim of this thesis. I am interested in the argument that is necessarilyprior to that, namely whether and how the Commission and the personssubject to its acts should be understood to be in a fiduciary relationship,

27Protocol (No 3) on the Statute of the Court of Justice of the European Union (2010)[2010] OJ C83/210 (CJEU Statute) paras 21, 23-29, 32.

28Consolidated Version of the Treaty on the Functioning of the European Union [2010]OJ C83/47 (TFEU) arts 263, last sentence and CJEU Statute, para 45.

29These common legal principles form the only source of EU law apart from the Treatiesand legislation. They are expressly provided for by Art 340 TFEU, but are usedas a source of law more broadly by the Court: cf Ulrich Fastenrath and MaikeMuller-Gerbes, Europarecht: Grundlagen und Schwerpunkte (Nomos 2000) p. 140et seq. Cf also for the area of administrative law Jurgen Schwarze, ‘Towards aCommon European Public Law’ (1995) 1(2) European Public Law pp 227–239;Jurgen Schwarze, ‘The Convergence of the Administrative Laws of the EU MemberStates’ (1998) 4(2) European Public Law pp 191–210.

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and what this would mean on a more fundamental level.30

3.1.2 ‘Fiduciary’ as a General Legal Notion

All persons invested with the legislative or executive powersof government are the trustees of the public.31

For the purpose of constructing the relationship between the Commissionand the persons subject to its powers with the help of a fiduciary framework,technical legal rules are much less relevant than the fundamental legalprinciples which form the concept of ‘fiduciary’. Treating ‘fiduciary’ asa general legal notion for the purpose of reconstruction also means thatI take recourse to legal principles from a variety of jurisdictions. Whilefiduciary law might be most famous in the Commonwealth legal systems,other European countries also know ‘fiduciary’ legal relationships, eventhough they might be embedded differently in the legal system and adhereto different technical legal rules.

This point is supported by the comparative legal research which is par-ticularly prominent in the field of trusts. Here, a number of researchers32

have argued convincingly that the British fiduciary relationship finds itsexpression in a number of legal institutions of the continental systems, ofwhich the German Treuhand is one example.33

30In later chapters, I will elaborate on which more specific procedural rules would beappropriate for the Commission when adopting delegated and implementing acts.

31Constitution of Maryland - November 11, 1776.32While Douglas refers to the commentators stating this conviction as “common core”

theorists (James Douglas, ‘Trusts and their Equivalents in Civil Law Systems: Whydid the French Introduce the Fiducie into the Civil Code in 2007? What Mightits Effects Be?’ (2012) 13(1) QUT Law Review pp 19–29, p. 24), he does notpresent this group as one among many, but rather this appears to be the only groupresearching the topic.

33Hein Kotz, Trust und Treuhand: eine rechtsvergleichende Darstellung des anglo-amerikanischen trust and funktionsverwandter Institute des deutschen Rechts (Van-denhoeck & Ruprecht 1963); George Gretton, ‘Scotland: The Evolution of the Trustin a Semi-Civilian System’ in Richard Helmholz and Reinhard Zimmermann (eds),Itinera Fiduciae: Trust and Treuhand in Historical Perspective (Duncker & Humblot1998) pp 507–542; C.H. van Rhee, ‘Trusts, Trust-like Concepts and Ius Commune’(2000) 3 European Review of Private law pp 453–462; cf further Maurizio Lupoi,‘The Shapeless Trust’ (1995) 1(3) Trust & Trustees pp 15–18. See the also thevery detailed, although probably outdated, enumeration of the various civil law

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Of course, comparative studies have similarly acknowledged differencesbetween fiduciary law and its civil law counterparts.34 These differencesare rather complex because specific legal institutions cannot find a directcounterpart in other jurisdictions. For example, the English trust wouldhave to be translated into a number of institutions of German law (such asexecutorship, foundation, and Treuhand), depending on what the trust isused for.35 These differences have historically led some authors to concludethe fundamental incomparability between English origin fiduciary law andEuropean continental legal institutions.36

constructions that can be substituted for trusts specifically. Pierre Lepaulle, ‘CivilLaw Substitutes for Trusts’ (1927) 36(8) Yale Law Journal pp 1126–1147. For adescription of some Italian and French ‘fiduciary’ institutions, see Maurizio Lupoi,‘Trust and Civilian Categories (Problems Spurred by Italian Domestic Legislation)’in Richard Helmholz and Reinhard Zimmermann (eds), Itinera Fiduciae: Trustand Treuhand in Historical Perspective (Duncker & Humblot 1998) pp 495–506;Michele Graziadei, ‘The Development of Fiducia in Italian and French Law fromthe 14th Century to the End of the Ancien Regime’ in Richard Helmholz andReinhard Zimmermann (eds), Itinera Fiduciae: Trust and Treuhand in HistoricalPerspective (Duncker & Humblot 1998) pp 327–360; Laura M. Franciosi, ‘Trustand the Italian Legal System: Why Menu Matters’ (2013) 6 Journal of Civil LawStudies pp 803–829, James Leavy, ‘In France We Trust: Why the New fiducieInstitution Brings France Closer to its Anglo-Saxon Peers’ (2007) 26 InternationalFinancial Law Review pp 66–67 and Irina Gvelesiani, ‘Swiss “Fiducie” vis-a-visFrench “Fiducie” (Terminological “Coincidences”)’ (2014) 3(3) Academic Journal ofInterdisciplinary Studies pp 269–272, for an EU wide contribution, see Christianvon Bar, Eric Clive, and Hans Schulte-Nolk, Principles, Definitions and ModelRules of European Private Law: Draft Common Frame of Reference (sellier 2009),chapter X on trusts. (Although for a critical evaluation of the latter as too ’English’,not taking into account sufficiently existing continental institutions, see AlexandraBraun, ‘Trusts in the Draft Common Frame of Reference: The “Best Solution” forEurope?’ (2011) 70(2) Cambridge Law Journal pp 327–352).

34Indeed, it appears to be somewhat of a convention in academic literature to refer tothe claim that trusts are commonly considered specific to equity, only to proceedto other instances of functionally equivalent institutions in ‘civil law’ countries.Cf Douglas (n 32); Gvelesiani (n 33); Angelique Devaux, DeAnne Beckner, andMargaret Ryznar, ‘The Trust as More Than A Common Law Creature’ (2014) 41Ohio Northern University Law Review pp 91–119.

35Hayton, Kortmann, and Verhagen (n 2).36This claim has been mostly made for the area of trust law. There are many ‘historic’

claims, not least of which Maitland’s oft cited claim that his German friend (Gierke)could not understand the trust: F.W. Maitland and others, Equity: a Course ofLectures (first published 1936, Cambridge University Press 1969) p. 23. For amore recent contribution, see Jean-Claude Goldsmith, ‘Trusts in France’ (1996) 2(6)

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However, it appears to me that the differences described37 hold littleprejudice against my arguments, because they do not refer to the funda-mental structure of the relationship between fiduciary and beneficiary.38

The way I treat it here, ‘fiduciary’ is simply the English language termfor a more general legal notion,39 namely as the rules dealing with arelationship characterised by a situation where the vulnerability of oneparty is necessary for the other party to fulfil its role.

3.1.3 Public Fiduciary Law

When understood as a mechanism to deal with vulnerability and power, therelevance of a fiduciary perspective for public law becomes evident. The

Trusts & Trustees pp 5–13. See also the statement that trusts are a “beacon ofEnglish law”: Madeleine Cantin Cumyn, ‘Reflections Regarding the Diversity ofWays in which the Trust has been Received or Adapted in Civil Law Countries’in Lionel Smith (ed), Re-imagining the Trust: Trusts in Civil Law (CambridgeUniversity Press 2012) pp 6–28 p. 7. Such statements might be connected to thevirtual ubiquity of trust and fiduciary constructions in English legal use: ibid, p. 10.

37Examples of differences noted are whether the law of succession makes it possiblefor a settlor to freely settle all her belongings on those she wishes to or whetherthere are statutory guarantees of inheritance for certain family members (Goldsmith(n 36). This is also mentioned, but without the evaluation, as an argument forincomparability by Maurizio Lupoi, ‘The Domestic Trust Theory Upheld in Italy’(1998) 4(10) Trusts & Trustees pp 24–27). Another crystallisation point for suchdifferences is the question which rights third parties have against either fiduciaryor beneficiary. Cf, for example Erich Huber, ‘Trust and “Treuhand” in Swiss Law’(1952) 1(1) International and Comparative Law Quarterly pp 64–66, p. 65 pointingout the lesser rights of beneficiaries in cases of trustee insolvency under Swiss lawthan under UK law.

38For the commonality of this aspect, see also Douglas (n 32) p. 23, Frankel, ‘TowardsUniversal Fiduciary Principles’ (n 19).

39Cf, for example, the parallelism between the definition given above and that givenin Sibylle Hofer, ‘Treuhandtheorien in der deutschen Rechtswissenschaft des 19.Jahrhunderts’ in Richard Helmholz and Reinhard Zimmermann (eds), Itinera Fidu-ciae: Trust and Treuhand in Historical Perspective (Duncker & Humblot 1998)pp 389–415 (referring to Regelberger (1880)): [das fiduziarische Rechtgeschaft stehtunder der Vorraussetzung dass] “derjenige welchem dadurch eine gewisse rechtlicheMacht geschaffen wird, seine Stellung nur zu einem bestimmten, nicht zu allendadurch ermoglichten Zwecken ausnutzen werde.” Cf also Hermann Eichler, DieRechtslehre vom Vertrauen: privatrechtliche Untersuchungen uber den Schutz desVertrauens (Mohr Siebeck 1950) p. 7 et seq about the relevance of formal trustrelationships in German law.

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relationship between the persons subject to its power and the Commissionis a public law relationship so that this relevance is a central point in theargument. At the same time, the differences between private and publiclaw relationships make it necessary to be sensitive to the fact that someaspects of fiduciary law are more fitting to the public law context thanothers.

Yet, much of (private) fiduciary law sounds rather appropriate even ina public law background. Indeed, even though developed for a family lawcase, the characterisation of a fiduciary relationships in Frame v Smith40

looks very similar to the description of a regulatory relationship such asthat between the Commission and the persons subject to delegated andimplementing acts: According to Wilson J, a fiduciary relationship existswhen

(1) the fiduciary has scope for the exercise of some discretionor power.

(2) The fiduciary can [...] exercise that power or discretion soas to affect the beneficiary’s legal or practical interests.

(3) The beneficiary is [...] vulnerable to or at the mercy of thefiduciary holding the discretion or power.41

Frame v Smith is a family law case which nevertheless provides indicationthat fiduciary law is relevant to public law relationships. The description itgives of what a fiduciary is, sounds very much like what public authoritiesare perceived to be.

In the Commonwealth countries and the US a modern fiduciary lawhas developed with the most famous form of fiduciary relations, the trust,being firmly connected to property law. However, despite the fact thatfiduciary law in common law countries is often treated with a focus ontrust law42 and the fact that most trusts are private law relationships,fiduciary law is not a doctrine of private law. Instead, a number of courtrulings as well as academic contributions have used fiduciary law in publiclaw relationships.

40Richard Hugh Frame v Eleanor Margaret Smith and Johnston Smith (1987) 2 SCR99.

41ibid, para 60.42Birks (n 17).

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Interestingly, the argument that is ultimately sustained through thefiduciary perspective can vary considerably, depending on how vulnerabilityis understood and whose vulnerability is the focus of the inquiry. Thus,there is a series of cases in English public law cases in which a city councilis construed as having fiduciary duties towards its ratepayers which it hasto fulfil. These duties work to the detriment of its policy choices vis-a-visits employees43 and wider electorate.44 These cases differ markedly fromthe argument in some academic contributions arguing for fiduciary dutieswith the outcome of empowering or protecting politically marginal andsocially excluded groups.45

43Cf Rex v Roberts ex parte Scurr and others (1924) 2 KB 659; Roberts v Hopwood andothers [1925] AC 578. In this case, an auditor reprimanded the Poplar City Councilbecause they paid their female employees wages which were comparable to thoseof the male employees, but thus far above the common wages for women. AtkinsLJ accepts the analogies between the fiduciary position and that of public officials:“That trust and confidence are bestowed upon them is true; that they may not usethe powers entrusted to them for their own advantage is also true.” Although healso feels the need to point out that public officials should not be treated as trusteesin the technical sense.Rex v Roberts ex parte Scurr and others (n 43) 726. Instead,Atkins LJ appears to depart from a public law duty of reasonableness which isincidentally similar, but in terms of source independent from, fiduciary duties. Thefiduciary analogy is phrased somewhat stronger by Lord Atkinson in the House ofLords: “Towards these latter persons [i.e. person which are not part of the body]the [public] body stands somewhat in the position of trustees or managers of theproperty of others.” Roberts v Hopwood and others (n 43) p. 596.

44Prescott v Birmingham Corporation 1953 P. 7398, (1955) 1 Ch 210 and BromleyLondon Borough Council v Greater London Council and another [1983] AC 768. Inthe former case, Jenkins LJ held that the local authority was not a trustee, but owedanalogous fiduciary duties to their ratepayers: Prescott v Birmingham Corporation(n 44) 235. Unfortunately, this proposition is not further substantiated in thatjudgment. The case of Bromley v Greater London City Council is probably themost well-known authority for fiduciary duties of public (local) authorities. In thiscase, the Bromley Borough of London objected to the free or greatly reduced farefor public transport decided by the Greater London City Council and referred to itsabove-average financial contribution to the Greater London City Council’s budgetwhile at the same time being unlikely to benefit from the policy. The fiduciary dutyof the council to ratepayers are “no more than common justice – especially where[...] those who provide the greater part of the rates have no vote in local governmentelections”, Bromley v GLC (n 44) 838 per Lord Scarman.

45Cf, Anita Silvers and Leslie Pickering Francis, ‘Justice through Trust: Disability andthe “Outlier Problem” in Social Contract Theory’ (2005) 116/1 Ethics pp 40–76or ‘Ethan J. Leib and David L. Ponet, ‘Fiduciary Representation and DeliberativeEngagement with Children’ (2012) 20(2) Journal of Political Philosophy pp 178–201.

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It is often the vulnerability of groups such as socially disadvantagedindividuals that is the focus of arguments by academic contributors, butthis has also been at the centre of another strand of cases in publicfiduciary law, namely those concerning the government of Canada andits relation to indigenous populations.46 These cases served to reinforcethe Canadian government’s obligations towards indigenous peoples. Thedifference between the cases strengthening the position of ratepayersand and the contributions and cases referring to indigenous peoples ordisadvantaged persons lies mainly in who is understood to be vulnerable:those ‘taxed without being represented’ or those that are unable to fullyparticipate in social and political life for reasons of limited capacity.

Vulnerability as well as the requirements of fairness and rights of equalprotection also play a role when legal doctrine uses the fiduciary construc-tion of public authority. In German legal doctrine, the state is understoodas a ‘Treuhander’ with the people as ‘Treugeber’,47 where the state pro-vides for a mechanism of conflict resolution between private parties. Herethe state or the Courts have a fiduciary function in taking care of bothparties’ interests.48

Arguably, this vulnerability, and the need for a people to be somehowrepresented at the international arena, likewise played a role in anothertraditional use of a fiduciary construction in public law; the trust man-

46For some of the most important cases in this respect, see Guerin v The Queen (1984)2 SCR 335 in which the Supreme Court of Canada found that the Crown is indeedin a fiduciary relationship with aboriginal peoples because these peoples handedover their interests to the Crown which is now duty bound to protect them, RonaldEdward Sparrow v The Queen (1990) 1 SCR 1075 in which the Supreme Court ofCanada found that aboriginal rights exist before and independent of legislation. Foran analysis of this series of cases, see Evan Fox-Decent, Sovereignty’s Promise: TheState as Fiduciary (Oxford University Press 2011) ch. 2 and 3 and Smith, ‘Loyaltyand Politics’ (n 16). This relationship differs from other public law relationshipsin that it has an actual contractual basis which played a role in the finding of thefiduciary relationships. It is an interesting question, whether the relevant provisionsin the contract between the Crown and the indigenous groups is very context specificor whether this would be a ‘provision’ which would be found in any ‘social contract’establishing government.

47A ‘Treugeber’ is the counterpart to a ‘Treuhander’ in German law. Literally thisrefers to the person ‘giving in faith/trust’.

48Martin Lohnig, Treuhand: Interessenwahrnehmung und Interessenkonflikte (MohrSiebeck 2006) p. 307 et seq.

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date.49 Under this construction the government of one country becamethe ‘trustee’ of another country which itself had no government. A similarconstruction is relevant when the government of a territory or peoplecannot sensibly be understood as democratic self-expression, such as inthe case of an occupied territory,50 where the occupying force takes onthe role of fiduciary to the occupied people.

In academic literature, a fiduciary perspective further serves to argue aspecific form of the (limitations of) public discretion and the alleviation ofvulnerabilities. Paul Finn has become famous for applying the fiduciaryconcept to the state, arguing out of a desire to re-invigorate popularsovereignty.51 He claimed that “[b]eyond the trust, beyond the company,the most fundamental of fiduciary relationships in our society is thatwhich exists between the community (the people) and the State and itsagencies”.52 Such a fiduciary perspective is attractive, especially whereconsidering the relationship between the state and individuals who arenot and cannot be a part of the mature, educated and politically activegroup which can make the most of political citizenship rights.53 A fiduciaryframework can more generally help reconstruct question which are oftenconsidered as questions of ‘representativeness’.54 Even critics of Finn’sview maintain that “trust terminology is an extremely useful way ofthinking about [...] public law”.55

49James R. Crawford, The Creation of States in International Law (Oxford UniversityPress 2006) ch. 13, cf also critically Antony Anghie, Imperialism, Sovereignty andthe Making of International Law (Cambridge University Press 2007) ch. 3.

50Max Rheinstein, ‘The Legal Status of Occupied Germany’ (1948) 47(1) MichiganLaw Review pp 23–40.

51Finn, ‘Public Trust and Public Accountability’ (n 1).52Finn, ‘The Forgotten “Trust”: The People and the State’ (n 1) p. 131.53Silvers and Pickering Francis (n 45).54Ethan J. Leib, David L. Ponet, and Michael Serota, ‘Mapping Public Fiduciary

Relationships’ in Andrew Gold and Paul Miller (eds), Philosophical Foundations ofFiduciary Law (Oxford University Press 2014) ?.

55Charles Sampford, ‘Trust, Governance and the Good Life’ in Ken Coghill, CharlesSampford, and Tim Smith (eds), Fiduciary Duty and the Atmospheric Trust (Ashgate2012) pp 43–68 p. 45. The criticism pertains (1) to trust law’s links to individuality,(2) its blindness to non-human interests (such as the environment), (3) its linksto property (which are also visible, for example, in Alec Stone-Sweets approach topublic fiduciary law which focuses, to my mind, too strongly on property aspects inhis fiduciary perspective on the EU Court: Alec Stone Sweet, ‘Constitutional Courtsand Parliamentary Democracy’ (2002) 25(1) Western European Politics pp 77–100),

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Fiduciary law has also been used to evaluate the conduct of individualofficials. This bears some (though not necessarily explicit) reference tohistory, as the ‘law of offices’ regulating this conduct was previously partof fiduciary law.56 Fiduciary law can be used to explain57 but also toreview the codes for ethical conduct of public officials, asking whether thestandards imposed are both strict enough and lenient enough.58 Similarly,fiduciary ideas can serve to express criticism of some powers of governmentbodies and to highlight the necessity for impartiality.59 Such an approach60

differs from the one taken here, which does not focus on the actions ofindividual officials, but instead on the public body as a whole.

In more theoretical inquiries, fiduciary law has been used as an inspi-ration for or as a comparison with administrative law rules. In this way,administrative law has been compared to fiduciary law to prove that theregime for shaping discretion applies the same fundamental principles inUK administrative and fiduciary law,61 and that many individual rules ofadministrative law, such as non-delegation rules and judicial deference toadministrative decision-making, can be explained by fiduciary reasoning.62

Going one step further, fiduciary obligations have also been used to

(4) that trust law focuses on removal of office as remedy for breach of trust andlastly, (5) its tendency to originalism. While I acknowledge that these factors needto be considered carefully when transposing fiduciary law rules to public law, I donot see any insurmountable obstacles in them.

56Evan Fox-Decent, ‘Democratizing Common Law Constitutionalism’ (2010) 55 McGill Law Journal pp 511–535, p. 529.

57Richard W. Painter, Getting the Government America Deserves: How Ethics ReformCan Make a Difference (Oxford University Press 2009).

58Kathleen Clark, ‘Do we Have Enough Ethics in Government Yet?: An Answer fromFiduciary Theory’ [1996] (1) University of Illinois Law Review pp 57–102.

59Cf D. Theodore Rave, ‘Politicians as Fiduciaries’ (2013) 126(3) Harvard Law Reviewpp 671–739 who criticises the way in which in the US bodies of elected representativescan change by majority the district boundaries of the very electoral districts whichwould cater for (or against) their own re-election.

60Admittedly, sometimes the fiduciary argument does not take the form of an explicitapproach, and there is research which does not make a real difference between a publicbody and the officials staffing it. Cf, for example, Craig W. Thomas, ‘Maintainingand Restoring Public Trust in Government Agencies and Their Employees’ (1998)30(2) Administration & Society pp 166–193.

61Dawn Oliver, ‘Review of (Non-Statutory) Discretion’ in Christopher F. Forsyth (ed),Judicial Review and the Constitution (Hart 2000) pp 307–325.

62Evan J. Criddle, ‘Fiduciary Foundations of Administrative Law’ (2006) 54 UCLALaw Review pp 117–184.

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argue for a statute-independent imposition of duties such as reasonablenessor reason giving.63 While this way of phrasing the concern for sourcesof obligations is one more frequently found in common law countriesthan in continental Europe, the concern for general legal or constitutionalprinciples64 and their doctrinal implementation is not one restricted tocommon law. Nevertheless, ‘fiduciary’ constructions are more commonto the English speaking world than to continental Europe, probably byreason of the greater familiarity with the concept in the common lawworld.

However, EU law scholarship has also used the concept. Here, thefiduciary view is focused on the intergovernmental level and the delegationof powers from states to the EU as a more international organisation. Thevery independence and strength of the EU and especially the Commissionserve as a case in point for a fiduciary approach. This independence posesa puzzle for principal-agent theory, as it is unclear why the Member Stateswould delegate power to the EU, and the Commission specifically, withoutbeing able to control it and to prevent ‘agency drift’. The fiduciary modelis used to explain the utility and logic of this kind of delegation, describingit as a mechanism to build credible commitment.65

This argument from principal-agent theory is markedly different fromthe arguments advanced here. Firstly, the exclusive focus on the relationbetween Member States and EU institutions excludes those which arethe focus of my research; the persons within the Member States, directlysubject to delegated and implementing acts. Secondly, whereas thatresearch seeks to explain how a relationship (i.e. between the MemberStates and the EU) can be explained by recourse to the fiduciary model,I seek to find a justification for the form a relationship takes (i.e. the

63Cf Lorne Sossin, ‘Public Fiduciary Obligations, Political Trusts and the EquitableDuty of Reasonableness in Administrative Law’ (2003) 66 Saskatchewan Law Reviewpp 129–182; Fox-Decent, Sovereignty’s Promise (n 46) ch. 7 and 8.

64One author frames his research as attending to questions of “authority, discretion andlegality”, which he then considered with the help of fiduciary and administrativelaw. Malcolm Thorburn, ‘Justification, Powers and Authority’ (2008) 117 Yale LawJournal pp 1070–1130, p. 1070.

65Cf Giandomenico Majone, ‘Two Logics of Delegation: Agency and Fiduciary Relationsin EU Governance’ (2001) 2/1 European Union Politics pp 103–122. For a furtherdevelopment of this idea see also Mark Thatcher and Alec Stone Sweet, ‘Theory andPractice of Delegation to Non-Majoritarian Institutions’ (2002) 25/1 West EuropeanPolitics pp 1–22.

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3.2 the role of the fiduciary

relationship between the Commission and the persons subject to itspowers). My reconstruction is based on more normative reasoning thanthe largely explanatory hypothesis forwarded in principal-agent research.

3.2 The Role of the Fiduciary

The fiduciary construction of public authority has been undertaken orassumed by many writers throughout history. This ranges from Cicero66 to(arguably) Hobbes67 and Locke68 to Paul Finn.69 This construction buildson the definition of a ‘fiduciary’ as someone in a position of authority,influence or opportunity. Using this fiduciary construction is also a way toexpress the moral constraints which an authority should be under in orderto be a ‘good’ or trustworthy authority. In this vein, as will be elaboratedbelow, to be a fiduciary is above all to be to be focused on those onehas authority over, it is a manner of connecting or of ‘domesticating’ theauthority.

As mentioned above, in many countries of the Commonwealth and theUS the arguments relying on concepts of ‘fiduciary’ and even more ‘trustee’are intuitively understood. Nevertheless, to be able to draw normative andprocedural consequences from such a claim, a more precise elaborationof the concept is necessary. This elaboration must moreover take care ofthe fact that in many countries of the EU the term ‘fiduciary’ is largely

66For example Marcus Tullius Cicero, De Officiis (Walter Miller ed, Harvard UniversityPress 1913) 〈http://www.perseus . tufts .edu/hopper/text?doc=Perseus : text :2007.01.0047〉 I(85). Cicero here refers to ‘tutela’, which has been translated as‘trusteeship’ (John Higginbotham, Cicero on Moral Obligation (Faber and Faber Ltd1967) p. 69) or ‘ guardianship’ (Miriam T. Griffin and E. Margaret Atkins, Ciceroon Duties (Cambridge University Press 1991) p. 33). The fiduciary constructionof tutela is a question which goes beyond the scope that can be devoted to it here.For a discussion, cf W.W. Buckland, Elementary Principles of the Roman PrivateLaw (Cambridge University Press 1912) p. 50 et seq.

67Fox-Decent, Sovereignty’s Promise (n 46).68John Locke, Second Treatise of Government (first published 1690, Project Gutenberg,

2010).69Finn, ‘Public Trust and Public Accountability’ (n 1); Finn, ‘The Forgotten “Trust”:

The People and the State’ (n 1). For an overview over the development of legal-philosophical thought and institutions in this field, cf Jedediah Purdy and KimberleyFielding, ‘Sovereigns, Trustees, Guardians: Private-Law Concepts and the Limits ofLegitimate State Power’ (2007) 70(3) Law and Contemporary Problems pp 165–211.

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unknown outside legal expert circles.

In one of the most widely regarded judgments regarding the field, LordMillett describes a fiduciary role as the following:

“A fiduciary is someone who has undertaken to act on behalfof another in a particular matter in circumstances which giverise to a relationship of trust and confidence.”70

This generally accepted description71 contains several elements whichare not only constitutive of the fiduciary position in a formal legal way,but which connect to the very core of the meaning of ‘fiduciary’, as Iwill show below. The advantage of this description over the descriptiongiven in Frame v Smith with its focus on authority and its interdependentelements72 is that the description given by Lord Millett contains severalmore independently ascertainable elements.

The definition given contains several pertinent aspects. In order ofappearance these are firstly the aspect of commitment or undertaking (afiduciary undertakes to act), secondly there is a certain ‘altruistic’ aspectto the manner in which the fiduciary acts (to act on behalf of another),thirdly the limitation of scope (to act in a particular matter) and fourthlyand lastly there is a reference to trust and confidence. I will deal with

70Bristol and West Building Society v Mothew (CA) [1998] Ch 1, 18.71This description is widely cited, and often taken as authoritative (So cited, eg

in Martin Day, ‘Fiduciary Duties’ (2009) 15(6) Trusts & Trustees pp 447–457).Nevertheless it should be noted that this judicial definition is not necessarily taken asthe last word on the definition of fiduciaries, which is sometimes still understood aslacking: Cf, for example Matthew Conaglen, ‘The Nature and Function of FiduciaryLoyalty’ (2005) 121 Law Quarterly Review pp 452–480. Lord Millett himself, writingextra-judicially, claimed the quote above to be the definition for one (albeit themost common) group of fiduciaries, namely those having explicitly or implicitlyconsented to their position. Another group defined by their influence need not haveconsented, and a third group is defined by the possession of confidential information:Peter J. Millett, ‘Equity’s Place in the Law of Commerce’ (1998) 114 Law QuarterlyReview pp 214–227, p. 219 et seq. Yet it is clear that these groups are in noway mutually exclusive, but that a relationship will often combine more influencewith confidential information or with the acceptance of a fiduciary role. Given theconsiderable overlap between the different groups and the general acceptance of thedefinition given, I will nevertheless use it here to clarify the concept of fiduciariesin the present context which does not rely on the details of the different fiduciaryobligations as defined in case law.

72This description is cited in full above, cf 3.1.3.

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these aspects in reverse order, as this allows me to begin with the referenceto trust and confidence. It is these concepts which are the most importantbasis for the claim that fiduciary law ideas are applicable to the exerciseof powers by the Commission when adopting delegated and implementingacts.

The reference to trust and confidence is a recurring theme in court judg-ments on fiduciary law.73 Even though the concept of trust has instructedthe rules of fiduciary law,74 actual personal attitudes of confidence arenot a prerequisite for a fiduciary relationship.75 What connects trustand fiduciary relations is their structural equivalence: in cases of actualattitudes of trust as well as in fiduciary relationships the affected personsnecessarily rely on the discretion of the trusted person or fiduciary.76 Thisstructure is founded by the power or discretion the fiduciary has over theinterests of the person she is a fiduciary for and the vulnerability of thatperson to the decisions of the fiduciary.77

The ‘circumstances that give rise to trust and confidence’ are thussituations in which a beneficiary is expected to trust a fiduciary or wherethe legal context treats the beneficiary as if this were so. This treatment

73Moreover, it is sometimes given expression in ways that go beyond the usually prosaiclanguage of legal judgments, much to the irritation of some academic commentators.See, for example, the description as “hyperbole, if not hogwash” (J. E. Penner, ‘IsLoyalty a Virtue, and Even if it is, Does it Really Help Explain Fiduciary Liability?’in Andrew S. Gold and Paul B. Miller (eds), Philosophical Foundations of FiduciaryLaw (Oxford University Press 2014) pp 159–175 p. 175).

74Frankel, ‘Fiduciary Law’ (n 13); Tamar Frankel, ‘Fiduciary Duties as Default Rules’(1995) 74 Oregon Law Review pp 1209–1277, Laura Norberg v Morris Wynrib [1992]CanLII (http://canlii.ca/t/1fs90 retrieved on 2015-11-26) per McLachlin J.

75Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41, p. 69 perGibbs CJ Indeed, managers of large pension funds, for example, are undoubtedly ina fiduciary position (cf Edge v Pensions Ombudsman [2000] Ch 602) even thoughthey could not possibly entertain a relationship of personal trust with all thosepersons signed up for or already receiving a pension from the fund. This group ofpersons is simply too large.

76Matthew Harding, ‘Trust and Fiduciary Law’ (2013) 33(1) Oxford Journal of LegalStudies pp 81–102. According to Harding these rules of fiduciary law are supposedto turn this reliance into opportunities for developing personal attitudes of trust.Cf also Lawrence E. Mitchell, ‘The Naked Emperor: A Corporate Lawyer Looks atRUPA’s Fiduciary Provisions’ (1997) 54 Washington & Lee Law Review pp 465–486,p. 480.

77Cf also the description by Wilson J. given in Frame v Smith (n 40) para. 60, cited infull above.

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that is analogous to trust means that the beneficiary cannot place himselfin an arm’s length relationship with the fiduciary, and cannot, or only withgreat difficulty, protect his interests from the fiduciary. This is analogousto trust because the parties to a trust relationship would have no interestin being at arm’s length and would see no need for protection from thetrustee.

Which interests are in this way ‘handed over’ to the fiduciary is de-termined by the mandate of the fiduciary, or the act constructing thisrelationship. This mandate describes the ‘particular matter’ that LordMillett mentions which defines and delimits the extent of the fiduciaryrelationship.

‘Normal’ private law fiduciary relationships are likely to differ from therelationship at issue in this book in terms of the specific substance ofthis relationship. Mandates which are common in private relations arefor example the management of property or an estate. Such matters areunlikely to be relevant for the adoption of delegated and implementingacts.

However, fiduciary relationships are able to contain a great variety ofsubject matters, as what can constitute this matter is not restricted byanything else than the limits of morality and reason. Yet, once the subjectmatter is determined, it creates an important boundary of the fiduciary’spowers. Fiduciary powers are always purposive and therefore must bedirected at the attainment of the aim to which the relationship was setup. At the same time, the defined limits of the mandate do not detractfrom the fact that within its powers, the affected persons are dependentof the fiduciary’s exercise of its discretion.

This dependence or vulnerability is mitigated by the requirement of thefiduciary acting on behalf of the beneficiary, the person affected. Becausethe fiduciary does not act on its own behalf, but instead on behalf ofthe beneficiary, the fiduciary is forbidden from using its discretion to thedetriment of the beneficiary.

This ‘altruistic’78 aspect of a fiduciary position links strongly with the

78There is a debate about the extent to which a fiduciary relationship actually needsto be based on altruism. Indeed, since nothing prevents the fiduciary from makingits acceptance of the position conditional on personal benefits, ‘altruism’ mightnot be the right word (DeMott, ‘Fiduciary Obligations under Intellectual Siege:Contemporary Challenges to the Duty to be Loyal’ (n 18) p. 477 et seq. Mitchell,

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reference to trust and confidence. The requirement of action being moti-vated on behalf of another follows the material logic of trust relationships;it describes the behavioural aspect of the fiduciary’s goodwill.79

Notably, this other-regarding aspect is not entirely included in thesubstantive purpose of the fiduciary’s powers, but necessarily complementsit. Thus, to invest funds, for example, or even to distribute them, is notin and of itself an other-regarding activity. The interests of the personon behalf of which the fiduciary acts cannot be seen to be exhausted bythe content of the mandate.80 However, the context of the relationshipdetermines that the fiduciary must fulfil its mandate in an other-regardingway.

This ‘on behalf of another’ mainly aims to constitute a contrast toself-serving action and is not yet determinative of what kind of ‘another’this refers to. The ‘other’ can refer to a single identified person or largegroups. These groups can be defined in a variety of ways, ranging frompredetermined, fixed membership (such as ‘issue’), and more open buteasily determined membership (such as ‘shareholder’) to rather vaguecategories, especially in the case of charitable trusts (such as ‘the poor’).81

‘The Naked Emperor: A Corporate Lawyer Looks at RUPA’s Fiduciary Provisions’(n 76) p. 472; Birks (n 17)). At the same time, any self-interested aspect mustbe very well defined and is usually delimited, whereas the other-regarding aspectis potentially much more open ended. Moreover, the other-regarding, but notthe self-interested aspects are necessary for fiduciary relationships (Citibank NA vMBIA Assurance SA [2006] EWHC 3215, commented in Alexander Trukhtanov, ‘Theirreducible Core of Trust Obligations’ (2007) 123 Law Quarterly Review pp 342–347).This has brought many writers to focus on this aspect (beside Birks and DeMott, cffor example Worthington, ‘Fiduciaries: When Is Self-Denial Obligatory?’ (n 14);Conaglen, ‘The Nature and Function of Fiduciary Loyalty’ (n 71); Lionel Smith,‘Fiduciary Relationships: Ensuring the Loyal Exercise of Judgement on Behalf ofAnother’ (2014) 130 Law Quarterly Review pp 608–634 ).

79For this term and an elaboration of the concept of trust, see section 2.2.3.80This also follows from the restricted scope of the fiduciary relationship. This claim

forms the basis of Conaglen’s theory of fiduciary law: Conaglen, ‘The Nature andFunction of Fiduciary Loyalty’ (n 71); Matthew Conaglen, ‘Fiduciary Duties andVoluntary Undertakings’ (2013) 7 Journal of Equity pp 105–127. See also LionelSmith, ‘Can We Be Obliged to Be Selfless?’ in Andrew S. Gold and Paul B. Miller(eds), Philosophical Foundations of Fiduciary Law (Oxford University Press 2014)pp 141–158.

81In this latter case, it can be argued that the ‘other’ has become so vague that theduties can better be understood as conditioned by a cause than by ‘another’s behalf’:Cf Evelyn Brody, ‘Charity Governance: What’s Trust Law Got to Do With It?’

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The last aspect of the fiduciary position mentioned by Lord Millett isthat of commitment or undertaking. This aspect is subject to debate infiduciary law literature, where it is unsettled whether fiduciary relationsnecessarily can only be constituted by voluntary commitment (even if thiscommitment is implicit82),83 or whether fiduciary relations can properlybe created without the voluntary consent of the fiduciary.84

Lord Millett, writing extra-judicially, stated that there are fiduciaryrelationships which do not depend on voluntary commitment, but insteadon influence or the possession of confidential information.85 Indeed, inthose instances when Courts have found public bodies to act in a fiduciarycapacity, they have not felt the need to ascertain that these bodies volun-tarily committed to the fiduciary role.86 Instead, the fiduciary relationship

(2005) 80 Chicago-Kent Law Review pp 641–687, p. 644; stating that charitabletrustees owe fiduciary duties to the charitable purpose. Generally, fiduciary dutiesfocus much more on the person of the fiduciary than on specifics of this ‘other’.See, for example, Frankel, ‘Fiduciary Law’ (n 13) p. 818 et seq. Frankel, ‘TowardsUniversal Fiduciary Principles’ (n 19) p. 3 and citations therein. Indeed, in the caseof charitable trusts, it is commonly held that there are no beneficiaries, but this doesnot do away with the position of the fiduciary or fiduciary duties. While some publicofficials can enforce the duties of the fiduciaries, they do not have beneficial rights,but merely aid the enforceability of fiduciary duties. Luc Thevenoz, ‘Trusts: the riseof a global legal concept’ in Mauro Bussani and Franz Werro (eds), European PrivateLaw: a handbook (volumeII) (Stampfli 2014) pp 3–39. Fiduciary law moves in aninteresting dichotomy between this other-regardingness and operational fiduciaryduties directed at the person of the fiduciary.

82Cf, for example, Norberg v Wynrib (n 74).83For an elaboration of the various forms of voluntary commitment and its relevance

for the imposition of fiduciary duties, see James Edelman, ‘When do FiduciaryDuties Arise?’ (2010) 126 Law Quarterly Review pp 302–327; James Edelman, ‘FourFiduciary Puzzles’ in Elise Bant and Matthew Harding (eds), Exploring Private Law(Cambridge University Press 2010) pp 298–318; James Edelman, ‘The importance ofthe fiduciary undertaking’ (2013) 7 Journal of Equity pp 128–141. For a contributionplacing Edelman in particular within the literature of fiduciary law and expandingon his argument, see Joshua Getzler, ‘Ascribing and Limiting Fiduciary Obligations:Understanding the Operation of Consent’ in Andrew S. Gold and Paul B. Miller(eds), Philosophical Foundations of Fiduciary Law (Oxford University Press 2014)pp 39–62.

84Cf Evan Fox-Decent, ‘The Fiduciary Nature of State Legal Authority’ (2005) 31Queen’s Law Journal pp 259–310, p. 294 et seq; Conaglen, ‘Fiduciary Duties andVoluntary Undertakings’ (n 80).

85Millett (n 71) p. 219 et seq.86Cf Prescott v Birmingham Corporation (n 44); Bromley v GLC (n 44). Fox-Decent

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3.3 fiduciary obligations?

in these cases was part and parcel of the mandate of these bodies.The aspect of voluntary commitment or ‘undertaking’ has been de-

veloped mainly as an answer to the question of how a person becomesa fiduciary and from which point on a person can be held to fiduciarystandards. These questions arise frequently in a private law context, butare less common in a public law relationship, where legal duties are morefrequently imposed regardless of the consent of the person bound by them.

What this element of the description of a fiduciary nevertheless givesexpression to is that the imposition of fiduciary duties must be based onsome discernible act or fact which makes it possible for both fiduciary andbeneficiary to define the beginning, possible end, and the scope of theirfiduciary relationship.

3.3 Fiduciary Obligations?

3.3.1 The Obligation of Loyalty

“But what does it mean to be trusted? [...] Perhaps mostimportantly, to be trusted is to be told that we are trustworthy.And to be told that we are trustworthy demands that we behaveat a level that reflects that gift.”87

The section above elaborated on what fiduciaries are. This sectionaddresses the question of what it means to be a fiduciary, what is it thatfiduciaries (need to) do? As Frankfurter J stated for the US SupremeCourt: “To say that a man is a fiduciary only begins the analysis; it givesdirection to further inquiry. To whom is he a fiduciary? What obligationsdoes he owe as a fiduciary?”88 There is a general and a specific answer tothis question. Fiduciaries generally are subject to fiduciary duties, most

maintains that, because fiduciary duties can be imposed by a Court where a personhas discretion over another’s interests, the aspect of voluntary undertaking isunnecessary. Cf Fox-Decent, Sovereignty’s Promise (n 46) p. 96.

87Lawrence E. Mitchell, ‘The Importance of Being Trusted’ (2001) 81 Boston UniversityLaw Review pp 591–617, p. 599.

88Securities and Exchange Commission v Chenery Corporation 318 US 80, 85 (1943).This case is relatively well-known in US administrative law (Cf Henry Friendly,‘Chenery Revisited: Reflections on Reversal and Remand of Administrative Orders’[1969] (2) Duke Law Journal pp 199–225; Margaret B. Kwoka, ‘Deference, Cheneryand FOIA’ 73(4) Maryland Law Review pp 1060–1119), and it concerns fiduciary

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importantly the duty of loyalty. However, what behaviour this loyaltyspecifically requires depends on the details of the specific fiduciary relationin question. In this section I will elaborate on this general duty of loyalty.How this duty should be specifically operationalised in the context ofthe adoption of delegated and implementing acts will be expanded in thechapters on loyalty below.

“The distinguishing characteristic of a fiduciary”, according to LordMillett,89 “is the obligation of loyalty.”90 Generally, all fiduciaries owe thesubject of their powers an obligation of loyalty. Indeed, ‘loyalty’ connectsuniquely to the role of a fiduciary.

As a fiduciary is the recipient of institutionalised trust, the obligationsof loyalty are obligations to be trustworthy in an institutionalised way. Astrustworthiness describes the credibility of the trusted persons goodwillto the trusting person, obligations of loyalty institutionalise this goodwillas a legal duty.

The link between the normative requirement of loyalty and the positionor role of fiduciary is possibly most clear in German law. It is eventautological to claim that a Treuhander must be treu (as is indeed its

duties. Nevertheless, it is not one about public fiduciary law, as the facts underadjudication are whether the Securities and Exchange Commission dealt in the rightway with the fact that the directors of the Chenery Corporation are subject tofiduciary obligations, and not the idea that the Securities and Exchange Commissionitself could be under fiduciary duties.

89Bristol and West Building Society v Mothew (CA) (n 70) 18.90This position is maintained across jurisdictions and fields of fiduciary law. See,

for example Leo Strine and others, ‘Loyalty’s Core Demand: the Defining Roleof Good Faith in Corporation Law’ (Harvard John M Olin Discussion Paper 630,Cambridge, MA, 2009) and DeMott, ‘Loyalty’ (n 18) from US corporate law, Frankel,‘Fiduciary Duties as Default Rules’ (n 74) from US trust law, and Smith, ‘FiduciaryRelationships’ (n 78) and Conaglen, ‘The Nature and Function of Fiduciary Loyalty’(n 71) from Commonwealth law. This proposition is expressly supported by a numberof judgments, setting out the central position of this duty in fiduciary law. The mostfamous by Lord Millet has already been cited. It is complemented in AustralianSecurities and Investments Commission v Citigroup Global Markets Australia PtyLimited [2007] FCA 963, 289 per Jacobson J. Which other cases should be cited here,depends on the definition of ‘loyalty’ adopted. For example, the judgment in thecase of Armitage v Nurse [1998] Ch 241 is often cited in this connection. However,it does not use the term ‘loyalty’, but instead speaks of “the duty of the trustees toperform the trusts honestly and in good faith for the benefit of the beneficiaries”.ibid, 253 per Millet J. Yet, this is not to say that the above statement by LordMillett has not been criticised: see, for example, Penner (n 73).

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obligation).91

Loyalty describes the “giving or showing firm and constant support orallegiance”.92 This allegiance is necessary for a fiduciary to act ‘on behalfof another’ in a non-paternalistic way. Thus, the fiduciary duty of loyaltycan be explained by the requirement to respect the subject’s autonomy93

or independent moral worth.94

In a similar vein, obligations of loyalty are sometimes called conditionsof the powers of fiduciaries.95 Thus, the obligation of loyalty acts insuch a way as to carry the reasons for which the fiduciary relationshipwas justified at the outset into the relationship itself. These duties areintimately linked to the fiduciary status, so much so that it is not alwaysevident whether the status determines duties or vice versa.96 ‘Loyalty’describes that behaviour expected from someone genuinely engaged with acommunal or altruistic undertaking and especially from someone seeking tobe trustworthy. Thus, when trust is described as a ‘bonding mechanism’,97

‘loyalty’ is that behaviour which should result of that bond, and whichsustains the bond at the same time.

The term ‘loyalty’ might be familiar from contexts in which the loyalperson is intuitively not understood as occupying a position of authority indealing with those they show this loyalty to. Loyalty towards a monarch is

91Christoph Kumpan, Der Interessenskonflikt im deutschen Privatrecht (Mohr Siebeck2014) p. 49.

92The New Oxford Dictionary of English (Oxford University Press 1998).93Smith, ‘Fiduciary Relationships’ (n 78).94Irit Samet, ‘Fiduciary Loyalty as Kantian Virtue’ in Andrew S. Gold and Paul B.

Miller (eds), Philosophical Foundations of Fiduciary Law (Oxford University Press2014) pp 125–140.

95Paul B. Miller, ‘The Fiduciary Relationship’ in Andrew M. Gold and Paul B. Miller(eds), Philosophical Foundations of Fiduciary Law (Oxford University Press 2014)pp 63–90.

96Thus, Paul Finn claims that it is not the status that determines the duties of thefiduciary, but that a person is a fiduciary because she is subject to fiduciary duties.Paul Finn, ‘The Fiduciary Principle’ in T.G. Youdan (ed), Equity, Fiduciaries andTrusts (Carswell 1989) pp 1–48, See also James Edelman, The Role of Status in theLaw of Obligations: common callings, implied terms and lessons for fiduciary duties(Paper presented at the University of Alberta, 18 July 2013 and DePaul Universityconference, Chicago, 19-20 July 2013, ).

97Elizabeth S. Scott and Robert E. Scott, ‘Parents as Fiduciaries’ (1995) 81 VirginiaLaw Review pp 2401–2476.

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a case in point, loyalty among soldiers is another.98 Yet, as soon as thereis reliance on someone’s loyalty, it is likely that the person in questionindeed has power, at least in the form of the ability to do harm. This isthe case even with regard to soldiers and subjects of a monarchy.99

Yet, also the intuition that connects ‘loyalty’ to something similar to‘subordination’ or ‘obedience’ is correct. It might be outdated to call thissomething ‘devotion’,100 but rather being bound to a commitment (eventhough one not necessarily based on individual consent).101 In any case,the notion of boundedness and obligation to the target of loyalty is afundamental aspect of the concept.102 It is this aspect of boundednessto the persons subject to the fiduciary’s power on which the democraticcharacter of the Commission’s fiduciary position can be founded and whichworks to counteract tendencies of paternalism that the notion authoritybased on trust might evoke.

In the different contexts in which fiduciary relationships come to play,‘loyalty’ can take on slightly different meanings. These may be partlyincorporated into each other, but in extreme cases may lead to differingresults. Summarising literature and jurisprudence, Arthur Gold describesthese different aspects of loyalty as ‘avoidance of conflict’,103 ‘affirmativedevotion’,104 ‘being true’,105 the rational way to deal with risk in a ‘hy-

98See, for example, the discussion of loyalty as patriotism in George P. Fletcher, Loyalty:an Essay on the Morality of Relationships (Oxford University Press 1993) or theunderstanding of loyalty as ‘attachment to an organisation’ in Albert O. Hirschman,Exit, Voice and Loyalty: Responses to Decline in Firms, Organizations and States(Harvard University Press 1970) 77.

99Cf Reading v Attorney General [1951] UKHL 1 which described the fiduciary dutiesof a soldier vis-a-vis the Crown.

100Cf Josiah Royce, The Philosophy of Loyalty (Macmillan 1908) p. 16-17, definingloyalty as “the genuine devotion of a person to a cause”. But see Andrew S. Gold,‘The Loyalties of Fiduciary Law’ in Andrew S. Gold and Paul B. Miller (eds),Philosophical Foundations of Fiduciary Law (Oxford University Press 2014) pp 176–194 p. 179 who still speaks of (one form of) loyalty as ‘affirmative devotion’, buildingon Royce and Lyman Johnson, ‘After Enron: Remembering Loyalty Discourse inCorporate Law’ (2003) 28 Delaware Journal of Corporate Law pp 27–73.

101Cf the notion of the commitments of a ‘historic self’ Fletcher (n 98).102Cf Johnson (n 100); Smith, ‘Can We Be Obliged to Be Selfless?’ (n 80).103Gold (n 100) p. 178.104ibid, p. 179.105ibid, p. 180.

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pothetical bargain’106 and lastly as ‘fairness’.107 Yet, overall, the fieldappears to take a ‘we know it when we see it’-approach to the issue ofwhat loyalty is, an approach that Gold also advocates.108

In any case, even a more solid understanding of loyalty across recognisedcategories or contexts of fiduciaries in private law would not absolve fromthe necessity of constructing the meaning of ‘loyalty’ in the less than typicalcase of the public relationship that I am researching here. The quote byFrankfurt J cited above should be a reminder that the appropriateness ofa specific rule operationalising loyalty can only be assumed in the mostclear cut of cases. The present case – not being so clear cut and wellestablished – requires to investigate what loyalty will mean.

In this investigation, it is not necessary to rely on the subtle distinc-tions between different perspectives on loyalty. Even though its practicalmeaning can and will differ, when presented with some border-line cases,‘loyalty’ is a sufficiently developed concept that it can be used to investigateits meaning in the case of the fiduciary Commission adopting delegatedand implementing acts on behalf of the persons subject to them.

3.3.2 Public Loyalty

There is an underlying democratic assumption in imposing obligationsof loyalty on an administration or any other governing institution.109

This democratic assumption is that, precisely as loyalty describes therelationship of a subject to power, governing institutions should experiencethemselves as subjects and not (only) as powers. Even though admittedlythe power they are subject to is rarely manifest, it is nevertheless thebasic tenet of democratic thinking that the people be the ultimate powerand not the government of the day or the administrations doing theirbidding.110 Obligations of loyalty are obligations, which construct this

106ibid, p. 182.107ibid, p. 182.108ibid, p. 188.109This aspects is the focus of literature in which the fiduciary perspective has been

used in a more political reasoning than proposed here, for example Fox-Decent,Sovereignty’s Promise (n 46); Leib, Ponet, and Serota, ‘Mapping Public FiduciaryRelationships’ (n 54).

110Thus, some commentators argue that relationships of public authority are only notto be evaluated as ‘domination’ and undemocratic ‘submission’ under the conditionof loyalty: Evan Fox-Decent, ‘Fiduciary Authority and the Service Conception’ in

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experience.Obligations of loyalty construct the experience of being a subject at

the same time as being in a position of power. Even though the fiduciaryposition is a position of power and influence, attached obligations of loyaltyrequire the primacy of another’s needs and interests over the fiduciary’sself-interest and autonomy. In this way, obligations of loyalty shape powerand bind it to the interests and needs of its subjects.

Some commentators claim all public powers to be fiduciary powersby virtue of their purposive and other-regarding character.111 ‘Public-ness’ is here a description of a specific manner of purposiveness and‘other-regardingness’. This is because public powers, at least in moderndemocratic systems which adhere to the ideal of the rule of law, aregenerally conferred for a specific purpose, and this purpose generally liesoutside the self-interest of the institution endowed with this power.112

More broadly, authority is seen as (democratically) justified if an act is(conceivably113) authored by those who are subject to it. What loyaltydoes is to ‘encapsulate’ popular authorship of the act in the rule-makingprocess,114 by basing these acts on the needs and interests of the subjectsof the rule. In this way, even if the rule is not adopted by the people,

Andrew Gold and Paul Miller (eds), Philosophical Foundations of Fiduciary Law(Oxford University Press 2014) pp 363–387.

111Cf especially Fox-Decent, Sovereignty’s Promise (n 46), but also Smith, ‘Loyalty andPolitics’ (n 16).

112In the same light, government authority can be seen to properly constitute as mucha burden as a power. Robert G Natelson, ‘The Constitution and the Public Trust’(2004) 52 Buffalo Law Review pp 1077–1178, p. 1146.

113Alexander Somek, Individualism (Oxford University Press 2008).114The concept of ‘encapsulation’ is one forwarded by some proponents of principal-

agent theory (see Russell Hardin, ‘Trust in Government’ in Valerie Braithwaiteand Margaret Levi (eds), Trust & Governance (New York, 1998) pp 9–27) anddescribes the way that the interests of an agent can be made to become congruentto the interests of the principal, by creating an incentive structure where the agentbest serves her own interests by serving the principal’s interests. An exampleof this would be the institution of the bonus for business executives. Throughmaking the remuneration of the executive dependent on the economic success of thefirm, this economic success becomes in the interest of the executive, it has becomeencapsulated in her own interests. While I do not subscribe to many of the tenetsof principal-agent theory, ‘rational instrumentalism’ (For a definition of this term,see Elizabeth Fisher, Risk Regulation and Administrative Constitutionalism (HartPublishing 2007)) being one, the term ‘encapsulation’ provides a good picture ofthe dynamics of loyalty.

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it is adopted for the people. With regard to acts such as delegated andimplementing acts, which rely largely on the discretion of the Commis-sion,115 loyalty is a counterweight to power and means that the exerciseof judgement by the Commission must incorporate the interests of thepersons subject to it.116

In fiduciary law terms, the obligation of loyalty is more often instantiatedthrough prohibitions than prescription. Thus, fiduciary law rules focuson the prohibition of self-interested actions, such as profit making, orthe prohibition of obligations to diverting interests, expressed as theprohibition of conflict.117

Yet, this incorporation or encapsulation further requires involvementand engagement of the fiduciary with the persons that are its beneficiaries.It is impossible to be loyal but uncaring or apathetic towards the focusof one’s loyalty. Instead, loyalty describes how a person is engaged orinvested in a cause or community.118 Loyalty between its componentmembers binds a community or organisation together and is a prerequisitefor its agency.119

This can be expressed as the ‘deliberative engagement’120 componentof the fiduciary duty of loyalty. Deliberative engagement refers to thenecessity for a fiduciary to credibly assert that she knows what the needsand interests of those subject to her decision are. This knowledge comesmost credibly not from hear-say or second guessing, but instead from opendeliberation between the fiduciary and the subject of her decision.

How these two aspects of loyalty should be understood in the contextof Commission fiduciary duties will be explained below in chapter 5.

115For an elaboration on this point, see above section 2.2.116A more concrete description of this groups of persons, and also the relation between

their interest and the Union interest which is mentioned in the Treaties (ConsolidatedVersion of the Treaty on European Union [2010] OJ C83/13 (TEU) art 17(1)) is thesubject of section 4.2 below.

117Alastair Hudson, Equity and Trusts (6th edn, Routledge-Cavendish 2010) p. 334.118Hirschman (n 98); Fletcher (n 98).119Jack M. Barbalet, ‘Social Emotions: Confidence, Trust and Loyalty’ (1996) 16(9/10)

International Journal of Sociology and Social Policy pp 75–96.120Leib and Ponet (n 45); Ethan J. Leib, David L. Ponet, and Michael Serota, ‘A

Fiduciary Theory of Judging’ (2013) 101 California Law Review pp 699–754, p. 740et seq.

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3.4 Summary

The legal framework mapping relationships of institutional trust is that offiduciary law. The introduction into the fiduciary perspective serves as thetheoretical background to the argumentation in the chapters below. Fidu-ciary law is a field of law that translates institutional trust relationshipsand their dynamics of vulnerability and power into a legal framework.

The structure of fiduciary relations is analogous to the structure ofrelations of institutional trust, both in terms of the position of the partiesand in terms of the normative framework attached. This is true for bothprivate and public law relationships of institutional trust.

Fiduciary relations are characterised by vulnerability of one party tothe decisions of another party. The latter’s decisions cannot be controlledby the vulnerable party, but the power of the deciding party is necessaryfor the aim of the relationship. The role of the fiduciary is premised onacting on behalf of another in a relationship of trust and confidence. Thelegal obligation corresponding to this role is the duty of loyalty. Fiduciaryloyalty is the legal obligation that manifests the normative requirement tobe trustworthy.

The legal framework of fiduciary law thus can be used to structure therelationship between the Commission and the persons subject to delegatedand implementing acts. As this relationship is also one that relies oninstitutional trust, as I argued in chapter 2, fiduciary law is relevant to it.

Having shortly introduced both fiduciary law and the role of a fiduciary, Iwill use this framework in the chapter below to argue that the Commissionshould be understood to occupy a fiduciary role. I will further use thisfiduciary framework to determine who are the further parties involved inthis relationship and how its scope should be defined.

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4

Who is Who (and What)

How should the legal relationship established by the Commission’s adop-tion of delegated and implementing acts be constructed?

Discussing fiduciary roles and responsibilities is much easier in theabstract than in the application to a concrete relationship. Nevertheless,it is in the context of a concrete relationship in which abstract notionsoperate. In this chapter I argue that the fiduciary relation between thoseadopting delegated and implementing acts and those subject to it shouldbe constructed as a relationship between the Commission as fiduciary, andcitizens, corporations and specific further groups as beneficiaries.

In the preceding chapters, I have argued in favour of the validity andusefulness of the fiduciary approach to Commission rule-making. Fiduciarylaw has something to say about the exercise of discretion and also helps toprovide a useful perspective on the adoption of delegated and implementingacts. Here I will show what the fiduciary construction of the Commissionlooks like. On the basis of the construction in this chapter, I will argue inthe next chapter that this perspective calls for refocusing the procedurefor the adoption of delegated and implementing acts to take into accountthe duties of loyalty connected to the fiduciary position.

In this chapter I will explain that the Commission, when adoptingdelegated and implementing acts, fits all the characteristics of a fiduciary.It has power over important resources while the persons subject to its

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who is who (and what)

power are vulnerable to its decision.1 It has undertaken to decide on behalfof the persons subject to its acts in a certain matter in a relationship oftrust and confidence.2

The Commission can be seen as a fiduciary when adopting delegated andimplementing acts, because it shares the relevant features of a fiduciarywhen so engaged. The Commission then acts on behalf of another in arelationship that is supposed to give rise to trust and confidence – andthe Commission exercises discretion over salient interests of the personssubject to delegated and implementing acts.

The other party to the fiduciary relationship are the ‘beneficiaries’ whoare to be served by the fiduciary’s exercise of authority. In the presentcontext these are the persons subject to Commission rule-making. These‘persons’ should be understood as consisting first and foremost of EUcitizens. Even though the EU Treaties are largely silent on the matter,they should be constructed so as to hold that EU law ultimately seeksto benefit EU citizens. This construction is supported by the Title ondemocracy of the TEU (especially Art. 9 TEU), as well as the Charteron fundamental rights, and particularly its Art. 1. These provisions readtogether mean, in essence, that EU institutions should be mindful of EUcitizens as their well-being is the aim of EU action. Such a perspective isalso supported by the case law of the Court, starting with van Gend enLoos.3

In addition to the citizens, it is possible for legal persons, such ascompanies operating in the internal market, to be intended beneficiaries ofdelegated and implementing rule-making and they should thus be seen as apart of the persons subject to Commission powers. Even though this mightbe at odds with a more traditional understanding of ‘subjects’, EU law asit stands makes it hard to disregard them. These companies are often themost directly regulated by delegated and implementing acts, which areat times even in response to a company’s specific request.4 Furthermore,

1Richard Hugh Frame v Eleanor Margaret Smith and Johnston Smith (1987) 2 SCR99.

2Paraphrasing Bristol and West Building Society v Mothew (CA) [1998] Ch 1.3Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos

v Nederlandse Administrie der Belastingen [1963] ECR English special edition–(ECLI:EU:C:1963:1).

4Cf, for example Commission Delegated Regulation (EU) No 1047/2013 of 21 August2013 amending Commission Delegated Regulation (EU) No 114/2013 for the purpose

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there are a number of provisions in the Treaties which give legal personsan independent legal status. This is the case with Art. 54 TFEU (freedomof establishment), but also Arts. 15 (access to information) and 227 TFEU(right to petition Parliament). The last two articles in particular constitutepolitical rights which are hard to reconcile with a purely instrumental rolefor companies.

A third group of beneficiaries should be recognised where the basiclegislation which contains the mandate for a delegated or implementingact explicitly seeks to protect third country nationals. Thus, indigenouspeoples (for example the Inuit, a great number of whom live in Canada),refugees or nationals of developing countries have been explicitly protectedby such basic legislation. In these cases, the mandate of the Commissionincludes the responsibility for the interests of such groups, also includingthem in the group of beneficiaries.

At the same time, the basic legislation can serve to differentiate betweendifferent groups of beneficiaries, such as for example producers and con-sumers. This differentiation does not necessarily reproduce the differentgroups of beneficiaries so far described, but the dividing lines might runwithin the group of legal persons. In such cases, the Commission, inthe loyal fulfilment of its mandate, is tasked with giving one group anadvantage over another. At the same time, this task cannot detract fromthe fundamental fiduciary relation to all beneficiaries.

Even though the relationship created by delegated and implementingacts is described first and foremost as one between the Commission andthe persons subject to its powers, this does not mean that Member Statescannot be subject to these acts. Nevertheless, the interactions betweenthe Commission and Member States are structured so differently that thefiduciary duties developed in this book are unlikely to fit the relationshipbetween Member States and the Commission.

Despite the fact that Member States can also be subjects of delegatedand implementing acts, and even though such acts are arguably adoptedfor their benefit, I leave them out of consideration here. Member States’relationship to the Commission is governed prima facie by different dynam-ics than the relationship of the persons within the Member States to theCommission. Even if there is a good reason to argue that the institutions

of correcting the 2010 average specific CO2 emissions specified for the manufacturerPiaggio [2013] OJ L285/1.

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are also fiduciaries of the Member States, the obligations resulting fromthis relationship are likely to differ too much from the obligations resultingfrom the relation between the Commission and persons within the MemberStates to treat them under the same framework.

In mapping a fiduciary relation, it is further important to delimit itsscope. In the case of the Commission acting as fiduciary for the personssubject to delegated and implementing acts, this scope is determined bythe scope and objectives of the Treaties as well as by the mandate inlegislation. Additionally, the essential elements doctrine provides a limitto the scope of the Commission’s powers in that it precludes the adoptionof acts which go beyond the scope of the legislative basis, are of highpolitical salience or significantly affect fundamental rights.

To complete the mapping exercise, I touch upon what legal consequencesare attached to breaches of fiduciary obligations. Obligations of loyaltycan only be enforced in as far as the judicial review process is able to assertthat an obligation has indeed been breached. In this context the factthat a breach of the duty of loyalty is rarely unambiguously determinedis problematic. To increase the effectiveness of the duty of loyalty theburden of proof to be discharged in order to enforce obligations of loyaltyshould be reconsidered.

It is clear that the move from the private to the public sphere changesthe fiduciary relation. This change has been reasoned at various pointsabove, and is at the heart of the matter in this chapter. In this chapter Iwill develop the architecture of the public fiduciary relation between theCommission and the persons subject to its acts.

4.1 Who is the Fiduciary?

4.1.1 Constructing the Fiduciary Commission

I construct the Commission as the fiduciary of the people subject to itsrule-making on the basis of normative reasons rather than reasons ofpositive law. The reasons for which the Commission should be seen asa fiduciary could be defined as “moral and structural features intrinsicto legal order”.5 The exercise of authority of the Commission should be

5Evan Fox-Decent, Sovereignty’s Promise: The State as Fiduciary (Oxford UniversityPress 2011) p. 1.

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constrained and the Commission should focus on the needs and interests ofthe persons subject to delegated and implementing acts when regulatingthem. This statement is an expression of the political or normativesensitivities that are connected to a legitimate legal order.

The fiduciary construction of the Commission serves to justify theCommission’s authority over the persons within the Member States. Justi-fication is necessary for public authority, as authority is distinguished from(arbitrary) power mainly through its justification.6 Using this definitionand applying it to the Commission is in the first instance reconstructive.I use it to develop a legal narrative of what kind of act the Commission isengaged in when adopting delegated and implementing acts. However, itis a hallmark of both the fiduciary position and (impersonal) trust, thatit comes with obligations attached. In this way, the endeavour is alsonormative.

Above7 I have argued that the Commission should be regarded as theproper author of delegated and implementing acts. This means that –once the Commission is conferred the power to adopt them by legislation– the exercise of judgement which determines the content of the act is inthe hands of the Commission. Thus, while the legislator determines, forexample, that a scheme for authorising products containing biocides mustbe set up, it is the Commission that determines the scheme. And it is thisscheme which is the last word on whether a person can sell her product -if she is a producer - and whether a person can safely buy all products onthe market without risk of poisoning - if she is a consumer.

As the Commission is the author of the act, it is also the locus ofauthority to which the persons within the Member States are subject.As subjects, our legal and factual situation changes depending on thedecisions taken by the Commission.8

At the same time, there are only rather remote and not necessarily veryefficient routes to influence the decision made by the Commission and thusfor the persons subject to a Commission act to defend their interests. Of

6For an account of inter- or supranational authority as public authority, see Arminvon Bogdandy, Matthias Goldmann, and Ingo Venzke, From Public Internationalto International Public Law: Translating World Public Opinion into InternationalPublic Authority (SSRN 2015).

7Cf section 1.2.8I will also elaborate on this in section 4.1.2 below.

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course it is possible to vote for a Parliamentarian (or in some countries, fora party list only) and this Parliamentarian will, together with her fellowParliamentarians, co-decide on the legislation. These Parliamentariansalso have various options for stopping specific Commission decisions frombeing executed.9 However, both the links from the persons within theMember States to the decision-making process as well as the hold thatthe European Parliament has over the process of adopting delegated andimplementing acts, will hardly work as a real ‘defence of interests’. For thepersons subject to the rules this way of influencing the rule-making processis too tenuous to change the relationship of discretion and vulnerability.The influence exerted through national elections, then government andthen the Council is even more remote. In the case of general acts, suchas delegated and implementing acts, the Commission is very far removedfrom the persons who it regulates.

I have argued above10 that this situation is described as a situation ofstructural or political trust. This trust is expressed by the institutionalauthority which the Commission commands. It translates into a situationin which the persons subject to Commission acts cannot but behave as ifthey trusted the Commission, making the situation formally indistinguish-able from one in which these persons trusted the Commission personallyand explicitly. The Commission has the capability of exerting influenceon the lives of persons subject to its acts if they had trusted it with theirprotection and the management of their affairs.

The Commission has the authority to affect numerable persons’ intereststhrough delegated and implementing acts. The persons subject to itsauthority, on the other hand, have little opportunity for influence giventhat the Commission is not a representative body11 and is also not stronglycontrolled by diretly elected representatives. The Commission can act withsignificant independence from the Council and Parliament.12 As describedin the preceding chapters, the Commission enjoys a large measure ofdiscretion in discharging its mandate. Thus, even if a person does notactually regard the Commission with an attitude of personal trust, the

9Parliament can veto a delegated act and withdraw the conferral of implementingpowers. Cf also section 1.2.

10Cf section 2.2.3.11By this I mean that it is not elected to represent the persons subject to its decisions.12Cf the description given in section 1.2.

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architecture of the politico-legal system behaves as if she did.13 The‘trust and confidence’ in play are thus the same in ‘ordinary’ fiduciaryrelationships and in the relationship between the Commission and thepersons subject to its acts. To recall, “[a] fiduciary is someone whohas undertaken to act on behalf of another in a particular matter incircumstances which give rise to a relationship of trust and confidence.”14

Of course there are limits to the Commission’s discretion and these limitsare also part of the fiduciary function. These limits are the limits of theCommission’s mandate under an act of delegation with an express purpose.This mandate places interests which are relevant to the beneficiary in thehands of the fiduciary. The transfer of competences is part and parcel ofthe fiduciary relationship, because it is necessary for the fiduciary to fulfilits function.15 To take an example of a typical fiduciary relationship, ifsomeone is expected to invest another person’s financial assets securely,these assets first have to be placed in the investor’s hands. Otherwise, itwould be impossible to fulfil the function of investing securely.

The ‘particular matter’, regarding which a delegated or implementingact is to be adopted, is, for example, a scheme for the authorisationon products concerning biocides,16 or keeping (and changing) a list ofrestricted substances in accordance with the latest scientific knowledge,17

or devising an energy efficiency measurement and categorisation for specifichousehold appliances.18 The defined extent of this mandate does, however,

13For this ‘counterfactual’ tendency of fiduciary relations, which moreover can also beargued to be structured as if the fiduciary was actually trustworthy, see also JoshuaGetzler, ‘An Interdisciplinary View of Fiduciary Law: ”As if” – Accountability andCounterfactual Trust’ (2011) 91 Boston University Law Review pp 973–990.

14Bristol and West Building Society v Mothew (CA) (n 2) 18. Cf also section 3.2 above.15Tamar Frankel, ‘Fiduciary Law’ (1983) 71/3 California Law Review pp 795–836,

p. 809, Laura Norberg v Morris Wynrib [1992] CanLII (http://canlii.ca/t/1fs90retrieved on 2015-11-26) per McLachlin J.

16Commission Implementing Regulation (EU) No 354/2013 of 18 April 2013 on changesof biocidal products authorised in accordance with Regulation (EU) No 528/2012 ofthe European Parliament and of the Council [2013] OJ L109/4.

17Commission Implementing Regulation (EU) 2015/2198 of 27 November 2015 ap-proving the active substance rescalure, in accordance with Regulation (EC) No1107/2009 of the European Parliament and of the Council concerning the placing ofplant protection products on the market, and amending the Annex to CommissionImplementing Regulation (EU) No 540/2011 [2015] OJ L313/35.

18Commission Delegated Regulation (EU) No 1059/2010 of 28 September 2010 supple-menting Directive 2010/30/EU of the European Parliament and of the Council with

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not detract from the situation of reliance on the Commission’s discretionfor choices it makes within the mandate.

In adopting delegated and implementing acts, has the Commissionundertaken to act on behalf of another? This might not be how rule-making activities are considered. However, in order to make the pointthat acting on behalf of another is indeed what the Commission is doing,I would like to look at the adverse case: if the Commission had notundertaken to act on behalf of another, it would legitimately be ableto act on its own behalf. So, can the Commission adopt delegated andimplementing acts on its own behalf? Can it adopt those acts that wouldbest further its own interest – for the reason that they best further its owninterest? Can the Commission adopt a specific scheme for authorisingproducts containing biocides because this scheme would further its owninterests more than another scheme? Can the Commission include asubstance on a list of restricted substances because this would allow itmost leverage over the producers of this substance or leave it out in orderto get a better bargaining position in respect of Parliament?

Whether the Commission practically can or cannot – this is not thefunction the Commission is considered to have. In contrast to a privatecompany – which can buy or sell or make all kinds of deals with the aimof furthering its own interests, including market control and influence onother actors – the function of the Commission is not to act like a privatecompany, and not to act with its own interests in mind. In contrast, itneeds to employ its capacities for a different goal than self-interest.19

The reason for this can be found in the public character of the Commis-sion’s mandate to adopt delegated or implementing acts. Some academicsunderstand all public authority to be purposive and other-regarding bydefinition – thus exercised on behalf of another.20 This can be explainedby the way that the necessity of legality and the connected justificationstructure the actions of public bodies,21 and by the fact that public discre-tion is already delegated for a purpose – which conceptually lies outside

regard to energy labelling of household dishwashers [2010] OJ L314/1.19More specifically, who it is for whom the Commission acts will be the subject of

section 4.2 below.20Fox-Decent, Sovereignty’s Promise (n 5) ch. 4; Lionel Smith, ‘Loyalty and Politics:

From Case Law to Statute Law’ (2015) 9 Journal of Equity pp 130–149.21David Dyzenhaus, ‘Process and Substance and Aspects of Public Law’ (2015) 74(2)

Cambridge Law Journal pp 284–306.

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the self-interests of the organisation being delegated the power to act.

The fiduciary role of the Commission is anchored in Arts. 290 and291 TFEU in combination with the specific legislative mandate. Fromtheir entry into force, both the Commission and the persons subject to itsrule-making are able to discern the purpose of the fiduciary relationshipand therefore also evaluate whether the adoption of a specific delegatedor implementing act constituted the loyal fulfilment of that purpose.

In summary, this elaboration on the characteristics of a fiduciary and thecomparison to the situation of the Commission amounts to the argumentthat the Commission can appropriately be understood to hold a fiduciaryposition. However, I would like to stress that the above does not meanthat the Commission is in any way a typical fiduciary. Indeed, the abilityto issue directives with the force of law, for one, is not an ability found ina large number of fiduciaries. However, this aspect does not remove theCommission from the scope of application of the fiduciary concept, givenits widespread use.22

4.1.2 Delimiting the Fiduciary Role

In the preceding chapters I have portrayed the Commission as a fiduciarywhen it adopts delegated and implementing acts. It is, however, moreprecise to state that the (non-representative) body that adopts delegatedand implementing acts is the fiduciary of the persons subject to theseacts.

Arts. 290 and 291 TFEU clearly state that it is the Commission whichadopts these acts (and in exceptional cases the Council). The Commissionis a rather well-defined organisation which clearly has agency and it isthus clear that the Commission should be in the fiduciary role. However,there are other bodies involved in the adoption process.

Firstly, Art. 291 TFEU mentions that implementing acts can also beadopted by the Council in exceptional cases. Even though this would putthe Council in a role otherwise occupied by the Commission, it would beinappropriate to also apply any arguments applying to the Commission

22This flexibility is an intentional feature of fiduciary law according to Lord ChelmsfordLC, who stated about fiduciary law that “[t]he courts have always been careful notto fetter this useful jurisdiction by defining the exact limits of its exercise.” (Tate vWilliamson [1886] LR 2 Ch App, p. 61).

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to the Council. The shape of fiduciary obligations is determined by therelation between the fiduciary and those subject to its decisions. Therelationship between the Commission and the persons affected is likelyto be very different than that between the Council and these persons.This is because the Council is a representative body, in contrast to theCommission. Representative mechanisms are already aimed at makingCouncil decisions serve the people’s interest. This makes recourse tofiduciary obligations much less pressing or gives the relevant fiduciaryobligations a very different shape. Fiduciary obligations attached to theadoption of delegated and implementing acts may thus need to be adaptedto the Council in cases where the Council adopts implementing acts, ifthey are necessary at all. The reasons for this is that it is possible for thepersons subject to its decisions to be represented by the members of theCouncil. Therefore, it could be argued that Council’s decision are alreadybased on the interests of the persons subject to its powers, making theirprotection through fiduciary rules unnecessary.23

Secondly, when delegated and implementing acts are adopted by theCommission, the Commission usually does not act alone or in isolation.Instead, experts, Member State representatives and specialised agenciesall play a part in the adoption process. Consultation with Member Staterepresentatives (Comitology), experts or agencies are often part of its verymandate, besides being ubiquitous in practice. It has often been noted,that the Commission is an organisation which cannot function withoutrecourse to outside expertise and cooperation, given its relatively smallsize.24

At the same time, the Treaties allocated the competence and responsi-bility for the adoption of delegated and implementing acts solely to the

23It can be argued that fiduciary obligations can also be attached to the kind of agencythat is part of democratic representation. Cf D. Theodore Rave, ‘Politicians asFiduciaries’ (2013) 126(3) Harvard Law Review pp 671–739. However, the controland participation mechanism that are part of democratic representation would likelyplace the focus differently than in the case discussed here, because they shape theinfluence and vulernabilities involved.

24Rinus van Schendelen, Macchiavelli in Brussles: The Art of Lobbying the EU (Ams-terdam University Press 2003) p. 63, 66 et seq. For the characteristic use of expertgroups to enable the Commission to form policy proposal. Cf also Bart van Ballaert,‘The Politics behind the Consultation of Expert Groups: An Instrument to ReduceUncertainty or to Offset Salience?’ (2015) 3(1) Politics and Governance pp 139–150.

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Commission. They are formally adopted by a decision of the College ofCommissioners as the body acting for the Commission,25 and responsi-bility for them is attributed to the Commission as an institution if anact is challenged before a Court.26 And indeed, as a general rule, itwould appear onerous to require those trying to challenge an act to findout where the specific offending provision came from and which body oragency initiated its inclusion. It is important that there is clear legalresponsibility and accountability for the adoption process and content ofdelegated and implementing acts, and the Commission still appears to bebest placed to bear this responsibility. This is because the Commissionhas a unique gate-way function, where it may always choose not to adopta specific act or to change its content.

The powerful position of the Commission is strengthened by the factthat the Commission is not only the institution adopting delegated andimplementing acts but is also involved in drafting the legislative acts whichcontain the mandate for delegated or implementing acts.27 It thus hasa double responsibility: the more immediate responsibility is decidingwhich delegated and implementing acts are adopted and the more remoteresponsibility is based on its role in the legislative process.

Furthermore, the Commission is the body whose decisions are officiallycommunicated as legal acts. Whatever role other bodies and fora (such asexpert groups, committees or agencies) play in the adoption of delegatedand implementing acts, their decisions do not have direct effect on thepersons within the Member States. Instead, these bodies and other foraremain largely obscured from view. In the eyes of the persons subject

25Consolidated Version of the Treaty on the Functioning of the European Union [2010]OJ C83/47 (TFEU) art 250, and Rules of Procedure of the Commission [2000] OJL308/26 as amended by Commission Decision of 24 February 2010 amending itsRules of Procedure [2010] OJ L55/60.

26This attribution of responsibilities can be problematic, where the Commission acts onthe basis of agency recommendation and does not have the capacity to independentlyexamine the work by the agency. For a description of such agency rule-makingpowers, cf Edoardo Chiti, ‘European Agencies’ Rulemaking: Powers, Proceduresand Assessment’ (2013) 19(1) European Law Journal pp 93–110.

27See Art 297 TFEU. Parliament and the Council may not during the negotiationprocess depart too far from the proposal by the Commission without this giving theCommission a right to withdraw the proposal. See Case C-409/13 Council of theEuropean Union v European Commission (2015) electronic reports of cases: Courtreports – general (ECLI:EU:C:2015:217).

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to delegated and implementing acts, wherever the impetus for a specificregulatory regime comes from, it is the Commission which steers it andsanctions it with the status of law.

This does not mean, however, that the dependencies of the Commissiondo not affect its fiduciary obligations. While this cannot have the effectof denying the fiduciary ‘status’ of the Commission or its authoritativefunction in the eyes of the persons subject to its decisions, the (legallyrequired) involvement of different bodies will certainly shape the fiduciaryduties of the Commission. These duties are dependent on the context ofthe relation and the shape of the authority. Thus, if the Commission simplyhas the authority to check whether an agency recommendation is subjectto manifest errors and in their absence adopt these recommendations as adelegated or implementing act, its function is much less creative than whenit is charged with drafting an act. In the former case, the Commissionhas authority only to check for errors, in the latter case the Commissionhas authority to devise an act. Of course the Commission’s duties mustcorrespond to its authority – and it should also communicate the extentof its authority to the persons subject to it in order to make its role inthe relationship clear.

4.2 Who is the Commission a Fiduciary to?

I have discussed the fiduciary role of the Commission in relation to thepersons subject to its powers. Thus far this term conveyed what wasimportant, namely that in the rule-making process the rule-making powersof the Commission apply to numerable persons within the Member States.However, in order to come to a more precise understanding of fiduciaryduties, it is important to better define who these persons are.

The fiduciary perspective is built on the relationship between the per-sons subject to delegated and implementing acts and the Commission.This relationship is strongly under-conceptualised in the EU, mostly forhistorical reasons. Without wanting to delve too deep into history, itshould be mentioned that the EU was not conceived as an authority whichwould directly regulate the behaviour of persons within the Member Statesgenerally, but instead it has evolved in this way in stages and over decades.Whereas in most democratic systems it is not surprising, but insteadintuitively persuasive, that the actions of a public authority should in the

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4.2 who is the commission a fiduciary to?

end benefit the persons subject to them, this is not self-evident in the EU.

This discussion is informed by a specific vision of the EU. I considerthe EU as a polity with democratic aspirations and I further understanddemocratic aspirations to intrinsically involve a relationship with indi-vidual persons as the ultimate source of political power. It should beadded at this point for completeness’ sake, however, that scholarship andpolitical thinking on Europe are characterised by a variety of politicalvisions. Different visions will accord to different conceptualisations of‘beneficiaries’ and may lead to differing conceptualisations of the characterand accountability of EU institutions.

It is telling that it is possible to leave the ‘beneficiaries’ of Commissionaction largely unspecified and to discuss the fiduciary role of the Commis-sion with the help of a rather vague reference to its relational counterpart.This is in line with fiduciary law which more generally focuses on thefiduciary and is hardly interested in the behaviour of ‘beneficiaries’, i.e.the subjects of the fiduciary power.28

The beneficiary is nonetheless the object and the focal point of the dutyof loyalty.29 In whichever way the fiduciary has decided to take care of theinterests of the beneficiary, this decision must necessarily evolve aroundthe person and characteristics of the beneficiary.30

28Tamar Frankel, ‘Fiduciary Duties as Default Rules’ (1995) 74 Oregon Law Reviewpp 1209–1277, p. 1225. Indeed, in exceptional cases, it is not even necessary for aspecific beneficiary to be determined. In the case of charitable trusts, no beneficiarycan be determined: Eleanor K. Taylor, ‘Accountability of Charitable Trusts’ (1957)18 Ohio State Law Review pp 157–280. In other cases the beneficiary cannot act,i.e. where the beneficiaries, although discernible, have no agency, such as infants ordisabled persons. Even though this raises problems of enforcement, these are notobstacles to finding obligations of the fiduciary in equity. This lack of attention tothe beneficiary in fiduciary law is all the more striking as fiduciary law focuses onthe ‘other-regardingness’ (Evan J. Criddle and Evan Fox-Decent, ‘Interest Balancingvs. Fiduciary Duty: Two Models for National Security Law’ (2012) 13(5) GermanLaw Journal pp 542–559, p. 556) or ‘altruism (Cf Deborah DeMott, ‘FiduciaryObligations under Intellectual Siege: Contemporary Challenges to the Duty to beLoyal’ (1992) 30(2) Osgoode Hall Law Journal pp 471–497, p. 477 et seq, who alsocriticises the use of the word) of fiduciaries. Even though the focus on another is afundamental normative requirement of fiduciary law, this ‘other’ remains largelyignored by the legal rules.

29ibid, p. 479.30Ethan J. Leib and David L. Ponet, ‘Fiduciary Representation and Deliberative

Engagement with Children’ (2012) 20(2) Journal of Political Philosophy pp 178–201.

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The term ‘beneficiary’ appears awkward in a public law context; thesubjects of public power are not usually concpetualised by the benefitsthey derive from it.31 However, it is also a function of public authority toprotect its subjects and serve them.32

Precisely who the subjects of a fiduciary power are and for whose benefitfiduciary powers are to be exercised is usually defined by the constitutiveacts of fiduciary relations33 or prescribed by the legal context.34 Once itis clear that it is possible in principle to ascertain who the beneficiariesare, the question of defining and delimiting the group of beneficiaries isconsequently mostly a question of interpretation.35

In the present context, I have constructed the fiduciary role of theCommission in relation to those individuals who are directly bound bythe rules the Commission adopts without being represented during theadoption process. But who are these individuals?

Many have written about the EU as a polity lacking ‘people’.36 This is

Possibly, the charitable trust can succeed without specific beneficiaries, because,as the group of beneficiaries is typically defined by their need, their interests arealso likewise clear. Or to put it differently, it is the very congruence of a person’sinterests with the purpose of a charitable trust that makes a person a beneficiary,so that a fiduciary can act in that persons relevant interest without reference to thecharacteristics of a specific person.

31But see Case C-443/14 Kreis Warendorf v Ibrahim Alo and Amira Osso v andRegion Hannover (2016) electronic reports of cases: Court reports – general(ECLI:EU:C:2016:127), in which the Court talks of ‘beneficiaries of internationalprotection’. However, in the German language version, to take one example, theCourt simply refers to ‘Personen mit Anspruch auf internationalen Schutz’, notreferring to the concept of ‘beneficiary’ (i.e. ‘Begunstigter) at all.

32Christian Tomuschat, International Law: Ensuring the Survival of Mankind on theEve of a New Century (Recueil des cours: Collected Courses of the Hague Academyof International Law, vol 281, Martinus Nijhoff 1999) p. 95, see also 161 et seq. Cfalso section 2.2.2 above.

33Such as trust instruments or partnership agreements. Where no such instrument exists,for example because a trust is imposed by the operation of law, the beneficiaries arenevertheless not usually in doubt since the imposition of the fiduciary relation bya Court takes place at the request of someone who would like to be regarded as abeneficiary.

34Such as the position of the corporation vis-a-vis its officers is largely defined bycorporate law.

35Typically evolving around issues such as who is to be considered as offspring of atestator. John Mowbray and others, Lewin on Trusts (18th edn, Sweet&Maxwell2008) p. 208.

36Christian Calliess, ‘Gemeinwohl in der Europaischen Union – Uber den Staaten- und

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famously phrased as the ‘no demos’ critique of the EU political order.37

Without wanting to take a stance in this debate or on its practical relevance,I would like to note that the way this critique understands the term ‘people’is different from how I treat it. While the ‘no demos’ debate focuses onthe existence of a coherent, somewhat organically connected community,I am inquiring into who the subject is of an exercise of authority. Thesocial or political links between the different subjects are less relevant inthis context.

The point where the ‘demos’ and the ‘beneficiaries’ overlap is the ref-erence group, the ‘real life measuring stick’ for legal decisions. Legaldecisions are legally and politically assessed against a number of values,such as democracy, social welfare, human rights and freedoms, proportion-ality or fairness. None of these values can be assessed without reference toa concrete situation and concrete people.38 For example: whose freedomis the focus when EU rules are required not to be more restrictive thannecessary?39 And referring to the obligation of loyalty: who are delegatedand implementing acts supposed to serve and protect?

While there is a constituent instrument for the fiduciary position of theCommission in the adoption of delegated and implementing acts, namely

Verfassungsverbund zum Gemeinwohlverbund’ in Winfried Brugger, Stephan Kirste,and Michael Anderheiden (eds), Gemeinwohl in Deutschland, Europa und der Welt(Nomos 2002) pp 173–214 p. 188.

37It is impossible to do justice here to the debate on EU democracy and ‘demos’.However, I should mention that the ‘no demos’ thesis reached fame through theMaastricht judgment of the German constitutional Court (Urteil des Zweiten Senatsvom 12 Oktober 1993 BVerfGE 89, 155 2 BvR 2134, 2159/92). Notable contributionsto the debate, focussing on the ‘no demos’ argument are Joseph Weiler, ‘Does EuropeNeed a Constitution? Demos, Telos and the German Maastricht Decision’ (1995)1(3) European Law Journal pp 219–258; Dieter Grimm, ‘Does Europe Need aConstitution?’ (1995) 1(3) European Law Journal pp 282–302; Michael Zurn,‘Democratic Governance Beyond the Nation State: The EU and Other InternationalInstitutions’ (2000) 6(2) European Journal of International Relations pp 183–221,and in some respects also Fritz Scharpf, Governing in Europe (Oxford UniversityPress 1999).

38Denis Galligan, Due Process and Fair Procedures: A Study of Administrative Proce-dures (Oxford University Press 1997) ch. 1-2.

39This requirement is part of the principle of proportionality. The Court reviewswhether the means employed are necessary, i.e. the least restrictive reasonablypossible. For a description of the principle of proportionality, see Tor-Inge Harbo,‘The Function of the Proportionality Principle in EU Law’ (2010) 16(2) EuropeanLaw Journal pp 158–185.

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the EU Treaties, this constituent instrument is not very clear on thequestion of whose benefit these acts are to serve. Neither Art. 290 nor Art.291 TFEU determine this question for delegated and implementing acts.The provisions of the Treaties construct delegated and implementing actsby reference to the mandate they are based on, and thus by reference to alegislative act. Consequently, they are not very helpful in determining howthe subjects or the acts are to be conceptualised. The relations mentionedby Arts. 290 and 291 are those between the Commission and Parliament,the Council and (in some way) the Member States. However, I do not takethese as the subjects of delegated and implementing acts, because theyare not the ones typically regulated through these acts. The behaviourof Parliament and the Council is not usually addressed in delegated andimplementing acts. The behaviour of Member States may be addressed,but mostly is not.40

The beneficiary of the Commission’s fiduciary position is determined bythe answer to the question of who the Commission’s tasks are supposed tobenefit? If the Commission is considered a public authority in the politicalsense, it is hard to imagine that its actions are not for the benefit of some,if not clearly definable then at least doctrinally describable, counterpart.As Somek pointed out, when elaborating on justifications of authority,there needs to be a counter-punctual conception of the subject of thatauthority.41

Even though the Treaties are not very clear on the matter, they nev-ertheless give some indication of the beneficiaries of Union action. Inaddition, the legislative instruments mandating the adoption of delegatedand implementing acts provide further indication.

Which concept describes the beneficiaries of the Commission whenadopting delegating and implementing acts has consequences not onlyfor the justiciability of connected obligations of loyalty, but also for howobligations of loyalty should be operationalised.

40I will address the question of whether Member States are beneficiaries of the Com-mission when adopting delegated and implementing acts in section 4.2.3 below.

41Somek actually claims that justifications of authority require conceptions of citizenship;however given the discussion below it would be premature to decide that it is citizens(in the legal sense of the word) that are the most apt description. Alexander Somek,Individualism (Oxford University Press 2008) p. 26.

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4.2.1 Description in the Treaties

The EU Treaties, TEU, TFEU and the Charter on Fundamental Rights,are the ‘constitution’ of the European Union and define the institutionalstructure and relations of the Union. The Treaties are thus the logicalstarting point for an inquiry into the ‘beneficiaries’ of Commission decision-making.

The Treaties suggest three different conceptualisations of their beneficialsubjects. Firstly, the Treaties lay the foundation for EU citizenship,secondly, the Treaties establish the fundamental freedoms of the EU, whichalso apply to economic actors or legal persons and lastly, the Treatiesprovide that the Commission is tasked with protecting the ‘interests ofthe Union’. I will discuss all of these below.

The ‘Citizens’...

When taking into consideration the democratic principles and aspirationsof the EU, it would appear most likely that it is the citizens who ought tobenefit from the adoption of delegated and implementing acts. After all,the basic democratic tenet that government is not only by, but also forits subjects is most often understood to refer to citizens as constitutingthese subjects.

That EU citizens should be the main beneficiaries of EU legal actionmakes intuitive sense. However, the Treaty provisions are not very in-formative in this regard, as the Treaties exhibit a somewhat one-sidedunderstanding of the relation to the citizens. While they set out relativelyclearly how citizens can author legal rules, they do not clearly set out howlegal rules ought to benefit citizens. This would possibly be redundant ifall rules were determined by citizens (through their representatives), assuch procedures in effect operationalise a rule that a polity has to servethe citizens. However, since delegated and implementing acts are adoptedin a non-representative procedure, the primacy of the interests of thepersons subject to them needs to be asserted other than through popularauthorship.

Nevertheless, citizens are hardly mentioned in a beneficiary function inthe provisions on the purpose of the Union, and the substantive obliga-tions of the Union appear somewhat ‘targetless’. Thus, for example, theprovisions on free trade in goods simply forbid quantitative and qualitative

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restrictions on the import or export of goods from other Member States,42

without mentioning the end which is supposed to be achieved by thismeasure or the entity which should (normatively) be served by it. Thewording of the provisions on free trade (and likewise those for the freedomof services, capital etc.) establish unambiguously only the prohibitionon Member States without giving much of an indication of whether therights or benefits corresponding to this duty are those of the other MemberStates or individual citizens.43 This situation can be explained historically;however, it is still hard to reconcile this omission with the democraticself-identification of the EU (not least through Art. 2 TEU and Part IITFEU).

The provisions probably coming closest to establishing the citizens asthe beneficiaries of the EU are Arts. 9 and 13 TEU. Art. 9 TEU forms partof the ‘provision on democratic principles’ in the EU Treaty44, whereasArt. 13 TEU leads the provisions on the institutions.45 As these articlesare applicable to the entire range of Union actions, they clearly also applyto the adoption of delegation and implementing acts.46

Art. 9 TEU which provides for the principle of equality, also includesthe stipulation that “[the EU citizens] shall receive equal attention from[the Union’s] institutions, bodies, offices and agencies.” While it focuseson equality,47 it nevertheless expresses the expectation that the EU insti-

42Arts. 34 and 35 TFEU.43Matthias Niedobitek notes that the Treaties generally work through prescribing

objectives rather than describing the rights of beneficiaries. Matthias Niedobitek,‘Effet utile and Citizenship of the Union’ in Lubos Tichy, Michael Potacs, andTomas Dumbrovsky (eds), Effet Utile (Centrum Pravni Komparatistiky - PravinckaFakulta Univerzity Karlovy v Praze 2014) pp 55–72 56.

44Consolidated Version of the Treaty on European Union [2010] OJ C83/13 (TEU)Title II.

45Title III TEU.46For a similar argument on the applicability of the democratic mechanism of the EU

to the adoption of delegated and implementing acts (although not discussing Art. 9and 13 TEU specifically), see Joana Mendes, ‘Delegated and Implementing RuleMaking: Proceduralisation and Constitutional Design’ (2013) 19/1 European LawReview pp 22–41.

47Indeed, this is the aspect that has received most attention in literature. Cf VictorCuesta Lopez, ‘The Lisbon Treaty’s Provisions on Democratic Principles: A LegalFramework for Participatory Democracy’ (2010) 16(1) European Public Law pp 123–138, p. 131-2, Marcel Haag, ‘Artikel 9 EUV [Gleichheitsgrundsatz, Unionsbur-gerschaft]’ in Hans von der Groeben, Jurgen Schwarze, and Armin Hatje (eds),

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tutions, in the fulfilment of their obligations, will (have to) pay attentionto the citizens. In this manner, it can be considered a basis of the (serving)relationship between the EU and each of its citizens.48 Art. 9 TEU isfurthermore often discussed with reference to its position in the Treaties,i.e. as the opening provision on the provisions on democracy.49 Theseprovisions are sometimes read together as stipulating the grounding ofthe EU in their relation to the citizens as its subjects.50

Art. 13 TEU is more explicit in that it obliges the institutional frame-work to aim to serve the interests of Union citizens, together with theinterests of the Union and those of Member States.51 This provisioncould be read as binding all EU institutions, including the Commission,to the interests of all three, the Union, its Member States and its citizens.However, Art. 13 TFEU is more typically taken to be an expression ofthe ‘institutional balance’ of the EU, where the interest representation ofUnion, Member States and citizens is divided between the Commission,the Council and Parliament, respectively.52

This division of interests is hard to apply to the adoption of delegatedand implementing acts. In this context, Parliament and the Councilplay a subsidiary role to the ‘lead act’ of the Commission which draftsand adopts these rules.53 Indeed, it makes no sense to claim that in

Europaisches Unionsrecht (7th edn, Nomos 2015) vol 1 pp 159–162.48Armin von Bogdandy, ‘The European Lesson for International Democracy: the

Significance of Arts. 9-12 EU Treaty for International Organizations’ (2012) 23(2)European Journal of International Law pp 315–334, p. 322.

49Thus, for example, Haag (n 47).50von Bogdandy (n 48) p. 322, Mendes, ‘Delegated and Implementing Rule Making’

(n 46) p. 24 et seq.51In addition, the institutional framework is obliged to promote the Union’s values and

advance its objectives, and ensure consistency, effectiveness and continuity of itspolicies and actions.

52Christian Calliess, ‘Art. 13 EUV [Die Organe der Union]’ in Christian Calliess andMatthias Ruffert (eds), EUV/ AEUV Kommentar (4th edn, Verlag CH Beck 2011)pp 211–229.

53Formally, this role of Parliament and the Council is stronger for delegated than forimplementing acts, even though Parliament or the Council could also withdraw thedelegation of implementing powers in reaction to an (intended) implementing actby the Commission (cf Regulation (EU) No 182/2011 of the European Parliamentand of the Council of 16 February 2011 laying down the rules and general principlesconcerning mechanisms for control by Member States of the Commission’s exerciseof implementing powers [2011] OJ L55/13, arts 10, 11. See also section 1.2 above).

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the adoption of delegated and implementing acts, the Union interest(as assigned to the Commission) is more relevant than the interests ofcitizens or Member States. The latter’s role should be strong, especiallyin the case of implementing acts given that implementation of EU rules isnormally in the domain of Member States.54 But also citizen interests aremost concretely affected by delegated and implementing acts and thereis no convincing reason why citizen interests should be less relevant tothe adoption of delegated and implementing acts than to the adoptionof legislative acts.55 Instead, Art. 13(1) TEU should be understood asconnecting all Union acts to all of these interests. This way, the Treatiesoblige citizen interests to be served in the adoption of delegated andimplementing acts as well.

Even though these provisions fall short of declaring outright that citizeninterests are guiding for the Commission, they are a starting point forthe Commission’s obligation to serve citizen interests. In any event, theseprovisions recognise that citizens deserve protection. This recognition isamplified when taking into account well established case law which holdsthat it is indeed also the citizens and not only the Member States forwhose benefit the Treaty provisions are in place.

This interpretation is supported by case law interpreting the substantive(instead of institutional) provisions of the Treaties. The Court declaredin already in 1963 that the obligations on free trade56 in effect conferrights on individuals, as they affect not only Member States but also theircitizens.57 Since they do not formally, expressly, confer such rights onindividuals, it makes sense to claim that these rights are in fact beneficialrights, flowing from the duties incumbent on Member States. The positionthat the provisions on free trade also create rights for individuals is nowgenerally accepted.58 While the Court originally referred to ‘nationals

54Cf art 291 TFEU.55Per Art 294 TFEU, Parliament decides in the ordinary legislative procedure on

legislative acts co-equally with the Council. Per Art 10 TEU, these two institu-tions represent the citizens directly and through national democratic mechanisms,respectively.

56This was the area of EU law the case referred to. By now, the basic tenet should beapplied across the Union’s competences which have increased since 1963.

57van Gend & Loos (n 3).58Jeremy Bierbach, ‘Frontiers of Equality in the development og EU and US citizenship’

(PhD thesis, University of Amsterdam, Faculty of Law 2015) p. 244 et seq.

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of Member States’ instead of ‘citizens’, it is safe to say that, since EUcitizenship is conferred on nationals of Member States, the rule of vanGend en Loos now applies to EU citizens.

The way that the Court strengthened the legal position of individuals orcitizens is, however, somewhat convoluted. Rather than stating outrightcitizen’s beneficial interests or rights,59 the Court focusses on the effec-tiveness of provisions, but then takes the actual benefit that individualsderive from EU rules as a measure of effectiveness.60 This way, the Courtalso uses the doctrine of effet utile, in connection with the doctrine ofdirect effect, as a means to derive benefits for Union citizens.61

To date, the legal interest of citizens in the free market provisions is notexpressly reflected in the provisions of the Treaties, in contrast with manyother doctrines elaborated on by the Court.62 Even the Constitution forEurope, having set out to make a new start for the relation between theEU and its citizens did not change this situation.63

59This lack of explicit statements on the position of citizens is criticised by Andrew T.Williams, ‘Taking Values Seriously: Towards a Philosophy of EU Law’ (2009) 29(3)Oxford Journal of Legal Studies pp 549–577, p. 561, who talks about a lack ofteleological thinking (defined as a lack of a final vision of the EU) and fundamental‘values’ within the Court’s reasoning. Cf also Niedobitek (n 43).

60This can again be explained by history, namely that the ‘precedents’ only acquiredthe ‘constitutional’ meaning they have today after the fact. Cf Antonin Cohen andAntoine Vauchez, ‘The Social Construction of Law: The European Court of Justiceand Its Legal Revolution Revisited’ (2011) 7 Annual Review of Law and SocialSciences pp 417–431, p. 426 et seq.

61Such as happened when the Court accepted the direct effect of directives where theyimproved the legal situation of individuals (Case 41/74 Yvonne van Duyn v HomeOffice [1974] ECR (ECLI:EU:C:1974:133) paras 12, 13 or Case 8/81 Ursula Becker vFinanzamt Munster-Innenstadt [1982] ECR 00053 (ECLI:EU:C:1982:7) paras 17 etseq. or introduced the possibility of state liability for harm done by a state infringingUnion law (Joined Cases C-6/90 and C-9/90 Andrea Francovich and Danila Bonifaciand others v Italian Republic [1991] ECR I–05357 (ECLI:EU:C:1991:428) paras31 et seq.). See also Rudolf Streinz, who suspects that the doctrine of effet utileis actually meant to strengthen the position of individuals in Union law: RudolfStreinz, ‘Effet Utile and the Four Freedoms’ in Lubos Tichy, Michael Potacs, andTomas Dumbrovsky (eds), Effet Utile (Centrum Pravni Komparatistiky - PravinckaFakulta Univerzity Karlovy v Praze 2014) pp 29–38 31. On the combination ofUnion citizenship and effet utile, see further Niedobitek (n 43) 59 et seq.

62Among them, the already mentioned duty of sincere cooperation of the EU institutions(now Art 13(2) TEU), but also rights of standing for the EU Parliament (now Art263 TFEU).

63Indeed, two of the ‘fundamental freedoms’ do not prima facie refer to persons, but

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At the same time, even though a change of Treaty language mighthave been desirable for greater clarity, it is arguably not necessary forlegal effect. The doctrine that the provisions of the Treaty are liableto create rights for individuals, even where they do not expressly statethis, is by now so deeply entrenched that it comes very close to havingobtained constitutional status. The Court has re-iterated this in a numberof important judgments in a number of areas of EU law.64

The relationship between the EU institutions and the EU citizens is alsothe focus of the Charter.65 With the Treaty of Lisbon, the Charter hasreceived the same “legal value” as the Treaties,66 making it in effect partof the constitutional law of the EU. As the Charter sets out fundamentalrights, it occupies a central place in the relation between the Union andits citizens. Thus, the second recital of the preamble of the Charter statesthat “[The Union] places the individual at the heart of its activities”.

However, most of the articles of the Charter either proclaim freedomsof individuals, implying obligations of non-interference by public authori-ties,67 or the obligation of non-interference of the EU in the relationshipbetween a Member State and a citizen.68 Most of the articles of theCharter thus concern ‘defence’ rights of citizens and do not establish apositive obligation on the EU institutions to serve or protect citizens. Thearticles coming closest to establishing such an obligation of service areArts. 1, 46 and 47 of the Charter. However, Arts. 46 and 47 Charterare restricted to consular relations and Court proceedings respectively.Neither of these contexts is relevant in the adoption of delegated andimplementing acts.

Art. 1 of the Charter provides that human dignity must be protected.This provision is relevant for the relation between the Commission and

instead to ‘goods’ and ‘capital’; even though, of course, goods can legally not be thebearers of freedoms, but these must express rights for persons.

64See, for example, Andrea Francovich and Danila Bonifaci and others v Italian Republic(n 61) para 31. or Case C-453/99 Courage Ltd v Bernard Crehan and BernardCrehan v Courage Ltd and Others [2001] ECR I–06297 (ECLI:EU:C:2001:465) para19.

65Charter of Fundamental Rights of the European Union (2010) [2010] OJ C83/389(EU Charter).

66Art 6(1) TEU.67Such as EU Charter, Arts. 6-13.68Such as EU Charter, Arts. 34-35, according to which the Union ‘respects and

recognises’ social rights which are relevant for Member State’s social policies.

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the persons subject to its decisions, as its effect is that, when adoptingdelegated and implementing acts, the Commission shall protect humandignity. It thereby adds considerations of how any given rule affects thesituation of citizens regarding the ‘technical’ decisions which form theCommission’s mandate. This should at the very least be taken to meanthat where the Union acts, it must, within its competences, protect humandignity.69

Art. 1 of the Charter thus has the effect that delegated and implement-ing acts must, as Union acts, also strive to protect human dignity. Thisobligation to protect human dignity has a certain aspirational characterand its operational consequences are unclear as long as there is no crediblethreat of cruel or degrading treatment.70 Nevertheless, this provision hasbeen argued to have effect beyond these extreme situations of vulnerabilitytowards state powers. It has been argued that any form of instrumen-talisation is a violation of the respect for human dignity. Following thisclaim, the argument has been made that the well-being or protectionof individuals must always be among the goals of a policy so as not tomake the regulated individuals a means to an end.71 As a result, wheredelegated and implementing acts regulate citizens, their interests must beof paramount importance. In this way, the protection of the interests ofcitizens is connected to the respect for and protection of their dignity.72

69In addition it can also be read to mean that, within its competences, the Unionshould strive to counteract threat to dignity by third parties. Cf Christian Calliess,‘Art. 1 GRCh [Wurde des Menschen]’ in Christian Calliess and Matthias Ruffert(eds), EUV/ AEUV Kommentar (4th edn, Verlag CH Beck 2011) pp 2767–2779 p.2768 et seq.

70The prohibition of cruel and degrading treatment is typically a concern where anindividual is placed in encompassing and direct dependence of public authorities, suchas in the case of detainees. While there might be single delegated or implementingacts that do indeed regulate relevant area of the exercise of public authority, such as,for example, the area of border control, this is certainly not what the great majorityof these acts pertains to.

71On the meaning of the protection of dignity as a prohibition to treat citizens asmeans to an end, cf Calliess, ‘Art. 1 GRCh’ (n 69) pp. 2775, 2777; Steffen Augsberg,‘GRC Artikel 1 [Wurde des Menschen]’ in Hans von der Groeben, Jurgen Schwarze,and Armin Hatje (eds), Europaisches Unionsrecht (7th edn, Nomos 2015) vol 1pp 553–556, p. 556.

72On the connection between the fiduciary perspective on public authority and humanrights more generally, see Evan J. Criddle and Evan Fox-Decent, ‘The FiduciaryConstitution of Human Rights’ (2009) 15 Legal Theory pp 301–336. On the role of

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In summary, it is thus possible to deduct the Commission’s obligationto the citizen’s interests, but it is notable how complicated and at timesawkward this endeavour is. Delegated and implementing acts appear tobe hardly recognised as exercises of authority over the citizens, but moreare likely to be seen as regulatory instruments of market integration. Eventhough they undoubtedly do have an effect on the internal market, thisdoes not diminish their effect in the (constitutional) relationship betweenthe Commission and EU citizens.

Moreover, the Treaties do not seem to include the institutions’ re-lationship to the citizens beyond representative mechanisms. In thenon-representative relationship to the Commission, it is necessary to relyon implied and logically derived reasoning. This is an unfortunate situ-ation, as democracy is expressed not only in representation, but also inthe way citizens are treated and how their interests are incorporated innon-representative rule-making, such as the adoption of delegated andimplementing acts.

...and Legal Persons...

While citizens form the political focal point of public powers, I wouldargue that in the case of delegated and implementing acts, there is anothergroup of persons who are intended to benefit from Commission rule-making.Legal persons, i.e. incorporated economic actors, should also be countedamong the persons subject to the Commission’s power in this context.This argument is based on the role that legal persons play as marketactors in the EU legal order, but also on the fact that delegated andimplementing acts are in many instances clearly aimed at legal persons astheir subjects.73

dignity specifically, see Criddle and Fox-Decent, ‘Interest Balancing vs. FiduciaryDuty: Two Models for National Security Law’ (n 28). While this latter contributionargues for dignity over interests, the difference between this argument and myargument is due to a different context and conceptualisation of ‘interest’. Theargument by Criddle and Fox-Decent is directed mainly against the idea of ‘balancing’and trade-offs, which are often connected to phrasing a value as an ‘interest’. Inmy argument, I do not seek to justify trade-offs, but instead seek to commit theCommission to the primacy of the interests of the persons subject to its power.

73For example Commission Implementing Decision (EU) 2015/2433 of 18 December 2015amending Implementing Decision 2014/709/EU as regards the animal health controlmeasures relating to African swine fever in certain Member States [2015] OJ L334/46;

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The reasoning for this is partially analogous to the argument thatcitizens are the Commission’s beneficiary. I will argue that the Treatiesset up a structure which is intended to benefit economic actors, just asnatural persons. At the same time, not all arguments in support of thebeneficiary role of citizens are available to support the same argument forlegal persons.

A popular criticism of the status of companies and other economic actorsin the EU is that EU law treats them more favourably than natural persons.Many of the practical legal rights or obligations flowing from the Europeanfreedoms appear to benefit economic operators in particular.74 The veryimportant role that companies play in the internal market could lead tosuch arguments. Thus, it can be argued that the ‘subjects’ specific to theEU, which is still predominantly concerned with economic integration,include legal persons.

However, it is part of the internal logic of European integration thatmarket liberalisation and economic integration are ultimately beneficialfor citizens.75 Citizens can thus be assumed to benefit indirectly throughprospering economic actors.

The question about the status of legal persons as legal subjects of EU lawthus does not depend on whether EU regulation intends to benefit them,but rather whether EU regulation intends to benefit them individually, oronly instrumentally in order to ultimately create benefits for EU citizens.Whether this is the case or not is a question which cannot be conclusivelyanswered here,76 and will instead only be set out briefly.

Commission Implementing Regulation (EU) 2015/1014 amending Regulation (EC)No 474/2006 establishing the Community list of air carriers which are subject to anoperating ban within the Community [2015] OJ L162/65; Commission DelegatedRegulation 2015/791 of 27 April 2015 amending Annex I to Regulation (EU) No1305/2013 of the European Parliament and of the Council on support for ruraldevelopment by the European Agricultural Fund for Rural Development [2015] OJL127/1.

74Thus, the focus on free trade and market liberalisation appears to be aimed directlyat economic operators, with citizen’s welfare an indirect benefit. This point is centralto the critique of the ‘functional’ character of the EU. Cf Marija Bartl, ‘The WayWe Do Europe: Subsidiarity and the Substantive Democratic Deficit’ (2015) 21(1)European Law Journal pp 23–43; Gareth Davies, ‘Democracy and Legitimacy in theShadow of Purposive Competence’ (2015) 21(1) European Law Journal pp 2–22.

75This is already clearly evident from the preambles to TEU and TFEU.76This question has been debated extensively (but not conclusively answered), for

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A very important argument for the inclusion of legal persons as personssubject to Commission acts alongside citizens comes from the case lawthat was initiated by van Gend en Loos.77 This case, which supports theargument that citizens are beneficiaries of Union law made above, did notin fact refer to ‘citizens’. Even though the Court refers to ‘nationals’ inthis case, a term intuitively connected to citizenship, the claimant in vanGend en Loos was a legal person rather than a natural person, and thusone which ill fits the ‘citizen’ status.78

Indeed, the beneficial rights derived from the Treaty provisions are notin all cases meant for natural persons only. Art. 54 TFEU expresslyequates the rights of natural and legal persons in the chapter on Freedomof Establishment, but also other provisions of the Treaties put naturaland legal persons on a par. An example of far-reaching equality, even inpolitical terms, is Art. 227 TFEU, which gives both natural and legalpersons a right to petition the European Parliament or Art. 15 TFEU,which gives both natural and legal persons a right to access documents.

The status of legal persons under Art. 54 TFEU might be ascribed tothe historical roots of the EU, which was founded as an organisation foreconomic integration.79 In the area of market regulation, it makes senseto conceive not only of natural persons but also of incorporated personsas actors and to make them the target of rights and obligations. However,the same explanation appears forced for Arts. 15 or 227 TFEU. The rightto petition Parliament is more of a political right which was introduced in

example, in competition law. Cf Richard Whish and David Bailey, CompetitionLaw (8th edn, Oxford University Press 2015) p. 19 et seq.

77van Gend & Loos (n 3). In reference to this case it is interesting to note that itsrelevance for citizen’s rights was a consequence not of the decision itself, but ratherof its construction after the fact. Cf Antoine Vauchez, ‘The Transnational Politicsof Judicialization: Van Gend en Loos and the Making of EU Polity’ (2010) 16(1)European Law Journal pp 1–28. Indeed, the reconstruction of law in the presentbook is possibly similar to the reconstruction which took place at that time.

78Art. 20 TFEU clearly applies the citizenship status to natural persons (which e.g.can stand in elections, as per Art 20(2)(b) TFEU), in accordance with broad legalconceptions of ‘citizenship’. Even though legal persons have (quasi) nationality,citizenship, with its political dimension, is usually a concept reserved for naturalpersons.

79While the ‘EU’ as founded in Maastricht had political aspirations, the predecessorto the EU today, the EC, (Cf Art 1 TEU) was clearly originally founded as anorganisation for economic cooperation.

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the Treaty of Maastricht, together with citizenship of the Union.80 Thus,the Treaties do treat legal persons also as political actors.

However, the analogy with citizens does have limits. Thus, provisionswhich seek to confer rights on citizens can clearly not be used to support theinclusion of legal persons with the persons whose interests the Commissionis required to protect. Legal persons do not enjoy citizenship in the EU.81

Art. 9 TEU does not apply to legal persons and neither does Art. 1 ofthe Charter. Clearly some citizenship rights, in particular the right tovote,82 are not intended to apply ‘by analogy’ also to legal persons.

Indeed, it is necessary to be careful on the question of including com-panies in the group of ‘beneficiaries’ of delegated and implemented rule-making. Not only are the Treaties ambiguous on this question, and thespecific shape of their personality does not always put them on a parwith natural persons, but also corporations are not unequivocally placedas the recipients of public authority. Instead, there are cases in whichcompanies can themselves be the ones exercising public authority.83 As aconsequence, companies can be included in the group of beneficiaries onlyin such cases where they are indeed subjects and not the ones exercisingpublic authority.

In summary, it seems warranted to extend the argument about the statusof citizens as persons subject to delegated and implementing acts; theCommission is fiduciary also in respect of legal persons. This is based onthe Court’s case law following van Gend en Loos as well as flowing logicallyfrom the obligations incumbent on Member States for the realisation ofthe internal market. Additionally, legal persons are given independent(political) status with regards their rights to access information and their

80Interestingly, the right to petition Parliament is often called a ‘citizen’s right’ evenwhere the right for legal persons to petition are acknowledged in the same breath: cf,for example, Epaminondas Marias, ‘The Right to Petition the European Parliamentafter Maastricht’ (1994) 19(2) European Law Review pp 169–183, p. 170. This is soeven on the website of Parliament; http://www.europarl.europa.eu/atyourservice/en/20150201PVL00037/Petitions (last visited 17. 02. 2016).

81EU citizens are all persons holding the nationality of a Member State (Art 20 TFEU).This nationality is a characteristic of natural persons.

82Art 20(2)(b) TFEU.83For a discussion of this line of case law of the CJEU, see Sebastien Platon, ‘The

Notion of “Public Authority” in the Recent Case Law of the European Court ofJustice and its Impact on French Administrative Law’ [2015] (1) Montesquieu LawReview pp 1–6.

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rights to petition Parliament. However, this reasoning presupposes that alegal person’s well-being is not sought only as a means towards the end ofthe citizen’s well-being.

... not the ‘Union’

Besides citizens and legal persons, the Treaties mention the ‘Union’ asan entity which is supposed to benefit from the Commission’s exerciseof its competences. It is thus necessary to inquire whether the ‘Union’should be seen as a beneficiary of Commission delegated and implementingrule-making. Art. 13 (1) TEU mentions the Union together with thecitizens and the Member States as those whose interests the institutionalframework is supposed to serve. Art. 17 TEU states that the Commission“shall promote the general interest of the Union”. This formulation appearsparticularly significant in terms of defining the object of a fiduciary relationsince it refers to the entity whose interests are the focus of the endeavoursof the Commission.

Art. 17(1) TEU, together with other articles in the same part of theTreaties,84 is often taken to refer to a certain distribution of tasks wherebythe three main institutions of Parliament, the Council and the Commissionrepresent the citizens, Member States and Union respectively,85 and inworking together hold the EU in balance.

However, this begs the question of who the Union is in this picture?What is a ‘Union interest’ as opposed to (or at least distinguishable from)that of the Union citizens and that of its Member States acting together?Who is the Union internally, in relation to its own citizens and MemberStates? These questions are aspects of rather complex issues of the legaland political development of the EU, including the question of in how farinstitutional integration has generated an entity which can be (and shouldbe) separable from its component parts. As a thorough examination ofthese questions goes beyond the scope of this work, I will only brieflytouch on this issue.

The term ‘interest’ presupposes a person (natural or legal) which iscapable of forming this interest (based on preferences, views, feelings, etc.).

84Particularly Art 13 (1) TEU on the institutional framework and Art 10 TEU onrepresentation.

85See Calliess, ‘Art. 13 EUV’ (n 52) p. 215.

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Thus, for example, the provisions of the Treaties would hardly constitute‘interests’, as ‘interest’ presupposes something more organically formedand adaptable than Treaty provisions. Even though the Commission isalso tasked with ‘applying’ the Treaties,86 this obligation does not appearto be the same as the obligation to further the interests of the Union.

While the Union is easily conceptualised as an actor (to avoid the term‘person’) able to form an opinion when seen in relation to external actors(i.e. in relation to the US or Russia, within the WTO or other internationalorganisations), this conceptualisation is hardly sustainable in relation toactors within the Union and making up the Union’s institutional structure.In effect, the ‘Union’ does not have a constitutive body, other than citizensand Member States, which would be capable of sustaining an innate Unioninterest.87

Alternatively, one might argue that the ‘Union interest’ could be thatinterest that is common to citizens and Member States, and thus possiblyexactly the interest that is expressed in legislative acts (which are adoptedby Parliament and the Council)88. However, in this case it is unclear whatthe concept of ‘Union interest’ has to add to that of citizen and MemberState interest, given that the latter would simply be an overlap of theformer.

In addition, the picture of the interwoven and counterbalancing institu-tional interests appears odd when applied to delegated and implementingacts. Even when discounting the arguments above and indeed departingfrom a ‘Union interest’ as the one guiding Commission decision-making,the placement of this interest in the overall policy-making process appearsquestionable. Thus, Parliament and the Council are attributed the mainresponsibility for legislative acts, with the important role of the Commis-sion’s initial proposal likewise commonly acknowledged. In the legislativeprocess, citizen and Member State interests are thus paramount, andUnion interest is significantly represented. It appears not plausible toargue that at the stage following on from the legislation, the implementing

86Art 17(1) TEU.87The only body which cannot be traced back to either citizens or Member States in

legal doctrine is that of the EU bureaucracy; i.e. the Commission and the Agencies.However, the proposition that the Union’s interest are those of the Commission andthe EU Agencies is a very questionable one, as it would bind the Commission onlyto its own self-interest.

88Art 294 TFEU.

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and supplementing stage, it is Union interests that are paramount.

The role of Union interest in legislative processes is much easier con-ceptualised89 than its possible role in the adoption of delegated andimplementing acts. While legislative acts are connected to delegated andimplementing act through the legislative mandate, this connection cannotserve to ‘import’ the balance of interest of the adoption of legislative actsinto the adoption of delegated and implementing acts. This is not onlydue to the significant discretion of the Commission in adopting the latter,but it is also unlikely that the decision to delegate powers under Arts.290 or 291 TFEU is made under the framework of a division of interestrepresentation. This delegation cannot plausibly be seen as a delegationto the representative of the Union interest.

In summary, the notion of ‘Union interest’ is problematic for the presentquestion of finding those whose interests are protected by delegating andimplementing acts. While the Treaties more plausibly define the Union tobe the beneficiary of Commission initiatives in the legislative process (al-though doubts remain as to the constitution of this interest), this does notappear to be a workable description of the beneficial interest in delegatedand implementing acts. While it might serve for an abstract notion ofinstitutional roles, it does not translate into a workable operationalisationof the interests the Commission should take into account when adoptingconcrete delegated and implementing acts.

4.2.2 Description in Mandating Legislation

While the Treaties are certainly the most important constituent instrumentof Commission powers, they are not the only ones. Delegated and imple-menting acts are adopted on the basis of legislative instruments. Theselegislative instruments accordingly also define the scope or ‘direction’ ofthe Commission’s authority in each specific instance of delegation.

I will argue that sometimes mandating legislation adds specific groupsof persons to the beneficiaries of the Commission – albeit only for thelimited scope of the legislation in question. In addition to this, mandating

89Indeed, Art 17(1) TEU also appears to refer to this: “The commission shall promotethe general interest of the Union and take appropriate initiatives to that end.”(my emphasis) This might be a reference to the legislative process in which theCommission has the right of initiative

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legislation can differentiate further between different groups of individuals– thereby further shaping the fiduciary duties that they are owed by theCommission.

Adding to the ‘Beneficiaries’

Legislative acts are based on provisions of the EU Treaties and have toremain within the competences ascribed to the EU. At the same time,they address concerns raised by citizens or Member States of the EU,which are connected incidentally to the competences of the EU. Boththe EU competences as well as these incidental concerns can refer topersons who are neither citizens of the EU nor legal persons within theEU. This is the case, for example, in connection with the EU competencesconcerning economic development cooperation or humanitarian aid.90 ThatEU legislation concerns (and arguably seeks to benefit to some extent)further groups of persons is also true for legislative acts like the SealsRegulation,91 which expresses the intent to take particular care of theinterests of a concerned group of indigenous persons living partly outsideEU territory, the Inuit.

This Regulation gave rise to the Inuit cases,92 in which the Inuit sought

90Part Five, Title III TFEU.91Regulation (EC) No 1007/2009 of the European Parliament and of the Council

on trade in seal products [2009] OJ L286/36, now amended by Regulation (EU)2015/1775 of the European Parliament and of the Council of 6 October 2015amending Regulation (EC) No 1007/2009 on trade in seal products and repealingCommission Regulation (EU) No 737/2010 [2015] OJ L262/1. The CommissionRegulation was replaced by Commission Implementing Regulation (EU) 2015/1850of 13 October 2015 laying down detailed rules for the implementation of Regulation(EC) No 1007/2009 of the European Parliament and of the Council on trade in sealproducts [2015] OJ L271/1.

92Starting with Order T-18/10 Inuit Tapiriit Kanatami and others v Euro-pean Parliament and Council of the European Union [2011] ECR II–05599(ECLI:EU:T:2011:419). The (legal representation of the) Inuit proved very en-gaged in that the Inuit case law now numbers 9 judgments or orders, includingall proceedings and appeals (at times challenging the Courts case-numbering sys-tem). The Curia Database of the CJEU lists the following numbers for proceedingsbetween Inuit Tapiriit Kanatami and Others and the European institutions, allregarding the same legislation: T-18/10, T-18/10 R (Interim Measures), T-18/10RII (Interim Measures), with the attached appeal C-605/10 P(R), T-18/10 REC,T-18/10 RII-INTP, C-538/11 P (as appeal against T-18/10 proper), T-526/10 andits appeal C-398/13 P.

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to address the (problematic) way in which EU institutions generally, andparticularly the Commission in its implementing act,93 had dealt withtheir interests.94

Given that these Union acts were explicitly concerned with the welfareof a specific group of persons, namely the Inuit, I argue that, for thepurpose of the legislative act, this group should also be counted amongthe beneficiaries of the delegated and implementing acts adopted underthis regime.95 This is because their interests are not only incidentallyaffected by the Union act, but instead are expressly taken as a relevantconsideration for the content of the act. As a consequence, the situationis regulated for (in this case) the Inuit, in the same way that a public

93Commission Regulation (EU) No 737/2010 laying down detailed rules for the imple-mentation of Regulation (EC) No 1007/2009 of the European Parliament and of theCouncil on trade in seal products [2010] OJ L216/1.

94The Seals Regulation prohibits the trade in seal products within the EU for all suchproducts derived from commercial hunts, because it is impossible to determinewhether the seals had been killed by humane killing methods. The Regulationcontains an exception for products resulting from seal hunt traditionally conductedby Inuit communities for subsistence (Regulation 1007/2009 (n 91) art 3(1), thisexception is also part of the relevant implementing regulation: Commission Reg-ulation 737/2010 (n 93) art 3) This way, the commercial hunt of seal by Inuitcommunities, for who the seal hunt often is of very high economic importance,and who have little alternative economic opportunities (George W. Wenzel, ‘InuitSealing and Subsistence Managing After the E.U. Sealskin Ban’ (1996) 84(3/4)Geographische Zeitschrift pp 130–142), was disadvantaged even though the Reg-ulation expressly sought to protect this vulnerable group of persons. For furtherelaboration of the Regulation, its adoption, and its effect in Inuit communities, seeNikolas Selheim, ‘The Neglected Tradition? – The Genesis of the EU Seal ProductsTrade Ban and Commercial Sealing’ (2013) 5 Yearbook of Polar Law pp 417–450;Nikolas Selheim, ‘The Goals of the EU Seal Products Trade Regulation: fromEffectiveness to Consequence’ (2015) 51(258) Polar Record pp 274–289. Canadaalso brought a case on behalf of the Inuit before the WTO panel. See for this caseand the Appeal: Panel Report (European Communities –Measures Prohibiting theImportation and Marketing of Seal Products) (25 November 2013) (WT/DSR400/Rand WT/DSR/401/R) and Appellate Body Report (European Communties –Mea-sures Prohibiting the Importation and Marketing of Seal Products) (22 May 2014)(WT/DS400/AB/R and WT/DS401/AB/R).

95As the mandating legislation was adopted before the entry into force of the Treaty ofLisbon, the subsidiary acts are not actually delegated or implementing acts, buttake the form of a ‘Commission Regulation’ as was normal under the pre-Lisbonregime. For the sake of coherence, I refer to them nevertheless as ‘delegated andimplementing acts’.

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authority is usually expected to act for the citizens. To recall, it is thevery definition of a beneficiary that the furtherance of her interests are theend of the fiduciary mandate. If there are groups of individuals besidescitizens and companies for who this is true, they should be consideredas additional beneficiaries of delegated and implementing rule-making.Similar cases involve refugees or other third country nationals, whoseinterests are protected under EU law.96

Such specifically named and protected groups should be seen as ben-eficiaries because the Union acts seeking their protection (or seeking toavert harm) treat the interests of these groups as worthy of protection.They are beneficiaries because the success or effectiveness of the delegatedand implementing act will also be assessed in terms of the extent towhich these groups were actually protected. In protecting these group’sinterest, it is apparently legitimate to disregard the interests of Unioncitizens and companies to some extent. Thus, a ban of seal productsmust allow products produced by indigenous communities, even though itis apparently in the interest of EU citizens to ban seal products. Oncerecognised, in principle this puts the interests of Inuit and of other suchgroups at the same level as the interest of Union citizens and companies,as these specific (external) interests can serve to qualify and restrict thefulfilment of the interest of citizens.

Such specifically named groups should count among the beneficiariesbecause the legislative act naming them creates normative expectationsfor them. Where general rules are a ‘promise made to all and sundry’,97

this ‘all and sundry’ is usually only citizens and companies within the EU,as those are the ‘natural’ subjects of EU rule. Where acts contain specificpromises to further groups, additional to EU citizens and companies, theseshould create similar legal obligations. This constellation highlights therole of fiduciary rules to describe relations of power and obligation in cases

96For example, the implementing and delegated acts to be adopted under Regulation(EU) No 516/2014 of the European Parliament and of the Council of 16 April 2014establishing the Asylum, Migration and Integration Fund, amending Council Decision2008/381/EC and repealing Decisions No 573/2007/EC and No 575/2007/EC of theEuropean Parliament and of the Council and Council Decision 2007/435/EC [2014]OJ L150/168. The beneficiary status of third country nationals is exemplified byrecital 9 of the preamble.

97Case 5/75 DEUKA v Einfuhr- und Vorratsstelle Getreide (ECJ, 28 May 1975) para4.

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where no representational links exist.

Recognising the beneficiary status of groups such as the Inuit underthe Seals Regulation, but also such as internally displaced persons orrefugees of wars under other legislative acts, results in the Commissionowing fiduciary duties not only to the Union citizens and possibly marketactors, but also to third country nationals. As these fiduciary duties arepractically manifest in the adoption procedures, this means that thirdcountry nationals might also have to be included in the adoption process,according to considerations of fairness in the deliberations.

Differentiation of Beneficiaries

In more specifically describing the Commission’s powers to adopt delegatedand implementing acts, legislative acts do not only add interests to beconsidered, but also have the capacity to further differentiate betweenestablished groups of beneficiaries. Thus, mandates for the adoption ofdelegated and implementing acts break up the duties to the ‘beneficiaries’into more precise duties to one group of persons or another.

An example are the EU rules on consumer protection. Consumer pro-tection legislation is unsurprisingly geared towards benefiting consumers(that is end-users of products, who are typically natural persons or smallenterprises) and thus differentiates between different groups of naturalor legal EU nationals, i.e. consumers and ‘producers’.98 The benefits ofsuch a policy are not equally distributed, but instead consumer protectionexplicitly seeks to have greater beneficial effect on the group of consumersthan on the group of producers. The mandate for the Commission pow-ers here not only allows, but even obliges, the Commission to favoursome persons over others, thus to favour one group of beneficiaries overanother.99

98The counter-party to a consumer is not necessarily actually producing the goodsfor consumption. Much of consumer protection regulates the relation betweenconsumers and retailers, cf Directive 2011/83/EU of the European Parliament andof the Council of 25 October 2011 on consumer rights, amending Council Directive93/13/EEC and Directive 1999/44/EC of the European Parliament and of theCouncil and repealing Council Directive 85/577/EEC and Directive 97/7/EC of theEuropean Parliament and of the Council [2011] OJ L304/64. However, I will stickwith the term ‘producer’ for the sake of simplicity.

99Arguably, consumer protection policy seeks to address a pre-existing imbalance inthe relation between producers and consumers, whereby the advantage to consumers

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In summary, while the function of the Commission’s powers to adopt del-egated and implementing acts is determined by the Treaties, the legislationcontaining the specific mandate to adopt a delegated or implementing actcan determine important parameters that likewise form the relationshipbetween the Commission and the persons subject to its acts. This canhappen by adding new groups of persons to the group of beneficiaries ofthe Commission’s rule making, or by introducing differentiations betweendifferent groups of persons. While both of these might change the overallcontext in which the Commission is obliged to discharge its duties ofloyalty, neither of these detracts from the duties owed to citizens (andpossible legal persons).

4.2.3 Relation to Member States

So far I have only considered individuals100 to be beneficiaries of theCommission when adopting delegated and implementing acts. This accordswith my search for a better legal description of the persons subject todelegated and implementing acts. However, a discussion of the legalsubjects of Union acts is not complete if it does not consider the positionof Member States.

Even though the Member States are often considered to be the oneslegislating in the Council or meeting in the European Council, they arealso, in a manner similar to individuals, liable to be regulated throughdelegated and implementing acts. This dual character is particularlyvisible in Art. 291 TFEU on implementing acts. As per this article,Member States are by default the authorities responsible for implementingEU law. However, in cases where ‘uniform application’ is necessary, theyare just as likely to be the addressees of Union acts regulating the way inwhich EU law needs to be implemented.101 Additionally, Member States

is justified in that it seeks to strengthen consumers so as to achieve equally strongeconomic actors. Nevertheless, in its relation to either group, the Commission istasked with giving more advantage to consumers.

100In the sense in which this term is used in EU law, i.e. referring to non-state entities.101Of course, Regulations are not formally addressed to anyone, even though they can

create obligations for Member States: Cf Commission Implementing Regulation(EU) 2015/51 of 14 January 2015 approving the active substance chromafenozide, inaccordance with Regulation (EC) No 1107/2009 of the European Parliament and ofthe Council concerning the placing of plant protection products on the market, andamending the Annex to Commission Implementing Regulation (EU) No 540/2011

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are also regularly the addressees of delegated acts.102 Thus, even thoughMember States are important actors in determining the rules, they arealso simply subjects to the rules of delegated and implementing acts.

The beneficiary role of Member States has also been argued on thebasis of the Treaties. When looking at the Treaties, the (literally) firstnotion that catches the eye in the search for the conceptualisation ofthe beneficiary is that of ‘peoples’. In the preamble and the openingparagraphs, the Treaties often employ the notion of ‘peoples’, for examplewhen stating that the contracting parties are “affirming as the essentialobjective of their efforts the constant improvements of the living andworking conditions of their peoples.”103

When making the link between these ‘peoples’ and the Member States,it has been argued that the European constituency is best conceptualisedas consisting of its Member States.104 Additionally, the Treaties already

and allowing Member States to extend provisional authorisations granted for thatactive substance [2015] OJ L9/22. More typical is the case of a decision addressedto Member States, for example Implementing Decision 2015/2433 (n 73). Giventhat Member States should ordinarily bte the authority to implement Union lawwith the Commission only tasked to create uniform conditions where necessary, it isnoticeable how rare implementing directives are. For an example, see CommissionImplementing Directive 2012/25/EU of 9 October 2012 laying down informationprocedures for the exchange, between Member States, of human organs intended fortransplantation [2012] OJ L275/27.

102Cf Commission Delegated Regulation (EU) No 205/2012 of 6 January 2012 amendingAnnex II to Regulation (EU) No 510/2011 of the European Parliament and of theCouncil with regard to the data source and the data parameters to be reported byMember States [2012] OJ L72/2; Commission Delegated Decision of 29 June 2012on investigations and fines related to the manipulation of statistics as referred to inRegulation (EU) No 1173/2011 of the European Parliament and of the Council onthe effective enforcement of budgetary surveillance in the euro area [2012] OJ L306/21. In the case of delegated directives, Member States are per default the ones forwho the Union act creates direct obligations. Examples of delegated directives are:Commission Delegated Directive (EU) 2015/863 of 31 March 2015 amending AnnexII to Directive 2011/65/EU of the European Parliament and of the Council as regardsthe list of restricted substances [2015] OJ L137/10; Commission Delegated Directive(EU) 2015/13 of 31 October 2014 amending Annex III to Directive 2014/32/EU ofthe European Parliament and of the Council, as regards the flowrate range of watermeters [2015] OJ L3/42.

103Preamble TFEU. This notion of peoples is repeated in the operative part of theTreaties when referring to its goals: “The Union’s aim is to promote peace, its valuesand the well-being of its peoples”: Art 3(1) TEU.

104Though giving a nod to peoples without member states (Kalypso Nicolaıdis, ‘We,

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prescribe obligations of loyalty of the Union towards Member States.105

It is in this capacity, as subjects of Union rules, that they have beendescribed as ‘beneficiaries’ in literature.106 And indeed, when I arguefor the beneficiary status for individuals, I do this at least in part alsoby analogy to Member States. Individuals are, just as Member States,directly affected by Union law and according to the EU Treaties citizensare, together with Member States, constituents of the Union polity.107

At the same time, the relationship between the Member States andthe Commission differs from the relationship between individuals and theCommission. Member States are more directly involved in the delegationof power that makes Commission action possible and thus also in shapingand restricting the Commission’s mandate. Member States’ representa-tives constitute a significant part of expert groups and by sending theirrepresentatives to Comitology Committees, as well as by having the pos-sibility to veto an act through the Council, they are much better ableto influence the process and content of delegated and implementing actsthan individuals are. For this reason, it does not appear warranted toapply the normative framework, which I constructed with an eye to therelationship between individual subjects of delegated and implementingacts, to the Commission as the adopting authority for the Member States.While the fiduciary framework might be also useful for that relationship,it would probably have to be significantly adapted.

the Peoples of Europe...’ (2004) 83(6) Foreign Affairs pp 97–110, p. 103), thisis what Nicolaıdes argues for. Cf also Richard Bellamy, ‘‘An Ever Closer UnionAmong the Peoples of Europe’: Republican Intergovernmentalism and DemoicraticRepresentation within the EU’ (2013) 35(5) Journal of European Integration pp 499–516.

105Cf Art 4(3) TEU.106Giandomenico Majone, ‘Two Logics of Delegation: Agency and Fiduciary Relations

in EU Governance’ (2001) 2/1 European Union Politics pp 103–122. To be precise,Majone does not use the term ‘beneficiary’, but when he maintains that they are theprincipals of the EU, where the EU is a fiduciary agent, this is the same as claimingthey are beneficiaries in my nomenclature. The idea of EU institutions as fiduciaryagents has been taken up by others: Alec Stone Sweet, ‘Constitutional Courtsand Parliamentary Democracy’ (2002) 25(1) Western European Politics pp 77–100, Mark Thatcher and Alec Stone Sweet, ‘Theory and Practice of Delegation toNon-Majoritarian Institutions’ (2002) 25/1 West European Politics pp 1–22.

107In a similar fashion, in the elaboration of loyalty, I take the existing Union dutyof loyalty as a basis, even though this duty currently only applies with regards toMember States and not to citizens or companies. Cf section 5.1.

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The recognition of a beneficiary position of individuals in the context ofthe rule-making powers of the Commission can be compared to supplyinga new element to a drawing. This element is thus far, if not entirelymissing, then at least underdeveloped; it is available only as a charcoalsketch. The most colourful and in some ways central group of the drawinghas so far been the (legal and political) position of Member States. Theposition of individuals is still weak and subject to changes as easily as itis to draw or wipe out a sketched line. To this I would like to add at leaststrong background colouring and better shaping to as to which normativeperspective the Union should use to determine the role of individuals. Ofcourse it will change the overall picture, such as adding another group andanother focus to a drawing is bound to do, and it might in this way movethe Member States away from centre stage. However, my argument onthe beneficiary position of individuals does not detract from the MemberStates’ legal rights and obligations.

In the above, I have given a more nuanced and more legally reasoneddescription of who the subjects of the Commission’s rule-making powerunder Arts. 290 and 291 TFEU are and who the beneficiaries of theCommission’s fiduciary obligations are. I have come to the conclusionthat these are the citizens, and could be companies, and that the conceptshould also include specifically named groups whose interests are soughtto be protected in the legislative mandate. I have also argued that,despite support for this in the language of the Treaties, it is not usefulto conceptualise the ‘Union’ as the beneficiary of Commission delegatedand implementing rule making and that Member States, while certainlyalso subjects to these rules, stand in a very different relationship tothe Commission, so that they should not be too quickly drawn into thefiduciary relationship between the Commission and the persons subject toits acts.

I have argued that citizens and possibly companies as natural and legal‘nationals’ of the EU, as well as, for specific purposes, specifically namedother groups, should be understood to be the beneficiaries of the Com-mission’s fiduciary position when adopting delegated and implementingacts.

A salient aspect of the argument on beneficiaries above is that thereare two kinds of beneficiaries, namely those generally thus constructed bythe Treaties and case law, and beneficiaries who get their specific status

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4.3 what is the object?

through the mandating legislation. The relationship between the generaland the specific is bound to be an area for political discussion, whichin essence provides an answer to how the difference in interest betweengenerally beneficially interested citizens and companies and specificallyprotected or regulated groups should play out.108

4.3 What is the Object?

The delimitation of the scope of the fiduciary relation is an importantaspect in determining specific fiduciary rules.109 While the fiduciary hasthe duty to act in the best interests of the beneficiary, this rule has forceonly within the scope and objective of the fiduciary relation.

The scope of the fiduciary relation is determined by the instruments orprocess initially constituting this relationship. When a fiduciary and abeneficiary are involved in a car accident, this might give rise to an actionin tort, but is generally not considered as relating to fiduciary duties inequity.110 The fiduciary relation pertains to those matters111 which arethe subject of the constitutive instrument or process and which have notbeen excluded at the outset from the relationship.112

There are a number of interrelated ways to describe the object of thefiduciary relationship between the Commission and the persons subject toits acts. According to the principle of conferral,113 the scope of the EU’spower is to be found in the Treaties. The EU has those competences whichhave been conferred by the Treaties. This implies that the absolute outerlimits of the Commission’s authority, and thus also of the legal relation,

108This was arguably the issue in the Inuit cases, cited above, note 92.109Cf Breen v Williams (1996) 186 CLR 71, cf also the influential minority opinion of

Millet J in Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41.110I owe this example to Joshua Getzler, who likes to use it in his class on Advanced

Property and Trusts at Oxford University.111‘Matter’ here is to be understood broadly as being any behaviour or consideration.112There is a debate as to how far this exception and exemption can go before fiduciary

law ceases to cover the situation. The answer according to current case law isthat there are rather wide possibilities to exempt a fiduciary from liability. SeeArmitage v Nurse [1998] Ch 241, 251-4, Citibank NA v MBIA Assurance SA [2006]EWHC 3215, commented by Alexander Trukhtanov, ‘The irreducible Core of TrustObligations’ (2007) 123 Law Quarterly Review pp 342–347.

113Art 5(1) TEU.

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are described by the outer limits of the powers conferred on the EU bythe Treaties.

Which subject-matters lie within these competences conferred is, how-ever, a question that is not easily determined because the objectivesmentioned in the Treaties are often rather broad and in effect implicatevery different parts of the legal and social order. The competence toestablish the internal market in the EU, for example, implicates not onlythe regulation of trade in goods, services, capital and non-discriminationin employment, it is also interlinked with the system of social security,114

taxation,115 education and the regulation of professional standards.116

Such problems of delimitation are a well-known problem in EU law, andthe limits of EU competences have been defined in more detail by theCourt in many areas – which also continues to adjudicate on such ‘frontierissues’.

What is specifically of interest in the fiduciary perspective is howthese competences and objectives determine the scope of the fiduciaryrelationship between the Commission and the persons subject to itsacts. Firstly, it is notable that the EU not only has competences; it hasobjectives. The EU not only has the competence to regulate trade butmore specifically is tasked with regulating trade with the objective ofachieving an integrated internal market in the EU.117 These obligationsof the EU also oblige the EU Commission.

This prescription of the aim of Commission action has consequencesfor the relationship between the Commission and the persons subject

114For an example of recent cases, see Case C-20/12 Elodie Giersch and Others v Etatdu Grand-Duche de Luxembourg (2013) electronic reports of cases: Court reports –general (ECLI:EU:C:2013:411); Case C-453/14 Vorarlberger Gebietskrankenkasseand Alfred Knauer v Landeshauptmann von Vorarlberg and Rudolf Mathis (2016)electronic reports of cases: Court reports – general (ECLI:EU:C:2016:37), for aclassic case, see Case C-158/96 Raymond Kohll v Union des caisses de maladie[1998] ECR I–1931 (ECLI:EU:C:1998:171).

115Arts 65, 110-113 TFEU.116Catherine Barnard, The Substantive Law of the EU: the four freedoms (3rd edn,

Oxford University Press 2010) p. 305 set seq.117The difference here, can be seen in the case about tobacco advertisement: trade

measure do not only have to take effect on trade, but have to move towards theaim of liberalising inter-state trade. Case C-376/98 Federal Republic of Germanyv European Parliament and Council of the European Union [2000] ECR I–08419(ECLI:EU:C:2000:544) paras 83-84.

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to delegated and implementing acts. The fiduciary obligations of theCommission prescribe loyalty, and thus the obligation to act in the (best)interests of these persons. Loyalty describes the way in which the mandatemust be fulfilled, not the mandate itself. This obliges the Commissionto act in the best interests of the persons subject to its powers when,for example, regulating trade for the integration of the internal market.Which of the possible ways to regulate trade is best suited to represent theinterests of the persons subject to Commission rule-making needs to beread in connection with the objectives set by the Treaties. The possibilitythat the very objectives of the mandate might go against the people’sinterests is not foreseen in this context.118

Delegated and implementing acts require not only that the Treatiesprovide for Union competence to act in a specific matter, but also requirea mandate in a legislative act, which spells out more specifically theobjectives of the Commission.

The content of this mandate lies in the discretion of the legislator –of Parliament and the Council – except for the limitation that it mustnot delegate to the Commission to regulate (or change) matters whichconstitute essential elements of a policy or regulatory action.119

What such essential elements are has been recently augmented by theCourt in a case on the Schengen Border Code120 and a case on the actlisting the third countries Europol is allowed to cooperate with.121 In earlier

118In the fiduciary perspective this would constitute a very serious dilemma – as itdoes indeed also in terms of the political constitution of Europe. However, seeApplication T-356/15 Austria v Commission [2015] OJ C337/14; Application T-382/15 Greenpeace Energy and Others v Commission [2015] OJ C337/22 in whichAustria, Greenpeace and others object to the Commission funding a nuclear powerplant in Britain, even though it is the objective of one of the Treaties (Euratom)to advance the civil use of nuclear power for energy production. Cf ConsolidatedVersion of the Treaty establishing the European Atomic Energy Community [2010]OJ C84/01 (Euratom Treaty) Art. 1. The Court has not yet handed down itsjudgment in these cases.

119Cf Art. 290(1) TFEU. Cf also Case C-363/14 European Parliament v Council of theEuropean Union (Europol) (2015) electronic reports of cases: Court reports – general(ECLI:EU:C:2015:579) para 46 for the applicability of this rule also to implementingacts.

120Case C-355/10 European Parliament v Council of the European Union (Schen-gen Border Code) (2012) electronic reports of cases: Court reports – general(ECLI:EU:C:2012:516).

121Europol (n 119).

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case law, it had already become clear that a delegated or implementingact would infringe this doctrine if it went against a choice made in alegislative act or if it expanded the scope and manner of applicationsignificantly.122 In the recent cases, the Court also stated that acts with acertain political salience and acts which significantly affect fundamentalindividual rights are reserved for legislation under the essential elementsdoctrine,123 although the conditions under which political salience and asignificant effect on fundamental individual rights can be expected to befound remain unclear.124

With regard to the objectives that Commission rule-making can have,the above (and thus the essential elements doctrine) can be summed upas restricting the objective of delegated and implementing acts to matterswhich do not extend significantly beyond or in any way contrary to thelegislative act from which their mandate derives, or which include such‘reserved’ matters as fundamental rights.

In the context of the fiduciary perspective, this means that in actingin the interests of the persons subject to its powers, the Commissionnevertheless cannot take on matters which depart too much from thescope or intent of the legislative mandate and cannot take on issues withtoo much political salience or too many human rights implications, even if

122For an overview over the case law on ‘essential elements’ before the entry into forceof the Lisbon Treaty, see the summary given by AG Mengozzi: Case C-355/10European Parliament v Council of the European Union (Schengen Border Code)[2012] electronic reports of cases (ECLI:EU:C:2012:207, Opinion of AG Mengozzi)paras 26 et seq.

123Cf also Maarten den Heijer and Eljalill Tauschinsky, ‘Where Human Rights MeetAdministrative Law: Essential Elements and Limits to Delegation: European Courtof Justice, Grand Chamber C-355/10: European Parliament v. Council of theEuropean Union’ (2013) 9(3) European Constitutional Law Review pp 513–533 fora comment on case Schengen Border Code (n 120). While in both this case andEuropol (n 119) the contested acts had been adopted by the Council, the way thatthe Court further develops the essential elements doctrine is clearly not restrictedto Council authorship but applies also to Commission delegated and implementingacts.

124Thus, the Court held in the Europol decision that “even if a decision [. . . ] involvescertain compromises with technical and political dimensions, such a decision cannotbe regarded as requiring political choices falling within the responsibility of the EUlegislature” (ibid para 51) and “[t]he Parliament’s argument that [the Council act]is liable to have serious consequences for the fundamental rights of citizen cannotchange that analysis” (ibid, para. 52).

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they can be reasonably construed to otherwise fall within the Commission’smandate. Thus, even if the Commission would consider the interest ofthe persons subject to its acts to require a restriction of human rights, itmight not be able to adopt an act to that effect.

From a fiduciary perspective these restrictions can be taken as evidenceof the different ways in which the interests of persons subject to EU actsenter the decision-making processes of the different EU institutions. Giventhat Parliament and the Council are the two representative institutions ofthe EU,125 they are determined by their subject’s interest in a different waythan the Commission would be in the fiduciary perspective. Through thedirect elections to the European Parliament and through the democraticmandate of a Member State’s representative in the Council,126 decision-making by Parliament and the Council is arguably more like decision-making by these subjects, than decision-making by the Commission is.

What the essential elements doctrine then amounts to is that the scopeof a policy and other politically salient decisions, including restrictions onhuman rights, must be taken by the people instead of for them. This putsa limit on the fiduciary entrustment of the Commission, which cannot bedelegated these choices and must not assume them.

The above description of the delimitation of the object matter of thefiduciary relationship between the Commission and the persons subjectto its powers also implies that there are situations involving the Com-mission and some citizens which are not likely to fall within the ambitof their fiduciary relationship. To name a few, most relationships (andcontracts) under private law (and thus much of what would be an actumiure gestionis) would unsurprisingly fall outside the scope of the fiduciaryrelationship described here. More importantly the legislative initiative ofthe Commission might also not be subject to fiduciary duties describedhere, given that in this case the Commission acts in a different role thanin the adoption of delegated and implementing acts.

125Cf Art. 10 TEU.126Even though the way this electorate mandates a Member State’s representative in

the Council can be characterised by a number of ‘links’ of representation, Art 10TEU nevertheless puts much emphasis on their democratic accountability.

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4.4 What are the Legal Consequences?

The map of the fiduciary relation between the Commission and the personssubject to its powers drawn up above misses an important element if itdoes not include a discussion of the legal consequences which can enforcethe obligations described. Private lawyers from common law countries willoften link the employment of fiduciary rules to their consequences. Indeed,some even argue that it is mainly the procedural and remedial regimeswhich set fiduciary law apart from other fields of law,127 and it is thedesirability of these regimes which have led to the relatively widespreaduse of fiduciary rules.128

Overall, the consequences of a violation of an obligation are sometimesseen as what makes rules legal and they are certainly an important partof any legal regime. It is hard to argue that some persons actually have alegal claim if there is no way to enforce this claim.129

The kinds of obligations which I have already alluded to above130

127Paul B. Miller, ‘Justifying Fiduciary Remedies’ (2013) 63(4) University of TorontoLaw Review pp 570–623.

128Cf, for example, KM v HM (1992) 3 SCR 6, in which one of the reasons to arguefor the applicability of fiduciary law was the desire to not fall under the otherwiseapplicable statute of limitations. Cf more generally Alastair Hudson, Equity andTrusts (6th edn, Routledge-Cavendish 2010) p. 620 et seq.

129The problem of ‘legality’ and certainly enforceability is one that all kinds of writers infiduciary law grapple with. Obligations of loyalty are habitually connected with, ifnot even described as, moral duties. Thus the famous wording of Meinhard v Salmon,referring to ‘the punctilio of an honour most sensitive’ that was the hallmark of afiduciary: Meinhard v Salmon et al 249 NY 458, p. 464 (1928). This moralisingtendency is acknowledged through literature and sometimes even taken to be themain way for fiduciary rules to take effect: Margaret M. Blair and Lynn A. Stout,‘Trust, Trustworthiness, and the Behavioral Foundations of Corporate Law’ (2001)149(6) University of Pennsylvania Law Review pp 1735–1810, Cf, Lynn A. Stout,‘In Praise of Procedure: an Economic and Behavioural Defense of Smith v. VanGorkom and the Business Judgement Rule’ (2002) 96(2) Northwestern UniversityLaw Review pp 675–694, but also severely criticised: J. E. Penner, ‘Is Loyaltya Virtue, and Even if it is, Does it Really Help Explain Fiduciary Liability?’ inAndrew S. Gold and Paul B. Miller (eds), Philosophical Foundations of FiduciaryLaw (Oxford University Press 2014) pp 159–175. At the same time, rules of fiduciarylaw are legal rules in that they can be relied on before a Court and a breach willlead to legal consequences.

130Cf section 3.3.2.

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4.4 what are the legal consequences?

and will describe in more detail below131 are procedural obligations andnot related to the substance of delegated and implementing acts. Byproceduralising obligations of loyalty, they are made enforceable.

However, the move towards procedures does not yet answer all thequestions which should be raised in connection to enforcement and theimposition of legal consequences. Because the fulfilment of fiduciary dutiesrelies ultimately on motives and intent, standards of review and proof areof high practical relevance for the likelihood that breaches of fiduciaryduties can be prosecuted.

Indeed, one of the most important and most notable effects of fiduciaryobligations in common law systems is their effect on rules of evidenceand burdens of proof, as well as some effects on the time available beforean action falls under the statute of limitations. All of these effects area consequence of the recognition that breaches of fiduciary obligationare rarely obvious, but that the very structure of the fiduciary relationmakes the detection of breaches of fiduciary obligation difficult. Beneficiarysubjects of fiduciaries’ decision are vulnerable to the actions of the fiduciarynot only because the fiduciary has been delegated authority to create facts,but also because the fiduciary is often able to keep the knowledge andevidence about its action and intentions from the beneficiary.132

This latter vulnerability presents a problem for ‘normal’, adversarialcourt proceedings. A normal citizen might find it difficult to get accessto the information necessary to prove the Commission’s self-interested orunfair action to a standard required by the CJEU.

An example of this is the difficulty in proving bias. If, for example,the Commission is not independent of industry interests, but insteadseeks to favour industry in its regulation, this will be hard to prove eventhough it would distract from its obligations of loyalty. Such bias wouldbe unlikely to be clearly visible in the contested act. After all, manyconsiderations besides bias or corruption might have led to a specificpolicy choice. Actions challenging such a delegated or implementing actwould be based not on the content, but on knowledge of questionable ties

131Cf sections 5.2 and 5.3.132Ex parte James [32 ER 385], (1803) 8 Vesoy Junior, 345 et seq. For a similar argument

under EU law, and the connection of the burden of proof with the duty of loyalty,cf Case C-344/01 Federal Republic of Germany v Commission of the EuropeanCommunities [2004] ECR I–02081 (ECLI:EU:C:2004:121) paras. 58 and 79-83.

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between the Commission and industry.While knowledge of such questionable ties might be gained with the

help of internal documents, which citizens can request access to,133 itis questionable whether such documents would suffice as proof for theCourt. Two grounds for invalidating EU legal acts to which an applicantcould take recourse when seeking to address bias proves this point. Thesegrounds are abuse of power and manifest error of assessment.

A charge of abuse of powers requires that an applicant proves “on thebasis of objective, relevant and consistent evidence, [that an act appears]to have been taken solely, or at the very least chiefly, for ends other thanthose for which the power in question was conferred or with the aim ofevading a procedure specifically prescribed by the FEU Treaty for dealingwith the circumstances of the case”.134 The standard of proof is that‘objective and consistent evidence’ must be attained135 with positive proofof the institution’s lack of regard for the lawful aims of its competences.136

Manifest error of assessment requires that “the evidence adduced by theapplicants must be sufficient to make the factual assessments used in thedecision implausible”.137 An applicant would thus not only have to showthat an imbalance in the assessment of facts was possible or likely but that

133Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30May 2001 regarding public access to European Parliament, Council and Commissiondocuments OJ L145/43.

134This is an established formula, recently re-iterated in Case C-146/13 Kingdom ofSpain v European Parliament and Council of the European Union (2015) electronicreports of cases: Court reports – general (ECLI:EU:C:2015:298) para. 56.

135The requirement of relevance appears to be self-evident.136Cf Case 8/55 Federation Charbonniere de Belgique v High Authority of the Euro-

pean Coal and Steel Community [1955] ECR 00291 (ECLI:EU:C:1956:11) p. 303;Case 10/55 Miranda Mirossevich v High Authority of the European Coal and SteelCommunity [1955] ECR 00365 (ECLI:EU:C:1956:14) p. 344; Case 154/78 SpAFerriera Valsabbia and others v Commission of the European Communities [1980]ECR 00907 (ECLI:EU:C:1980:81) paras 129-130. See also Agustın Garcıa Ureta,‘Misuse of Powers as a Ground for the Annulment of Community Acts: a Case LawApproach’ XIII(3-4) Rivista Italiana Di Diritto Pubblico Comunitario pp 775–809,p. 784.

137Case T-380/94 Association internationale des utilisateurs de fils de filaments ar-tificiels et synthetiques et de soie naturelle (AIUFFASS) and Apparel, Knitting& Textiles Alliance (AKT) v Commission of the European Communities [1996]ECR II–02169 (ECLI:EU:T:1996:195) para. 59. I owe the discovery of this case toAlexander Fritzsche, ‘Discretion, Scope of Judicial Review and Institutional Balancein European Law’ (2010) 47 Common Market Law Review pp 361–403.

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the outcome actually reached was implausible. Both of these standards ofproof are very high, and indeed rarely ever met by applicants.138

The burden of proof regarding the validity of public rule-making isa delicate matter, as it incorporates not only the necessity to preservethe (in this case) Commission’s capacity to act, but also the necessity tonot distort the balance of powers between the institutions (i.e. betweenthe Court and the Commission). However, judicial review of delegatedand implementing acts should not only have the aim of restricting theCommission or enabling the Court to review rule-making processes, butalso the aim of making it possible for persons to object to rules that do notpresent a proper exercise of authority over them. Here, it is important thatthe procedure before the Court does not add to these persons’ vulnerabilityin the face of the Commission’s use of power, but presents them withan effective route to legal redress. The argument can be made that thecurrent system does not fulfil this aim, making further investigation ofthe matter by the Court and the political institutions in the EU desirable.

4.5 Summary

This chapter mapped the relational context of the adoption of delegatedand implementing acts by the Commission. Mapping is a prerequisite tounderstanding the normative obligations that should shape the Commis-sion’s actions.

Constructing the Commission’s powers as fiduciary powers puts theCommission in the role of the fiduciary. Indeed, the Commission factuallyhas the power to affect the lives of numerable persons directly, and thesepersons are vulnerable to the Commission’s decision. Even though otherbodies are involved in delegated and implementing rule-making, the centralposition of the Commission makes it the most relevant focus of fiduciaryduties.

138While the sparseness of the finding of either abuse of powers or manifest error ofan EU institution is not yet proof of a problem with these standards of proof, thecombination of the high bar they present together with the fact that, in the case ofabuse of powers, to my knowledge no single applicant has succeeded in dischargingthis burden (as the rare successful pleas of abuse of powers took place before theCourt adopted this standard), makes them suspicious. While it should not beassumed that abuse of powers happens frequently, it is not plausible that it neverhappens. On the Court’s case law on abuse of powers, cf also Garcıa Ureta (n 136).

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I further indicated who the persons vulnerable to the Commission’sdecisions are more concretely. It is first and foremost EU citizens whichare the subjects of Commission rule-making, and which, by their statusas citizens, have the right to insist on the loyalty of the Commission. Inaddition, delegated and implementing acts often regulate legal persons,i.e. incorporated economic actors, which constitute to a large part theinternal market. A central role for such incorporated actors correspondsto the EU’s focus on the internal market. Lastly, some policy regimesseek to protect further groups of specifically vulnerable persons, such asindigenous minorities or refugees.

This construction of the legal relationship in which the Commission’spowers take effect is completed by an elaboration of the subject matterof the relationship and its possible legal consequences. This subjectmatter is found in the mandate, but is further restricted for exampleby the requirement not to include ‘essential elements’ in delegated orimplementing acts.

The legal consequences of fiduciary obligations are determined by therelevant enforcement procedure, specifically by how they can be proven.Here, current standards of proof would make it very hard to prove anybreaches. Instead, obligations of loyalty should be further proceduralisedso as to enable their enforcement.

The fiduciary framework focuses not exclusively on the Commission,but also ascribes a role to the persons subject to the rule-making exercise,in fiduciary terms the ‘beneficiaries’. It provides a framework for con-ceptualising legal subjects beyond citizenship. The fiduciary frameworkspecifies further that the fiduciary Commission should interact with thesebeneficiaries by pursuing the purpose of the relationship, by fulfilling itsmandate. Fiduciary obligations should be imposed on this mandate anddescribe in which way it is to be fulfilled.

The overarching fiduciary obligation of loyalty needs to be adapted tothe specific relationship at hand. In the next chapter I will argue how thisloyalty should be manifested in the context of the adoption of delegatedand implementing acts.

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5

Manifesting Loyalty

What are the conditions for justifying the Commission’s powers to adoptdelegated and implementing acts? What can an obligation of loyaltymean in the relationship between the Commission and the persons directlysubject to its rule-making?

Even though loyalty has a certain “utopian”,1 or maybe a strong as-pirational dimension, this does not mean that it is not capable of beingconferred with legal consequences. Yet, I will show in this chapter thatinstead of being prescriptive, the duty of loyalty is expressed in morereflexive, weighing and justificatory exercises. Loyalty informs the reasonfor a decision, not on the actual decision. It is this characteristic whichmakes it interesting in the context of discretion, such as that of the Com-mission adopting delegated and implementing acts. With its focus onthe needs and benefits of another, fiduciary loyalty requires reflection onmotives and interests at play, weighing the different interests and needsof the beneficiary also against practical considerations, and lastly thejustification of the course ultimately taken. The specific forms that theseexercises take are determined by the context of the fiduciary relation.

Institutional trust goes hand in hand with the imposition of obligationson the trusted which justify and maintain this trust. This idea of responsi-

1Joshua Getzler, ‘Ascribing and Limiting Fiduciary Obligations: Understanding theOperation of Consent’ in Andrew S. Gold and Paul B. Miller (eds), PhilosophicalFoundations of Fiduciary Law (Oxford University Press 2014) pp 39–62 p. 39.

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bilities and powers having to be weighed against each other, is one deeplyfamiliar to most.2 The statement that ‘from power comes responsibility’is so intuitively appropriate, that it has become commonplace.3 Similarly,the conviction that the institutions able to rule the people must in turnbe of service to, if not controlled by, these people is deeply rooted in(democratic) political philosophy.

In the fiduciary context, loyalty expresses this orientation of the fidu-ciary’s action to the needs and interests of those subject to its powers.This includes at the same time the orientation away from the (default of)self-interest. In private law, this loyalty is in many contexts implementedthrough rules such as the prohibition of fiduciaries to profit from theiroffice (except where duly authorised) or the prohibition on conflicts ofinterest for fiduciaries.4 However, judicial pronouncements on fiduciary lawoften point out that the specific rules which operationalise the fiduciaryduty of loyalty are highly context-dependent.5 The specific public lawcontext for a public understanding of loyalty thus not only is an argumentagainst trying to straightforwardly apply rules, such as the no profit rule,but even militates against a too quick transposition of rules from a specific(even if common) private fiduciary law relationship.6

As it is very difficult to practically prove a motive for an action, fiduciarylaw has developed a number of approximations, for example prohibitingprofit making as an easily determined behaviour in order to target self-serving considerations. These concern results – such as the rule againstprofit-making by fiduciaries7 – and these concern procedures – such as

2Andre Nollkaemper, ‘Power and Responsibility’ in Adriana Di Stefano (ed), ALackland Law? Territory, Effectiveness and Jurisdiction in International and EULaw (G Giappichelli Editore 2015) pp 19–44.

3The source of this statement is most commonly cited as Stan Lee and Steve Ditko,Spiderman (Amazing Fantasy, vol 15, Marvel Comics 1962), repeated in the 2002Spiderman Movie. However, see also Luke 12:48. Mr. Lamb (MP at Westminster)implied already in 1817 that the saying had evolved into a cliche. T.C. Hansard,The Parliamentary Debates from the Year 1803 to the Present Time (vol XXXVI,London, 1817) p. 1227.

4Alastair Hudson, Equity and Trusts (6th edn, Routledge-Cavendish 2010) p. 334 etseq.

5Securities and Exchange Commission v Chenery Corporation 318 US 80, 85 (1943).6Ethan J. Leib, David L. Ponet, and Michael Serota, ‘Translating Fiduciary Principles

into Public Law’ (2013) 126 Harvard law Review Forum pp 91–101.7Irit Samet, ‘Guarding the Fiduciary’s Conscience—A Justification of a Stringent

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the rule to take into account all and only relevant facts.8 Of these, theprocedural rules are more relevant in the present case and indeed alreadymore familiar to administrative lawyers. In contrast, the rules referringto the purpose for which discretion is granted are more likely to be non-transferable, since the purpose of typical (private) fiduciary relations andthe relationship at issue here are very likely to differ.9

In this chapter, I will substantiate what it would mean for the Com-mission to be a fiduciary when adopting delegated and implementing acts.I established above10 that the Commission fills the role of a fiduciaryin that it has the kind of power usually connected to the fiduciary role.This chapter is about how to fill the fiduciary role practically; how theCommission can behave in a way that is appropriate for a fiduciary. Thecentral normative requirement for a fiduciary is that of loyalty. In thischapter, I argue that loyalty in the case of the Commission appropriatelymeans disinterestedness and fairness.

The kinds of obligations which I discuss in this chapter are proceduralobligations, not referring to the substance of a delegated or implementingmandate. By proceduralising obligations of loyalty, i.e. disinterestednessand fairness, they are made enforceable.11

Thus, the CJEU, while deferring to the substantive Commission’s dis-cretion, nevertheless will review whether the Commission applied theappropriate procedures.12 This choice can be explained and justified by

Profit-stripping Rule’ (2008) 28(4) Oxford Journal of Legal Studies pp 763–781.8Re Hastings-Bass (deceased), Hastings and Others v Inland Revenue Commissioners

[1975] Ch 25, Michael J. Ashdown, ‘In Defence of the Rule in Re Hastings-Bass’(2010) 16(10) Trusts & Trustees pp 826–848.

9The rule against profit-making is evidence of this. This is one of the most relevantrules in many private fiduciary relations, but rather inappropriate in the relationshipbetween Commission and the persons subject to delegated and implementing acts.The Commission, as most public bodies, is not in the business of amassing privatewealth.

10Cf section 4.1.1.11On proceduralisation for enforceability, see Herwig Hofmann and Alexander Turk,

‘Policy Implementation’ in Herwig Hofmann and Alexander Turk (eds), EU Admin-istrative Governance (Edward Elgar 2006) pp 74–112 n. 188.

12Unfortunately, the differentiation between substance and procedure does not alwayswork out as smoothly as this statement suggests. The case law of the Court does notallow for a clear determination of which matters fall under its review of procedures,and which do not, as may indeed be caused by the general difficulty of differentiatingsubstance and procedure: “so long as we assume that the distinction between

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the desire to simultaneously respect the Commission’s discretion and toprevent inappropriate use of this discretion.13

At the same time, proceduralisation carries with it the danger of ex-cessive formalisation of Commission fiduciary duties. Procedures havethe potential to imbue discretionary decision-making with constitutionalvalues14 and to provide the fundamental justification for a regulatoryrelationship. However, this potential is only realised in as much as theunderlying values are indeed kept alive in the application and review ofprocedures.15 Where this realisation is lacking, procedures threaten to

”substance” and ”procedure” has a more or less ”real” or ”objective” existence, andis to be found at the same point for all purposes, the phenomena of judicial decisionappear hopelessly inconsistent and chaotic”: Walter Wheeler Cook, ‘“Substance”and “Procedure” in the Conflict of Laws’ (1933) 42(3) Yale Law Journal pp 333–358,p. 347 (writing about international private law). However, the principle of deferenceon substance but review of procedures still stands. For an elaboration of the Court’scase law on reviewing administrative rule-making procedures, see Kieran Bradley,‘Comitology and the Courts: Tales of the Unexpected’ in Herwig Hofmann andAlexander Turk (eds), EU Administrative Governance (Edward Elgar 2006) pp 417–447.

13For a similar argumentation regarding the business judgement rule in (fiduciary)corporate law, see Lynn A. Stout, ‘In Praise of Procedure: an Economic andBehavioural Defense of Smith v. Van Gorkom and the Business Judgement Rule’(2002) 96(2) Northwestern University Law Review pp 675–694. Procedures usuallydo not substantively limit the Commission’s discretion as they do not preclude actswith any specific content, but through specifying the action necessary to come to alegal act exert influence on how acts will interact with a social or political context.For example, through specifying consensus decision-making, only those acts will beadopted which satisfy minimum requirements of all participants. What these arediffers through time and with issue area. While this thus allows for only a rangeof possible rules to be adopted, what these rules are is not predetermined but therange of possible options for acts to be adopted becomes evident in the process. Atthe same time, such procedures (i.e. consultations) might not prohibit any specificoutcome at all, but instead make it more ‘difficult’ (i.e. involving greater politicaleffort) to adopt one option (the one which goes against important arguments raisedby consulted groups) than another (i.e. one which consulted groups can agree with).

14Deirdre Curtin, Herwig Hofmann, and Joana Mendes, ‘Constitutionalising EU Ex-ecutive Rule-Making Procedures: a Research Agenda’ (2013) 19(1) European LawJournal pp 1–21, p. 3 et seq.

15For a discovery of the procedures as embodiments of principles (phrased as ‘substance’and procedure), cf Thurman Arnold, ‘The Role of Substantive Law and Procedurein the Legal Process’ (1932) 45(4) Harvard Law Review pp 617–647. On theshortcomings of procedures in restricting discretion, see also Joana Mendes, Law,Public Interest and Interpretation: Prolegomena of a Normative Framework on

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lose the link to the constitutional values that inspired their creation andjustified them in the first place. Without the normative foundation inloyalty, obligations to account for motives and procedural transparencycould only incidentally operationalise the Commission’s fiduciary duties.For this reason, the enforcement of the procedure introduced here requiresthat they be understood not (only) as formal requirements, but thatthey be interpreted in light of their underlying rationale of strengtheningCommission disinterestedness and fairness.

The EU Treaties already provide for a duty of loyalty incumbent onthe Commission. However, the EU law duty of loyalty has so far onlybeen applied to EU institutions in situations characterised by a reciprocalneed for cooperation. In EU law, the duty of loyalty has an integrationistfunction,16 as it works as an ‘adhesive’17 between the Member States or istaken to describe the Community’s ‘gravitational’ pull.18 Loyalty in shortis describe as the force that keeps the Union together.19 Yet in the fiduciaryperspective, obligations of loyalty are not based on reciprocity, but muchmore on the impossibility of dealing at arm’s length. Whereas loyaltyis an expression of respect in EU law (thus of ‘sincerity’), in fiduciarylaw loyalty is much more focused on the protection of the beneficiary.The asymmetry in power and information makes the ascertainment andsometimes even the formation of their interests difficult for beneficiaries.Thus, fiduciary law necessarily goes further in requiring action for thebeneficiary and not only with regard for it.

It is the capacity of loyalty to navigate a close relationship, includingresulting vulnerabilities, that militates for its inclusion in the legal obliga-tions between the Commission and the persons subject to delegated andimplementing acts. The beneficiaries (citizens, companies or especially

Administrative Discretion in the EU (Research Paper 519, Yale Law School, JohnM Olin Center for Studies in Law, Economics, and Public Policy 2014) p. 9 et seq.

16Armin Hatje, Loyalitat als Rechtsprinzip in der Europaischen Union (Nomos 2001)pp. 50, 63.

17Eleanor Sharpston, ‘Preface’ in Elke Cloots, Geert De Baere, and Stefan Sottiaux(eds), Federalism in the European Union (Hart 2012) pp v–viii.

18Marcus Klamert, The Principle of Loyalty in EU Law (Oxford University Press 2014)p. 20.

19In this sense, loyalty is ’was die Union in Innersten zusammenhalt’ (paraphrasingJohann Wolfgang Goethe v., Faust, der Tragodie erster Teil (first published 1808,Cotta ) 1. Akt, 1. Aufzug).

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recognised groups) cannot retaliate against inappropriate Commissionaction and do not have many means to defend their interests. As a resultthe subjects to the rule cannot defend their interests in the rule-makingprocess leading to the adoption of delegated and implementing acts. In-stead, this process should be characterised by Commission loyalty whichserves to incorporate these interests in the rule-making process.

Admittedly the focus on vulnerability is not central to the intentions ofthe ’fathers’ of the Treaties. The European Treaties instead speak of thecommon desire for welfare, peace,20 progress and international influence.21

European integration is aimed at creating strength, not vulnerability.However, this does not mean that the result of the structure in place isnot the creation of exactly such vulnerabilities. The founding states havearguably foreseen some forms of vulnerability and for this very reasonincluded the obligation of loyalty in the Treaties.22

With its focal point lying in the needs and benefits of another, fiduciaryloyalty requires reflection on motives and interests at play, the weighingof the different interests and needs of those subject to the discretion ofthe fiduciary, and lastly the justification of the course ultimately taken.

Thus, if the Commission is owes loyalty to the persons subject to itspowers, this requires for the Commission to be guided by its subject’sinterests instead of its own, even while issuing directives with the force oflaw over these persons.

Even though it is possible to fall back on an intuitive understandingof what loyalty is, it is not as clear how to establish whether a fiduciaryhas acted loyally in a specific instance or not. Loyalty or disloyalty is notvisible in the effect of an act, the act itself and not even necessarily in thepurpose of an act. Instead, loyalty has been described as a function of themotive23 behind an act. Loyalty relates to the reason for a decision, not

20Consolidated Version of the Treaty on the Functioning of the European Union [2010]OJ C83/47 (TFEU) Preamble (2), (8).

21Consolidated Version of the Treaty on European Union [2010] OJ C83/13 (TEU)Preamble (9), (11).

22Cf the connection between the fiduciary character of the EU and loyalty (TreatyEstablishing the European Community (1992) [1992] OJ C224/6 (EC Treaty) art 10)made by Giandomenico Majone, ‘Two Logics of Delegation: Agency and FiduciaryRelations in EU Governance’ (2001) 2/1 European Union Politics pp 103–122, p.118.

23Lionel Smith, ‘The Motive not the Deed’ in Joshua Getzler (ed), Rationalizing

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on the actual decision.

Accordingly, a public duty of loyalty finds expression in more reflexive,weighing and justificatory exercises.24 Such exercises are already part of(EU) administrative procedural law. The principle of proportionality,25

the duty to give reasons26 and the various accountability mechanisms27

are a case in point here. However, the fiduciary framework and the prismof loyalty help to bring the aspects of the division of and service to thevarious interests at play in the adoption of delegated and implementingacts into sharper relief.

Accounting for motives and procedural transparency are good ways toimplement the requirements of disinterestedness and fairness necessaryfor fiduciary loyalty. Both reflection and transparency promote greaterawareness of the effects and meaning of delegated and implementing actsfor the persons subject to them. Disinterestedness and fairness takeaccount of rule-making by the Commission as authoritative action ininterrelation with those most affected by the rules set.

While the EU law rules that operationalise the duty of loyalty atthis moment do not refer to disinterestedness and fairness, they alsodo not contain any rule to discount such obligations. Moreover, giventheir focus on procedures and their connection to good faith cooperation,disinterestedness and fairness resonate well with the obligations found bythe Court.

Disinterestedness and fairness form two parts of a whole. Whereas disin-terestedness focusses on the division of interests between the Commissionand the persons subject to its powers, fairness focusses on the division ofinterests between different groups of persons. This takes account of thefact that a person’s relation to the Commission as a public authority is

Property, Equity and Trusts: Essays in Honour of Edward Burn (Butterworths2003) pp 53–80.

24This is also the way that the EU duty of loyalty works: Wolfgang Kahl, ‘Art. 4EUV (Absatz 3)’ in Christian Calliess and Matthias Ruffert (eds), EUV/ AEUVKommentar (4th edn, Verlag CH Beck 2011) pp 64–112 p. 106 et seq.

25Art. 5(1) TEU.26Art. 296 TFEU.27Carol Harlow, Accountability in the European Union (Oxford University Press 2002);

Mark Bovens, ‘Analysing and Assessing Accountability: A Conceptual Framework’(2007) 13(4) European Law Journal pp 447–468; Deirdre Curtin, Peter Mair, andYannis Papadopoulos, ‘Positioning Accountability in European Governance: AnIntroduction’ (2010) 33(5) West European Politics pp 929–945.

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not only determined by how the Commission interacts with her and hergroup, but also by how the Commission interacts with other groups andinterests.

As I have argued above,28 the Commission needs to differentiate howit takes heterogeneous interests of the persons subject to its acts intoaccount, as it still owes each beneficiary disinterested and fair treatment.Fairness particularly will need to be justified and evaluated in the contextof the aim of the mandate, but nevertheless is still relevant in relationto all kinds of beneficiaries. If anything, duties of fairness are even morerelevant, and the evaluation of fairness even more sensitive, where themandate obliges the Commission to differentiate between the differentinterests of different groups of persons. In such cases, fairness is evenless a matter of equal treatment than in other cases, and thus in need ofmore targeted and more detailed justification. For this reason, proceduraltransparency plays a particularly important role where the legislativemandate obliges the Commission to differentiate in the consideration ofthe different interests in different groups of persons.

Below I will first elaborate on the argument that the existing EUduty of loyalty, which focuses on institutions and Member States andcannot simply be extended to cover the Commission’s relationship withthe persons under its authority. I will explain the main focus of theobligations of public fiduciary loyalty, before I discuss in the followingsections of this chapter how they can be operationalised in the form of aduty to disinterestedness and a duty to fairness.

5.1 Loyalty in EU Law

5.1.1 EU Loyalty and the Fiduciary Role of theCommission

The relevance that obligations of loyalty have to fiduciary relations andthe fact that they have even been considered the decisive element for thefiduciary nature of a given relationship, put the duty of loyalty in EU lawin a new light. The question that comes into focus is whether the duty ofloyalty, which is incumbent on the Commission on the basis of Art. 4(3)

28Cf section 4.2.2.

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TEU, is capable of supporting the fiduciary status of the Commission?First I focus on whether this duty is a fiduciary duty.

The notion that the duty of loyalty is conceptually linked with a fiduciaryperspective has been mentioned before by Giandomenico Majone,29 whodraws parallels between EU law duties and ‘normal’ fiduciary duties.Majone bases this claim on his view of the EU as an agent of Member Statesjustifying the independence of the EU institutions, and the Commissionin particular, with a fiduciary framework of agency.

As described above,30 loyalty constitutes the submission of an actor’scapacity or resources to a group of persons greater or different from herself.A loyal actor incorporates the interests and needs of the targets of herloyalty into her decision-making process.

Given the way that loyalty operates, it should come as no surprisethat a ‘duty of loyalty’ or something very similar has been part of thefundamental principles of EU law since the beginning.31 Its relevancewithin relationships of ‘genuine cooperation’ has made it a foundationalprinciple of EU law and European integration.32 However, the questionis whether the EU duty of loyalty could (possibly) be a different loyaltythan fiduciary duties of loyalty?

The specific form of the duty or principle of loyalty has been determinedby the historic origins of the EU. The principle has been a part of allthe European Treaties since the Rome Treaties and survived historicdevelopment basically unchanged for a long time.33 This old duty wastrue to the intergovernmental character of the Rome Treaties in that itput the onus of the duty on Member States. The relevant articles of theTreaties34 did not refer to the institutions as bearer of such a duty, butonly referred to the Member State’s duty in their interaction with the

29Majone, ‘Two Logics’ (n 22).30Cf section 3.3.31Kahl (n 24).32Cf also Case C-101/91 Commission of the European Communities v Italian Republic

[1993] ECR I–00191 (ECLI:EU:C:1993:16) para. 23.33Kahl (n 24) p. 65.34Treaty establishing the European Economic Community (signed 25 March 1957,

entered into force 1 January 1958), art 5, later as Consolidated Version of the TreatyEstablishing the European Community (Amsterdam) (1997) [1997] OJ C340/173,art 10. As an aside, it is interesting to note that after Amsterdam article 5 containedthe principle of subsidiarity, arguably a complementing principle to Member Stateloyalty.

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institutions.

However, the Court found that the duty of loyalty was properly consid-ered to be a ‘mutual’35 or ‘reciprocal’36 duty, and thus also incumbent onthe EU institutions. Thus, with the increasing agency and widening ofthe powers of the Communities/ Union, loyalty has also been applied toCommunity/ Union institutions.37 This development in the case law ofthe CJEU, has now also found effect in the wording of the Treaty and aduty of loyalty of the institutions is now primary EU law.38

Yet, the principle/ duty as recognised by the Court is broader. Theprinciple/ duty of loyalty is sometimes described as flowing from thefactual necessities39 imposed by the shape of the European polity:40 Closecooperation within a common legal, economic and political structureis taken to be simply impossible without the reciprocal loyalty of itscomponent parts. The basis for the duty of loyalty is then only partly thearticles in the Treaties. Beyond the formal legal structure, loyalty is aresult of social dynamics and is formed by the social context it appliesto. The Court considered this duty of loyalty (of which the Treaty Articlemight then only have been an expression)41 to be broadly applicable, at

35Case 230/81 Grand Duchy of Luxembourg v European Parliament [1983] ECR 258(ECLI:EU:C:1983:32) paras 37-38.

36Joined Cases 358/85 and 51/86 French Republic v European Parliament [1988] ECR4846 (ECLI:EU:C:1988:431) para 34.

37There are a number of interesting aspects to the relevant case law. Firstly, innone of the earlier cases on the institution’s duties of sincere cooperation were thearguments of the Court based on the opinion of the Advocate General regardingthis point. These opinions did not raise the matter. Secondly, the Court likewisespent little effort in explaining the imposition of duties of sincere cooperation on theinstitutions. Instead, it simply declared that the Treaty establishing the EuropeanEconomic Community (n 34) art 5 and later the Consolidated Version of the TreatyEstablishing the European Community (Amsterdam) (1997) [1997] OJ C340/173,art 10 contain such a duty. This is surprising, given that these articles, whichcontain the same wording, refer to duties and obligations of Member States. Whilethe institution’s duty of sincere cooperation can arguably be derived from theseprovisions, their intention and the context of the relationship between the MemberStates and the institutions, the statement that they contained these duties appearsquestionable to say the least.

38Art 4(3) TEU.39In German literature this is described as ‘Sachgesetzlichkeit’.40Hatje (n 16) p. 36.41The Court found that the duty of sincere cooperation/loyalty was a rule of EU law

‘embodied in particular in’ the relevant Treaty article. Cf 230/81 Luxembourg v

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least in the relationship between the institutions and the Member States.

The EU duty of loyalty is commonly understood as a ‘federal’ loyalty.This term is not intended to refer to the final form of the EU, but ratherto the multi-level cooperation of public authorities, which together governthe same territory and persons.42 Such ‘federal’ loyalty bears a markedresemblance to fiduciary loyalty, although fiduciary loyalty is often focusedmore on inequalities and vulnerability, and federal loyalty takes the originalequality and reciprocity of the relationship as a starting point.43 However,it is important to keep in mind that fiduciary relationships can existbetween prima facie equal partners (as indeed, partners in private lawenterprises owe fiduciary duties to each other) as well as that the differentauthorities involved in a federation do not necessarily dispose of factuallyequal (normative) resources. Indeed, it appears impossible to define afeature which would create a categorical distinction between fiduciary andfederal loyalty.

Categorising EU loyalty as federal loyalty describes it as the normativeprinciple of a multi-level cooperative relationship.44 Categorising EUloyalty as fiduciary loyalty describes it as purposive and other-regarding.45

Indeed, it is evident that the duty of loyalty in EU law fits both descriptions,given that the very requirement of loyalty in cooperation refers to itsother-regarding aspects which enable integration which would otherwisebe prevented by the dilemmas of self-interested utility maximization.

However, there is an important aspect to the existing duty of loyalty inEU law which prevents its application to the Commission as a fiduciary

Parliament (n 35) para 37 and 358/85 France v EP (n 36) para 34.42For a characterisation of the EU duty of loyalty as federal, though not nationalistic,

see Kahl (n 24) p. 68-69.43Cf, developing this relation for the case of Canada, Jean-Francois Gaudreault-

DesBiens, The ethos of Canadian Aboriginal law and the potential relevance offederal loyalty in a reconfigured relationship between Aboriginal and non-Aboriginalgovernments: a thought experiment (SSRN 2012) 〈http://papers.ssrn.com/sol3/papers.cfm?abstract id=2041516〉.

44Jean-Francois Gaudreault-DesBiens, ‘Cooperative Federalism in Search of a NormativeJustification: Considering the Principle of Federal Loyalty’ (2014) 23 ConstitutionalForum pp 1–19.

45Evan Fox-Decent, ‘The Fiduciary Nature of State Legal Authority’ (2005) 31 Queen’sLaw Journal pp 259–310; Evan Fox-Decent, ‘Fiduciary Authority and the ServiceConception’ in Andrew Gold and Paul Miller (eds), Philosophical Foundations ofFiduciary Law (Oxford University Press 2014) pp 363–387.

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to the persons subject to its power when adopting delegated and imple-menting acts. This is that the duty of loyalty of the Treaty remains atthe international/ supranational level and does not permeate the ‘statebarrier’. The wording of Art. 4(3) TEU is quite clearly restricted to therelationship between the institutions and the Member States.

This restriction of the duty of loyalty fails to recognise the shape that theEU has as a polity today. In 1958, at the inception of the Communities, itwas logical to apply cooperative and integrationist duties only to MemberStates. The duty of loyalty was focused on the relationship of the MemberStates to each other, given that the institutions had yet to come intoexistence. With their increasing agency, the relationships constitutive ofthe Communities were no longer only those between the Member Statesor even the behaviour of the Member States directed at the institutions.Instead, the Community polity was likewise constituted by the behaviourof the institutions towards the Member States (and towards each other).As it became clear that lack of consideration of the institutions towardsthe Member States was just as likely to jeopardise the realisation of theCommunity goals as the reverse, the institutions were also required to actloyally.46

Yet, with the ever increasing direct relevance that EU law has forthe legal situation of individuals and as EU law now does not have thecharacter of intergovernmental law any longer, this restricted area ofoperation of the duty of loyalty appears unjustified. After all, whatevermight initially have been envisaged, Member States are currently notthe only interlocutors of the Commission in specifying and implementingUnion law, but private individuals found their place in the realisationof the European ideal at an early stage. While the shape of the duty ofloyalty can be explained historically, why would it now remain restrictedin extent to the states?

The fact that EU law is exercising authority directly on private individu-als and the democratic ambitions of the EU calls for a re-conceptualisationand re-contextualisation of the EU law duty of loyalty. This re-conceptuali-sation extends the reasons for which the duty of loyalty is deemed to benecessary in the relationship between the institutions and the MemberStates to the relationship between the Commission and the persons subjectto its rule-making.

46On the link between loyalty and consideration, cf Kahl (n 24) p. 72.

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The duty of loyalty of the EU institutions is derived from the functionof loyalty in the EU legal system, which militates for its imposition onthe EU institutions even if the duty was initially restricted to MemberStates. Reciprocal duties of loyalty were imposed because they were trueto the actual structures of power and vulnerabilities, and necessary for theeffective implementation of EU law. The development of the constitutionalstructure of the EU now is reason for extending the duties of loyalty ofthe EU institutions from being owed only to Member States to also beingowed to EU citizens.

A lack of consideration of the Commission towards the persons withinthe Member States is very likely to jeopardise the attainment of the Union’saims.47 On the one hand, these aims ultimately refer to the position ofthese persons, i.e. their democratic empowerment, their economic well-being and their protection.48 Without an attitude of consideration towardsthe persons within the Member States, without sensitivity towards theirinterests and their vulnerabilities, these goals cannot be attained.49 Onthe other hand, and in addition, it is as much individuals as the MemberStates who need to bring the Union to life by engaging in Union-wideeconomic and political activities.

So far the Court has denied the application of duties of loyalty directlyto the relationship between the Commission and individuals.50 The Courthas not accepted that the EU institutions might be under a general duty toprotect an individual’s interests, even though the mutual duties of loyaltybetween Member States and the EU institutions can have positive effectsfor individuals.51 Thus, the Court does not, for example, interpret EU law

47Cf art 2 TEU, but also the preamble to TEU and TFEU.48I have elaborated on this point in more detail in section 4.2.49This is also why, in order to effectively implement Union law, Member States have

to make good harm which has to be done to individuals (including their ownnationals) contrary to EU law. Cf Case 6/60 Jean-E Humblet v Belgian State [1960]ECR 01125 (ECLI:EU:C:1960:48) p. 569; Joined Cases C-6/90 and C-9/90 AndreaFrancovich and Danila Bonifaci and others v Italian Republic [1991] ECR I–05357(ECLI:EU:C:1991:428) para 36.

50Apparently this is also not usually attempted by Counsel. Cf Kamiel Mortelmans,‘The Principle of Loyalty to the Community (Article 5 EC) and the Obligations of theCommunity Institutions’ (1998) 5 Maastricht Journal of European and ComparativeLaw pp 67–88, p. 78 for some examples of cases in which a duty of loyalty of theinstitution towards individuals could have been claimed, but was not.

51Cf Case C-213/89 The Queen v Secretary of State for Transport, ex parte: Factortame

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so as to contain a duty incumbent on EU institutions to provide individualswith legal protection. This is most visible in the case law on the standingof individuals before the Court, in which the Court does not appear totake the interests and vulnerabilities of individuals as independent factorsinfluencing its decision.52

In summary, the EU duty of loyalty can be taken as a form of apublic – federal – fiduciary doctrine. However, on the basis of the currentTreaties and case law, this duty of loyalty cannot be applied to theadoption of delegated and implementing acts, and to the relationshipbetween the Commission and the persons subject to these acts. Instead,it remains restricted to the relationship between the Member States andthe institutions. Below, I will first explain which rules the Court hasderived from the duty of loyalty incumbent on the institutions, before Iconnect them in the next section to the requirements of disinterestednessand fairness.

5.1.2 Rules of Loyalty

For a long time, the Court was for clearly hesitant to use the term ‘loyalty’in its reasoning on Arts 5 and later 10 EC. Even where the parties to adispute refer in their submissions to a ‘duty of loyalty’ of the old Article5 EC, the Court rarely uses the term, but instead refers to the ‘dutyof sincere cooperation’.53 Notwithstanding this, academic literature has

Ltd and others [1990] ECR I–02433 (ECLI:EU:C:1990:257) para 19: “it is for thenational courts, in application of the principle of cooperation laid down in Article5 of the EEC Treaty, to ensure the legal protection which persons derive from thedirect effect of provisions of Community law” and Case C-453/00 Kuhne & Heitz NVv Produktschap voor Pluimvee en Eieren [2004] ECR I–00837 (ECLI:EU:C:2004:17)para 28: “the principle of cooperation arising from Article 10 EC imposes on anadministrative body an obligation to review a final administrative decision, where anapplication for such review is made to it, in order to take account of the interpretationof the relevant provision given in the meantime by the Court.”

52Cf Case C-263/02 Commission of the European Communities v Jego-Quere & CieSA [2004] ECR I–03425 (ECLI:EU:C:2004:210) Cf also Jurgen Schwarze, ‘The LegalProtection of the Individual against Regulations in European Union Law: Remarkson the ECJ judgment in the case UPA of 25 July 2002 in view of the EuropeanConstitutional Reform’ (2004) 10(2) European Public Law pp 285–303.

53Cf, for example, Case C-195/90 Commission of the European Communities v FederalRepublic of Germany [1990] ECR I–3175 (ECLI:EU:C:1992:219), Case C-392/02Commission of the European Communities v Kingdom of Denmark [2005] ECR I–9842

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readily embraced the notion of a ‘duty of loyalty’ of Member States andEU institutions in the EU for quite some time.54 The Court has currentlyalso adopted the term.55

The principle or duty of loyalty is based on the provisions in the Treatiescalling for ‘sincere cooperation’; Arts. 4(3) and 13(2) TEU. The use ofthe term ‘loyalty’ instead of ‘sincere cooperation’ is probably a result ofits closer proximity to the terms used in other language versions.56

The duty of loyalty is often described as having four categories: the‘normal’ vertical case of Member States owing a duty of loyalty to theUnion and its institutions, the ‘normal’ horizontal case of Member Statesowing a duty of loyalty towards each other, the newer horizontal case ofthe institutions owing loyalty amongst each other and the ‘reverse’ verticalcase of the institutions owing loyalty to the Member States. Strongest,or best defined, among these is probably the demand for loyalty of theMember States towards Union institutions. Although the reverse case hasbeen recognised by the Court and is now part of the Treaties, it is clearlytreated in literature as the exceptional rather than ‘normal’ category. Thisis probably based on the fact that case law referring to this constellationis also significantly more scarce.57

Yet, it is this ‘reverse vertical’ case of loyalty of the EU institutionsthat is the most interesting for the present inquiry which deals withduties of loyalty owed by the Commission. In case law, the ‘reverse

(ECLI:EU:C:2005:683) or Case C-518/11 UPC Nederland BV v Gemeente Hilversum(2013) electronic reports of cases: Court reports – general (ECLI:EU:C:2013:709).Before Lisbon, the Treaties used neither of these terms. Instead, the most commonreference to ‘loyalty’ in proceedings before the CJEU is in terms such as ‘loyaltyrebate’ or ‘loyalty discount’ and has nothing to do with the public law relationshipsmaintained by the EU.

54Hatje (n 16).55Case C-459/03 Commission of the European Communities v Republic of Ireland

[2006] ECR I–04635 (ECLI:EU:C:2006:345) para 169, Case C-329/11 AlexandreAchughbabian v Prefet du Val-de-Marne [2011] ECR I–12695 (ECLI:EU:C:2011:807)para 45.

56For example, the German ‘loyale Zusammenarbeit’, the Dutch ‘loyale samenwerking’,‘cooperation loyale’ in French and ‘lojalnej wspo lpracy’ in Polish all include referenceto ‘loyalty’ instead of ‘sincerity’.

57Klamert (n 18) p. 20. For this reason also Angelo Wille relies on his descriptionof the duties of the institutions on the case law on the duties of Member States.Angelo Wille, Die Pflicht der Organe der Europaischen Gemeinschaft zur loyalenZusammenarbeit mit den Mitgliedsstaaten (Nomos 2001) Part I.

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vertical’ case appears to have arisen in two different situations.58 Firstly,in determining the powers of the European Parliament or Assembly togovern its own procedures and seat, secondly in determining the implicitduties of cooperation of the institutions in cases where the application ofUnion law is subject to close cooperation of Union and national bodies.

The Court has never defined the duty of loyalty or explained its legaleffects in a comprehensive way. Nevertheless, some rules of its applicationcan be derived from case law of the Court. It is notable that these rulesare of limited guidance for the relationship between the Commission andthe persons subject to delegated and implementing acts.

The duty of loyalty entails that putting a Member State into a legallyundetermined situation is to be avoided. The Court already mentioned thiswhen writing in an obiter on the failure of the Member States to determinea seat for Parliament. The Court ruled more clearly on this (althoughstill in obiter) in a case where the Commission had failed to act on arequest for a derogation from a harmonisation measure59 submitted bySweden. This failure to act led to an unclear legal situation within Sweden,which had not transposed the harmonisation measure in expectation ofpermission for derogation, while absence of this permission meant that ithad to give effect to it nevertheless.60 The Court ruled that this failureof the Commission to respond constituted a breach of its duty of loyalty,even though the Commission was not subject to an express statutory timelimit for responding. Yet, the Commission failed to fulfil its obligationof sincere cooperation, if it did not demonstrate the necessary degree ofdiligence in dealing with such a request.61

While a duty of diligence is arguable relevant in the relationship betweenthe Commission and the persons subject to its acts, such a duty is muchmore focused on the case of individual decisions than on general rules.Indeed, for example, Art. 41 of the Charter62 is arguably an expression of

58Mortelmans (n 50).59Brought under the EC Treaty, art 95 (now Art 114 TFEU).60Case C-319/97 Criminal proceedings against Antoine Kortas [1999] ECR I–3160

(ECLI:EU:C:1999:272).61Cf ibid paras 35-36. However, since the Commission was not a party to the proceedings,

this finding a of breach of obligation remained obiter and without direct consequencesfor the case.


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such loyal diligence. However, just as the applicability of the Charter togeneral rule-making is restricted, so is a duty to diligence flowing fromloyalty of limited applicability to the Commission adopting delegated andimplementing acts.

This came to the fore in the Zwartveld case.63 In this case, a Rechter-Commissaris (a judge with investigative powers) in the Netherlands re-quested the cooperation of the Commission in the investigations intofraud by one the managers of a fish market. The Commission denied thisrequest, which extended to access to internal reports and the appearanceof Commission officials before the Rechter-Commissaris as witnesses. In a‘request for judicial cooperation’, the Rechter-Commissaris then asked theCourt to order the Commission to cooperate.64

The Court found that it had jurisdiction, because the case was essentiallyabout the institution’s fulfilment of its duty of sincere cooperation65 whichis enshrined in the Treaties. Furthermore, this duty obliged the Commis-sion to consider the request by the Rechter-Commissaris in substanceeven though no formal procedure for it had been envisaged. Additionally,the duty of loyalty obliged the Commission to cooperate where possible.

It becomes clear from this case, that the principle of loyalty does notpermit the institutions to let a legitimate request for cooperation gounanswered or to reject it for formal reasons only. Instead, the imperativeof the overall cooperative relationship is to treat requests for assistance

63Case C-2/88 Imm J J Zwartveld and Others (1) [1990] ECR I–3367(ECLI:EU:C:1990:315).

64The Rechter-Commissaris made this request in accordance with Protocol on thePrivileges and Immunities of the European Communities, annexed to the Treatyestablishing a Single Council and Single Commission of the European Communities(8 April 1965) [1965] OJ C321 E/0318 (Protocol N 36) arts 1, 12. Yet, this Protocoldoes not involve the ECJ in a mechanism for cooperation in judicial matters, itmerely makes any limitation of the privileges and immunities subject to authorisationby the European Court. The Court had to first decide on the admissibility of theprocedure. The Commission argued that the request itself was inadmissible becauseit was not envisaged by the Treaties,(J J Zwartveld and Others (1) (n 63) para 4) andthe Court invited the institutions and Member States to submit their observationsregarding whether the Court could substantively deal with a request such as thatsubmitted by the Rechter-Commissaris (ibid, para 14). Interestingly, the Courtdoes not refer to any of the observations given by the Member States regarding thisquestion. One can only speculate whether these observation were all contrary to theopinion advanced by the Court.

65ibid, paras 23-24.

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and information as prima facie valid, where EU law does not militateagainst granting them.66 It does not seem to go too far to claim thatthis means that loyalty automatically covers all forms of cooperation,regardless of their formal status and recognition, as long as they fall underthe competences conferred on the EU.67

The Court states this duty in particular with regard to the judicialauthorities of Member States,68 which are ‘responsible for ensuring thatCommunity law is applied and respected’. This particularity is unfortu-nately not further explained by the Court. It would seem evident thatlegislative and executive institutions are likewise responsible for the respectand effect of Union law. Yet, the Court apparently sees a greater case forprima facie legitimacy of a request for cooperation where this request isissued by a Court of a Member State.

This duty to aid Member States authorities is difficult to apply to therelationship between Commission and individuals, in any other than mostgeneral and vague sense. While it is a plausible claim that it is the taskof the Commission to facilitate integration among individuals in Europeand certainly also to facilitate the application of EU law, the role of thepersons subject to delegated and implementing acts here differs markedlyfrom the role of the institutions mentioned in the case law. In essence,individuals do not have the duty of fulfilling the goals of the Treaties, incontrast to the Member States and their institutions. Thus, it is unlikelythat individuals need the aid of the Commission in the fulfilment of their

66But see contrary to this point the very formalistic stance taken later in Case T-236/06Landtag Schleswig-Holstein v Commission of the European Communities [2008] ECRII–00462 (ECLI:EU:T:2008:91), including on appeal (Case C-281/08 P LandtagSchleswig-Holstein v Commission of the European Communities [2009] ECR I–00199(ECLI:EU:C:2009:728)). The Counsel for the plaintiff does not appear to haveargued that the institution’s obligations of loyalty are involved, making this of veryuncertain relevance for the Court’s loyalty jurisprudence; however, the difference inapproach is remarkable.

67Here, the difference to a purely contractual relationship can be seen. Whereas acontract would normally oblige an actor to fulfil only those duties agreed upon inthe contract, a relationship based on loyalty obliges an actor to cooperate in allmatters relevant to the relationship unless there are (persuasive) reasons to refusecooperation.

68J J Zwartveld and Others (1) (n 63) paras 18, 21. See also Case C-234/89 StergiosDelimitis v Henninger Brau AG [1991] ECR I–977 (ECLI:EU:C:1991:91) para 53and Case C-94/00 Roquette Freres SA [2002] ECR I–9011 (ECLI:EU:C:2002:603)30-32 and 93.

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duties flowing from the Treaties.

The Kortas case against Sweden discussed above69 also serves to showanother trait of the principle of loyalty, namely that, even though itis reciprocal, a breach of the principle does not act as to preclude thewrongfulness of breaches of obligation by another actor. Thus, eventhough the Commission breached its obligations of loyalty, this did notallow Sweden to likewise default on its obligation. Instead, Sweden isunder a duty to not only apply Union law, but also to remedy the unclearlegal situation, remained intact.

The application of this aspect of the duty of loyalty to the relationshipbetween the Commission and the persons within the Member States isnot straightforward: these persons are not under a duty of loyalty, andthus unable to breach it, making rules referring to reciprocity unfitting.Nevertheless, this aspect is indicative of the fundamental nature of loyaltyand its relation to trust. Trust relationships cannot be saved by main-taining minimal compliance with legal obligations, but instead rely on theparty seeking trust staying invested in the relationship even under adversecircumstances.

The Court not only had the opportunity to rule on the existence andextent of a European duty to loyalty, but also to point out its limits.In a case brought by Portugal and Spain against a Council regulationallocating fishing quotas in Greenland’s waters to the exclusion of thosetwo countries,70 the Court made the sweeping statement that the adoptionof a measure71 by the Council could not constitute a breach of the eitherthe Member State’s or the Council’s duty of loyalty.72 Instead, the Courtargued that the defence of a Member State’s interest within the Councilwas effected by other means.

This statement highlights the link between loyalty and the defence ofinterest. The Court excludes a duty of loyalty of the Council towardsMember States, because the Member States have the opportunity to defend

69Kortas (n 60).70Joined Cases C-63/90 and C-67/90 Portuguese Republic and Kingdom of Spain v

Council of the European Communities [1992] ECR I–5142 (ECLI:EU:C:1992:381).71The Court actually states that this statement applied to the adoption of a ‘legislative’

measure. However, given the context and time of judgement, it is clear that theterm ‘legislative’ here cannot have the definition it now has in EU law.

72Portuguese Republic and Kingdom of Spain v Council of the European Communities(n 70) para 53.

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their interest themselves in the negotiations in the Council. This makesthe possibility to take care of one’s own interest and being owed loyaltymutually exclusive within an institutional relation. Such an argument isbased on the understanding that the duty of loyalty is in effect a mechanismfor the encapsulation of another’s interest. Where this interest can beardirectly on the process, the encapsulation through loyalty is unnecessary.Thus, the Court understands the duty of loyalty of EU institutions is amechanism to preserve or defend (in this case) Member States’ interests.This puts it very close to the fiduciary understanding of loyalty as a deviceto create or defeat self-interested action.

This rule is relevant to the relationship between the Commission andthe persons within the Member States in as much as it adds support tothe relevance of a fiduciary approach to the situation. The adoption ofdelegated and implementing acts by the Commission is a case in whichthese persons are not able to defend their interests, given the general lackof representative mechanisms. This, as also argued above,73 makes theapplication of loyalty relevant.

In a further case regarding the seat of Parliament,74 the Court re-affirmed the ruling of the earlier case against Luxembourg, extending itin so far it stressed the relevance of the duty of loyalty for cases which arenot envisaged by the legal framework. The picture implied here is that‘normally’ the procedures in place show the institutions what is expectedof them in cooperating with Member States to bring about the goals andvalues of the Union. However, in cases where these procedures have proveninsufficient, the institutions must go back to first principles and make surethat the course of action taken is in accordance with their fundamentalduty of loyalty.

In this example, the proximity of the more concise operationalisation ofloyalty through procedures is visible. Loyalty presents the ‘spirit’ of theseprocedures, as it extends the cooperation enshrined in them to cases whichescape the cover of the formal rules. The Court clearly finds persuasiveweight in the fact that Parliament had to make the best out of a situationwhich the Treaties had never envisioned. According to the Treaties, theMember States were to set a seat for all the institutions, but failed intheir duty to do so in the case of Parliament. In this situation, the Court

73Section 3.2.74358/85 France v EP (n 36).

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uses the duty of loyalty to describe the obligations of Member Statesand institutions, evidently giving it the function of a background or fallback duty, which would not have come to the fore had the situation beenenvisaged by the Treaties.

Loyalty thus is both the reason behind procedures and the principle tofall back on, if procedures fail. This is why it can both inform the correctuse of procedures and replace them where they prove inadequate. Loyaltyarguably shares this dual nature between duty and principle with the dutyof good faith. The Court furthermore points to the substantive proximitybetween loyalty and good faith in using the wording ‘bona fide cooperation’instead of ‘sincere cooperation’.75 Indeed, the term ‘good faith’ appearsto come very close to the meaning of loyalty, in that both terms expressthe requirement of a positive attitude in a functional relation. However,it is clear that the situation in question cannot be subsumed under thetechnical meaning of the concept of good faith in contract law,76 sincethe public constitutional situation does not share the basic tenets of thecontractual relation, namely prima facie individual autonomy of actors.77

The EU duty of loyalty is often understood as stating a fundamentalprinciple, which is specified in further provisions of the Treaties and sec-ondary law. Indeed, since Art. 4(3) TEU prescribes a duty of cooperation,many of the provisions which re-affirm this duty or which put in place aspecific procedure can be understood as lex specialis to a general principleof loyalty. For Member State’s loyalty, this ranges from the duty to resolveconflicts within the framework of the EU78 to the Member State’s dutyof mutual recognition connected to the right of establishment of Art. 49TFEU79 and the duty to combat fraud where this affects the financial

75The Court makes use of the term ‘cooperation in good faith’ more often, inter-changeably with the ‘sincere cooperation’ of the Treaty. See as a recent exampleCase T-320/11 Hungary v European Commission (2012) electronic reports of cases:Court reports – general (ECLI:EU:T:2012:705).

76For a general (comparative) overview, see Reinhard Zimmermann and Simon Whit-taker, Good Faith in European Contract Law (Cambridge University Press 2000)

77But see Leo Strine and others, ‘Loyalty’s Core Demand: the Defining Role of GoodFaith in Corporation Law’ (Harvard John M Olin Discussion Paper 630, Cambridge,MA, 2009) which connects fiduciary duties of loyalty with duties of good faith.

78Cf Art. 351 TFEU, C-459/03 MOX Plant (n 55).79Case C-31/00 Conseil national de l’ordre des architectes v Nicolas Dreessen [2002]

ECR I–00663 (ECLI:EU:C:2002:35). See Klamert (n 18) ch.1 for further examples.

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interests of the Union.80

Whereas these provisions are often substantive provisions, the proceduralmechanisms for implementing loyalty appear most often to be duties toinform and consult.81

This is instructive of the duties which manifest the loyalty of theCommission towards the persons subject to its acts, as these also areprocedural duties as will be seen below. Keeping in mind the reason fortheir imposition and making loyalty as a ‘first principle’ available for legalrecourse where the procedures fail or become perverted, appears to be animportant way to ensure that disinterestedness and fairness will indeedpromote Commission trustworthiness.

5.1.3 Commission Loyalty

Loyalty is clearly an expression of the amicable attitude necessary foropen-ended and close cooperation. (Mutual) loyalty in EU public law is anexpression of (mutual) respect and dependence. It works as a backgroundduty to catch otherwise undetermined cases. For this, it needs to remainbroad and flexible. Yet despite all flexibility there are clear limits to theduty of loyalty as recognised by the Court, namely that the duty of loyaltyhas only ever been applied at the level of institutions and Member States.

The duty of loyalty is based on the need for genuine cooperation towardsa long term goal. It is thus closely interlinked with community buildingand visionary goals. This is why the duty of loyalty is often discussedin the context of integration.82 While the relevance for institutions andMember States is self-evident, it is not at all evident why the duty ofloyalty should be restricted to these entities. The historical explanation

80Case C-186/98 Criminal proceedings against Maria Amelia Nunes and Evangelina deMatos [1999] ECR I–04883 (ECLI:EU:C:1999:376).

81Case 52/84 Commission of the European Communities v Kingdom of Belgium [1986]ECR 100 (ECLI:EU:C:1986:3). This can also be seen, e.g. in the enforcement regimein competition law, in which duties of close cooperation are “part of the generalprinciple of sincere cooperation”: Case C-429/07 Inspecteur van de Belastingdienst vX BV [2009] ECR I–04833 (ECLI:EU:C:2009:359) para. 21. Cf also Klamert (n 18)p. 173 et seq. It is probably for the reason that loyalty is often operationalisedby information-giving requirements that Mortelmans connects the EU’s accessto documents regime with the possibility that loyalty could also be owed by theinstitutions to individuals. Mortelmans (n 50) p. 78.

82Cf, for example, Hatje (n 16) p. 48 et seq.

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can clarify the reasons for, yet does not suffice to justify, the currentsituation.

After all, the political aspirations of the EU do not stop at an intergov-ernmental Union. Ever further attempts of democratisation, the buildingof a European political space and the increasingly urgent European socialcommunity all are likewise instances of (the need for) genuine cooperationtowards a long term goal of actors below the state level. The EU was ex-plicitly created not only for Member State cooperation. The EU’s viabilityrelies likewise on citizens and enterprises using, shaping and enforcing EUlegal rules, the limited reach of the duty of loyalty does not make sense inlight of the very rationale used to support it at the level of institutionsand Member States.

The Union has long moved beyond the removal of trade barriers. This isso commonplace that reference to the chapter on democracy of the LisbonTreaty83 suffices as a summary of the development of law and polity whichunderpin the political, democratic (instead of economic, functional) sideof the Union. Delegated and Implementing acts are prime examples ofhow the Union effects the persons within the Member States directly, andhow implementation of Union law depends on compliance and, given thelack of enforcement capacity, cooperation not only by Member States, butalso by these persons.

As a consequence, similar reasons to those that require the Commissionto show loyalty towards Member States and their emanations also stronglysuggest the necessity of a duty of loyalty owed to the persons subject todelegated and implementing acts. The Court repeatedly recognises theimportance of mutuality for the viability of loyalty. Since the Union is builton the values of democracy,84 its viability depends on the people’s loyalty,at least in the sense that Hirschmann uses the term: as the basis for thewillingness to engage in an organisation and invest time and energy in itsprocesses as well as in its development.85 In as far as the Union ultimatelydepends on the persons subject to its rules, the Union institutions shouldrecognise the duties that exist as a corollary, at least in situations wherea more immediate influence in not envisaged. This makes Commission

83Art 9-12 TEU.84Art 9-12 TEU.85Albert O. Hirschman, Exit, Voice and Loyalty: Responses to Decline in Firms,

Organizations and States (Harvard University Press 1970).

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loyalty relevant.

The ideas of loyalty translating into a ‘duty of regard’86 or Fursorge-pflicht should not sound strange when applied to the Commission adoptingdelegated and implementing acts. It is building on the fundamental tenetthat the public authorities are in essence serving87 and have to rationalisetheir course of action in relation to this service. Transposing the abovejudgments of the Court to the case in question, loyalty would prescribe thatalso here, the Commission should be mindful of the role and function(ing)of the persons within the Member States within the democratic politythat the EU aspires to be, of their needs and the structures of society.

In its case law on loyalty, the Court lays great emphasis on the notionof ‘balance’ and reciprocation: the mutual rights and duties of institutionsand officials need to be in an appropriate relation to each other. Thisreciprocity is hard to transplant to the situation of the Commission whenadopting delegated and implementing acts, as it could run counter to thereason the Commission was described as subject to obligations of loyaltyin the first place: namely the influence of the Commission on the legalsituation of the persons subject to its acts without countering control ofother defence of interests. The relationship between the Commission andthese persons – for example citizens – is not based on mutuality. There isno duty of loyalty by EU citizens or those otherwise subject to EU law.88

Loyalty here then follows not quite the same rationale.

The reason for the Commission’s duty of loyalty cannot be that it isa necessary precursor for the ability of the persons within the MemberStates to fulfil their tasks, as was the case for the reasoning advanced bythe Court for the necessity of the duty of loyalty towards Member States.Instead it is necessary to re-conceptualise this ‘balance’.

The argument that a direct relationship between individuals and the

86Mendes, Law, Public Interest and Interpretation (n 15) p. 23 et seq.87This is sometimes described as a fundamental tenet of all administration, although

in different systems, administration will serve different masters. See Fritz MorsteinMarx, Verwaltung: eine einfuhrende Darstellung (Duncker & Humblot 1965) p. 225.Cf also, section 2.1.3 above.

88Although the Treaties do mention duties connected to citizenship (Art 20(2) TEU),it is utterly unclear, what duties these should be (See also Dimitrij Kochenov,‘EU Citizenship without Duties’ (2014) 20(4) European Law Journal pp 482–498).Duties/prohibitions otherwise based on obligations of loyalty, such as the crime oftreason, do not exist in the EU legal order.

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5.2 primacy of the ‘subject’s’ interests

administration is based on the fact that the people are subjects of theadministration’s rule-making has already been made for a long time.89 Theidea that the people ‘cooperate’ with the authorities in making up a polityis certainly not new.90 This cooperation is understood as replacing a pre-modern relationship of strict obedience, thereby replacing subordinationand domination with a more democratically appropriate role for the peoplein relation to the public authorities.91

Existing duties of loyalty appear to be duties mainly grouped aroundthe concept of cooperation and mutual self-limitation. This is loyaltybetween equals. Fiduciary duties of loyalty are essentially loyalty in theface of vulnerability and disadvantage. The normative context is not oneof reciprocity but one of subjectivation. Ever growing possibilities forinformation and participation for individuals in the EU are not able tochange this basic relation.

While Treaty and case law of the EU provide some sense of what loyaltyis to EU law, much of the more specific rules derived from the duty ofloyalty remain interstitial. Because the rules remain at the level of thesolution of individual cases, it is hardly possible to translate them to thedesired application in a slightly different situation. In this situation, Iturn again to fiduciary law for inspiration.

5.2 Primacy of the ‘Subject’s’ Interests

“The only way we can assess our own conduct is by viewingit at some level of remove, and this we do by imagining howothers view our conduct.”92

In fiduciary law, it is the reasons for which an act is undertaken that

89Lorenz Stein wrote already in 1864 that the administrative institutions were, by theirregulating activities, that part of the state with which the people had the mostconcrete relation. Lorenz Stein, Die Verwaltungslehre (Stuttgart, 1865).

90It is, for example, already relied upon by Hans Ryffel, ‘Eigenverantwortlichtkeit’in Fritz Morstein Marx (ed), Verwaltung: ein einfuhrende Darstellung (Duncker&Humblot 1965) pp 456–471 p. 469.

91About the conceptualisation of authority and the role of loyalty of the authorities to thepeople as a way of countering domination, see also Evan Fox-Decent, ‘DemocratizingCommon Law Constitutionalism’ (2010) 55 Mc Gill Law Journal pp 511–535.

92Lawrence E. Mitchell, ‘The Importance of Being Trusted’ (2001) 81 Boston UniversityLaw Review pp 591–617, p. 612.

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distinguish a loyal act from a disloyal one.93 To sum up very briefly, Iargue that the principles underlying the most common and uncontentiousrequirements of loyalty in fiduciary law (i.e. no profit, no interest anddisclosure) are that of disinterestedness/ prohibition of self-interest andfairness.

These two aspects are very close to the rules of ‘natural justice’ orprocedural fairness, which are commonly described by the maxims nemoiudex in sua causa and audi et alteram partem.94 Indeed, some might linkthe following to natural justice. Considerations of procedural fairness insuch a contexts are already more familiar in public law.95

Fiduciary law sees a human propensity to further self-interest as themain obstacle to fiduciary loyalty.96 In classic fiduciary law, self-interestis often understood as the interest in private, monetary profit. Yet, thefiduciary relation between the Commission and the persons subject to itsacts is not about prohibiting the Commission from making a profit fromits position. Indeed public bodies, as the Commission, will often stand togain nothing in pecuniary terms: a public institution does not have thepossibility of amassing private wealth.97

However, this does not mean that public organisations could not con-ceivably act in a self-interested way. Notably, while being possibly themost common, profit making is not the only way in which fiduciaries can

93Smith, ‘The Motive not the Deed’ (n 23); Stephen R. Galoob and Ethan J. Leib,‘Intentions, Compliance and Fiduciary Obligations’ (2014) 20(2) Legal Theory pp 1–27.

94R. A. Macdonald, ‘Judicial Review and Procedural Fairness in Administrative Law:I’ (1980) 25 McGill Law Journal pp 520–564.

95For a comment describing the use of the terms ‘natural justice’ or fairness and theirdifference in English administrative law, cf Paul Craig, Administrative Law (Sweet& Maxwell 1983) p. 261 et seq.

96Keech v Sandford [1726] EWHC Ch J76; Gregory S. Alexander, ‘A Cognitive Theoryof Fiduciary Relationships’ (2000) 85 Cornell Law Review pp 767–785; Larry E.Ribstein, ‘Fencing Fiduciary Duties’ (2011) 91 Boston University Law Reviewpp 899–920. But see Robert Cooter and Bradley J. Freedman, ‘The FiduciaryRelationship: Its Economic Character and Legal Consequences’ (1991) 66 New YorkUniversity Law Review pp 1045–1075 for the assertion that loyalty can be bestguaranteed by aligning the fiduciary’s self-interest with the beneficiaries’ interest.

97Tsartlip Indian Band v Canada (Minister of Indian Affairs and Northern Develop-ment) (2000) 2 FC, para 31, Lorne Sossin, ‘Public Fiduciary Obligations, PoliticalTrusts and the Equitable Duty of Reasonableness in Administrative Law’ (2003) 66Saskatchewan Law Review pp 129–182.

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serve their own interest in the exercise of fiduciary obligations. Indeed,it is a pervasive claim of social science research on administrations thatpublic and administrative bodies can well be shown to have their owninterests and to act according to them.98

Because administrations are created and maintained for a public purposethe public, mandated, interest they are to serve becomes their interest.After all, the public mandate is the organisation’s reason to exist. Yet,the fact that a public administrative organisation is likely to see a publicpurpose as its own purpose does not translate into a total congruence ofinterests. This becomes clear when considering the reverse assumption:the interests of the public body could not be per se in the public interest.

To give a general example of such self-interest, the Commission probablyhas a general interest in political influence as well as ‘autonomy’, i.e. theability to exercise its discretion without outside control.99 Additionally,

98Renate Mayntz, Soziologie der offentlichen Verwaltung (juristische Verlad CF Muller1978). The assumption that the interest and preferences of administrative organi-sations is distinguishable from mandate and context is also implicit in a numberof research agendas: It is the underlying tenet of principal-agent theory, whichis often applied to relationships between public bodies, (cf, for example, HusseinKassim and Anand Menon, ‘The Principal-Agent Approach and the Study of theEuropean Union: Promise Fulfilled?’ (2003) 10(1) Journal of European PublicPolicy pp 121–139 or Fabio Franchino, ‘The Commission’s Executive Discretion:Information and Comitology’ (2000) 12(2) Journal of Theoretical Politics pp 155–181.) as well as ‘bureaucratic politics’ (for an example, see Graham T. Allison andMorton H. Halperin, ‘Bureaucratic Politics: a paradigm and some policy implica-tions’ (1972) 24 World Politics pp 40–79). Furthermore, the assumption that therecan be something like self-interest in play lies at the heart of the balance of powermodel in a two-fold way. Firstly, the checks and balances instituted thereby serve tocheck self-interested action by any branch and to contain it. It can be described asbased on an incentive structure where it is in the interest of one branch to check theother branches: Torsten Persson, Gerard Roland, and Guido Tabellini, ‘Separationof Powers and Political Accountability’ (1997) 112(4) The Quarterly Journal ofEconomics pp 1163–1202. Certainly such a separate and distinct interest of anybranch could not be ascertained without the recognition of at least some form ofself- interest of public bodies.

99As evident in the ongoing struggles about which procedural requirements can beimposed on the Commission by Parliament and the Council regarding the adoptionof delegated acts. Cf Letter to the Council from Mr Maros Sefcovic, Vice-Presidentof the European Commission [2014] Council Document, 7792/14 and the descriptionin Paul Craig, ‘Comitology, Rulemaking and the Lisbon Settlement: Tensions andStrains’ in Carl Fedrik Bergstrom and Dominique Ritleng (eds), Rulemaking bythe European Commission: The New System for Delegation of Powers (Oxford

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one can suspect an interest in ‘freedoms’ or ‘immunities’. A case in pointis further an interest in funds and staffing, but self-interest also plays arole in more subtle dynamics, such as ‘need construction’, i.e. the wayin which the Commission has been found to generate the civil societyparticipation which it can then use to legitimate its policies.100

The fiduciary perspective here requires a clear separation of interests.It recognises the (legitimate) existence of self-interest while at the sametime giving unequivocal prevalence to the beneficiary’s interest.

Despite having given some rather negative examples just now, it needsto be pointed out that organisational self-interest is not automatically‘bad’ or illegitimate. Instead, the agency of an organisation is stronglylinked to a sense of identity; an ‘organisational self’. Given that activepublic institutions are desirable, an organisational self-interest in self-preservation, reputation, resources and other capacities for action, is onethat the structure implicitly relies on.

Loyalty is therefore not about the obliteration of all interests of thefiduciary. Indeed, an interest in fulfilling this role well would, eventhough strictly speaking possibly being self-interest, not constitute abreach of fiduciary law. Instead, fiduciary law calls for an awarenessthat any interest which focuses on the fiduciary itself should not beprioritised over or conflated with the interests of those subject to itsdecision. In providing a framework for the reception of interests, thefiduciary perspective enables further reflection and action. The fiduciaryperspective provides a normative model for the interaction of interests,including, but not limited to, a response to a conflict of interests.

5.2.1 Disinterestedness

The normative response the fiduciary perspective provides to the recogni-tion of competing interests can be found in the concept of loyalty describedabove. As explained, loyalty is essentially an expression of positive al-

University Press 2016) pp 173–204 p. 187 et seq.100Justin Greenwood, ‘Review Article: Organized Civil Society and Democratic Le-

gitimacy in the European Union’ (2007) 37 British Journal of Political Sciencespp 333–357 and William Maloney, ‘The Professionalization of Representation: Bi-asing Participation’ in Beate Kohler-Koch, Dirk De Bievre, and William Maloney(eds), Opening EU-Governance to Civil Society: Gains and Challenges (CONNEXreport No 5 2008) pp 69–86 p. 78 et seq.

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legiance. This in turn means that a loyal fiduciary is motivated by thebeneficiary’s interests and needs in her actions, rather than by her owninterests. In fiduciary law writing this is often described as ‘disinterested-ness’ and a fiduciary is obliged to fulfil the other duties resulting from therelation in a disinterested way.101

This requirement of disinterestedness presupposes some discretion onthe part of the fiduciary.102 The question of self-interested or disinterestedaction only becomes relevant if the act to be undertaken by the fiduciaryis not already determined by law. If the law is indeterminate or explicitlycalls on the fiduciary to exercise its judgement, there is a certain widthof options available to the fiduciary which are all within its mandate. Inthese cases, it falls on the fiduciary to provide the reasons for its actionsand to justify choosing one option over other options available. Theduty of loyalty specifies through the requirement of disinterestedness, thatself-interest cannot be a reason for a fiduciary’s action.103

Translated to the case of the Commission adopting delegated andimplementing acts, this means that the fiduciary Commission is notpermitted to choose for a specific act, i.e. a specific authorising regimeor a specific allowable level of pollution, because this specific act wouldaccord with its self-interest. This would be the case, for example, if theCommission chose an authorising regime for the institutional leverage

101To be complete, I should mention that some fiduciary law literature does not seedisinterestedness as a function of loyalty the way I describe it here, but puts the twoterms next to each other, sometimes expressing a preference for one or the otherterm as describing the main principle of the fiduciary duty. Cf Peter Birks, ‘TheContent of Fiduciary Obligation’ (2000) 34 Israel Law Review pp 3–38, p. 11 et seq.For support for the words I used in the texts, see Matthew Conaglen, ‘Public-PrivateIntersection: Comparing Fiduciary Conflict Doctrine and Bias’ (2008) 1 PublicLaw pp 58–83. For an explanation of the various ways in which ‘loyalty’ is used infiduciary law, see Andrew S. Gold, ‘The Loyalties of Fiduciary Law’ in Andrew S.Gold and Paul B. Miller (eds), Philosophical Foundations of Fiduciary Law (OxfordUniversity Press 2014) pp 176–194.

102Lionel Smith, ‘Fiduciary Relationships: Ensuring the Loyal Exercise of Judgementon Behalf of Another’ (2014) 130 Law Quarterly Review pp 608–634.

103If in behavioural terms this translates into discretion as the freedom to be influencedby factors other than the law and of one’s choosing (Richard Lempert, ‘Discretion ina Behavioural Perspective: the Case of a Public Housing Eviction Board’ in KeithHawkins (ed), The Uses of Discretion: Perspectives from Law and Social Sciences(Clarendon Press 1992) pp 185–230 213), then the duty of loyalty neverthelessrestricts this ‘other influence’ to exclude self-interest.

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it will result in or level of pollution allowed by the resulting work-load.Instead, the reasons for the choice should lie in the needs and interests ofthe persons subject to delegated and implementing acts, such as an interestin a functioning market and an interest in protection against pollution.Questions of self-interested action make for a standard argument in thepublic debate, where newspapers readily declare policies to lie in one orthe other public body’s or official’s interest. Here, however, I am referringto the duty to disinterestedness not as a political desideratum, but as alegal duty. Arguably, while disinterestedness is uncontentious as a value,it is not yet legally operationalised.

The term ‘disinterestedness’ expresses a fundamental social/practicalproblem of fiduciary relations: it is easy to act in one’s own interest, it issomewhat harder to act in the interest of another and it is incredibly hardto disregard one’s own interest.104 If the maxim is to act in another’sinterest, the search would be for win-win situations, whereas in the maximof disinterestedness, personal gain has no place in the considerations. Fidu-ciary loyalty thus requires not simply the consideration of the beneficiary’sinterests, but that these consideration of the beneficiary’s interests bedeterminative of the decision to be taken, disregarding the consequencesfor one’s own interests.105

104This statement cannot be left unqualified. As it stands now, it appears to giveexpression of a rather atomistic view of agents and their self-interest. Instead, theconstruction of self-interest is not a trivial matter and that there might be no total‘disentanglement’ of self-interest from group interest, see John Roberts and MeganJones, ‘Accounting for Self Interest in the Credit Crisis’ (2009) 34 Accounting,Organizations and Society pp 856–867, p. 857 et seq. In this way, self-interestcannot, and should not, be entirely disregarded.

105This statement is subject to some qualifications, as there is actually a debate betweenproponents of sole beneficiary interest and the proponents of best beneficiary interest.(For the most well-known contribution to the debate, see John H. Langbein, ‘Ques-tioning the Trust Law Duty of Loyalty: Sole Interest or Best Interest?’ (2005) 114Yale Law Journal pp 929–990) The difference plays out in cases where action whichwould be regarded as in the best beneficiary interest, as in i.e. levering most profit,simultaneously also deliver some interest to the fiduciary, and are thus solely in thebeneficiary’s interest, but also in the fiduciary’s. I would like to simply acknowledgethis debate, but maintain that for the present purpose the different between sole andbest interest is too technical to be of great interest. Instead, I would like to stressthat in both cases the beneficiary’s interest has to weigh higher than the fiduciary’s.Another argument qualifying the duty to disregard self-interest can be found in:Eileen A. Scallen, ‘Promises Broken vs Promises Betrayed: Metaphor, Analogy and

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It is noteworthy that this aspect of the duty of loyalty is usually couchedin negative rather than prescriptive terms. There is an argument that thepositive duties of acting in the interest of those subject to a fiduciary’sdiscretion will vary so greatly from case to case and over time that theycannot be defined meaningfully in an overarching way;106 were they to bedefined generally, they would be too vague as to provide real guidance.107

Negative duties of fiduciaries tend to be more concrete.108

In the case of the adoption of delegated and implementing acts, thismeans that the Commission’s prescriptive duties are specified in its man-date; the delegation under either Art. 290 TFEU or Art. 291 TFEUspecify the task of the Commission. Beyond this mandate, it is not usefulto formulate positive fiduciary duties. Instead, the proscriptive duty ofdisinterestedness (together with the duty of fairness which I will describebelow) serves to determine how the Commission should adopt delegatedand implementing acts.

the New Fiduciary Principle’ [1993] University of Illinois Law Review pp 897–980.Scallen points out that a fiduciary can be a member of the group of beneficiaries.But see the discussion of her points in Ethan J Leib, ‘Friends as Fiduciaries’ (2009)86 Washington University Law Review pp 665–732.

106Thus, even though fiduciaries will have undertaken to positively act, and are underproscriptive duties to so act, these duties, specified in their mandate/ contract willbe entirely case dependent. Additionally, the proscriptive duties of fiduciaries donot differ greatly from a contract. In consequence, even though fiduciaries will oftenbe subject to proscriptive duties connected to their function, these are not seenas fiduciary duties proper, as they do not differentiate fiduciaries from any otherperson who has taken on an obligation. Cf Hospital Products Ltd v United StatesSurgical Corp (1984) 156 CLR 41.

107Cf Breen v Williams (1996) 186 CLR 71; Matthew Conaglen, ‘The Nature andFunction of Fiduciary Loyalty’ (2005) 121 Law Quarterly Review pp 452–480, p. 477et seq; Robert Flannigan, ‘The Boundaries of Fiduciary Accountability’ [2004] NewZealand Law Review pp 215–268; Robert Flannigan, ‘The Core Nature of FiduciaryAccountability’ [2009] New Zealand Law Review pp 375–429. However, there is anongoing discussion about whether fiduciary duties are exclusively prescriptive, orinclude some proscriptive aspects. Cf, for example, Moe Litman, ‘Fiduciary Lawin the Hospital Context: The Prescriptive Duty of Protective Intervention’ (2007)15 Health Law Journal pp 295–352. Without wanting to take a side in this debate,I would state that the proscriptive duties of fiduciaries are central to the notion,while prescriptive duties are still under debate.

108The reasons for this remain speculative, and possibly lie in the interstitial and remedialcharacter of equity, or in the behavioural ‘theory’ of fiduciary law as dealing withobstacles. Sarah Worthington, Equity (2nd edn, Clarendon 2006) p. 13 et seq.

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The relation between mandate and disinterestedness is linked to therelation of disinterestedness with a more traditional but related concept ofpublic administration, namely ‘public interest’. ‘Public interest’ reasoningcan be summarised for the present purposes as stating that the admin-istrative bodies must, in the fulfilment of their duties, serve the publicinterest.109 Both, disinterestedness, and ‘public interest’ serve to stressthat a public administration must not act in a self-serving way; they sharea certain aspect of ‘selflessness’ or ‘altruism’.110 ‘Public interest’ works inthe same way as disinterestedness so as to negate the ‘private’ institutionalinterests of public bodies. Being sure of acting solely in the public interestthus includes reflection on, and negation of, any self-interest.111

Yet, ‘public interest’ is a rather contested term, with wide discrepanciesin its definition and function.112 Yet, in many of its uses the concept‘public interest’ involves connotations which are alien to ‘disinterestedness’,such as the conceptual proximity to the ‘volonte general’: A number ofcommentators maintain that, in order for it to exert guiding force, it isnecessary to be able to imagine, as a matter of doctrine, a sufficientlycomprehensive general ‘public interest’.113 This in turn presupposes the

109Dawn Oliver, ‘Psychological Constitutionalism’ (2010) 69(3) Cambridge Law Journalpp 639–675; Dawn Oliver, ‘Accountability and the Foundations of British Democ-racy—the Public Interest and Public Service Principles’ in Nicolas Bamforth andPeter Leyland (eds), Accountability in the Contemporary Constitution (OxfordUniversity Press 2013) pp 289–308.

110Oliver, ‘Accountability and the Foundations of British Democracy’ (n 109); KathleenClark, ‘Do we Have Enough Ethics in Government Yet?: An Answer from FiduciaryTheory’ [1996] (1) University of Illinois Law Review pp 57–102; John Glover, ‘PublicOfficials, Public Trusts and Fiduciary Duties’ in Ken Coghill, Charles Sampford,and Tim Smith (eds), Fiduciary Duty and the Atmospheric Trust (Ashgate 2012)pp 69–98.

111It is then no surprise when ‘public interest’ is sometimes connected to the deeplyfiduciary concept of ‘stewardship’. For a more elaborate description, but also critiqueof the connection between ‘stewardship’ and ‘public interest’ in property law, seeWilliam N.R. Lucy and Catherine Mitchell, ‘Replacing Private Property: The Casefor Stewardship’ (1996) 55(3) Cambridge Law Journal pp 566–600, pp. 585-595.

112Virginia Held, The Public Interest and Individual Interests (Basic Books Inc 1970);Michael Feintuck, ‘The Public Interest’ in Regulation (Oxford University Press2004) p. 10 et seq. For an attempt to find the ‘core’ meaning of the term, seePeter Koller, ‘Das Konzept des Gemeinwohls: Versuch einer Begriffsexplikation’ inWinfried Brugger, Stephan Kirste, and Michael Anderheide (eds), Gemeinwohl inDeutschland, Europa und der Welt (Nomos 2002) pp 41–70.

113This is at least when considering the public interest to be something else than

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assumption of sufficient coherence among the members of the public114

together with the assumption of comprehensiveness of the polity - acondition which is not necessarily fulfilled in the constitutional thought ofthe EU.115

Even where the expectation of one general public interest is replacedby the duty to adhere to public interests in the plural, this notion isconnected to a discernible and sufficiently coherent ‘body politic’ thatforms these interests. Indeed, any person is likely to have several interestsin different areas of social interaction, and human nature is such as thatthese interests can even be contradictory to some extent. If the publicinterests could not be connected to a comprehensive public, but insteaddenoted the partisan interests of only fragments of society, the notion oftheir ‘publicness’ would be hard to maintain.

Indeed, it appears that the concept of ‘public interest’ only acquires con-tent when assuming a value system that underlies it either ‘naturally’116

the interest of the majority of the constituency. For a categorisation of differentunderstandings of ‘public interest’, see Held, The Public Interest and IndividualInterests (n 112). In his seminal work within the German legal discourse, Haberlemaintains that even while it is outmoded to assume a unitary public interest,the concept is held together by the reference to a single public. Peter Haberle,Offentliches Interesse als juristisches Problem (Athenaum Verlag 1970) p. 213.Even though the Dutch experience contradicts this (traditionally being split intofour ‘publics’: i.e. the protestant, catholic, proletariat and bourgeois), even heretraditional mechanisms to find the ‘public interest’ depend on the comprehensivenessof the four recognised ‘publics’ and their internal homogeneity. See, for example,Yvonne Zonderop, Polderen 3.0: Nederland & het Algemeen Belang (I S V WUitgevers / Luisterwijs 2012).

114Oliver, ‘Psychological Constitutionalism’ (n 109) p. 639. This understanding ofthe public interest necessarily being linked to a community or a state is rathertraditional. See Feintuck (n 112) pp. 38 et seq with further references. See alsoHeld, The Public Interest and Individual Interests (n 112) ch. 6.

115Francisco Perez, Political Communication in Europe: the Cultural and StructuralLimits of the European Public Sphere (Palgrave Macmillan 2013). I intentionally referto the ‘constitutional thought’ here, instead of to social reality. While heterogeneityand a certain ‘interstitial practice’ can certainly be found in a number of societies,this does not mean that their legal systems would not still incorporate a doctrine ofhomogeneity and comprehensiveness.

116Thus, the concept has been charged with the ‘offence’ of supporting natural lawunderstandings of public values. Feintuck (n 112) p. 40 et seq. There is a cer-tain instinctive uneasiness about proclamations of ‘natural’ or ‘objective’ groupinterests, which can be used against individuals. This theme has historical roots

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or because it is linked to the public as a community, with a (one) valuesystem117 for the concept not to become empty. Historically, the term‘public interest’ has been used with rather etatist overtones to refer explic-itly to the interest of the monarch or the state, thereby even conflating theinterest of the public, the social community, with the interests of publicorganisations.118 The differentiation of these two interest, however, is thevery focus of the concept of ‘disinterestedness’.

In EU law, there does not appear to be a comprehensive notion of‘public interest’. Instead, the Court recognises a variety of interests as‘a public interest’. In this, the Court does not distinguish between thevarious interests in which the institutions could possibly act, but insteadmakes no clear distinction between the public interest, the interests of theUnion and other (legitimate) interests of the institutions.119

Further, from the way the Court uses the term ‘public interest’ or relatedterms, it is not always clear which public the Court refers to and whetherthe ‘public’ in question even refers to the EU polity, or how it comes tothe determination that a specific interest is a ‘public interest’. Whileon the one hand the objectives of the Community appear to be publicinterests,120 the Court also speaks of mandatory requirements of publicinterest(s)121 (of Member States) being able to justify some derogations

and is used in belletristic writings. As the possibly most widely known examplein popular literature, J.K. Rowling has one of the historic villains of her HarryPotter books (Gellert Grindelwald) justify his actions with the slogan ‘for the greatergood’. J.K. Rowling, Harry Potter and the Deathly Hallows (Bloomsbury 2010).In this context, Calliess speaks of the ‘weakness to ideology’ (Ideologieanfalligkeit).Christian Calliess, ‘Gemeinwohl in der Europaischen Union – Uber den Staaten- undVerfassungsverbund zum Gemeinwohlverbund’ in Winfried Brugger, Stephan Kirste,and Michael Anderheiden (eds), Gemeinwohl in Deutschland, Europa und der Welt(Nomos 2002) pp 173–214 pp. 173, 177.

117Feintuck (n 112) p. 25. Calliess reduces in a similar argument the question aboutthe public interest principle to the question of legitimacy. Calliess, ‘Gemeinwohlin der Europaischen Union – Uber den Staaten- und Verfassungsverbund zumGemeinwohlverbund’ (n 116) p. 175 et seq.

118These overtones are explicitly rejected by ibid, p. 177 et seq. Such historicaltendencies are describe by Koller (n 112) p. 42.

119See, as an example, Case C-350/12 P Council of the European Union v Sophie in ’tVeld electronic reports of cases: Court reports – general (ECLI:EU:C:2014:2039).

120Case C-280/93 Federal Republic of Germany v Council of the European Union [1994]ECR I–5039, para. 87.

121Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein [1979]

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from the European freedoms.122 This way, the ‘public interest’ provideslittle normative guidance for the exercise of discretion.123

Nevertheless, there is a relation between the ‘public interest’ and dis-interestedness. In the case law of the Court: the ‘public interest’ mostlyrefers to (conferred) competences, or the values that a polity or publicauthority is set to protect. ‘Public interest’ thus relates strongly to thefunction of a public authority, to its mandate. Applied to Arts. 290 and291 TFEU this means that the Commission is charged with adoptingdelegated and implementing acts for a specific purpose. This purpose ispresumed to be a public interest, so that the Commission, in fulfilling it,is acting in its public function. Disinterestedness comes in as a separateargument: as this mandate is in itself not able to determine the action tobe undertaken, it is possible for the Commission to act in a self-servingway in the fulfilment of the mandate. To prohibit this, the duty of dis-interestedness specifies that in serving the public interests (and fulfilling

ECR 00649 (ECLI:EU:C:1979:42) para. 8; Case C-156/13 Digibet Ltd and GertAlbers v Westdeutsche Lotterie GmbH & Co OHG (2014) electronic reports of cases:Court reports – general (ECLI:EU:C:2014:1756) para 23.

122See for an overview Catherine Barnard, The Substantive Law of the EU: the fourfreedoms (3rd edn, Oxford University Press 2010) p. 165 et seq. On the ambiguousinterplay between EU and Member State interests in the case law of the CJEU,see Calliess, ‘Gemeinwohl in der Europaischen Union – Uber den Staaten- undVerfassungsverbund zum Gemeinwohlverbund’ (n 116) p. 195 and Fritz Scharpf,The Double Asymmetry of European Integration Or: Why the EU Cannot Be aSocial Market Economy (MPIfG Working Paper, vol 09/ 12, Max Planck Institutfur Gesellschaftsforschung 2009) especially p. 22, as well as the contributions inAnnette Schrauwen (ed), Rule of Reason: Rethinking another Classic of EuropeanLegal Doctrine (Hogendorp Papers, vol 4, European Law Publishing 2005). Anotherinteresting complication lies in the relation of the concept of ‘public interest’ to fun-damental freedoms. Thus, mandatory requirements cannot justify a situation whichis incompatible with fundamental rights under the Charter: Case C-98/14 BerlingtonHungary Tanacsado es Szolgaltato kft and others v Magyar Allam (Hungarian State)(2015) electronic reports of cases: Court reports – general (ECLI:EU:C:2015:386)para. 74. However, it is precisely one of the functions of a doctrine of public interestto navigate the relation between public and private rights, and thus to also drawsome limits to the latter. Cf also Calliess, ‘Gemeinwohl in der Europaischen Union –Uber den Staaten- und Verfassungsverbund zum Gemeinwohlverbund’ (n 116) p.179 about this ambivalence.

123Calliess also claims that the issue of how to understand ‘public interest’ in the EUis hardly broached in literature. ibid, p. 173. While his claim is somewhat datedthere is no evidence of a changed situation now.

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the mandate) the Commission must disregard its own interests.Generally, fiduciaries must not let their judgement be tainted by self-

interest, regardless of where this interest lies.124 Fiduciary law has anumber of mechanisms which are supposed to work towards disinterested-ness, for example discovery and account but also evidential rules whichmake the discharge of an allegation of self-interested action very hard.125

However, these are part of the technical understanding of fiduciary law,which can hardly be transposed into EU administrative law.126

Despite not being in itself a positive guidance of a public authority’sefforts towards the ‘right’ goal, disinterestedness arguably neverthelessdoes much to lead to loyal action. This is because self-interest is seenas the main threat to the proper fulfilment of the authority’s duties.127

This threat is manifest in two ways. In a more obvious way, self-interestprovides an incentive which can be contrary to, or at least diverting from,the beneficiary’s interest. In a more subtle way, self-interest is seen tointerfere with proper judgement on what the beneficiary’s interest are.Allowing for profit by a fiduciary then leads the fiduciary to define theinterest of the beneficiary in a way that is favourable to its own ends.Thus, the call for ‘disinterestedness’ not (only) works to prevent ‘harm’ to

124Jill E. Martin, Hanbury and Martin on Modern Equity (16th edn, Sweet & Maxwell2001) p. 612 et seq. This is a general tenet of fiduciary law throughout differentlegal systems: Stefan Grundmann, ‘The Evolution of the Trust and Treuhand inthe 20th century’ in Richard Helmholz and Reinhard Zimmermann (eds), ItineraFiduciae: Trust and Treuhand in Historical Perspective (Duncker & Humblot 1998)pp 469–493 p. 484 et seq. Of course, it is not possible to exclude all possible ‘gains’to the fiduciary. Indeed, such gains as reputational gains in term of a reputation ofhonesty and responsibility should hardly be objectionable. Although even here, onecan argue that the gains must be incidental and not actively sought after by thetrustee. The line appears to be a fine one.

125Charles M. Yablon, ‘The Allocation of Burdens of Proof in Corporate Law: an Essayon Fairness and Fuzzy Sets’ (1991) 13 Cadozo Law Review pp 497–518, Cooter andFreedman (n 96) 1052.

126Interestingly, however, at least discovery appears to have a comparable mechanism inEU administrative law. Thus, rules of access to documents (Regulation (EC) No1049/2001 of the European Parliament and of the Council of 30 May 2001 regardingpublic access to European Parliament, Council and Commission documents OJL145/43) have arguably a similar function as discovery in promoting transparency.However, this is not to disregard that there is no straightforward analogy, as in theinstitutional context, but also the possibilities for exemption of documents are quitedifferent.

127Conaglen, ‘The Nature and Function of Fiduciary Loyalty’ (n 107).

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the beneficiary, but also to prevent the temptation of trying to align thebeneficiary’s interest with self-interest.128

The term ‘disinterestedness’ is new to EU public law. Neither theTreaties, nor statutes, nor the Courts use the term. However, this doesnot mean that the notion is entirely alien; instead, very similar issuesare sometimes discussed under the heading of ‘impartiality’. Thus, anargument that one and the same institution should not be the one to findwrongfulness, determine a fine and collect that fine because that wouldprejudice its judgement is made as an argument for the ‘impartiality’of the institution,129 not for disinterestedness, even though the latterwould arguably be the more precise notion to be used here. However, theuse of ‘impartiality’, as calling for a certain distance of the Commissionfrom the choices to be made, is lumping together problems of self-interestwith problems of partisan bias and fairness. This latter problem will bediscussed in section 5.3.1 below, and I will come back to the question ofimpartiality there.

5.2.2 Accounting for Motives

Disinterestedness is certainly not easy to achieve. People and organisations,in as far as they have an interest, naturally and intuitively decide on thebasis of this interest. Disinterestedness requires mechanisms for checkingagainst such encroaching interests. But how can disinterestedness beasserted? In procedural terms, the first step in showing loyal devotionto another’s interests is critical questioning of role of self-interest andreflecting on the motivation for a specific regulatory choice. This translatesinto something that could be called ‘accounting for motives’.

Those studying organisations teach that organisations, just like individu-als, have their own interests.130 Self-interested action is moreover a chargeoften levied against the EU institutions, and the Commission specifically,by popular EU critical voices.131 Self-interest is pervasive and deeply

128Boardman and another v Phipps [1966] UKHL 2; Samet, ‘Guarding the Fiduciary’sConscience’ (n 7).

129Commission of the European Communities v Kingdom of Denmark (n 53) para 46.130Mayntz, Verwaltung (n 98) and Allison and Halperin (n 98).131Cf, for example, http://www.express.co.uk/comment/expresscomment/478056/We-

ve-conceded-far-too-much-to-an-unelected-EU, http://www.breitbart.com/london/2016/03/07/power-grab-brussels-proposes-centralising-control-of-asylum-claims/,

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ingrained in any form of decision-making as it is linked to the very beingof the organisation. Disinterestedness thus demands squaring the circle,as it demands decision making which disregards the self. Ascertainingwhether any decision was truly made in a disinterested way is thus anexercise in self-reflection, which is aided by an accounting exercise.

A process of self-reflection is not necessarily or best internal. Eventhough self- reflection is aimed at the self, it requires a medium of reflection;gazing at oneself requires a mirror. A process of self-reflection requiresone to step in front of the mirror and to accept the picture rendered asan assessment of ones-self. As a procedural mechanism, this means thatthe decision-making process and motivation are set out to a forum andaccepting its evaluation of the situation as authoritative for an account ofthe motivations in play.

This process can to some extent be classified as an accountability process.Indeed, accountability “seek[s] to ensure that those who decide will giveregard to the interests and concerns of those affected”,132 and concerns“those arrangements made for securing conformity between the values of adelegating body and those to whom powers are delegated”.133 ‘Accountingfor motives’ and ‘accountability’ share this concern for the proper regardfor the interests and concerns of those affected by an exercise of authority.Accounting for motives works towards this regard by creating evidencefor disinterestedness, which is a precondition for the appropriate regardfor those affected.

This proximity of concepts is especially true for older literature, whichunderstands accountability very broadly as: “the giving and demanding

http://www.telegraph.co.uk/news/politics/ukip/10778613/No-more-surrendering-to-EU-bureaucrats.html (all visited 13 April 2016). This criticism, which canbe summarised as ‘unelected EU bureaucrats grabbing power’ is not new: thesentiment already existed in the 1960: John van Oudenaren, ‘European Integration:An Uncertain Prospect’ in Ronald Tiersky and Erik Jones (eds), Europe Today:A Twenty-First Century Introduction (5th edn, Rowman & Littlefield 2015)pp 295–316 p. 300.

132Richard B. Stewart, ‘Remedying Disregard in Global Regulatory Governance: Ac-countability, Participation and Responsiveness’ (2014) 108 American Journal ofInternational Law pp 211–270, p. 249.

133Deirdre Curtin, ‘Delegation to EU Non-Majoritarian Agencies and Emerging Practicesof Public Accountability’ in Damien Gerardin, Rudolphe Munoz, and NicolasPetit (eds), Regulation through Agencies in the EU: a new paradigm of Europeangovernance? (Routledge 2006) pp 87–117 p. 87.

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of reasons for conduct’,’134 but also for some newer contributions.135 Thisis why in the following I rely on literature that refers to ‘accountability’;because the understanding of ‘accountability’ used in these contributionsaccords to my use of ‘accounting for motives’.136

However, both, administrative law and science137 and fiduciary law138

have their conceptions of ‘accountability’, which do not quite accord tothe understanding given here.139

134John Roberts and Robert Scapens, ‘Accounting Systems and Systems of Accountabil-ity: Understanding Accounting Practices in their Organisational Contexts’ (1985)10(4) Accounting, Organizations and Society pp 443–456, p. 447. Here, I understandRoberts and his collaborators to refer less to ‘accountability’ and more to ‘relationalreflective processes’, of which accountability can be one.

135Mark Philp, ‘Delimiting Democratic Accountability’ (2009) 57 Political Studies pp 28–53, p. 32; Jane Mansbridge, ‘A Contingency Theory of Accountability’ in MarkBovens, Robert E. Goodin, and Thomas Schillemans (eds), Oxford Handbook ofPublic Accountability (Oxford University Press 2014) pp 55–66.

136Accountability for disinterestedness as at the heart of all fiduciary relations, developingat a time when differentiation between public and private did not exist yet: JoshuaGetzler, ‘An Interdisciplinary View of Fiduciary Law: ”As if” – Accountabilityand Counterfactual Trust’ (2011) 91 Boston University Law Review pp 973–990,p. 976. This is notwithstanding that the concept of ‘accountability’ in fiduciarylaw in the technical sense has also changed to connote something more like liability.Accountability is here often understood as ‘accountability for profits’ (or losses), andis so closely linked to the liability to either disgorge profits or compensate for losses,that accountability is sometimes even used interchangeably with liability to pay: cfRussel D. Niles, ‘Trustee Accountability in the Absence of Breach of Trust’ (1960)60(2) Columbia Law Review pp 141–160; Roberts Chambers, ‘Liability’ in PeterBirks and Arianna Pretto-Sakmann (eds), Breach of Trust (Hart Publishing 2002)pp 1–40. Thus, it has moved away from a ‘clearing of conscience’ of the fiduciarytowards a more remedial function, and its substantive and procedural aspects comeas a re-discovery of historical practices: Joshua Getzler, ‘Rumdorf Market andthe Genesis of Fiduciary Obligations’ in Andrew Burrow and Alan Rodger (eds),Mapping the Law: Essays in Memory of Peter Birks (Oxford University Press 2006)pp 577–598 p. 594.

137Cf Jerry L. Mashaw, ‘Structuring a “Dense Complexity”: Accountability and theProject of Administrative Law’ (2005) 5(1) Issues in Legal Scholarship Article 4;Bovens, ‘Analysing and Assessing Accountability: A Conceptual Framework’ (n 27).

138Cf, for example Niles (n 136); Flannigan, ‘The Core Nature of Fiduciary Accountabil-ity’ (n 107); Getzler, ‘”As if” – Accountability and Counterfactual Trust’ (n 136).

139Writing for administrative law, Mashaw notes how there are frequent calls for ‘ac-countability’ to solve contemporary problems of governance. He calls accountabilitya place-holder for our contemporary anxieties: Mashaw, ‘Structuring a “DenseComplexity”: Accountability and the Project of Administrative Law’ (n 137) p. 15

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Accounting for motives in the present context is significantly less de-pendent on the composition of the accounting forum, than accountabilityis typically seen to be on the accountability forum. In theory, disin-terestedness can be determined by anyone who is sufficiently separatefrom the administration/ fiduciary to be able to determine clearly if theself-interests of the administration were the maxim of its decision-making.

The determination of disinterestedness is only remotely linked to aspecific constituency.140 The argument is that while the determinationof Y positively acting in X’s interest must involve X determining its owninterest, Y not acting not in Y’s interest can be determined without theinvolvement of a specific X. To rephrase, the argument is that, whereasthe definition of the public interest can legitimately only be undertakenby the public itself in one form or another,141 disinterestedness is not

et seq. There are at least as many definitions of accountability as authors writingabout it, nevertheless the centre of gravity of the concept probably lays to the sideof what I am interested here. Accountability has now often the connotation ofjustification towards an external authority (see Richard Mulgan, ‘‘Accountability’:an ever-expanding concept?’ (2000) 78(3) Public Administration pp 555–573) andhas been come to describe the fact that some actors have the right to pass judgementon other actors (Ruth W. Grant and Robert O. Keohane, ‘Accountability andAbuses of Power in World Politics’ (2005) 99(1) American Political Science Reviewpp 29–43, p. 29). While this has the merit of highlighting the relevance of the‘person’ of the accountee, it nevertheless stresses too heavily the judgement aspectof accountability to be relevant to my purpose. Since I treat accountability as adisciplining rather than coercive force, my focus lies on the accountor much morethan on the accountee.

140This is not to say that it is objective in an absolute sense. On the contrary, as aninterpersonal interaction accounting for motives is hardly truly neutral (See againRoberts and Scapens (n 134), John Roberts, ‘The Possibilities of Accountability’(1991) 16(4) Accounting, Organizations and Society pp 355–368).

141Difficulty with the determination of the ‘public’ is one of the reasons the ‘publicinterest’ appears to be notoriously hard to find: Cf, for example, the discussion ofScharpf in Andrew Moravscik and Andrea Sangiovanni, ‘On Democracy and “PublicInterest” in the European Integration’ in Renate Mayntz and Wolfgang Streeck (eds),Die Reformierbarkeit der Demokratie, Innovationen und Blockaden: Festschrift furFritz W. Scharpf (Campus Verlag 2003) pp 122–149. The basic problem appears tobe, given the vague nature of the term ‘public’, to find a group of persons/ agentswhich can count as an appropriate approximation of the general ‘public’ and thento devise a way in which the interest of this group can be found. In one form oranother, many claims which are labelled as ‘democratic’ contend that that a publicinterest should be expressed by a forum which is aggregated from this ‘public’, orat least from the majority. It is maybe for this reason, that there appears to be

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so dependent on the ‘person’ of the constituent, but instead on a more‘objective’ factor.

However, the interaction between the fiduciary Commission and thereflective forum must be able to sustain a relation which enables candidaccounts and candid assessments. Besides independence of the reflectiveforum, this requires a certain non-judgemental atmosphere.142 There is asomewhat negative relationship between the threat of sanctions on, andself-reflection and motivational discipline of the accountee, making thisaspect not suitable for reflective processes.143 Indeed, I do not focus onformal consequences, but rather on the disciplining effect that the act of‘accounting’ and assessment has on the ‘accountor’.

Similarly, accounting for motives shares some aspects with the duty togive reasons.144 Indeed, accounting for motives is literally to give the rea-

a reflex of calling for determination of the public interest by general election, oras an extension, by Parliament:Herman Finer, ‘Administrative Responsibility inDemocratic Government’ (1941) 1(4) Public Administration Review pp 335–350,p. 347; Richard Falk and Andrew Strauss, ‘Toward Global Parliament’ (2001)80(1) Foreign Affairs pp 212–220, p. 212. However, some claim that there is nodemocratically legitimate form of the public anymore in the postnational context, asthe congruence between welfare (right, interest) of all the ‘popular will’ has brokendown. Cf Michael Goodhart, ‘Democratic Accountability in Global Politics: Norms,not Agents’ (2011) 73(1) Journal of Politics pp 45–60.

142Roberts, ‘The Possibilities of Accountability’ (n 140) p. 362.143Philip H. Jos and Mark E. Tompkins, ‘The Accountability Paradox in an Age of

Reinvention: The Perennial Problem of Preserving Character and Judgment’ (2004)36(3) Administration & Society pp 255–281; Mollie Painter-Morland, ‘RedefiningAccountability as Relational Responsiveness’ (2006) 66(1) Journal of BusinessEthics pp 89–98. Focusing on consequences is liable to adversely affect the reflectiveprocess, as it induces a push towards self-preservation.Sara K. Waring and others,‘The Impact of Accountability on Motivational Goals and the Quality of AdviceProvided in Crisis Negotiations’ (2013) 19(2) Psychology, Public Policy, and Lawpp 137–150. This is another aspect that differentiates ‘accounting for motives’from the mainstream use of ‘accountability’. Cf Andreas Schedler, ‘ConceptualizingAccountability’ in Andreas Schedler, Larry Diamond, and Marc F. Plattner (eds),The Self-Restraining State: Power and Accountability in New Democracies (LynneRienne Publishers 1999) pp 13–28 p. 15 et seq; Mark Bovens, ‘Two Concepts ofAccountability: accountability as a virtue and as a mechanism’ (2010) 33/5 WestEuropean Politics pp 946–967 and Stewart (n 132) pp. 245, 254.

144Art 296 TFEU. In French, this duty is even referred to as the duty to ‘motivate’(motiver) an act. Cf F. Schockweiler, ‘La Motivation des Decision Individuellesen Droit Communautaire et en Droit National’ (1989) 25(1-2) Cahiers de DroitEuropeen pp 3–40, section C, although his contribution is restricted to individual

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sons for a decision; at this level, the ‘duty to give reasons’, ‘accountability’and ‘accounting for motives’ overlap.145 However, accounting for motiveshere does not take the form that the duty to give reasons takes in EUlaw, i.e. the form of a public pronouncement with no avenue provided forreceiving a reaction to it. The reflective processes I refer to are much moregeared towards the internal, disciplining effects, and much less towardspublicness of action and review-ability before Court.146

A mechanism for accounting for motives, the possibilities for whichI will develop in the following chapter, situates sense-making147 in thedecision-making process. It provides a moment of comparing internal andexternal assessments of an adoption process, and compares the internaland external view on which interests are served in a process. Reflectiveinteractions can work towards disinterestedness when focusing on themotivation underlying a specific choice.

Having accounted for motives, the Commission will have learned how

decisions. A broader argument is mentioned in Joana Mendes, Participation in EURule-Making: A Rights-Based Approach (Oxford University Press 2011) p. 249.

145This overlap is evident from how Paul Craig describes the internal effects of theduty to give reasons: “having to explain oneself, and defend the rationality of one’schoice, is always a salutary exercise” (Paul Craig, EU Administrative Law (OxfordUniversity Press 2012) p. 340). This explaining oneself and defending choices iscommon to accountability and reason giving

146Cf Case C-222/86 Union nationale des entraıneurs et cadres techniques profes-sionnels du football (Unectef) v Georges Heylens and others [1987] ECR 4097(ECLI:EU:C:1987:442) para 15. For a description of the duty to give reason as amechanism in European administrative law, see Jurgen Schwarze, European Admin-istrative Law (2nd edn, Sweet and Maxwell 2006) p. 1400 et seq and Deirdre Curtinand Onno Brouwer, ‘Why? The Giving Reasons Requirements of EU Administration’in Mielle Bulterman and others (eds), Views of European Law From the Mountain:Liber Amicorum Piet Jan Slot (Kluwer Law International 2009) pp 133–142. Theinternal effects of the duty to give reasons have also been mentioned in literature(cf Hans-Hermann Scheffler, Die Pflicht zur Begrundung con Maßnahmen nach deneuropaischen Gemeinschaftsvertragen (Duncker & Humblodt 1974) p. 49 et seq), butis generally much less discussed. I come back to the connection between accountingfor motives and the duty to give reasons in EU law below in section 6.1.1.

147For an elaboration of this concept, see Brenda Dervin, ‘Sense-making Theory andPractice: an Overview of User Interests in Knowledge Seeking and Use’ (1998) 2(2)Journal of Knowledge Management pp 36–46. See also section 2.1 above. Accountingfor motives is sense-making as this kind of giving an account is ‘linking between whatone does and who one is’. William Schweiker, ‘Accounting for Ourselves: AccountingPractice and the Discourse of Ethics’ (1993) 18(2) Accounting, Organizations andSociety pp 231–252, p. 241.

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5.3 equal deliberative engagement

the decision-making process is regarded by the forum. The Commission isable to use this outside view, and needs this outside view, to judge its owndecisions.148 It has been long recognised that reflective processes actuallyhave disciplining effects. Generative, constructive effects of such processesare by now “common knowledge”.149 How this can be operationalisedmore concretely for the adoption of delegated and implementing acts willbe discussed below in section 6.1.

In this study, I focus on the possibility of accounting for motives as apart of the adoption process. Beyond this, most arguments on judicialaccountability for disinterestedness would remain an exercise of secondguessing how the CJEU would implement disinterestedness within thelegal framework.

5.3 Equal Deliberative Engagement

“As government powers continually grow more drastic, it is onlyby procedural fairness that they are rendered tolerable.”150

It is not only self-interest that can threaten fiduciary loyalty of theCommission to the persons subject to its acts. Loyalty as the (singleminded) allegiance to the these person’s interest requires not only a properdisregard for self-interest but also protection from ‘disturbing’ interests.

148ibid. There is a certain tension between the objectification of self through thereliance on recognition, even though reflective processes are nevertheless necessaryfor the identification of self. Cf John Roberts, ‘No One is Perfect: The Limits ofTransparency and an Ethic for ‘Intelligent’ Accountability’ (2009) 34 Accounting,Organizations and Society pp 957–970. For an empirical account of this tension, seealso the observation on the tension between structural and personal accountabilitymade by Sinclair (Amanda Sinclair, ‘The Chameleon of Accountability: Forms andDiscourses’ (1995) 20 Accounting, Organizations and Society pp 219–237).

149See, for example, Roberts and Jones (n 104) pp. 857 et seq. Boedker and Chua givemore than a dozen references for this assertion. See Christina Boedker and Wai FongChua, ‘Accounting as an affective technology: A study of circulation, agency andentrancement’ (2013) 38 Accounting, Organizations and Society pp 245–267, p. 246.

150William Wade, Administrative Law (4th edn, Oxford University Press 1978) 393.This statement appears to be of fundamental importance to Wade’s view on ad-ministrations, as it has been preserved unchanged to also appear 7 editions later:Williams Wade and Christopher Forsyth, Administrative Law (11th edn, OxfordUniversity Press 2014) p. 373.

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Any ‘alien’ or partisan allegiance can stand in the way of acting in thebeneficiary’s interest.151 Thus, a duty to disinterestedness needs to becomplemented by the protection against partisan instrumentalisation.This concern about diverted interests and bias is very noticeable, also inthe public discussion on decision-making.152

This protection against partisan instrumentalisation is linked with theduty to deliberative engagement.153 To recall, a fiduciary is obliged toact in the interests of the persons subject to the exercise of her mandate.This presupposes that the fiduciary is acquainted with these interests. Inorder to gain this knowledge, a fiduciary is required to engage with herbeneficiaries and to inquire into their interests and needs.

Even though deliberation is not necessarily a strong trait of manyprivate fiduciary relationships, this can easily be explained by the oftenmore limited character of private fiduciary relationships (such as when apension fund manager is a fiduciary to workers), or the closer proximityof fiduciary and subject (such as in the case of partnerships or guardian/ward relationships). This limitation or proximity make the interests eitherascertainable by common sense in a relatively straightforward way (i.e.the interest in an as sizeable as possible, reliable pension), or known tothe fiduciary through the course of normal interactions. In the case ofpublic fiduciaries, the relationship is neither so narrowly targeted, nor the

151For empirical support, see Tom R. Tyler and E. Allan Lind, ‘A Relational Modelof Authority in Groups’ (1992) 25 Advances in Experimental Social Psychologypp 115–191.

152This lies, for example, behind the news-worthiness of reports that EU Commis-sioner Oettinger would meet only with industry representatives, and not withdigital rights proponents. See http://www.politico.eu/article/lobbyists-oettinger-eu-transparency-updates-his-calendar-and-70-meetings-appear/, visited 7 July 2015.This concern also is evidenced in the considerable literature on lobbying in theEU, which is commonly understood as a “promising political opportunity structurefor organized interests” (Heike Kluver, Lobbying in the European Union: InterestGroups, Lobbying Coalitions, and Policy Change (Oxford University Press 2013) p.1). Cf also Pieter Bouwen, ‘Corporate lobbying in the European Union: the logicof access’ (2002) 9(3) Journal of European Public Policy pp 365–390; David Coenand Jeremy Richardson, Lobbying the European Union: Institutions, Actors, andIssues (Oxford University Press 2009). For a clearly positive view on lobbying, seePeter Koeppl, ‘The Acceptance, Relevance and Dominance of Lobbying the EUCommission – A First-time Survey of the EU Commission’s Civil Servants’ (2000)1(1) Journal of Public Affairs pp 69–80.

153Cf section 3.3.2.

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interaction so close as to enable the fiduciary to simply know the interestsand needs of the subjects of its powers.

However, the problem with deliberative engagement in the presentcase is not necessarily whether it takes place at all. It is rare for publicauthorities not to consult with the subjects of their decisions in someway or another and consultations with experts and stakeholders154 are aroutine element of the adoption process for delegated and implementingacts. Often interaction is necessary for the fiduciary to fulfil its functionin the most basic way. In the case of the Commission adopting delegatedand implementing acts, interaction with stakeholders is necessary for theCommission to get any idea of how its mandate could be fulfilled. Thus, ifthe Commission authorises the use of chemicals in products traded on theinternal market,155 it does so after being prompted by a company whichdesires to use this chemical, and information about the company, thechemicals and necessary safeguards would be provided with the requestfor authorisation.156

Given the fact of deliberation or ‘participation’, the problem is not oneof access or lack of access, but one of appropriate access. The problemhere is rather whether all the subjects have been engaged with equallyor appropriately.157 The problem is not just one of actually providingavenues for participation, but of balancing the necessary participation inan equitable way.

This is connected to the expectation of there being more than oneinterest present among the persons subject to a Commission act, and therethus not being one pervasive interest of the beneficiary. The very largeand diverse group of persons who are subject to Commission delegatedand implementing rule-making, and the fact that their interrelations are

154Notably, the ‘expert groups’ which the Commission consults are made up of ‘experts’from stakeholder organisations and industry. Cf Torbjorn Larsson, Precooking inthe European Union: the World of Expert Groups (Stockholm, 2003).

155Commission Implementing Regulation (EU) 2015/2198 of 27 November 2015 ap-proving the active substance rescalure, in accordance with Regulation (EC) No1107/2009 of the European Parliament and of the Council concerning the placing ofplant protection products on the market, and amending the Annex to CommissionImplementing Regulation (EU) No 540/2011 [2015] OJ L313/35.

156ibid, Preamble (1).157Cf also Olivier de Schutter, ‘Europe in Search of its Civil Society’ (2002) 8(2) European

Law Journal pp 198–217.

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also liable to be complex, directs the focus of deliberative engagement onthe relative quality of the avenues for participation, and thus on fairness.

5.3.1 Fairness

It is necessary for the Commission to incorporate inputs from a numberof sources into its decision-making process. This is not only a matter ofacquiring (technical) expertise in order to forge solutions, but above allit is a matter of connectedness to all parts of society so as to be able toform a holistic understanding of problems.158

Given that most or all of the parties delivering input are among thebeneficiaries of the Commission’s exercise of judgement, this turns theproblem of biased action into one of balancing between different groupsof beneficiaries. I will refer to the corresponding duty as duty of fairness.‘Fairness’ is used to assess legal processes in which the legal provisionsleave open how to ascertain whether all parties fulfilled their duties.159

The use of the term ‘fairness’ here might require some further explana-tion. Fairness as I use it refers to the procedural quality of rule-makingprocesses. Some writers use the term ‘procedural justice’ instead of orinterchangeably with it.160 Fairness here does not necessarily refer to theidea that the result is merited by all parties or that eventual distributionsare equitable even though these values should of course be the result ofgood decision-making; I do not refer to fairness as it is used in expressionssuch as ‘fair wages’ or ‘fair trade’. Instead, I refer to it as a quality of thedecision-making process that is operationalised in procedures.161 ‘Fairness’thus resonates with notions of ‘fair trial’ or ‘due process’,162 even though

158Leib and Ponet refer to this as a fiduciary’s duty of deliberation. This duty is apart of fiduciary loyalty, because in order to act in the interest of beneficiariesit is first necessary to know their needs and situational context. Ethan J. Leiband David L. Ponet, ‘Fiduciary Representation and Deliberative Engagement withChildren’ (2012) 20(2) Journal of Political Philosophy pp 178–201.

159R. A. Macdonald, ‘Judicial Review and Procedural Fairness in Administrative Law:II’ (1980) 26 McGill Law Journal pp 1–44.

160Cf, for example, Rob van Gestel, ‘Primacy of the European Legislature? DelegatedRule-Making and the Decline of the “Transmission Belt” Theory’ (2014) 2(1) Theoryand Practice of Legislation pp 33–59, p. 56.

161For these two meaning of ‘fairness’, cf Thomas M. Franck, Fairness in InternationalLaw and Institutions (Oxford University Press 1998).

162Yet, even though I focus on process, the connection between process and outcome

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requirements of fairness take on a somewhat different shape in the area ofrule-making.

It is important to note that ‘procedural fairness’ can have a broadmeaning as the counterpart to ‘distributive fairness’,163 even though itis often understood in a more restricted way as rules of participationin trials (or trial-like situations). There is a controversy about whetherlegal procedural justice standards can be used as standards for rule-making or are limited to decision-making.164 Yet, the main criticism toa broader use of procedural justice/ fairness standards appears not torefer to any characteristics of rule-making which would make this aninappropriate object of fairness, but instead refer to the need to limitjudicial interference.165 Thus, arguments against a legal duty of fairnesstend to overlay the argument about the relevance of the principle witharguments about its operationalisation or enforcement.

The distinction between decision-making and rule-making is very hardto define on any but the most formal grounds. This probably the reasonwhy in social science literature on fairness this distinction plays no role.166

The archetypical case for fairness in decision-making is the requirement offair proceedings before Court. However, the decisional processes in Courtare not necessarily very different from regulatory processes. ‘Judging’ isnot confined to the decisions of judges.167 Instead, even if we connect

should be evident from ‘fair trial’ and ‘due process’: while such standards do notprotect against, for example, error or lack of knowledge or skill, and are thus notsufficient for a good outcome, they are nevertheless necessary to reliably reach goodoutcomes.

163Robert Folger, ‘Fairness as Moral Virtue’ in Marshall Schminke (ed), ManagerialEthics: Moral Management of People and Processes (Psychology Press 1998) pp 13–34 p. 14.

164Søren Schønberg, Legitimate Expectations in Administrative Law (Oxford UniversityPress 2000) p. 3.

165As described though not endorsed in D. J. Mullan, ‘Fairness: The New NaturalJustice?’ (1975) 25(3) University of Toronto Law Journal pp 281–316. For a furthertheoretical and historical argument on this, see Martin Loughlin, ‘Procedural Fair-ness: A Study of the Crisis in Administrative Law Theory’ (1978) 28(2) Universityof Toronto Law Journal pp 215–241.

166Cf, for example, Kristina Murphy, Tom R. Tyler, and Amy Curtis, ‘Nurturingregulatory compliance: Is procedural justice effective when people question thelegitimacy of the law?’ (2009) 3 Regulation & Governance pp 1–26.

167Macdonald, ‘Judicial Review and Procedural Fairness in Administrative Law: I’(n 94) p. 547.

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the requirement of fairness to ‘judgement’, the ‘exercise of judgement’ isin many cases the very concept used to describe fiduciary discretion.168

Indeed, ‘judging’, i.e. weighing information, weighing needs and weighinginterests is an important part of delegated and implementing rule-making.Fairness is important to maintain the balance in this weighing process.

The reasons given by the CJEU in repsonse to claims that it shouldrecognise particularised rights to be heard or to be consulted169 Suchrights are connected to requirements of fairness as they provide avenuesfor individuals to assert their right to be treated fairly. The arguments ofthe Court here were mainly arguments of representative democracy whichmakes consultations less relevant and of institutional balance and judicialdeference.170 While the former of these is hardly applicable to the case ofdelegated and implementing acts, the latter again conflates the questionof the relevance of fairness with the question of how the Court is allowedto interfere in the exercise of another institution’s authority.

I agree that fairness as a standard might be hard to adjudicate butpropose that fairness requirements are not first and foremost to be negoti-ated in Court, but to be further operationalised through the duty to giveinformation on involvement in the adoption process.

The concern raised here is sometimes treated by the Court under theheading ‘impartiality’.171 Impartiality captures an aspect that is important

168This is the expression often used in fiduciary law cases to describe the activities offiduciaries. Cf, for example, Smith, ‘Fiduciary Relationships’ (n 102).

169Cf, most famously Case T-521/93 Atlanta AG, Atlanta Handelsgesellschaft Harder& Co GmbH, Afrikanische Frucht-Compagnie GmbH, Cobana Bananeneinkaufsge-sellschaft mbH & Co KG, Edeka Fruchtkontor GmbH, International FruchtimportGesellschaft Weichert & Co and Pacific Fruchtkontor GmbH v Council of the Eu-ropean Union and Commission of the European Communities [1996] ECR II–1707(ECLI:EU:T:1996:184) and its appeal Case C-104/97 P Atlanta AG and others vCommission of the European Communities and Council of the European Union [1999]ECR I–6983 (ECLI:EU:C:1999:498) and Case T-199/96 Laboratoires pharmaceutiquesBergaderm SA and Jean-Jacques Goupil v Commission of the European Commu-nities [1998] ECR II–2805 (ECLI:EU:T:1998:176) and its appeal Case C-352/98 PLaboratoires pharmaceutiques Bergaderm SA and Jean-Jacques Goupil v Commissionof the European Communities [2000] ECR I–5291 (ECLI:EU:C:2000:361).

170For an argument that participation rights should be understood more broadly in EUlaw, see Mendes, Participation in EU Rule-Making (n 144) section 5.2.

171Cf, for example, Case C-379/04 Richard Dahms GmbH v Frankischer WeinbauverbandeV [2005] ECR I–8725 (ECLI:EU:C:2005:609) para 18 in which the Court stressedthat administrative procedure must be impartial, or Case C-367/95 P Commission

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here, in that it refers to the fiduciary Commission not assuming the positionof any party. However, it is over-inclusive in that it is sometimes used torefer to what I described above as ‘disinterestedness’, namely ‘not havinga self-interest in the matter’.172 Thus, a judge, for example, is impartialwhen she treats both sides equally and does not have an own interest inthe outcome of the case. Consequently, I use the term ‘fairness’ to avoidconfusion. Fairness equally expresses the even-handedness required.

Additionally, the term ‘fairness’ introduces a normative dimension,173

which is important to arguments in this section. Fairness is not a me-chanical application of providing equal access, but requires sensitivity tothe vulnerabilities of parties and the appropriateness of the relationshipbetween the Commission and specific persons. Whereas impartiality onlyrefers to the lack of partisan bias, fairness additionally implies that thedecision taken follows some form of moral reasoning that can serve tojustify the decision.174 I do not mean to refer to any specific moral reason,as I do not refer to any specific substantive values to be included intodecision-making (such as a call for the protection of fundamental rightswould do). Instead, I refer to an element of normative reflexivity of theauthority who decided; to the normative value of the exercise of justifi-cation which introduces an element of reasonableness which enables theworking of substantive norms without a priori determining which normsthese will be.

Fairness translates into a requirement to balance all interests involved, soas to simultaneously account for the obligations of loyalty towards variousgroups with possibly contradictory interests. Fairness is the recognitionthat the fiduciary is not allowed to fulfil the requirement of loyalty to onegroup of beneficiaries at the cost of disregard to the interests and needs

of the European Communities v Chambre Syndicale Nationale des Entreprises deTransport de Fonds et Valeurs(Sytraval) and Brink’s France SARL [1998] ECR I–1752 (ECLI:EU:C:1998:154) para 62 dealing with duty to careful and impartialexamination of facts necessary for a measure to be adopted.

172Cf, for example, Commission of the European Communities v Kingdom of Denmark(n 53) para 65. See also section 5.2.2 above.

173Folger (n 163).174Jerry L. Mashaw, ‘Administrative Due Process: The Quest for a Dignitary Theory’

(1981) 61 Boston University Law Review pp 885–931. Mashaw refers to this moralityas respect for every person’s dignity.

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of another group of beneficiaries.175 In this way, being fair is to “respectall as equals”.176

Fairness177 plays an important role in the review of the discharge offiduciary obligations. In fiduciary law, fiduciaries are not necessarilybound to specific procedures, and it is consequently often impossible toreview the legality of the process more strictly (or formally) speaking.Instead, the process by which a decision was taken will be evaluatedagainst standards of fairness.178 Fairness is connected to loyalty in thatthe obligations of loyalty to several individuals or groups can only bedischarged by balancing their differing interests.179

The evaluation of the fairness of the fiduciary’s acts focuses on thedecision-making process/procedure, as this review is seen as not interferingwith the discretion of fiduciaries. As in the context of the review of EUlegal acts,180 judges are wary about replacing the fiduciary’s decision with

175Martin (n 124) p. 553 et seq; Hudson (n 4) p. 325 et seq.176Andreas Føllesdal, ‘EU Legitimacy and Normative Political Theory’ in Michelle

Cini and Angela K. Bourne (eds), Palgrave Advances in European Union Studies(Palgrave 2006) pp 151–173 p. 172.

177Even though this is sometimes called ’equality’ (Martin (n 124) p. 553, the principleis more aptly named ‘fairness’ (Paul Todd and Gary Watt, Cases & Material onEquity and Trusts (4th edn, Oxford University Press 2003) 450), since it does notpertain to formal equality, but to appropriate treatment. ‘Fairness’ in fiduciarylaw is also often used by referring to more substantive distributive justice: cf, forinstance, the examples given in J.C. Phillips, ‘Some Instances of the Trustee’s Dutyto Act Fairly Between Different Classes of Beneficiaries’ (1977) 10(1) University ofQueensland Law Journal pp 83–101. Here, I refer to the more procedural aspects offiduciary fairness.

178Cf Re Beloved Wilke’s Charity [1851] EWHC Ch J52, (1851) 42 ER, 334, speaking ofhonesty, integrity and fairness and Nestle v National Westminster plc (1) [1988],[2000] WTLR, speaking of prudence and fairness.

179Langbein (n 105) p. 939. In corporate law, the requirement of ‘fairness’ appearsto have somewhat eclipsed the requirement of loyalty, as disinterestedness hasreceded in the debate. Instead of a prohibition of self-interested action, which iswhat ‘disinterestedness’ would require, the standard is now one of ‘fair dealing’. CfE. Mitchell Lawrence, ‘Fairness and Trust in Corporate Law’ (1993) 43(3) DukeLaw Journal pp 425–491. In this understanding, ‘fairness’ refers to the relationbetween the fiduciary and the subjects of its decision and balances the interests ofthe fiduciary with the interests of the beneficiary. The way I use fairness accordsmore to trust law. It presupposes a heterogeneous group of subjects, and balancesthe relation of the fiduciary to one with the relation of the fiduciary to another. Theinterests to be weighed are then those of differing groups of subjects.

180Cf Case 191/82 FEDIOL v Commission of the European Communities [1983] ECR

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their own.181

A fiduciary is under a duty to maintain fairness between the subjectsof its decisions. This includes the prohibition on favouring one beneficiaryover another,182 but also the power to take into account all considerationswhich are considered relevant to the situation of the beneficiary – suchas distinctions in resources and needs.183 Sometimes the requirementto act fairly has been reduced to the requirement to take all and onlyrelevant considerations into account,184 instigating that where this hashappened, no unfair decision could result. In such an argument, the needof beneficiaries, or other forms of (moral) entitlement, are defined as partof the ‘relevant consideration’.

Fairness is already a concern in administrative law doctrine,185 even if itis rarely invoked in EU administrative law outside quasi-judicial settingsand individual decisions. The concern that is summarised by ‘fairness’ isthat everyone should be treated in the way that is their due,186 as justifiedby their status or relation to the administrative body (for example ascitizens) or as justified by features specific to them, such as their specificvulnerabilities and needs.

This fairness/ inclusivity question translates in the case of the Commis-sion adopting delegated and implementing acts into the inquiry of howthe Commission researched and took into account all relevant interests.In simpler words, this is the question of ‘who did the Commission talk to’and ‘how did this contact impact the rule-making process’? Behind thisquestion is the argument that not all possible distributions of contact/

02913 (ECLI:EU:C:1983:259) para 30, Case C-301/87 French Republic v Commissionof the European Communities [1990] ECR I–351 (ECLI:EU:C:1990:67) para 31.

181Edge v Pensions Ombudsman [2000] Ch 602, Gisborne v Gisborne (1877) II AC, ReBeloved Wilke’s Charity (n 178). This often takes the form of the declaration byjudges that they will not interfere with the exercise of discretion by a trustee, wherethis discretion was properly exercised. See: Ashdown (n 8) 837.

182Lloyds Bank plc v Duker and others [1986] S.N. 3857, (1987) 1 WLR.183Nestle v National Westminster plc (2) [1992] EWCA Civ 12, (1993) 1 WLR, 1279 et

seq per Staughton LJ. This judgment leaves some room as to whether it is withinthe powers of the fiduciary to make such consideration or whether it is bound tomake such considerations.

184Edge v Pensions Ombudsman (n 181) 627 et seq per Chadwick LJ.185Denis Galligan, Due Process and Fair Procedures: A Study of Administrative Proce-

dures (Oxford University Press 1997).186ibid p. 52 et seq.

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no contact or impact/no impact between the different kinds of interestsare appropriate. Even though the duty of fairness can hardly be used toprescribe specific contacts or impacts, fairness serves as a yardstick againstwhich the Commission should justify that specific contacts or impacts areappropriate.187

5.3.2 Procedural Transparency

How should requirements of fairness be operationalised? Where fairnessmeans that the interests and needs of all beneficiaries must be balancedand that the obligations of loyalty towards one group must not be fulfilledat the cost of disregarding the obligations of loyalty to another group,an operational mechanism for fairness needs to safeguard the balance ofinterests and commitments in the decision-making process.

Despite the wide-spread agreement on the relevance of fairness, thereare no universal determinants of the fairness of a process. In the words ofAG Tizzano “fairness is by its very nature an open concept conveying ageneral principle of appropriateness and balance, and leaving considerablediscretion to whoever has to apply it.”188 Rather, which specific mecha-nisms can cater to a fair process depends on the context of the decisionto be made.189

This dependency on context means that requirements of fairness for theadoption of delegated and implementing acts can hardly be prescribed ina general way. Even though ‘fairness’ can of course, and possibly should,be laid down as a requirement for adoption procedures in the Treaties orlegislation, this alone would remain too vague. Leaving enforcement to theCourts can easily result in one of two equally undesirable outcomes. Oneoutcome is the fairly unrestrained judicial activism rejected in the call oflimits to the legal application of norms of procedural justice to (quasi-)judicial settings. Another outcome and an attempt to avoid this judicial

187For a more elaborate argument for such an open use of fairness, see also Theresa A.Gabaldon, ‘Feminism, Fairness and Fiduciary Duty in Corporate and Securities Law’(1995) 5 Texas Journal of Women and the Law pp 1–36.

188Case C-245/00 Stichting ter Exploitatie van Naburige Rechten (SENA) v NederlandseOmroep Stichting (NOS) [2002] ECR I–1253 (Opinion of AG Tizzano) para 33. TheAG with this statement summarised the views prevalent among EU Member States.

189Tom R. Tyler, ‘What is Procedural Justice?: Criteria Used by Citizens to ASssess toFairness of Legal Procedures’ (1988) 22(1) Law & Society Review pp 103–135.

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activism is for the Court to practice a more ‘hands off’ approach whichcould result in the provision in fairness being emptied of any substanceand thus unenforceable. Instead, a mechanism for fairness should notfocus on simply prescribing fairness, but must instead make the value offairness enter the decision-making process of the Commission. Fairnessshould be instantiated and proceduralised, not simply prescribed.

This procedural mechanism is required to cater for a variety of situations.Such situations include the regulation of a field involving in effect a handfulof manufacturers in relation to a wide range of consumers (such as inthe energy sector), but also situation of very wide-spread production anduse (such as in the case of agricultural products). Likewise, situationsin which Member States deal with large industrial complexes (as in thefield of state aid) call for different procedures than situation where largecompanies interact with individual citizens (such as in the field of consumerprotection), to name just a few possible constellations. The context ofinteraction and the dynamics in which differing interests interact differfor all these situations and make it likely that they require differentmechanisms to ensure fairness.

Instead, given the very wide variety of contexts concerning the politicaland economic situation as well as concerning scientific (un)certainty, theCommission needs to be free to adjust its rule-making processes to thesituation, precisely to be able to cater for fairness. The proceduralisationof fairness then needs to take place at a ‘meta-level’; the search is for amechanism which makes the Commission chose a procedure which is fairin the specific case at hand.

Fairness requires that all interests and needs are taken into accountappropriately. One of the most important aspects of procedural fairness isthat of ‘voice’,190 of being heard (if not having a say) in the decision-makingprocess. Processes will be judged as more fair if there was opportunity forall sides to voice their concerns.191

190This concept is taken originally from Hirschman (n 85), but it has been adopted bythe procedural fairness literature: E. Allan Lind, Ruth Kanfer, and P. ChristopherEarley, ‘Voice, Control, and Procedural Justice: Instrumental and NoninstrumentalConcerns in Fairness Judgments’ (1990) 59(5) Journal of Personality and SocialPsychology pp 952–959.

191This accords to the legal principle of ‘Quod omnes tangit, omnibus tractari debet’(all those affected should be heard)). For some explanation of this principle, cf Basde Gaay Fortman, ‘Quod omnes tangit...’ in Rik Torfs (ed), Canonical Testament

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In processes involving such wide-spread and often dispersed interestsas the adoption processes for delegated and implementing acts, fairnesscannot rely as strongly on voice as in smaller scale processes,192 but mustalso take account of groups which cannot so easily voice their concerns.193

This is why fairness is not necessarily best served by participation rightsas those are likely to be exploited disproportionately by well-resourcedand organised interest representations, and will be largely inaccessible todispersed and unprivileged interests.194

More broadly, fairness as a matter of procedure appears in practiceto be manifest in the justification of a specific group’s treatment in thedecision-making process. Fair treatment and evidence of the decision

(Peeters 2004) pp 23–45 p. 31 et seq, who also elaborates on how the aspect ofapprobation has been dropped from this principle. For criticism of this principle(in the light of its relevance for deliberative processes), cf Niklas Luhmann, ‘QuodOmnes Tangit: Remarks on Jurgen Habermas’s Legal Theory’ (1996) 17 CardozoLaw Review pp 883–899.

192Much of the literature in social psychology refers to smaller scale decision-makingprocesses within departments of organisations or referring to one case before aCourt.

193Stewart (n 132).194But see for the opposite view, i.e. that participation rights to cater for more inclusive

access, Mendes, Participation in EU Rule-Making (n 144) p. 36 et seq. I agreewith Joana Mendes that participation rights cater for efficiency (where individualinterests are disregarded) and can form defence rights for individuals (ibid, p. 32 etseq). However, the way that the the beneficiary’s interests enter into my fiduciaryperspective is different. In my view, the differing interests of differently affectedgroups do play a role and should not necessarily be aggregated into the publicinterest. At the same time, because of the way that persons are vulnerable to theCommission’s action and because of the way that the Commission’s authority relieson these persons’ trust and deference, they cannot, and should not be expected todefend themselves where the Commission is in error. The reliance on individualdefence is counter-productive to the persons subject to Commission acts deferringauthority to the Commission, as it presupposes a stance of suspicion, not trust (foran elaboration of the juxtaposition of suspicion/control and trust in administrativemechanism, see also Vigjilenca Abazi and Eljalill Tauschinsky, ‘Reasons of Controland Trust: Grounding the Public Need for Transparency in the European Union’(2015) 11(2) Utrecht Law Review pp 78–90). This is why, even though participationrights might cater for greater fairness in specific cases, it is not wise to rely onthis mechanism for doing so as a matter of structure. Additionally, even thoughparticipation rights can be rights of self-defence, this does not mean that the everyperson’s interests are already adequately defended as soon as there are strong rightsto participation.

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makers’ regard for that group or individual would often overlap.195 Astarting point might be the assumption of equal treatment being justifiedand respect being evidenced by participation rights. However, both ofthese assumptions are clearly rebuttable by reasons of appropriateness.

It is not possible to specify beforehand how the different interests shouldbe incorporated for delegated and implementing acts across all policyareas and across their various function in the policy regime. Instead,the Commission should be required to specify that this incorporationhas taken place, and how. This sort of ‘procedural transparency’, i.e.information about the processes of decision-making – about how theCommission arrived at the problem definition it based its act on, andhow it reached the solution it ultimately adopted – serves as evidence ofhow the Commission incorporated which interests. An important part ofthis information is certainly procedural; referring to the interlocutors andfora in which problem definitions and options for solutions were solidified.Another aspect is that of the disciplining effects of such justification.196

In this way, the Commission remains free to choose those processes thatare appropriate to the case at hand. At the same time, the Commissioncan be assessed according to its reasoning of why a specific constellationwas appropriate to a case.

Because people overwhelmingly value fairness, the Commission’s ad-herence to fairness can be improved by improving public scrutiny of thebalance of interests and commitments bearing on the process of adoptingdelegated and implementing acts. At the same time, this reasoning opensa way for the Court to assess the fairness of the adoption process withoutdeeply interfering in the decision-making process itself. The assessment ofthe justification of the adoption process does not need in depth of reviewto differ from the assessment of, for example, the justification of the legalbasis of an act.

This link to justification suggests the requirement of reasons for legalacts as an instrument for procedural fairness.197 I will write below more on

195Mashaw, ‘Administrative Due Process: The Quest for a Dignitary Theory’ (n 174).196In this vein, Hans-Hermann Scheffler has argued that the duty to give reasons can

cater for the administrative duty to treat all equally (Gleichbehandlungspflicht):Scheffler (n 146) p. 51. This duty is now enshrined in Art. 9 TEU.

197For this link, see also Patrick Neill, ‘The Duty to Give Reasons: The Opennessof Decision-Making’ in Christopher Forsyth and Ivan Hare (eds), The GoldenMetwand and the Crooked Cord: Essays in Honour of Sir William Wade QC

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the instrument of reason-giving to achieve better justification of adoptionprocedures for delegated and implementing acts.198

5.4 Summary

Loyalty is a very important value of democratic, federal cooperation.Loyalty is also the legal duty corresponding to the requirement of trust-worthiness in relationships of institutional trust. Important as the generalduty of loyalty is, its effect depends on its operationalisation through legalprocedures. This proceduralisation was the subject of this chapter. Thischapter describes the conditions for justifying the Commission’s powerswithin their relational context. A fiduciary’s powers are justified by itsloyalty towards the persons subject to these powers.

EU law already puts the Commission under a duty of loyalty, one whichmight very well be understood in fiduciary terms. However, this duty isnot owed to the subjects of its delegated and implementing rule-making.The Commission’s duty of loyalty formally includes only loyalty towardsthe other institutions and the Member States, not the persons subject todelegated and implementing acts.

A duty of loyalty towards the persons subject to delegated and im-plementing acts should be conceptualised as a duty of disinterestednesson the one hand, and a duty of fairness on the other. Disinterestednessand fairness work disloyalty caused by self-interest or instrumentalisationthrough particularised interest.

A mechanism to cater for disinterestedness is a requirement on theCommission to give an account of its motives. As disinterestedness ismainly dependent on a fiduciary’s motivation, and not on the achievedresults, it is this motivation that the Commission should signal in orderto show loyalty and gain trustworthiness.

A mechanism for fairness is greater transparency of who is included inthe adoption processes of delegated and implementing acts. While thisdoes not directly guarantee procedural fairness, this additional requirementof openness enables a debate about the parameters of procedural fairnessand allows for the Commission to show how it implemented its idea of

(Oxford University Press 1998) pp 161–184.198Cf section 6.2.

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5.4 summary

fairness in a given process.The above thus described what the fiduciary duty of loyalty is and

what procedural structures can implement this duty. These proceduralstructures then should be set to take effect in the relationship mapped inchapter 4 above to come to a better understanding of how Commissionloyalty can be accomplished in the adoption of delegated and implementingacts. This will be the subject of the following chapter.

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6

A Loyal Commission

How can a Commission duty of loyalty towards the persons subject to itsrule-making be implemented? This implementation is the concretisationof the conditions for justification of the Commission’s powers.

In the previous chapters, I have explained why and how the Commissionshould be regarded as a fiduciary of the persons subject to delegated andimplementing acts. This does not mean that, as a result, the Commissionis subject to the typical fiduciary duties of not making a profit from officeor other duties established in trust law or corporate law in common lawcountries. Rather, it does mean that the Commission owes a duty ofloyalty to the persons subject to its authority.

I have argued that recognising a Commission duty of loyalty as flowingfrom its fiduciary position means recognising two connected resultingduties, that of disinterestedness and that of fairness, both regardingdecision-making procedures (and their evaluation).1 Disinterestednessshould be operationalised through a mechanism which makes the Commis-sion reflect on its motives, and fairness should be operationalised througha mechanism which brings greater transparency to the influence of thevarious interests on the decision-making process.

The prohibition of self-interested action appears at the outset somewhatalien to EU law, even though similar public law principles, particularlyimpartiality, are a part of EU administrative law. Indeed, from the

1Cf chapter 5.

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fiduciary perspective it is noticeable that EU public law does not appearto have a very clear conception of ‘interests’. However, ‘interests’ are atthe heart of loyalty and ultimately at the heart of how the Commissionneeds to relate to the persons subject to its acts to justify its authority.

‘The Commission is required to navigate the (various) interests of thepersons subject to its powers, even though it is not representing any ofthese interest. The question of interests nevertheless is the question which‘master’ the Commission serves. The duty of disinterestedness expressesthat the Commission must not be entirely autonomous, but is tied tothese persons through its public mandate.

As it is not an easy matter not to be one’s own master, the Commissionshould be careful to guarantee its reflection on the interests which motivateits rule-making. A number of changes in the adoption process are possible,which could make expert groups or other consultative fora into a devicewhich provides this reflection.

A call for fairness in delegated and implementing decision-making is nota radical innovation. Fairness of decision-making has long been called forby academics2 as providing an alternative to representational mechanismsof legitimation. Fairness in this sense means more wide spread andinclusive participation of stakeholders.

Both disinterestedness and fairness find their expression in justificatorypractices. Its connection to motivation makes loyalty hard to verify. Loyalor disloyal behaviour is can hardly be determined unambiguously. For thisreason, it is a part of the duty of loyalty to also provide evidence of thefiduciary’s loyalty. This is why some form of accountability is part andparcel of fiduciary obligations. Fairness likewise requires not only evenhanded and moral decisions, but also evidence of this even handedness.This is of particular importance in connection with the expectation thatloyalty will contribute to trustworthiness. Loyalty can only generateinstitutional trust where it can be observed by those who are expected totrust the Commission.

In this chapter, I will inquire into which mechanisms these could be inthe adoption of delegated and implementing acts. EU (administrative)law is is to some extent sensitive to the concerns of shaping and directingthe Commission’s exercise of discretion, and some of the instruments in

2Renaud Dehousse, ‘Comitology: Who Watches the Watchmen?’ (2003) 10(5) Journalof European Public Policy pp 798–813, p. 807.

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6.1 making the commission disinterested:accounting for motives

place connect to what is necessary for a mechanism to reflect on motivesand of a mechanism to make procedures more transparent. While none ofthe existing legal mechanisms are able to cater fully to the requirements offiduciary disinterestedness and fairness, they do provide points of contactfor integrating more targeted legal mechanisms.

6.1 Making the Commission Disinterested:

Accounting for Motives

Before elaborating on which mechanism of EU law can cater for disinter-estedness through the Commission’s account of motives, it is necessary tofirst delve a little deeper into what accounting for ‘motives’ means. I haveelaborated above that ‘account’ involves an explanation or ‘reflection’ onits motives by the Commission, as well as a (critical) response thereof bysome independent forum.3 Yet, what are ‘motives’?

The question of motives is usually the question of ‘why’, although notevery such question refers to motives. Instead it might be helpful toconceive of ‘why’ questions (and answers) in a layered way. The firstlayer is the act itself, the second the connected ‘intent’ and the third thecorresponding ‘motives’.4 To give an example of their relation, when theCommission forbids the use of a specific chemical and thereby restricts itsavailability,5 the intent could be to protect the health of population or

3See 5.2.2.4Cf Don Welch, ‘Removing Discriminatory Barriers: Basing Disparate Treatments

Analysis on Motive Rather Than Intent’ (1987) 60 Southern California Law Reviewpp 733–782; Colin Campbell, ‘On the Concept of Motive in Sociology’ (1996) 30(1)Sociology pp 101–114. Some authors prefer a three layered analysis: Walter J. Blum,‘Motive, Intent, and in Federal Income Taxation’ (1967) 34(3) University of ChicagoLaw Review pp 485–544. However, the greater the number of layers the moredifficult the categorisation in each individual case.

5For example, by removing it from an Annex which contains active substances whichmay be traded on the internal market, or adding restrictions to its permissibleuse. Cf Commission Implementing Regulation (EU) No 485/2013 of 24 May 2013amending Implementing Regulation (EU) No 540/2011, as regards the conditions ofapproval of the active substances clothianidin, thiamethoxam and imidacloprid, andprohibiting the use and sale of seeds treated with plant protection products containingthose active substances [2013] OJ L139/12; Commission Delegated Directive (EU)2015/863 of 31 March 2015 amending Annex II to Directive 2011/65/EU of theEuropean Parliament and of the Council as regards the list of restricted substances

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the environment, but could also be to fulfil a legal mandate. The motivecould be to prevent harm of the population, or could be to protect theefficiency of the labour force; or could be to avoid legal liability or to servethe ‘will of the people’. The motives are thus at the end of a series of‘why’ questions. Given any observable phenomenon, the question what didyou do? relates to (purposeful) action, the question what is the appeal ofthis action? or what is the goal of this behaviour? relates to intent, andthe question why is this your intention? or why does this goal matter?relates to motives.

In the present case, this distinction is relevant to clarify what disinter-estedness is based on. Disinterestedness is not a function of a purposefulaction, but instead it is connected to motive.6 In the above example,the purpose of restricting the availability of a specific chemical couldbe based on self-interested motives (i.e. the avoidance of legal liabilityor the increase of bargaining power for the Commission) as well as ondisinterested motives (i.e. service of the ‘will of the people’ or protectingthe people from harm). A legal mechanism which focuses on purposes isunlikely to be able to contribute to the distinction between disinterestedand self-interested action.

However, this example also shows that there is no clear separationbetween purpose, intent and motives, and especially in popular usage theseterms are often poorly differentiated.7 While there should be a logicalconnection between motives, intent and purpose, ‘reverse engineering’them – making inferences of the intent from a known purpose, makinginferences as to motives from a presumed or known intent – becomes moredifficult with each layer.8 While purposes connect relatively well to anact, intent cannot usually be concluded from the act itself. Even whenthe purpose is known, several intents are possible, which are not evennecessarily closely related to each other. The same is even more true for

[2015] OJ L137/10.6Lionel Smith, ‘The Motive not the Deed’ in Joshua Getzler (ed), Rationalizing

Property, Equity and Trusts: Essays in Honour of Edward Burn (Butterworths2003) pp 53–80; Stephen R. Galoob and Ethan J. Leib, ‘Intentions, Compliance andFiduciary Obligations’ (2014) 20(2) Legal Theory pp 1–27.

7These terms are also conflated in scientific literature. Cf Campbell (n 4).8Galoob and Leib (n 6) n. 19. This is the main argument against a ‘subjective’ evalu-

ation of reasons for action. Cf Martin Shapiro, ‘The Giving Reasons Requirement’in (1992) pp 179–220 p. 207.

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motives; the motives which possibly attach to one and the same act aremyriad. At the same time, a specific act might fulfil several purposes,an act might have several goals. These purposes attach to a number ofintents at the same time, and intents can relate to a number of motives.Thus, while there is only one act, there might be several motives for it.

The situation is even further complicated when taking into account thedifference between decision-making of (natural) persons and of organisa-tions.9 Thus, within an organisation an act does not have a single ‘author’,but rather is the outcome of a decision-making process which involvesdifferent persons and interests connected through a specific structure, sothat even if an act is adopted by consensus, but with a vote involving 10parties, it might be thought to serve 10 different interests. Consequently,it might be difficult to identify those persons and their acts and decisionswhich represent an organisation’s acts and decisions,10 and if an act ordecision is made by more than one person, to determine the correlatingintent or motive.11

All this makes the inquiry into motives difficult, at least in as much asthis is the search for a ‘true’ motive. The inquiry into motives comes closeto being a ‘political question’, in that it relates to questions regarding theinstitutional context in which legal decision are taken and is fraught withproblems of validation, as motives are rarely open to falsifiable empiricalanalysis.12

9ibid, p. 207.10This problem is well-known in criminal law, which likewise works with a ‘layered’

construction of volition, where it is phrased as the ‘identification principle’. AndrewAshworth, Principles of Criminal Law (Oxford University Press 2009) p. 149 et seq.

11In German criminal law, it is this very argument of incapacity to act with ‘Vorsatz’and to therefore be culpable, that has traditionally put legal persons beyond thereach of criminal law proper. Gunther Jakobs, Strafrecht, Allgemeiner Teil (2nd edn,De Gruyter 1991) p. 148 et seq. However, Jakobs argues that the categories of(objective) culpability are not sufficiently different between natural and legal personsto justify this. Also, UK criminal law does recognise criminal acts of incorporatedpersons. Problems of ascertaining intent in organisational and multi-party decision-making are also known (and overcome) in competitions law (Okeoghene Odudu,‘Interpreting Article 81(1): Object as Subjective Intention’ (2001) 26(1) EuropeanLaw Review pp 60–75), even though also here the relevance of subjective intent canbe criticised (Pinar Akman, ‘The Role of Intent in the EU Case Law on Abuse ofDominance’ (2014) 39(3) European Law Review pp 316–337).

12Todd J. Friedbacher, ‘Motive Unmasked: The European Court of Justice, the FreeMovement of Goods, and the Search for Legitimacy’ (1996) 2(3) European Law

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At the same time, it is important to realise that it is often not possibleto determine the ‘true’ motive behind an act, but that any inquiry islikely to be limited to questioning whether a fiduciary not motivated byself-interest would have acted in the way the Commission actually didact.13

When accepting only one, prescribed, motive, there is a danger thatthe inquiry into motives might become a futile exercise which simplymakes the Commission ritualistically confirm its democratic dispositionand altruist motives, without necessarily having any effect on discipliningCommission decision-making.

This is exactly why accounting, i.e. a process involving a critical other,is important for affecting motives. It is also the function of this otherto prevent ritualistic repetition and to inquire into how the professedmotivation influenced a specific act.

6.1.1 Accounting for Motives in EU law

In EU law, there is no positive obligation of disinterestedness (or expressprohibition of self-interest) applicable to the Commission when adoptingdelegated or implementing acts. While the Commission is charged withprotecting the Union’s interest, there is no clear obligation at the sametime to disregard self-interest. However, there are a number of EU lawmechanisms which touch upon the question of which motives underlie aspecific act of the Commission.

In EU law, motives play a role mainly where an institution is challengedbefore the Court because of wrong motives; acts of the institutions can beinvalidated by the Court where they constitute an abuse of powers andabuse is defined as an institution acting with ulterior motives.14 Implicitly

Journal pp 226–250.13The relevant of practical limitations here is the same as those in the debate between the

possibility and desirability of reviewing the exercise of administrative discretion basedon objective versus subjective factors. For an overview of this debate, cf AgustınGarcıa Ureta, ‘Misuse of Powers as a Ground for the Annulment of Community Acts:a Case Law Approach’ XIII(3-4) Rivista Italiana Di Diritto Pubblico Comunitariopp 775–809, p. 783 et seq.

14More specifically, abuse of powers is defined as action “to have been taken solely, or atthe very least chiefly, for ends other than those for which the power in question wasconferred or with the aim of evading a procedure specifically prescribed by the FEUTreaty for dealing with the circumstances of the case”: Case C-146/13 Kingdom of

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this means that the institutions, in order to not abuse their powers, mustseek to attain the aims of the Treaties or a more specific mandate fromwhich they derive their powers. Acting with the right motive is to bedifferentiated from overstepping the formal boundaries of a mandate. Ifthere were no such differentiation, then an allegation of abuse of powersand an allegation of ultra vires action would have the same materialcontent.15 Instead, there are two different allegations in EU law as in thelaw of Member States.16

However, the extremely restricted use17 that the Court makes of thisground for annulment of EU legal acts makes it a very ineffective mech-anism to discipline the Commission’s pursuit of interests. As the Com-mission is very unlikely to be found to have misused its powers, the(theoretical) possibility that it might be found to have done so, might notexert much influence on its decision-making process.

At the same time, the reluctance of the Court to find misuse18 is notthe only relevant factor. It is just as salient that the Court has notshaped the doctrine into an instrument apt to ascertain which intereststhe Commission actually pursued by an act. A case in point here is thatthe Court does not necessarily reprove questionable motives. In its first

Spain v European Parliament and Council of the European Union (2015) electronicreports of cases: Court reports – general (ECLI:EU:C:2015:298) para. 56.

15Ultra vires allegation and abuse of powers allegations can overlap depending on themandate. In theory, a mandate could settle not only the purpose of an act, butcould go as far as specifying a mandated motive. In such a case, an ulterior motivewould be both an abuse of power as well as an ultra vires action. However, mandatesoften enough fall short of clearly stating the legislative intent and are even less likelyto specify the motive that the delegated or implementing rule-makers are supposedto espouse.

16Jurgen Schwarze, European Administrative Law (Sweet and Maxwell 1992) chs. 2and 3.

17Already in 1975, AG Warner noted that misuse of powers has been ‘often pleadedand seldom proved’: Case 105/75 Franco Giuffrida v Council of the EuropeanCommunities [1976] ECR 1405 (Opinion of AG Warner, ECLI:EU:C:1976:109) p.1405, even though this case is one of the rare instances of the Court indeed findinga misuse of powers by an EU institutions: Case 105/75 Franco Giuffrida v Councilof the European Communities [1976] ECR 01395 (ECLI:EU:C:1976:128) para 18.Such findings have not increased in frequency since this time.

18Such a finding easily smacks of a condemnation of the act in question, giving thefinding of the Court at the same time moral and political overtones. Cf Schwarze,EU Administrative Law (n 16) p. 415.

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case, the Court already held that even if the Commission has acted forimproper reasons, its simultaneous pursuit of legitimate reasons savesan act from invalidation.19 Thus it appears that, as long as an act canreasonably be understood to achieve the objectives of the Treaties orthe specific delegation of powers, even a situation in which it can beproven that the Commission also pursued illegitimate interests, such asself-interest, does not make it an abuse of powers according to the CJEU.20

In this way, the abuse of powers doctrine does not provide a very effectivemechanism to promote the Commission’s disinterestedness.

Another mechanism of EU law which can be connected to an inquiryinto the motives of the Commission is the requirement to give reasons.21

This requirement is often thought to be a declaration of the institutionsmotives.22 In the reasons for an act, the responsible institution(s) will layout why an act is necessary and what they hope to achieve with it.

Such reason-giving requirements can work towards accounting for mo-tives in as much as the Commission, before it adopts those reasons, reflectson their accuracy, their meaning and their context.23 The Court connectsthis duty to give reasons with the judicial review of the Union acts, as thesereasons allow it to “ascertain the circumstances in which the Commissionhas applied the Treaties”.24 However, the current duty to give reasonsfalls short of an inquiry into the motives presented by the Commission.Instead of motives, it requires a statement of the factual and legal groundsof a decision, and instead of reflection, it provides only for dissemination.

Thus, the reason-giving requirement of EU law falls short of givingthe institution’s motives for a decision, because the description of factsand legal basis are not a description of reasons that is comprehensive

19Case 1/54 French Republic v High Authority of the European Coal and Steel Commu-nity [1954] ECR 7 (ECLI:EU:C:1954:7) p. 18.

20So also Garcıa Ureta (n 13) p. 792.21Consolidated Version of the Treaty on the Functioning of the European Union [2010]

OJ C83/47 (TFEU) art 296.22Cf 5.2.2, see also Christian Calliess, ‘Art. 296 EUV [Gemeinsame Grundsatze fur

die Rechtsakte der Union]’ in Christian Calliess and Matthias Ruffert (eds), EUV/AEUV Kommentar (4th edn, Verlag CH Beck 2011) pp 2504–2515 p. 2507.

23Cf Paul Craig, EU Administrative Law (Oxford University Press 2012) p. 340.24Case 24/62 Federal Republic of Germany v Commission of the European Economic

Community [1963] ECR 131 (ECLI:EU:C:1963:14) para 69. This link to reviewcan also be read as turning an originally procedural requirement into a substantiverequirement. Cf Shapiro, ‘The Giving Reasons Requirement’ (n 8) p. 201 et seq.

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enough to refer to the interest which an act serves. Facts and purposeprovide answers to the questions of what does this act do?, but not toquestions about intent (i.e. its goal; ends sought) or motive (i.e. contextof the goal; value of the end sought). The categorisation of a reason intopurpose, intent and motive is in no way clear cut; it is often impossibleto unambiguously categorise reasons. Nevertheless, the reason-givingrequirement of EU law focuses on the ‘lower tier’ of the purpose – intent– motive ladder as it is often satisfied by a description of purpose withgeneral references to intent. Because of this, it is only incidentally able toachieve insight into the motives behind a rule-making exercise.

This is readily evident when looking at the form these reasons take indelegated and implementing acts. They focus on problems and solutions,25

and on the formal procedures which the Commission is under a duty tofollow,26 but they do not mention the greater relational (or normative)

25See, for example:

In recent years some cases of fraudulent use of official labels have beendetected. The security of the official labels should therefore be improved,in line with the currently available technical knowledge, to ensure thatsuch fraudulent practices are avoided. In this view, and in order toallow the competent authorities to better record and control the printing,distribution and use of individual official labels by operators, and totrack seed lots, the security of the official labels should be improvedby introducing an officially assigned serial number in the official labels[...](Commission Implementing Regulation (EU) 2016/312 of 4 March2016 correcting Regulation (EU) No 37/2010 as regards the substance‘tylvalosin’ [2016] OJ L60/3)

While this describes the act (introduction of serial numbers), the purpose (increasesecurity) and in also intent (combat fraud), the question of why the Commissionseeks to combat fraud and why it seeks to combat fraud through introducing anofficial serial number on labels are not answered.

26See, for example:

[...]

(4) In accordance with Article 27(2) of Regulation (EC) No 470/2009, theCommission submitted to the European Medicines Agency (hereinafter‘EMA’) a request for extrapolation of the existing MRLs for gentamicinto other species or tissues.

(5) The EMA, based on the opinion of the Committee for MedicinalProducts for Veterinary Use, has recommended the extrapolation of theMRLs for gentamicin to all mammalian food producing species and finfish.

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framework in which they are taken.

Indeed, the reason-giving requirement might not be the right place toreflect on the Commission’s motivation. The very formal language oftenused and somewhat ceremonial form make it hard to imagine how anyextension of the reasons given with an act can give rise to real reflection onthe part of the Commission. These reasons take the form of a declarationor announcement. A mechanism for reflection is ill suited by this formas the formal character is not necessarily conducive to authenticity andsincerity, and the proclamation-like form is not conducive to reflection.27

A more dialectical form of reason-giving takes place during the adoptionprocess, when the Commission introduces a draft into an expert group ora Committee. As an early and ubiquitous step in the adoption process ofboth delegated and implementing acts, the Commission presents a draftto such a forum.28 Such consultations are the norm for both delegated

(6) Regulation (EU) No 37/2010 should therefore be amended accord-ingly. (Commission Implementing Regulation (EU) 2016/305 of 3 March2016 amending Regulation (EU) No 37/2010 as regards the substance‘gentamicin’ [2016] OJ L58/35)

The act (introduction of allowed levels of gentamicin in all mammal food sourcesand fin fish) is described, the purpose can be taken to be to broaden the use ofgentamicin. However the intent of this measure and its relevance are not alluded to.

27Thus, a more open form of language is more likely to produce internal effects: JohnRoberts, ‘The Possibilities of Accountability’ (1991) 16(4) Accounting, Organizationsand Society pp 355–368, p. 361. Cf also Amanda Sinclair, ‘The Chameleon ofAccountability: Forms and Discourses’ (1995) 20 Accounting, Organizations andSociety pp 219–237.

28In the case of delegated acts, expert group consultations were until recently governedby §4 of the Common Understanding (Common Understanding – Delegated Acts[2011] Council Document, 8753/11) and are now subject to Interinstitutional Agree-ment of Better Law-Making [2016] Council Document, 15506/15. This paragraphprovides that the Commission carries out “appropriate and transparent consul-tations well in advance, including at expert level”. Council and Parliament canrequest to attend these consultations. See, for example, the explanatory memoran-dum to Commission Delegated Act 2015/852: European Commission, ‘CommissionDelegated Regulation (EU) No .../.. of 27.3.2015 supplementing Regulation (EU)No 508/2014 of the European Parliament and of the Council as regards the casesof non-compliance and the cases of serious non-compliance with the rules of theCommon Fisheries Policy that may lead to an interruption of a payment deadlineor suspension of payments under the European Maritime and Fisheries Fund’ (Ex-planatory Memorandum) C(2015) 1984 final. The Common Understanding does notspecify anything further as to what the contend of these consultations is supposed

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and implementing acts.29 The involved expert groups or committees aremostly pre-established groups consisting of representatives of nationalauthorities as well as industry or interest group experts.

In principle, such an expert group (as well as other groups that dele-gated and implementing acts are presented to) might act as a forum for

to be.For example, in the case of Commission Delegated Regulation (EU) No 114/2013

of 6 November 2012 supplementing Regulation (EU) No 510/2011 of the EuropeanParliament and of the Council with regard to rules for the application for a derogationfrom the specific CO2 emissions target for new light commercial vehicles [2013]OJ L38/1 this was the ‘Commission Expert group for policy development andimplementation of CO2 from road vehicles’. The Expert group consists of Industryand Civil Society Organisations (5 members) and representatives from nationaladministrations (27 members). It has an advisory function only.

According to Article 3 of Regulation 182/2011Regulation (EU) No 182/2011 of theEuropean Parliament and of the Council of 16 February 2011 laying down the rulesand general principles concerning mechanisms for control by Member States of theCommission’s exercise of implementing powers [2011] OJ L55/13, the Commissionis required to submit a draft implementing act to a Comitology Committee. Whilethe provision specifies, for example, time frames for submission and discussion ofthe draft, it does not in any other way frame the inquiry of the Committee into thedraft act. Overall, the procedure envisaged by Art. 3 of Regulation 182/2011 isfocused on the text of the draft, referring to amendments to the text: ibid, art 3(4).While the Regulation envisages discussion on the draft and opinions about the draftact, it is unclear whether they should go further than the text of the draft andinclude a justification of the choices made and motivation for these choices.

In the case of Commission Implementing Regulation (EU) No 354/2013 of 18 April2013 on changes of biocidal products authorised in accordance with Regulation (EU)No 528/2012 of the European Parliament and of the Council [2013] OJ L109/4, thiswas at a meeting of the ‘Representatives of Members States Competent Authoritiesfor the implementation of Directive 98/8/EC concerning the placing of biocidalproducts on the market’. It should be noted that the title of this group is erroneousin two ways. Firstly, the group no longer only concerns Directive 98/8/EC, as thisdirective has been supplemented by Regulation 528/2012, on which the implementingact I researched is also based on (Regulation (EU) No 528/2012 of the EuropeanParliament and of the Council of 22 May 2012 concerning the making available on themarket and use of biocidal products [2012] OJ L167/1). Secondly, it is clear from theminutes of the meetings that the attendance is not solely restricted to Member Statesrepresentatives, but that industry representatives are also able to participate in itsdiscussions. These have only observer, but not member status: http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&groupID=419 (lastvisited 30 May 2013) However, since no votes are taken, the difference betweenobserver and member status becomes very small.

29Cf section 1.2.

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accounting for motives.30 This is because these expert groups can serveas ‘outsiders’ given that their members normal ‘residence’ is within organ-isations outside the Commission and not dependent thereon. They arepresented with a draft of the act and are in dialogue with the Commission.The expert groups usually publish minutes on their meetings, but theirworking methods appear relatively open and flexible.31 It appears quitepossible that the question of motives could be a part of the conversationabout an act.

However, it is doubtful whether these ‘experts’ and the Commission arereally independent of each other. In the case of Civil Society Organisations,it is an open secret that quite a number of the Civil Society Organisationspresent in Brussels are funded for a large part by the Commission itself,32

which thereby creates its own public. The case of industry experts posesa different, but no less salient problem, namely that the Commission findsit difficult to prove its independence from corporate interests in the faceof accusations of capture.33 Expert groups could nevertheless be of helpin as much as they are cast as the critical public to the Commission andnot a part of the latter.

30In a similar vein, literature sometimes treats the involvement of comitology committeesas an accountability mechanism. Cf Vihar Georgiev, ‘Too Much Executive Power?Delegated Law-making and Comitology in Perspective’ (2013) 20(4) Journal ofEuropean Public Policy pp 535–551. However, the inability of comitology committeesto sanction Commission action (unless an unfavourable opinion is already takenas adverse action) makes them come closer to my understanding of an account ofmotives than a typical definition of accountability. Regarding the link betweentypical notions of accountability and accounting for motives, see above section 5.2.2.

31Torbjorn Larsson, Precooking in the European Union: the World of Expert Groups(Stockholm, 2003). See also Accompanying document to the Communication fromthe President to the Commission : Framework for Commission Expert Groups –Horizontal Rules and Public Register [2010].

32Cf Justin Greenwood, ‘Review Article: Organized Civil Society and DemocraticLegitimacy in the European Union’ (2007) 37 British Journal of Political Sciencespp 333–357 For an overview over which Civil Society Groups receive how muchfunding, see Christine Mahoney and Michael J. Beckstrand, ‘Following the Money:European Union Funding of Civil Society Organizations’ (2011) 49(6) Journal ofCommon Market Studies pp 1339–1361.

33This problem is described generally in Philip H. Jos and Mark E. Tompkins, ‘TheAccountability Paradox in an Age of Reinvention: The Perennial Problem of Preserv-ing Character and Judgment’ (2004) 36(3) Administration & Society pp 255–281,p. 271 and Ernesto Dal Bo, ‘Regulatory Capture: A Review’ (2006) 22(2) OxfordReview of Economic Policy pp 203–225.

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Occasionally the Commission explains itself to an expert group. Forexample, in a Guidance Fiche to the expert group for the EuropeanMaritime and Fisheries Fund (EMFF), the Commission explained that itwas reacting to a report of the Court of Auditors, which had called forresponsive and short-term effective measures for cases of non-complianceby Member States.34 However, this explanation is relatively superficial, asit refers more to the purpose for action than its underlying motivation.In this it does not appear to add to the reasons given to discharge theobligations of Art. 296 TFEU.

At the same time, there is other documentation on expert group meetingswhich gives no indication of such explanations having taken place at all.Thus the minutes of the meetings of the Commission Expert group forpolicy development and implementation of CO2 from road vehicles, hardlymentions any discussion of the act to be adopted. Instead, the discussionappears to have been restricted to one participant mentioning that theywould like to submit comments (presumably in writing and at a latertime).35 While this does not disprove the occurrence of a dialogue onthe Commission’s motives, the fact that there is no visible proof of itsexistence makes it doubtful that the Commission does indeed account forits disinterestedness in these expert groups.

It appears that Committee members, especially of Comitology Com-mittees, see themselves as representatives of specific (regional) interests,as much as or more than supranational or independent auditors of theCommission’s action.36 Even though a draft can be changed a number oftimes, the discussion regarding changes can nevertheless evolve around theeffect of specific provisions on specific regional industries rather than a dis-cussion of the motivation of the Commission. While the Committee thus

34Guidance Fiche No 6: Cases of Non-Compliance with CFP Rules Leading to PossibleInterruptions and Suspensions (European Commission) [2013], p. 2/6.

35In the minutes of the meeting on 9 July 2012, the European Car ManufacturersAssociation noted that it was going to submit comments. ‘Summary Minutesof the Meeting of the Commission Expert Group for Policy Development andImplementation of CO2 from Road Vehicles’ CLIMA.C2/PO/IS/ Ares(2012), p. 3.

36Jarle Trondal and Frode Veggland, ‘Access, Voice and Loyalty: the Representation ofDomestic Civil Servants in EU Committees’ (2003) 10(1) Journal of European PublicPolicy pp 59–77; Morten Egeberg, Gunther F. Schaefer, and Jarle Trondal, ‘TheMany Faces of EU Committee Governance’ (2003) 26(3) West European Politicspp 19–40.

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does not necessarily act as the Member States jointly shaping the actionof the Commission, it is still likely to be a platform where each MemberState negotiates for results favourable to them individually. Committeesare then a form of participation rather than a form of accountability.37

However, taking part in accounting for motives as envisaged aboveshould not be connected to a process of (political) participation. Therole of an account holder presupposes characteristics which cannot befound in a party participating in the rule-making process. The role ofthe forum which aids in the reflection of the Commission presupposesneutrality, i.e. the understanding that the forum is not distorting theCommissions’ self-reflection by giving feedback that is instrumental to itsown goals. Similarly to judges, where an account holder is at the sametime a participant, its own actions fall under the suspicion of self-interest.Participation in the sense of influencing decision-making requires thedesire to further its own goals. As a result, those involved in a decisioncannot hold decision makers to account at the same time;38 the role of aparticipants cannot be reconciled with the role of an account holder.

Summing up, the expert group framing of consultations during theadoption of delegated acts appears, according to these insights based on thedocumentation available on these processes, better able to accommodatereflections on motivation than the comitology framing which prevalent inthe adoption of implementing acts. This holds in as far as expert groupssee themselves more as neutral outsiders and less as stakeholders withstakes to gain and lose in the decision-making process.

37It is noticeable that both ‘theoretical images’ of Comitology typically discussed,namely that of deliberative vs strategic negotiation settings, both focus on participa-tion rather than oversight. Cf Mark A. Pollack, ‘Control Mechanisms or DeliberativeDemocracy? Two Images of Comitology’ (2003) 36 Comparative Political Studiespp 125–155 or Jens Blom-Hansen and Gijs Brandsma, ‘The EU Comitology System:Intergovernmental Bargaining and Deliberative Supranationalism?’ (2009) 47(4)Journal of Common Market Studies pp 719–740.

38Richard B. Stewart, ‘Remedying Disregard in Global Regulatory Governance: Ac-countability, Participation and Responsiveness’ (2014) 108 American Journal ofInternational Law pp 211–270, p. 262.

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6.1.2 Accounting for Motivesin Delegated and Implementing Acts

Currently there does not appear to be a component of the procedure forthe adoption of delegated and implementing acts which is geared towardsan account of the motives of the Commission, or well suited for the task.

There appears to be a silent assumption that because the acts concern‘technical’ issues, the disinterestedness of the Commission can be taken asgiven; technical decision-making based on expertise is often regarded asneutral by its nature.39 This assumption should be questioned.40 Technicalmeasures can also touch upon the interests of the Commission, if not interms of substantive content, then in terms of procedures. Procedures areable to put a burden on the Commission or in turn empower it.

From the documents published, it does not appear likely that the expertgroups involved do indeed discuss the motives of the Commission. Whilethe Commission sometimes receives comments, it neither publishes themnor refers to them in any other way in subsequent meetings. Even ifthere are changes between the different versions of a draft throughout theadoption process, it not visible what specifically triggered these changesand what interest they correspond to.41

39Andrew Karvonen and Ralf Brand, ‘Technical Expertise, Sustainability and thePolitics of Specialized Knowledge’ in Gabriela Kutting and Ronnie D. Lipschutz(eds), Environmental Governance: Power and Knowledge in a Local-global World(Routledge 2009) pp 38–59 p. 41.

40As has been done in literature for decades: Cf, for example, James O. Freedman,‘Expertise and the Administrative Process’ (1976) 28 Administrative Law Reviewpp 363–378.

41Cf, for example, the changes made to “I/A” Item Note from the General Secretariatof the Council to Coreper/Council regarding Commission Delegated Regulation (EU)No / of 6.11.2012 supplementing Regulation (EU) No 510/2011 of the EuropeanParliament and of the Council with regard to rules for the application for a derogationfrom the specific CO2 emissions targets for new light commercial vehicles [2012],17168/12. Compare the first draft, to be found at: http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetailDoc&id=6681&no=4 (last visited23 May 2013), with ibid, 6(2). The revised act omitted some of the exemptionsof reporting requirements and required additional information on the power of theengines of vehicles and their power train configuration to be reported. Cf also thechanges between ‘[1st Draft of] Commission Implementing Regulation (EU) No .../..of XXX on changes to authorised biocidal products in accordance with Regulation(EU) No 528/2012 of the European Parliament and of the Council of 22 May2012 concerning the making available on the market and use of biocidal products’

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The fact that it is not possible to publicly observe that motives arebeing accounted for, is not proof that this accounting does not take place.However, this lack of publicity is nevertheless problematic. The problembecomes evident when recalling why the Commission should reflect onits motives. Commission disinterestedness is relevant as an aspect ofCommission loyalty to the persons subject to its acts. And this loyalty inturn is relevant to construct the authority of the Commission over thesepersons – to establish its legitimate ability to pass legally binding actswhich change the legal position of individuals. Because accounting formotives is ultimately aimed at establishing Commission trustworthinessor fiduciary loyalty towards the persons subject to its acts, it has to bepossible for these same persons to establish whether or not the Commissionhas in fact reflected on its motives, so as to exclude self-interested action.This does not mean that the accounting for motives should take placepublicly, but every person should be able to see whether the Commissionhad this conversation on motives with a reflective forum.

An aspect that plays a role here is that finding documentation ofexpert group or comitology meetings, such as minutes of the meetingsand preparatory documents, requires someone versed in the ways of theEU administration, who also has time on her hands to search variousdatabases for firstly, the adoption procedure of a specific act (i.e. specificson the consultations carried out), secondly the name of a likely expertgroup and committee, thirdly the databases in which documentation canbe found if available at all, and lastly the actual documents. Some ofthese databases, such as the one of interest groups, are only available afterregistration as an interested party.

Yet it is even more important to note that even where an interestedreader has achieved access to these documents, their perusal leaves herstill guessing about the motives of the Commission and the interests thata Commission act represents.

Better publication of the explanatory memoranda to delegated and

CA-Sept12-Doc.4.1 and ‘[2nd Draft of] Commission Implementing Regulation (EU)No .../.. of XXX on changes to authorised biocidal products in accordance withRegulation (EU) No 528/2012 of the European Parliament and of the Council’ CA-Dec12-Doc.3.6. The revised draft requires more information from the manufacturerto be provided with the application, while at the same time omitting the provisionstipulating that all changes not falling within a lighter category shall be deemed toconstitute ‘major’ changes.

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implementing acts as well as publication in these memoranda of at leastthe names of the groups and committees consulted (so as to enable furtherinvestigation into the discussions) and an indication of where furtherdocumentation would be available, would already be an important steptowards better publicity. This information is neither sensitive, nor hardto collect, nor would it increase the length of the explanatory memorandasignificantly. In summary, this would make such extension an easy butmeaningful step towards accounting for disinterestedness in the adoptionof delegated and implementing acts.

However, the inclusion of more information in these documents is stillinsufficient. Even though the minutes of the meeting leave much opento guesswork, there is nothing in them to support the conclusion thatthe motivation of the Commission is ever under consideration in thesediscussions on the draft act. Frequently, the internal conceptualisation ofthe process appears to be one of negotiation between differing private orregional interest, with the Commission as a neutral broker in the middle.42

At first glance, it appears logical to use ‘experts’ as the outside partythat can question the Commission’s motives. These experts should beboth sufficiently independent of the Commission as well as sufficientlyknowledgeable of the subject matter to be able to connect the Commission’sexplanation of motives to the substantive measure proposed.

The problem here is that in the world of EU delegated and implementingacts, there appears to be no discernible difference between ‘experts’ and‘stakeholders’. The experts staffing expert groups are often representativesof stakeholder organisations. While of course these representatives disposeof the necessary knowledge, they are themselves interested in the processand thus do not have the necessary distance for independence.

As discussed above, the desire to participate and influence to advanceself-interest is not compatible with the Commission’s need for reflection.The primacy of self-interest makes the constitution of the other, which isnecessary for the construction of a normative/ ethical problematic.43

42Cf Gijs Jan Brandsa and Jens Blom-Hansen, ‘The EU Comitology System: WhatRole for the Commission?’ (2010) 88(2) Public Administration pp 496–512, whichonly includes date from before 2006, see also Jens Blom-Hansen, ‘The Origins ofthe EU Comitology System: a Case of Informal Agenda-Setting by the Commission’(2008) 15(2) Journal of European Public Policy pp 208–226.

43Teri Shearer, ‘Ethics and Accountability: from the For-itself to the For-the-other’(2002) 27 Accounting, Organizations and Society pp 541–573; William Schweiker,

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At this stage it is only possible to point to some very general optionsfor improving the adoption process of delegated and implementing acts soas to better support Commission disinterestedness. In order to create amechanism which caters better for an account of motives, a shift in the roleof expert groups and Comitology Committees (away from participationand towards account holder) might enable them to be a more neutraland disinterested forum for reflection. At the same time, shifts in self-perception might actually be less feasible than the introduction of anew stage in the adoption procedure, involving a new forum, which, byits own independence from the process and its outcomes, is better ableto act as a reflective forum. This would have the disadvantage that itadds another element to an already complex adoption process. A thirdpossibility might be the more widespread use of impact assessments, whichcould provide a venue for an account of motives through their more openconsultation processes.44 The 2016 Inter-Institutional Agreement betweenthe Commission, Parliament and the Council,45 promises an increasein the use of impact assessment for delegated and implementing rule-making. This development might signal a policy shift towards greateruse of impact assessment for delegated and implementing acts. However,impact assessments would make adoption procedures for delegated andimplementing acts more complex, longer and requiring greater resourcesin staffing on the part of the Commission. It is questionable whetherthis would be feasible or desirable for the great bulk of delegated andimplementing decision-making.46

‘Accounting for Ourselves: Accounting Practice and the Discourse of Ethics’ (1993)18(2) Accounting, Organizations and Society pp 231–252.

44Impact assessment are already used for a small number of delegated and implementingacts. Cf the list of conducted impact assessments at http://ec.europa.eu/smart-regulation/impact/ia carried out/cia 2016 en.htm and Alberto Alemanno and AnneMeeuwse, ‘Impact Assessment of EU Non-Legislative Rulemaking: The MissingLink in ‘New Comitology’’ (2013) 19(1) European Law Journal pp 76–92.

45Cf Interinstitutional Agreement of Better Law-Making [2016] Council Document,15506/15, 12 et seq. Cf also the chapter 3 of the Commission’s ‘Better RegulationGuidelines’: http://ec.europa.eu/smart-regulation/guidelines/ug chap3 en.htm andTool 5 of the ‘Better Regulation Toolbox’ http://ec.europa.eu/smart-regulation/guidelines/tool 5 en.htm (both visited 22. April 2016).

46And indeed, the Commission’s guidelines only specify that the need for an im-pact assessment must be assessed, not that an impact assessment is necessaryfor delegated and implementing acts generally. Cf http://ec.europa.eu/smart-

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6.2 making the commission fair: procedural transparency

6.2 Making the Commission Fair: ProceduralTransparency

To briefly recall,47 fairness is an important aspect of fiduciary relation-ships, as it describes the requirement that the obligations of loyalty owedto differing groups under the same mandate are compatible with eachother. As stated above, the specific forms that such fairness will takedepend on the case at hand. Thus, it appears not only difficult, butpossibly undesirable to describe universal rules of fairness with the aimof safeguarding fairness in the adoption of delegated and implementingacts. Given the diverse political, social and economic contexts in whichthese acts are supposed to take effect, it is unlikely that there is one singlemechanism actually able to support requirements of fairness throughoutthese contexts.

In this discussion of fairness, I focus on procedural questions. As Iset out above, judgements of substantive fairness are much more open todisagreement than questions of procedural fairness. The basic tenet ofprocedural fairness is that all parties affected by a decision must be heardand their voices must be given appropriate weight.

In literature, fairness plays a role for governance as much as for law;fairness is seen as a political concern, dealing with a matter of who (whichgroup) can participate in decision-making, and when and how.48 Contri-butions refer to biased decision-making when specific kinds of actors areformally or factually excluded, or where some actors effectively monopolisespecific stages of decision-making.49 The underlying question in thesekinds of studies is whether participation procedures enhance democracy,50

regulation/guidelines/tool 5 en.htm (visited 22. April 2016).47Cf section 5.3.1.48So, for example, Annick Laruelle and Federico Valenciano, who evaluate the distribu-

tion of voting power in terms of fairness (Annick Laruelle and Federico Valenciano,‘Inequality among EU Citizens in the EU’s Council Decision Procedure’ (2002) 18European Journal of Political Economy pp 475–498, p. 495).

49Cf, for example, the study by Rainer Eising, ‘The access of business interests to EUinstitutions: towards elite pluralism?’ (2007) 14(3) Journal of European PublicPolicy pp 384–403.

50Beate Kohler-Koch and Barbara Finke, ‘The Institutional Shaping of EU-SocietyRelations: a Contribution to Democracy via Participation?’ (2007) 3(3) Journal ofCivil Society pp 205–221.

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with bias being thought of as ‘undemocratic’.

The fairness of rule-making procedures, particularly of expert groupcomposition, has already given rise to an own initiative inquiry by theEuropean Ombudsman.51 The composition of these expert groups, theextent to which the Commission owes their advice deference and whichrole they should have in the decision-making process more broadly remainscontested in literature.52

The concern expressed here goes further than that of the Commissionhaving to adhere to formal procedural requirements. This is because onecannot expect procedures to be fair where bias is embedded in the verydecision-making procedures. At the same time, the question of fairness isnot settled with the codification of a decision-making procedure which is initself not biased.53 Firstly, fairness as a principle should continue to informany procedural settlement which seeks to implement it. Most decision-making procedures will have avoided any obvious and evident form of bias,but are not able to guarantee defence against all forms of unwanted bias.Even where a decision-making procedure was considered neutral at itspoint of inception, subsequent practice interacting with subsequent socialdevelopment might nevertheless lead to a biased procedure. Sensitivityfor considerations of fairness is an ongoing concern and decision-makingprocedures have to be continuously balanced to guard against bias.

Secondly, and more importantly for the present case, the decision-making procedure for delegated and implementing acts is by no meansfully formally determined. As can be deducted from the variety of proce-dures used,54 in principle there is a significant flexibility in how to adopt

51European Ombudsman, Own Initiative Inquiry concerning the Composition of Com-mission Expert Groups (OI/6/2014/NF, 2014).

52Elizabeth Fisher, Risk Regulation and Administrative Constitutionalism (Hart Pub-lishing 2007); Michelle Everson, ‘A Technology of Expertise: EU Financial ServicesAgencies’ (LSE ‘Europe in Question’ Discussion Paper 49/2012, London, 2012);Ase Gornitzka and Cathrine Holst, ‘The Expert-Executive Nexus in the EU: AnIntroduction’ (2015) 3(1) Politics and Governance pp 1–12; Maria Lee, ‘Expertsand Public in EU Environmental Law’ in Anthony Arnull and Damien Chalmers(eds), Oxford Handbook of European Union Law (Oxford University Press 2015)pp 991–1014.

53Thus, R.A. MacDonald argues against a positivist view on fairness, and insteadpromotes an ‘implied’review. R. A. Macdonald, ‘Judicial Review and ProceduralFairness in Administrative Law: II’ (1980) 26 McGill Law Journal pp 1–44.

54For example, the (non)inclusion of impact assessments, the (non)inclusion of consul-

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delegated and implementing acts. Reasons of fairness should be significantin choosing for the specific elements of a given decision-making procedure.

General requirements of fairness are difficult to formulate with any levelof specificity; fairness requires a balancing exercise the specific parametersof which depend on the situation at hand.55 In practice, this translatesinto a call for a better justificatory practice of the Commission in orderto, in the first instance, enable dialogue about the procedural practicesused. As fairness works on reasons, it appears appropriate to use theduty to give reason as a starting point for the creation of the justificatoryprocesses necessary and as a precursor to developing an EU theory on theCommission’s duty of fairness.

6.2.1 Procedural Transparency in EU law

Duties of fairness are better established in EU law than duties of dis-interestedness, even though here too the existing obligations to the fairengagement with all ‘beneficiaries’ of Commission decision-making are notentirely sufficient.

EU primary law introduces a duty of fairness (and impartiality) incum-bent upon the Commission (and other institutions) in the Charter,56 inArts 41 and 47. According to Art. 41 of the Charter (under the headingof the ‘right to good administration’), “every person has the right to have[..] her affairs handled impartially, fairly [...] by the institutions, officesand agencies of the Union”. According to Art. 47 of the Charter, everyonehas a “right to an effective remedy and a fair trial”.

The Charter rights, including these articles, are individual rights. More-over, Arts. 41 and 47 of the Charter appear to focus on cases wherethere is an individual decision, not a general act. Thus, a court ruling iscertainly applicable first and foremost to the parties of a case, and the

tative mechanism.55Case C-245/00 Stichting ter Exploitatie van Naburige Rechten (SENA) v Nederlandse

Omroep Stichting (NOS) [2002] ECR I–1253 (Opinion of AG Tizzano) para 33. Thisdoes not mean that fairness does not also have an aspect of equality (cf, for examplethe description in Denis Galligan, Due Process and Fair Procedures: A Study ofAdministrative Procedures (Oxford University Press 1997) p. 52 et seq), but thatthe question is one of appropriate weighing of uniform values rather than of broadapplication of the same pre-determined outcomes.


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right to a fair trial is geared towards individual involvement in (quasi-)judicial settings. Art. 41 of the Charter is less clear on the matter, eventhough the situation of an institution handling the affairs of a person fitsbest to the case of individual decisions. Because of this, it is questionablehow the duties of fairness in the Charter would be applied to delegated andimplementing acts generally.57 Even though the Charter is in principleapplicable here, the language of the relevant provisions makes them atleast an uncomfortable fit.

Even before the entry into force of the Charter, the CJEU has recognisedduties of fairness and impartiality imposed by EU law.58 Besides fairnessin trials (including quasi-judicial procedures),59 duties of fairness aremost often found in connection with investigative proceedings60 andselection procedures.61 In addition, a number of acts of secondary law

57Implementing acts especially can be acts of individual application, but often containmore general rules. For an example of an act applicable to an individual, seeCommission Implementing Decision (EU) 2016/265 of 25 February 2016 on theapproval of the MELCO Motor Generator as an innovative technology for reducingCO2 emissions from passenger cars pursuant to Regulation (EC) No 443/2009 of theEuropean Parliament and of the Council [2016] OJ L50/30 or Commission DelegatedRegulation (EU) No 1047/2013 of 21 August 2013 amending Commission DelegatedRegulation (EU) No 114/2013 for the purpose of correcting the 2010 average specificCO2 emissions specified for the manufacturer Piaggio [2013] OJ L285/1.

58As a source, the CJEU cites general principles of law. Cf the summary given inCase T-486/11 Orange Polska SA v European Commission (2015) electronic reportsof cases: Court reports – general (ECLI:EU:T:2015:1002) para 95, with furthercitations.

59Case C-216/14 Criminal proceedings against Gavril Covaci (2015) electronic reportsof cases: Court reports – general (ECLI:EU:C:2015:686).

60Examples of investigative proceedings can be found in anti-trust (competition) law,as well as in connection to state aid. The fairness of anti-trust proceedings wasat issue, for example, in Orange Polska SA v European Commission (n 58), thefairness of the procedure determining whether state aid paid was unlawful was atissue, for example, in Case T-158/96 Acciaierie di Bolzano SpA v Commission ofthe European Communities [1999] ECR II–3927 (ECLI:EU:T:1999:335) paras 42-48.

61Selection occurs in terms of employment or procurement. The duty of fairness inthe employment relationship with EU officials was at issue, for example, in Case F-124/11 Daniele Possanzini v European Agency for the Management of OperationalCooperation at the External Borders of the Member States of the European Union(Frontex) (2013) Reports of Staff Cases: Civil Service Tribunal (ECLI:EU:F:2013:137)para 60. Fairness regarding a call for tenders was at issue, for example, in Case C-599/10 SAG ELV Slovensko as and Others v Urad pre verejne obstaravanie (2012)electronic reports of cases: Court reports – general (ECLI:EU:C:2012:191) para 41.

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contain provisions seeking to prevent undue hardship, which the Courthas described as duties of fairness.62

Yet, there is a noticeable focus both in the Charter and in the CJEU caselaw of applying fairness to (quasi)- judicial and investigative proceedingsand selection processes.63 It appears consensual to describe fairness(or impartiality) as an attribute of the ‘judgement’ that is required inall three sorts of cases. The act of ‘judging’ connects (quasi-) judicialand investigative proceedings with selection processes. Yet, fairness alsopertains to such ‘judgement’ as that contained in legal advice.64

There is a procedural focus on this understanding of fairness whichbecomes clear from its proximity to concepts which describe the relation-ship between the decision maker and those affected. Moreover, there is astrong connection between ‘impartiality’ and ‘independence’ especially inArt. 47 Charter. This connection can also often be found in the literature

62For example Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repaymentor remission of import or export duties [1979] OJ L175/1, art 13 (Cf also Case C-62/05 P Nordspedizionieri di Danielis Livio & C Snc, Livio Danielis and DomenicoD’Alessandro v Commission of the European Communities [2007] ECR I–08647(ECLI:EU:C:2007:607) para 41) or Council Directive of 18 December 1986 on thecoordination of the laws of the Member States relating to self-employed commercialagents [1986] OJ L382/17, art 17 (Cf also Case C-203/09 Volvo Car Germany GmbHv Autohof Weidensdorf GmbH [2010] ECR I–10721 (ECLI:EU:C:2010:647) paras 33,36).

63In this regard it is an interesting aside that, while fairness is evidently of high relevancein legal (and quasi-judicial) proceedings, questions of fairness are not among thequestions of law that can be appealed before the CJEU. Thus the Court holds itselfto the formula that “it is not for the Court of Justice, when ruling on questions of lawin the context of an appeal, to substitute, on grounds of fairness, its own assessmentfor that of the General Court exercising its unlimited jurisdiction to rule on theamount of fines imposed on undertakings for infringements by those undertakingsof European Union law.” (Cf, for example, Case C-457/10 P AstraZeneca AB andAstraZeneca plc v European Commission (2012) electronic reports of cases: Courtreports – general (ECLI:EU:C:2012:770) para 162), and makes this abundantly clearwhen stating that a decision by the General Court which is based on considerationsof fairness cannot be appealed at all. Cf Case C-386/10 P Chalkor AE EpexergasiasMetallon v European Commission [2011] ECR I–13085 (ECLI:EU:C:2011:815) para101.

64Case T-402/06 Kingdom of Spain v European Commission [2013] electronic Reportsof Cases (ECLI:EU:T:2013:445).

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on the Commission,65 sometimes in the added context of ‘mediation’.66

At the same time, the Court does usually not accept challenges togeneral legal acts which were based on arguments of unfair procedures.67

Nevertheless, charges of the Commission having violated procedural re-quirements remain an important vehicle to seek the annulment of a legalact.68

In such an action, the Court reviews whether necessary proceduralrequirements were disregarded. Thus, when consultations which werestipulated by the Treaties or a basic legal act are disregarded69 or arenot conducted in a way which guarantees their effectiveness,70 the actcan be annulled by the Court.71 In addition to this, and to enable reviewby the Court, an act must contain a statement of the procedure whichwas legally necessary for its adoption.72 Thus, even though in abstracto

65Myrto Tsakatika, ‘Claims to Legitimacy: The European Commission between Conti-nuity and Change’ (2005) 43(1) Journal of Common Market Studies pp 193–220, p.199.

66ibid, p. 212. Interestingly, this mediation is more often than not described asmediation between Member States: John Temple Lange, ‘How Much do the SmallerMember States Need the European Commission? The Role of the Commission in aChanging Europe’ (2002) 39 Common Market Law Review pp 315–335, instead ofmediation between different interests or social groups (which transcended nationalboundaries).

67By this I mean a challenge which alleges that the selection of consultation partners bythe Commission was flawed. Joana Mendes, ‘Participation and the Role of Law afterLisbon: a legal view on article 11 TEU’ (2011) 48 Common Market Law Reviewpp 1849–1878, p. 186 et seq.

68Alexander Turk, ‘Oversight Administrative Rulemaking: Judicial Review’ (2013)19(1) European Law Journal pp 126–142; Rene Barents, ‘EU Procedural Law andEffective Legal Protection’ (2014) 51 Common Market Law Review pp 1437–1462.

69Case 138/79 A Roquette Freres v Council of the European Communities [1980] ECR03333 (ECLI:EU:C:1980:249).

70Case C-21/94 European Parliament v Council of the European Union [1995] ECR I–01827 (ECLI:EU:C:1995:220).

71The Court thus gives these procedural requirements more weight, than it does toindividual rights. Not only can the Court investigate the adherence to proceduralrequirements out of its own motion (Cf, for example Case C-286/95 P Commissionof the European Communities v Imperial Chemical Industries plc (ICI) [2000] ECRI–02341 (ECLI:EU:C:2000:188) para 51), in such cases a claimant does not haveto show how an act would have differed if procedures had been followed correctly.Cf A Roquette Freres v Council of the European Communities (n 69). About thedifference between individual rights and procedural obligations, see also Turk (n 68).

72Art 296 TFEU.

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the scope this duty can play a very important role in implementingrequirements of fairness, the weak application which the Court acceptsfrom the Commission is liable to severely restrict its effects.

The CJEU conducts a rather formal review of the adoption proceduresof delegated and implementing acts, focusing on the formal adherence toprocedural requirements. Even though this review does inquire whetherprocedures were effectively implemented, it does nevertheless often leaveaside questions of whether these procedures thereby achieved the intendedaim. As a result, he Court of Justice is not likely to inquire whether aspecific decision-making process has fulfilled participatory requirementsas a way to reach such underlying aims as fairness.73

Interestingly, the case law on the duty of loyalty provides an exceptionto this, as in this context the Court does indeed review decision-makingprocesses with an eye to their effect on the fundamental distribution ofpowers and responsibilities. The CJEU’s review of the requirements ofsincere cooperation has proven sensitive to the function of procedures.74

Accepting broader requirements of loyalty, and recognising the proceduresfor the adoption of delegated and implementing acts as ways to opera-tionalise the institutions duty of loyalty towards the persons subject todelegated and implementing acts, could arguably then result in a differentmodel of judicial review than the current one. Such a change towardsembracing a more teleological review of procedures results in makinga new category of reasons available to the parties to such proceedings.Unfortunately, it is difficult to predict in detail how the outcomes woulddiffer, as the change in how adoption procedures are reviewed does nottranslate into results in any straightforward way.

In (public) fiduciary law literature, the duty to fairness is often connectedto the duty to give reasons or reasonableness.75 The argument is that there

73Mendes, ‘Participation after Lisbon’ (n 67) 449 et seq.74For a discussion of this case law, see section 5.1 above.75This reasonableness is known as the rule in Hastings-Bass (Coming from Re Hastings-

Bass (deceased), Hastings and Others v Inland Revenue Commissioners [1975] Ch25). Cf Michael J. Ashdown, ‘In Defence of the Rule in Re Hastings-Bass’ (2010)16(10) Trusts & Trustees pp 826–848; Simon Kerry, ‘Control of Trustee Discretion:The rule in Re Hastings-Bass’ (2012) 1 UCL Journal of Law and Jurisprudencepp 46–79. For fairness and reasonableness in public fiduciary context, cf also EvanFox-Decent, Sovereignty’s Promise: The State as Fiduciary (Oxford UniversityPress 2011) ch. 7, 8.

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is a significant disciplining effect of such a duty in pushing the decisionmaker to fair decision and to incorporate the views of those towards whomshe needs to justify the decision. Duties of reason-giving or reasonablenessmight then provide better mechanisms for strengthening the fairness ofprocedures than legal requirements of participatory procedures. Reason-giving in particular also carries the aspect of public justification. It is avehicle of transparency when it makes the decision-making process morecomprehensible. A statement of reasons can serve to justify a decision interms of its fairness. Relying on such justification to implement fairnesshas the advantage of greater flexibility of the decision maker in whichprocedure is required by fairness in a specific rule-making process.

The duty to give reasons is a long standing duty of EU law. It isincumbent on all institutions and pertains generally to all EU legal acts.76

The duty to give reasons encompasses the duty to name the legal basisof an act, the duty to give a factual background and the duty to givethe purpose of a measure.77 The legal basis refers to a provision in theTreaties or in legislation. The factual background to a measure is thefactual situation that gave rise to the need to regulate. Lastly, the purposeof a measure is an argumentation or a ‘policy theory’ of how the measureat hand is seen to interact with the factual background. The statement ofreasons is further also required to list the adoption procedure as requiredby the Treaties (or basic legislation).

The duty to give reasons in EU law is to some extent currently alreadylinked to the concept of fairness, namely in so far as it serves as evidence ofhaving fulfilled the duty to examine carefully and impartially all relevantreasons. The Court brings this duty of care in the context of the duty tostate reasons, when it effectively accepts the reasons stated according tothe requirement to give reasons as those reasons which the Commissionexamined.78 The CJEU further related fairness to the requirements ofreasonableness when it explored what it meant for a decision of theCommission to be fair. The Court here equates ‘unfairness’ with arbitrary

76Art 296 TFEU.77Cf Craig, EU Administrative Law (n 23) p. 341 et seq and case law cited there.78Case C-405/07 P Kingdom of the Netherlands v Commission of the European Commu-

nities [2008] ECR I–08301 (ECLI:EU:C:2008:613). To be sure, this is no automaticconclusion; after all, the duty to give reasons is the duty to list the reasons fora measure, whereas the duty of care includes the duty to take account of reasonsagainst a measure.

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action,79 thus in effect making reasonableness a proof of fairness.

The relevance of ‘reasonableness’ of administrative action for its fiduciarycharacter has been remarked upon already in a different context.80 Also inEU law, the case law on reason giving and reasonableness can be arguedto connect to the fiduciary conception of administrative powers, as itcontains at its core the recognition of the necessity of justifying exercisesof those powers towards the persons subject to them. However, the variedand somewhat ambiguous nature of this case law allows here only a shortsummary.

The duty of careful and impartial examination duty was first establishedin the beginning of the nineties in the case of individual acts,81 but hasrecently been re-iterated by the Court as having a general application andalso extending to general policies.82 However, there are significant limitsto the duty to carefully and impartially examine all relevant factors in EU

79In the case between the Commission and MGS, the Czech Republic (as intervener)accused the Commission of breaching the principle of equality and fairness. In thiscase, the decision of the Commission to either go along with a permit for a GasStorage Facility granted by the Czech Republic or to order its withdrawal (as itultimately did) took place in close proximity (timewise) to a change in the applicablelegal regime. The Czech Republic alleged unfairness, because the decision hadbeen taken at a date when the new, more unfavourable, legal regime had becomeapplicable. The Court held:

“[As] it has not been shown that the Commission arbitrarily and withoutobjective reason accelerated or delayed, as the case may be, the treatmentof national exemption decisions notified on the same date in order tocomplete some procedures before and some after the entry into force ofthat directive, it cannot be concluded that there was a breach of [theprinciples of equality and fairness] in the present case.” (Case C-596/13 PEuropean Commission v Moravia Gas Storage as (2015) electronic reportsof cases: Court reports – general (ECLI:EU:C:2015:203) para 47)

80Fox-Decent, Sovereignty’s Promise (n 75) ch. 8.81Case C-269/90 Technische Universitat Munchen v Hauptzollamt Munchen-Mitte [1991]

ECR I–05469 (ECLI:EU:C:1991:438) para 14. An earlier case derived this duty froma statutory provision and it was thus of more limited scope. Cf Case C-16/90 DetlefNolle, trading as “Eugen Nolle” v Hauptzollamt Bremen-Freihafen [1991] ECR I–05163 (ECLI:EU:C:1991:402). However, these cases were decided just one monthapart with partly the same judges, so that the Nolle case might well have influencedthe reasoning in the case involving the TU Munich.

82Case C-62/14 Peter Gauweiler and Others v Deutscher Bundestag (2015) electronicreports of cases: Court reports – general (ECLI:EU:C:2015:400) para 69.

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law. The Court does not always treat this as a very strong duty. Thus,when the Commission was tasked with reviewing a decision by a nationalauthority whose decision (implementing Union law) contradicted coherentexpert opinion and consultation results, the duty of careful examinationcould not even trigger a duty of the Commission to explain why thisdeparture from expert advice was not an issue in its review.83

Depending on the regulatory context, the duty to give reasons cansometimes be discharged in a very summary way, and the reasoning givenis not necessarily very comprehensive. The Court of justice has ruledthat it is not always necessary to enumerate all relevant factual andlegal aspects in the statement to give reasons.84 Instead, sometimes thesereasons are clear “from the whole body of the legal rules governing thefield under consideration”85 or from the regime of which a specific act isonly a part.86

Where a justification of adoption processes is forthcoming, it is possibleto establish how a requirement of fairness was implemented into thedecision-making process. This explanation of the processes used togetherwith their (practical and normative) justification are a prerequisite todeveloping the meaning of fairness in the procedures leading to EU legalacts. Only with this justification it is then possible for both Commissionand citizens (but also the Court) to establish criteria for when a process isto be considered fair, given its social, political and economic context. Theoutcome of this discussion can then guide the Commission and hopefullybe used to alleviate the problem that Commission decision-making nowsometimes gives the appearance of being mostly in the interest of largecorporations.87

83Case C-201/11 P Union des associations europeennes de football (UEFA) v Eu-ropean Commission (2013) electronic reports of cases: Court reports – general(ECLI:EU:C:2013:519) paras 22-27.

84Case C-350/88 Societe francaise des Biscuits Delacre ea v Commission of the EuropeanCommunities [1990] ECR I–00395 (ECLI:EU:C:1990:71) para 16.

85Case 92/77 An Bord Bainne Co-Operative v Minister for Agriculture [1978] ECR00497 (ECLI:EU:C:1978:36) para 36.

86Case 125/77 Koninklijke Scholten-Honig NV and De Verenigde Zetmeelbedrijven ”DeBijenkorf” BV v Hoofdproduktschap voor Akkerbouwprodukten [1978] ECR 01991(ECLI:EU:C:1978:187) paras 18-22.

87For such criticism cf Yiorgos Vassalos and others, Who’s Driving the Agenda at DGEnterprise and Industry? The Dominance of Corporate Lobbyists in DG Enterprise’sExpert Groups (Alliance for Lobbying Transparency and Ethics Regulation (ALTER-

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6.2.2 Procedural Transparencyin Delegated and Implementing Acts

Given the focus on procedural fairness, as well as the fact that inclusiveconsultations are likely to be necessary to enable the Commission to fulfilits duty of careful and impartial examination, there appear to be twoways in which a duty of fairness can be operationalised in delegated andimplementing rule-making: through the improvement of mandatory proce-dural duties or through increased scrutiny of the Commission informationcollection process.

Such procedural duties can be specified in the legislative mandateenabling the adoption of delegated or implementing acts. Here, Parliamentand the Council can stipulate which groups need to be consulted in theadoption of a delegated or implementing act.88 However, this requiresParliament and the Council to know at the moment of the adoption ofthe legislative mandate which groups will be affected by Commissiondelegated and implementing rule-making. Yet, this cannot be assumed,especially given that in some cases the legislative mandate precedes theCommission act quite considerably.89 As a consequence, it will not alwaysbe possible to introduce greater procedural fairness this way.90 In this case,

EU) 2012). Cf also section 5.3.88For example, recital (115) of the preamble of Regulation (EU) No 806/2014 of the

European Parliament and of the Council of 15 July 2014 establishing uniformrules and a uniform procedure for the resolution of credit institutions and certaininvestment firms in the framework of a Single Resolution Mechanism and a SingleResolution Fund and amending Regulation (EU) No 1093/2010 [2014] OJ L225/1specifies that the Commission is required to consult with experts appointed byMember States, with the ECB and its board. More common is the situationexemplified by Recital (16) of the preamble of Regulation (EU) No 167/2013 of theEuropean Parliament and of the Council of 5 February 2013 on the approval andmarket surveillance of agricultural and forestry vehicles [2013] OJ L60/1, whichrequires the Commission to consult with stakeholders, without, however, giving anyindication of who is to be considered a stakeholder for this purpose.

89Even in a random selection of a 14 day period (8. March 2016 – 23 March 2016),7 implementing acts were based on a mandate which was issued more than 15years ago, with one case of the mandate stemming from more than 20 years earlier.This was Commission Implementing Regulation (EU) 2016/432 of 18 March 2016amending Regulation (EC) No 1484/95 as regards fixing representative prices in thepoultrymeat and egg sectors and for egg albumin [2016] OJ L76/26.

90Indeed, it is rare for Parliament and Council to give any detail regarding who isto be involved in the adoption process. While the basic act frequently at least

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the duty to give reasons might be a more promising route to implementingrequirements of fairness.

The statement of reasons included in delegated and implementing actsvaries greatly in length and detail. This is unsurprising since especiallyimplementing acts are often adopted as a series of acts relying on alegislative act and thus can rely on both the reasons already given in thelegislative act and on the reasons given in other acts of a ‘series’.

As any legal act, delegated and implementing acts also contain a state-ment of reasons, mostly in their preamble. As is usual, these statementsinclude, besides the legal basis of an act, the purpose of the act and some-times reasons for specific choices of content.91 However, at other times,these reasons are nearly literally to be found in the text of the measure,92

and they appear to be no more comprehensive than what is minimally

mentions the Committee to be consulted (cf Regulation (EU) No 1308/2013 ofthe European Parliament and of the Council of 17 December 2013 establishing acommon organisation of the markets in agricultural products and repealing CouncilRegulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC)No 1234/2007 [2013] OJ L347/671, art 229 or Regulation 167/2013 (n 88) art 69),it also quite possibly states simply that: “The Commission shall be assisted by acommittee. That committee shall be a committee within the meaning of Regulation(EU) No 182/2011.” (Cf Regulation (EU) 2015/848 of the European Parliament andof the Council of 20 May 2015 on insolvency proceedings (recast) [2015] OJ L141/19,art 89, Regulation (EU, Euratom) No 1141/2014 of the European Parliament andof the Council of 22 October 2014 on the statute and funding of European politicalparties and European political foundations [2014] OJ L317/1, art 37). Likewise, theassertion of the relevance of expert consultation is a frequent occurrence, withoutthere being any indication of which kind of expertise is to be considered relevant.Cf, for example, Directive (EU) 2016/97 of the European Parliament and of theCouncil of 20 January 2016 on insurance distribution (recast) [2016] OJ L26/19,preamble (67).

91Thus, the reasons might state that a specific procedure has been proven effectiveand will be kept in a modernised regime. For example, Commission ImplementingRegulation (EU) No 2015/1013 of 25 June 2015 laying down rules in respect ofRegulation (EC) No 273/2004 of the European Parliament and of the Council ondrug precursors and of Council Regulation (EC) No 111/2005 laying down rules forthe monitoring of trade between the Union and third countries in drug precursors[2015] OJ L162/33, preamble (4).

92Commission Implementing Regulation (EU) 2016/405 of 18 March 2016 determiningthe quantities to be added to the quantity fixed for the subperiod from 1 July to 30September 2016 under the tariff quotas opened by Implementing Regulation (EU)2015/2077 for eggs, egg products and egg albumin originating in Ukraine [2016] OJL74/30.

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needed to make the substantive provisions of the measure intelligible.The reasons given pertain only to the material content of an act and

are focused on reasons for the act itself. Reasons given refer to why anact contains the provisions it contains, not on how it came to containthese provisions.93 These reasons then present the outcome of a decision-making process, but do not refer to the process itself. The statementof reasons includes, if at all, only very general reference to the decision-making process (for example simply giving the name of the ComitologyCommittee),94 and as a rule do not mention any reasons for this procedure.In as much as the adoption procedure is determined by the legislativemandate, these reasons are arguably unnecessary.95 However, while theinformation of material reasons is certainly important to those affected,especially those not already intimately part of the decision-making processwould benefit from an explanation and justification of the process followed.

Further reasons and explanations of delegated and implementing acts aregiven in the explanatory memoranda accompanying them when presentedto Parliament, the Council or a Comitology Committee. Insights intothe process used for the adoption of the act are much more likely to befound in these explanatory memoranda than in the reasons stated in the

93An exception to this may be the implementing acts which regulate competition. Foran example of a particularly comprehensive elaboration of reasons, including reasonsreferring to interests, see Commission Implementing Regulation (EU) 2016/388 of17 March 2016 imposing a definitive anti-dumping duty on imports of tubes andpipes of ductile cast iron (also known as spheroidal graphite cast iron) originatingin India [2016] OJ L73/53, particularly section 5 of the preamble.

94Cf Commission Implementing Decision (EU) 2016/417 of 17 March 2016 excludingfrom European Union financing certain expenditure incurred by the Member Statesunder the European Agricultural Guarantee Fund (EAGF) and under the EuropeanAgricultural Fund for Rural Development (EAFRD) [2016] OJ L75/16; CommissionImplementing Regulation (EU) 2016/443 of 23 March 2016 amending Annex I toRegulation (EC) No 669/2009 as regards the list of feed and food of non-animalorigin subject to an increased level of official controls on imports [2016] OJ L78/51. However, for an example of a rather detailed description, cf CommissionImplementing Regulation (EU) 2015/1014 amending Regulation (EC) No 474/2006establishing the Community list of air carriers which are subject to an operatingban within the Community [2015] OJ L162/65.

95Yet, even in these cases it is notable how scarce the reasons given in the legislativemandate are. If there is any reasoning concerning the adoption procedure of the actsmandated by a legislative act, it is restricted to a general call for expert or stakeholderconsultations. Cf Regulation 167/2013 (n 88) preamble (16) or Directive 2016/97(n 90) preamble (67).

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preamble to an act. Even though these explanatory memoranda do notformally form part of an act, it is general practice that they are issued.

Whereas the communications which accompany legislative proposals areissued as a separate document and are published and searchable in the Eur-Lex database, explanatory memoranda to delegated and implementingacts can in most cases only be found in the document register of theCommission, Parliament or the Council.

The comprehensiveness of these explanatory memoranda varies greatly.They are more likely to contain a statement that expert consultationshave taken place, without even naming the expert group,96 than theyare likely to give a list of all the groups and committees involved.97 Asa rule, they do not refer to any reason why a specific expert group wasthought the most appropriate one or any indication what the result of theinvolvement was.98

96European Commission, ‘Commission Delegated Regulation(EU) .../... of 4.2.2016amending Regulation (EU) No 1315/2013 of the European Parliament and ofthe Council as regards adapting Annex III thereto’ (Explanatory Memorandum)C(2016) 536 final; European Commission, ‘Commission Delegated Regulation (EU).../... of 18.3.2016 amending Delegated Regulation (EU) 2015/2195 supplementingRegulation (EU) No 1304/2013 of the European Parliament and of the Council onthe European Social Fund, regarding the definition of standard scales of unit costsand lump sums for reimbursement of expenditure by the Commission to MemberStates’ (Explanatory Memorandum) C(2016) 1612 final.

97Although there are also examples of this, especially from banking regulation: Eu-ropean Commission, ‘Commission Delegated Regulation (EU) .../... of 2.2.2016supplementing Directive 2014/59/EU of the European Parliament and of the Coun-cil with regard to the circumstances and conditions under which the payment ofextraordinary ex-post contributions may be partially or entirely deferred, and on thecriteria for the determination of the activities, services and operations with regardto critical functions, and for the determination of the business lines and associatedservices with regard to core business lines’ (Explanatory Memorandum) C(2016)424 final.

98Again the only exceptions appear to be in the field of banking regulation, espe-cially concerning regulatory technical standards (RTS). Where EBA or ESMA areobliged to conduct public consultations or impact assessments, the explanatorymemorandum is likely to describe the procedure and its outcome. Cf EuropeanCommission, ‘Commission Delegated Regulation (EU) .../... of 17.12.2015 supple-menting Directive 2009/65/EC of the European Parliament and of the Council withregard to obligations of depositaries’ (Explanatory Memorandum) C(2016) 9160final; European Commission, ‘Commission Delegated Regulation (EU) .../... of9.3.2016 supplementing Regulation (EU) No 596/2014 of the European Parliamentand of the Council with regard to regulatory technical standards for the appropriate

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In this respect, the reasons given in either the acts themselves or theexplanatory memoranda thus fall short of containing a justification ofthe procedures taken. The Commission does not (publicly) rationalise itsadoption procedures with regards to fairness. Consequently, any furthersteps in the discussion on standards of fairness and the evolution ofpractical requirements of procedural fairness can also not take place.

To include the justifications called for, the Commission would have toadapt its drafting practice. Mirroring the justification of the materialcontent of an act, it appears most sensible to include a general statementof the form and rationality of the adoption procedure in the statementof reasons, with a fuller explanation in the explanatory memorandum.To enable the use of these memoranda, it would be very helpful to finda mention of their location (i.e. document number) in the delegated orimplementing act itself.

6.3 Summary

In this chapter I have elaborated how disinterestedness and fairness canbe introduced into the processes of adopting delegated and implementingacts. Disinterestedness and fairness are necessary parts of Commissionloyalty.

Accounting for motives requires a setting where the Commission isable to deliberate with the necessary candour in a forum which has thenecessary independence from the Commission’s perspective. However atthe moment each of the bodies or fora involved appears to be seekingto further its own agenda. Even expert groups are constituted more byinterest representatives than knowledgeable independent persons. Thusit follows that a mechanism for accounting for motives would have to beexplicitly created.

Transparency regarding the adoption process can be implemented byextending the reasoning requirement to include a duty to give reasons fora given procedure and for the representation of the groups participatingtherein. Documents accompanying delegated and implementing acts whenreferred to Parliament or the Council in exceptional cases already include

arrangements, systems and procedures as well as notification templates to be usedfor preventing, detecting and reporting abusive practices or suspicious orders ortransactions’ (Explanatory Memorandum) C(2016) 1402 final.

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this information. Moreover, it is information which should be readilyavailable to the Commission in any case, so that its inclusion should notrepresent an undue burden.

These procedures provide the justification for the Commission’s powers,in that they serve as proof of the Commission’s attitude. More than anyspecific substantive outcome, which in many of the areas of delegatedand implementing acts can hardly be evaluated by any but experts inthe field, such procedures can show generally which maxims led to theadoption of any given delegated or implementing act. Accounting formotives and procedural transparency oblige the Commission to strivefor disinterestedness and fairness and thus to prove its allegiance, itsloyalty, to the needs and interests of the persons subject to delegated andimplementing acts. Such loyalty in turn enables these persons to acceptthe Commission’s powers as subject to their interests and needs.

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Conclusion

Delegated and implementing acts are wide-spread and permeate our dailylives. For anyone researching a field of EU policy – or engaging in aneconomic activity on the internal market for that matter – it is inevitableto encounter delegated and implementing rule-making. Many of the dailychoices of normal lives, such as shopping for household goods, but alsosituations with a more profound impact, such as the financial crisis, arestructured by them. However, despite their ubiquity and relevance, it isunclear how the Commission’s power to adopt these important acts relatesto their subjects’ democratic rights. Given their direct impact, how canthe the Commission’s powers to adopt delegated and implementing actsbe justified?

Delegated and implementing acts are generally binding, legal rules, evenif they are, as Art. 290 TFEU states, ‘non-legislative’ in character. Suchacts range from the authorisation of dangerous chemicals1 or controlson imported foodstuffs2 to the organisation of cross-border transport of

1Commission Implementing Regulation (EU) 2015/1609 of 24 September 2015 approv-ing propiconazole as an existing active substance for use in biocidal products forproduct-type 7 [2015] OJ L249/17.

2Commission Implementing Regulation (EU) 2016/443 of 23 March 2016 amendingAnnex I to Regulation (EC) No 669/2009 as regards the list of feed and food ofnon-animal origin subject to an increased level of official controls on imports [2016]OJ L78/51.

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organs.3 The Commission is delegated the power to adopt these acts underArts. 290 and 291 TFEU by Parliament and the Council. These articleshave received much academic attention, mostly due to the fact that Arts.290 and 291 TFEU divide Commission rule-making into delegated andimplementing acts, an innovation in effect since the Treaty of Lisbon.This differentiation is much less at issue here than an aspect they bothshare, namely that they are adopted by the Commission, largely withoutrepresentative mechanisms.

A justification requires more than just a retelling of history or a de-scription of how the Commission came to be conferred with such powers.However much insight a historical study can give, it is insufficient if wewant to know how to move forward and how to shape the Commission’spowers. The assessment whether a situation is desirable or not dependsnot only on historical facts, but also on normative evaluations.

Even though EU law is currently failing to provide an appropriate justi-fication of the Commission’s power to adopt delegated and implementingacts, such a justification can be constructed. The relationship between theCommission and the persons within the Member States which are directsubjects of its rule-making should be seen as a relationship of institutionaltrust.

Two salient features of this situation are taken into account whenconstructing the adoption of delegated and implementing acts by theCommission as being reliant on institutional trust which must in turnbe justified. On the one hand, institutional trust expresses the powerimbalances between the persons subject to Commission acts and theCommission which are inherent in its exercise of authority. On theother hand, this framework expresses the normative conditions underwhich the Commission is granted its authority. This is the obligation oftrustworthiness.

In order to be able to express this relationship in legal categories, itis useful to refer to fiduciary law. Fiduciary law is the legal expressionof relations of institutional trust, and it disposes of the legal categoriesotherwise necessary to address this relationship in an appropriate way.In this, fiduciary law delivers a language in which to frame normative

3Commission Implementing Directive 2012/25/EU of 9 October 2012 laying downinformation procedures for the exchange, between Member States, of human organsintended for transplantation [2012] OJ L275/27.

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expectations through which the Commission’s powers can be justified.This language serves to support as well as criticise the authority of theCommission, enabling a wider discussion of EU legal structures.

In this fiduciary law language, the requirement for the Commission to betrustworthy is expressed as a duty of loyalty. In order for the Commissionto show this loyalty, the duty of loyalty in EU law needs to be expandedbeyond its current limits. The relationship between the Commissionand the persons subject to delegated and implementing acts follows adifferent dynamic than that between the Commission and the MemberStates. Instead of reciprocity and mutual cooperation, this relationship ischaracterised by power on the side of the Commission and vulnerabilityto this power on the side of the ‘ subjects’.

To account for this relational structure, loyalty takes the form of disin-terestedness and fairness. These values serve to bind the Commission’spower to the need and interests of the persons subject to the Commission’sacts, thereby mitigating the power imbalance. Through the mechanismsof accounting for motives and procedural transparency described above,4

duties of disinterestedness and fairness can be inserted into the adoptionprocesses while keeping much of the current procedures in place.

Installing mechanisms towards accounting for motives and proceduraltransparency implies changes which are as much (positive) procedural lawchanges as they are symbolic changes, signalling a change in the normativestructure of the relationship between the Commission and the personssubject to delegated and implementing acts. Implementing a duty ofloyalty signals that these persons deserve this loyalty and the Commissionowes it. The (positive) procedural duties of submitting to an accountingprocess and greater openness of the ones engaged in rule-making includethe recognition of a broader normative structure, namely a relationshipbased on trust. This recognition constitutes a change of attitude which inturn represents the recognition of the normative parameters which shapethe Commission’s discretion.

4Cf chapters 5 and 6.

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7.1 Explanation and Justification

The powers of the Commission to adopt delegated and implementingacts are relatively easy to explain historically, but they are much harderto justify. Describing the process that led to the Commission beingentrusted with the powers to adopt delegated and implementing acts is anaccount of the political and legal dynamics of the point in time at which theentrustment occurred. Initially, awarding implementing powers to the HighAuthority was a result of the struggles between the original Member Statesand their desire to create credible commitment.5 Thereafter, successiveexpansions and restrictions of Commission powers were reactions to theevents of their time.6 Yet describing these processes and events doesnot offer reasons for whether the current shape of Commission powers isdesirable or at least acceptable at the current point in time. In this, thehistoric explanation of Commission powers falls short of a justification.However, as an expression of public authority, these powers need to bejustified.

Both delegated and implementing acts are the responsibility of theCommission. While Parliament and the Council retain certain veto rights,and while the Commission involves experts and Member State representa-tives in the decision-making process, the Commission nevertheless enjoysconsiderable discretion in the adoption of these acts. Moreover, throughits role in the legislative process, the Commission is involved in draftingits own mandate. Once being conferred the powers, the Commissionfrequently decides on the composition of its advisory bodies. At the end ofthe drafting process, the Commission is often able to act despite negativeadvice and has rarely been moved to drop a proposed act because ofnegative Member State representative’s opinions.7

5Cf Giandomenico Majone, ‘Two Logics of Delegation: Agency and Fiduciary Relationsin EU Governance’ (2001) 2/1 European Union Politics pp 103–122.

6Thus, much of Parliament’s powers has been described as a reaction to the ‘Commis-sion crisis’ of 1999. Cf Andrei M. Muntean, ‘The European Parliament’s PoliticalLegitimacy and the Commission’s ‘Misleading Management’: Towards a ‘Parliamen-tarian’ European Union?’ (2000) 4(5) European Integration online Papers. This isalso noted, even though is the accuracy of this claim of a ‘parliamentarisation’ isdisputed, by David Judge and David Earnshaw, ‘The European Parliament and theCommission Crisis: A New Assertiveness?’ (2002) 15(3) Governance pp 345–374.

7Such opinions are voiced in ‘Comitology’ procedures. For an overview over the

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The Commission enjoys discretion regarding which rules to adopt. Ofcourse delegated and implementing acts are shaped through their leg-islative mandate and the involvement of Parliament and the Council indrafting this mandate does play a role. After all, the fact that the electedrepresentatives, Parliament and the Council, have tasked the Commissionwith, for example, organising the cross-border transport of organs, is likelyto positively influence the attitude towards the regulation of cross-borderorgan donation adopted by the Commission. However, the most strikingaspect is the way in which the Commission is nevertheless free to distributeburdens and validate or invalidate ideas of how people should live together.

The Commission has had the role of giving effect to EU law at the EUlevel since the inception of the Communities. These powers have evolvedover time into what are now Arts. 290 and 291 TFEU. These articlesare the ‘constitutional’ basis for the Commission’s competence to adoptdelegated and implementing acts, giving some shape to their limits as wellas their adoption procedures.

At first glance, this is not necessarily problematic. Assuming that the de-cisions delegated to the Commission are those which it is functionally bestplaced to take, Parliament and the Council make use of the Commission’sstrength by using Arts. 290 and 291 TFEU. Parliament and the Councilcannot match the Commission in terms of speed of decision-making or inaccess to expertise, and it is not necessary for them to redo the work thatthe Commission has already done by scrutinising in detail.

Thus, the Commission’s powers can be motivated by functional rea-soning. The Commission has the organisational structure to be able totake decisions quickly and has access to expert knowledge supporting thedecision-making process.

However, this kind of explanation ignores the fact that accepting a ruleis not an entirely rational, functional exercise. In a democracy, rule-makersre required to be not (only) functionally well-suited to the task, but alsoto be accountable to their subjects.8 Beyond representation, the questionof who the Commission is to the persons subject to its rules, is a questionabout the relationship between rulers and ruled, and thus, within the EU,

percentages of negative opinions cf section comdisc above.8Evan Fox-Decent, ‘The Fiduciary Nature of State Legal Authority’ (2005) 31 Queen’s

Law Journal pp 259–310; Evan Fox-Decent, Sovereignty’s Promise: The State asFiduciary (Oxford University Press 2011).

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about democracy.

Just as the powers of the Commission have evolved, so has Europeanintegration progressed, developing from relatively delimited and restrictedCommunities into what is now the EU. The expansion of EU competencescombined with their ‘deepening’, i.e. the Commission’s capacity to adoptdetailed and directly enforceable rules, have led to the EU being consideredoften more as a state-like entity than as an international organisation.9

Now more than ever, EU regulatory action is able to directly change thelegal position of the persons living within the EU in a great number offields.

As well known as this historic institutional development is, it shouldnot serve to conceal that these historically developed powers need to bebound into an appropriate normative framework. Yet, the conceptualisa-tion of the relations constituting the EU’s authority has lagged behind.More specifically, even though the EU has strengthened its representativemechanisms, the conceptualisation of the relationship between the non-representative regulatory institution, the Commission, and those subjectto its rules, is too thin to justify Commission powers. It is this justificationwhich is at issue.

Justification is necessary, not in order to know why a certain situationexists, but rather to give reasons whether to contend with this situation,to welcome it, or conversely to contest it. The Commission’s powers areheavily contested, if not in academic discourse, then in the public debate.This includes especially the Commission’s rule-making capacity,10 which

9But see Jorg Friedrichs, Jordan Mihov, and Maria Popova, ‘Synergies and Tradeoffsin International Cooperation: Broadening, Widening, and Deepening’ (2005) 9(13)European Integration online Papers who come to the same conclusion from anInternational Governance point of view.

10Thus, a reasons brought forward to vote for Britain to leave the EU wasthe undemocratic character of “Commission law-making”. Interestingly itis much easier to find website trying to disprove this claim than sourcesmaking it. For the former cf http://www.bbc.com/news/uk-politics-eu-referendum-36429482, http://www.heraldscotland.com/news/14329822.Facts givea lie to claim EU is an undemocratic bureaucracy/ or http://www.huffingtonpost.co.uk/theresa-griffin/why-the-eu-isnt-a-mass-of-bureaucrats b 9819604.html (allvisited 9 July 2016). It is telling that these websites, often times themselves infavour of the UK remaining in the EU correctly state the EU legislative acts arenot adopted by the Commission, without however explaining the Commission’s rolein delegated and implementing rule-making. Even though these are technically no

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appears to evoke particular criticism as being undemocratic. Given thiscontestation, it is necessary to review the justification for these powers.

Such justification is not necessarily a means to consolidate the Com-mission’s rule-making powers. Justification is not aimed at inventingbetter reasons for a given situation to persist. Instead, constructing ajustification for the Commission’s powers also has the effect of holdingthese powers to a normative framework. This evaluative exercise is opento or even likely to result in, a call for procedural change in order to fulfilthe conditions for justification.

7.2 Trust and Trustworthiness

The Commission’s powers to adopt delegated and implementing acts canbe justified as an expression of institutional trust.

Generally, trust is defined as the belief of a person P in the goodwill ofa person C regarding a matter R.11 Where a person trusts, she hands overauthority over important resources. When a person trusts, she followsdirectives without having checked their ‘correctness’ and without beingable to retaliate in the case of their ‘in-correctness’.

This situation is justifiable only where the trusted party C shows thatit can be trusted by providing the assurance of its good will. Being put ina situation of vulnerability can be justified only when at the same timeone is provided with reasons to trust the powerful party. These reasons totrust act as reasons to accept the power exercised as authority.

Institutional trust does not rely on an interpersonal relationship, butinstead on a formal, institutional relationship,12 and on legal and politicalstructures and obligations instead of a personal sense of connection andvirtue.13 In such a situation the institutional relationship is analogous toa trust relationship because it puts one party in the vulnerable position

‘laws’, as legal acts they would appear sufficiently similar to legislation to be called‘laws’ in lay-men’s terms.

11Anette Baier, ‘Trust and Antitrust’ (1986) 96/2 Ethics pp 231–260.12Susan Shapiro, ‘The Social Control of Impersonal Trust’ (1987) 93(3) American

Journal of Sociology pp 623–658; Susan Shapiro, ‘The Grammar of Trust’ in JocelynPixley (ed), New Perspectives on Emotion in Finance (Routledge 2012) pp 99–118.

13Phillip Pettit, ‘Republican Theory and Political Trust’ in Valerie Braithwaite andMargaret Levi (eds), Trust & Governance (Russel Sage Foundation 1998) pp 295–314.

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and the other party in a powerful position. This position is reasonableonly under the condition of trust. Putting a party P in this position thustreats it as if it had sanctioned this vulnerability by trusting its powerfulcounterpart.

In analogy to interpersonal trust, institutional trust describes twoaspects of a situation. The first aspect is an institutional relationshipwhere one party is vulnerable to another party and where this vulnerabilityis necessary for the purpose of the relationship. For example, where aperson P entrusts her investment portfolio to an institution C to manage,P is necessarily vulnerable to C’s (bad) decisions. It is not possible for Cto manage P’s investments without this vulnerability.

The second aspect, and the one distinguishing this from relationships ofdominance and oppression, is that the vulnerable party is assured that thepowerful party will not use its powers other than to protect the vulnerableparty and to act in her interest. Thus, person P will only accept personC’s powers over her investments if she has reason to believe that personC will not take decisions which are detrimental to her interests. Thiscertainty presents the attitude of trust. In this way, trust is the willingnessto be vulnerable.14

Couching the Commission’s powers to adopt delegated and implementingacts as justifiable by institutional trust means that this justification relieson the relational context in which these powers are exercised. It constructsCommission powers from the relationship of the Commission with itssubjects. These powers are linked to a specific role, namely that of atrust institution. Where the Commission does not fulfil that role, itspowers cannot be normatively grounded. The normative expectations thatare inherent in institutional trust thereby create the conditions for thisjustification.

This framework focuses on the Commission’s authority without eitherdemonising it as undemocratic, nor excusing it as ‘technical’. Instead,rule-making powers of the Commission should be treated as a part of theEU polity which has been confirmed through many Treaty revisions andpolicy reforms. These powers should be accepted as given. Yet this doesnot mean that their context and exercise needs to be accepted uncritically.Instead, acceptance is the first step towards being able to frame them in

14Larry E. Ribstein, ‘Law v. Trust’ (2001) 81 Boston University Law Review pp 553–590.

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a normatively appropriate way.

Powers can be changed into authority only when the subjects of apower accept it as justified.15 In the case of delegated and implementingacts, these subjects are individual and corporate persons within theMember States which are affected directly by the Commission’s exerciseof power. It is therefore these individuals with whom the Commission hasto construct its relationship, and with whom it must create a relationshipof institutional trust.

Even though the rule-making power was originally granted by MemberStates, these Member states ceased to be intermediaries between theCommission and the persons within the EU. The Commission’s powersneed to be accepted by those subject to them in order for delegated andimplementing acts to be an exercise of authority, rather than an act ofdomination.

As a result, the Commission has to show that it is trustworthy to thepersons subject to its rules. Only if the Commission shows itself to betrustworthy to them do they have reason to accept their vulnerabilitytowards the Commission’s powers. The legal principles and proceduresthat I call for are generally accepted as supporting this requirement of trust,and thus to create the willingness to be vulnerable.16 These principles andprocedures do not leave the power of the Commission unaffected. Withoutcreating strict, formal limits to the Commission’s discretion, they bindthe exercise of power to the interests and needs of the persons subject tothat discretion.

This demonstration of trustworthiness is then also an answer to thecontestation which confronts the EU. Where the EU, and particularlythe Commission, is confronted with accusations of essentially being an‘alien’ power, the answer can be to focus on how the Commission’s pow-

15Armin von Bogdandy and Ingo Venzke, ‘In Whose Name? An Investigation ofInternational Courts’ Public Authority and Its Democratic Justification’ (2012)23(1) European Journal of International Law pp 7–41.

16Cf the widely respected various studies conducted by Tom Tyler, for example Tom R.Tyler, ‘Governing amid Diversity: the Effect of Fair Decisionmaking Procedures onthe Legitimacy of Government’ (1994) 28/4 Law & Society Review pp 809–831; TomR. Tyler, ‘Trust and Democratic Governance’ in Valerie Braithwaite and MargaretLevi (eds), Trust & Governance (Russel Sage Foundation 1998) pp 269–294; Davidde Cremer and Tom R. Tyler, ‘The Effects of Trust in Authority and ProceduralFairness on Cooperation’ (2007) 92(3) Journal of Applied Psychology pp 639–649.

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ers are bound to the interests of the persons subject to it. Where theCommission is rejected as ‘unelected’, and answer can lie in referring toalternative mechanisms shaping the Commission’s exercise of discretiontowards courting individual’s trust, such as accounting for motives andprocedural transparency. The justification for the Commission’s powersto adopt delegated and implementing acts which bind the persons withinthe Member States directly is that in the exercise of these powers, theCommission can be trusted by these persons.

7.3 Fiduciary Commission and BeneficiarySubjects

The general and formal, i.e. legal, recognition of relationships of institu-tional trust is described by the field of fiduciary law. Fiduciary law isthe law that deals with the relationship between a person of power orinfluence with the subjects of that power or influence, thus describing,for example, the institutions of trusteeship, stewardship or agency. Eventhough fiduciary law has been put to many uses entirely unrelated to thesituation described here, it still uses the ideals of trust and trustworthinessto express the legal restraints on those in power. In this way it translatesthe normative expectations connected to institutional trust into legalobligations.17

Using a fiduciary framework constructs the Commission’s authoritywithout recourse to the terms and ideas stemming from the concept ofthe nation or nation state, because fiduciary law is not based on thenotion of a state or souvereign, or even a constitutional hierarchy ofnorms.18 Fiduciary law is as much a part of private law as of public law.However, it is neutral towards public law categories such as sovereigntyand statehood.19 Because it is conceptually detached from statehood and

17Shapiro, ‘The Grammar of Trust’ (n 12).18Thus, it does not rely on notions such as ‘nation’ or ‘Volk’ as the ultimate constituency

and legitimising body, and a fiduciary relationship is founded not on s higher orderof norms but on the relationship between the parties. This is not to say that itwould not rely on the enforcement mechanism provided by the State. Courts play avery important role in fiduciary law.

19Indeed, fiduciary law shares with European law that the idea of the public-privatedivide appears of little influence to its reasoning. Cf Hans-W. Micklitz, Yane Svetiev,

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even more from nationalism, it is a fertile source of inspiration for EU lawas a postnational legal system.20

A fiduciary holds its authority not on the basis of some prior or higherlaw, but on the basis of the interaction between the specific parties tothe relationship. These interrelations can be found in private and publicsettings alike, as their recognition depends more on substantive criteriarelating to the dynamic of the relationship than outside form.

In constructing a relational account of discretion, fiduciary law providesa valuable framework for situations in which there is no consensus oncategorisations. By relying on the internal relational structure between thelocus of power and the subjects of that power, the Commission’s authoritycan be constructed without having to refer to whether it is a ‘quasi-state’or a very evolved international organisation. This is useful in the caseof such new polities like the EU which do not fit into the well knowncategories, and where constitutional structures, such as between the EUinstitutions and the Member States, or the institutions and sovereigncountries outside the EU, are still in flux.

The fiduciary framework describes the Commission as the fiduciary ofthe persons subject to its rules. The Commission holds the position of the‘trustee’, i.e. a role defined by being trusted. This role is not dependenton the ‘nature’ of the fiduciary’s powers, i.e. how far reaching they areor which subject area they pertain to. To accept the role of fiduciary itis sufficient to simply hold a power and to realise that there are personswhich are vulnerable to the way it is exercised.

The Commission occupies this fiduciary position because it is responsiblefor the adoption of delegated and implementing acts, and thus is singularlypositioned to affect the interests of the persons subject to these acts eitherpositively or negatively. This position cannot be compromised by thefact that there are more institutions and committees involved in the rule-making process. The Commission remains in virtually all cases in thepivotal role, as it occupies a unique gateway function of allowing drafts tobecome legal acts. Even in cases where agencies are the ones drafting thetexts, the Commission is the institution that has to endorse this text for

and Guido Comparato, ‘European Regulatory Private Law – The Paradigms Tested’(EUI Working Paper LAW 2014/04, 2014) p. 6.

20For the postnational character of the EU, cf Deirdre Curtin, Postnational Democracy(Kluwer Law International 1997).

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it to become a legal act and has a veto on all drafts.

The persons which are vulnerable to the Commission’s exercise of powerinclude not only the EU citizens, but in many cases also companies andundertakings. The latter are the most direct subject of measures seekingmarket integration. In addition, some EU acts name specific groups orindividuals are beneficiaries of their protection. This has been the case,for example, for some refugees or indigenous groups.

The Commission’s interactions with each of these groups is likely toinfluence its rule-making. At the same time, a given regulatory contextmight mean that the Commission’s interactions with some groups aremore intense than with others and the obligations towards different groupsmight differ. For example, where the Commission regulates biocides,the interaction with industry (producers and users of such chemicals)is likely to be more intensive than with the general public. Where theCommission regulates in the field of consumer protection, its obligationtowards consumers are different than those towards producers.

However, it is important to keep in mind that the interests of none of thegroups can eclipse the obligations of the Commission to the other groups.The fact that the Commission owes obligations of loyalty to the consumersdoes not make producers any less beneficiaries of Commission rule-making,just as the fact that the Commission owes obligations of loyalty to indi-viduals cannot detract from the obligations of loyalty the Commissionowes to Member States. The discussion of the ‘correct’ balance, shouldconsequently also incorporate the recognition of the normative ties thatbind the Commission broadly.

In this way, the fiduciary relationship constructed here gives a certainstatus to a diverse set of economic and political actors. Although theseactors are each of influence for the development of the EU legal order,it has been difficult to capture their relationship with the Commissionin the rule-making process by more traditional categories of public law.Providing for the visibility of these groups in legal terms enables a debateabout the interrelations between different groups of persons protected byCommission rule-making (and ultimately protected by EU law).

Describing these various persons as beneficiaries of Commission dele-gated and implementing rule-making is about making their role visibleat least as much as it is about recognising any legal rights. This appearsparticularly important to stress in the case of those persons for which such

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7.3 fiduciary commission and beneficiary subjects

rights are contested. Thus, the inclusion of legal persons – corporations– under the beneficiaries of Commission rule-making is not a statementabout whether they should be protected or otherwise be treated favourably,especially in relation to other groups of beneficiaries. Neither is the inclu-sion of, for example, refugees a statement about their rights in the EUlegal order, beyond the bare minimum of recognising them as having thecapacity to call for and receive such protection. Instead, the fiduciaryconstruction of the relationship between the Commission and the subjectsof its rule-making provides for a language for a debate about the formthat the relationship takes between the Commission and specific groups.In this language, any legal outcome for any group can be contested as wellas supported.

What comes into focus with the change of perspective of EU publiclaw to fiduciary law, is the legal role of ‘interests’ in the work of theinstitutions. Thus, the fiduciary framework pays attention to the way thata fiduciary’s own interests influence a decision, but also how the differinginterests among beneficiaries are taken into account. Interests here areunderstood as categories of reasons, not merely preferences. Fiduciarylaw is uniquely sensitive to these reasons; to the motivation underlyingdecisions.21 It is a basic assumption of fiduciary law that a fiduciary (oranyone for that matter) has recourse to different categories of reasonand that she is sensitive to self-interest as well as the interest of thebeneficiary. It is maybe the most fundamental role of fiduciary obligations,i.e. the duty of loyalty, to legally recognise the normative differencesbetween different kinds of reasons, even where none of them is in itselfillegal. By giving expression to the appropriateness of taking recourse todifferent kinds of reason, including the inappropriateness of self-interest infiduciary relations, a fiduciary framework allows for a better debate aboutCommission rule-making.

21Lionel Smith, ‘The Motive not the Deed’ in Joshua Getzler (ed), RationalizingProperty, Equity and Trusts: Essays in Honour of Edward Burn (Butterworths2003) pp 53–80.

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7.4 Commission Loyalty

Fiduciary law connects certain obligations to the fiduciary position. Theseobligations seek to build a form of guard against the abuse of power22 orto undo this abuse if it already occurred.23

To be trustworthy to the persons subject to its rules, the Commissionneeds to demonstrate loyalty to those very persons. While trustworthi-ness in interpersonal relationships is a matter of the specific relationshipbetween individuals, institutional trustworthiness, working in a formallegal or political relationship, needs to be more generally acceptable andrecognisable by formal rules.

Loyalty expresses ‘devotion’ to a person, group or cause24 and thewillingness to put self-interest aside to further the interests of the subjectof one’s loyalty.25 Loyalty is what characterises a fiduciary position asmuch as its discretionary powers; the two are co-original.26

The EU Treaties already contain the duty of loyalty.27 Since the Treatyof Lisbon, this duty is explicitly also incumbent on the institutions.28

However, the scope of this duty does not extend to the relationship betweenthe Commission and the persons directly subject to its acts, but has alsostayed firmly at the ‘intergovernmental’ and ‘international’ sphere madeup of Member States and EU institutions.

This restriction corresponds to a more general approach in EU law.Whereas in EU law procedural defects29 are seen to work so as to negate

22Matthew Conaglen, ‘The Nature and Function of Fiduciary Loyalty’ (2005) 121 LawQuarterly Review pp 452–480.

23Joshua Getzler, ‘An Interdisciplinary View of Fiduciary Law: ”As if” – Accountabilityand Counterfactual Trust’ (2011) 91 Boston University Law Review pp 973–990.

24Josiah Royce, The Philosophy of Loyalty (Macmillan 1908).25Albert O. Hirschman, Exit, Voice and Loyalty: Responses to Decline in Firms,

Organizations and States (Harvard University Press 1970).26Paul Finn, ‘The Fiduciary Principle’ in T.G. Youdan (ed), Equity, Fiduciaries and

Trusts (Carswell 1989) pp 1–48.27Consolidated Version of the Treaty on European Union [2010] OJ C83/13 (TEU)

arts 4(3), 13(1).28Wolfgang Kahl, ‘Art. 4 EUV (Absatz 3)’ in Christian Calliess and Matthias Ruffert

(eds), EUV/ AEUV Kommentar (4th edn, Verlag CH Beck 2011) pp 64–112.29It is much more likely that an act be struck down for procedural defects than for

abuse of power. The latter happens too rarely for it to be relevant to the furtherargument. See also Jurgen Schwarze, ‘Judicial Review of European AdministrativeProcedure’ (2004) 68(1) Law and Contemporary Problems pp 85–105.

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the will of the founders of the Treaty and the institutional balance,30

in fiduciary law and especially trust law, these standards appear as aspecification of the obligations of loyalty of the trustee and the role ofthe Court in safeguarding them.31 However, the restriction to MemberState delegation as a normative source does not do justice to the scopeof the Commission’s authority. This authority is not restricted to theintergovernmental level but instead affects individual persons directly.

Because the Commission and the persons subject to its acts find them-selves in a fiduciary relationship and not one in which the parties dealwith each other as two autonomous actors, it is the (moral and functional)imperative that the interests and concerns are shared between the Com-mission and these persons. This sharing of interests and concerns is thefundamental dynamic of integration, and it explains the fundamental rele-vance of loyalty for EU law: the development of the European Communityand the Union is a project of economic (and political) integration.32 Whilethe EU project started out as integration between Member States, itsdirect exercise of authority over persons within the Member States nowalso requires a certain ‘integration’ between the Commission and thesepersons.33

The duty of loyalty which the Commission should be under as a fiduciaryis one that resonates with, but is not congruent with, the duty of loyaltywhich governs the relationship between the institutions and the MemberStates. While fundamental tenets of cooperation and respect fit well withthe loyalty necessary of fiduciaries, the operationalisation of the EU dutyof loyalty often builds on the reciprocity of the relationship, an aspectwhich is not applicable in the context of the adoption of delegated and

30Case C-425/13 European Commission v Council of the European Union (2015)electronic reports of cases: Court reports – general (ECLI:EU:C:2015:483) para69, Case C-73/14 Council of the European Union v European Commission (2015)electronic reports of cases: Court reports – general (ECLI:EU:C:2015:663).

31Lionel Smith, ‘Fiduciary Relationships: Ensuring the Loyal Exercise of Judgementon Behalf of Another’ (2014) 130 Law Quarterly Review pp 608–634, p. 615 et seq.

32Interestingly, this link between integration and loyalty has been made from verydifferent perspectives: Cf Majone, ‘Two Logics’ (n 5) p. 118 with Armin Hatje,Loyalitat als Rechtsprinzip in der Europaischen Union (Nomos 2001) p. 63.

33This can also be referred to as the ‘domestication’ of EU authority, as the EUbecoming an ‘us’ rather than a foreign ‘them’. For the term, cf, for example,Francisco Perez, Political Communication in Europe: the Cultural and StructuralLimits of the European Public Sphere (Palgrave Macmillan 2013).

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implementing acts. The relationship between the Commission and thepersons subject to its authority is rather characterised by the vulnerabilityof these persons towards the Commission.

In this case, the duty of loyalty incumbent on the Commission shouldbetter be operationalised as disinterestedness and fairness. This proposi-tion is inspired by fiduciary law rules, where disinterestedness is the normgoverning the relationship between the fiduciary and the beneficiaries ingeneral, and fairness the norm governing the relationship between thefiduciary and different groups of beneficiaries, where different groups havediffering interests.

Disinterestedness requires the Commission to disregard self-interest inthe fulfilment of its mandate. Disinterestedness restricts the permissiblereasons for Commission action. In this a legal duty to disinterestednessexpresses what could otherwise be surmised under the public character ofthe Commission’s authority, namely the impermissibility of self-interestedgains. Disinterestedness should be operationalised by a greater attentionto the motivation behind Commission decisions.34

Fairness requires the Commission to avoid becoming an instrument ofpartial interests in unduly favouring one group of beneficiaries over another.This requirement is most salient in connection to the obligation of theCommission to deliberate,35 especially in light of considerable differencesin interests among the persons subject to Commission acts. Where onegroup has greater access to the Commission than another, the Commissionis liable to protect this group’s interests more than that of another groupof beneficiaries. This is illustrated by the accusation of the Commissionbeing too close to the corporate world. This bias would present a breachof loyalty towards the disregarded group, in this case the citizens.

Fairness should be operationalised first, by making more details regard-ing the decision-making process public. Even though it is very difficult toprescribe which combination of interests should participate in the decision-making process for any given policy area, the Commission should reflecton this participation and be able to justify it in light of the requirementof fairness. Such justification requirement can serve both to disciplinethe Commission’s choice of process, as well as to open the Commission’s

34Smith, ‘The Motive not the Deed’ (n 21).35Ethan J. Leib and David L. Ponet, ‘Fiduciary Representation and Deliberative

Engagement with Children’ (2012) 20(2) Journal of Political Philosophy pp 178–201.

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approach to fairness to public critique.

The choice for procedures rather than of substantive duties to opera-tionalise a fiduciary relationship is not incidental. The relation betweencitizens and public authority is manifested – in as far as it can be graspedby the perspective of law – in procedures. Procedures determine how theinteractions making up this relationship will take place; which contentthey can have, but also which roles either of the participants is cast into.Procedures can implement human dignity and democratic respect forcitizens36 – or they can implement the opposite. “Procedures rationalisepublic action,”37 they provide a manifestation of the paradigm underwhich rule-making takes place, a paradigm that phrases which actions willbe thought of as ‘normal’ or ‘good’ and which as ‘abnormal’ or ‘bad’.

More concrete duties of disinterestedness and fairness offer an opportu-nity to unburden the enforcement process and particularly Court proceed-ings somewhat. What is necessary is the recognition that it is a part ofthe discharge of these duties to show that they have been discharged, asthe Court already recognises regarding the duty of loyalty of EU officialstowards the EU.

Accounting for motives and procedural transparency are mechanismsthat affect the relationship between the Commission and the personssubject to its rule-making. They serve to counteract the dangers ofdisenchantment and alienation of the persons within the Member Statesfrom the Commission, and maybe even more the dangers of estrangementof the Commission from these persons. In any case, accounting for motivesor procedural transparency work subtly, making it impossible to pointto how they would change a specific act. At the same time, because theadoption of delegated and implementing acts takes place in the contextof the relationship between the Commission and the persons within theMember States, the adoption process of such acts is liable to change asthe relationship does. And with the process, the content of delegated andimplementing acts is likewise likely to change. Accounting for motives

36Jeremy Waldron, ‘How Law Protects Dignity’ (2012) 71(01) Cambridge Law Journalpp 200–222.

37Joana Mendes, ‘The Making of Delegated and Implementing Acts: Legitimacy BeyondInter- Institutional Balances’ in Carl Fredrik Bergstom and Dominique Ritleng (eds),Law-Making by the EU Commission: The New System (Oxford University Press2016) pp 233–254 p. 243.

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and procedural transparency ensure that the Commission engages in thewhy and how of rule-making. Active choices in this field already exertdisciplining force.38

Even though I pointed to different ways of how an account of motivesand procedural transparency can be implemented in the adoption processesof delegated and implementing act, this is not the focus of my argument.I focus on arguing for the relevance as well as the consequences of taking atrust based, fiduciary approach to Commission delegated and implementingrule-making. It is my aim to show that the implementation of such anapproach is possible and feasible. Consequently the re-constructive exerciseundertaken here supplies some parameters of how to choose a mechanismfor implementation, it does not determine this choice entirely. Thisdetermination depends as much on the political context at the time ofdeciding on the form of implementation mechanisms as it does on legalprinciple.

7.5 Paradigms and Change

The practical changes that I propose to the adoption procedures of dele-gated and implementing acts appear relatively small. Yet, these changespromise to accomplish the switch to another framework, or even to anotherparadigm.

The framework of trust represents a paradigm which describes a relation-ship which is not at arm’s length, in which the parties cannot be describedas autonomous. The shift to a framework of trust is paradigmatic inthe sense that the reasons that are valid in a framework of trust cannotbe fully described in the rationale of bargaining. Trust is in this sense‘irrational’.

The switch to a fiduciary framework in law does not often produce farreaching practical consequences. Nevertheless it changes the rules of thegame in that it anchors a relationship in a specific normative framework.One of the functions of fiduciary obligations and the legal mechanismsimplementing them is to signal this specific normative framework, as much,

38Jason Dana, Roberto A. Weber, and Jason Xi Kuang, ‘Exploiting Moral WiggleRoom: Experiments Demonstrating an Illusory Preference for Fairness’ (2007) 33Economic Theory pp 67–80.

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or even more, as it is their function to sanction breaches of law.39 In asimilar vein, duties of disinterestedness and fairness have a strong signallingfunction, supporting the adherence to a framework of institutional trust.

What the imposition of a fiduciary framework on the adoption ofdelegated and implementing acts seeks to achieve is a difference in attitude.Changes in attitudes can effect a fundamental change in a relationshipeven if the observable difference might only amount to a change in tone ininterpersonal communication. Discretion is shaped first and foremost bythe actions of the authority exercising this discretion. What this authoritydeems appropriate depends on what ‘game’ (as game-theory uses the term)it considers to be playing; a game between equals or one with asymmetries,one about competition, or one about cooperation?

The fiduciary perspective in effect describes the parameters of the ‘gameat play’, of the normative principles guiding the relationship betweenCommission and the persons subject to its authority. In this, it drawsattention to how Commission rule-making will affect those it interacts with.Incorporating disinterestedness and fairness in the adoption proceduressignals that the adoption of delegated and implementing acts is abouttaking care of persons who are vulnerable to the effects those acts. Atthe same time it signals that these vulnerabilities do not diminish therequirement of the Commission to treat these persons with respect andcourtesy. By ensuring that the Commission pays respect, a signal isgiven that this is not a one-way power relationship but rather that theCommission’s authority ultimately depends on the acceptance of its powersby the persons subject to delegated and implementing acts.

Reconstructing the Commission’s relationship with those persons in thisway is as much a contribution to the debate about principles in Europeanadministrative law as it seeks to support a new debate. This new debateis about the relationship between the EU institutions and the personsdirectly affected by their acts. While it is clear that this relationshipis delimited by law, such as fundamental rights, the substance of thisrelationship within the limits of fundamental rights and administrativelaw has received too little attention. Even though the Commission’s actshave legal limits through the regimes of Arts. 290 and 291 TFEU, they

39Margaret M. Blair and Lynn A. Stout, ‘Trust, Trustworthiness, and the BehavioralFoundations of Corporate Law’ (2001) 149(6) University of Pennsylvania Law Reviewpp 1735–1810.

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still leave it to the Commission to chose between a range of legal actions.The normative parameters of this choice is the issue here.

The idea of popular authorship of legal rules through political rep-resentation remains a cornerstone of the EU’s political philosophy justas in their Member States. However, significant groups of persons feelunrepresented by the political process which results in laws which theyappear to even feel oppressed by. This has been evident in the debateleading up to the referendum on EU membership in Britain, and has beenechoed in many more Member States. In this situation it is important toalso provide ideas and a narrative for how the EU’s legal acts relate tothe persons they affect, regardless of whether they authored them or not.The experience of being a subject to EU legal rules appears much morewide-spread than the experience of having a say in making them.

Ultimately this debate about what the relationship between EU institu-tions as rule-makers and the persons directly subject to them is ‘made of’ties back into the debate on the nature of the EU. As a contribution to thisdebate, I advocate a more relational and less functional and rationalisticconceptualisation of the EU polity. In binding the EU Commission’spowers to the needs and interests of the persons subject to them, thusin effect by binding these powers to the needs and interests of all of usliving, working, trading and travelling in the EU, I hope to shape the EUCommission towards ‘belonging to us’.

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Summary

Who sets the rules that govern us? For a large part of EU rule-makingthis is the European Commission. The Commission adopts those rulesthat order participation on the internal market in the most concrete anddetailed manner at EU level, for example by setting the procedure for theauthorisation of products using biocides or by determining which energyclass an appliance falls into. The EU’s and especially the Commission’sauthority have become heavily contested, for example in the debatesurrounding Brexit, but also through the rise of EU critical politicalmovements in many other Member States. This development makes it allthe more necessary to take a closer look at the normative grounding ofthe Commission’s powers.

These rules are contained in delegated and implementing acts. Thisraises the question of the relationship between us, the persons subjectto these rules, and the Commission as the rule-maker. What gives theCommission authority to govern over persons within the Member States?

The argument here goes beyond checks and balances. The way in whichdelegated and implementing acts are shaped through their legislativemandate and through the mandatory involvement of Parliament andCouncil does play a role. After all the mandate and sanctioning by ourelected representatives in either Parliament or Council is liable to positivelyinfluence our attitude towards the measures adopted by the Commission.However, the most striking aspect is the way in which the Commission is

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nevertheless free to distribute burdens and validate or invalidate ideas ofhow we all should live together.

From the perspective of the subjects, the people, the question put tothe Commission is ultimately that: who are you to me? Why do you thinkyou can tell me what to do? This issue is not settled by the statementthat the Commission is the executive organ of legislative decisions byCouncil and Parliament. These labels are of limited explanatory force inthe EU legal system. Instead, it is necessary to inquire further and toask what position that gives the Commission in relation to the people?In this latter relation, the Commission appears first and foremost as theissuing authority of an act. This position as issuing power needs to benormatively justified.

However, even when I state the freedom of the Commission to choseand decide, it should become immediately clear that this is a specific sortof freedom. The Commission is passing generally binding legal rules, inadopting delegated and implementing acts it is exercising public authority.It would be very problematic if the Commission were free to exerciseits power to legally bind persons in whichever way it wanted. Instead,requirements of democracy mean that in some way or other the personssubject to its rule need to be incorporated into the decision making by theCommission and considerations of the rule of law require the Commissionto do so in a structured and rational way. In exercising its powers toadopt binding rules, the Commission must not act whichever way it wants,not act on its own whim, but instead its actions must be a service to thepeople, and the people must be able to see it to be so. The freedom ofaction of the Commission can then be no more than the freedom of beingable to act on its beliefs of how these conditions are best fulfilled.1

This peculiar form of freedom and power is well known. It is a fun-damental characteristic of our understanding of public administrations.Even though the term ‘administration’ has many facets, the notions ofpublic service and rationality are firmly rooted in its core.

What emerges from the existing conceptual discussions of ‘administra-tion’, but also ‘delegation’ or ‘implementation’ is a shadow (or maybe a pre-monition) of a normative framework which would be able to act as guidance

1This does not mean that there were no judicial review of this view or of the legal act.However, the Court will seek to not replace the Commission’s judgement on thismatter by its own, but defer to the Commission in any but the most egregious cases.

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for the Commission in exercising its discretion. This shadow/premonitionpertains to the normative conditions for public authority in a democraticsystem of law. I argue that the legal institution describing these conditionsin the most concrete terms is the institution of the fiduciary. Fiduciarylaw, the law of trustees, agents, guardians or administrators, describesinstances of the exercise of authority, all the time relying on the internallogic (and morality) of the relationship created by this authority.

Because fiduciary law is not dependent in its reasoning on notions wenecessarily connect to states,2 it is a fertile source of inspiration for EU lawas a postnational legal system. Fiduciary law is an account of authoritywhich applies across private and public law and does not depend on theexistence of a state for the creation and justification of its normativestructure.

I argue that the relation of authority of the Commission over thepeople works so as to put the Commission under normative constraints.These constraints are best explained by a reference to the Commissionrequiring institutionalised trust for the authority of its acts. This trustis institutionalised because the institutional context assumes that thepersons subject to delegated and implementing acts trust the Commissionto make (good) rules. This assumption is evident in that the personssubject to Commission rules are placed in the position of vulnerabilityto the Commission’s decision. In interpersonal relationship we wouldplace ourselves in a situation of such vulnerability only if we trusted thedecision maker. In the institutional context of the adoption of delegatedand implementing acts this position of vulnerability then needs to becomplemented by mechanisms which support institutional trustworthinessso as to justify this situation.

These mechanisms require that the Commission’s decision must not bedetermined by its own interests, but instead that of the persons subject toits rules, and that these persons must be able to know it to be so. Theserequirements are prominent in fiduciary law. Fiduciary relations typicallyare open ended and characterised by the requirement to bind the powerholder to the interests of the subject of the power in an open ended way.

2Thus, it does not rely on notions such as ‘nation’ or ‘Volk’ as the ultimate constituencyand legitimising body. This is not to say that it would not rely on the enforcementmechanism provided by the State. Courts play a very important role in fiduciarylaw.

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In this book, I cast the Commission in the role of fiduciary, therebydescribing it as bound by the obligations incumbent on fiduciaries. Thisresults in some uncommon nomenclature, but connects remarkably well towell known doctrines of EU administrative law. The most important con-sequence of this role casting is that the Commission finds itself under theobligation of loyalty. In the fiduciary perspective the binding mechanismtaking care of the primacy of the people’s interests is framed as ‘loyalty’.Loyalty is a fundamental component of fiduciary relationships.

The duty of loyalty is fundamental also to EU law and original to thefounding Treaties. In the beginning formulated so as to bind MemberStates, the provisions now also out a duty of loyalty on the institutions,with regards to both member states and each other.

The duty of loyalty usually takes the form of a background norm, usedto fill lacunae of the more specific legal and procedural arrangementsof the Treaties. It is in this function, i.e. as a background norm, thatthe Court has extended it from binding Member States to also bindinginstitutions. In the same line of argument, the duty of loyalty could andshould be extended and reformed so as to include the relationship betweenthe Commission and the persons subject to its rules. This would fill anormative gap in EU law which is at the moment still unable to describethis relationship.

In more philosophical accounts, loyalty is often described as an attitude,or as determining motivations. In fiduciary law, two norms stand out asmanifestations of loyalty. The first is that of the prohibition of self-interestor the prescription of disinterestedness. This norm takes effect in therelation between the fiduciary and the group of beneficiaries taken together.The second is the prohibition of bias or the prescription of fairness. Thisnorm takes effect in the relation between fiduciary and beneficiaries wherethe beneficiaries are taken to be a heterogeneous group with differinginterests. Through this norm the differing loyalties to the different groupsof beneficiaries can be consolidated.

Since these obligations draw on the Commission’s relation to the people,it is necessary to be more clear on who these people, these subjects to theCommission’s powers, are. The Treaties, but also case law, make it clearthat EU regulation is supposed to be in the interests of the EU citizens.However, seeing to whom rights and duties are actually distributed, itbecomes clear that the subject, and also beneficiaries of the Commission’s

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powers are not only natural persons, as is part of the meaning of ‘citizen’,but likewise companies and enterprises, i.e. the legal persons acting onthe market. Furthermore, there are instances in which legislative actsexpressly mention the protection of the interests of further groups ofpersons, which are neither EU citizens nor necessarily corporate personsacting on the EU market. Such is the case, for example, with measuresprotecting refugees or indigenous peoples.

The obligations of loyalty furthermore need to be legally enforceablein order to develop full legal effect. This will probably require a greatersensitivity of the Court towards problems of proving disloyalty from aposition of vulnerability. The position of the Commission, for exampleregarding access to information that could form evidence, is much strongerthan that of the persons subject to its rules that the restraint currentlypractised by the Court may very well leave the persons subject to theCommission’s rule in effect without legal protection against Commissiondisloyalty.

The operationalisation of disinterestedness and fairness, and ultimatelyof loyalty, takes the form of procedural requirements. This is becauseprocedural requirements are able to consolidate the dual necessity ofproviding for loyalty to the people and the people knowing it to be so.This latter aspect, the ‘publication’ of the fulfillment of duties is importantfor the loyalty of the Commission to take effect in the relation betweenitself and the people.

This procedural implementation makes on the one hand adherence todisinterestedness and fairness more concrete, while on the other handstill providing for the Commission authorship for which discretion wasoriginally granted. The procedures operationalising disinterestedness andfairness should be added to the procedural requirements for the adoptionof delegated and implementing acts.

Disinterestedness would here work through accounting for motives. Thisaccount is necessary to attain greater clarity on the motivation of theCommission when adopting delegated and implementing acts. This clarityis not necessarily directed to the forum to which the account is given, butmore importantly for the Commission itself. A procedural mechanismthat has the Commission account for its motives is intended to improvethe Commission’s reflectiveness (or maybe ‘reflectedness’), so as to makedisinterestedness possible.

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Fairness would here determine the balance of those taking part in theCommission’s decision making process and the form this participationtakes. The Commission should be required to keep a fair balance of thedifferent interests involve and to create forms of participation appropriateto the diverse degrees and forms of organisation these interests take. A firststep to this needs to be the identification of the differing interests presentin any specific policy field. This requirement should be formalised throughmaking the justification for the decision making procedures (including theinvolvement of bodies or individuals from outside the Commission) a partof the duties to give reasons. Thus, the Commission should be requiredto name those bodies and organisations which took part in the decisionmaking process and justify the form this process took. This informationshould be accessible with reasonable ease for anyone interested in thejustification of a specific act. This way, the Commission’s understandingof fairness in any given process would be open, and thus also open toquestions by the public and by the Courts.

The ideas put forward in this book present a first step towards adoctrine of Commission loyalty that serves to justify the Commission’spowers over the persons subject to its rule. This justification comes underthe condition of further obligations on the Commission, but it promises thereward of greater acceptability of Commission powers. Such acceptabilityis a resource which is critical to the functioning of the EU, especially atthis moment of severe contestation.

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Samenvatting

Wie maakt de regels die ons allen binden? Voor de grote meerderheid vanhet Europese recht is dit de Commissie. De Commissie neemt de besluitendie de toegang tot de interne markt in de meest concrete en gedetailleerdevorm regelen. Deze besluiten nemen de vorm aan van gedelegeerde enuitvoeringshandelingen. Dit roept de vraag op naar de relatie tussen ons,de personen die aan de handelingen van de Commissie onderworpen zijn,en de Commissie als de opsteller van deze regels. Op grond van welkeredenen is de Commissie bevoegd haar gezag uit over personen in delidstaten?

Bij de beantwoording van deze vraag spelen de verplichte betrokkenheidvan het Europees Parlement en de lidstaten natuurlijk een belangrijke rol.Dat geldt evenzeer voor de wijze waarop gedelegeerde en uitvoeringshan-delingen vorm krijgen middels hun wetgevingsgrond. Het feit dat de doorons verkozen vertegenwoordigers in het Parlement of in de Raad opdrachtgeven voor deze regels en ze goedkeuren, is een gegeven dat onze houdingten opzichte van deze regels waarschijnlijk positief beınvloedt. Desondanksis het een opvallend gegeven dat de Commissie in het opstellen van dezeregels vrij is om naar eigen inzicht de lasten te verdelen en om ideeen overonze wijze van samenleven geldig of ongeldig te verklaren.

Bij de persoon die aan de handelingen van de Commissie onderworpen is,doet zich uiteindelijk de volgende vraag voor: wat betekent deze instellingvoor mij? Waarom kan zij aan mij vertellen wat ik wel of niet mag doen?

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Dit vraagstuk wordt niet opgelost door het feit dat de Commissie hetuitvoerende orgaan is voor de wetgevende beslissingen van de Raad en hetParlement. Het is noodzakelijk om verder te vragen in welke relatie deCommissie staat ten opzichte van de personen die zij reguleert. In dezerelatie neemt de Commissie eerst en vooral een positie van een gezagsdrageraan die regels aanneemt. En het is deze positie die zij normatief dient terechtvaardigen.

Het is evenwel onmiddellijk duidelijk dat de vrijheid van de Commissieom te beschikken en te besluiten een bijzondere vorm van vrijheid is.Doordat de door de Commissie aangenomen gedelegeerde en uitvoering-shandelingen handelingen van algemene strekking zijn, oefent zij openbaargezag uit. Het zou problematisch zijn als het de Commissie hierin vrij zoustaan om personen elke wettelijke verplichting op te leggen die zij maarwenst. In plaats daarvan is het een voorwaarde van de democratie dat elkepersoon die aan een besluit onderworpen is aan het besluitvormingsproceskan deelnemen. Rechtsstatelijke overweging vereisen bovendien dat deCommissie dit op een gestructureerde en rationale manier doet. Bij hetuitoefenen van haar gezag kan de Commissie daarom niet beslissen watzij maar wil. Ze mag niet ’zelf bedenken’ hoe ze gaat handelen, maarhandelt ten dienste van de aan haar regels gebonden personen en dezepersonen moeten vervolgens kunnen vaststellen of dat het geval is. Dehandelingsvrijheid van de Commissie is dus niet meer dan de vrijheid omnaar eigen inzicht te mogen beslissen hoe aan deze dienst het best zoukunnen worden voldaan.

Deze eigenaardige vorm van vrijheid in de uitoefening van macht isal lang bekend. Het vormt een kernelement in ons begrip van ’open-baar bestuur’. Hoewel het begrip ’bestuur’ verschillende facetten kent,zijn de noties van dienstbaarheid aan het algemeen nut en rationaliteitvastbesloten in haar kern.

Wat in de bespreking van de begrippen ‘bestuur’, ‘delegatie’ en ‘uitvo-ering’ naar voren komt, is een schaduw (of misschien een vermoeden) vaneen normatief kader dat in staat is het handelen van de Commissie eenleidraad te bieden in haar keuzes. Deze schaduw/dit vermoeden heeftbetrekking op de normatieve voorwaarden voor gezag in een democratischrechtssysteem. Ik beargumenteer dat het concept van fiduciariteit, hetjuridische concept is dat het beste aansluit op deze voorwaarden voorgezag. Fiduciair recht behandelt gevallen van de uitoefening van gezag en

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is steeds gebaseerd op de interne logica (en moraliteit) van de relatie diedoor dit gezag gecreeerd wordt.

Omdat fiduciair recht niet gebaseerd is op noties die noodzakelijk verbon-den zijn aan het idee van de staat vormt het een vruchtbare inspiratiebronvoor de postnationale rechtsorde van de EU. Fiduciair recht omvat eenuitoefening van gezag dat in zowel privaat- als publiekrechtelijke rechtsver-houdingen toepassing vindt en dat voor zijn creatie en rechtvaardigingniet afhankelijk is van de aanwezigheid van een natiestaat.1

Ik betoog dat de gezagsrelatie tussen de Commissie en de aan haarbeslissingen gebonden personen van die aard is dat de Commissie in haargezagsuitoefening aan normatieve beperkingen is onderworpen. Dezebeperkingen kunnen het best worden begrepen door terug te grijpen op denoodzaak tot een geınstitutionaliseerd vertrouwen in de Commissie voorhet gezag van handelingen. Dit vertrouwen is geınstitutionaliseerd omdatde institutionele context verlangt dat aan gedelegeerde en uitvoeringshan-delingen gebonden personen erop kunnen vertrouwen dat de Commissie‘goede’ regels opstelt. Deze assumptie is evident in het feit dat de personendie aan de handelingen van de Commissie onderworpen zijn, kwetsbaarzijn voor de beslissingen van de Commissie. In interpersoonlijke relatiesstellen mensen zich alleen kwetsbaar op als ze de gezagdrager vertrouwen.In de institutionele context van de besluitvorming omtrent gedelegeerdeen uitvoeringshandelingen is het noodzakelijk deze kwetsbaarheid doormechanismes te bevorderen die de betrouwbaarheid van de Commissieaantonen.

Deze mechanismen vereisen dat de beslissingen van de Commissie nietbepaald worden door haar eigen belang, maar dat de belangen leidendzijn van de personen die aan de handelingen van de Commissie gebondenworden en dat deze personen zich hiervan op de hoogte kunnen stellen.Deze vereisten vormen een kernonderdeel van fiduciair recht. Fiduci-aire verhoudingen zijn doorgaans langdurige verhoudingen die wordengekenmerkt door de noodzaak om de autoriteit van de gezagsdrager (defiduciair) op algemene wijze te binden aan de belangen van de personendie onderworpen zijn aan deze autoriteit.

1Om deze redenen is fiduciair recht niet afhankelijk van noties als ‘natie’ of ‘volk’ alseen constituerende en legitimerende kracht. Dit betekent niet dat fiduciair recht nietafhankelijk is van de uitvoeringsmechanismen van een staat. Rechtbanken speleneen belangrijke rol in de ontwikkeling van fiduciair recht.

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In dit boek beschrijf ik de Commissie als een fiduciair en daaromals gebonden aan de plichten die aan deze positie verbonden zijn. Ditleidt tot een soms ongebruikelijke terminologie die evenwel opmerkelijkgoed aansluit bij bekende doctrines van het Europees bestuursrecht. Hetmeest belangrijke gevolg is dat de Commissie aan een loyaliteitsplichtonderworpen wordt. Loyaliteit is de fundamentele verplichting van defiduciair.

De plicht tot loyaliteit is ook een fundamenteel beginsel van het EUrecht en dat reeds een onderdeel vormde van de oorspronkelijke verdragen.Hoewel deze plicht in het begin alleen aan lidstaten gericht was, zijnnu ook de Europese instellingen verplicht zich loyaal te gedragen, zoweltegenover de lidstaten als jegens elkaar.

De plicht tot loyaliteit word doorgaans als algemeen beginsel beschouwden dat fungeert om lacunes in meer specifieke Verdragsbepalingen in tevullen. Door gebruik te maken van het loyaliteitsbeginsel als algemeenbeginsel heeft het Hof de toepassing van het loyaliteitsbeginsel uitgebreidvan de lidstaten tot de Europese instellingen. Op een vergelijkbare manierzou de plicht tot loyaliteit van de Commissie ook kunnen en moetenworden uitgebreid naar de relatie met de personen die aan de handelingenvan de Commissie zijn onderworpen. Dit zou een normatieve lacune vullenmet betrekking tot een relatie die het Europees recht momenteel niet instaat is afdoende te beschrijven.

In meer filosofische zin wordt loyaliteit vaak als een houding beschreven,of als een motivatie. In fiduciair recht komen vooral twee normen naarvoren als manifestaties van loyaliteit. Dit eerste is de verwerping vaneigenbelang of het voorschrift van ‘belangeloosheid’. Deze norm treedt inwerking in de relatie tussen de fiduciaire actor en de ‘begunstigden’ alsgroep. De tweede norm is het verbod op bevoordeling of benadeling, ookaangeduid als het voorschrift van ‘fairness’. Deze norm treedt in werkingin een relatie tussen een fiduciaire actor en de begunstigden ,waarin debegunstigden onderling verschillende belangen hebben. Het doel vandeze norm is om de tegenstrijdige loyaliteiten aan verschillende groepenbegunstigden te binden.

Aangezien deze normen gerelateerd zijn aan de relatie tussen de Com-missie en de aan haar besluiten gebonden personen, is het belangrijk ombeter te begrijpen wie deze personen zijn. De verdragen en de jurispru-dentie maken duidelijk dat EU-handelingen de belangen van de Europese

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burgers dienen te reflecteren. Echter, met het oog op de rechten en plichtendie voortvloeien uit de handelingen van de Commissie wordt duidelijkdat de groep van begunstigden ruimer zou moeten worden gedefinieerddan de natuurlijke personen in de lidstaten die normaal de status vanburger bekleden. Ook rechtspersonen die zich op de interne markt begeven,zoals ondernemingen, zouden in de groep van de begunstigden opgenomenmoeten worden. Daarnaast zouden die personen genoemd moeten wor-den, wiens belangen in specifieke gevallen door wetgevende handelingenbeschermd worden. Deze personen zijn, bijvoorbeeld, vluchtelingen ofinheemse volkeren.

De verplichting tot loyaliteit dient bovendien juridisch afdwingbaar tezijn om volledig rechtsgevolg te hebben. Dit vereist waarschijnlijk eengrotere gevoeligheid van het Hof jegens de moeilijkheid voor kwetsbaregroepen om disloyaliteit aan te tonen. De positie van de Commissie alsgezagsdrager is doorgaans veel sterker dan van diegenen over wie het gezagwordt uitgeoefend, bijvoorbeeld waar het toegang tot informatie betreftdat als bewijs kan dienen. De terughoudendheid die momenteel wordtbetracht door het Hof kan er daardoor toe leiden dat personen gebondenworden aan Commissie-handelingen zonder dat deze personen rechterlijkebescherming genieten tegen disloyaliteit van de Commissie.

De operationalisering van belangeloosheid en ‘fairness’ en uiteindelijkvan loyaliteit neemt de vorm aan van procedurele vereisten. Dit is hetgeval omdat procedurele vereisten tegemoet komen aan de tweeledigenoodzaak tot het bieden van loyaliteit en de mogelijkheid van personenom zich ervan te verzekeren dat dit het geval is. Dit laatste aspect, de‘publicatie’ van de vervulling van plichten, is belangrijk voor de neerslagvan de loyaliteit van de Commissie in haar betrekkingen met begunstigdepersonen.

Enerzijds concretiseert deze procedurele implementatie de begrippenbelangeloosheid en redelijkheid, anderzijds biedt het de Commissie hetauteurschap waarvoor haar beoordelingsmarge oorspronkelijk was bedoeld.De procedures die belangeloosheid en ‘fairness’ operationaliseren zoudenmoeten worden toegevoegd aan de procedurele vereisten voor besluitvorm-ingsprocedures die leiden tot gedelegeerde en uitvoeringshandelingen.

Belangeloosheid zou hier werken door verantwoording af te leggenen de motivatie voor een specifieke handeling beter te verklaren. Ditopenbaar maken is noodzakelijk om meer duidelijkheid te verschaffen

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over de motivering voor gedelegeerde en uitvoeringshandelingen van deCommissie. Deze duidelijkheid verschaft de Commissie niet per definitieten behoeve van een forum voor dat verantwoording afgelegd wordt, maar,belangrijker, ten behoeve van zichzelf. Een procedureel mechanisme voorde verklaring van motieven dient ter verbetering van het reflecterendekarakter van het werk van de Commissie en om zo belangeloosheid mogelijkte maken.

Overwegingen van ‘fairness’ dienen een rol te spelen voor wie deelneemtaan het besluitvormingsproces van de Commissie en voor welke vormdergelijke participatie aanneemt. Van de Commissie mag worden verwachtdat zij een redelijke afweging maakt van de verschillende belangen endat zij participatiemogelijkheden afstemt op de verschillende mate enmanier waarop deze belangen zijn georganiseerd. Een eerste stap daar-toe zou de identificatie van de verscheidene belangen zijn op specifiekebeleidsterreinen. Dit vereiste zou moeten worden geformaliseerd doorde rechtvaardiging voor de gekozen besluitvormingsprocedure (inclusiefde betrokkenheid van organen of individuen van buiten de Commissie)onderdeel te maken van de motiveringsplicht. De Commissie zou verplichtdienen te worden om de namen van organen en organisaties te vermeldendie betrokken zijn bij het besluitvormingsproces en om de vorm van ditproces te verantwoorden. Op deze manier zou de interpretatie van hetbegrip ‘fairness’ openbaar door de Commissie worden en daarmee terdiscussie gesteld kunnen worden door het publiek en het Hof.

De ideeen die worden geıntroduceerd in dit boek vormen een eersteaanzet tot een doctrine van Commissie-loyaliteit die tot doel heeft om demachtsuitoefening van de Commissie te legitimeren tegenover personendie gebonden zijn aan haar gezag. Deze verantwoording leidt tot verdereverplichtingen voor de Commissie, maar biedt de belofte van een grotereaanvaardbaarheid van de machtsuitoefening van de Commissie. Dezeaanvaardbaarheid vormt een onontbeerlijke bron voor het functionerenvan de EU, zeker in deze huidige tijd van hevige contestatie over delegitimiteit van haar publieke autoriteit.

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Acknowledgments

I would like to thank the two people who were most involved in myPhD project, my promotor and my supervisor Deirdre Curtin and JoanaMendes. Deirdre, you gave me the opportunity to follow my own pathearly on. Whether you believed in my project or in my ability to pullit off, I greatly value the freedom and trust you gave me. Joana, ourdiscussion around everything about researching EU administrative lawand life in Amsterdam made this book what it is now. You strengthenedmy arguments and your critical support made me grow as an academic.

Similarly involved in my work life, although in a vastly different capacitywere the people who witnessed both high and lows; my office mates EnricoPartiti and Vigjilenca Abazi. You saw me through the victories and thefrustrations that are part of writing a PhD.

When I ventured out across the Channel I found support and challengein my discussion with Paul Craig. These conversations helped me sharpenmy arguments and to develop not only an idea of what I wanted to say– but also which debates I wanted to avoid. You contributed much tomaking me ‘stay on message’.

Likewise challenging were my discussions with Josh Getzler and withthe Class on Advanced Properties and Trust at Oxford. I am very gratefulfor helping me understand not only the provisions but also the reasoningof Fiduciary Law. I hope this book does your teaching justice.

There were many more colleagues, not only in Amsterdam, who were

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willing to discuss my work with me and who each had an effect on thearguments in this book. While it is too long to mention them all, Iwould like to thank at least my fellow ‘Architects’ Christina Eckes, MariaWeimer, Ingo Venzke, Chantal Mak, Tim Staal, Martijn Hesselink andAndre Nollkaemper. If I did not mention Maria Bartl in this line it is onlybecause we discussed so much more outside the Architecture meetingsthan during. I remember our workshop fondly, as well as all the discussion,drafts, wine, coffee and cake on which it was built.

Likewise I learned a lot from Maarten den Heijer, Hege Kjos and theLaw Clinic, Madalina Busuioc, Janina Dill and Elaine Fahey. PieterJan Kuijper, thank you for supporting my efforts to get a PhD position,making it possible for me to stand here today.

Angela Moisl – your office was the garden in which I would stop for asecond to take a deep breath and remember what’s really important inlife. Thank you for that.

Many fellow PhD candidates were my companions over the years it tookto write this book. Besides the ones already mentioned, Nienke van derHave, Isabella Swerissen, Emma Watson, Chris Koedooder, Heather Bray,Vladislav Djanic, Anne van Mulligan, Katrine Tvede, Maarten Hillebrandt,Nik de Boer, Aart Loubert, Tatevik Manucharyan, Cassandra Steer andKatja Swider were available for lunch at the boat or coffee in the afternoon,discussions in the hallway and visits to your offices. Many of you havecommented on my chapters. Thank you for that.

Candida Leone and Or Brook, thank you for agreeing to be my para-nymphs and making me organise the defence – as well as organising thingsfor me. If this day is a happy day, this is largely due to your efforts.

But it takes more than a good academic environment. I want to thankmy mother, who showed me that kids need not be an obstacle to writinga PhD, and my father whose calm is something to hold on to in stressfultimes. But maybe most importantly I need to thank my husband, who Iam happy come home to every night and who celebrates and commiserateswith me. You put it all in perspective. Lastly, my children have notso much advanced the writing of this book. However, I would have amuch poorer understanding of authority, obligation, and the power andrestraints of trust if I did not have you. You taught me the joy and sorrowof being responsible for someone. Thank you for that experience.

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