Executive accountability in times of crisis: Delegated rulemaking in the EU

The European Union’s (EU’s) ability to respond effectively to crises has been a subject of debate in recent years. Its crisis governance has been particularly discussed, with a renewed debate centring around the accountability of executive institutions during times of crisis. Due to the urgency of the circumstances, and to ensure efficient and effective policy outputs, crisis decision-making is often led by executive institutions, and the scrutiny mechanisms normally enacted by the legislators are often sidelined. Against this background, this paper discusses the Commission’s accountability in its exercise of delegated powers pursuant to Arts. 290 and 291 TFEU in the context of crises. Arts. 290 and 291 TFEU regulate the use of delegated and implementing acts, respectively. Delegated acts are non-legislative acts of general application aimed at amending or supplementing an existing legislative act. Implementing acts, on the other hand, establish detailed rules for the uniform implementation of legally binding acts within the EU. The Commission is empowered to adopt both kinds of acts and is subject to two different scrutiny mechanisms in doing so. In the case of delegated acts, it is the European Parliament (EP) and Council that may object to their adoption. Meanwhile, implementing acts are instead scrutinised by committees made of representatives of the member states, known as comitology committees. Even during normal times, the Commission appears to be able to adopt delegated and implementing acts relatively quickly and smoothly, without opposition from the relevant bodies entrusted with their scrutiny. As such, the accountability of such exercise of powers is often questioned and debated in the academic literature. Considerations become more complex when an emergency situation is factored into the equation. On the one hand, the already disputed accountability of the Commission vis-à-vis the legislators and the comitology committee does not positively contribute to the overarching executive accountability in crisis management – nor, one could argue, does it worsen it. On the other hand, the short procedural times and smoothness of the process enable the efficient adoption of measures, which is imperative in times of crisis. To address the accountability gaps identified in the exercise of delegated and implementing powers during the Covid-19 pandemic, this paper proposes three policy recommendations: strengthening the scrutiny mechanisms for delegated acts by enhancing the capacity of the European Parliament and the Council; increasing the transparency of comitology committee meetings and procedures, including through a revision of the Comitology Regulation and improvements to the related registers; and introducing a clear legal framework for emergency powers to ensure that crisis-driven decision-making remains legitimate. These measures aim to reinforce executive accountability while preserving the EU’s ability to act swiftly in times of crisis.