After Lisbon, can the European Commission Continue to Rely on ‘Soft Legislation’ in its Enforcement Practice?

Posted by D. Daniel Sokol

Wolfgang Weiss (Public International and European Law, German University of Administrative Sciences) asks After Lisbon, can the European Commission Continue to Rely on ‘Soft Legislation’ in its Enforcement Practice?

ABSTRACT: The entry into force of the Lisbon Treaty gives reason to reconsider the compatibility of EU competition law enforcement with the reformed EU primary law in several respects. One aspect is the lawfulness of the Commission's quasi-legislative role in the adoption of soft law instruments to clarify fundamental issues of EU competition law enforcement. The Commission is thereby functionally amending EU primary and secondary law, which contradicts the principle of democracy strengthened in the Treaty of Lisbon. Article 290 of the Treaty on the Functioning of the European Union (TFEU) considerably increased the legal requirements for authorizing the Commission to adopt delegated legislation. These requirements cannot be undermined by adopting administrative standards, especially if these are of considerable legal significance.