21 August, 2025 | Giulia Gallinella

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

The Covid-19 pandemic opened a crucial window for rethinking how the European Union responds to transnational emergencies, and, like earlier crises, it highlighted both the strengths and the vulnerabilities of its governance system. At the heart of this duality lies the question of executive accountability: how can the Union act swiftly in times of crisis while upholding democratic accountability?

Delegated Rulemaking and Crisis Governance

The EU treaties were not designed to grant fully-fledged emergency powers to its institutions as the responsibility for crisis management traditionally rests with the member states. Nevertheless, in recent years, and particularly during the pandemic, the EU has taken on an increasingly central role in managing crises. Much of this has been achieved through executive-led decision-making – this piece, in particular, focuses on the Commission’ exercise of delegated powers pursuant to Arts. 290 and 291 TFEU in times of crises. The former article regulates the framework of delegated acts, which are aimed at amending or supplementing a given legislation. The latter, instead, describe implementing acts, which are used to implementing Union law when uniform conditions for implementation are required. Such a kind of executive rulemaking is subject to scrutiny enacted by the legislators, in the case of delegated acts, or representatives of the member states sitting in the so-called comitology committees, in the case implementing acts. In practice, these oversight tools have long been underused (Kaeding, 2017; Christiansen and Lange, 2021). Even in normal times, objections are rare, it has been highlighted that the system may have a tendency toward bureaucratic collusion rather than genuine scrutiny (Gallinella and Christiansen, 2024).

Delegated Rulemaking During the Pandemic

The pandemic brought these issues into sharper focus. Faced with the urgent need to act, the Commission relied on delegated and implementing acts to regulate areas such as agriculture, and transports. Many of these measures were adopted using urgency procedures, which allowed them to enter into force immediately, with scrutiny postponed until later. Others were fast-tracked by means of early non-objection, whereby legislators explicitly waived the remainder of their scrutiny period. Meetings of comitology committees and parliamentary discussions were largely held online, and votes increasingly took place in writing, as restrictions made in-person deliberation impossible. It follows that none of the delegated acts adopted in response to the pandemic were blocked, and only one implementing act faced a veto in a comitology committee. 

Such a smooth adoption process can be read in two ways. On the one hand, it ensured that the EU could act quickly and uniformly, providing much-needed coordination at a time when member states were grappling with the crisis at different speeds and with different capacities. On the other hand, the absence of objections raises again questions about the depth of democratic scrutiny. Did legislators and committees place their trust in the Commission’s judgment, or did they simply continue a pre-existing pattern of collusion?

The Accountability Dilemma

The answer is likely a combination of both. Delegated rulemaking allowed the Union to efficiently enact policies, which was vital in the face of an unfolding health and economic emergency. At the same time, however, the oversight mechanisms in place did not fully live up to their role, and accountability was often postponed, diluted, or sidelined. In practice, this means that the very moments when executive powers expand most, namely the moments of crisis, are also those in which their democratic control is weakest.

Policy Recommendations and the Way Forward

To address these shortcomings, three reforms are necessary. First, the scrutiny of delegated acts by the European Parliament and Council should be strengthened. This requires not only clearer procedures but also the resources and capacity to ensure meaningful oversight both before and after measures are adopted. Second, transparency in comitology needs to be enhanced. Although the Commission has worked on improving access to information, voting results and deliberations remain obscure, preventing external actors from engaging meaningfully with the process. A relevant revision of the Comitology Regulation, together with more accessible registers and repositories, would make a significant contribution in this regard. Third, the EU should introduce a clear legal framework for emergency powers. Whether anchored in the Treaties or in secondary legislation, such a framework would ensure that crisis-driven executive action remains exceptional, proportionate, and subject to institutional checks.

The use of delegated rulemaking during the Covid-19 pandemic thus offers a paradoxical lesson. It shows the capacity of the EU to respond effectively when necessary, but it also exposes the fragility of its accountability framework. Future crises will demand rapid action. If the EU is to retain the trust of its citizens, it must ensure that this action remains firmly embedded within a system of checks and balances. By strengthening accountability structures, enhancing transparency, and establishing a coherent framework for emergency powers, the EU can move toward a system that is both resilient and accountable – capable of acting decisively without abandoning the principles that underpin its democratic foundations.

References

Christiansen, Thomas, and Sabina Lange. 2021. ‘Executive–Legislative Relations and Delegated Powers in the European Union: Continuous Recalibration?’ In Executive-Legislative (Im)balance in the European Union, edited by Diane Fromage and Anna Herranz-Surrallés. Hart Publishing. 

Gallinella, Giulia, and Thomas Christiansen. 2024. ‘Delegated Rule-Making in Times of Crisis: New Challenges for Democratic Scrutiny?’ European Journal of Risk Regula- tion 15 (4): 812–26. 

Kaeding, Michael. 2017. Overriding the European Commission’s Rulemaking? Practi-cal Experience in the European Union with Post-Lisbon Legislative Vetoes with Quasi-Legislative Acts. Bruges Political Research Papers No. 64/2017. College of Europe.