Deep delegation of rule-making in the electricity sector: the rise of 'quaternary law'
In the European electricity sector, the delegation of rule-making has literally reached the next level, with the emergence of 'methodologies'. These are legally binding rules developed by private electricity companies and specialized regulatory agencies instead of the legislator. The methodologies represent a unique form of 'quaternary law' that has not been extensively studied.
Delegated rule-making is necessary - but the legal boundaries are unclear
They raise important questions about the legal boundaries to the delegation of rule-making, particularly in light of the European Court of Justice's (ECJ's) non-delegation, or Meroni doctrine. However, the doctrine fails to establish clear limits. This results in legal uncertainty, which in turn has led to bolder models of delegation, like the methodologies. This development raises constitutional concerns—how much legislative power can be delegated?
At the same time, the methodologies demonstrate the need for delegated rule-making in technical sectors like electricity. The article proposes that the ECJ should revisit the Meroni doctrine to restore legal certainty while also considering the practical requirements of regulation in these sectors. It discusses potential approaches and puts forward a starting point for a 'Meroni doctrine 2.0'.
