EU Executive Rule-Making and the Second Directive on Institutions for Occupational Retirement Provision

Since the Treaty of Lisbon, the legislative system of the European Union is based on a distinction between legislative acts and non-legislative acts as well as on a distinction between delegation and implementation. This system has brought about several issues that received a fair degree of scholarly attention prior to the entry into force of the Treaty of Lisbon and in the initial years thereafter. The new Interinstitutional Agreement on Better Law Making (IIA) has addressed some of these issues, but this still leaves the question open as to how this new legislative system is to be implemented in practice. This article reviews these issues, first, in light of the new IIA and, second, in light of the legislative practice that has emerged since then. The revision of the Directive on Institutions for Occupational Retirement Provision is taken as the legislative case in this respect. This case includes political conflicts between mostly national and EU legislatures but also conflicts with regard to the substance of some EU provisions. It also evaluates the role of EU agencies – in this case the European Insurance and Occupational Pensions Authority (EIOPA) – within the rules of the EU’s legislative system.