Teoría de la delegación y legislaciones delegadas

Resumen

This is a general study of delegated legislation, with reference to its theory, in a theoretical paththroughout the legal systems of Italy, Spain and the European Union, with a particular interest inhowthiskindoflegislationmostlymaterialises.Duringthestudy,wefacethreemethodsofresearchandanalysis: theoretical-philosophical, analytical andcomparative.Chapter I opens with an introduction that connects the theory of delegation with the moregeneralconstitutionaltheory,crossingthefineboundariesbetweenfederalandconfederatesystems, to then arrive at a necessary approximation to thesystem of sources of the EuropeanUnion–ontologicallyconnectedtoboth,asa"quasi-federal"system.ChapterIgoesondealingwiththe birth moment of legislative delegation, starting from the principle of separation of powers anditsevolutionbetweenthedoctrinesofLocke,MontesquieuandCarlSchmitt,toeventuallyarriveattheexercise and ownership of the legislative delegation, aswell as the need to use it.Chapter II, characterised by a more analytical and comparative research method, analysesthe legislative delegation in the legal systems of two EU Member States: Italy and Spain. After anintroduction to the two different systems, observing the regulatory framework, principles andrector criteria, the research moves on to highlight similarities and differences between the twosystems. Chapter II also highlights the use of delegation tools and the transformation that this hashadover the years, using an empiricalmethod through the study of dataandtables.Chapter III places the figure of the legislative delegation in the pre-and post-Lisbon system,and goes on to deal with the delegated legislation in the legal system ofthe European Union, itsconstitutional limits and the guarantees imposed by the Court of Justice. Two of the most famouscasesareusedtoanalysetheaforementionedsubjects:theKöstercaseandtheReySodacase.Theanalysis continues with the study of articles 290 and 291 TFEU, through the brilliant conclusions ofAdvocate General Cruz Villalón, regarding another famous case –the Biocides case. Chapter IIIconcludes with an overview of the future of legislation in the European Union and the programBetterRegulation forBetter Results.The aim of this doctoral thesis is therefore to understand the derivation of the theory ofdelegation.Thisthesisattemptstodothisbyexplainingitsoriginalraisond'être,whatkindof instrumentithasbecome,usingatheoreticalapproachthatwillactasaguidingframeworkandwhichwill allowreaders to better understandthe circumstances surrounding facts.The research brings toconcludethat the emergence of new functions for delegated legislation –which has been transformed not so much by the need to intervene in specific sectors, for essentially technical reasons, but in the light of the desire to implement structural reforms quickly and with broad media coverage, i.e. ensuring compliance with supranational obligations, allowing the Executives to have greater control over the implementation phase of the delegated provisions and testing their concrete functioning –has beentherefore decisive for the evolution and survival of constitutional systems subject of this doctoral thesis.