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In the Aftermath of the Crisis – The EU Administrative System Between Impediments and Momentum

Published online by Cambridge University Press:  11 November 2015

Edoardo CHITI
Edoardo CHITI*
Affiliation:
Università della Tuscia
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Abstract

The European responses to the financial and public debt crisis have triggered a process of administrative reorganisation and growth in the governance of the internal market in financial services and economic and monetary union. Such a process is characterised by four main tensions, referring respectively to: the powers conferred on the satellite administrative bodies established in order to tackle the crisis; the jurisdictions of the new administrations; the degree of centralisation which is sought within the new mechanisms for the implementation of EU laws and policies; and to the accountability mechanisms. The effects of such tensions are deeply ambivalent. On the one hand, they might operate as ‘fault lines’ within the EU administrative machinery. On the other hand, by pointing to a host of unsolved issues in EU administrative law, they provide an opportunity for opening a genuine institutional and scientific discussion on the ways in which the EU administrative system should be adjusted or reformed.

Keywords

Euro crisisadministrative lawadministrative reorganisation
Type
Articles
Information
Cambridge Yearbook of European Legal Studies , Volume 17 , December 2015 , pp. 311 - 333
Copyright
© Centre for European Legal Studies, Faculty of Law, University of Cambridge 

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Footnotes

*

This paper was presented at the workshop on ‘Constitutional Change Through Euro Crisis Law’ held at the European University Institute on 17 and 18 October 2014. The Author is very grateful to Marise Cremona, Claire Kilpatrick and the participants to the workshop, who commented helpfully on various aspects of a first draft of the paper. The usual disclaimer applies.

References

1 On the many facets of the impact of the European responses to the Eurozone crisis on the constitutional structures of the EU Member States see the working papers prepared for the workshop on ‘Constitutional Change Through Euro Crisis Law’, mentioned above, first footnote, and available at http://eurocrisislaw.eui.eu/working-papers/constitutional-change/ [last accessed 6 October 2015]. The implications of the European responses both to the financial and public debt crisis on the EU constitutional structures are explored by Chiti, E and Teixeira, PG, ‘The Constitutional Implications of the European Responses to the Financial and Public Debt Crisis’ (2013) 50 (3) Common Market Law Review 683 Google Scholar; Ruffert, M, ‘The European Debt Crisis and European Union law’ (2011) 48 (6) Common Market Law Review 1777 Google Scholar; Dawson, M and de Witte, F, ‘Constitutional Balance in the EU After the Euro-Crisis’ (2013) 76 (5) Modern Law Review 817 CrossRefGoogle Scholar; Craig, P, ‘Economic Governance and the Euro Crisis: Constitutional Architecture and Constitutional Implications’ in M Adams et al (eds), The Constitutionalization of European Budgetary Constraints (Hart Publishing, 2014)Google Scholar.

2 For an explanation of this understanding of the EU administrative system, see Chiti, E, ‘La Costruzione del Sistema Amministrativo Europeo’ in MP Chiti (ed), Diritto Amministrativo Europeo (Giuffrè, 2013)Google Scholar.

3 On the relevance of ideology in the development of administrative systems see in particular Mashaw, JL, ‘Explaining Administrative Law: Reflections on Federal Administrative Law in Nineteenth Century America’ in S Rose-Ackerman and PL Lindseth (eds), Comparative Administrative Law (Elgar, 2010), p 40 Google Scholar. An application of this overall perspective can be found in Mashaw, JL, Creating the Administrative Constitution. The Lost One Hundred Years of American Administrative Law (Yale University Press, 2012)Google Scholar.

4 More precisely, the three European supervisory authorities have the task of developing draft regulatory technical standards, implying neither strategic decisions nor policy choices, in the areas within the scope of the powers delegated to the Commission under EU financial services law and in accordance with Article 290 of the Treaty on the Functioning of the European Union (TFEU). Moreover, they may develop draft implementing technical standards in the areas where financial services law provides the Commission with powers for issuing uniform conditions for the implementation of EU law in accordance with Article 291 TFEU. See Articles 10–15 of the three establishing regulations: Regulation (EU) No 1093/2010 [2010] OJ L331/12; Regulation (EU) No 1094/2010 [2010] OJ L331/48; Regulation (EU) No 1095/2010 [2010] OJ L331/84).

5 See, eg Recitals 21–23 of Regulation (EU) No 1093/2010 [2010] OJ L331/12, Regulation (EU) No 1094/2010 [2010] OJ L331/48, Regulation (EU) No 1095/2010 [2010] OJ L331/84.

6 Of course, one might refer to several EU sectors in which European agencies exercise de jure or de facto rule-making powers, both through participation in the adoption of binding implementing rules and regulation by soft law. The ESAs, though, may be said to represent a qualitative change with respect to that practice in so far as administrative rule-making is one of the fundamental instruments through which the EU aims at guaranteeing the smooth functioning of the single financial market and the ESAs are openly recognised by the establishing regulations as the specialised regulators in the field. For a bird’s-eye view of European agencies’ rule-making, see Chiti, E, ‘European Agencies’ Rule-Making. Powers, Procedures and Assessment’ (2013) 19 (1) European Law Journal 93 CrossRefGoogle Scholar.

7 Meroni v High Authority, C-9/56, EU:C:1958:7; see also Meroni v High Authority, C-10/56, EU:C:1958:8. In the Meroni judgments, as it is well known, the Court of Justice traced a clear-cut distinction between two different hypotheses: on the one side, the delegation of purely executive powers, compatible with the Treaty; on the other side, the delegation of a discretionary power, which is not legitimate under Community law. Such restriction is based on the principle of institutional balance, which Meroni has recognised for the first time in the Community legal order. After a 50 year long silence, the Court has confirmed the Meroni doctrine in several judgments: see The Queen, on the application of Alliance for Natural Health and Nutri-Link Ltd v Secretary of State for Health and The Queen, on the application of National Association of Health Stores and Health Food Manufacturers Ltd v Secretary of State for Health and National Assembly for Wales, C-154/04 and C-155/04, EU:C:2005:449, para 90; Carmine Salvatore Tralli v European Central Bank, C-301/02 P, EU:C:2005:306; and United Kingdom of Great Britain and Northern Ireland v European Parliament and Council of the European Union, C-270/12, ECLI:EU:C:2014:18. See also DIR International Film Srl, Nostradamus Enterprises Ltd, Union PN Srl, United International Pictures BV, United International Pictures AB, United International Pictures APS, United International Pictures A/S, United International Pictures EPE, United International Pictures OY and United International Pictures y Cía SRC v Commission of the European Communities, T-369/94 and T-85/95, EU:T:1998:39, paras 52–53.

8 Giuseppe Romano v Institut national d’assurance maladie-invalidité, C-98/80, EU:C:1981:104. According to this judgment, the Treaty provisions on the implementation of EC law and on the system of judicial protection excludes that an administrative body may be ‘empowered by the Council to adopt acts having the force of law’. Among the recent contributions on this case-law, see in particular Chamon, M, ‘EU Agencies Between Meroni and Romano or the Devil and the Deep Blue Sea’ (2011) 48 (4) Common Market Law Review 1055 Google Scholar; and Griller, S and Orator, A, ‘Everything Under Control? The “Way Forward” for European Agencies in the Footsteps of the Meroni Doctrine’ (2010) 35 (1) European Law Review 3 Google Scholar.

9 United Kingdom of Great Britain and Northern Ireland v European Parliament and Council of the European Union, ECLI:EU:C:2014:18, paras 41–54, concerning the ESMA’s power to adopt emergency measures on the Member States’ financial markets in order to regulate or prohibit short selling.

10 Ibid, para 66. For a point of view different from that expressed in the text, substantially critical of the judgment and deploring the rejection of Romano’s relevance beyond that of Meroni, see Chamon, M, ‘The Empowerment of Agencies under the Meroni Doctrine and Article 114 TFEU: Comment on United Kingdom v Parliament and Council (Short-selling) and the Proposed Single Resolution Mechanism’ (2014) 39 (3) European Law Review 380 Google Scholar.

11 See the thorough analysis by Teixeira, PG, ‘Europeanising Prudential Banking Supervision. Legal Foundations and Implications for European Integration’ in JE Fossum and AJ Menéndez (eds), The European Union in Crises or the European Union as Crises? (Arena Report Series, 2014)Google Scholar.

12 See eg Clarich, M, ‘I poteri di vigilanza della Banca centrale europea’ (2013) 19 (3) Diritto Pubblico 975 Google Scholar.

13 Council Regulation (EU) No 1024/2013 [2013] OJ L287/63. See also Regulation (EU) No 468/2014 of the European Central Bank [2014] OJ L141/1.

14 Cassese, S, ‘La nuova architettura finanziaria europea’ (2014) 19 (1) Giornale di diritto amministrativo 79 Google Scholar.

15 For a short account of this mechanism, see Clarich, M, ‘Governance of the Single Supervisory Mechanism and Non-Euro Member States’ in E Barucci and M Messori (eds), Towards the European Banking Union (Passigli, 2014)Google Scholar.

16 The continuity between the past practices of differentiated integration and the current developments within the Eurozone is highlighted by several authors: see, eg Piris, J-C, It is Time for the Euro Area to Develop Further Closer Cooperation Among its Members (Jean Monnet Working Paper 05/11, NYU School of Law) 24 Google Scholar; Laffan, B, ‘European Union and the Eurozone: How to Coexist?’ in F Allen et al (eds), Governance for the Eurozone. Integration or Disintegration? (Fic Press, 2012)Google Scholar; Emmanouilidis, J, Which Lessons to Draw from the Past and Current Differentiated Integration?, paper presented at the workshop Challenges for Multi-Tier Governance in the EU, European Parliament, 4 October 2012 Google Scholar, available at http://www.europarl.europa.eu/document/activities/cont/201210/20121003ATT52863/20121003ATT52863EN.pdf [last accessed 20 July 2015].

17 See, for a short account of differentiation within the EMU, T Beukers and M van der Sluis, The Variable Geometry of the Euro-Crisis. A Look at the Non-Euro Area Member States (EUI Working Paper 2015/33).

18 PG Teixeira, see note 11 above, p 568. The risk of regulatory conflicts is highlighted by GL Tosato, ‘The Governance of the Banking Sector in the EU: A Dual System’ in E Barucci and M Messori (eds), see note 15 above.

19 The features of the European executive power are discussed in a vast literature. See in particular, Cassese, S, ‘La Costituzione Europea’ (1991) 10 (3) Quaderni costituzionali 487 Google Scholar; Lenaerts, K, ‘Some Reflections on the Separation of Powers in the European Communities’, (1991) 28 (1) Common Market Law Review 11 Google Scholar; Dann, P, ‘The Political Institutions’ in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law (Hart, 2006)Google Scholar. The composite character of the EU executive power is specially stressed by Curtin, D, Executive Power of the European Union. Law, Practices, and the Living Constitution (Oxford University Press, 2009)CrossRefGoogle Scholar.

20 See eg Chiti, E and Franchini, C, L’integrazione Amministrativa Europea (Il Mulino, 2003)Google Scholar; Hofmann, HCH and Türk, AH (eds), EU Administrative Governance (Edward Elgar, 2006)CrossRefGoogle Scholar; Hofmann, HCH and Türk, AH (eds), Legal Challenges in EU Administrative Law. Towards an Integrated Administration (Edward Elgar, 2009)CrossRefGoogle Scholar; Pastor, JÁ Fuentetaja, La Administración Europea. La Ejecución Europea del Derecho y las Políticas de la Unión (Civitas, 2007)Google Scholar; Craig, P, EU Administrative Law, 2d ed (Oxford University Press, 2012), p 79 CrossRefGoogle Scholar.

21 For a tentative taxonomy of those instruments, see E Chiti, ‘The Administrative Implementation of European Union Law: A Taxonomy and Its Implications’ in HCH Hoffmann and AH Türk (eds), Legal Challenges in EU Administrative Law. Towards an Integrated Administration, see note 20 above.

22 The literature on European agencies is too abundant to be usefully recalled here. In the perspective developed in this article, see Chiti, E, ‘An Important Part of the EU’s Institutional Machinery. Features, Problems and Perspectives of European Agencies’ (2009) 46 (5) Common Market Law Review 1395 Google Scholar.

23 See eg Recital 26, Article 8 and Article 16(1) of Regulation (EU) No 1093/2010 [2010] OJ L331/12.

24 The role granted to the EBA corresponds to that of the other ESAs. For an analysis of the case of ESMA, see van Rijsbergen, M, ‘On the Enforceability of EU Agencies’ Soft Law at the National Level: The Case of the European Securities and Markets Authority’ (2014) 10 (5) Utrecht Law Review 116 CrossRefGoogle Scholar.

25 For the sake of clarity, it is perhaps appropriate to incidentally observe that the functional distinction between supervisory and regulatory soft law measures is relevant also beyond Article 16: for example, the European Supervisory Handbook envisaged by Article 29(2) as amended by Regulation (EU) No 1022/2013 [2013] OJ L287/5, should be considered as a soft law measure functionally oriented to supervision, rather than to regulation, and even of little usefulness, provided that it should grow up as a simple collection of best practices.

26 This interpretation is supported by the text of Article 9(2) of Regulation (EU) No 1093/2010 [2010] OJ L331/12.

27 See on this point the Decision of the Board of Appeal of the European Supervisory Authorities given under Article 60 Regulation (EU) No. 1093/2010 and the Board of Appeal’s Rules of Procedure (BOA 2012 002), Appeal by SV Capital OÜ v European Banking Authority BoA 2014-C1-02. Para 56 of the Decision states that ‘even on the basis that the EBA Guidelines are not legally binding, they address the matter from a practical perspective, and assist in the interpretation of the scope of the provisions of Directive 2006/48/EC’. Such a statement, though, is too under-elaborated to suggest a different interpretation of the legal consequences of compliance by a national authority.

28 The substance and boundaries of the EU intervention are sketched in Article 197 TFEU. Under Article 197 TFEU, possible interventions include facilitating the exchange of information and civil servants as well as supporting training schemes. Moreover, EU measures in this area must be regulations adopted by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure. In addition to this, the limits of the EU intervention are specified: harmonisation of national laws is excluded and no Member State is obliged to avail itself of the EU support.

29 See United Kingdom of Great Britain and Northern Ireland v European Parliament and Council of the European Union, C-217/04, EU:C:2006:279, in particular paras 44–45; and United Kingdom of Great Britain and Northern Ireland v European Parliament and Council of the European Union, ECLI:EU:C:2014:18, paras 41–54. In the first case, concerning the ENISA, the UK argued that the legal basis of the establishing Regulation had been erroneously identified in Article 95 instead of Article 308 of the Treaty establishing the European Community. The Court of Justice, though, held that the EU legislator may deem it ‘necessary to provide for the establishment of a Community body responsible for contributing to the implementation of a process of harmonisation in situations where, in order to facilitate the uniform implementation and application of acts based on that provision, the adoption of non-binding supporting and framework measures seems appropriate’; the tasks conferred on such a body, however, ‘must be closely linked to the subject-matter of the acts approximating the laws, regulations and administrative provisions of the Member States’. In the second case, concerning ESMA, the UK argued that Article 114 TFEU does not empower the EU legislator to take individual decisions that are not of general application or to delegate to the Commission or a Union agency the power to adopt such decisions. The Court of Justice, though, rejected this plea by holding that Article 28 of Regulation (EU) No 236/2012 of the European Parliament and of the Council [2012] OJ L86/1 satisfies all the requirements laid down in Article 114 TFEU, which therefore constitutes an appropriate legal basis for the adoption of Article 28. Indeed, the TFEU confers the EU legislature discretion as regards the most appropriate method of harmonisation for achieving the desired result, including the establishment of an EU body responsible for contributing to the implementation of a process of harmonisation. That is the case in particular where the measures to be adopted are dependent on specific professional and technical expertise and the ability of such a body to respond swiftly and appropriately (paras 100–117).

30 Which is here broadly meant as the set of procedural rights and duties in administrative proceedings before EU administrations. On the principle of the rule of law in the EU legal order see Lenaerts, K, ‘The Rule of Law and the Coherence of the Judicial System of the European Union’ (2007) 44 (6) Common Market Law Review 1625 Google Scholar; Azoulai, L and Clément-Wilz, L, ‘Le principe de légalité’ in J-B Auby and J Dutheil de la Rochère (eds), Droit Administratif Européen, 2d ed (Bruylant, 2014)Google Scholar; A von Bogdandy, ‘Constitutional Principles’, in A von Bogdandy and J Bast (eds), see note 19 above; Pech, L, The Rule of Law as a Constitutional Principle of the European Union (Jean Monnet Working Paper 04/09, NYU School of Law)Google Scholar; and von Bogdandy, A and Ioannidis, M, ‘Systemic Deficiency in the Rule of Law: What It Is, What Has Been Done, What Can Be Done’ (2014) 51 (1) Common Market Law Review 59 Google Scholar, p 62.

31 The notion of accountability which is here used partly differs from that adopted in other studies on the EU administrations; see, for example, Harlow, C, Accountability in the European Union (Oxford University Press, 2002), pp 53 CrossRefGoogle Scholar and 182; Harlow, C and Rawlings, R, ‘Promoting Accountability in Multi-Level Governance: A Network Approach’ (2007) 13 (4) European Law Journal 542 CrossRefGoogle Scholar; D Curtin, see note 19 above, p 246; Bovens, M et al (eds), The Real World of EU Accountability. What Deficit? (Oxford University Press, 2010)Google Scholar; Busuioc, EM., European Agencies. Law and Practices of Accountability (Oxford University Press, 2013)CrossRefGoogle Scholar; Busuioc, EM and Groenleer, M, ‘The Theory and Practice of EU Agency Autonomy and Accountability: Early Day Expectations, Today’s Realities and Future Perspectives’, in M Everson, C Monda and E Vos (eds), European Agencies In Between Institutions and Member States (Wolters Kluwer, 2014)Google Scholar. As in those studies, accountability is here meant as a relationship between an actor and a forum, in which the actor has the obligation to explain and justify his conduct, the forum can pose questions and pass judgment, and their actor might face consequences. Accountability, however, is not conceived as a purely retrospective exercise, but extended to cover both the making and the outcome of administrative action.

32 On the notion of accountability regime see in particular Mashaw, JL, ‘Structuring a “Dense Complexity”: Accountability and the Project of Administrative Law’ (2005) 5 (1) Issues in Legal Scholarship (2005)CrossRefGoogle Scholar, doi:10.2202/1539-8323.1061 [first published online 6 February 2005].

33 See Article 20 of Council Regulation (EU) No 1024/2013 [2013] OJ L287/63.

34 Ibid, Rec 55.

35 Ibid, Article 20/3, which clarifies that the Eurogroup shall meet in the presence of representatives from any Member State whose currency is not the euro and which is in close cooperation with the SSM.

36 PG Teixeira, see note 11 above, p 576.

37 Council Regulation (EU) No 1024/2013 [2013] OJ L287/63, Rec 55.

38 JL Mashaw, see note 32 above, p 30.