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The Limits of Agencification in the European Union

Published online by Cambridge University Press:  06 March 2019

Miroslava Scholten  and
Marloes van Rijsbergen

Abstract

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Although not explicitly regulated by the EU treaties, EU agencies not only exist but also have increased in number and power. In addition, while EU agencies may exercise very similar functions to those of the Commission, Articles 290 and 291 of the Treaty on the Functioning of the European Union (TFEU) do not list agencies among the possible authors of non-legislative acts. The existing situation raises the questions of the extent to which the ongoing agencification in the EU is legitimate and what its limits are. This article addresses these questions in the light of the old and new Treaties and case law, including the just released ESMA-shortselling case. It shows that while the Lisbon Treaty made a few steps forward on the road of legitimizing EU agencies and delegating important powers to them, the scope of powers that EU agencies can have remains unclear. In this respect, the European Court of Justice's lenient approach in the ESMA-shortselling case is unfortunate because it neither clarifies the issue nor pushes the Union Legislator and the Member States to address it. Consequently, in the absence of clear limits, further agencification is likely to persist at the risk of increasing the democratic legitimacy deficit and remaining accountability gaps.

Type
Articles
Information
German Law Journal , Volume 15 , Issue 7 , 01 December 2014 , pp. 1223 - 1255
Copyright
Copyright © 2014 by German Law Journal GbR 

References

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161 Different legal bases imply the necessity of different legislative procedures to be used to pass relevant acts. This in turn implies the involvement of different EU institutions, which can be used and abused for various political purposes. For instance:Google Scholar

[I]n two cases (the EMEA and the Community Plant Variety Office), the Council changed the legal principle on which the Commission had originally based the proposal. Using Article 100A, EC Treaty, as proposed by the Commission for the EMEA, would have required the co-operation procedure and thus more EP influence, and, additionally, qualified majority voting in the Council.Google Scholar

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163 The Federalist No. 70 (Alexander Hamilton).Google Scholar

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165 Id. at 70.Google Scholar

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