1 Article 28 of Regulation (EU) No 236/2012 of the European Parliament and of the Council of 14 March 2012 on short selling and certain aspects of credit default swap, OJ 2012 L 86/1.

2 See e.g. Case C-209/13, United Kingdom v Council; Case C-507/13, United Kingdom v Parliament and Council; Case T-93/13, United Kingdom v ECB; Case T-45/12 United Kingdom v ECB; Case T-496/11, United Kingdom v ECB.

3 Short sales are “transactions in which an investor (a short seller) borrows shares for a specified period and then sells them at the current market price, in the expectation that the price will be lower when it must buy shares to repay the lender”: M. Levinson, Guide to Financial Markets, fifth edition, The Economist in association with Profile Books Ltd., 2010, at p. 165.

4 Regulation (EU) No 1095/2010 of the European Parliament and the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ 2010 L 331/84), as amended by Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directive 2003/41 EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010 (OJ 2011 L 174/1). In the literature, see Schammo, P., “The European Securities and Markets Authority: lifting the veil on the allocation of powers”, CMLR 48: 1879–1914, 2011 Google Scholar; Busuioc, M., “Rule-Making by the European Financial Supervisory Authorities: Walking a Tight Rope”, Eur. Law Journal, Vol. 19, Nr. 1, January 2013, pp. 111–125 CrossRefGoogle Scholar; Moloney, N., “The European and Securities Markets Authority and institutional design for the EU financial markets – a tale of competences. Part (2) rules in action”, 12 EBOR (2011), 177–125Google Scholar; Id., “EU financial market regulation after the global financial crisis: more Europe or more risks?”, 47 CML Rev., 1347 and sqq.

5 The other two being the European Banking Authority (Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC, OJ 2010 L 331/12) and the European Insurance and Occupational Pensions Authority (Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/79/EC, OJ 2010 L 331/48.

6 Everson, M. and Majone, G., « Réforme institutionnelle: agences indépendantes, surveillance, coordination et contrôle procédural », in De Schutter, O. (ed.), La gouvernance dans l’Union européenne, Luxembourg, Commission européenne, 2001, p. 162 Google Scholar. On Union agencies there is an abundant literature: see e.g. Chiti, E., Le agenzie europee (Padova: CEDAM, 2002)Google Scholar; E. Vos, European administrative reform and agencies, EUI working Papers RSC 2000/51, and, more recently Everson, M., Monda, C. and Vos, E. (eds.), EU agencies in between institutions and Member States, The Netherlands: Kluwer Law International, 2014.Google Scholar

7 Article 28(1) Regulation (EU) No 236/2012.

8 Commission Delegated Regulation (EU) No 918/2012 of 5 July 2012 supplementing Regulation (EU) No 236/2012 of the European Parliament and of the Council on short selling and certain aspects of credit default swaps with regard to definitions, the calculation of net short positions, covered sovereign credit default swaps, notification thresholds, liquidity thresholds for suspending restrictions, significant falls in the value of financial instruments and adverse events, OJ L 274, 9.10.2012, p. 1–15.

9 Pursuant to Article 28(11) of Regulation No 236/2012, a measure adopted by ESMA shall prevail over any previous measure taken by a competent national authority.

10 Case 9/56, Meroni v High Authority [1956–1957] ECR 133.

11 Case 98/80 Giuseppe Romano v Institut national d'assurance maladie-invalidité [1981] ECR 1241. For a complete analysis of this ruling in light of the principle of institutional balance and of the Meroni precedent, see M. Chamon, “EU Agencies between Meroni and Romano or the Devil and the Deep Blue Sea”, CMLR 48 (2011), pp. 1055 to 1075, at pp. 1060 and sqq.; of interest also Türk, A., “Case Law in the Area of the Implementation of EC Law”, in Pedler, R. H. and Schaefer, G. F. (eds.), Shaping European Law and Policy: The Role of Committees and Comitology in the Political Process, EIPA, 1996, p. 186.Google Scholar

12 OJ C 273/3, 8.9.2012.

13 For a comprehensive analysis of which see Jaqué, J.P., “The principle of institutional balance”, CMLR. (2004) 383–391.Google Scholar

14 Rather of a conservative reading of the ruling apparently developed for the first time by Lenaerts, K., “Regulating the regulatory process: delegation of powers in the European Community”, ELR 18 (1993): 23–49 Google Scholar; then reaffirmed e.g. by Griller, S., and Orator, A., “Everything under control? The “way forward” for European agencies in the footsteps of the Meroni doctrine”, ELR 35 (2010), pp. 3 to 35Google Scholar; Majone, G., “The Credibility Crisis of Community Regulation”, JCMS, 38 (2000), pp. 273–302, at p. 289.Google Scholar

15 Case 9/56, para. 150.

16 Ibid.

17 Case 9/56, para. 151.

18 Case 9/56, para. 152.

19 Case C-270/12, United Kingdom of Great Britain and Northern Ireland v European Parliament and Council, not yet published, paras. 27–34.

20 Opinion of the AG Jääskinen delivered on 12 September 2013 in Case C270/12 United Kingdom of Great Britain and Northern Ireland v Council of the European Union and European Parliament, para. 58.

21 Case C-270/12, supra, footnote 19 paras. 35–40.

22 Article 251 TFEU and Article 16 of the Statute of the Court of Justice of the European Union, Protocol (No 3) on the Statute of the Court of Justice of the European Union, annexed to the Treaties, as amended by Regulation (EU, Euratom) No 741/2012 of the European Parliament and of the Council of 11 August 2012, OJ L 228/1; and by Article 9 of the act concerning the conditions of accession to the European Union of the Republic of Croatia and the adjustments to the Treaty on European Union, the Treaty on the Functioning of the European Union and the Treaty establishing the European Atomic Energy Community, OJ L 112/21.

23 Article 40 of the Statute of the Court of Justice, supra, footnote 22.

24 Opinion of the AG Jääskinen, supra footnote 20, paras. 45–49.

25 For an insightful review of this ruling see also Van Gestel, R., European Regulatory Agencies Adrift?, 21 MJ 1 (2014), pp. 188–196.Google Scholar

26 Case C-270/12, supra, footnote 19, para. 53.

27 Case C-270/12, supra, footnote 19,p. 65.

28 Case C-270/12, supra, footnote 19, paras. 77–83.

29 Opinion of the AG Jääskinen, supra footnote 20, paras 83–91.

30 Case C66/04, United Kingdom v Parliament and Council, [2005] ECR I10553, para. 45

31 Case C-217/04, United Kingdom v Parliament and Council [2006] ECR I-3771, para. 44.

32 Case C-217/04, ibidem.

33 Case C-270/12, supra, paras. 108–111.

34 That the purpose of the legal has to improve the conditions for the establishment and functioning of the internal market: Case C-217/04, supra, footnote 31, para. 42.

35 Case C-270/12, supra, footnote 20, paras. 114 and 115.

36 E.g. P. Schammo, “The European Securities and Markets Authority”, supra footnote 4; Busuioc, M., Groenleer, M., and Tondal, J., (eds), The Agency Phenomenon in the European Union: Emergence, institutionalism and every-day decision making (Manchester University Press, Manchester 2012)Google Scholar; Busuioc, M., European Agencies: Law and Practices of Accountability (Oxford University Press, Oxford, 2013)CrossRefGoogle Scholar; X. A. Yataganas, Delegation of Regulatory Authority in the European Union. The relevance of the American model of independent agencies, Jean Monnet Working Paper 3/01.

37 Academia had since some time moved on and read the Meroni and Romano case law in accordance with the constitutional and societal developments brought about by the constant evolution of the European Community first, and then European Union, in the process framing certain findings of these ruling in the operational context characterizing those cases: see the inspiring contribution of Chamon, M., “EU agencies: does the Meroni Doctrine make sense”, Maastricht Journal of European and Comparative Law 17 (2010), at pp. 293 and sqq.CrossRefGoogle Scholar; Hofmann, H., and Morini, A., “The Pluralisation of EU Executive-Constitutional Aspects of Agencification”, ELR 37 (2012), at pp. 419 to 443Google Scholar. Some authors were suggesting a progressive reading of Meroni already some time before the entry into force of the Lisbon Treaty: see Geradin, D., Petit, N., “The Development of Agencies at EU and National Levels: Conceptual Analysis and Proposals for Reform”, Yearbook of European Law: 2004 (2005), v. 23,at p. 137–197.Google Scholar

38 Reference can be made e.g. to the attribution of complete decision making powers to the Office for the harmonization of the internal market (OHIM), the Community Plant Variety Rights Office, or the European Aviation Safety Agency.

39 Case C-270/12, supra, footnote 19, paras. 41–44.

40 S. Griller, and A. Orator, “Everything under control?”, supra, footnote 14; X. A. Yataganas, supra footnote 36, at p. 25.

41 Opinion of the AG Jääskinen, supra, footnote 20, para. 60.

42 According to X. A. Yataganas, supra footnote 36, at 24, the Commission's Legal service has rejected on the basis of the Meroni ruling proposals for the establishment of Food Safety Agency, a European Aviation Safety Authority (EASA) and a European Maritime Safety Agency competent to take clearly discretionary decisions. Also P. Schammo, supra footnote 4, at 1896, reports that the Commission unsuccessfully tried to exploit a conservative reading of the Meroni case law to maintain certain sanctioning powers attributed to ESMA by its founding regulation.

43 Opinion of the AG Jääskinen, supra, footnote 20, para. 88.

44 P. Schammo, “The European Securities and Markets Authority”, supra, footnote 4, 1894.

45 Indeed the delegation to an agency of powers limited to assessment of information and data had already been declared compatible by the Court of Justice in Case C-66/04, United Kingdom of Great Britain and Northern Ireland v European Parliament and Council of the European Union, [2005] ECR I-10553 and in Case C-217/04 United Kingdom v Parliament and Council (ENISA) [2006] ECR I3771, paras. 44–61 and Case C359/92 Germany v Council [1994] ECR I3681, paragraph 37. The reasoning followed by the Court in C-270/12 had been anticipated by P. Schammo, supra, footnote 4, at p. 1906.

46 Case C-270/12, supra, footnote 19, paras. 108-112.

47 Fahey, E., Does the Emperor Have Financial Crisis Clothes? Reflections on the legal Basis of the European Banking Authority, The Modern Law Review (74) (2011), pp. 581 to 595, p. 593.CrossRefGoogle Scholar

48 C-270/12, supra, footnote 19, paras. 52, 82 and 102 to 105.

49 “An Authority with regulatory power could not be created under the current institutional arrangements of the EU, and would require modification of the existing provisions of the EC Treaty”: Commission of the European Communities, White Paper on Food Safety, COM (1999) 719 final, Brussels 12 January 2000, at 15.

50 In addition to the three agencies active in the financial sector, mainly the agencies active in the “life sciences” domain, aviation and maritime safety: the European Chemicals Agency, the European Medicines Agency, the European Center for Communicable Diseases, the European Environment Agency, the European Food Safety Authority, the European Aviation Safety Agency, the European GSSN agency, the European Maritime Safety Agency, the European Defence Agency, European Union Agency for Large Scale IT Systems and the European Union Satellite Centre.

51 Fisher, E, Risk Regulation and Administrative Constitutionalism, (Oxford: Oxford University Press, 2007)Google ScholarPubMed; Jasanoff, S., The Fifth Branch, Science Advisers as Policymakers, (Harvard: Harvard University Press, 1994).Google Scholar

52 Chalmers, D., Davies, G. and Monti, G., European Union Law. Cases and materials, 2nd ed., (Cambridge: Cambridge University Press, 2011), at 703 Google Scholar. For what concerns the rather specific areas of GMOs, see e.g. Kritikos, M., “Traditional risk analysis and Releases of GMOs into the European Union: Space for Non-Scientific factors”, (2009) 44 ELR, 405 Google Scholar. Given the high political sensitivity of the GMO discourse, it may be however questionable that considerations valid for this field may be automatically extended to other sectors.

53 E. Fisher, supra footnote 51, and very recently Anderson, C., “Contrasting models of EU administration in judicial review of risk regulation”, CMLR. 51: 425–454 2014.Google Scholar

54 This seems also the reasoning implicitly supported by P. Schammo, supra, footnote 4, at 1907.

55 But for the obligation to consult the European Systemic Risks Board: Article 28(4) of Regulation (EU) No 236/2012.

56 Pursuant to Article 30 of Regulation (EU) No 236/2012, the Commission has defined criteria and factors to be taken into account by ESMA in determining, inter alia, in which cases the threats arise. This has not however changed much in terms of ultimate discretion left on the agency: see Article 24 of Commission Delegated Regulation (EU) No 918/2012.

57 See Opinion of the AG Jääskinen, supra footnote 20, para. 40.

58 See Opinion of the AG Jääskinen, supra footnote 20, para. 98.

59 It is sufficient to refer to the seminal Pfizer ruling of the Court of First Instance to identify a judgment in which the difference between scientific and politic legitimacy was laid down in unambiguous terms: Case T-13/99 Pfizer Animal Health v Council [2002] ECR II-3303, para. 201 with particular regard to the observation that “Scientific legitimacy is not a sufficient basis for the exercise of public authority.” Highlighting the importance of shielding integration from political interests, and therefore of maintaining the decision making process at an exclusively technical level, Majone, G., The credibility crisis of Community Regulation (2002) 38 Journal of Common Market Studies 273 CrossRefGoogle Scholar. Jasanoff S., The Fifth Branch, supra footnote 51.

60 Opinion of the AG Jääskinen supra footnote 20, para. 100.

61 On this point see Joerges, C., “The Law's Problems with the Governance of the Single European Market”, in Joerges, C. and Dehousse, R. (eds.), Good Governance in Europe's Integrated Market, (Oxford: Oxford University Press, 2002).CrossRefGoogle Scholar

62 Case C-270/12, supra, footnote 19, para. 86.

63 In effect the Court is rather direct in this respect: Case C-270/12, supra, para. 85.

64 In these terms Craig, P., EU administrative law, 2nd ed. (Oxford: Oxford University Press) 2012 CrossRefGoogle Scholar, at 155 who go so far as concluding that the “Meroni principle has in any event, …, been indirectly reinforced and constitutionalised by Article 290 TFEU”, ibid. at 175.

65 Case C-427/12, European Commission v. European Parliament and Council of the European Union, not yet published.

66 The CJEU had the opportunity to review the concept of regulatory acts in general terms in Case C-583/11P Inuit Tapiriit Kanatami and Others v European Parliament and Council of the European Union, not yet published.

67 This conclusion had been reached even before this ruling by several authors (see e.g. Hofmann, H.C.H., Rowe, G.C., and Türk, A.H., Administrative Law and Policy of the European Union, Oxford, OUP 2011, at p. 241.CrossRefGoogle Scholar

68 Opinion of the AG Jääskinen, supra footnote 20, para. 45.

69 Ibid., para. 86

70 Along this line also the opinion of the AG Jääskinen, supra footnote 20, para. 8.