¹ Verhey, Luc, Political Accountability: A Useful Concept in EU Inter-Institutional Relations?, in Political Accountability and European Integration 55, 67 (Luc Verhey et al. eds., 2009).Google Scholar

² Agencification is used as a generic term implying the creation of agencies and delegation of powers to them.Google Scholar

³ See Scholten, Miroslava, Independent, Hence Unaccountable? The Need for a Broader Debate on Accountability of the Executive, 4 Rev. Eur. Admin. L. 5, 5–44 (2011) [hereinafter Scholten, Independent, Hence Unaccountable?].Google Scholar

⁴ See Verhoeven, Amaryllis, Democratic Life in the European Union, According to its Constitution, in 49 Good Governance and the European Union: Reflections on Concepts, Institutions and Substance 153, 155 (Deirdre Curtin & Ramses Wessel eds., 2005) (“We speak of formal legitimacy always when the decision making process can be formally/procedurally recognized as an expression of self-governance. A political system enjoys substantive legitimacy when it can boast wide social acceptance, i.e. the loyalty of its citizens.”). In a similar way, some scholars distinguish between procedural and substantive legitimacy. See Giandomenico Majone, Regulating Europe 291–96 (1996).Google Scholar

⁵ This concerns, for instance, EU agencies. According to the Ramboll Evaluation of twenty-six EU agencies prepared for the Commission, EU agencies' founding acts “did not sufficiently explain why new instruments had to be implemented through an agency, rather than something else.” “Alternatives to creating agencies were paid limited attention until impact assessments came into practice. The creation of agencies is now justified in a transparent way, although it is not yet fully evidence-based and still does not cover all relevant issues.” Ramboll Management-Eureval-Matrix, Evaluation of the EU Decentralised Agencies in 2009, Final Report Vol. I (Dec. 2009) [hereinafter Ramboll Evaluation] (evaluating twenty-six decentralized agencies).Google Scholar

⁶ See Verhey, Luc & Claes, Monica, Introduction: Political Accountability in a European Perspective, in Political Accountability in Europe: Which Way Forward?: A Traditional Concept of Parliamentary Democracy in an EU Context 3, 3 (Luc Verhey et al. eds., 2008).Google Scholar

⁷ See Dehousse, Renaud, Delegation of Powers in the European Union: The Need for a Multi-Principals Model, 31 W. Eur. Pol. 789, 790, 799 (2008) (“The absence of formal authority does not necessarily mean that” EU agencies are “deprived of any influence.”). See also Checks and Balances of Soft Rule-Making in the EU, Eur. Parl. Doc. (PE 462.433) 8 (2012); Eduoardo Chiti, An Important Part of the EU's Institutional Machinery: Features, Problems and Perspectives of European Agencies, 46 Common Mkt. L. Rev. 1395, 1405 (2009); Martin Shapiro, The Emergence of Global Administrative Law: “Deliberative,” “Independent” Technocracy v. Democratic Politics: Will the Globe Echo the EU?, 68 L. Contemp. Probs. 341, 353 (2005); Ellen Vos, Agencies and the European Union, in Agencies in European and Comparative Law, 113, 142 (Luc Verhey & Tom Zwart eds., 203) [hereinafter Vos, Agencies and the European Union].Google Scholar

⁸ The first two EU agencies given powers to take legally binding decisions against third parties, the Community Plant Variety Office and the Office for Harmonization in the Internal Market, were created in 1994.Google Scholar

⁹ Nearly every academic and policy document recognizes this development, calling it at times an “agency fever.” Tom Christensen & Per Lægreid, Rebalancing the State: Reregulation and the Reassertion of the Centre, in Autonomy and Regulation: Coping with Agencies in the Modern State, 359, 366 (Tom Christensen & Per Lægreid eds., 2006).Google Scholar

¹⁰ See Eur. Parliament, Council of the EU & Eur. Comm'n, Joint Statement on Decentralised Agencies 1 (2012), http://ec.europa.eu/commission_2010-2014/sefcovic/documents/120719_agencies_joint_statement_en.pdf.Google Scholar

¹¹ See Miroslava Scholten, The Political Accountability of EU and US Independent Regulatory Agencies 53–54 (Fabian Amtenbrink & Ramses A. Wessel eds., 2014) [hereinafter Scholten, Political Accountability].Google Scholar

¹² The recently issued “Common Approach” on EU agencies proposes harmonization of agencies' titles in the future using a standard term “European Union agency for. …” Eur. Parliament, supra note 10.Google Scholar

¹³ Reports on the number of EU agencies vary greatly: Various studies, evaluations, and EU official documents refer to different numbers of EU agencies. For instance, while the Commission's brochure, EU Agencies, Whatever You Do, We Work for You (2007), http://cdt.europa.eu/CDT%20Publication%20Book/Agencies/agenciesFeb08_EN_low.pdf, offered an overview of twenty-nine EU agencies, the Meta-Study for the Commission (2008) evaluated twenty-six decentralized agencies. The Council of the EU, Evaluation of European Union Agencies (2012), http://www.statewatch.org/news/2012/mar/eu-council-agencies-agreement-7727-12.pdf, summarizing the results of the institutional working group on agencies referred to thirty-one agencies. The official webpage of EU agencies lists thirty-five decentralized agencies, Agencies and Other EU Bodies, Eur. Union, http://europa.eu/about-eu/agencies/index_en.htm (last visited Nov. 25, 2014).Google Scholar

¹⁴ Scholten, Political Accountability, supra note 11, at 48.Google Scholar

¹⁵ Agencies share a similar organizational structure: a management board, executive director, and additional scientific committees reflecting their functional needs; exact names of such organs may differ. Some agencies that issue individual decisions also have boards of appeals.Google Scholar

¹⁶ See Chiti, , supra note 7, at 1396; Stefan Griller & Andreas Orator, Everything Under Control? The “Way Forward” for European Agencies in the Footsteps of the Meroni Doctrine, 35 Eur. L. Rev. 3, 7–10 (2010); Mark Thatcher & David Coen, Reshaping European Regulatory Space: An Evolutionary Analysis, 31 W. Eur. Pol. 806, 814 (2008); Vos, Agencies and the European Union, supra note 7, at 118; Ellen Vos, Independence, Accountability and Transparency of European Regulatory Agencies, in Regulation Through Agencies in the EU: A New Paradigm of European Governance 120, 122 (Damien Geradin et al. eds, 2005) [hereinafter Vos, Independence, Accountability, and Transparency].Google Scholar

¹⁷ Groenleer chooses to use the term “autonomous” instead of “independent” with regard to EU agencies because “an autonomous actor is granted a level of autonomy by other actors or will attempt to ascertain a degree of control over his or her own affairs, but this does not mean that he or she is completely free, without restrictions, independent.” Martijin Groenleer, The Autonomy of European Union Agencies: A Comparative Study of Institutional Development 29 (2009). See also, Scholten, Independent, Hence Unaccountable?, supra note 3 (arguing that the term “independent” is misleading).Google Scholar

¹⁸ Vos, , Independence, Accountability, and Transparency, supra note 16, at 123; see also Resolution of 21 Oct. 2008 on a Strategy for the Future Settlement of the Institutional Aspects of Regulatory Agencies, Eur. Parl. Doc. (INI 2008/2103) para. 28 (2008); Ramboll Evaluation, supra note 5, at 11.Google Scholar

¹⁹ According to the Commission, independence is to be ensured in the following way:Google Scholar

[G]ranting of legal personality, budgetary autonomy, collective responsibility and own powers of the administrative board, the independence of the director, of the members of the scientific committees and of the boards of appeal, etc.“ and ”the director, the members of the scientific committees and of the boards of appeal shall also undertake to act independently of any external influence. To this end, they shall make a written declaration of commitment and a written declaration of interests every year.Google Scholar

Draft Interinstitutional Agreement on the Operating Framework for the European Regulatory Agencies, Eur. Parl. Doc. (COM 59) 5–6 (2005).Google Scholar

²⁰ See Groenleer, , supra note 17.Google Scholar

²¹ Draft Interinstitutional Agreement on the Operating Framework for the European Regulatory Agencies, supra note 19, at 4.Google Scholar

²² See Education, Audiovisual and Culture Executive Agency, Eur. Union, http://europa.eu/about-eu/agencies/executive_agencies/eacea/index_en.htm (last visited Nov. 25, 2014).Google Scholar

²³ These are: Education, Audiovisual and Culture Executive Agency (EACEA); European Research Council Executive Agency (ERC Executive Agency); Executive Agency for Competitiveness and Innovation (EACI); Executive Agency for Health and Consumers (EAHC); Research Executive Agency (REA); and Trans-European Transport Network Executive Agency (TEN-T EA). Agencies and Other EU Bodies, Eur. Union, http://europa.eu/about-eu/agencies/index_en.htm (last visited Nov. 25, 2014).Google Scholar

²⁴ Dehousse, Renaud, Regulation by Networks in the European Community: The Role of European Agencies, 4 J. Eur. Pub. Pol'y 246, 255 (1997).Google Scholar

²⁵ See Vos, , Agencies and the European Union, supra note 7, at 114–15.Google Scholar

²⁶ Lauwaars, Richard H., Auxiliary Organs and Agencies in the E.E.C., 16 Common Mkt. L. Rev. 365, 368 (1979).Google Scholar

²⁷ Kelemen, Daniel, The Politics of “Eurocratic” Structure and the New European Agencies, 25 W. Eur. Pol. 93, 101 (2002).Google Scholar

²⁸ The European Environment Agency (1990); The European Training Foundation (1990); The European Agency for the Evaluation of Medicinal Products (1993; today The European Medicines Agency); The European Monitoring Centre for Drugs and Drug Addiction (1993); The Community Plant Variety Office (1994); The Office for Harmonization of the Internal Market (1994); The European Agency for Safety and Health at Work (1994); The Translation Centre for the Bodies of the European Union (1995); The European Police Office (1995); The European Monitoring Centre on Racism and Xenophobia (1997, today The European Union Agency for Fundamental Rights); and The European Police College (2000).Google Scholar

²⁹ Schneider, Jens-Peter, A Common Framework for Decentralized EU Agencies and the Meroni Doctrine, 61 Admin. L. Rev. 29, 33 (2009) (“The spread of agencies beyond Brussels and Luxembourg adds to the visibility of the Union and of course - although not mentioned by the Commission - to options for political bargaining.”).Google Scholar

³⁰ See Scholten, , Political Accountability, supra note 11, at 53–54. These include: Agency for the Cooperation of Energy Regulators (ACER); Body of European Regulators for Electronic Communications (BEREC); Community Plant Variety Office (CPVO); European Agency for Safety and Health at Work (EU-OSHA); European Agency for the Management of Operational Cooperation at the External Borders (Frontex); European Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (IT Agency); European Asylum Support Office (EASO); European Aviation Safety Agency (EASA); European Banking Authority (EBA); European Centre for Disease Prevention and Control (ECDC); European Centre for the Development of Vocational Training (Cedefop); European Chemicals Agency (ECHA); European Environment Agency (EEA); European Fisheries Control Agency (EFCA); European Food Safety Authority (EFSA); European Foundation for the Improvement of Living and Working Conditions (Eurofound); European GNSS Agency (GSA); European Institute for Gender Equality (EIGE); European Insurance and Occupational Pensions Authority (EIOPA); European Maritime Safety Agency (EMSA); European Medicines Agency (EMA); European Monitoring Centre for Drugs and Drug Addiction (EMCDDA); European Network and Information Security Agency (ENISA); European Police College (Cepol); European Police Office (Europol); European Railway Agency (ERA); European Securities and Markets Authority (ESMA); European Training Foundation (ETF); European Union Agency for Fundamental Rights (FRA); Office for Harmonization in the Internal Market (OHIM); European Union's Judicial Cooperation Unit (Eurojust); Translation Centre for the Bodies of the European Union (CdT); European Defence Agency (EDA); European Union Institute for Security Studies (EUISS); and European Union Satellite Centre (EUSC).Google Scholar

³¹ Kelemen, Daniel & Tarrant, Andrew D., The Political Foundations of the Eurocracy, 34 W. Eur. Pol. 922, 923 (2011).Google Scholar

³² Id. Google Scholar

³³ Id. at 929.Google Scholar

³⁴ Chiti, , supra note 7, at 1398.Google Scholar

³⁵ See Chiti, , supra note 7, at 1395.Google Scholar

³⁶ Lavrijssen, Saskia & Ottow, Annetje, Independent Supervisory Authorities: A Fragile Concept, 39 Legal Issues Econ. Integration 419, 423 (2012).Google Scholar

³⁷ Scholten, , Political Accountability, supra note 11, at 58.Google Scholar

³⁸ See, e.g., Ooik, Ronald van, The Growing Importance of Agencies in the EU: Shifting Governance and the Institutional Balance, in Good Governance and the European Union: Reflections on Concepts, Institutions and Substance 25, 152 (Deirdre Curtin & Ramses Wessel eds., 2005) (concluding that the importance of EU agencies should not be exaggerated at the moment, at least before they have been delegated “more intense responsibilities”).Google Scholar

³⁹ Christiansen, Thomas, Out of the Shadows: The General Secretariat of the Council of Ministers, 8 J. Legis. Stud. 80, 80 (2002).Google Scholar

⁴⁰ See Scholten, , Political Accountability, supra note 11, at 3–4.Google Scholar

⁴¹ Curtin, Deirdre, Executive Power of the European Union: Law, Practices, and the Living Constitution 145 (2009).Google Scholar

⁴² See Dehousse, , supra note 7, at 792.Google Scholar

⁴³ Curtin, , supra note 41, at 164.Google Scholar

⁴⁴ For example, Technical Assistance Units preceded the European Training Foundation, the comitology system of two scientific committees preceded the EMEA, procedural mechanisms within the EP and within the Commission preceded the European Monitoring Centre for Drugs and Drug Addiction, and the Community programs of the CORINE program preceded the EEA as well as activities which were undertaken at an intergovernmental level. See, e.g., Alexander Kreher, Agencies in the European Community: A Step Towards Administrative Integration in Europe, 4 J. Eur. Pub. Pol'y 225, 233 (1997) (describing how, in two cases, the emergence of an agency took place alongside the decision to establish a new Community regime—Community plant variety protection and the Community trademark); Ellen Vos, Reforming the European Commission: What Role to Play for the EU Agencies?“ 37 Common Mkt. L. Rev. 1113, 1113 (2000) [hereinafter Vos, Reforming the European Commission] (showing that agencies have been created to replace various committees of the Commission and arguing that the visibility of agencies facilitates holding the EU structures to account).Google Scholar

⁴⁵ Zinzani, Marco, Market Integration through ‘Network Governance:’ The Role of European Agencies and Networks of Regulators 156 (2012); see generally David Levi-Faur, Regulatory Networks and Regulatory Agencification: Towards a Single European Regulatory Space, 18 J. Eur. Pub. Pol'y 810 (2011) (discussing how agencies replace networks).Google Scholar

⁴⁶ Chiti, Eduoardo, The Emergence of A Community Administration: The Case of European Agencies, 37 Common Mkt. L. Rev. 309, 342 (2000).Google Scholar

⁴⁷ See Council Regulation (EC) No 58/2003 of 19 December 2002, 2003 O.J. (L 11) (laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programs).Google Scholar

⁴⁸ See Scholten, , Political Accountability, supra note 11, at 394–463 (describing how, of the existing thirty-five EU independent regulatory agencies, seventeen agencies have been created with the European Parliament as co-legislator; these are mostly the agencies created in the third wave since 2000. The European Parliament gave its opinion to the Council in fifteen cases and did not participate in the creation of three agencies of the former second pillar).Google Scholar

⁴⁹ Craig, Paul, The Community Political Order, 10 Ind. J. Global Legal Stud. 79, 116 (2003).Google Scholar

⁵⁰ Ooik, Van, supra note 38, at 128.Google Scholar

⁵¹ See generally, Jean-Paul Jacqué, The Principle of Institutional Balance, 41 Common Mkt. L. Rev. 383 (2004); Vos, Reforming the European Commission, supra note 44.Google Scholar

⁵² European Parliament v. Council, CJEU Case C-70/88, 1990 E.C.R. I-2041, I-2072, para. 21.Google Scholar

⁵³ Consolidated Version of the Treaty Establishing the European Community art. 7, Dec. 29, 2006, 2006 O.J. (C 321) 1, 12 [hereinafter TEC].Google Scholar

⁵⁴ Consolidated Version of the Treaty on European Union art. 13, Mar. 30, 2010, 2010 O.J. (C 83) 1, 53 [hereinafter TEU].Google Scholar

⁵⁵ Scholten, , Political Accountability, supra note 11, at 391–463 (describing all individual agencies).Google Scholar

⁵⁶ See, e.g., id. at 172–73. For instance, EU agencies' directors can be appointed by twelve different procedures and can be removed in five different ways. Similar procedures may receive different legal labels in agencies' founding acts, such as evaluation and review clauses. Moreover, founding acts may simply lack evaluation, review, and removal clauses. Also, reporting obligations vary greatly with respect to the institutions-recipients of agencies' reports and specificity of such obligations. Furthermore, whereas EU agencies' founding acts can prescribe three types of hearings obligations before the European Parliament and/or the Council, they are not generally applied. Only eighteen (out of thirty-five) founding acts prescribe appointment hearings for candidates to head EU agencies, sixteen (out of thirty-five) agencies' directors may be invited to report on the performance of the agency, and in six (out of thirty-five) cases the founding acts provide a possibility to question an agency's director before the extension of the term of office. Id. Google Scholar

⁵⁷ See generally Bovens, Mark, Analysing and Assessing Public Accountability: A Conceptual Framework, 13 Eur. L.J. 447 (2007).Google Scholar

⁵⁸ Id. Google Scholar

⁵⁹ Id. Google Scholar

⁶⁰ Id. See also Rules of Procedure of the European Parliament, European Parliament, http://www.europarl.europa.eu/sides/getLastRules.do?language=EN&reference=ANN-07 (last visited Nov. 25, 2014)Google Scholar

⁶¹ Id. Google Scholar

⁶² See, e.g., Consolidated Version of the Treaty on the Functioning of the European Union art. 47, May 9, 2008, 2008 O.J. (C 115) 1, 57 [hereinafter TFEU] (relating to the Commission and the Council).Google Scholar

⁶³ Scholten, Political Accountability, supra note 11, at 74.Google Scholar

⁶⁴ See Evaluation, Ramboll, supra note 5, at i–ii.Google Scholar

⁶⁵ Meroni & Co., Industrie Metallurgische S.p.A. v. High Authority of the Eur. Coal & Steel Cmty, CJEU Case C-9/56, 1958 E.C.R. 135.Google Scholar

⁶⁶ Giuseppe Romano v. Institut National D'assurance Maladie-Invalidité, CJEU Case C-98/80, 1981 E.C.R. 1241.Google Scholar

⁶⁷ But see Chamon, Merijn, EU Agencies: Does the Meroni Doctrine Make Sense? 17 Maastricht J. 281 (2010) (questioning the relevance of the Meroni judgment to the agencies).Google Scholar

⁶⁸ See Meroni & Co., CJEU Case C-9/56 at 152.Google Scholar

⁶⁹ See id. at 135.Google Scholar

⁷⁰ See Griller, & Orator, , supra note 16, at 15–16.Google Scholar

⁷¹ See Meroni & Co., CJEU Case C-9/56 at 151.Google Scholar

⁷² See id. at 151–52.Google Scholar

⁷³ See id. at 151.Google Scholar

⁷⁴ Id. Google Scholar

⁷⁵ Id. Google Scholar

⁷⁶ Id. at 150.Google Scholar

⁷⁷ See id. at 149.Google Scholar

⁷⁸ See id. at 150.Google Scholar

⁷⁹ See id. at 152.Google Scholar

⁸⁰ See id. Google Scholar

⁸¹ See id. (emphasis added).Google Scholar

⁸² Id. (“A delegation of the first kind cannot appreciably alter the consequences involved in the exercise of the powers concerned, whereas a delegation of the second kind, since it replaces the choices of the delegator by the choices of the delegate, brings about an actual transfer of responsibility.”).Google Scholar

⁸³ Id. at 151 (“[T]o delegate a discretionary power, by entrusting it to bodies other than those which the Treaty has established to effect and supervise the exercise of such power each within the limits of its own authority, would render that guarantee ineffective.”).Google Scholar

⁸⁴ P Carmine Salvatore Tralli v Eur. Cent. Bank, CJEU Case C-301/02, 2005 E.C.R. I-4071, at para. 41.Google Scholar

⁸⁵ Alliance for Natural Health v. Sec'y of State for Health, CJEU Joined Cases C-154/04 & C-155/04, 2005 E.C.R. I-6451, para. 90.Google Scholar

⁸⁶ Giuseppe Romano, CJEU Case C-98/80.Google Scholar

⁸⁷ Id. at para. 20.Google Scholar

⁸⁸ Regulation (EEC) 1408/71, art. 81, 1971 O.J. 1, 444.Google Scholar

⁸⁹ See Giuseppe Romano, CJEU Case C-98/80 at para. 3.Google Scholar

⁹⁰ See id. at para. 1, 14.Google Scholar

⁹¹ See id. at para. 5, 7, 10.Google Scholar

⁹² See id. at para. 20.Google Scholar

⁹³ See id. Google Scholar

⁹⁴ See id. It has to be noted however that there is no consensus among scholars on the interpretation of the Romano judgment. Chamon gave an overview of the relevant scholarship. See Merijn Chamon, EU Agencies: between Meroni and Romano or the Devil and the Deep Blue Sea. 48 C. M. L. Rev. 1055 (2011).Google Scholar

⁹⁵ Orator, Andreas, Empowering European Agencies: Perspectives and Limits of European Democratic Legitimacy, in Perspectives and Limits of Democracy 23, 34 (Harald Eberhard, Konrad Lachmayer, Gregor Ribarov & Gerhard Thallinger eds., 2007).Google Scholar

⁹⁶ See Scholten, Political Accountability, supra note 11, 3–4 n.14.Google Scholar

⁹⁷ See Miroslava Scholten & Annetje Ottow, Institutional Design of Enforcement in the EU: the Case of Financial Markets, Utrecht L. Rev. (forthcoming Dec. 2014).Google Scholar

⁹⁸ See Comm. of Wise Men, Final Report on the Regulation of European Securities Markets (2001), http://ec.europa.eu/internal_market/securities/docs/lamfalussy/wisemen/final-report-wisemen_en.pdf.Google Scholar

⁹⁹ See Tridimas, Takis, EU Financial Regulation: Federalization, Crisis Management, and Law Reform, in The Evolution of EU Law, 786 (Paul Craig & Gráinne de Búrca eds., 2011).Google Scholar

¹⁰⁰ Id. at 783.Google Scholar

¹⁰¹ See Comm. of Wise Men, supra note 98, at 22–27.Google Scholar

¹⁰² See id. at 28–36.Google Scholar

¹⁰³ See id. at 37–39.Google Scholar

¹⁰⁴ See id. at 40–41.Google Scholar

¹⁰⁵ See de Larosière Group, the High-Level Group on Financial Supervision in the EU, (2009), http://ec.europa.eu/internal_market/finances/docs/de_larosiere_report_en.pdf.Google Scholar

¹⁰⁶ See Ottow, Annetje, Europeanization of the Supervision of Competitive Markets, 18 Eur. Pub. L. 191 (2012).Google Scholar

¹⁰⁷ See de Larosière Group, supra note 105, at 49.Google Scholar

¹⁰⁸ See Communication from the Commission, European Financial Supervision, at 5, COM (2009) 252 final (May 27, 2009).Google Scholar

¹⁰⁹ See Moloney, Niamh, Reform or Revolution? The Financial crisis, EU Financial Markets law and the European Securities and Markets Authority, 60 Int'l & Comp. L. Q. 529 (2011).Google Scholar

¹¹⁰ Masciandaro, Donato, Maria J. Nieto & Marc Quintyn, Will They Sing the Same Tune? Measuring Convergence in the New European System of Financial Supervisors (IMF Working Paper No. 09/142, 2009).Google Scholar

¹¹¹ Regulation 1095/2010 of the European Parliament and of 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, art. 1(5), 2010 O.J. (L. 331/12).Google Scholar

¹¹² See Moloney, Niamh, The European Securities and Markets Authority: A Perspective From One Year On 10 (2013).Google Scholar

¹¹³ These drafts and standards follow the procedural framework as established in Articles 10 to 14 and 15 of Regulation No 1095/2010.Google Scholar

¹¹⁴ See Regulation No 1095/2010 art. 16.Google Scholar

¹¹⁵ See id. arts. 10(4), 15(4).Google Scholar

¹¹⁶ See Wymeersch, Eddy, The European Financial Supervisory Authorities or ESAs, in Financial Regulation and Supervision. A Post-Crisis Analysis 276 (Eddy Wymeersch, Klaus J. Hopt & Guido Ferrarini eds., 2012).Google Scholar

¹¹⁷ See Regulation No 1095/2010 art. 16(3).Google Scholar

¹¹⁸ See id. arts. 17–19.Google Scholar

¹¹⁹ See id. art. 17.Google Scholar

¹²⁰ Id. art. 18.Google Scholar

¹²¹ See id. art. 19.Google Scholar

¹²² See Schammo, Pierre, The European Securities and Markets Authority: Lifting the Veil on the Allocation of Powers, 48 C. M. L. Rev. 1885 (2011).Google Scholar

¹²³ See Communication from the Commission: European Financial Supervision, at 12, COM (2009) 252 final (May 27, 2009).Google Scholar

¹²⁴ See Regulation No 1095/2010 art. 21.Google Scholar

¹²⁵ See id. arts. 22–27.Google Scholar

¹²⁶ See id. art. 29.Google Scholar

¹²⁷ See id. art. 30.Google Scholar

¹²⁸ See id. art. 31.Google Scholar

¹²⁹ See id. art. 32.Google Scholar

¹³⁰ See id. art. 35.Google Scholar

¹³¹ See Regulation 1060/2009 of the European Parliament and of the Council of 16 September 2009 on Credit Rating Agencies 2009 O.J. (L 302/1).Google Scholar

¹³² See id. Google Scholar

¹³³ Article 23c of Regulation (EC) 1060/2009 was introduced by Regulation 513/2011 of the European Parliament and of the Council of 11 May 2011 Amending Regulation (EC) No 1060/2009 on Credit Rating Agencies 2011 O.J. (L 145/30).Google Scholar

¹³⁴ Chamon, Merijn, The Influence of “Regulatory Agencies” on Pluralism in European Administrative Law, 5 Rev. of Eur. Admin. L. 61, 89 (2012).Google Scholar

¹³⁵ Note that the UK did not call into question the establishment of ESMA, and hence its founding regulation, which in light of Article 263 TFEU can be challenged within two months of the publication of the regulation. This is not surprising, however, because the possibility of creating an agency on the basis of Article 95 TEC (114 TFEU) was challenged by the UK and was upheld by the Court in the ENISA judgment, United Kingdom v. Parliament and Council, CJEU Case C-217/04, 2006 E.C.R. I-03771.Google Scholar

¹³⁶ U.K. and N. Ir. v. European Parliament and the Council of the European Union, CJEU Case C-270/12, para. 28 (Jan. 22, 2014), http://curia.europa.eu/ [[hereinafter ESMA-shortselling].Google Scholar

¹³⁷ Id. at para. 30.Google Scholar

¹³⁸ Id. at para. 32.Google Scholar

¹³⁹ Id. at para. 56.Google Scholar

¹⁴⁰ Id. at para. 57.Google Scholar

¹⁴¹ Id. at para. 69.Google Scholar

¹⁴² Id. at para. 70.Google Scholar

¹⁴³ Id. at para. 89.Google Scholar

¹⁴⁴ Id. at para. 90.Google Scholar

¹⁴⁵ Id. at paras. 77–78.Google Scholar

¹⁴⁶ To be more specific, the Lisbon Treaty mentions EU agencies in a number of general provisions, such as Article 15 TFEU: “In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible.” Similar references to agencies can be found in Articles 9 (on democratic equality), 42 and 45 (on European Defense Agency) TEU and Articles 15 (mentioned before), 16 (on data protection), 24 (on right to communication, indirectly referring to any ‘body'), 71 (on internal security), 123, 124, 127 and 130 (on monetary union), 228 (concerning the procedures of Ombudsman), 263, 265, 267 and 277 (on judicial review), 282 (on ECB), 287 (on the discharge by the Court of Auditors), 298 (on ‘open, efficient and independent’ European administration) and 325 (on anti-fraud) TFEU, and Protocols 3 (on the Court of Justice), 4 (on the ECB), 6 (on the location of the seats of institutions and agencies), 10 (concerning the European Defense Agency), and 36 (on transitional provisions).Google Scholar

¹⁴⁷ Ellen, Vos, European Agencies and the Composite EU Executive in European Agencies in between Institutions and Member States 44 (Michelle Everson et al. eds., 2014).Google Scholar

¹⁴⁸ The debate and the case law on Article 114 TFEU are outside the scope of the article, except for the argument on democratic input, to be discussed in Part IV. For the discussion of the appropriateness of Art. 114 TFEU as legal basis for delegation to ESMA, see also Merijn Chamon, The Empowerment of Agencies under the Meroni Doctrine and Art. 114 TFEU: Comment on United Kingdom v. Parliament and Council (Short-selling) and the Proposed Single Resolution Mechanism, 39 Eur. L. Rev. 380, (2014) and Pieter van Cleynenbreugel, Meroni Circumvented? Art. 114 TFEU and EU Regulatory Agencies, 21 Maastricht J. Eur. & Comp. L. 64 (2014).Google Scholar

¹⁴⁹ U.K. and N. Ir., CJEU Case C-270/12 at para. 100.Google Scholar

¹⁵⁰ Hofmann, Herwig C.H. & Morini, Alessandro, Constitutional Aspects of the Pluralisation of the EU Executive Through “Agencification” 34 (Univ. of Lux. L., Working Paper No. 2012–01, 2012). The hidden ways imply no explicit authorization of creating agencies and delegating to them specific powers, but mention agencies here and there in some general provisions.Google Scholar

¹⁵¹ See, e.g., Chamon, , supra note 67.Google Scholar

¹⁵² U.K. and N. Ir, CJEU Case C-270/12 at para. 43.Google Scholar

¹⁵³ See supra Part II. 1 (discussing the origins of agencies' functions).Google Scholar

¹⁵⁴ Meroni, CJEU Case 9/56 at 149.Google Scholar

¹⁵⁵ It is, in fact, difficult to place the Court's ruling within the new Treaty-based distinction of legislative implementation and delegation of powers, as well as different democratic controls which different powers entail.Google Scholar

¹⁵⁶ U.K. and N. Ir, CJEU Case C-270/12 at para. 54 (emphasis added).Google Scholar

¹⁵⁷ Evaluation, Ramboll, supra note 5.Google Scholar

¹⁵⁸ See, e.g., Chiti, , supra note 7, at 1406.Google Scholar

¹⁵⁹ Majone, Giandomenico & Keleman, Daniel, Managing Europeanization: The European Agencies, in The Institutions of the European Union 197, 219–40 (John Peterson & Michael Shackleton eds., 2006) (“The legal basis for establishing an agency [is proposed to] be the same as that authorizing the corresponding policy rather than the general Article 308 EC. The logic of the proposal is clear—the agency is simply an instrument of policy implementation”).Google Scholar

¹⁶⁰ Davies, Bleddyn, Delegation and Accountability of Criminal Agencies after Lisbon: An Examination of Europol, in The Treaty of Lisbon and the Future of European Law and Policy 325, 331–33 (Martin Trybus & Luca Rubini eds., 2012).Google Scholar

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

Kreher, supra note 44, at 232.Google Scholar

¹⁶² Barker, Alex, European Court Rejects UK challenge Against EU Short-Selling Ban, Financial Times (Jan. 22, 2014), www.ft.com/cms/s/0/68cbcb64-834c-11e3-aa65-00144feab7de.html#axzz2sRtvtjln.Google Scholar

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

¹⁶⁴ Scholten, , Political Accountability, supra note 11, at 177-178, 186.Google Scholar

¹⁶⁵ Id. at 70.Google Scholar

¹⁶⁶ Dyrberg, Peter, Accountability and Legitimacy: What is the Contribution of Transparency?, in Accountability and Legitimacy in the European Union 81, 83 (Anthony Arnull & Daniel Wincott eds., 2002).Google Scholar

¹⁶⁷ For the argument of the evolution of the “delegation debate” from the issue of “what kind of powers can be delegated to EU agencies” to the question of “what kind of discretion can be conferred on EU agencies,” see Miroslava Scholten & Marloes van Rijsbergen, The ESMA-Short Selling Case: Erecting a New Delegation Doctrine in the EU Upon the Meroni-Romano Remnants, 41 Legal Issues Econ. Integration 389, 389–406 (2014).Google Scholar

¹⁶⁸ The recently issued “Common Approach” on EU agencies is a non-legally binding document which implies that future political negotiations remain the determinant factor when creating agencies, delegating powers to them, and organizing their accountability. The future negotiations will test the political will required to implement the intentions laid down in the “Common Approach” consistently. On the critical analysis of the Common Approach on EU agencies, see Miroslava Scholten, The Newly Released “Common Approach” on EU Agencies: Going Forward or Standing Still?, 19 Colum. J. Eur. L. 1 (2012).Google Scholar

¹⁶⁹ Maggetti, Martino, Legitimacy and Accountability of Independent Regulatory Agencies: A Critical Review, 2 Living Reviews in Democracy (2010).Google Scholar

¹⁷⁰ Auel, Katrin, Democratic Accountability and National Parliaments: Redefining the Impact of Parliamentary Scrutiny in EU Affairs, 13 Euro. L. J. 487, 504 (2007).Google Scholar