Table of Contents: I. Introduction. – II. The issue of delegation under the system of the Treaties. – III. Rule-shaping by EU agencies in the financial markets. – III.1 Participation in the executive rulemaking of the Commission. – III.2 Harmonisation through soft law. – IV. Legality and delegation after the financial crisis. – V. Administrative integration beyond the ESAs.
Abstract: The financial crisis has set new challenges for European integration, including the revision of priorities, principles and mechanisms of micro-prudential supervision of financial markets. Amongst the significant institutional reforms, the intensification of controls on financial markets has been pursued through the establishment of the European Supervisory Authorities in the financial markets (ESAs). This Article aims to analyse the role that these Authorities have been playing in shaping the EU legal order after the financial crisis. As a result of the EMU-related regulation aimed at enhancing EU financial stability after the crisis, the ESAs institutionalise administrative cooperation in micro-prudential supervision. The combination of agencification and crisis management is not new to the development of European integration nor specific to the case of financial markets. Nevertheless, the ESAs represent a peculiar regulatory experience, which share many characteristics of EU agencies, yet move towards an embryonic model of independent regulators. Compared to other EU agencies, in fact, they enjoy wider powers and a much more autonomous status from the Commission. They have acquired highly relevant competences that enhance their role in the internal market regulation. In addition, the CJEU engaged in a partial revision of the interpretative boundaries of the Meroni doctrine concerning the non-delegation of regulatory powers on agencies, allowing the ESAs to exercise some substantive regulatory prerogatives. This Article investigates how these competences affect the EU model of legality, showing to what extent the delegation of powers has changed as a result of the crisis.
Keywords: European Supervisory Authorities in the financial markets – delegation – crisis – Meroni doctrine – rulemaking – soft law.
* Assistant Professor in Administrative Law, Luiss University, email@example.com.