EU Agencies and the Issue of Delegation: Conferral, Implied Powers and the State of Exception

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Table of Contents: I. Introduction. – II. Agencification and the issue of delegation. – II.1. Agencies as delegated entities: overview of the delegated functions. – II.2. Fundamentals of the delegation of powers: Meroni, Romano, and the principle of the institutional balance. – III. The process of agencification and the practice of delegation: in search of the legal bases clothing the Emperor. – III.1. The use of the flexibility clause as a legal basis. – III.2. The specific sectoral legal bases: Art. 114 TFEU and the approximation through agencification. – III.3. The ENISA ruling: a broader interpretation of art. 114 TFEU as to include the power of establishing and empowering agencies? – III.4. Short selling and the shadow of the implied powers. – IV. The nudity of the Emperor: Short selling and the proclamation of the state of exception. – IV.1. Short selling: the unbearable lightness of being delegated powers. – IV.2. The creation of agencies as an exceptional measure dictated by a state of necessity. – IV.3. Normalising the state of exception: drawbacks of the lack of regulation. – V. Conclusions.

Abstract: The delegation doctrine has evolved together with the Union’s objectives and executive tasks. Yet the Court has continued to apply the principles set out at the origins of the European integration. The Treaty-makers have not intervened to offer a new legal framework as concerns the establishment and empowerment of agencies. As such, the issue of delegation has been stretched and cut on the Procrustean bed of the process of agencification, forcing a substantial reinterpretation of the concept of discretionary powers. The present Article will analyse the possibility of an interpretative expansion of the specific sectoral legal bases as to include the competence of delegating powers on agencies within the powers conferred to the Union. It will then move on analysing the possibility of that being an implied power of the Union. Finally, it will be suggested that the process of agencification has been primarily based on a pragmatic political need for credibility and long-term regulatory stability in order to effectively respond to what has been felt as emergency. These options represent the good, the bad and the ugly of a legal doctrine meant to apologize for an affirmed and ever-expanding practice of governance. Since the existence of agencies cannot be neglected nor their mushrooming can be acquiesced, the present analysis, beyond the apology, will attempt to shed some light over the jurisprudence of the Court, highlighting the risks arising from the lack of an agency model and, in general, from the unregulated process of agencification.

Keywords: delegation – EU agencies – ESMA doctrine – Meroni doctrine – Short selling – State of exception.

European Papers, Vol. 4, 2019, No 3, pp. 723-751
2499-8249 - doi: 10.15166/2499-8249/338

* Graduate student in European Legal Studies, College of Europe (Bruges),


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