Abstract
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.
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.
Original language | English |
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Pages (from-to) | 1223-1255 |
Journal | German Law Journal |
Volume | 15 |
Issue number | 7 |
DOIs | |
Publication status | Published - 1 Dec 2014 |