European Agencies: What About the Institutional Balance?
18 Pages Posted: 17 Jul 2014
Date Written: July 17, 2014
This paper critically reflects upon what role EU agencies (should) have within the EU’s post-Lisbon institutional balance of powers and what kind of powers can be delegated to them. It argues that the constitutional neglect for agencies in the hierarchy of norms established by Articles 290 and 291 TFEU has now been compensated for by the CJEU in its ESMA ruling. The latter clarified that agencies may operate in situations where the hierarchy of norms envisioned by the European treaties does not provide an adequate response to functional needs for EU action. At the same time, it not only extended Meroni protection to unexpected agency operation, but has also imposed a measure of constitutionalization upon the ad hoc operations of an ever expanding EU executive: the powers of agencies remain strictly circumscribed. The paper concludes nevertheless that a formal constitutionalization of agency operation is still needed, remedying the constitutional neglect of agencies in Article 290 TFEU, and, in particular, Article 291 TFEU.
Keywords: EU agencies, institutional balance, delegation of powers, Meroni, Lisbon Treaty
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