By Alberto Alemanno
Where to draw the line between delegated acts and implementing acts? That has been the one million dollar question since the entry into force of the Lisbon Treaty. But I did not dare to ask this important question at the final exams of my students a few weeks ago. Why not? Because nobody, not even their teacher (after having spent years of research on the subject), had a plausible answer. However, on 18 March 2014, the Court of Justice in Commission v Parliament and Council, made a first attempt to answer this question. So would I now consider including this question in my next exam? Probably not, because the Court’s answer in this eagerly awaited judgment turns out to be quite hermetic and largely incomplete. Moreover, unfortunately, also the Opinion of the Advocate General – despite its deep analysis and ambitious tenor – failed to provide the necessary clarification to this endless and unsolved conundrum. Having said that, let me provide a brief analysis of this judgment and measure its most immediate impact.
This important constitutional case of last week deals with the legal limits of the proliferation of agencies within the EU and their powers imposed by EU constitutional law, and in particular with the Meroni (1958) and Romano (1981) judgments as well as the new constitutional structure created with the Lisbon Treaty with respect to delegated and implementing powers. The case presented an opportunity for the Court, as the Advocate General had put it, ‘to balance the functional benefits and independence of agencies against the possibility of them becoming “uncontrollable centres of arbitrary power”’(para 19). The Court concluded that the fears of the United Kingdom in relation to the powers of the European Securities and Market Authority (‘ESMA’) to intervene in the financial assets and securities markets were unfounded, and by doing so clarified that articles 290 and 291 TFEU do not present a closed system of delegating regulatory powers. The judgement solidifies the legality of much of the EU’s practice in having recourse to specialized agencies to deal with issues which require a certain level of expertise. In this blog post, I will highlight the three main aspects of the judgement:
- the compatibility of the EU’s delegation of powers to ESMA with the Meroni and Romano judgments;
- its compatibility with articles 290 and 291 TFEU;
- its compatibility with the principle of conferral of powers in relation to article 114 TFEU. Continue reading