: New Actors on the Stage: The Emerging Role of the EU Agencies in Exercising Sanctioning Powers

Jacopo Alberti * **

ABSTRACT: The well-known fragmentation of EU executive has brought to the emersion of new bodies endowed with sanctioning powers or with auxiliary functions within the sactioning procedure: the EU agencies. After a brief overview of these bodies, this chapter discusses how EU agencies have enhanced the capability of the EU to impose sanctions. In particular, it highlights EU agencies’ role as bridge between the EU and the Member States and as ‘legislative laboratories’ where new enforcement practices are negotiated and tested in practice. Moreover, this chapter provide a detailed taxonomy of the sanctioning powers exercised by EU agencies, pointing out in particular their auxiliary (yet fundamental) role vis-à-vis the Commission and national authorities; how they are silently eroding the Commission s prerogatives in the infringement procedure; their powers to impose fees to market operators and the relevance of granting unlimited jurisdiction to the Court of justice for scrutinising those powers. By way of conclusion, the chapter presents and discuss the main driving forces according to which the EU legislator decides to grant sanctioning powers to EU agencies.

KEYWORDS: EU agencies - taxonomy - infringement proceedings - unlimited jurisdiction - delegation of powers

SUMMARY: 3.1. Introduction. - 3.2. EU agencies: a brief overview. - 3.2.1. EU agencies: what’s in a name? Some methodological caveats for assessing the bodies under scrutiny...

• - 3.2.2 ... and some key-features particularly relevant for understanding their limits and potentialities in issuing sanctions. - 3.3. The agencies’ contribution to EU law enforcement. A theoretical perspective. - 3.3.1.EU agencies as a tool to force the ‘sanction conundrum’ of the EU? - 3.3.2. EU agencies as ever-changing creators of enforcement practices. - 3.4. An analytical taxonomy of EU agencies’ direct or indirect sanctioning powers.
• - 3.4.1 Collection and spread of information and best practices among national administrations. - 3.4.2 Monitoring activities and inspections that might bring to sanction issued by national or EU authorities. - 3.4.3. Power to propose to the Commission to impose fees. - 3.4.4. Assistance in the enforcement of EU law (a silent erosion of the Commission’s infringement powers?). - 3.4.5. Power to impose fees (and the not-always-unlimited jurisdiction of the Court of Justice of the EU). - 3.5. EU agencies’ contribution to the exercise of sanctioning power: current and future challenges.

: Introduction

Since the beginning of the ’90s, the European Union (EU) has been witnessing a growing proliferation of quasi-independent administrative bodies, dealing with virtually every policy field conferred to the EU.^[1]

These bodies, made up of representatives of national administrations and mainly entrusted with technical and scientific functions, have gained over the years a significant role in EU decision-making, despite the lack of a clear legislative framework concerning their functions. Thanks to this institutional flexibility, they have also been able to perform - sometimes only indirectly, often together with other EU institutions - almost every type of EU law enforcement: monitoring activities, collection of evidences, technical and scientific evaluations, infringements and, most importantly, sanctions.

Therefore, even though endowing EU agencies with sanctioning powers has not changed the theoretical underpinnings of sanctioning, it has brought several innovations not only in terms of actors involved, but also with regards to procedures to be follow for sanctioning, legitimacy of sanctions, legal acts used for these purposes and judicial protection.

This chapter aims at shedding some light on how the rise of agencies has been affecting the EU sanctioning power and how the latter could, or should, evolve in light of the former. After a brief overview of EU agencies (Section 3.2) and the features of these bodies that are most relevant for the topic to which this book is devoted (Section 3.3), a taxonomy of their sanctioning functions will be provided (Section 3.4). In the end, some conclusive remarks on their contribution to EU sanctioning will be given (Section 3.5).

• [1] * Associate Professor of EU Law, University of Ferrara. The A. thanks Francesco Costamagna, Stefano Montaldo and Alberto Miglio for their comments and suggestions on the draft version of this chapter. A further acknowledgement goes to Chiara Giussani, SRB Policy Officer. Errors and horrors remain solely mine. 2 On the mushrooming of specialized bodies at European level see E. Chiti, 'The emergence of a community administration: the case of European agencies’, (2000) Common Market Law Review 341; R. Dehousse, ‘Misfits: EU law and the transformation of European governance’, (2002) 2 Jean Monnet Working Papers. Please note that two agencies had already been established in the 70ies: the European Centre for the Development of Vocational Training (CEDEFOP, pursuant to Council Regulation of 10 February 1975 No 337/75, OJ 1975, L 39/1 (as subsequently amended) and the European Foundation for the Improvement of Living and Working Conditions (EUROFOUND, pursuant to Council Regulation (EEC) of 26 May 1975 No 1365/75, OJ 1975, L 139/1 (as subsequently amended). 3 For taking stock of the established debates on this point mainly with regards to the international legal order, see M.L. Picchio Forlati, La sanzione nel diritto internazionale (1974, CED AM) 29-47 (for some general reflection on sanctions within the general legal theory, also p. 9-28); with regards to the administrative legal doctrine, see G. Pagliari, Profili teorici della sanzione amminis-trativa (1988, CEDAM) passim (for a specific overview on the Italian debate, 45-145). As for the established literature on sanctions in EU, EEC and EC Law, see below mainly at Section 3.3.