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: … and some key-features particularly relevant for understanding their limits and potentialities in issuing sanctions

Among the common features that all EU agencies share, two deserve to be discussed in detail.

First and foremost, EU agencies are hubs of national administrations. They are made up of representatives of each national administration (or, sometimes, independent national authority). Usually these members sit in the decision-making body of the agency; rarely, on an advisory board which, however, typically exercises a strong influence over the agency’s decisions.

Therefore, EU agencies are able to merge the European and national levels of regulation:[1] their acts clearly belong to the EU legal order, despite being absolutely atypical;14 however, they also maintain a strong connection with the national ones. This is also due to their very technical and scientific nature: unlike the acts of the Council, which are similarly taken by an assembly of national representatives, EU agencies’ acts are not the outcome of political compromises, but of the evaluation of different administrative practices, scientific evaluations, technical operations. Moreover, in several cases EU agencies’ acts are simply recommendations to national administrations, which thence have to (or, sometimes, are more-or-less ‘free’ to choose whether and how to) implement them.1 Thus, as seen from EU agencies, the boundaries between EU and national regulation become quite blurred; as will be discussed below, this has significant implications on sanctioning.

Secondly, EU agencies suffer a very scant recognition in primary law. Despite almost three decades of agencification, over 37 bodies established so far and several amendments to the EU treaties, there is still no explicit legal basis to establish agencies and to delegate powers to them. An attempt to introduce such a clause had been made at the time of the European Convention; however, former Commission President Prodi clearly took an opposite stance, arguing that fully recognising agencies in the treaties would have enhanced their powers to the detriment of the Commission. Therefore, over the years EU agencies have never been fully acknowledged in primary law, being established firstly through the flexibility clause, and subsequently on the basis of the provisions of the treaties dealing with the policy field in which the agency operates. In the last decade, Art. 114 TFEU (i.e. the clause for the approximation of national legislation) has also been used as a (controversial) legal basis.

The Lisbon Treaty brought only a subtle, albeit interesting, innovation (which, however, as often happens is slightly more than a codification of a principle previously stated by the Court of Justice of the EU).[2] EU agencies are now mentioned in relation to some of the competences of the Court, namely the action for annulment, for failure to act, the preliminary ruling and the plea of illegality.

In the landmark Short Selling judgment, the Court legitimised the practice of delegating sanctioning powers to agencies, fostering their evolution in this domain. Consequently, there may exist in the EU legal order acts adopted by agencies, both addressed to individuals (like the imposition of fines) and having general application (thanks to the explicit mention in Art. 277 TFEU). Therefore, the doubts on the possibility of granting sanctioning powers to agencies now seems to have found quite a safe answer in positive terms.

However, many questions are still open.

Who are these agencies, since they are currently named so differently (centre, foundation, office, authority, body, agency...)? How can these non-defined-agencies be established, by whom and for doing what? Which type of powers can be entrusted to them and under which condition? Which kind of acts can they adopt and under which procedures? The treaties do not offer consistent arguments to address those queries, which are tackled by each piece of secondary legislation establishing agencies in a similar, albeit never identical, manner.

Paradoxically enough, this weak constitutional basis has been both a blessing and a curse for EU agencies.

On the one hand, it has clearly limited (and, to some extent, it is still limiting, because of the just mentioned uncertainties) EU agencies’ ability to issue sanctions. Sanctioning powers have been delegated only in few circumstances and under specific conditions. As it will be analytically discussed below (Section 3.4), EU agencies perform mainly an auxiliary function, supporting other institutions (usually, the Commission; sometimes, national administrations) with the technical and scientific assessments that are needed to subsequently issue sanctions. Therefore, their shaky position within the EU institutional architecture has definitely pushed EU agencies towards a supporting, secondary role in EU sanctioning, which has been evolving towards new trends only recently.

On the other hand, the lack of a specific normative framework in the treaties is certainly among the reasons behind the success of EU agencies: they have been replicated over more than 30 years, basically in every field of EU law, also because the Member States have found and are still finding in EU agencies a great platform for cooperation, starting from an almost blank page, without empowering an existing (and potentially hostile) institution,[3] deciding its functions, composition and powers on a case-by-case basis. This flexibility has clearly enhanced the EU agencies’ political appeal and, hence, their chance to be endowed with sanctioning powers.

  • [1] The literature on this point is extremely rich. See, ex multis, A. Kreher, ‘Agencies in the European Community - A step towards administrative integration in Europe’ (1997) Journal of European Public Policy 225; S. Cassese, ‘European Administrative Proceedings’, (2004) 68 Law & Contemporary Problems 21; D. Geradin, R. Muñoz, N. Petit, Regulation through Agencies in the EU -A new Paradigm of European Governance (2005, Elgar). 14 C. Tovo, supra note 11,268 et seq. 15J. Alberti, ‘L’utilisation d’actes de soft law par les agences de l’Union européenne’, (2014) Revue de l’Union européenne 161. 2 See below at Section 3.3.1. 3 ■' EUROPOL (art. 88 TFEU), EUROJUST (Articles 85 and 86 TFEU) and the European Defence Agency (Articles 42 and 45 TEU) are interesting exceptions, despite irrelevant from a general perspective. 4 lsSee E. Vos, ‘Agencies and the European Union’, in T. Zwart, L. Verhay (eds), Agencies in European and Comparative Law (2003, Intersentia) 128-129. 5 On EU agencies’ legal basis see, ex multis, J. Alberti, supra, note 3, 122-137.
  • [2] Case T-411/06, Sogelma, ECLI:EU:C:2009:518. However, this case stated the need to fully recognise EU agencies’ acts among those reviewable under Article 263(1) TFEU; the Lisbon Treaty pushed this approach slightly further, recognising agencies’ acts also under other actions. 2 See P. Craig, 'Legal control of regulatory bodies: principle, policy and teleology’, in P. Birkinshaw, M. Varney (eds), The European Union Legal Order after Lisbon (2010, Wolters Kluwer) 93. 3 Case C-270/12, UK v. Parliament and Council (Short selling), ECLI:EU:C:2014:18. 4 25 For a short but in-depth analysis of this case law (and its multiple limits), see C. Ohler, 'Anmerkung zu einem Urteil des EuGH vom 22.01.2014 (C-270/12; JZ 2014, 244) - Zur Übertragung von Rechtsetzungsbefugnissen auf die Europäische Wertpapier- und Marktaufsichtbehörde’, (2014) Europarecht 249. 5 stance, art. 13 TEU on EU institutions and auxiliary committees; art. 290-291 TFEU for the delegation of powers; art. 288 TFEU for the sources of EU law) do not mention at all agencies. They clearly constitute the legal benchmarks for assessing the agencies’ legitimacy; however, they do not explicitly tackle these issues. 6 It bears noting that all the provisions of the treaties dealing with these matters (see, for in
  • [3] According to M. Shapiro, ‘Independent agencies’, in P. Craig, G. De Burca (eds), The evolution of EU Law (2011 OUP) 113, the creation of agencies enabled Member State ‘not to further magnify the Brussels profile’. 2 J. Bridge, ‘Procedural Aspects Of The Enforcement Of European Community Law Through The Legal Systems Of The Member States’, (1984) 9 European Law Review 28. 3 2'The verbatim is reported by J. Biancarelli, ‘Does the Community Legal Order Have the Power to Institute Sanctions?’, in M. Delmas-Marty (ed.), What Kind of Criminal Policy for Europe? (1996, Brill) 249; the whole Institutional Report by C.W.A. Timmermans can be found in the XV FIDE Congress Proceedings, Lisbon, 1992.
 
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