EU agencies between Meroni and Romano or the devil and the deep blue sea

Abstract

A contentious issue regarding the institutional phenomenon of agencification of the Union administration is the question whether and to which extent executive powers may be conferred on EU agencies. This question has arisen because the Treaties neither foresee nor exclude the possibility for the Union legislature to establish other bodies through secondary law. So far this question has also remained unresolved because the Court of Justice has not yet ruled on this specific issue. In the case law of the Court there are however rulings to be found, notably the Meroni and Romano cases, in which the conferral of powers on bodies more or less similar to EU agencies was reviewed. Unsurprisingly these rulings, and especially the Meroni ruling, have therefore attracted the attention of legal scholars in their attempts to frame the process of agencification in the EU. Although the Meroni ruling is much more cited and analysed in the legal debate on agencies than the Romano judgment, it is argued in this contribution that the latter is far more relevant for current day agencies. By applying the reasoning in Romano to the EU agencies it is revealed, even more so than by applying the Meroni doctrine, that the ongoing agencification rests on very shaky legal grounds.

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