Article 114 TFEU as the legal basis for European agencies to adopt direct regulatory measures vis-a-vis third parties

Abstract

`Agencification` in the European Union is a process that has intensified significantly during the last decade not only in respect of the numbers of EU agencies operative in the European Union today but also with regards to the functions and powers which are delegated to them. With few exceptions, EU agencies created in the past did not have regulatory powers in the sense that they could adopt individual binding decisions vis-à-vis third parties but instead were limited to assistance functions towards the Member States and the Commission. Besides the political reluctance of the Member States and as well of the Commission to delegate far reaching decision making powers to EU agencies, the principles established in the Meroni judgment are said to have hindered further agencification in the past. This picture changed with the establishment the Security and Market Authority (ESMA) in 2010 through Regulation (EU) No 1095/2010. By Regulation (EU) No 236/2012 on short selling and certain aspects of credit default swaps, ESMA was empowered to adopt direct regulatory measures vis-à-vis third parties. However, despite its increasing relevance, the Treaties do not provide for a comprehensive normative framework with general criteria and conditions for the establishment, running and monitoring of EU agencies. Only indirectly the existence of EU agencies is acknowledged in the Treaty on the Functioning of the European Union (TFEU), namely by mentioning acts of EU agencies in the context of the judicial review mechanism available under Articles 263 TFEU and 267 TFEU. Moreover, those Treaty provisions which expressly deal with the implementation of EU law, these are Articles 290 TFEU and 291 TFEU, do not mention EU agencies either. In the absence of specific Treaty provisions, most EU agencies in the past have been either adopted under sectorial Treaty provisions6 or under Article 352 TFEU which requires unanimity voting in the Council.