Week 5

Question 1

Legislation and implementation in the EU post-Lisbon.

Who adopts it?

Answer 1

The European Parliament (EP) and the Council are jointly responsible for adopting legislation through the ordinary legislative procedure.

Includes primary laws or regulations that provide broad policy objectives.

Question 2

Delegated Act

What is it purpose?

Answer 2

To supplement or amend non-essential elements of the legislative act.

The European Commission, empowered by the legislative act.

EP and the Council have oversight powers: They can object or revoke the delegation of powers.

Question 3

Implementing Acts:

Answer 3

Two levels:

1. Member States: Primarily responsible for the practical implementation of EU legislation at the national level.
2. EU-Level Implementation:
   If uniform implementation across Member States is required, the Commission (or sometimes the Council) adopts implementing acts.

Question 4

What is the difference between delegated and implementing acts?

Answer 4

1. Delegated acts: Used to amend or supplement legislative acts.

• Focus on non-essential elements of the legislation.

2. Implementing acts: Used to ensure uniform conditions for implementing legislative acts.

• Focus on execution of the law.

Question 5

How is the Legislation and
implementation procedure
post-Lisbon?

• Who legislate
• Who made delegated acts
• Who implements

Answer 5

Legislation: EP and Council

Delegated acts: Commission

Implementation: MS and At EU level: Commission (or Council) Implementing acts

Question 6

What is a Decentralised agencies?

Answer 6

• Created by legislative act
• Own legal personality
• Limited mandate
• Actively involved in the
  executive function
• With and without legally-
  binding decision-making
  powers
• Independent

Question 7

How is the independence of an agency?

Answer 7

It has:
1. Institutional independence
since it has organisational, staffing, financial,
budgetary independence

2. Functional independence

Question 8

Why do agencies exist?

Answer 8

1. introduce increasingly flexible administrative capacity and
   efficiency
2. deal with complex technical and scientific issues
3. to (re)gain trust and credibility

Question 9

What are they tasks?

Answer 9

1. to provide, co-ordinate and supervise
   information and networks (EEA, EUDA)
2. to provide specific services (EUIPO, CVPO
3. to provide scientific expertise/information
   and/or services and/or facilitate co-operation
   (EFSA, EMA, ECHA)
4. Mixed (EASA)

Question 10

What type of acts can the agencies do?

Answer 10

1. Legally binding acts
2. Opinions (soft law)

Question 11

How is an agencies’ structure?

Answer 11

It has:
1. Management Board
2. Executive director
and
3. Scientific
committees/panels
4. Board of Appeal
(eg. EUIPO, ECHA)
5. Co-ordinating
bodies (e.g. EFSA:
advisory forum)

Question 12

How are tje Scientific panels?

Answer 12

It has an Administration and Employees with scientific expertise

Question 13

Meroni Doctrine Key Principles.

What are the main principles established in the Meroni Doctrine?

Answer 13

1. The delegating authority cannot delegate broader powers than it enjoys itself.
2. Only strictly executive powers may be delegated.
3. Discretionary powers may not be delegated.
4. Delegated powers must remain subject to the conditions and supervision of the delegating authority.
5. Obligations to state reasons for decisions and judicial control of decisions must be ensured.

Question 14

Anti-delegation Doctrine (Meroni Doctrine)

What is the anti-delegation principle under the Meroni Doctrine?

Answer 14

No delegation of discretionary powers to agencies—only strictly circumscribed powers can be delegated to respect institutional balance.

Question 15

What cases reinforce the Meroni Doctrine principles?

Answer 15

1. Case 98/80, Romano
2. Cases C-154-155/04, Alliance for Natural Health

Question 16

What was analyzed in the cases:
1. Case 98/80, Romano
2. Cases C-154-155/04, Alliance for Natural Health

Answer 16

Case 98/80, Romano
This case emphasized the prohibition of delegating legislative powers to bodies other than those explicitly provided for in the treaties.

Only strictly executive powers could be delegated, thus maintaining the institutional balance between EU institutions. This principle reinforced that agencies could not exercise discretionary powers.

Cases C-154-155/04, Alliance for Natural Health

This case explored whether the delegation of power to the European Commission under the Food Supplements Directive was valid. The Court ruled that as long as the Commission’s powers were circumscribed and procedural safeguards ensured, the delegation was acceptable under the Meroni Doctrine.

This affirmed that delegation must respect institutional balance and cannot include wide discretionary powers.

Question 17

How do the EU Treaties address the delegation of powers to agencies?

Answer 17

1. No explicit recognition of delegation of powers to agencies.
2. No separate legal basis for creating agencies.
3. No recognition for agencies to adopt binding acts within the hierarchy of norms (Articles 290-291 TFEU).

Question 18

What power was granted to ESMA in the short-selling case?

Answer 18

ESMA can intervene with legally binding acts in financial markets if a threat to the stability or integrity of financial markets arises.

Question 19

How did the Court rule on ESMA’s powers in light of the Meroni Doctrine?

Answer 19

1.ESMA is an EU body.
2. Powers are circumscribed by conditions limiting discretion.
3. No “very large measure of discretion” was granted.
4. Judicial review of ESMA decisions is guaranteed.

Question 20

How does the Court address Articles 290-291 as a closed system?

Answer 20

Article 28 does not undermine rules for delegating powers under Articles 290-291 TFEU.

The Court finds compatibility within the treaty structure.

The Court was asked whether the delegation of powers under Article 28 of Regulation 236/2012 (short selling and credit default swaps) contradicted the rules in Articles 290 and 291 TFEU, which outline procedures for delegated and implementing acts. The Court ruled that Article 28 did not undermine these articles, as the powers granted to the European Securities and Markets Authority (ESMA) were tightly circumscribed and aligned with treaty provisions. This demonstrated that the treaty structure accommodates specific delegations that respect institutional boundaries.

Question 21

How are agency acts subject to judicial review?

Answer 21

1. Direct actions under Article 263 TFEU—only if acts produce legal effects vis-à-vis third parties.
2. No preparatory acts or soft law are challengeable.
3. Omissions can be challenged under Article 265 TFEU.
4. Preliminary rulings include soft law, e.g., Case C-911/19, FBF.

Question 22

How are agency acts subject to judicial review?

Answer 22

1. Direct Actions under Article 263 TFEU: Agency acts can be challenged directly in the Court if they are intended to produce legal effects vis-à-vis third parties. Preparatory or non-binding acts (e.g., soft law) are not reviewable unless they breach procedural requirements.
2. Key Case: Case T-74/00 clarified that agency opinions, even if non-binding, could lead to annulment if procedural errors occurred.
3. Preliminary Rulings: Agencies’ acts may also be subject to judicial review indirectly under Article 267 TFEU through questions referred by national courts. For instance, in Case C-911/19 (FBF), soft-law measures were also reviewed.