Jean Monnet Center at NYU School of Law


A. Two different but convergent federal systems28

It does not require any particular intellectual effort to pinpoint the striking differences between the American and European experiences of federalism.

In the United States of America, this process, which, judging by recent decisions of the Supreme Court, is still in gestation,29 has already been under way for over two centuries. In Europe the adventure of "closer union" has been going on for barely 50 years, but has already passed through several stages: the ECSC in 1951, the EEC or "common market" in 1957, the Merger Treaty in 1966, the Single European Act in 1987 followed by the internal market, The Treaty of Maastricht /Treaty on European Union in 1992 with its three pillars, the Amsterdam Treaty in 1997 and the Nice Treaty in 2000. And the process is far from over.30

There are enormous divergences in the geographical, demographic, cultural and political factors involved: the US came into being in a vast, practically untouched and extensible territory full of unsuspected natural resources. The scant population of natives and immigrants left room for a massive influx of people from elsewhere. Despite the initial predominance of the Protestant culture, the relative vacuum in all areas of economic and social life encouraged a relatively rapid blending of differences and the extensive homogenisation of the local "humus" (the famous melting-pot). We must add to that the almost total extermination of the natives and a civil war which very quickly wiped out any notions of asserting a "deviant" identity over the model that was deemed after the event to be autochthonous and dominant.

We might say that, in Europe, things happened exactly the other way round: on one of the world's oldest territories, which is relatively limited in expanse and intensively exploited, not to mention devastated by two recent wars, a group of independent countries, boasting civilisations dating back sometimes thousands of years, possessing different languages and cultures and intent on keeping them, and having established secular legal and political systems and highly developed socio-economic relations, deliberately decided to share -and manage in common- part of their sovereign prerogatives, the better to secure their future in a world heading rapidly towards globalisation.31

Underneath these major and obvious divergences, however we can, if we look a little more closely, find common ground.

At a time when the US was discovering the federalist riches of Althusius, precisely because it was a young, heteroclitic and amorphous amalgam in need of order, Europe had just succumbed to the implacable logic of Bodin's theory of state sovereignty as a means of coping with the appetites of the old antagonistic peoples gnawing away at it. But both sides very quickly incorporated into their respective models the discipline of Grotius' public international law, the system of institutional balance inspired by Montesquieu's theory of the separation of powers and Rousseau's social contract, and the democratic/republican mechanics of de Tocqueville. Both have always shared and still share today the same fundamental values.

There has therefore been a kind of historical cleft, arising from economic and social conditions, which is now narrowing. Why and how?

The need to move towards federalism, which was felt by the US at the end of the 18th century, was understood by the Europeans only amid the ruins of World War II. That is why the former embarked immediately on a large-scale ideological project enshrined in the Constitution, while the latter merely pooled their strategic production capacities in order to avoid a new conflict or, at the very least, make such a conflict more difficult in future. So our first conclusion, which may help us in our subsequent deliberations, is that the US is an example of statutory federalism, whereas the EU may perhaps be an example of derived federalism.

Because of the statutory-foundational nature of American federalism and the rapid solution to the problem of shared sovereignty in the form of the Federation, a system of partnership was able to develop very quickly between the federated entities and the central authority, which today still allows American federalism to be highly decentralised without calling into question the status of the federal authority. By contrast, the derived nature of European federalism, which arose from functional tasks conferred on common institutions, generates constant tension between these supranational institutions and the Member States, preventing a rational distribution of powers. The tension was heightened during the period of massive extension of Community powers that was ended by the introduction of the principle of subsidiarity which, despite everything, established criteria for drawing a dividing-line between the powers assigned to the Community and those supposed to remain at national or even regional and local level. Here too the historical gap is obvious, but the first signs of it being bridged are also perceptible.

The principle of subsidiarity has redefined two parallel trends that had been shaking the constitutional foundations of the Member States: because of the increase in the Community's responsibilities as a result of the growing internationalisation of the problems to be tackled, coupled with the extension of majority voting in the Council to facilitate decision-making, national governments were placed in the awkward position of no longer being in control of a large part of their rules and regulations. Moreover, the situation was aggravated by an extensive interpretation of the subsidiary powers of the institutions under Article 308 of the Treaty.32 The technique of opt-outs was merely an imperfect, one-off remedy, as is the concept of enhanced cooperation (opt-ins) in the Amsterdam and Nice Treaties.33
By contrast, the principle of subsidiarity has turned back the tide: by keeping the lid on the Pandora's box of subsidiary (and/or implicit) powers, it has contributed to a spectacular decentralisation of Community prerogatives.34 The expansion of partnership arrangements, the timid but real introduction of agencies and Prodi's communication on European governance all bear witness to this. The initial trend towards centralisation, inevitable in a period of mutual suspicion fed by the existence of two concurrent and sometimes conflicting systems of law, is noticeably giving way to an inverse process that encourages cooperation between local, regional, national and Community bodies acting within a single legal framework in an emerging federal system.35

The same difference between statutory and derived federalism has led to very different institutional architecture on the two sides of the Atlantic. On one side we have a rather classic federal system in the US, with a central authority comprising a bicameral legislative branch (House/Senate), an executive branch with at its head a directly elected President, assisted by government departments and the Administration (agencies), and a Supreme Court which guarantees the federal pact (breakdown of responsibilities between States and the Federation) and the consistency of laws with the Constitution.36 On the opposite side we have in the EU a unique and original set-up which still reflects the initial functional approach. It comprises a legislative function, initially constituted by the Member States meeting in the Council of Ministers, but increasingly shared between the Council and the European Parliament under the codecision procedure, an executive, which is supposedly represented by the Commission, a supranational body par excellence, which, however, has two major peculiarities in that it has a monopoly over the right to initiate legislation but no monopoly over the executive, since the Council can retain some executive power for itself, and a judiciary branch (consisting, since the Treaty of Maastricht, of the Court of First Instance [CFI] and the European Court of Justice [ECJ], which has the task of interpreting and ensuring the uniform application of Community law in the Member States, in accordance with novel procedures.37

Just as in the US, where the initial, rather rigid separation of powers gradually gave way to a system of checks and balances in the face of an increasingly complex socio-economic reality requiring the interpenetration/interaction of different powers, so the EU's unique architecture is slowly but surely moving towards an institutional balance that displays significant similarities with the American system, a striking example being the system of bicameralism of sorts (Council and European Parliament) in operation since the introduction of the codecision procedure.

The most spectacular changes have been in the European Parliament, which started out as something less than a consultative assembly under the ECSC Treaty and a purely consultative body from 1957, then experienced a singular increase in the weight of its opinions,38 before becoming directly elected in 1979,39 winning points in the budgetary procedure40 and finally being elevated to the rank of a real co-legislator on a par with the Council, as a result of the successive Treaties of Maastricht, Amsterdam and Nice and the combined effects of the cooperation and codecision procedures and the extension of qualified majority voting.41

At the same time, despite its dwindling influence on the taking of final decisions, precisely because of the codecision procedure,42the Commission has seen its executive powers strengthened as a result of both Court decisions43 and the adoption of the decision on committee procedures.44 The Council is also in the throes of change and, in any event, is looking increasingly like a second legislative chamber representing the Member States alongside the Parliament, which represents the people(s) of the EU.

Recently there have been a number of calls for further moves in the same direction.45 Having a President appointed by Parliament and invested with additional powers would strengthen the Commission's executive role. If Parliament were to appoint the President of the executive and install the team just after its election, now that the two terms coincide, this could stimulate the formation within Parliament of real European parties conducting coordinated campaigns in all the Member States. As a result, the composition of the Commission would be a more accurate reflection of political differences in the EU, giving the whole integration process a real flavour of parliamentary democracy. At the same time, it might pave the way for the emergence of a European demos.46 Further light could be shed on the landscape by revising and clarifying the hierarchy of Community norms. We could have real framework laws adopted by the Council and Parliament under the codecision procedure and put into effect by implementing regulations adopted by either the Commission or the Member States, in accordance with the principle of subsidiarity, allowing that hybrid instrument, the directive, to be abolished. This could put the whole Community system on a fast track to federalisation.47 However, we have yet to reach that stage.

In fact, EU institutions are definitely not designed upon the principle of parliamentary/federalist democracy. The Parliament is asked to confirm a new Commission appointed by the Member States. It may also remove this Commission from power. But the Commission is not a Cabinet; is more like an executive committee of high civil servants. In the present situation, only if the Parliament had the power to remove Council members could we reasonably talk about the EU as having more than a vague resemblance to the parliamentary democracies of its Member States. And in the future, only if the President of the Commission is elected directly in all the Member States and independently form his cabinet, could we speak about the emergence of an executive federal authority.48

The European Court of Justice deserves a special mention, for it has perhaps been the main vehicle of the silent revolution. It began as a simple international court, but, by making extensive but very judicious use of its prerogatives under the Treaty, it has gradually established itself as a real supreme court of the EU -a genuine constitutional court for all Member States, scrutinising their loyalty to the Community. It has achieved this through its rich and innovative case-law, which is still capable of sudden and spectacular developments.49
Its most important milestones can be summarised as follows: a) establishment of the principle of the primacy of Community law over national law,50 even with regard to subsequent legislative provisions or constitutional provisions,51 b) establishment of the principle of the direct effect of Community law in the Member States' legal systems,52 and c) sole power to decide on the invalidity of a rule of Community law,53 to cite only the most important developments. Also worthy of mention is the extraordinary and unique procedure laid down in Article 226, which imposes a responsibility on States that is unprecedented in international law and highlights the supranational virtue of the Treaties.

Looked at individually, these principles already take us a long way down the road to integration (by way of comparison, the US Supreme Court accepts the principle of direct effect but not absolute primacy); considered as a package, however, they constitute a truly explosive mixture. Together they encroach on all the Member States' powers and even challenge national constitutional law itself: the legislative branch is no longer in absolute control of its own agenda, the executive loses a large part of its discretionary power and the highest level of the judiciary (courts of appeal, constitutional courts) sees an erosion of its prerogative to consider the constitutionality of laws whenever -and this is increasingly the case- such laws are in or touch on the Community domain. Moreover, in cases where these high courts do enjoy a monopoly of the right to examine constitutionality and sole power to declare a law void, they are astonished to find themselves assisted in their task by minor judges who, by referring cases for a preliminary ruling, set themselves up as quasi-constitutional courts, thus forming part of a complete, unified system of legal protection within a single, reconciled EU legal framework.54

No doubt this is what Pierre Pescatore, a judge of the European Court of Justice, had in mind when he wrote in 1982 that we must encourage Europeans "to recognise that on many issues arising in a federal context, the US have the advantage of some 150 years of a highly diversified judicial development from which many useful lessons may be learned".55

There is no doubt that the US and the EU are two distinct and largely different polities. It is also certain that they are in a different stage of their development: the US has a certain advantage over the EU both chronologically and materially. But both have been -and are still being- transformed by similar forces. At this stage of their respective development, the fundamental question remains which is the optimum way to promote national (or Community) interests in a manner that is sensitive to state sovereignty.

The US deals with this problem in a very pragmatic fashion, whereas in the EU there is a tendency to theorise too much before taking action. In other words, in the US people are more interested in the particular balance of powers and decision-making mechanisms that have to be established in order to resolve a specific problem, whereas in the EU we are infinitely more concerned with examining whether the procedures that have to be introduced are compatible with existing rules, even where these rules are evolving rapidly and not very clear in themselves.

I believe that this difference in approach is also due to the very distinct nature of the two federal experiences: the foundational nature of American federalism imbues it with a certain confidence which gives it the institutional scope and public acceptance to experiment with new regulatory solutions, even if they have to be retargeted and their effects corrected after the event. The derivative nature of European federalism, on the other hand, makes it doubt its own initiatives, which must from the outset fit in with a laboriously pre-defined framework in order to win acceptance from the institutions and the public. And this difference in approach is heightened by the contrast between the pragmatic Anglo-Saxon mentality and the Cartesian mindset predominant in Europe, which lays the emphasis on conceptualising and theorising before rational comprehension, and above all before any action is taken.

And yet it is most interesting to note that, despite these differences in approach, the terms of the debate are very similar on both sides of the Atlantic. It is significant here that the devolution debate in the US -and in particular the institutional reforms arising from it- overlap or even coincide with equivalent discussions in the EU on subsidiarity, the sharing-out of Community powers, institutional reform and the democratic deficit. At the core of the two parallel debates we can identify the same concern to ensure the adequate and sound legitimacy of changes that are announced, planned or proposed. In this context the concept of legitimacy includes effectiveness and accountability, two factors which are closely bound with the debate on the new instruments and new procedures that are needed to cope with the shifting realities in a world undergoing rapid and profound change.

Regarding the question that is of most interest to us, it is noticeable that in parliamentary/majority systems, one party or coalition of parties controls both parliament and the government, resulting in direct, hierarchical control over the administration, whereas in a system of checks and balances/institutional balance, administrative rule-making is rendered accountable by means of different practices and institutional arrangements.56

Similarly, in parliamentary systems, the courts tend to protect parliament's legislative prerogative by ensuring that civil servants do not overstep the limits of their powers, whereas federal systems offer more fertile ground for pro-active measures by courts which may be more or less extensive, depending on relations between the different powers. It is obvious that the EU, at least in its manner of functioning, is closer to the federal than the parliamentarian model of organisation of powers.

These are some of the reasons for adopting a comparative approach between the US and the EU, particularly in the crucial area of the delegation of regulatory authority, a special feature of post-industrial societies such as ours.

In everyday life, delegation is a primordial function (we have long delegated to our grocer the task of procuring our food, or delegated to our garage the task of repairing our car, and recently we have even been delegating the management of our assets to specialised companies -who knows what else we will be delegating tomorrow), so we can easily gauge the importance of delegating regulatory authority in current systems of governance.
In any case, all political systems can be understood in a theoretical way as a chain of delegation from voters to the ultimate policymakers. And this chain of delegation is paralleled by a set of accountabilities running in the reverse direction.

We shall now look further at this question and the solutions that have been found on the two sides of the Atlantic.

1. Delegation in the US

The US Constitution does not allow for the delegation of part of the legislative function; on the contrary, a reading of the text would suggest that it prohibits it. The relevant provisions leave no margin for interpretation: the wording of the first three articles is extremely clear:

"Article 1, Section 1: All legislative Powers herein granted shall be vested in a Congress of the US, which shall consist of a Senate and a House of Representatives...
Article 1, Section 8: The Congress shall have Power... to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the US, or in any Department or Officer thereof.
Article 2, Section 1: The executive Power shall be vested in a President of the USA...
Article 3, Section 1: The judicial Power of the US, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish..."57

These provisions succinctly establish a very clear separation of the three powers, leaving legislative power entirely in the hands of Congress, including decisions about the structure of government and the courts. The President is designated as the sole repository of executive power, while Congress decides on the number and powers of the services necessary and appropriate to carrying out the work of government. The system is not entirely watertight: the interference of the President in the legislative process via the power of veto, which can be overriden by a two-thirds congressional vote, and Congress's powers over the executive and judiciary via the impeachment procedure, are only the most prominent examples of the inevitable interaction between the three branches of government, reflecting above all the system of checks and balances between them.58 The practical application of the provisions of the Constitution has led to an extraordinary number of disputes about the encroachment of one branch on the others, reflected in the long and rich history of Supreme Court judgments. This is a field that still exercises the Supreme Court and will perhaps always continue to do so.59

However, the logic of the separation of powers and its formulation in the Constitution, despite its more limited application in practice, initially gave rise to the "non-delegation doctrine", according to which Congress may under no circumstances delegate its legislative prerogatives to another branch of the constituted powers. As has been rightly pointed out, this doctrine has its origins in the conviction that this would actually be a form of sub-delegation.60 This was also partly due to the fact that the US constitutional system, especially in the beginning, was founded in a relatively weak executive, so that the first hundred and fifty years (until the New Deal period) of the American republic saw policymaking dominated by the legislature.61 All power is vested in the People, and the three powers instituted by and for the People are already its representatives. This reasoning, essentially inspired by private law, where delegation of the mandate is strictly prohibited, was brilliantly transposed to the public law sphere by John Locke in his Second Treatise of Government. Together with the writings of Montesquieu on the separation of powers to protect the people from tyranny, this formed the main intellectual basis of the American Constitution.

The non-delegation doctrine, however, has had little practical effect. In two centuries the Supreme Court has only twice cited it when setting aside regulations.62 Conversely, it has several times allowed the possibility of delegating legislative power under certain conditions. In a comparatively recent case the Supreme Court ruled that the non-delegation doctrine "does not prevent Congress from seeking assistance, within proper limits, from the coordinate Branches. [Thus,] Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors. So long as Congress lays down by legislative act an intelligible principle to which the person or the body authorized to act is directed to conform, such legislative action is not a forbidden delegation of legislative power."63 This could hardly be clearer. Despite a few isolated and cyclical reversals, this remains a valid precedent.64

In the above judgment the Supreme Court restates its earlier ruling: the words "seeking assistance" refer to the reality of a modern state, the complexity of which requires the delegation of regulatory functions.65 There must, of course, be another legislative act defining the powers delegated; delegation necessarily entails the exercise of a degree of discretionary power, and the delegation may apply to different administrative or judicial bodies. The legislature must lay down intelligible principles with which the delegated body must comply when exercising the discretion it has been granted. Congress should provide agencies with a road map or algorithm for translating technical findings into policy, rather than relying more substantially on agencies' policy judgment.66

It is this latter condition that raises the most sensitive issues. How are the limits to regulatory discretion to be determined? What is the thrust of the intelligible principle? Which is the degree of details indicated on the roadmap? Is the aim of "ensuring a high level of public health protection", for example, sufficient to justify delegating regulatory powers in matters of food safety to an independent agency? Is it an intelligible principle?67 When it comes to determining the limits, how much is too much?68 And if the measure is in itself reasonable and consistent with the mandate, but produces effects that cause irreparable harm to other sectors of State activity, who is to adjudicate the conflicting claims?69

These and other problems have arisen and in part been resolved in the American context. Instead of reacting defensively or fearfully, the United States, backed by imaginative regulations and a pragmatic Supreme Court,70 has been able to develop a commonsense approach dictated by the objective needs of coordination between the departments of government.71

This evolution is not surprising: the US Constitution does not offer indications about the delegation problem, because the founders assumed that the legislature would jealously guard its policymaking powers. They were therefore much more concerned about the possibility of congressional aggrandizement. This original framework functioned normally until the 20th century, when social and political changes led the federal executive to play a more active role in the regulation process.
Furthermore, during the New Deal period, the Congress itself assimilated the advantages of delegating broad economic and social policy to the executive and, consequently, to the independent regulatory agencies.
Immediately, three kind of criticism appeared: the size of the delegation, its control and the quality of the delegated public policy. Three responses have been provided: the Congress specify carefully the limits of the delegated executive powers, it also constrains executive discretion with restrictive administrative procedures under judicial review and allocates work across the branches, avoiding the concentration of power in the hands of committees.72

The non-delegation doctrine is more of a theory of the necessary and sufficient conditions for delegating regulatory powers entailing a degree of discretion, where this seems to be essential for the sound and efficient management of the complex situations created by contemporary society.73

2. Delegation in the EU

In a system where powers are conferred on the EU by the Member States, all Community action rests on a legal basis provided for in the Treaty. Given the fundamental importance of this almost constitutional principle for all Community action, it follows that the executive powers of the Commission must also be exercised according to a legal basis, in accordance with the rule of law.74

The fundamental point about the attribution of powers in European law is that, unlike other federal systems, this is not done by area of action (competition, environment, etc.), or by decision-making body (legislative, executive), but cumulatively, in the sense that the Treaty determines simultaneously the field of activity, the competent institution and the form of and procedure for decision-making.75 It is thus a system of specific and limited empowerment, which significantly reduces the scope for rulemaking by the Community and blocks the road to a transition to a federal system, which could have been achieved by general empowerment.76 Furthermore, as we have already pointed out, neither an all-embracing interpretation of subsidiary powers (Article 308), nor a liberal definition of implicit powers can compensate for these restrictions arising from the determination of the Member States to retain absolute control over the process of integration.77

This principle of powers conferred by means of limited empowerments leads to a system of overall distribution of Community power characterised by an interdependence of institutions invested with distinct and carefully defined functions. It is more of a blueprint for institutional balance, than a system of separation of powers.78

This is particularly apparent from the unique way in which a blend of legislative and executive power is shared between the three institutions. The principle of conferred powers makes this balance immutable: no changes are allowed and no powers may be transferred within the system, other than those provided for by the Treaty. By refusing to allow Community institutions to delegate tasks to organisations not mentioned in the Treaty, the principle of conferred powers has the effect of preserving and protecting the constitutions of the Member States and their sovereign powers.79

Several observers have also argued that functional attribution of powers by limited empowerment reflects respect for the democratic basis of the Communities, in the sense that their action is prescribed and approved by elected Parliaments and the governments that command their confidence.80

Can we go further and claim, by analogy, that as well as this reticence in the Treaty about the attribution and exercise of Community powers, there is also a more general reservation in the law as regards the performance of the institutions' administrative tasks? The answer here is "no". Without going into the details of the exact extent of an exclusive preserve of Community administration, it is uncontested that a legal basis must at least cover the creation of legal entities under public law, the delegation of powers to private bodies and the establishment of autonomous central authorities.81

In the area under consideration here it is immediately clear that, even in this restrictive context of delegation of powers, the Treaties explicitly allow the legislature (Council and Parliament) to transfer the powers devolved to it to the executive (Commission) (Articles 202 and 211). This is the problem of the executive's regulatory/rule-making powers, whose existence has never been contested, despite the fact that they cannot be reconciled with a strict interpretation of the separation of powers, which has long been abandoned.

A literal reading of the articles referred to above might, of course, suggest that the powers transferred to the Commission were implementing powers only, entailing no rule-making capability. But no one today accepts such a reading, given the very broad interpretation of executive powers by the Court of Justice,82 and the extensive debate on comitology.83 It is also difficult to determine exactly where rule-making begins and simple implementation of the law ends, particularly in the Community context, where the hierarchy of norms is unclear, not least because of the duplication of legislative instruments (Council and Commission regulations). It has rightly been observed that "the distinction between conferring executive powers and delegating legislative powers corresponds to the difference between the principle of conferred powers and the insistence on a legal basis".84 In this context the provisions of the Treaty would be sufficient if it were a simple matter of implementation, but further delegation would require ad hoc legislative provisions. In practice the basic Council regulations contain this formal empowerment.

A more significant point for our purposes is that the delegation of powers under Community law, like many other things, is more of a political problem than a point of law. The greater the delegation, the less the decision-making process is controlled by the representatives of the Member States. This is why the delegation has always been seen as an important factor in tilting European integration towards the federal model.

Even more relevant is the fact that this might suggest that Community law prohibits sub-delegation, because the only body to which power may be delegated under the terms of the Treaty is the Commission. The Commission alone may not make arrangements for sub-delegation, nor does the Treaty provide for the possibility of the Council investing the Commission with such power. However, the intervention of the Member States is often necessary and desirable to implement the Commission's regulatory instruments, and indeed very often expressly provided for in the basic Council regulation. However, the great variety of tasks entrusted to the Commission has led it and the other institutions to introduce other forms of externalisation (agencies, technical assistance offices, known as TAOs). Political scientists have coined the phrase external and internal delegation to describe this phenomenon.85 External delegation denotes the transfer of rule-making powers from the Member States to the European institutions or from them to outside bodies including Member States. Internal delegation thus refers to the transfer of executive powers from the Council to the Commission.

I do not fully agree with this typology. Such a distinction implies a purely intergovernmental model of the Community structure, with a strict separation of the two legal orders, which are presented as competing rather than cooperating with one another. It also restricts the Commission's delegated powers to implementation only, which is not always the case, as we have just seen. I would argue for the same distinction but including under internal delegation everything that involves the transfer of powers between the Member States and the institutions; that is, considering the Member States on the one hand as the delegating authorities under the Treaty, in their capacity as constitutional power of the Union, and on the other as the recipients of delegated powers in their role of decentralised administrations of the Union, within the context of a single, constantly evolving, federalising entity. This also has the advantage of limiting external delegation to the delegation of powers of any kind to independent outside bodies, which is the most controversial aspect of the subject and the main focus of this study.86

In order to narrow the focus even more, we should also exclude from external delegation those administrative entities other than Commission departments which enjoy a certain amount of administrative autonomy (e.g., Publications Office, Humanitarian Aid Office, Statistical Office, European Anti-Fraud Office) and any other body provided for in the Treaty but not forming part of the Commission administrative structure (European Central Bank, Euratom Supply Agency, Joint Research Centre). This study also discounts the rarer cases of delegation of Community powers to international bodies.87 The Agencies created under Article 308 (formerly 235), however, are of particular interest as an early manifestation or precursor of the desire to break out of the very restrictive framework and respond to the clear need for more rational delegation of the Community's regulatory powers.

The Commission's attitude at the moment is extremely hostile to any moves toward external delegation of any of its powers. Despite several traumatic experiences and the obvious inadequacy of its own staff, in terms of both numbers and skill profiles, to carry out all the tasks required, and contrary to its own declared intention of "doing less but doing it better", the Commission, advised by its Legal Service, believes that only an amendment to the Treaty (which could be equally problematic)88 can clear the way to the delegation of its powers to independent European administrative authorities.

This doctrine, which we shall examine in detail later,89 rests on two main arguments. The first, which is openly expressed, concerns the inviolability of the institutional balance, which prohibits any delegation of regulatory powers entailing a margin of discretion to external bodies that have no basis in the Treaty. The second argument, which is generally unspoken, concerns the loss of Commission powers, which is presented as undermining the process of integration as a whole.

In any event, the creation of independent administrative authorities of this type is much less problematic in the US and in Anglo-Saxon countries in general, concerned less about legalistic theory and more about due process than continental Europe, where the search for doctrinal truth often takes precedence over more pragmatic concerns, as we shall see.

3. The origins and growth of regulatory agencies in the US

The term "agency" can cover a variety of types of organisation going by different names (e.g. Administrations, Boards, Commissions), but all sharing the following characteristics: they are independent administrative entities, incorporated by law, with a separate legal personality and endowed with decision-making power of a regulatory (rule-making) or individual (adjudication) nature in a specific area of activity.90

Agencies are an Anglo-Saxon, or more particularly American invention,91 because the sine qua non of their existence is an open administrative arena characterised by a pragmatic, empirical approach. Such entities would be simply inconceivable in an ex-Communist state and have difficulty surviving in a dirigiste system.

The first agency, the Interstate Commerce Commission (ICC), set up in 1889, was the fruit of Congress's distrust of President Harrison, manifested in the removal of the organisation from the Department of the Interior, to which it had previously been attached. Another first-generation agency, the Federal Trade Commission (FTC), which investigates economic cartels and unfair competition, also owes its existence to congressional wariness of the administration, coupled with doubts about the effectiveness of judicial review in tackling such practices.

Since then, independent agencies have proliferated in a wide variety of areas and have acquired an important place in the workings of the American system of administration.92 Their number (which is itself a matter of some uncertainty), the extraordinary diversity of their fields of action,93 their constantly evolving status and the rich case law referring to them, all testify to the fact that their main raison d'être is their practical usefulness and effectiveness.94

However, these independent entities remain the creation of Congress, which also controls their budget and can, at any time, alter their mandate or impose its legislative veto on their decisions. Their directors are appointed jointly by the President and Congress along bipartisan lines, and their decisions are subject to judicial review. So where exactly does their independence lie? Apart from the formal criterion of not being part of the executive (they are located outside the hierarchy of the 13 federal government departments) and ignoring for a moment those commentators who claim that their independence is a myth,95 the basis of their independence must be sought in the fact that their directors cannot be dismissed by the executive without good reason. There must be due cause, such as ineffectiveness, dereliction of duty or abuse of power.

Given that these agencies have no basis in the Constitution, it is difficult to see where they belong in the separation of powers.96 The result has been a very hesitant approach by the Supreme Court in its rulings on their relations with the executive and the legislature and on the extent of judicial review.97 Finally, the American agencies seem to be the product of different cyclical trends (for example, periods of intense regulation like the New Deal or rapid deregulation under the Reagan administration), which is accepted de facto in the institutional system and which evolves according to pragmatic needs and the requirements of due process.

Indeed, the legitimacy of the American agencies is closely linked to the fact that they offer guarantees of transparency and cooperation with civil society. Existing practice was codified, extended and improved by the Administrative Procedure Act (APA), adopted in 1946.98 The essence of this basic law on the workings of the agencies is the division of their activity into two categories: enacting rules for general application (rule-making) and, in some cases, issuing individual decisions of a quasi-judicial nature (adjudication).99 The rule-making consists of adopting formal and informal regulations (hard law and soft law). Both are subject to procedures associating all the interested parties. The requirements for the first category are very stringent and include an adversarial hearing and prior communication of a written statement of the objectives of the proposed measures.

Adjudication can also be formal or informal. Both require quasi-judicial procedures which, in the case of formal adjudication, are very stringent and equivalent to a real hearing before a regular tribunal. Finally, all agency decisions are subject to judicial appeal for abuse of discretion. Despite the fact that the latter concept is hard to define,100 and the courts' rulings have been criticised on this point,101 the procedural framework provided by the APA as a whole has undeniably helped to consolidate the existence and work of an administrative instrument dedicated to quick and efficient decision-making in difficult and controversial areas, often with tight budgetary constraints.102

This has led some to argue that the emergence of agencies reflects the determination of the politicians to shift potentially difficult decisions, which may have high political or social costS to experts in a bureaucracy. While there is some truth in this, it is not the whole story: the agencies remain answerable to the three branches of government to differing degrees and are subject to continuous monitoring, which leads to periodic improvements in the way they operate.103

American agencies reflect the political reality of the country: they embody a system of checks and balances that leads to genuine cooperation which, even when it takes place in adversarial terms, contributes -by excluding the extremes- to moderation in the exercise of power. The agencies, as it were, combine elements of all three branches of government. They are a condensed form of governance, or "the headless fourth branch of government".104

And what about Europe?

4. The origins and growth of executive agencies in the EU

Following their success in the Anglo-Saxon world, and in response to economic and social changes, the regulatory agencies have begun to take root in the stony ground of continental administrations and now enjoy a certain degree of public and legal recognition.105 We shall confine ourselves here to the phenomenon of specifically European agencies which have, apparently for the same reasons, undergone a spectacular expansion over the past decade and are provoking a debate that touches the constitutional foundations of the Union.

The European agencies are autonomous Community bodies of a public nature, not established by the Treaties, but created as a result of acts of secondary legislation adopted by the Council. They have their own legal personality and have been established with a view to fulfilling tasks of a technical or scientific nature, or a specific management task provided for in their terms of reference.

The emergence of European agencies is a recent phenomenon.106 The 12 agencies currently in existence were set up in two waves. The two first-generation agencies were established in 1975 (in the field of social affairs), followed by the second generation at the beginning of the 1990s, in connection with the completion of the internal market.107

The European agencies are small Community coordinating structures, located in ten different Member States. They have a total staff of just over 1,000 and receive approximately ¬100 million in subsidies from the general budget of the EU.

They were created with the following objectives: management autonomy, flexibility, involvement of the Member States, and closer attention to citizens' concerns. It is hardly surprising that these concerns are the same as those that gave rise to the emergence of agencies in America.

Although the European agencies are very different in terms of both size and purpose, as a general rule they present a common basic structure and similar operational instruments.

All European agencies function on the basis of the following framework:

The Commission thus has no formal relations or procedures with the agencies, but exercises its powers primarily through its representatives in the boards, who are usually senior officials from the relevant Commission departments.

Despite their organisational similarities, the European agencies are -given the diversity of their mandates, their partners and their clients- a rather heterogeneous collection. Four types of European agency can be distinguished, according to their objectives:

In the short time since the European agencies were set up, their output has been broadly satisfactory. They have provided effective assistance to the Commission in ensuring the smooth operation of the Single Market, and they have successfully operated their networks and achieved recognition by their partners. They have also highlighted European interest in certain sensitive and high profile areas, contributed to greater clarity in budget management (activity-based budgeting) and brought a greater degree of transparency to Community affairs, if only because they are geographically dispersed among various EU countries.

However, their autonomy and responsibility and the monitoring to which they are subject remain poorly defined, not to say thoroughly vague.108 The boards of administration are too big and cumbersome -even the smallest have three times as many members as the Executive Board of the ECB- and enlargement might make them completely unmanageable unless steps are taken in time. There is still a power struggle going on, and it is hard to reach agreement on a reasonable way of organising political control. The European agencies remain dependent on several partners: the Commission and Court of Auditors for financial management aspects, the European Parliament and Council for their budgets,109 their own networks in the Member States, all of which means that their executive directors have to play a highly political role, which was not envisaged at the outset and which jeopardises their independence. At the same time, the agencies find themselves forced to adapt their working methods to those of the Commission, but without the same institutional weight or resources, which also leads to some duplication of the work of the responsible department of the Commission. The net result of all of this is that the European agencies have not yet been able to demonstrate that they can bridge the gap between Community affairs and the concerns of Europe's citizens.

However, there is now a debate about the extension of agencies to new areas of activity. Several new bodies have been proposed: a European agency for cooperation in connection with the externalisation of a large part of the Community's overseas aid policy;110 a European Agency for Veterinary and Plant Health Inspection;111 a European land-use planning agency, another for biodiversity, and a monitoring centre for bio-technologies -not to mention the growing demand for European regulatory bodies in the fields of telecommunications, energy and all public utilities operating in transnational networks (TENs).112

The Commission's recent proposals for a Food Safety Agency113, a European Aviation Safety Authority (EASA)114 and a European Maritime Safety Agency115 are even more important, in terms of both their remit and the scope of the debate they have unleashed within the Commission on their feasibility. The Commission departments responsible for these sectors had explicitly proposed regulatory agencies with clear discretionary powers, but the Legal Service stood by the Meroni doctrine, which prohibits any step in that direction.116

The list of proposals pending is not exhaustive. Even areas traditionally and efficiently administered centrally by the Commission have not escaped the problem of agencies. A prime example is competition, where the Community executive wields powers derived directly from the Treaty and has progressively established a genuine European policy. Although a European cartel office is not on the cards,117 the Commission did recently propose close cooperation with national authorities in this field to ensure more effective implementation of Articles 81 and 82 of the Treaty.118

Clearly, the trend over the past decade has been consistently in one direction: it is worth recalling that in 1990 a food safety agency was deemed politically inappropriate, whereas today it is France that is insisting on its creation. Or again, in 1990 mutual recognition of national authorisations was considered sufficient for European labelling of medicinal products, whereas four years later the EMEA had to be set up precisely because the mutual distrust of the national authorities created serious problems for the implementation of the multi-state procedures. Despite the recent and almost total liberalisation of the telecommunications sector, a European authority would surely have been able to reduce the disparities between national regimes and improve coordination.119 In the field of public utilities (water, gas, electricity), a European agency would undoubtedly have been able to eliminate some of the rigidities that have survived from the old or recently abolished state monopolies.120

For all this, the European agencies still remain purely executive bodies. Can we now take the plunge and move towards a more open, operational model, which would still respect the institutional balance prescribed by the Treaty? We shall examine this question below.

28 A selection of articles on different aspects of this question can be found in N.J. Ornstein and M. Perlman: The United States faces the United Europe, AEI Press, Washington DC 1991.

29 G. Gunther, K. M. Sullivan: Constitutional Law, 13th ed., 2000 Supplement, Foundation Press, New York 2000.

30 Like the Amsterdam Treaty, the Treaty of Nice specifically calls for a further Intergovernmental Conference (IGC) to settle questions left outstanding.

31 See D.J. Elazar: The US and the EU: models for their epochs, paper for the symposium on rethinking federalism in the EU and US, Kennedy School of Government, Harvard University, 19-21 April 1999. (forthcoming) and the bibliography cited therein. See also, J.H.H.Weiler: Federalism and Constitutionalism: Europe's Sonderweg. Harvard Law School, Jean Monnet Chair papers, 2000.

32 In this context, some authors have asserted that the Community's sphere of responsibility is potentially unlimited. See Koen Lenaerts: Constitutionalism and the many faces of federalism, AJCL, vol. 38, 1990, p.205-263. Even more explicit are J.H.H. Weiler and N.J.S.Lockhart in "Taking rights seriously" seriously: the European Court and its fundamental rights jurisprudence, CMLR, vol. 32, 1995, p. 51-94 and 579-627: "...the potential for Community legislative reach into Member States' domains is not only dynamic but may, perhaps, be limitless." However, seen in the context of the article's subject matter, I believe this is more of an obiter dictum than a normative statement.

33 This is a facility allowing Member States to remain outside of, go beyond or fall short of common rules in specific cases expressly provided for by general legislation and duly supervised. Despite initial fears that it would disrupt the uniform application of Community law, this tactic has actually proved to be a boon to federalism by defusing tensions and, in time, pulling the whole train in the right direction, while upholding the rule of law. C.D.Ehlermann: Differentiation, flexibility, closer cooperation: the new provisions of the Amsterdam Treaty, ELJ, vol.4, 1998, p. 246-270. N. Walker: Sovereignty and differentiated integration in the EU, ibid., p. 355-388.

34 Alan Dashwood: The limits of European Community powers, ELR, vol. 21, 1996, p. 113-128.

35 Paul Magnette and Eric Remacle ed.: Le Nouveau Modèle Européen: Institutions et Gouvernance. Institut d'Etudes Européennes, Brussels, 2001. Martine Meheut ed.: Le fédéralisme est-il pensable pour une Europe prochaine?, ed. Kime, Paris 1994.

36 It is not our intention to describe in detail the workings of the American institutions. We shall go into some detail later on, albeit selectively, when we come to discuss the delegation of legislative powers, the separation of powers and agencies, themes which have a direct bearing on our study.

37 The same applies to the detailed workings of the European institutions. For a general overview, see Stephen Weatherhill & Paul Beaumont: EU Law, 3rd ed., Penguin Books, London 1999, pp. 45-356.

38 The constant and gradual upgrading of Parliament's opinions culminated in a European Court of Justice ruling in 1980 that, in the absence of such an opinion, a Council decision might contain a formal error so serious as to warrant annulment of the instrument in question. Case 138/79, Roquette Frères v. Council (isoglucose) [1980] ECR 3333.

39 S. Weatherhill & P. Beaumont: EU Law; op. cit., p. 100.

40 P. Dankert: The joint declaration by the Community Institutions of 30 June 1982 on the Community budgetary procedure, CMLR, vol. 20, 1983, p. 707-712.

41 M. Westlake: The Commission and the Parliament, ed. Butterworths, London 1994. George Tsebelis: Institutional analyses of EU, European Community Studies Association, Spring 1999 (unpublished)

42 If the Council is in agreement with Parliament, it no longer requires unanimity to reject a Commission proposal. See, G. Garrett and G. Tsebelis argue that the role of the Commission (and the Court) could become important again after Amsterdam and Nice, because of the extension of qualified majority voting and the difficulties in forming majorities in the Council and Parliament to pass new legislation. In Legislative politics in the EU (forthcoming).

43 See Case C- 240/90 (Germany v Commission), [1992] ECR 5383.

44 See also below, p.42, note 151.

45 See the debate taking place after the treaty of Nice on the reshape of the EU.

46 See J.H.H. Weiler: The Constitution of Europe (essays), Cambridge University Press, 1999. His proposal for European ballots (p. 350) could speed up this trend.

47 Claude Blumann: La fonction législative communautaire, LGDJ, Paris 1995, pp. 143-144.

48 T. Bergman: The EU as the next step of delegation and accountability. E JPR, vol. 37, no. 3, May 2000, p. 415-429.

49 Especially if the Court were to begin to exercise judicial review of the subsidiarity principle, drawing a demarcation line between Community and national spheres of responsibility. See XVI FIDE Congress: The subsidiarity principle, vol. I, 1994, and X.Yataganas: The subsidiarity principle: a manual for the Commission, ERPL, vol.8, No 4, Winter 1996, p. 1103-1115.

50 Costa v ENEL, Case 6/64, [1964] ECR 585 et seq., where the Court gave priority to Community law over provisions of Italian law.

51 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratstelle für Getreide und Futtermittel, Case 11/70, [1970] ECR 1125 et seq.

52 Van Gend en Loos v Nederlandse Administratie der Belastingen, Case 26/62, [1963] ECR 1 et seq.

53 Firma Foto-Frost v Hauptzollamt Lübeck Ost, Case C-314/85, [1987] ECR 4199.

54 J. Coppel and A. O'Neill: The European Court of Justice: taking rights seriously? CMLR, vol. 29, 1992, p. 669-692. S. Boyron: General principles of law and national courts: Applying a "jus commune"? ELR, vol. 23, 1998, p. 171-178.

55 See Pierre Pescatore's foreword to T.Sanadalow /E.Stein (eds), Courts and Free Markets, Oxford, Clarendon Press, 1982.

56 It is well-known that the procedural conditions laid down by the APA in 1946 for rule-making by agencies was inspired by the Democrats' fears that a Republican President might not manage the New Deal policy satisfactorily. See also below, p.25.

57 Cited in Gellhorn and Byse's Administrative Law. 9th ed., New York 1995, p. 51.

58 Gerald Gunther, Kathleen M. Sullivan: Constitutional Law, 13th ed., op. cit., p. 354. The overlap between certain activities of the President and Congress has led some observers to talk of a bipolar executive branch, which closely resembles the situation in the Community, where executive power is shared between the Commission and the Council.

59 Ibid. p. lix-lxxi.

60 Gellhorn and Byse's Administrative Law, 9th ed., NY 1995, p. 67.

61 D. Epstein and Sh. O'Halloran: Delegating powers: a transaction cost politics approach to policy making under separate powers. Cambridge University Press, 1999.

62 Both of them in the early 1930s: A.L.A. Schechter Poultry Corp. v US. 295 U.S. 495 (1935) and Panama Refining Co. v Ryan, 293 U.S. 388 (1935).

63 Touby v US., 500 U.S. 160 (1991).

64 J.L. Mashaum and D.L. Harfst: The struggle for auto safety. Cambridge, Harvard University Press (1990), which describes the more activist "hard look" approach of the Courts in reviewing agencies' rules and the relative case law.

65 " (A) hermetic sealing-off of the three branches of government from one another could easily frustrate the establishment of a National Government capable of effectively exercising the substantive powers granted to the various branches by the Constitution..." Chief Justice Taft's opinion in J.W. Hampton & Co. v US, 276 U.S. 394 (1928).

66 Case Field v. Clark, 143 US 649 (1982).

67 Panama Refining Co. v Ryan, see supra note 58 .

68 Arizona v California, 373 U.S. (1963) and US v Robel, 389 U.S. (1967).

69 American Power & Light Co. v Security and Exchange Commission, 329 U.S. 90, (1946).

70 " my mind, simply illustrade the principle stated more than 50 years ago by Mr Chief Justice Taft that delegations of legislative authority must be judged according to common sense and the inherent necessities of the government coordination" Justice Rehnquist concurring opinion in Industrial Union Department AFL-CIO v. American Petrolium Unstitute, 487 US 607 (1980).

71 Chevron USA Inc. v Natural Resources Defense Council, 467 U.S. 837 (1984).

72 See the parallelism with the comitology procedure in the EU, that result to an effective aggrandizement of the legislative brunch. Below, p.41-45.

73 Arthur Lupia: Delegation of power (agency theory). Unpublished paper.

74 Dimitris Triantafyllou: Des compétences d'attribution au domaine de la loi. Etude sur les fondements juridiques de l'activité administrative communautaire. Ed. Bruylant, Bruxelles 1997.

75 See Article 7 TEC, in relation to the specific provisions in each area of Community activity. See H.P. Krausser: Das Prinzip begrenzter Ermächtigung in Gemeinschaftsrecht als Strukturprinzip des EWGV, ed. Duncker & Humbolt, Berlin 1991.

76 A. Bleckmann: Die Beihilfenkompetenz der EG. Ein Beitrag zum Prinzip der begrenzten Ermächtigung. D¯V, Heft 17, 1977, p. 615-619.

77 G.Nicolaysen: Zur Theorie von den Implied Powers in den EG. EuR 1966, p. 129-142.

78 ECJ, Case 139/79 Maizena [1980] ECR 3393 and Case 25/70 Koster [1970] ECR 1161.

79 M. Hilf: Die Organisationsstruktur der EG. Ed. Springer, Berlin-Heidelberg 1982.

80 M. Zuleeg: Der Verfassungsgrundsatz der Demokratie und die EG. Der Staat, vol.17, 1978, p. 27.

81 On the administration's exclusive domain and the limits thereof see A. Laubadère/J-C. Venezia/Y. Gaudemet: Traité de droit administratif, LGDJ, Paris 1990, p. 516.

82 See, for example, Case 23/75 Rey-Soda v Cassa Conguaglio Zucchero [1975] ECR 1301. Case 133-136/85 Walter Rau Lebensmittelwerke v BALM [1987] ECR 2334 and Case C-27/89 Scarpe v Onic [1990] ECR I-1701. The Court considers in general that the Commission's executive competence can be extended provided this does not violate the basic provisions of the Treaties.

83 Case 30/70 Scheer v Einfuhr und Vorratsstelle Getreide [1970] ECR 1197. See also K. St C.Bradley: Comitology and the law: through a glass, darkly. CMLR, vol.29, 1992, p. 693-721. G.J.Buitendijk and P.C.M.Van Schendelen: Brussels advisory committees: a channel of influence? ELR, vol.20, 1995, p. 37-56. Bernard Steunenberg, Christian Koboldt and Dieter Schmidtchen: Policymaking, comitology and the balance of power in the EU. IRLE, vol.16, 1996, p. 329-344. Christian Joerges and Jurgen Neyer: From intergovernmental bargaining to deliberative political processes: the constitutionalisation of comitology. ELJ, vol.3, no3, 1997, p. 273-299. Ellen Vos: The rise of committees. Ibid, p. 210-229.

84 D.Triantafyllou, op. cit., p. 282.

85 G. Majone: The problem of regulatory legitimacy in the US and the EU. Paper for the symposium on "Rethinking Federalism in the US and the EU: the challenge of legitimacy" Kennedy School of Government, April 19-20th 1999. (forthcoming).

86 In fact, the majority of studies concerning the delegation problem in the EU deals with the transfer of competencies from the member States to the european institutions, and not from them to independent authorities.

87 Opinion of the ECJ 1/76 of April 26 1977, Draft agreement establishing a European laying-up fund for inland waterway vessels. [1977] ECR 741. See also, Jean Groux: Le parallèlisme des compétences internes et externes de la CEE. CDE, vol.14, 1978, p. 3-32.

88 See below, p.32.

89 See below, p.32-35.

90 The definition given by the APA (Chapter 5, section 551) is very broad: "agency means each authority of the Government of the US, whether or not it is within or subject to review by another agency, but does not include.." followed by eight exceptions, the Congress, the Courts, the governments of the States, etc.

91 We shall consider here only the American model of the independent agencies. Nevertheless, the Canadian "regies" and British "quangos" (quasi-autonomous non-governmental organisations) are very similar.

92 See, S.Breyer & R. Stuart: Administrative Law and Regulatory Policy, Boston 1979. F. Heffron & N. McFeeley: The administrative regulatory process. New York, 1983.

93 The United States Government Manual (1985-86, p. VI-VII) lists 57 such authorities, including the Security and Exchange Commission (SEC), the Nuclear Regulatory Commission (NRC), The National Labor Relations Board (NLRB), The Federal Communications Commission (FCC), the Environmental Protection Agency (EPA), the Federal Energy Regulatory Commission (FERC),the Consumer Product Safety Commission (CPSC), the Food and Drugs Administration (FDA), the National Aeronautics and Space Administration (NASA), the Immigration and Naturalization Service (INS), to name just a few of the most important. But the list is only indicative, given that the Government Manual says " and any other similar agency designated by statute as a Federal independent regulatory agency or Commission".

94 Where Europeans would try to formulate a general theory of administrative law, most Americans would try to determine above all whether these agencies are appropriate or not to effective management of government activity and, consequently, whether they need to be improved or abolished. See, Michael H. Davis: L'expérience américaine des "independent regulatory Commissions". In Cl.A.Colliard and G. Timsit: Les autorités administratives indépendantes. PUF, Paris 1988, p. 222-235.

95 Joan Flynn: "Expertness for what?": the Gould years at the NLRB and the irrepressible myth of the "independent agency". ALR, vol.52, no2, p. 465-545.

96 Harold H. Bruff: On the constitutional status of the administrative agencies. AULR, vol.36, 1987, p. 491-517.

97 Morton Rosenberg: Whatever happened to congressional review of agency rulemaking? A brief overview, assessment and proposal for reform. ALR, vol.51, no4, Fall 1999, p. 1051-1092. Thomas O. McGarity: Presidential review of regulatory agency decisionmaking. AULR, vol.36, 1987, p. 443-489. Richard J. Pierce Jr: The inherent limits on judicial control of agency discretion: the D.C. Circuit and the nondelegation doctrine. ALR, vol.52, no1, Winter 2000, p. 63-95. Russel L. Weaver: Appellate review in executive departments and agencies. ALR, vol.48, no2, Spring 1996, p. 251-305.

98 See the papers of the Symposium on the 50th anniversary of the APA, in ALJAU, vol.10, Nr. 1, Spring 1996, and ALR, vol.50, no4, 1998.

99 Gellhorn and Byse's: Administrative Law, op. cit., p. 510 and 1325.

100 Mark Seidenfeld: Bending the rules: flexible regulation and constraints on agency discretion. ALR, vol.51, no2, Spring 1999, p. 430-495.

101 Thomas O. Sargentich: The critique of active judicial review of administrative agencies: a reevaluation. ALR, vol.49, no3, Summer 1997, p. 599-643.

102 Sidney A. Shapiro: Substantive reform, judicial review and agency resources: OSHA as a case study. Ibid., p. 645-670.

103 Daniel Cohen: S.981, the Regulatory Improvement Act of 1998: the most recent attempt to develop a solution in search of a problem. ALR, vol.50, no4, Fall 1998, p. 699-721. Robin J. Evans: The Administrative Dispute Resolution Act of 1996, Ibid., vol.50, no1, Winter 1998, p. 217-233.

104 Peter L. Strauss: The place of agencies in Government: separation of powers and the fourth branch. CLR, vol.84, no3, April 1984, p. 573-633.

105 Les autorités administratives indépendantes. Op. cit., particularly pp. 135-185 for France, 199-203 for the United Kingdom, 203-207 for Germany and 207-210 for Spain.

106 The New European Agencies. Conference Report. Al. Kreher ed., Robert Schuman Center. No 96/49, Florence, 1996.

107 In chronological order of establishment, the European agencies are as follows:

1) European Centre for the Development of Vocational Training (CEDEFOP), Articles 151 and 308, Regulation No 337/75 of 10.2.75.
2) European Foundation for the Improvement of Living and Working Conditions, Article 308, Regulation No 1365/75 of 26.5.75.
3) European Environment Agency (EEA), Article 175, Regulation No 1210/90 of 7.5.90.
4) European Training Foundation, Article 308, Regulation No 1360/90 of 7.5.90.
5) European Monitoring Centre for Drugs and Drug Addiction, Article 308, Regulation No 302/93 of 8.2.93.
6) European Agency for the Evaluation of Medicinal Products (EMEA), Article 308, Regulation No 2309/93 of 22.7.93.
7) Office for Harmonisation in the Internal Market (OHIM), Article 308, Regulation No 40/94 of 20.12.93.
8) European Agency for Health and Safety at Work, Article 308, Regulation No 2062/94 of 18.7.94.
9) Community Plant Variety Office (CPVO), Article 308, Regulation No 2100/94 of 27.7.94.
10) Translation Centre for Bodies of the European Union, Article 308, Regulation No 2965/94 of 28.11.94.
11) European Monitoring Centre for Racism and Xenophobia, Articles 284 and 308, Regulation No 1035/97 of 2.6.97.
12) European Agency for Reconstruction, Article 308, Regulation No 2454/99 of 15.11.99.

108 Ed. Alexander Kreher: The EC Agencies between Community Institutions and constituents: autonomy, control and accountability. European University Institute, Florence 1998.

109 Xénophon A. Yataganas: Certains aspects de la réglementation financière des organismes décentralisés. Ibid. pp. 39-50.

110 See the recent proposal for a Satute of agencies managing the Community Programs. 13 December 2000.

111 The proposal to create such an organisation (COM (96) 223 final of 29.5.96) was withdrawn by the Commission in June 1997.

112 See, Executive Summary on the possible added value of European Regulatory Authority for Telecommunications. Prepared by Eurostrategies and Cullen International, for the European Commission. October 1999.

113 White Paper on Food Safety presented by the Commission, COM (1999) 719 final of 12.1.2000. The Commission's definitive proposal on the subject was presented very recently: Proposal for a regulation of the Parliament and the Council laying down the general principles and requirements of food law, establishing the European Food Authority and laying down procedures in matters of food safety. COM (2000) 716 of 8 November 2000. Despite a few cautious improvements (rationalisation, restructuring and simplification of the chain of committees involved in the subject area, tentative opening to private individuals through informal information and consultation procedures, cooperation with national counterpart authorities via networks and introduction of a mediation procedure to resolve conflicts with them) the strict separation between risk assessment and risk management means that this document remains firmly within the tradition of purely consultative agencies: the European Food Authority would play no part in risk management, which would remain the exclusive responsibility of the Commission. For a more balanced approach to this important issue, see St. Breyer: Breaking the vicious circle: toward effective risk regulation. Holmes Lectures at the Harvard Law School, April 1992.

114 COM(2000)144 final of 13 March 2000, withdrawn following objections from the Legal Service. New proposal presented the 27 September 2000.

115 Proposal of 6 December 2000. COM(2000)802 final.

116 See the recent memorandum JUR (2000) 30465 of 10 July 2000.

117 C.D.Ehlermann: Reflexions on a European cartel office. CMLR, vol.32, 1995, p. 471-486. The author mooved recently (during a hearing before the "Governance" task force the 26 February 2001) from his previous positions and now accept the added value of a European "Kartelamt". If this choice, in an area where the Commission's competences are clearly provided by the Treary itself becomes now plausible, we can imagine the necessity of the same modus operandi in areas where the EU's decisionmaking shows important grey zones.

118 European Commission: White paper on modernisation of the rules implementing Articles 85 and 86 (after the consolidation of the Treaties, Articles 81 and 82) of the EC Treaty. COM (99) 101 final.

119 Directive 90/387 as amended by Directive 92/44 contains open network provisions, establishes a coordinating committee and dispute settlement and conciliation procedures (Articles 8 and 12) for cases involving several Member States that cannot be settled at national level. This is a step in the right direction, but by no means enough. The same problems apply, mutatis mutandis, to the Trans-European Networks (TEN).

120 P.A.Buigues, O.Guersent, J.F.Pons: Network utilities. The Institutions and the Member States. Unpublished paper, August 2000.



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