Jean Monnet Center at NYU School of Law



In a recent note circulated under the authority of the President,253 the Legal Service of the Commission moved from its previous positions on three main points:

a) It accepts that "the tasks confered to agencies namely concern the exercise of public power in order to reach general interest objectives". This extremly large formula obviously encompasses wider attributions than those purely consultative or of technical assistance ones. Consequently, if the agencies' nature of tasks belong to the heart of Community policies, the means to achieve them must also be accordingly important. In my mind, this leads to the conclusion that these bodies should have some discretionnary power.
b) What was already done with the creation of the Kosovo agency, is now legally possible by the institutionalization of the so-called management agencies. In other words, the budget's execution powers of the Commission became deletagable. This constitutes a breakthrough of overwelming importance, because these powers are provided by the Treaty itself. The normative foundation of the non-delegation doctrine of competences related to the institutional balance established by the Treaty, is no longer valid. Under these circumstances, we can legitimately put the question, Why can't such a delegation be extended -conditionally-to other aspects of a European regulatory work in expansion, without modifying the Treaty.
c) Last but not least, the most spectacular change in the Legal Service's doctrine concerns its acceptance that agencies cannot exercise "regulatory powers of general caracter". We can assume -a contrario-that these bodies can exercise specific or particular regulatory powers. This statement leads directly to the vast and real problematic about the respective limits of laws and regulations under the Community's legal order. Without entering the complex debate on the possible clarification in the hierarchy of European norms that needs a revision of the Treaty, we can define -under constant Treaty- the border of specific regulatory powers to be confered to independent agencies. In this respect, it is without any doubt that such powers embodyed individual decisions in application of the general regulations, which is already the case for some of the existing agencies. The same distinction exists under American law, between "rulemaking" and "adjudication". But for what reason, a limited discretionnary power -inside certain margins and according quantitative or/and qualitative criteria defined by the legislature- would not be assimilated to a specific/particular regulatory power? We must search furthermore in that direction.

The conclusion is that the Legal Service and the Commission they have already moved -even without saying it-from the Meroni doctrine. We welcome this evolution, which opens new perspectives for a more rational exercise of the European regulatory tasks. It is now legally and politicaly possible to define a rulemaking framework for the European agencies -including a certain marge of discretionnary power-without a previous modification of the Treaty. At least, we now have a good basis for discussion in order to think seriously and quietly about the degree of necessary europeanization of the EU's administrative activity and the appropriate level of taking the relevant decisions.

March 15, 2001. Xénophon A. Yataganas.

253 SEC(2001)340 of 20 February 2001.



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