7 - The Constitutional Foundations of European Administration

Question 1

Outline of the lecture? (4)

Answer 1

1/ what is at stake in administrative law?

2/ delegated and implementing acts

3/ agency acts (Meroni vs ESMA)

4/ composite administrative procedures

Question 2

What is a fundamental question with respect to administrative law?

Answer 2

How can we make sure, through the law, that when power is delegated, executives do not become so powerful as to become legislators themselves?

Question 3

Evolution with respect to administrative law? (5)

Answer 3

1/ ancestors had a bad experience with monarchs and autocrats ruling authoritatively

2/ this led to democratic revolutions

3/ legislative bodies with representatives elected by the people set up to let people reign over their political community

4/ in late 19th and 20th centuries, legislators couldn’t handle the gvt of political communities anymore => reverse process occurred via which some powers were delegated back to the executive

5/ safeguards nowadays however exist to prevent the executive from becoming too powerful

Question 4

What does the term ‘activities of the executive’ encompass? (2)

Answer 4

1/ administrative powers

2/ executive powers

Question 5

What are the 2 executive forms of legislation in the EU?

Answer 5

1/ autonomous executive powers

2/ delegated executive powers (3 forms)

Question 6

Examples of autonomous executive powers in the EU? (2)

Answer 6

1/ State aid

2/ competition law

Question 7

What are the 3 forms of delegated executive powers?

Answer 7

1/ delegated acts (Art. 290 TFEU)

2/ implementing acts (Art. 291 TFEU)

3/ agency acts

Question 8

How much of EU lawmaking is done via executive forms of legislation?

Answer 8

90%

Question 9

Characteristics of Article 290 TFEU? (5)

Answer 9

1/ delegation of powers to EC on the basis of an express legislative provision

2/ confers EC the power to supplement or amend provisions of original legislative act

3/ original legislative act must be adopted on basis of the OLP or a special legislative procedure

4/ delegated legislative act must not, as solely the EC acts

5/ delegated legislative act will be annexed to the original legislative act

Question 10

Characteristics of Art. 291 TFEU? (2)

Answer 10

1/ allows EU legislator to transfer powers to the EU executive

2/ mainly covers instances in which uniform implementing measures are required

Question 11

Differences between Arts. 290 and 291 TFEU? (4)

Answer 11

1/ Art. 290 gives the EC legislative powers (‘amend or supplement’ original legislative act)

2/ Art. 291 confers an executive power on the EC (‘uniform implementation measures’)

3/ Art. 290 requires EC to adopt measures based on a ‘legislative act’

4/ Art. 291 allows EC to adopt measures based on ‘legally binding Union acts’ (more broad)

Question 12

What is the EC considered to adopt when acting under Article 290 TFEU? (2)

Answer 12

1/ a non-legislative act

2/ this results from the EU’s formal definition of ‘legislative acts’, requiring such acts to be adopted according to a legislative procedure

Question 13

What does delegation of power from the legislative to the executive require?

Answer 13

Constitutional safeguards

Question 14

What are the constitutional safeguards regarding delegated acts within the EU (Art. 290)? (4)

Answer 14

1/ EP and Council can revoke the delegation of power

2/ entry into force of delegated act is possible only if no objection of the EP and Council within defined time period

3/ possibility for EP and Council to bring an annulment action under Art. 263 TFEU

4/ EU legislator can only delegate ‘non-essential elements of the legislative act’

Question 15

What did Schengen Borders Code make clear? (3)

Answer 15

1/ the ‘essential elements’ doctrine for delegated acts

2/ essential elements defined as ‘political choices falling within the responsibility of the EU legislator’

3/ moreover, if FR are at stake, the EU legislator must take the final decision

Question 16

What is the reasoning behind the SBC decision? (2)

Answer 16

1/ CJEU set up limits to the powers that can be transferred to the EC (executive)

2/ this is aimed at protecting the EU legislator as the ultimate creator of sovereignty in the EU

Question 17

Constitutional constraints for implementing acts (Art. 291)? (2)

Answer 17

1/ EP and Council are to lay down rules and gnl pcples concerning mechanisms for control by MS for the EC’s exercise of implementing powers

2/ see Comitology Regulation in this respect

Question 18

What values does Article 291 TFEU protect and why? (2)

Answer 18

1/ protects federal values

2/ MS are empowered to make sure the delegation of powers to the EC is constrained and regulated

Question 19

Initial considerations surrounding the concept of agency acts? (3)

Answer 19

1/ no mention of delegation of powers to EU agencies in Arts. 290 and 291 TFEU

2/ Art. 291 TFEU has been interpreted so as to allow such delegation of powers

3/ see especially Meroni and ESMA cases

Question 20

Contributions of Meroni case (1958)? (5)

Answer 20

1/ starting point is EC decision which delegated powers to 2 agencies on the basis of a Treaty article

2/ CJEU did not exclude the possibility for the EC to transfer powers to agencies, even if these agencies operate under private law

3/ pb in this case was that decisions of the agencies were not subject to judicial review & the agencies were not required to comply with basic pcples of EU administrative law

4/ CJEU considered that powers delegated to agencies have to be subject to the same conditions as if the EC had adopted the delegated act

5/ thus, delegation of powers to EU agencies is acceptable only if the delegation is expressly and specifically defined and happens under the supervision of the EC

Question 21

Contributions of Romano case (1981)? (3)

Answer 21

1/ reiterates Meroni doctrine

2/ ruled that agencies cannot be entitled to adopt acts having the force of law

3/ delegation of ‘legislative or quasi-legislative powers’ to EU agencies is therefore not allowed

Question 22

Contributions of ESMA case (2014)? (3)

Answer 22

1/ starting point: UK argued Art. 28 of Reg. 236/2021 gave too large of a discretion to ESMA (an EU agency), which was not allowed under the Meroni doctrine

2/ CJEU disagreed and considered delegation of powers to ESMA agency was in line with Treaties

3/ as such, very controversial case

Question 23

What are the opposing views on regarding the consistency of ESMA ruling with Meroni doctrine? (2)

Answer 23

1/ many considered Meroni doctrine was ruled out as this doctrine often led to an interpretation allowing only for an extremely limited delegation of powers to EU agencies

2/ other opinions consider the ESMA case simply leads to an extension of the Meroni doctrine

Question 24

What do composite administrative procedures touch upon? (2)

Answer 24

1/ administrative powers of EC and EU agencies

2/ as well as how these powers are to be shared with national authorities

Question 25

What are the 3 composite administrative procedures in EU law?

Answer 25

1/ national authority plays major role and predetermines outcome at EU level

2/ national authority plays a role in the procedure (often preparatory decision) but EU can diverge from this position

3/ national authority merely acts as a secretariat, the actual decision is taken by EU authorities

Question 26

What are the 3 composite administrative procedures in EU law ruled by?

Answer 26

Always by EU law

Question 27

Why is the distinction btwn the 3 CAPs important?

Answer 27

It determines which court is ultimately responsible for the review of the decisions involved

Question 28

Contributions of the Borelli case (1992)? (5)

Answer 28

1/ this case related to the first type of EU composite administrative procedure

2/ as such, the national authority had to decide on the granting of agricultural aid from the EU fund and the EC adopted the final decision (formally speaking)

3/ Borelli went to CJEU in action for annulment claiming national authority took wrong decision

4/ CJEU rejected the action

5/ CJEU held that judicial review had to take place before national courts bc it is the national authority that really took the final decision

Question 29

Contributions of Berlusconi case (2018)? (4)

Answer 29

1/ this case involved the second type of EU composite administrative procedure

2/ Berlusconi wanted to acquire an Italian bank but ECB did not give authorisation, which the Banca d’Italia had recommended

3/ Berlusconi contested decision of ECB before national court

4/ CJEU held that an EU court must decide on the legality of the final measure as it was taken by the ECB

Question 30

What would be problematic if national courts were empowered to review the legality of administrative acts adopted by an EU institution?

Answer 30

National courts could then adopt different positions with regard to a single decision

Question 31

What is at stake in the topic of European administration?

Answer 31

Unlimited power vs administrative law

Question 32

Considerations surrounding general pcples of EU law? (3)

Answer 32

1/ they are part of primary law

2/ they are rather vague

3/ they have a certain gap-filling function

Question 33

What is the relationship between Article 41 CFR and the GPEUL on good administration? (4)

Answer 33

1/ Art. 41 CFR focuses explicitly on EU institutions and therefore has a restricted scope of application

2/ GPEUL on good administration is much broader and can be relied upon by private parties before national courts

3/ as such, GPEUL on good administration provides an avenue for enhanced judicial protection

4/ see also Art. 47 CFR, which might be more relevant than Art. 41 CFR as it ensures the right to an effective remedy and to a fair trial

Question 34

What is the link between Art. 291 TFEU and federal values? (4)

Answer 34

1/ Art. 291 touches upon implementation of EU law either by MS, EC or Council

2/ Art. 291 establishes 2 levels of administration that are in a vertical relationship

3/ as such, there are various control mechanisms depending on which actor decides on how to implement EU law

4/ MS control implementation by the EC under Art. 291 via Comitology system

Question 35

What does Art. 290 establish and touch upon? (2)

Answer 35

1/ establishes horizontal relationship between EU institutions

2/ touches upon issues of horizontal IB

Question 36

What does Art. 290 establish and touch upon? (2)

Answer 36

1/ establishes horizontal relationship between EU institutions

2/ touches upon issues of horizontal IB

Question 37

What are Comitology committees composed of and what are they about in essence? (2)

Answer 37

1/ representatives of MS, usually ministerial experts

2/ they are really about technical expertise

Question 38

What distinction does the ESMA ruling create? (2)

Answer 38

1/ situations falling under Meroni doctrine, i.e. agencies established under private law

2/ situations falling under the new Lisbon system, i.e. agencies under public law

Question 39

What limits remain regarding the delegation of powers to agencies even after ESMA ruling? (3)

Answer 39

1/ discretion of agencies is circumscribed

2/ delegation of powers must be precisely delineated

3/ decisions must be amenable to judicial review

Question 40

What is said about the powers of EU agencies currently? (2)

Answer 40

1/ EU agencies cannot have more legislative powers as they cannot amend or supplement EU legislation under Art. 290 TFEU

2/ EU agences however have more executive power and freedom in the realm of implementation as they can adopt implementing acts under Art. 291 TFEU

Question 41

What does derivative illegality require? (3)

Answer 41

1/ an act attributable to the EU

2/ a violation of EU law

3/ infringement of an essential procedural requirement

Question 42

What is a problem with respect to composite administrative procedures in the EU? (3)

Answer 42

1/ there is a reluctance of the EU to allow application of derivative illegality doctrine

2/ this leads to risks of non-reviewability of illegal acts, i.e. a legal vacuum

3/ this is contrary to effective judicial protection and weakens the rule of law

Question 43

What is another problem related to CAPs in the Berlusconi scheme? (4)

Answer 43

1/ the illegality of national preparatory acts may lead to derivative illegality, but this is not so in all cases

2/ where the illegality of a national act derives from a breach of national law, the CJEU cannot pronounce itself on the national preparatory act

3/ this is linked to the pcples of autonomy and uniformity

4/ this pb has not yet been solved in case law