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15 German L.J. 1223 (2014)
The Limits of Agencification in the European Union

handle is hein.journals/germlajo15 and id is 1238 raw text is: The Limits of Agencification in the European Union By Miroslava Scholten and Marloes van Rijsbergen Abstract Although not explicitly regulated by the EU treaties, EU agencies not only exist but also have increased in number and power. In addition, while EU agencies may exercise very similar functions to those of the Commission, Articles 290 and 291 of the Treaty on the Functioning of the European Union (TFEU) do not list agencies among the possible authors of non-legislative acts. The existing situation raises the questions of the extent to which the ongoing agencification in the EU is legitimate and what its limits are. This article addresses these questions in the light of the old and new Treaties and case law, including the just released ESMA-shortselling case. It shows that while the Lisbon Treaty made a few steps forward on the road of legitimizing EU agencies and delegating important powers to them, the scope of powers that EU agencies can have remains unclear. In this respect, the European Court of Justice's lenient approach in the ESMA-shortselling case is unfortunate because it neither clarifies the issue nor pushes the Union Legislator and the Member States to address it. Consequently, in the absence of clear limits, further agencification is likely to persist at the risk of increasing the democratic legitimacy deficit and remaining accountability gaps. A. Introduction In recent decades, two trends have been characterizing the exercise and delimitation of public power: First, the growing scope of delegation of public authority to the executive branch, and second, cutting the executive into smaller Miroslava Scholten is an Assistant Professor EU Law at the Utrecht Centre for Shared Regulation and Enforcement in Europe (RENFORCE) and Europa Institute, Faculty of Law, Economics and Governance, Utrecht University; M.Scholten@uu.nl. Marloes van Rijsbergen is a PhD Candidate at the Utrecht Centre for Shared Regulation and Enforcement in Europe (RENFORCE) and Europa Institute, Faculty of Law, Economics and Governance, Utrecht University; M.P.M.vanRijsbergen@uu.nl. The authors would like to thank the European Banking Authority for organizing an insightful legal workshop on regulatory tools and the EU institutional architecture for the financial sector on 17 January 2014 at the EBA's premises in London, which served as the impetus for this article. We are grateful to Prof. Dr. Linda Senden, Mr. Rob van de Westelaken, and Mr. Merijn Chamon for their comments on the first draft of this article as well as the editorial board for their careful editing.

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