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15 German L.J. 1223 (2014)
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
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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