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10 Utrecht L. Rev. 116 (2014)
On the Enforceability of EU Agencies' Soft Law at the National Level: The Case of the European Securities and Markets Authority

handle is hein.journals/utrecht10 and id is 803 raw text is: On the Enforceability of EU Agencies' Soft Law at the National Level:
The Case of the European Securities and Markets Authority
Marloes van Rijsbergen*
1. Introduction
The proliferation of EU agencies' is one of the most important institutional developments at the EU
level.2 Because they are considered to be an effective tool in implementing EU policies,' the scope of
delegation to agencies has grown not only in quantitative terms, but also qualitatively, implying the growth
of agencies' powers.' Next to their information-gathering, cooperation, service and advice-providing
tasks, EU agencies have been given regulatory powers as well. Overall, there are two main types of rule-
making through which 'EU agencies seem to provide a substantial regulatory contribution to the smooth
functioning of their policy sectors.' First, agencies may participate, as technical actors, in procedures
leading to the adoption of binding implementing rules, either assisting the European Commission or
directly adopting technical rules. Second, they are often formally or defacto granted the power to issue soft
law instruments, either to the regulatees or to other administrations participating in the sectoral network
they coordinate.6 What sets these 'regulatory' agencies apart within the broader agency population is that
these powers, 'although not binding, are anything but negligible and represent a culmination of agency
contribution to rule-making.7 Especially the delegation of more and more soft regulatory powers to EU
agencies occurs in a growing number of policy areas, e.g. in the field of aviation, medicines and financial
services, in order to increase the effectiveness of EU action.' Indeed, the flexibility of soft law instruments
* Marloes van Rijsbergen LLM is a PhD Candidate at the Utrecht Centre for Shared Regulation and Enforcement in Europe (RENFORCE) and
Europa Institute, Utrecht University School of Law (the Netherlands); e-mail:      . She is writing her dissertation
on the legitimacy and effectiveness of soft regulatory powers of EU agencies, where she focuses specifically on the European Securities
and Markets Authority. The author would like to thank Prof. Linda Senden and Dr. Mira Scholten for their valuable input on an earlier
version of this article. In addition, the author would like to express her sincere gratitude for the useful and constructive comments of the
anonymous referees.
1  Following Chiti, agencies can be understood as bodies (i) aimed at establishing and managing a plurality of cooperative relationships
involving both the Commission and the Member States' administrations, and (ii) enjoying a certain degree of autonomy from the
Commission, but not fully isolated from the Commission's influence. See: E. Chiti, 'An important part of the EU's institutional machinery:
Features, problems and perspectives of European agencies', 2009 Common Market Law Review, no. 5, pp. 1396-1397.
2   D. Curtin & R. Dehousse, 'European Union Agencies: Tipping the Balance?', in M. Busuioc et al. (eds.),The Agency Phenomenon in the
European Union: Emergence, Institutionalization and everyday Decision-making, 2012, pp. 193-205.
3  Joint Statement and the Common approach of the European Parliament, the Council of the EU and the European Commission on
decentralised agencies, 19 July 2012, p. 1.
4 M. Scholten, The PoliticalAccountability of EU and US Independent Regulatory Agencies, 2014.
5   E. Chiti, 'European Agencies' Rule-making. Powers, Procedures, and Assessment', 2013 European Lawlournal 19, no. 1, p. 100.
6   Ibid., p. 99.
7   M. Busuioc, 'Rule-making bythe European Financial Supervisory Authorities. Walking aTight Rope', 2013 European Lawlourna/19, no. 1,
p. 119.
8   M. Shapiro, 'Independent Agencies', in P. Craig & G. de Birca (eds.), The Evolution of EU law, 2011, p. 112.
http://www.utrechtlawreview.org / Volume 10, Issue 5 (December) 2014 / URN:NBN:NL:UI:10-1-115854 /        a

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