While the EU’s trade competence has been an exclusive EU competence since Opinion 1/75, free trade agreements (FTAs) have not necessarily been concluded as EU-only agreements and this is because of the mismatch between international developments in trade law and the way in which the common commercial policy (CCP) has been defined in the EU Treaties. The Lisbon Treaty and Opinion 2/15 have proven to be a watershed moment, allowing future FTAs to be concluded as EU-only agreements. However, mixity is still not banished entirely from the EU’s CCP. This chapter explores whether and which legal limits exist that may restrict recourse to facultative and even obligatory mixity, thus favouring EU-only action. So far, the Court has not expressed itself on these issues and the choice between mixity and EU-only action remains in the political hands of the Council, as the aftermath of Opinion 2/15 has revealed.
In its post-Lisbon jurisprudence the CJEU has clarified how the new Treaty framework for comitology, i.e. Articles 290 and 291 TFEU, should be interpreted and applied by the political institutions. One of the questions under the new framework was the extent to which the EU legislature can confer executive powers on EU agencies even though this possibility is not foreseen in the Treaties. In the Short-selling case, the CJEU sanctioned this possibility without, however, integrating the conferral or delegation to agencies in the framework established by the Treaties. The chapter argues that this remains necessary in order to properly safeguard the Commission’s prerogatives under Articles 290 and 291 TFEU. The chapter identifies the building blocks that may constitute a third demarcation line that distinguishes Commission implementing acts from agency implementing acts. Finally, recent legislative practice in relation to the European Railway Agency, Frontex and the European Aviation Safety Agency is scrutinized to ascertain whether such a third demarcation line may also be identified in secondary legislation.
Merijn Chamon and Sabrina Wirtz
The legislative framework of pharmaceuticals regulation in the internal market is foremost defined at EU level, while enforcement powers are predominantly shared in the sense that the EU enforcement authority relies on the national authorities. However, a parallel enforcement power has been created with the Penalties Regulation allowing for EU level sanctions. Moreover, the Urgent Union Procedure shows characteristics of subordinate enforcement. This enforcement structure leads to challenges to accountability, mainly resulting from the complexity of the composite procedures which have been put in place. This chapter examines the enforcement role of the European Medicines Agency and examines the accountability mechanisms applicable at the European level. In addition, it offers insights into the national enforcement means in Belgium as well as Germany and the corresponding accountability mechanisms.
Merijn Chamon and Valerie Demedts
This chapter traces the constitutional limits to the external action of EU agencies. It argues that these limits are a combination of the general constitutional limits on EU action, the institutional balance in EU external relations (as most recently clarified by the Court of Justice in Case C-660/13) and the specific limits to EU agency action (the Meroni doctrine and the Common Approach on Decentralied Agencies). The working arrangements which the Commission Directorates General have concluded with a number of EU agencies pursuant to the Common Approach are assessed from this constitutional perspective. The chapter finds that the EU legislature has devoted insufficient attention to these limits when defining the agencies' external powers in their establishing regulations and identifies a possible way forward to ensure effective external action by EU agencies while respecting the relevant constitutional limits.
Jolien Timmermans and Merijn Chamon
The aim of this chapter is to analyse how the SRB is to be controlled in order to sufficiently guarantee the rule of law within the Single Resolution Mechanism. This chapter focuses only on the procedure whereby the SRB is competent to resolve a significant bank (i.e. Article 18 SRMR). This chapter discusses, from an institutional point of view, how the SRM and the SRB are set up. It thereby focuses on the SRB’s mission, tasks and powers and elaborates upon the horizontal and vertical division of powers in the SRM. The chapter further analyses which types of control mechanisms are foreseen in the legal set-up and in the operation of the SRB. It specifically focuses on legal accountability, political accountability and transparency. The research shows that because of the complex system of composite decision-making there is a lack of clarity as to where responsibility lies, leading to problems under the several forms of accountability.
Merijn Chamon, Herwig C.H. Hofmann and Ellen Vos
More than 40 years experience with the EU decentralized agencies has made clear that the agencies are part and parcel of the EU’s institutional structure. These agencies can broadly be defined as bodies governed by European public law that are institutionally separate from the EU institutions, have their own legal personality, enjoy a certain degree of administrative and financial autonomy, and have clearly specified tasks. ‘Agencification’ of EU executive governance has thus become a fundamental feature of the EU’s institutional structure. Today there are around 40 EU decentralized agencies, which assist in the implementation of EU law and policy, provide scientific advice for both legislation and implementation, collect information, provide specific services, adopt binding acts and fulfil central roles in the coordination of national authorities. Agencies are part of a process of functional decentralization within the EU executive and operate in various policy fields, such as food and air safety, medicines, environment, telecommunications, disease prevention, border control, trademarks and banking, to name just a few.