Walking a Labyrinth
Edited by Eljalill Tauschinsky and Wolfgang Weiß
Chapter 7: Beyond delegated and implementing acts: where do EU agencies fit in the Articles 290 and 291 TFEU scheme?
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.
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