EU Environmental Governance

EU Environmental Governance Presented by: Ass. Prof. Volpato Date: 18 March 2024 Overview - Implementation of European Green Deal - EU agencies • Definition • Rationales • Problematic issues Definition Of Decentralized Agencies - Created by EU legislative act - Own legal personality - 'Autonomous' - Financially 'independent' - Limited mandate - Actively involved in the executive function - With and without decision making power Rationales Of Agencification - To introduce increasingly flexible administrative capacity and efficiency - To deal with complex technical and scientific issues by providing expertise - To (re)gain trust and credibility - To improve implementation - To increase networking and participation of more actors, such as stakeholders and citizens - Outcome of a power game between EU institutions and Member States Delegation Of Powers - Agencies can be delegated powers provided that the institutional balance is respected - Anti-or limited delegation Meroni doctrine: no delegation of discretionary powers to agencies, only strictly circumscribed executive powers Problematic Issues - Judicial review - Constitutional neglect in executive rule making - Delegation of discretionary powers - Independence Judicial Review Of Agency Acts - Agency acts: Article 263 TFEU (comparison recognition to challenge EP acts before Court) • 'Intended to produce legal effects vis-à- vis third parties' • Not for preparatory acts - Art. 265 TFEU: failure to act - Agencies: no active legitimation - Case C-911/19, Fédération bancaire française (FBF) v Autorité de contrôle prudentiel et de résolution (ACPR) Constitutional Neglect - Lisbon: • Agencies in the Treaties • However:  No separate legal basis to create agencies  No recognition of possibility to delegate powers to agencies (290-291 TFEU)  No recognition of possibility for agencies to adopt binding acts in the hierarchy of norms system (290-291 TFEU) Revisiting Meroni - Case C-270/12, UK v Council and EP (ESMA/Short selling) • Art. 28, Regulation 236/2012 on short selling and certain aspects of credit default swaps • Power of ESMA to intervene, under certain conditions, through legally binding acts in the financial markets of Member States if there is a 'threat to the orderly functioning and integrity of financial markets or to the stability of the whole or part of the financial system in the Union' • UK challenge:  Compatibility of the EU's delegation of powers to ESMA with the Meroni and Romano judgments  Compatibility with articles 290 and 291 TFEU > 'constitutional neglect'  Compatibility with the principle of conferral of powers in relation to article 114 TFEU - Case C-270/12 Court: • Delegation: Meroni 2.0:  ESMA is an EU body  Delegated powers circumscribed by various conditions and criteria which limit ESMA's discretion;  Those powers do not, therefore, imply that ESMA is vested with a 'very large measure of discretion' that is incompatible with the FEU Treaty for the purpose of that judgment  Judicial review is guaranteed • Art. 28 cannot be regarded as undermining the rules governing the delegation of powers laid down in Articles 290 TFEU and 291 TFEU  Court is willing to repair the gap Independence - Status which ensures that the body concerned can act completely freely, without taking any instructions or being put under any pressure - Institutional independence • Organizational, budgetary, staffing, financial - Functional independence - Commercial v national interests - Independence of agencies: also from MS?