Dealing with a zombie in EU law: the regulatory procedure with scrutiny

Annotation to Joined Cases T-261/13 and T-86/14 Netherlands v. Commission, EU:T:2015:67

Agencification in the United States and Germany and what the EU might learn from it

In the European Union the legislature has, in the past years, established an increasing number of agencies, granting them increasingly important powers. This phenomenon of agencification is legally problematic because it does not have a legal basis in the EU Treaties. In order to better understand the challenges posed by EU agencification, this Article looks at similar agencification processes in two other federal-type polities, the U.S. and Germany. Germany is especially relevant to understanding the vertical (federal) dimension to EU agencification, while the U.S. experience can inform us about the horizontal (separation of powers) dimension. This is done by looking at three distinct issues: The question of the initial establishment of a new body at the EU (federal) level, the extent to which powers can be entrusted to such a body, and the degree to which the decisions adopted by such bodies are judicially scrutinized. The Article concludes that EU agencification poses a greater risk than agencification in Germany or the US because control is partially less well-established (compared to Germany) and because the EU polity is much less mature (compared to the U.S.)

Implied exclusive powers in the ECJ's post-Lisbon jurisprudence : the continued development of the ERTA doctrine

Already early on in the EU integration process the ECJ accepted the idea of implied exclusive powers: in ERTA, it ruled that Member States may lose the power to conclude international agreements if and when the EU has acted internally on the matter. This idea of “supervening exclusivity” was further developed in subsequent ECJ case law and finally recognized in primary law through codification in Article 3(2) TFEU. The present article reconstructs the Court’s pre-Lisbon jurisprudence using different building blocks: the telos and nature of supervening exclusivity, the species of “common rules” and the notion of “affecting”. Reconceptualizing the ERTA doctrine, the article argues that the ERTA effect is a form of obstacle pre-emption. In a second part, the article looks at the (dis)continuity of the application of the ERTA doctrine in the Court’s post-Lisbon case law, finding that there is coherence in the sense that obstacle pre-emption is still a valid prism through which to look at the ERTA doctrine but at the same time the threshold for finding an EU exclusive competence has been lowered