Meroni Circumvented? Article 114 TFEU and EU Regulatory Agencies
| DOI | 10.1177/1023263X1402100104 |
| Published date | 01 March 2014 |
| Author | Pieter Van Cleynenbreugel |
| Date | 01 March 2014 |
| Subject Matter | Article |
64 21 MJ 1 (2014)
MERONI CIRCUMVENTED? ARTICLE114TFEU
AND EU REGULATORY AGENCIES
P V C*
ABSTRACT
is paper conceptualizes the somewhat neglected constitutional and constitutive roles
of Article 114 TFEU in the establishment and functioning of EU integrated market
supervision mechani sms. Relying on a virtually unlimited interpretation of that provision
by the Court of Justice, EU institutions and Member States have been able to design an
institutional ‘supranational operational support’ narrative that allowed for the expansion
of supranational agencies as ex tensions of national supervisory bo dies operating in an EU
integrated administration framework.
is paper submits th at this interpretation of Article114 TFEU incorporates a template
within which a nascent ius commune underlying the organization and operationalization
of EU internal market supervision mechanisms can e ectively take shape. at template
allows for circumvention of some infamous agency delegation limits and grants Member
States and national authorities a more direct role in a supranational system of integrated
administration. In doing so however, new constitutional problem s are created that have not
been adequately addressed by the post-Lisbon Treaty framework. is paper identi es those
problems and their impact on the emerge nce of integrated EU market supervision str uctures.
Keywords: Art icle114 TFEU; EU agencies; internal market; Meroni; op erational support
§1. INTRODUCTION
is paper reconstructs the constitutive role Article 114 TFEU has played in the
establishment of EU agencies supervising harmonized internal market rules.
1 In
* Assistant Professor, Europa Institute , Leiden Law School, Leiden University; p.j.m.m.van.
cleynenbreugel@law.leidenuniv.nl.
1 See A. Ottow, ‘Europea nization of the Super vision of Competitive Ma rkets’, 18European Public Law 1
(2012), p.191–221.
Meroni Circumvente d? Article114TFEU and EU Regul atory Agencies
21 MJ 1 (2014) 65
partic ular it outli nes and identi es to what extent thi s provision has allowed the Member
States to directly entrust supervisor y powers to supranational authorities as a matter of
EU primary law. e a nalysis is split up into four additional sections.
e second section of this paper provides a familiar overview of the limits and
opportunities of Article114 TFEU as an instrument of internal market regulation. e
Court of Justice has played a primary role in constructing and sanctioning a virtually
unlimited substantive internal market regulation mandate through a wide variety of
‘measures for the approximation’ of national laws. is section illust rates that the Court
considers the creation of supranational authorities and national authorities that are
structured in a supranational way to fall within that category. It additionally outlines
how the Commission, Council and European Parliament bui lt on the momentum created
by the Court’s case law by establishing new regulatory agencies. e establishment of
new European Supervisory Authorities (ESAs) in nancial markets comprises the
cornerstone of that development.
e third section conceptualizes the boundaries of powers attributed to such newly
created agencies on the basis of Art icle114 TFEU. Identifying a supranational operational
support narrative in the ESA Regulations’ preambles, this section argues that this
narrative serves as a justi catory instrument for an Article114 TFEU-agency template.
However, the open-ended nature of the supranational operational support narrative
nevertheless also raises fundamental questions about the constitutional boundaries to
unfettered EU internal ma rket agenci cation.
e fourth section of this paper compares the supranational operational support
requirements with the post-Lisbon Treaty framework limits on the attribution and
delegation of rulemaking powers to EU institutions and EU agencies. In doing so, it
confronts the supranational operat ional support narrat ive with the well-known Me roni
line of cases that consistently governed EU agenci cation debates. Submitting that
the supranational operational support narrative relies on an implicit yet successful
circumvention of the Meroni standards, it conceptualiz es new constitutional boundaries
to unfettered EU operational support extensions on the basis of Article114 TFEU. e
h section brie y concludes this paper.
§2. ARTICLE114 TFEU AND THE ESTABLISHMENT OF
SUPRANATIONAL ‘INTERNAL MARKET’ BODIES
is section revisits the Court of Justice’s case law on the limits of Article 114 TFEU.
is section focuses on the Court’s generous ‘internal market’ object interpretation of
Article114 (section 2.A) as a basis for the establishment of supranationa l agencies under
the internal market approximation banner (section 2.B). Several agencies have indeed
been established i n the wake of the Court’s generous interpretation of Art icle114 TFEU
(sec tion 2.C).
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