The agencies’ contribution to EU law enforcement. A theoretical perspective

Before looking at the actual role of EU agencies in the exercise of sanctioning powers, their contribution to the enforcement of EU law will be analysed from a theoretical perspective. Two issues deserve to be highlighted in this regard.

EU agencies as a tool to force the 'sanction conundrum' of the EU?

As it is well known, the sanctioning powers of the EU (and, previously, the E(E)C) have traditionally been hindered by national powers and prerogatives.

As Bridge pointed out, ‘while the Community constitutes a new and independent legal order (Van Gend), it is also in a sense a dependent legal order in that it relies for its enforcement on the legal orders of the Member States’. During the XV° FIDE Congress, Timmermans (institutional rapporteur) took a similar stance, arguing that ‘the Community depends, with few exceptions, on the national legal systems to assure respect for Community law’; and the General Report by Tesauro confirmed this point, stating that 'la Communauté [...] ne dispose pas des moyens, contraignants ou administratifs, permettant de faire face à des phénomènes de transgression [...], de sorte qu’elle doit nécessairement compter sur les moyens le cas échéant prévus dans les Etats membres'.[1] Moreover, it is worth noting that, according to the same Author, resorting to national sanctioning was not a discretionary choice of the Community, but, in most cases, 'un choix obligé",

Some years later, Biancarelli interestingly noted that current Art. 261 TFEU, granting a full jurisdiction to the Court of Justice over sanctions, confirmed the possibility of theoretically enhancing a direct European sanctioning power through regulations.50 This approach, however, has not been fully exploited by the Community. On the contrary, at that time the outer reach and most effective tool to improve the Community sanctioning powers could be found in the harmonisation of national control.

Against this settled narrative, one may wonder whether the agencification process - which only revealed its full intensity some years later - could be seen as a tool to force the national prerogatives on sanctioning.

Indeed, EU agencies’ capability of merging the European and national level has enabled them to overcome, or at least put in a different perspective, the classical problem that the EU (and, previously, the E(E)C) faced when dealing with this issue: the need to respect the national sovereignty in implementing EU law and, thence, issuing sanctions.51 Within EU agencies, the European and national level merge one with the other; EU agencies go beyond the principle of subsidiarity, creating a common platform of shared governance, endowed with an autonomous legal personality, that disrupt the classical bilateral relationship between the EU and its Member States. The well-known contrast on which level of authority is entitled to act seem to be overcome, within EU agencies, because that power is actually exercised commonly by the EU and national level.

The extent of the twist between these two levels may well vary from sector to sector: it ranges from a bare coordination offered by the agency to national authorities, to an explicit substitution of the latter by the former for adopting binding legal acts vis-à-vis specific addressees or categories of individuals. In any case, even in their weakest forms of involvement, EU agencies seem able to force the secret garden of Member States’ sovereignty’4 through the backdoor: providing high-level technical and scientific evaluations, that thence will be used - either by national administrations, by other EU institutions, or by EU agencies themselves - as an unavoidable basis for issuing sanctions.

  • [1] G. Tesauro, 'La sanction des infractions au droit communautaire’, (1992) Rivista di diritto europeo 504-505. 2 Ivi, p. 505. 3 J. Biancarelli, supra, note 27, 285. 4 51 This issue is highly intertwined with the fragmentation of national administration at a European and global level: see, on this point, ex multis, S. Cassese, La nuova costituzione economica: lezioni (2012, Laterza) 322-323. 5 52 R. Piselli, 'Uno sguardo allé agenzie decentrate attraverso il prisma del principio di sussidia-rietà’, (2017) Amministrazione in cammino 14; V. Salvatore, 'Le Agenzie tra Unione europea e Sta-ti membri. Oltre la sussidiarietà’, in V. Salvatore (ed.), Le Agenzie dell’Unione europea. Profili isti-tuzionali e tendenze evolutive (2011, Pavia University Press) 20. The literature in English on the relation between EU agencies and the principle of subsidiarity is actually more analytical and quite counterintuitive in its conclusion: see D. Geradin, N. Petit, 'The development of agencies at EU and national levels: conceptual analysis and proposals for reform’, (2005) Yearbook of European Law 173; M. Chamon, supra note 11, 162-164. 6 See amplius J. Alberti, supra, note3, 107-115 and 137-142.
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