An important part of the eu's institutional machinery: Features, problems and perspectives of European agencies

Common Market Law Review

Volumn 46, Issue 5, 2009, Pages 1395-1442

  Chiti, Edoardo ^a  

^a NONE

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EID: 77954004034     PISSN: 01650750     EISSN: None     Source Type: Journal    
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References (101)

1. COM(2008)135 final, The European Agencies - The Way Forward.
2. Leaving aside the European Centre for the Development of Vocational Training and the European Foundation for the Improvement of Living and Working Conditions, set up in 1975, the origin of the process of establishment of common administrative systems by sector coordinated by European agencies may be traced back to the early 1990s
3. See e.g. Art. 13 of Council Regulation 168/2007 of 15 Feb. 2007 establishing a European Union Agency for Fundamental Rights, O.J. 2007, L 53/1.
4. See generally von Bogdandy and von Bernsdorff, "The EU Fundamental Rights Agency within the European and international human rights architecture: The legal framework and some unsettled issues in a new field of administrative law" 46 CML Rev. 1035-1068.
5. See, respectively, Art. 18 of Regulation 851/2004 of the European Parliament and of the Council of 21 April 2004 establishing a European Centre for Disease Prevention and Control, O.J. 2004, L 142/1; Art. 10 of Council Regulation 1210/90 of 7 May 1990 on the establishment of the European Environment Agency and the European environment information and observation network, O.J. 1990, L 120/1; and Art. 13 of the Regulation 1920/2006 of the European Parliament and of the Council of 12 Dec. 2006 on the European Monitoring Centre for Drugs and Drug Addiction. O.J. 2006, L 376/1.
6. See Art. 28 of Regulation 178/2002 of the European Parliament and of the Council of 28 Jan. 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety, O.J. 2002, L 31/1.
7. An example of the role which is sometimes granted to the Commission is the case of the European Maritime Safety Agency. Its management board has to adopt each year the Agency's work programme taking the opinion of the Commission into account; in case, within 15 days from the date of adoption of the work programme, the Commission expresses its disagreement with the said programme, the Administrative Board has to re-examine the programme and adopt it, possibly amended, within a period of 2 months, in second reading either with a two-thirds majority, including the Commission representatives, or by unanimity of the representatives of the Member States. See Art. 10 (d) of Regulation 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency, O.J. 2002, L 208/1.
8. Which is always envisaged in the European agencies' management boards
9. European agencies' Directors are normally appointed by the Management Board on a proposal by the Commission or by the Commission on the basis of candidates put forward by the Management Board
10. See the "review clause" often envisaged in the establishing regulations; see e.g. Art. 25 of Regulation 460/2004 of the European Parliament and of the Council of 10 March 2004 establishing the European Network and Information Security Agency, O.J. 2004, L 77/1.
11. Convention based on Art. K.3 of the Treaty on European Union, on the establishment of a European Police Office (so-called Europol Convention), in O.J. 1995, C 316/49.
12. Council Decision 2002/187/JHA of 28 Feb. 2002 setting up Eurojust with a view to reinforcing the fight against serious crime, O.J. 2002, L 63/1, as amended by Decision 2003/659/JH, O.J. 2003, L 245/44.
13. Council Decision 2000/820/JHA, O.J. 2000, L 336/1, amended by Council Decision 2004/567/JHA, O.J. 2004, L 251/20, and repealed by Council Decision 2005/681/JHA of 20 Sept. 2005 establishing the European Police College (CEPOL) and repealing Decision 2000/820/ J, O.J. 2005, L 256/63.
14. See Art. 28/4 of the Europol Convention, cited supra note 11. The architecture we are referring to could be modified in the near future, as the EU Council is in the process of adopting a decision reforming several aspects of Europol (see the draft proposal 8706/3/08 of 9 Oct. 2008): the decision would strengthen the position of the Commission, provided that the Management Board was composed of one representative of each Member State and one representative of the Commission with voting status. Moreover, Art. 85 TFEU gives the European Parliament and the Council the power to determine, by means of regulations adopted in accordance with the ordinary legislative procedure, Eurojust's structure, operation, field of action and tasks; and an analogous provision is laid down with respect to Europol (Art. 88). Similar rules are laid down with reference to Cepol, while the role of the Commission seems to be more promising in the decision establishing Eurojust and in its rules of procedure, where it is established that the Commission shall be fully associated with the work of Eurojust, in accordance with Art. 36(2) TEU; see Art. 11 of the Establishing Decision and Art. 21 of the rules of procedure, O.J. 2002, C 286/1.
15. See e.g. Majone, Regulating Europe (Routledge, 1996).
16. Even after 19 years, the idea that European agencies are independent authorities in the making, to be further developed on the side of powers, is definitely still alive: see e.g. the overall approach of Gerardin, Muñoz and Petit (Eds.), Regulation through Agencies in the EU. A New Paradigm of European Governance (Edward Elgar, 2005).
17. See, respectively, the Thirteenth and Fourteenth recitals of the preamble of Reg. 851/ 2004, cited supra note 5, and the Eleventh recital of the preamble of Reg. 460/2004, cited supra note 10.
18. The issue of the excessively complex internal organizational architecture of European agencies was raised by the Commission in its 2005 proposal for an inter-institutional agreement (IIA) on the operating framework for the European regulatory agencies (COM(2005)59 final). In that circumstance, the Commission argued in favour of a 15-member Management Board with a greater percentage of Commission representatives: 6 Council representatives, 6 from the Commission, plus 3 representing interested parties without voting rights. However, the proposal stalled during 2006, with the Council opposing the use of an IIA as an instrument. In the Communication of March 2008 (supra note 1), the Commission opened a new discussion on European agencies, observing that "[a]s public bodies of the EU, all agencies must be organised in the right way to respect basic principles of accountability and sound financial management". The position of the Commission is that a "more standard approach to the governance of agencies would allow for certain standard rules to apply to the management board, the Director and to the programming and reporting of the agency's work. It would also help to clarify their relationship with the EU institutions and with the Member States". On this basis, the Commission has launched a thorough evaluation of regulatory agencies and has called for a genuine inter-institutional dialogue on a vision for regulatory agencies.
19. In some cases, the list of candidates is produced by the Commission after an open competition for the post, which must be adequately advertised, and the chosen person has to appear before the European Parliament explaining his vision for the agency before being formally appointed
20. Art. 26 of Regulation 881/2004 of the European Parliament and of the Council, cited infra 24. Other examples are provided by the European Aviation Safety Agency, which is assisted by a Safety Standards Consultative Committee, composed of representatives of organizations directly affected by the regulatory regime; and by the internal organization of the Community Fisheries Control Agency, which includes an Advisory Board composed of representatives of interests affected by the Common Fisheries Policy, such as representatives of the fisheries and aquaculture sectors, environment and consumer interests and scientific experts from all Member States.
21. For this perspective see Wendler, "The public-private regulation of food safety through HACCP: What does it mean for the governance capacity of public and private actors?" in Vos (Ed.), European Risk Governance. Its Science, its Inclusiveness and its Effectiveness, Connex Report Series No. 6 (Mannheim, 2008).
22. The European agencies carrying out a function of production and dissemination of information are the following: the European Centre for the Development of Vocational Training Cedefop (1975), the European Foundation for the Improvement of Living and Working Conditions EUROFOUND (1975), the European Environment Agency (1990), the European Training Foundation (1990), the European Monitoring Centre for Drugs and Drug Addiction (1993), the European Agency for Safety and Health at Work (1994), the European Union Agency for Fundamental Rights (2007), which substitutes the former European Monitoring Centre on Racism and Xenophobia
23. The agencies carrying out an advisory or technical assistance function vis-à-vis European and national institutions are the following: the European Medicines Agency (1993), the Translation Centre for the Bodies of the European Union (1994), the European Agency for Reconstruction (1999), the European Food Safety Authority (2002), the European Maritime Safety Agency (2002), the European Aviation Safety Agency (2002), the European Network and Information Security Agency (2004), the European Centre for Disease Prevention and Control (2004), the European Railway Agency (2004), the European Agency for the Management of Operational Cooperation at the External Borders Frontex (2004), the European GNSS Supervisory Authority (2004), and the Community Fisheries Control Agency (2005)
24. Arts. 6 and 7 of Regulation 881/2004 of the European Parliament and of the Council establishing a European Railway Agency, O.J. 2004, L 164/1; the so called Railway Safety Directive is Directive 2004/49 of the European Parliament and of the Council on safety of the Community's railways, O.J. 2004, L 7/44.
25. See e.g. Arts. 5-8 of Council Regulation 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, O.J. 2004, L 349/1.
26. The powers of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) ("OHIM") are regulated by Council Regulation 40/94 on the Community trade mark, O.J. 1994, L 11/1; as for the Community Plant Variety Office, see Council Regulation 2100/94 on Community plant variety rights, O.J. 1994, L 227/1.
27. Regulation 1907/2006 of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No. 793/93 and Commission Regulation (EC) No. 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/ EC, O.J. 2006, L 396/1.
28. For a short account of this system, Heyvaert, "The EU chemicals policy: Towards inclusive governance?" in Vos, the substantive discipline is discussed by Garcia Molyneux, "Substantive European Community Law Chemicals", 6 YEEL (2006), 287-318
29. Case 9/56, Meroni v. High Authority, [1997-1958] ECR 133; see also Case 10/56, Meroni v. High Authority, [1957-1958] ECR 157; the point will be discussed infra, section 7.
30. For an overview of the new institutional arrangement in the field of aviation safety, see Schout, "Inspecting aviation safety in the EU: EASA as an administrative innovation?" in Vos, op. cit. supra note 21.
31. In a political science perspective, this point is developed by Majone, "The new European agencies: Regulation by information", 4 JEPP (1997), 262-275
32. For a detailed analysis of the formal relationships between the European Medicines Agency and the Commission, as well as of their interactions in the administrative practice, see Chiti, Le agenzie europee. Unità e decentramento nelle amministrazioni comunitarie (Padova, 2002), pp. 209-219.
33. Interestingly enough, the Commission has since the early years of the new pharmaceuticals regime represented its own power as a mere rubber-stamping: see the internal note adopted 10 May 1998 by the E/3 service of the Enterprise and Industry Direction General and signed by the chief of unity Patrick Deboyser
34. If the distinction between instrumental and final powers tends to blur, then it should not be taken for granted that European agencies are actually in line with a restrictive reading of the Meroni jurisprudence. Yet, it is immediately necessary to recognize, in a perspective of political realism, that the agencification process has not caused any inter-institutional conflict before the Court of Justice. The only case decided by the Court of Justice is that concerning the European Network and Information Security Agency, whose establishing Regulation was challenged by the United Kingdom; see Case C-217/04, United Kingdom v. European Parliament and Council, [2006] ECR I-3771; the controversy, however, did not concern the powers granted to the Agency, but the legal basis on which the Regulation was founded, erroneously identified, according to the British government, in Art. 95 instead of Art. 308 EC.
35. For example, the registration procedure of a Community trade mark grants the parties to the proceedings and third parties a wide series of procedural rights. These range from the right to be informed to the right to submit written observations and give notice of opposition to the trade mark registration. Moreover, all procedural phases before the Office that call for giving or obtaining evidence must be adversarial in nature. The parties have to be informed of a witness or expert hearing before the Office, and have the right to be present and to put questions to the witness or expert. Above all, the decisions of the Office, which have to state the reasons on which they are based, shall be based only on reasons or evidence on which the parties concerned have had an opportunity to present their comments. In addition to these provisions, it is provided that, in the absence of procedural provisions in the sectoral discipline, the "Office shall take into account the principles of procedural law generally recognized in the Member States". Such reference implies that the Office can, on the one hand, recall the principles already identified by the ECJ, such as the "rights of the defence", including the equality of arms, the right to be heard, the right to be informed and the right to be represented or assisted, and, on the other hand, enrich such a catalogue, even if only with reference to the sector of Community trade marks. For an analysis of the provisions concerning the registration procedure and the other proceedings disciplined by Regulation 40/94, see Chiti, op. cit. supra note 31, pp. 133-150.
36. Joined Cases T-74, 76, 83, 84, 85, 132, 137 & 141, Artegodan GmbH and Others v. Commission, [2002] ECR II-4945.
37. In the same vein, although on the basis of a wider notion of European agencies, including bodies such as Eurojust, see Craig, EU Administrative Law (Oxford, 2006), pp. 165-166.
38. See Chiti, "Decentralisation and integration into the Community administrations: A new perspective on European agencies", 10 ELJ (2004), 403-438
39. See also Hofmann and Türk, "An Introduction to EU administrative governance", and Türk, "Policy Implementation", both in Hofmann and Türk (Eds.), EU Administrative Governance (Edward Elgar, 2006), where "governance by agencies" is presented as one of the five main "structures of EU administrative governance in the policy phase of implementation".
40. Reg. 1210/90, cited supra note 5. For a detailed analysis of Eionet network coordinated by the European Environment Agency, see Chiti, op. cit. supra note 31, pp. 247-311.
41. Reg. 178/2002, cited supra note 6; for an outline of the organizational architecture of the food security regime, see Cassese (Ed.), La nuova disciplina alimentare europea (Il Sole 24 Ore, 2002); useful information on the functioning of the administrative network may be found on the European Food Safety Authority web site, at www.efsa.europa.eu/EFSA/efsa_locale-1178620753812_PartnersNetworks.htm.
42. Reg. 1907/2006, cited supra note 27; the phrase reported in the text is by Heyvaert, op. cit. supra note 27, p. 195.
43. In general terms, the functional benefits of networking are recognized by Craig, op. cit. supra note 37, pp. 177-178, where it is observed that "networking fosters cooperation between national and Community working on the same terrain, avoids duplication of effort, and facilitates exchange of information, expertise and best practice".
44. In this case, the Community legislator adopts ex novo detailed procedural rules, instrumental, on the one hand, to distribute among the various competent administrations the tasks and powers necessary to implement the EU sectoral regulation, on the other hand, to their interconnection in a single procedural context. The concurrence, in various forms, of Community authorities, mixed offices and national administrations renders such proceedings "composite proceedings".
45. On the notion of composite proceedings see, in particular, Cassese, "European Administrative Proceedings", and della Cananea, "The European Union's Mixed Administrative Proceedings", both in Bignami and Cassese (Eds.), The Administrative Law of the European Union, 68 Law and Contemporary Problems (2004), respectively pp. 21-36 and 197-217.
46. In the perspective of administrative science, the point is further developed in Chiti, "On European Agencies" in Eriksen, Joerges and Neyer (Eds.), European Governance, Deliberation and the Quest for Democratisation, Arena Report No. 2 (Oslo, 2003), pp. 275-326.
47. see also Metcalfe, "Etablissement de liens entre les différents niveaux de gouvernance: intégration européenne et mondialisation", 66 Revue internationale de sciences administratives (2000), 139-168
48. Both by means of amendments to the establishing regulations and on European agencies' own initiative; an example of the latter is provided by the Strategy for cooperation and networking between the EU Member States and EFSA, adopted by the EFSA management board in Dec. 2006 and available at www.efsa.europa.eu:80/cs/BlobServer/DocumentSet/mb_strategy_28thmeet_en_6a,0.pdf?ssbinary=true.
49. Such effect is well known in the European legal order since the beginning of the comitology practice in the agricultural field, which were considered to contribute to the formation of a "véritable éducation européenne"
50. see Noël, "Comment fonctionnent les institutions de la Communauté économique européenne", 6 RMC (1963), 14-27, at 20
51. Directive 2001/82 of the European Parliament and of the Council of 6 Nov. 2001 on the Community code relating to veterinary medicinal products and Directive 2001/83/EC of the European Parliament and of the Council of 6 Nov. 2001 on the Community code relating to medicinal products for human use, both in O.J. 2001, L 311/1 and 67.
52. The "games with the rules" connected with the multiplication of the regulators and with the competition among regulatory regimes are discussed by Cassese, "Dalle regole del gioco al gioco con le regole", 4 Mercato concorrenza regole (2002), 275-276
53. see also Gnes, La scelta del diritto. Concorrenza tra ordinamenti, arbitraggi, diritto comune europeo (Giuffrè, 2004).
54. Among the various examples, one can refer to the elaboration by the European Environment Agency, the Council of Europe and the UN Environmental Programme of shared indicators to measure and assess the reduction of biodiversity in Europe
55. Art. 4/1 (b) of Council Regulation 768/2005 of 26 April 2005 establishing a Community Fisheries Control Agency and amending Regulation 2847/93 establishing a control system applicable to the common fisheries policy, O.J. 2005, L 128/1.
56. The list includes the International Criminal Police Organization (ICPO), the International Money Laundering Information Network (IMoLIN), the International Narcotics Control Board (INCB) and International Organization for Migration (IOM)
57. Several joint bodies have been established, such as the so-called NATO-EU Ad Hoc Working Groups, aimed at discussing security issues, modalities for EU access to NATO facilities, and the operating capability of both organizations; and there are also several cases of extended participation in the meetings of the competent offices, exemplified by the possibility that the Steering Board of the European Defence Agency invites NATO's Secretary General when issues of common interest are in the agenda for discussion
58. On these aspects, Chiti, The European Security and Defense Administration Within the Context of the Global Legal Space, New York University School of Law, Jean Monnet Working Paper No. 7/2007, § 3.
59. On the emergence of a global administrative space, though without reference to the specific position of the European administration, see the monograph issues of the European Journal of International Law (No. 1, 2006) and Law and Contemporary Problems (No. 3-4, 2005), dedicated, respectively, to Global Governance and Global Administrative Law in the International Legal Order and to The Emergence of Global Administrative Law; see also the monograph issue of the New York University Journal of International Law and Politics (No. 4, 2006).
60. On the principle of the rule of law in the European legal order see Lenaerts, "The rule of law and the coherence of the judicial system of the European Union", 44 CML Rev. (2007), 1625-1659;
61. Azoulay, "Le principe de légalité" in Auby and Dutheil de la Rochère (Eds.), Droit administratif européen (Bruylant, 2007).
62. von Bogdandy, "Constitutional Principles" in von Bogdandy and Bast (Eds.), Principles of European Constitutional Law (Oxford University Press, 2006).
63. This is the case of the OHIM, the Plant Variety Office, and the European Chemicals Agency: see supra section 3
64. As has been observed, instead, the European Chemicals Agency is provided partly with decision-making powers and partly with consultative powers vis-à-vis the Commission; supra section 3
65. See e.g. Art. 119/2 of Council Regulation 40/94 on the Community trade mark, cited supra note 26.
66. In the case of the OHIM, for example, the relevant regulation envisages a system of internal appeal to a Board of Appeals, followed by legality review by the Community courts
67. Cassese, "Il diritto amministrativo europeo presenta caratteri originali?", 53 Rivista trimestrale di diritto pubblico (2003), 35-52, at 47
68. As for judicial control, in some cases the establishing regulation provides only that the ECJ has jurisdiction to give judgment in liability and transparency controversies; this is the case, e.g., of the European Railway Agency: see Art. 34 and Art. 37 of Reg. 881/2004, cited supra note 24.
69. See, e.g., Art. 29 of Regulation of the European Parliament and of the Council 1592/2002 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, O.J. 2002, L 240/1.
70. where the example of the European Medicines Agency is recalled. In fact, one could say that the Agency does not actually adopt any decision, but only a non-binding opinion addressed to the Commission, that is responsible for the adoption of the decision. Yet, this would definitely mean to under-evaluate the central importance of the scientific opinion of the European Medicines Agency, which represents the true decision of the administrative procedure, as argued by the CFI itself (see Artegodan GmbH and Others v. Commission, cited supra note 36). As argued in section 3, in any case, the lack in the establishing regulation of a provision allowing judicial review against a European agency's measure should not be over-emphasized: the fact that Art. 230(1) does not contain any explicit mention of agencies or other bodies among those subject to review does not exclude the possibility that an applicant may rely before the Court on the well known Les Verts principle, according to which in a Community based on the rule of law acts intended to produce legal effects have to be subject to judicial review.
71. In the Meroni judgments, cited supra note 28, as is well known, the ECJ traced a clear distinction between two different hypotheses: on the one side, the delegation of purely executive powers, the exercise of which can be subject to strict review in the light of objective criteria determined by the delegating authority; on the other side, the delegation of a discretionary power, which implies a wide margin of discretion and "may, according to the use which is made of it, make possible the execution of actual economic policy". While the first kind of delegation is compatible with the Treaty, the second is not legitimate under Community law. As highlighted by the various commentators, such restriction in the possibilities to delegate powers finds an explanation in the light of the principle of institutional balance, which Meroni recognized for the first time in the Community legal order. After a 50 years silence, the Court has confirmed this jurisprudence in at least two recent cases: Joined Cases C-154 & 155/04, The Queen, on the application of Alliance for Natural Health and Nutri-Link Ltd v. Secretary of State for Health and The Queen, on the application of National Association of Health Stores and Health Food Manufacturers Ltd v. Secretary of State for Health and National Assembly for Wales, [2005] ECR I-6451, para 90; Case C-301/02 P, Carmine Salvatore Tralli v. European Central Bank, [2005] ECR I-4071; see also Joined Cases T-369/94 & T-85/95, DIR International Film Srl, Nostradamus Enterprises Ltd, Union PN Srl, United International Pictures BV, United International Pictures AB, United International Pictures APS, United International Pictures A/S, United International Pictures EPE, United International Pictures OY and United International Pictures y Cía SRC v. Commission of the European Communities, [1998] ECR II-357, paras. 52-53.
72. Lenaerts, "Regulating the Regulatory Process: 'Delegation of Powers' in the European Community", 18 EL Rev. (1993), 23-49, at 42.
73. See also Yataganas, Delegation of Regulatory Authority in the European Union The relevance of the American Model of Independent Agencies, Harvard Jean Monnet Working Papers, No. 3/2001.
74. De Búrca, "The institutional development of the EU: A constitutional analysis" in Craig and De Búrca (Eds.), The Evolution of EU Law (Oxford, 1998), pp. 55-81, at p. 77.
75. The theoretical origins of such an approach go back to the late 1960s: in 1967, Emile Noël dealt with the issue concerning the establishment of bodies not envisaged by Art. 7 (ex Art. 4) EC by stating that "[l]es puovoirs conférés à la Communauté sont, aux termes du Traité, exercés par les seules Institutions. Autrement dit, le Traité ne prévoit aucune possibilité de "décentralisation" du pouvoir de décision, en entendant par ce terme attribuer à des organismes disposant d'une autonomie suffisante une compétence propre et notamment une compétence de décision. Seules d'ailleurs les Institutions, (et particulièrement le Conseil et la Commission) relèvent du contrôle jurisdictionnel de la Cour de justice. Les provisions d'ordre institutionnel prises depuis 1958 (en l'occurrence le Traité de fusion des Institutions) n'ont pas modifié cette situation, si elles ont discrètement esquissé certaines possibilités éventuelles pour l'avenir".
76. see Noël and Etienne, "Quelques considérations sur la déconcentration et la délégation du pouvoir de décision dans la Communauté économique européenne", 10 RMC (1967), 127-141, at 127
77. Lenaerts, op. cit. supra note 74, 48; all the authors who subsequently intervened have agreed on it.
78. The Meroni principle, in any case, has been considered to be relevant only with reference to the powers granted to European agencies, without influencing the choice of their legal basis. In this respect, both Art. 308 EC and the various Treaty provisions envisaging Community action in specific sectors have been considered to provide an adequate foundation for the delegation of powers envisaged by Meroni. The two legal bases refer to very different procedures: unanimity, in the case of Art. 308; and co-decision, with the European Parliament playing a much greater role, in many sectoral legal bases. Such orientation has not given place to interinstitutional controversies before the ECJ. The only case concerned the European Network and Information Security Agency, whose establishing regulation was challenged by the United Kingdom: see UK v. European Parliament and Council, cited supra note 33, in particular at paras. 44-45. Following this judgment, there seems to be no doubt that European institutions may establish a new body on the basis both of Art. 308 and of a sectoral Treaty provision, although in this second hypothesis it is necessary to demonstrate the existence of a close link between the body and the subject-matter.
79. See e.g. the observations of the first Director of the European Monitoring Centre for Drugs and Drug Addiction, who states that "[l]'Observatoire des drogues a été créé dans une situation de non-compétence communautaire et j'oserais dire, pour simplifier, que la création de l'Observatoire, c'est précisement, l'émergence d'une compétence communautaire, dans le domanie des drogues".
80. see Estievenart, "L'Observatoire européen des drogues et des toxicomanies" in Kreher (Ed.), The EC Agencies between Community Institutions and Constituents: Autonomy, Control and Accountability (European University Institute, RSC, 1998), pp. 69-71, at p. 70.
81. In general terms, Jacqué, "Cours général de droit communautaire" in Collected Courses of the Academy of European Law (Dordrecht, 1990), vol. I, pp. 237-359.
82. See Bieber, "The settlement of institutional conflicts on the basis of Article 4 of the EEC Treaty", 21 CML Rev. (1984), 505-523, who criticizes the "empty formula" of the institutional balance and suggests alternative solutions for the composition of the institutional controversies within the Community legal order.
83. see also Guillermin, "Le principe de l'équilibre institutionnel dans la jurisprudence de la Cour de Justice des Communautés européennes", (1992) Journal du droit international, 319-346
84. See, in particular, Case C-70/88, European Parliament v. Council, [1990] ECR I-2024, para 22 For a review of the traditional case law through which the Court has developed the "institutional position" of the European Parliament.
85. see, in particular, Bradley, "Maintaining the balance: the role of the Court of Justice in defining the institutional position of the European Parliament", 24 CML Rev. (1987), 41-64.
86. The High-Level Group on Financial Supervision in the EU, Report, 25 Feb. 2009, is available at ec.europa.eu/internal_market/finances/docs/de_larosiere_report_en.pdf.
87. See the Presidency Conclusions of the Brussels European Council, 18-19 June 2009, § 19 et seq
88. See the European Parliament's opinion on second reading, 22.4.09, A6-235/2009; and the Commission opinion on the European Parliament's amendments to the Council's Common Position, COM(2009)312, accepting "the compromise package as it is in line with the overall purpose and the general characteristics of the proposal"; the European Parliament's second-reading amendments were approved by the Council on 25.6.2009 (see PRES/2009/190). As is well known, the proposal concerning the energy sector was accompanied by a parallel proposal for the establishment of a European agency in the electronic communication field (COM(2007)699 final). That proposal, however, has been significantly modified by the Council and the European Parliament. The latter have excluded the possibility to set up a European Electronic Communications Authority, provided with legal personality, and have opted for a two-tier structure: a Body of European Regulators for Electronic Communications (BEREC), composed of a Board consisting of the national regulators; and an Office, composed of a Management Committee and of an Administrative Manager (see European Parliament's opinion on second reading, A6/2009/ 271; and COM(2009)422 final).
89. The reference to the unity and integrity of the executive function was first made in the Commission communication The Operating Framework for the European Regulatory Agencies, COM(2002)718 final, 1
90. While the central securities depositories will maintain exclusive legal relations with their customers, as well as custody and notary functions, T2S aims at providing a single technical har-monized venue where all EU book-entry securities can be exchanged for euros with standardized communications protocols. Thus, participants will continue to contract with one or more central securities depositories for settlement of securities eligible for settlement there; but each central securities depository is invited to agree to move its settlement in central bank money to T2S and to offer its clients borderless settlement of trading and collateral operations.
91. As the body governing the European System of Central Banks and as a supranational organization with a commitment to financial integration and no economic self-interest, the ECB has to guarantee that a Europe-wide settlement infrastructure in central bank money is built and managed for the benefit of market users
92. So far, the role of the market has been expressly recognized with the establishment of a T2S Advisory Group, made up of representatives of national central banks, central securities depositories and users
93. Commission Decision of 29 July 2002 establishing the European Regulators Group for Electronic Communications Networks and Services, in O.J. 2002, L 200/38.
94. United Kingdom v. European Parliament and Council, cited supra note 33, paras. 44-45.
95. See the general reconstruction of Battini, Amministrazioni senza Stato. Profili di diritto amministrativo internazionale (Giuffrè, 2003), p. 216.
96. In this sense, Cassese, "Oltre lo Stato. Verso una costituzione globale?" in Cassese, Oltre lo Stato (Laterza, 2006), pp. 6-37, at 10.
97. Kingsbury, Krisch and Stewart, "The Emergence of Global Administrative Law", 68 Law and Contemporary Problems (No. 3-4/2005), 15-61, at 20-27.
98. An example is provided by the French experience, in which the administration is expressly granted a constitutional anchorage to the executive power: see Art. 20 of the 1958 Constitution, providing that the government "dispose de l'administration".
99. The features of the European executive power are discussed by a wide legal literature that cannot be entirely recalled here. Among the less recent contributions, however, see Cassese, "La Costituzione europea", (1991) Quaderni costituzionali, 487-508.
100. Lenaerts, "Some reflec tions on the separation of powers in the European Communities", 28 CML Rev. (1991), 11-35.
101. Recently: Dann, "The political institutions" in von Bogdandy and Bast, op. cit. supra note 60.