From Rome to lisbon: "Executive federalism" in the (new) European Union

Common Market Law Review

Volumn 47, Issue 5, 2010, Pages 1385-1427

  Schütze, Robert ^a  

^a DURHAM UNIVERSITY   (United Kingdom)

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EID: 78049364464     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (190)

1. Dann, "European Parliament and Executive Federalism: Approaching a parliament in a semi-parliamentary democracy", 9 ELJ (2009), 549, at 552.
2. For a similar view, see also Schmidt-Aßmann, "Einleitung: Der Europäische Verwaltungsbund und die Rolle des Europäischen Verwaltungsrechts" in Schmidt-Aßmann and Schöndorf-Haubold (Eds.), Der Europäische Verwaltungsverbund (Mohr Siebeck, 2005), p. 1, at p. 2: "die Gemeinschaft selbst verfügt nur über wenige eigene Verwaltungskompetenzen".
3. The interest in the constitutional foundations of European administrative law has significantly increased in the last decade. For general overviews of EU administrative law, see Klepper, Vollzugskompetenzen der Europäischen Gemeinschaft aus abgeleitetem Recht: Zulässigkeit - Modalitäten - Rechtsfolgen (Nomos, 2001).
4. Craig, EU Administrative Law (OUP, 2006).
5. Schwarze, European Administrative Law (Sweet & Maxwell, 2006).
6. Chiti and Greco (Eds.), Trattato di diritto amministrativo Europeo (Giuffrè, 2007).
7. Auby and Dutheil de la Rochère (Eds.), Droit Administratif Européen (Bruylant, 2007).
8. von Danwitz, Europäisches Verwaltungsrecht (Springer, 2008).
9. Dutheil de la Rochère (Ed.), L'Execution du Droit de l'Union: Entre Mécanismes Communautaires et Droits Nationaux (Bruylant, 2009).
10. And Curtin, Executive Power in the European Union (OUP, 2009).
11. The notion of executive power typically embraces a "regulatory" and an "applicatory" dimension. The former is the power to "implement" abstract norms through secondary regulation; while the latter stands for the power to apply norms in individual situations. The following article analyses the Union's executive power sensu stricto. It investigates the powers of the Union to itself apply European norms to individual situations.
12. The concept of "executive federalism" is ambivalent and has been defined in - at least - three ways. A first definition simply identifies "executive federalism" with the decentralized execution of federal law by the Member States according to a constitutional regime established by the Union.
13. (Cf. Lenaerts and Van Nuffel, Constitutional Law of the European Union (Sweet & Maxwell, 2005), p. 607).
14. A second definition has extended this idea to the existence of important "political" choices that the implementation of federal legislation leaves to State governments.
15. (Cf. Frowein, "Integration and the Federal Experience in Germany and Switzerland" in Cappelletti, Seccombe and Weiler (Eds.), Integration Through Law - European and the American Federal Experience, Vol. I Book 1 (De Gruyter, 1986), p. 573, at pp. 586-587: "If one takes into account the important decisions which need to be taken at the level of execution, it becomes clear that this competence of the Länder is far from negligible. The notion of 'Vollzugsföderalismus' (federalism in the execution of laws, etc.) describes this important phenomenon.").
16. The problem with this definition is that it no longer corresponds to German constitutional reality (cf. Köttgen, "Der Einfluß des Bundes auf die deutsche Verwaltung und die Organisation der bundeseigenen Verwaltung", 11 Jahrbuch des öffentlichen Rechts (1962), 173, at 187: "[D]as steigende Gewicht der allgemeinen Verwatlungsvorschriften der Bundesregierung in Verbindung mit den verschiedenen Varianten eines Weisungsrechts [hat] eine "politische Enteignung" der Länder zur Folge gehabt.").
17. And should, in any event, be better identified with "cooperative federalism". A third definition of "executive federalism" associates the decentralized application of federal law with the composition of the second chamber of the federal legislature as well as a consensual decision-making mode. The following article chooses the first (restrictive) definition.
18. The article will not deal with the judicial - federal - relations between a Union and its Member States. For a comparison between American and European judicial federalism, see Halberstam, "Gerichtliche Zusammenarbeit im föderalen System der USA: Ein rechtsvergleichender Beitrag zur Diskussion über die Gerichtsreform in der Europäischen Union", 66 Zeitschrift für ausländisches und internationales Privatrecht (2002), 216.
19. Art. I, Section 8 - Clause 18 U.S. Constitution.
20. "The executive Power shall be vested in a President of the United States of America" (Art. II, Section 1, Clause 1 U.S. Constitution). According to Art. II, Section 3, Clause 4 the President must "take Care that the Laws be faithfully executed".
21. This has been clarified in Supreme Court jurisprudence, cf. South Dakota v. Dole, 483 U.S. 203 (1987) at 206: "Congress may attach conditions on the receipt of federal funds". The Union can also "encourage" the States to regulate an activity themselves out of fear that federal standards will otherwise pre-empt State legislation (cf. Hodel v. Virginia Surface Mining & Recl. Assn., 452 U.S. 264 (1981)).
22. New York v. United States et al., 505 U.S. 144 (1993).
23. This claim is not uncontested (cf. Caminker, "State Sovereignty and subordinancy: May Congress commandeer State officers to implement federal law?", 95 Columbia Law Review (1995), 1001, at 1059: "The Court's formalistic claim in New York that State sovereignty entails legislative and executive freedom from federal coercion is thus fundamentally misconceived").
24. For a softer claim arguing that an original understanding of the U.S. Constitution supports the prohibition to commandeer the State legislatures, but not State executives, see Prakash, "Field office federalism", (1993) Virginia Law Review, 1957, at 1961: "The Founding Generation, then, distinguished commandeering State legislatures from commandeering the magistry (executives and judicial officers).".
25. See Art. VI, Clause 2 ("Supremacy Clause").
26. This formal understanding of the States as institutionally autonomous entities is "quite new" : "Until quite recently, the Supreme Court attempted to secure its view of the proper allocation of power between the two governmental systems through efforts to circumscribe the substantive content of enumerated federal power.".
27. Printz, Sheriff/Coroner, Ravalli County, Montana v. United States, 521 U.S. 898 (1997).
28. This institutional understanding of "dual sovereignty" contrasts with a substantive reading of "dual sovereignty". The latter has become known as dual federalism and is based on the existence of two mutually exclusive spheres of legislative competences.
29. (Cf. Schütze, From Dual to Cooperative Federalism: The Changing Structure of European Law (OUP, 2009), esp. Ch. 2).
30. And Dubey, "Administration indirecte et féderalisme d'exécution en Europe", 38 CDE (2003), 87.
31. Cf. Art. 86 German Constitution. Fields of direct federal execution are enumerated in the Constitution. Art. 87 GC mentions, inter alia, the "foreign service", the "federal financial administration", and the "administration of federal waterways and shipping".
32. BVerfGE 55, 274 (Berufsausbildungsabgabe), 317 (translation - RS): "The States have, to the extent that the Constitution does not state or permit otherwise, the comprehensive executive competence. It follows that they are not only entitled but also obliged to implement federal law as their own executive responsibility.".
33. This special regime of decentralized execution applies whenever the Constitution so requires; or, where the Constitution entitles the federation to establish it on the basis of a federal law. For the former scenario, see Art. 90(2) GC (emphasis added): "The States, or such selfgoverning corporate bodies as are competent under State law, shall administer the federal motor-ways and other federal highways used by long-distance traffic on federal commission.".
34. Art. 84(1) German Constitution.
35. "With a view to the execution of federal laws, the Federal Government may be authorized by a federal law requiring the consent of the Bundesrat to issue instructions in particular cases. They shall be addressed to the highest Land authorities unless the Federal Government considers the matter urgent." The federal instruction is here an internal administrative command that has no external effect on third parties. While the instruction must - as a matter of principle - be addressed to the highest State (administrative) organs; in urgent situations, the federal command may even address the lower administrative echelons. The idea that the federal command should - in principle - be directed to the highest State administrative organs is designed to protect, to some extent, the administrative autonomy of the States.
36. For examples of individual commands to State administrations, see Blümel, "Verwalltungszuständigkeit" in Isensee and Kirchhof (Eds.), Handbuch des Staatsrechts der Bundesrepublik Deutschland - Band IV (C.F. Müller, 1990), p. 876.
37. Art. 85(1) German Constitution.
38. "The Land authorities shall be subject to instructions from the competent highest federal authorities. Such instructions shall be addressed to the highest Land authorities unless the Federal Government considers the matter urgent. Implementation of the instructions shall be ensured by the highest Land authorities.".
39. BVerfGE 11, 6 (Dampfkessel), 17 (emphasis added).
40. This was not (yet) the case under the 1871 Imperial Constitution. The Union was not allowed to command any organ or officer of the State administrations directly.
41. Cf. Hänel, Deutsches Staatsrecht (Duncker & Humblot, 1892), p. 208 (translation - RS): "The States face the Empire as closed units.".
42. "Insofar, there exists not only a real hierarchical relation (superordination and subordination) between the federal and State authorities; the latter are in fact integrated into a unitary administrative structure.".
43. Orthodox German constitutionalism insists on the "separation of administrative spheres" between the Union and the States and thus generally affirms a "prohibition of mixed administration". The German Constitutional Court has long tried to overcome this theoretical orthodoxy in BVerfGE 63, 1 (Schornsteinfegerversorgung), at 39-40 (emphasis added, translation - RS): "There is no general constitutional principle according to which executive competences must be exclusively exercised by the Union or the States unless the Constitution expressly provides otherwise. Such a general principle cannot be derived from the general structure of the Constitution." However, more recent jurisprudence has revived this idea, see BVerfGE 108, 169 (Telekom munikationsgesetz), 182.
44. The State execution of federal law "on federal commission" has been characterized as "between" State and federal administration, cf. Stern, Das Staatsrecht der Bundesrepublik Deutschland - Band 2 (Beck, 1980), p. 808: "ein 'Mittelding' zwischen landeseigener und bundeseigener Verwaltung.".
45. As well as: Trute, "Artikel 85" in von Mangoldt, Klein and Starck (Eds.), Kommentar zum Grundgesetz - Band 3 (Vahlen, 2005), p. 72: "Zwischenform zwischen Landeseigenverwaltung und Bundesverwaltung".
46. BVerfGE 11, 6 (Dampfkessel), 18 (translation - RS): "The executive sovereignty of a State is principally confined to its territory. However, it is an essential characteristic of the State execution of federal laws that the state administrative act that implements federal law will enjoy validity in the entire federal territory.".
47. Chiti, "Forms of European administrative action", 68 Law & Contemporary Problems (2004-5), 37, at 38.
48. Art. 14 ECSC stated: "(1) In order to carry out the tasks assigned to it the High Authority shall, in accordance with the provisions in the Treaty, take decisions, make recommendations or deliver opinions. (2) Decisions shall be binding in their entirety. (3) Recommendations shall be binding as to the aims to be pursued but shall leave the choice of the appropriate methods for achieving these aims to those to whom the recommendations are addressed.".
49. Art. 15(2) ECSC distinguished between individual and general decisions.
50. Grabitz, "The sources of Community law: Acts of the Community institutions" in EC Commission (Ed.), Thirty Years of Community Law (EC Commission, 1981), p. 81, at p. 88: "As a rule, the Treaties establishing the European Communities leave the Community institutions with no choice as regards the legal form which their acts take; on the contrary, for each enabling rule they prescribe the form in which the required provisions must appear." The European Community thus did not follow the ECSC "principle of minimum intervention".
51. For a discussion of this principle, see Schütze, "The morphology of legislative power in the European Community: Legal instruments and the federal division of powers", 25 YEL (2006), 91, at 145.
52. The 1957 Rome Treaty only expressly mentions the power to adopt "decisions" addressed to individuals in three areas: agriculture (Art. 43 EEC), transport (Arts. 79 and 80 EEC) and competition (Arts. 85 et seq. EEC). The power to adopt decisions under the common commercial policy was implicit in Art. 113(2) EEC.
53. This followed from its place within the Treaty, which dealt with inter-institutional relationships (cf. Möllers, "Durchführung des Gemeinschaftsrechts: Vertragliche Dogmatik und theoretische Implikationen", (2002) EuR, 483, at 498).
54. It is confirmed by Case C-257/01, Commission v. Council, [2005] ECR I-345, para 66: "The provision does not concern the division of powers between the Community and the Member States.".
55. For a different view, see Biaggini, Theorie und Praxis des Verwaltungsrechts im Bundesstaat (Helbing & Lichtenhahn, 1996), p. 77.
56. Arguing in favour of a (limited) autonomous executive competence of the Commission under Arts. 202 and 211 EC. However, this view is hard to reconcile with Case C-303/90, France v. Commission, [1991] ECR I-5315, para 30.
57. Case C-359/92, Germany v. Council, [1994] ECR I-3681.
58. Directive 92/59/EEC on general product safety (O.J. 1992, L 228/24). The Directive is now replaced by: Directive 2001/95/EC on general product safety (O.J. 2002, L 11/4).
59. Germany's principal argument in this respect is quoted in para 17: "The German Government objects to that argument essentially on the ground that the sole aim of Article [94] et seq. of the [EC] Treaty, and of Article [95 (1) EC] in particular, is the approximation of laws and that those articles do not therefore confer power to apply the law to individual cases in the place of the national authorities, as permitted by Article 9 of the Directive. The German Government further observes that the powers conferred upon the Commission by Article 9 thus exceed those which, in a federal State such as the Federal Republic of Germany, are enjoyed by the Bund in relation to the Länder, since, under the German Basic Law, the implementation of federal laws rests with the Länder. Lastly, the German Government submits that Article 9 cannot be regarded as constituting an implementing power, within the meaning of the third indent of Article [202] of the [EC] Treaty, since that article does not embody a substantive power of its own, but merely authorizes the Council to confer implementing powers on the Commission where a legal base exists in primary Community law for the act to be implemented and its implementing measures.".
60. Art. 9 provided as follows: "If the Commission becomes aware, through notification given by the Member States or through information provided by them, in particular under Article 7 or Article 8, of the existence of a serious and immediate risk from a product to the health and safety of consumers in various Member States and if: (a) one or more Member States have adopted measures entailing restrictions on the marketing of the product or requiring its withdrawal from the market, such as those provided for in Article 6(1)(d) to (h); (b) Member States differ on the adoption of measures to deal with the risk in question; (c) the risk cannot be dealt with, in view of the nature of the safety issue posed by the product and in a manner compatible with the urgency of the case, under the other procedures laid down by the specific Community legislation applicable to the product or category of products concerned; and (d) the risk can be eliminated effectively only by adopting appropriate measures applicable at Community level, in order to ensure the protection of the health and safety of consumers and the proper functioning of the common market, the Commission, after consulting the Member States and at the request of at least one of them, may adopt a decision, in accordance with the procedure laid down in Article 11, requiring Member States to take temporary measures from among those listed in Article 6(1)(d) to (h).".
61. The Court also held Art. 9 of the Directive to be a "proportionate" executive power of the Community : "Those powers are not excessive in relation to the objectives pursued. Contrary to the assertion made by the German Government, the infringement procedure laid down in Article [226] of the [EC] Treaty does not permit the results set out in Article 9 of the directive to be achieved.".
62. Case 66/04, United Kingdom v. Parliament and Council, [2005] ECR I-10553. In relation to use of Art. 95 EC to create a Community body, see Case C-217/04, United Kingdom v. Parliament and Council (ENISA), [2006] ECR I-3771, especially para 44: "The legislature may deem it necessary to provide for the establishment of a Community body responsible for contributing to the implementation of a process of harmonisation in situations where, in order to facilitate the uniform implementation and application of acts based on that provision, the adoption of non-binding supporting and framework measures seems appropriate.".
63. According to the authorization procedure set out in Regulation 2065/2003 (O.J. 2003, L 309/1), an individual applicant would need to send his application to the competent national authority, which would send the application to the European Food Safety Authority. The EFSA would then forward its opinion on the application to the Commission, the Member States and the applicant. The Commission would take the final decision, in accordance with the procedure set out in Art. 19(2) of the Regulation.
64. Art. 9(1)(b) of the Regulation; and see also Art. 11(1) of the Regulation.
65. On the constitutional availability of Art. 308 EC in this situation, see Schütze, "Organized change towards an 'ever closer union': Article 308 EC and the limits to the Community's legislative competence", 22 YEL (2003), 79, at 95: "The two dimensions of power: Regulatory instruments and Article 308 EC".
66. "Beim Einsatz der Ermächtigung aus Art. 308 EGV muß der Gemeinschaftsgesetzgeber stets darauf achten, daß er die Grenze zur Vertragsveränderung nicht überschreitet. Art. 308 kann nur für solche Maßnahmen in Anspruch genommen werden, die sich in die vorgefundenen Grundstruktur des EG-Vertrages einfügen. Deshalb dürfen auf Art. 308 EGV keine Kompetenzzuweisungen gestützt werden, durch die die administrative Aufgabenverteilung zwischen Gemeinschaft und Mitgliedstaaten grundlegend verändert würde. Insbesondere scheidet die Einführung einer allgemeinen Vollzugsbefugnis der Gemeinschaft aus.".
67. For the opposite view, Nettesheim, "Die Kompetenzordnung im Vertrag über eine Verfassung für Europa", 39 EuR (2004), 511, at 522: "Eine wirkliche Lücke weist der Vertrag über eine Verfassung für Europa insofern auf, als er sich der Frage der Verteilung der Verwaltungszuständigkeiten nicht annimmt." However, the Constitutional Treaty specifically dealt with the executive power of the Union in Art. I-37 entitled "Implementing Acts". The provision was equivalent to Art. 291 TFEU.
68. Art. 4(3) TEU (Lisbon).
69. Some have even claimed that the Commission enjoys an autonomous power under Art. 291(2) TFEU, cf. Jacque, "Le Traité de Lisbonne: Une vue cavalière", 44 RTDE (2008), 439, at 480: "le pouvoir d'exécution appartient à la Commission qui ne dispose plus, comme dans la situation actuelle, d'un pouvoir délégué, mais d'un pouvoir propre".
70. For example: Art. 207 TFEU only permits the Union to exercise its Common Commercial Policy competence by means of two instruments: regulations and international agreements. All internal "measures defining the framework for implementing the common commercial policy" must be adopted "by means of regulations" and "in accordance with the ordinary legislative procedure" (para 2). Art. 207 TFEU will not, as such, entitle the Union to adopt individual decisions. And this morphological limitation is to stay even if the Union legislator decides to delegate implementation power to the Commission, since Art. 290 TFEU specifies that the Commission can only adopt "non-legislative acts of general application" (para 1).
71. We can identify an executive lex specialis in the context of competition law in Art. 105 TFEU. It provides that "the Commission shall ensure the application of the principles laid down in Articles 101 and 102". It shall thereby "investigate cases of suspected infringement of these principles" (para 1). Para 3 offers a specific legal base for implementing measures of a regulatory nature: "The Commission may adopt regulations relating to the categories of agreement in respect of which the Council has adopted a regulation or a directive pursuant to Article 103(2) (b)." After the Lisbon Treaty, the basic Council Regulation in this context continues to be Regulation 19/65 on the basis of which the Commission has recently enacted Commission Regulation 330/2010 on the application of Art. 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices (O.J. 2010, L 102/1).
72. On the "subsidiary" character of Art. 308 EC in the Community legal order.
73. Art. 291(3) TFEU provides that these control mechanisms have to be agreed by means of the "ordinary" legislative procedure. This makes it unlikely that the Union legislator will allow for a national veto power.
74. European Commission, Proposal for a Regulation laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers, COM(2010)83 final.
75. The advisory procedure, by contrast, would continue to exist and only oblige the Commission to "take ... the utmost account of the conclusions drawn from the discussions within the committee and of the opinion delivered".
76. For a taste of the Council's position on the issue, see Communication from the Commission to the European Parliament pursuant to Art. 294(6) TFEU, COM(2010)67 final, 5-6.
77. "Mais, contrairement à une idée assez largement répandue, la dissociation fréquente entre compétence exécutive et compétence législative ne résulte pas directement du caractère fonctionnel de ce principe [d'attribution]. En réalité, lorsque son attribution à l'un ou l'autre des niveaux de pouvoir ne ressort pas expressément d'une prescription des traités, la compétence d'exécuter le droit communautaire adopté en conformité avec les traités appartient aussi, sur le principe, à la collectivité titulaire de la compétence législative." However, the author arrives at this conclusion by means of a different and - in my view - mistaken path. For it is claimed that Arts. 202 and 211 EC and Art. 6(4) TEU (Maastricht) provide the Community with general executive competences.
78. Are there exclusive executive competences of the EU? Textually, Art. 2 TFEU applies the category of exclusive competence to areas in which the Union "may legislate and adopt legally binding acts" (Art. 2(1) TFEU - emphasis added). The possibility of executive measures falling within this category is recognized. Has the Treaty tied the categorization of all "non-legislative" competences to the classification of the Union's "legislative" competences? Let us look at this question in the context of the Common Commercial Policy. This is an area of exclusive Union power (cf. Art. 3(e) TFEU). Will this mean that the Member State authorities can only enforce common commercial policy law on the basis of an authorization by the Union? This is not the case; and there are constitutional reasons for this state of affairs. Indeed, Art. 207 TFEU only permits the Union to exercise its CCP competence by means of general measures. While we can identify an exclusive competence of the Commission to implement the CCP through acts of general application under Art. 290 TFEU, the provision cannot be the source of an exclusive competence to adopt individual decisions. The executive competence to apply Union law to specific cases will thus have to be founded in a general competence of the Union to execute its own law, that is: either Art. 291 or Art. 352 TFEU. But this provision only grants a shared power to implement European law to the Union. Moreover, Art. 2(1) TFEU appears to recognize autonomous implementing powers of the Member States within the exclusive competences of the Union, since it seems to drop the requirement of a Union empowerment for national implementing actions. This theoretical result - exclusive legislative competence flanked by a shared executive competence - reflects past constitutional practice, cf. Regulation 2913/92 establishing the Community Customs Code (O.J. 1992, L 302/1).
79. Joined Cases 89 & 91/86, L' Étoile Commerciale and Comptoir National Technique Agricole (CNTA) v. Commission, [1987] ECR 3005, para 11. See also Case C-476/93 P, Nutral v. Commission, [1995] ECR 4125, para 14: "according to the institutional system of the Community and the rules governing relations between the Community and the Member States, it is for the latter, in the absence of any contrary provision of Community law, to ensure that Community regulations, particularly those concerning the common agricultural policy, are implemented within their territory.".
80. On the two principles in the context the Union's legislative (regulatory) sphere, see Schütze, "Supremacy without pre-emption? The very slowly emergent doctrine of Community pre-emption", 43 CML Rev. (2006), 1023.
81. The (European) obligation to - in principle - recognize the decisions of "sister" State administrations may follow directly from the Treaty's free movement provisions, such as Art. 35 TFEU. In Case C-390/99, Canal Satélite Digital SL and Administracíon General del Estado, [2002] ECR 507, paras. 35-36, the Court thus held: "First, it is settled case law that a system of prior administrative authorization cannot legitimize discretionary conduct on the part of the national authorities which is liable to negate the effectiveness of provisions of Community law, particularly those relating to the fundamental freedoms at issue in the main proceedings". "Therefore, if a prior administrative authorization scheme is to be justified even though it derogates from such fundamental freedoms, it must, in any event, be based on objective, non-discriminatory criteria which are known in advance to the undertakings concerned, in such a way as to circumscribe the exercise of the national authorities' discretion, so that it is not used arbitrarily". "Second, a measure introduced by a Member State cannot be regarded as necessary to achieve the aim pursued if it essentially duplicates controls which have already been carried out in the context of other procedures, either in the same State or in another Member State." Alternatively, European obligations to recognize administrative decisions of another Member State may be established in secondary law. For an illustration of the mutual recognition of State administrative action established in European legislation, see Directive 2001/83 on the Community code relating to medicinal products for human use (O.J. 2001, L 311/67). Following Art. 111(1) of the Regulation, the competent authority of the Member State concerned shall ensure, by means of repeated inspections that the legal requirements governing medicinal products are complied with. The conclusions reached by the competent national authority shall thereby "be valid throughout the Community" (Art. 122(3) of the Regulation). However, in exceptional cases relating to public health, a Member State may demand a second independent inspection.
82. Regulation No. 17: First Regulation implementing Arts. 85 and 86 of the [EEC] Treaty (O.J. English Special edition: Series I Chapter 1959-1 962, 87).
83. However, national competition authorities were entitled to apply Art. 101(1) subject to Art. 9(3) of the Regulation: "As long as the Commission has not initiated any procedure under Articles 2, 3 or 6, the authorities of the Member States shall remain competent to apply Article [101 (1)] and Article [102] in accordance with Article [104] of the Treaty[.]".
84. Ehlermann, "The modernization of EC antitrust policy: A legal and cultural revolution", 37 CML Rev. (2000), 537, at 540.
85. Explanations for this high degree of executive uniformity are given in the Commission's White Paper on Modernization of the Rules Implementing Arts. 85 and 86 of the EC Treaty (O.J. 1999, C 132/1), para 24: "The authorization system provided for in Regulation No 17 met the three main requirements identified at the time by the Commission (provision of information to competition authorities, uniform application of the competition rules in the Community and legal certainty for undertakings). It allowed a coherent corpus of rules to be developed and applied uniformly in the Community, thus contributing significantly to the completion of the internal market.".
86. White Paper, para 46: "Application of the rules will have to be decentralized more to the Member States' competition authorities and to the national courts. The competition authorities are well placed to take effective action in certain types of case: they are normally well acquainted with local markets and national operators, some of them have an infrastructure covering the whole of the relevant country and can carry out investigations rapidly, and most of them have the human and legal resources needed to take action against infringements whose centre of gravity is in their territory. Lastly, they are closer to complainants, who will more readily turn to a national authority than to the Commission.".
87. White Paper, para 91. This point is further explained in paras. 96-97.
88. Regulation 1/2003 on the implementation of the rules on competition laid down in Arts. 81 and 82 of the [EC] Treaty (O.J. 2003, L 1/1).
89. Reg. 1/2003 claims to establish a system of "parallel competences". See also Commission Notice on Cooperation within the Network of Competition Authorities (O.J. 2004, C 101/43), esp. para 5: 'The Council Regulation is based on a system of parallel competences". The problem with this categorization is that it cannot account for the ability of the Commission to "pre-empt" national competition authorities. The executive competence is therefore of a shared (or even better: concurrent) nature.
90. Art. 5 of Reg. 1/2003 states: "The competition authorities of the Member States shall have the power to apply Articles [101 and 102] of the [FEU] Treaty in individual cases. For this purpose, acting on their own initiative or on a complaint, they may take the following decisions". It is important to remember that this is not an "enabling" provision or a delegation of European executive power to national authorities. Regulation 1/2003 simply clarifies that the national competition authorities will be able to enforce EU law in their own right.
91. They are also subject to Art. 16(2) of Reg. 1/2003. The Article states: "When competition authorities of the Member States rule on agreements, decisions or practices under Article [101] or Article [102] of the [FEU] Treaty which are already the subject of a Commission decision, they cannot take decisions which would run counter to the decision adopted by the Commission.".
92. Art. 11 of Reg. 1/2003 lays down the rules of cooperation between the Commission and the national competition authorities. According to its para (3), the national authorities must inform the Commission of their decision to commence a formal investigation. Para 4 even obliges them "[n]o later than 30 days before the adoption of a decision" to forward the draft decision to the Commission. However, there is no obligation to consult the Commission on the case (cf. Art. 11(5): "The competition authorities of the Member States may consult the Commission on any case involving the application of Community law." Emphasis added). More importantly, the Commission will not have the right to provide a binding interpretation on the application of Arts. 101 and 102 to the national competition authorities or to veto their decision.
93. (Cf. Bardong, "Article 11 of Regulation 1/2003" in Hirsch et al. (Eds.), Competition Law: European Community Practice and Procedure (Sweet & Maxwell, 2008), at p. 1658).
94. The administrative cooperation between the Commission and the national authorities thus contrasts with the constitutional principles for the judicial cooperation between the ECJ and the national courts under Art. 267 TFEU. However, national administrative authorities will also be subject to special duties vis-à-vis the European judiciary, cf. Case C-453/00, Kühne & Haitz, [2004] ECR 837, para 27: "In such circumstances, the administrative body concerned is, in accordance with the principle of cooperation arising from Article 10 EC, under an obligation to review that decision in order to take account of the interpretation of the relevant provision of Community law given in the mean-time by the Court. The administrative body will have to determine on the basis of the outcome of that review to what extent it is under an obligation to reopen, without adversely affecting the interests of third parties, the decision in question.".
95. There is no "appeal" procedure to the European Commission from a national competition authority. If an undertaking wishes to challenge an administrative decision by a national competition authority, it will need to do so in the national courts. From there, a preliminary reference procedure may bring the issue before the ECJ.
96. On possible forms of mixed administration, see section 4.3. infra.
97. After the Lisbon amendments, Art. 4(3) TEU now states: "The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.".
98. Case 39/70, Norddeutsches Vieh-und Fleischkontor GmbH v. Hauptzollamt Hamburg-St. Annen, [1971] ECR 49, para 4.
99. Joined Cases 51-54/71, International Fruit Company NV and others v. Produktschap voor groenten en fruit, [1971] ECR 1107, para 3.
100. Joined Cases 205-215/82, Deutsche Milchkontor GmbH and others v. Federal Republic of Germany, [1983] ECR 2633, para 17.
101. Discussion of these two constitutional principles is typically confined to the context of judicial remedies. However, they equally apply - mutatis mutandis - to administrative remedies. The Court thus confirmed the principles of effectiveness and equivalence in Deutsche Milchkantor as well as Case C-201/02, The Queen on the application of Delena Wells v. Secretary of State for Transport, [2004] ECR I-723: "[U]nder Article 10 EC the competent authorities are obliged to take, within the sphere of their competence, all general or particular measures for remedying the failure to carry out an assessment of the environmental effects of a project as provided for in Article 2(1) of Directive 85/337. The detailed procedural rules applicable in that context are a matter for the domestic legal order of each Member State, under the principle of procedural autonomy of the Member States, provided that they are not less favour-able than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness).".
102. "if the disparities in the legislation of Member States proved to be such as to compromise the equal treatment of producers and traders in different Member States or distort or impair the functioning of the Common Market, it would be for the competent Community institutions to adopt the provisions needed to remedy such disparities".
103. Art. 100(1) EEC (emphasis added).
104. For a good illustration of this, see Regulation 510/2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (O.J. 2006, L 93/12). According to its Art. 5(5) "the Member State shall initiate a national objection procedure ensuring adequate publication of the application and providing for a reasonable period within which any natural or legal person having a legitimate interest and established or resident on its territory may lodge an objection to the application". Moreover: "The Member State shall ensure that its favourable decision is made public and that any natural or legal person having a legitimate interest has means of appeal." See also Directive 2002/21 on a common regulatory framework for electronic communications networks and services (Framework Directive) (O.J. 2002, L 108/33), esp. Arts. 3(2) and 4(1).
105. The competence is mentioned as a complementary competence in Art. 6(g) TFEU.
106. However, this protection will not be absolute: see Art. 197(3) TFEU: "This Article shall be without prejudice to the obligations of the Member States to implement Union law or to the prerogatives and duties of the Commission. It shall also be without prejudice to other provisions of the Treaties providing for administrative cooperation among the Member States and between them and the Union.".
107. To add a footnote to this conclusion: Article 114 TFEU may - after Case C-376/98, Germany v. Parliament and Council (Tobacco Advertising), [2000] ECR I-8419 - still provide a legal basis for the harmonization of national administrative provisions despite the existence of a "saving clause" under Art. 197(2) TFEU. (On the status of these "saving clauses" and their relation to Art. 114 TFEU, However, it may be doubted whether Art. 114 could ever be used to adopt a comprehensive "European Administrative Code". It may thus be far too early to proclaim that it is "time to re-examine the considerations for establishing an administrative code for administrative procedures in the sphere of EU law".
108. (Hofmann and Türk, "Legal challenges in EU administrative law by the move to an integrated administration" in Hofmann and Türk (Eds.), Legal Challenges in EU Administrative Law (Elgar, 2009), p. 379).
109. For a similar conclusion, albeit in the context of Art. III-285 of the Constitutional Treaty, see Schwarze, EU Administrative Law (Sweet & Maxwell, 2006), ccxix: "a long way from being a possible future legal base for the creation of a comprehensive European administrative law or even just serving as a tool for the development of a general administrative procedural code".
110. The terminological dichotomy between the application of European law "pro communitate" and the application "pro statu" was introduced by Winter, "Kompetenzverteilung und Legitimation in der europäischen Mehrebenenverwaltung", 40 EuR (2005), 255, at 256.
111. The formulation "actio pro unione" has been developed by Bast, "Transnationale Verwaltung des Europäischen Migrationsraums", 46 Der Staat (2007), 1.
112. This idea has been named "reference model" and is extensively discussed by Sydow, Verwaltungskooperation in der Europäischen Union (Mohr Siebeck, 2004).
113. The term has been coined by Schmidt-Aßmann, "Verwaltungskooperation und Verwaltungskooperationsrecht in der Europäischen Verwaltung," 31 EuR (1996), 270, at 301, distinguishing between "true" and "mediated" transnationality.
114. Regulation 2913/92 establishing the Community Customs Code (O.J. 1992, L 302/1).
115. For example: Regulation 116/2009 on the export of cultural goods (Codified version) (O.J. 2009, L 39/1) makes the export of cultural goods outside the customs territory of the Union subject to an export licence and decrees that this licence shall be issued "by a competent national authority" defined in Art. 2(2). Art. 2(3) then "Europeanizes" this national decision: "The export licence shall be valid throughout the Community." See also Regulation 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items (O.J. 2009, L 134/1), whose Art. 9(2) states: "For all other exports for which an authorization is required under this Regulation, such authorization shall be granted by the competent authorities of the Member State where the exporter is established. Subject to the restrictions specified in paragraph 4, this authorization may be an individual, global or general authorization. All the authorizations shall be valid throughout the Community.".
116. Hallstein, Der unvollendete Bundesstaat. Europäische Erfahrungen und Erkenntnisse (Econ, 1994), p. 59 (translation - RS).
117. Commission, Communication on the Principle of Subsidiarity, EC Bulletin 10-1992, 116 at 117: "[T]here should be careful examination of the possibilities of decentralizing the management of Community action ... This corresponds to the need to maintain such actions, as close to the citizen as possible.".
118. Protocol on the Application of the Principles of Subsidiarity and Proportionality (1997), point 7.
119. Declaration relating to the Protocol on the Application of the Principles of Subsidiarity and Proportionality. The Laeken Declaration was less committed and simply asked: "should not the day-to-day administration and implementation of the Union's policy be left more emphatically to the Member States and, where their constitutions so provide, to the regions?".
120. Treaty on European Union (Lisbon), Recital 13.
121. Ehlermann, "Quelques réflexions sur la communication de la Commission relative au principe de subsidiarité", (1992) Revue du marché unique européen, 215, at 218: "le test de la subsidiarité ne se limite pas à l'action législative. Il s'applique également au niveau de l'action administrative, c'est-a-dire de l'execution de la réglementation communautaire et du controle de l'execution".
122. Directive 2001/83 on the Community Code relating to medicinal products for human use (O.J. 2001, L 311/67).
123. In addition to the decentralized authorization procedure established by Directive 2001/83, this area also has a centralized authorization procedure, cf. Regulation 726/2004 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Medicine Agency (O.J. 2004, L 136/1). This form of direct European administration applies for certain products defined in Art. 3 of the Regulation.
124. Cf. Arts. 3 and 8 of Directive 2001/83.
125. The opinion of the agency is prepared by the "Committee for Medicinal Products for Human Use".
126. We find a similar mechanism in Regulation 258/97 concerning novel foods and novel food ingredients (O.J. 1997, L 43/1). According to its Art. 4, the application will need to be submitted to "the Member State in which the product is to be placed in the market for the first time". This Member State will then be asked under Art. 6(3) to draft an "initial assessment report". The report is subsequently forwarded to the Commission and the Member States, which "may make comments or present a reasoned objection to the marketing of the food or food ingredient concerned"). Where there are no objections, the Member State can issue the authorization). By contrast, where an objection is raised and an additional assessment is required, it is the Commission (subject to the relevant comitology procedure) that will decide).
127. On the application of the principle of subsidiarity generally in the context of EC competition law, see Idot, "L'application du principe de la subsidiarité dans le droit de la concurrence" in Ress and Stein (Eds.), Vorträge, Reden und Berichte aus dem Europa-Institut - Secktion Rechtswissenschaft - Nr. 300 (Europa-Institut, 1993).
128. Editorial: Subsidiarity in EC competition law enforcement, 32 CML Rev. (1995), 1.
129. As well as: Wesseling, "Subsidiarity in Community antitrust law: Setting the right agenda", 22 EL Rev. (1997), 35.
130. "In exceptional cases where the public interest of the [Union] so requires, it may also be expedient for the Commission to adopt a decision of a declaratory nature finding that the prohibition in Article [101] or Article [102] of the [FEU] Treaty does not apply, with a view to clarifying the law and ensuring its consistent application throughout the [Union], in particular with regard to new types of agreements or practices that have not been settled in the existing case law and administrative practice.".
131. Commission Notice on Cooperation within the Network of Competition Authorities (O.J. 2004, C 101/43). The Notice is a "soft law" measure that, as such, only binds the Commission. However, according to its para 72, Member States' competition authorities may sign a statement that they will abide by the principles set out in the Notice; and the Notice has indeed been signed by all national competition authorities.
132. On the two tests within the legislative principle of subsidiarity.
133. "Within the network of competition authorities the Commission, as the guardian of the Treaty, has the ultimate but not the sole responsibility for developing policy and safeguarding consistency when it comes to the application of EC competition law.".
134. On the subsidiarity analysis as regards the choice of legal instrument.
135. Case T-339/04, France Télécom SA v. Commission, [2007] ECR II-521. The case is extensively discussed by Rizzuto, "Parallel Competence and the Power of the EC Commission under Regulation 1/2003 according to the Court of First Instance", (2008) ECLR, 286.
136. "As was the case under Art. 9(3), Regulation 17/62, Art. 11(6) is not triggered when the Commission merely initiates work on a case, or when it takes investigatory measures. It is clear that the Commission can exercise its powers of investigation before it formally opens proceedings.".
137. For an elaboration of this point in the legislative sphere.
138. Art. 291(2) TFEU.
139. Craig, "The Role of the European Parliament under the Lisbon Treaty" in Griller and Ziller (Eds.), The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? (Springer, 2008), p. 109.
140. "It is therefore difficult to see how the need for 'uniform conditions for implementing legally binding acts' justifying conferral of implementing powers on the Commission would be of relevance in relation to such legislative acts themselves, given that they are directly applicable. ... Where a legislative act is a regulation there is therefore no need for recourse to Article 291 in relation to implementation of that legislative act itself.".
141. "It would therefore be odd, to say the least, to enact a directive, but to empower the Commission to impose uniform conditions for implementation. The reality is that if the Commission's power to impose uniform conditions for implementation were to be used in relation to directives it would radically alter their nature.".
142. On the "morphological" limits of the instruments listed in Art. 288 TFEU generally.
143. Art. 288(2) TFEU.
144. On the distinction between the concepts of "direct applicability" and "direct effect" in the context of regulations.
145. See only: Case 403/98, Azienda Agricola Monte Arcosa Srl, [2001] ECR I-103, paras. 26 and 28.
146. For a recent overview of non-directly effective provisions in regulations, see Král, "National normative implementation of EC Regulations: An exceptional or rather common matter?", 33 EL Rev. (2008), 243.
147. A directive may also sometimes reserve a future decision to the Union. For example, Art. 2 of Directive 85/73 on the financing of health inspections and controls of fresh meat and poultrymeat (O.J. 1985, L 32/14) provided: "The Council, acting by a qualified majority on a proposal from the Commission shall, before 1 January 1986, take a decision on the standard level or levels of the fees referred to in the first two indents of Article 1 (1) and on the detailed rules and principles for the implementation of this Directive, and on possible exceptions." This implementation was subsequently effected by Council Decision 88/408 on the levels of the fees to be charged for health inspections and controls of fresh meat pursuant to Directive 85/73/EEC (O.J. 1988, L 194/24).
148. A proposal in this direction has been made a long time ago, cf. Gaja, Hay and Rotunda, "Instruments for Legal Integration in the European Community - A Review" in Cappelletti, Seccombe, Weiler, Integration through Law: Europe and the American Federal Experience (Volume 1, Book 2: Methods, tools and institutions), pp. 113 at 134-135.
149. "A directive could be accompanied by a regulation which may be designed to become applicable only with regard to the Member States which fail to implement the directive." "In order that "action" be viewed as "necessary" under Article [308 EC], failure on the part of the Member States must have been previously established. This does not mean that a regulation could only be adopted after the deadline fixed by the directive has expired; at that time the non-fulfilling Member State would probably make it difficult for the Council to enact the regulation. Rather, this regulation could be issued at the same time as the directive, but clearly state that it becomes applicable only on condition that some time after the deadline fixed by the directive has passed and the Commission has ascertained - with a decision subject to review by the Court - that the directive as not been adequately implemented in one or more Member States.".
150. Art. 288(4) TFEU. Constitutional practice has also developed "decisions" without addressee. On this point: see the brilliant analysis by Bast, Grundbegriffe der Handlungsformen der EU: entwickelt am Beschluss als praxisgenerierter Handlungsform des Unions-und Gemeinschaftsrechts (Springer, 2006). Famous illustrations of a decision without addressee are the Comitology decisions.
151. Cf. Directive 2002/21 on a common regulatory framework for electronic communications networks and services (Framework Directive) (O.J. 2002, L 108/33). Art. 7(4) of the Directive seems to give "strong" control rights over national regulatory authorities. The Commission is granted the right to "take a decision requiring the national regulatory authority concerned to withdraw the draft measure" (emphasis added). A slightly less commanding tone can be found in Art. 22(2) of Regulation 1/2003 : "At the request of the Commission, the competition authorities of the Member States shall undertake the inspections which the Commission considers to be necessary under Article 20(1) or which it has ordered by decision pursuant to Article 20(4)." For a similar formulation, see also Art. 7(5) of Regulation (EC) No. 1228/2003 on conditions for access to the network for cross-border exchanges in electricity (O.J. 2003, L 176/1): "the Commission may request that the regulatory authority or the Member State concerned amend or withdraw the decision to grant an exemption".
152. Case 133/79, Sucrimex SA and Westzucker GmbH v. Commission, [1980] ECR 1299, para 16. See also Case 74/69, Hauptzollamt Bremen-Freihafen v. Waren-Import-Gesellschaft Krohn & Co., [1970] ECR 451, para 9.
153. For an excellent analysis of this point, see Constantinesco, Das Recht der Europäischen Gemeinschaften (Nomos, 1977), p. 299.
154. Whose empirical examples do not prove his point as they mention - with the exception of Directive 2002/21 - the Member State, and not its administrative organs, as the formal addressee of the Commission decision.
155. On the conceptual relation between the power to issue administrative instructions and an integrated administration.
156. "Die instruierende Einzelweisung ... trägt unverkennbar den Charakter der Mitentscheidung. Der Rahmen des delegierten Vollzugs wird gesprengt. Die Vollzugsstruktur nähert sich derjenigen des direkten Vollzugs an. Es entsteht ein verwaltungsmässiges 'Kondominium'".
157. Kadelbach, "European administrative law and the law of a European administration" in Joerges and Dehousse (Eds.), Good Governance in Europe's Integrated Market (OUP, 2002), p. 167, at pp. 175-176: "If it comes to violations of EU law, the Commission, according to Article 226 EC, will initiate infringement procedures by contacting the government of the state concerned which, in turn, will go though the internal administrative hierarchy in order to assess whether the complaint is considered well founded. Supervision by the Commission, as it was originally designed in the Treaties, thus largely follows the logic of state responsibility in public international law.".
158. Contra, Hofmann and Türk, "Conclusions: Europe's integrated administration" in Hofmann and Türk (Eds.), EU Administrative Governance (Elgar, 2006), p 573, at p. 582: "The model of executive federalism is no longer applicable to the complex interactions between supranational and national administrative bodies in the enforcement of EU law, as it no longer adequately addresses administrative co-operation in a multi-level system of governance.".
159. Contra, Chiti, "Decentralisation and integration into the Community administrations: A new perspective on European agencies", (2004) ELJ, 402, who expressly identifies "integrated administration" with "unitary administration".
160. "[C]o-operation among national administrations and among national administrations and European authorities in the implementation of EU law has assumed such a quantitative and qualitative challenge to be no longer captured within the traditional model of executive federalism". "[O]ne should certainly confirm that the notion of executive federalism has become inadequate to explain the overall features of the process of administrative implementation of European Union law".
161. On the phenomenon of external "mixity" and mixed agreements in the EU legal order, see only: Hillion and Koutrakos (Eds.), Mixed Agreements Revisited: The EU and Its Member States in the World (Hart, 2010).
162. Cassese, "European Administrative Proceedings", 68 Law & Contemporary Problems (2004-05), 21, at 22: "joint administration".
163. This form of administrative cooperation is as old as European integration itself, see only: Regulation 17/62, Art. 10 (Liaison with the authorities of the Member States) and Art. 11 (Requests for information).
164. Cf. Art. 334 TFEU: "The Commission may, within the limits and under conditions laid down by the Council acting by a simple majority in accordance with the provisions of the Treaties, collect any information and carry out any checks required for the performance of the tasks entrusted to it." Where the Commission believes that a Member State (administration) has violated the Treaties it will initiate proceedings under Art. 258 TFEU. On the various forms of administrative supervision in the EU legal order.
165. See also Franchini, Amministrazione italiana e amministrazione comunitaria: La coamministrazione nei settori di interesse comunitario (Cedam, 1993), p. 174.
166. Depending on whether the European level precedes the national level or vice versa, one may distinguish between "top-down" and "bottom-up" proceedings, see della Cananea, "The European Union's Mixed Administrative Proceedings", 68 Law & Contemporary Problems (2004-05), 197, at 199 and 201.
167. Regulation 510/2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (O.J. 2006, L 93/12).
168. The subsequent paragraphs then "commandeer" the Member State to structure its national administrative procedure in certain ways; e.g. para 5: "As part of the scrutiny referred to in the second subparagraph of paragraph 4, the Member State shall initiate a national objection procedure ensuring adequate publication of the application and providing for a reasonable period within which any natural or legal person having a legitimate interest and established or resident on its territory may lodge an objection to the application.".
169. For a similarly "compound" administrative procedure, see (amended) Regulation 258/97 concerning novel foods and novel food ingredients (O.J. 1997, L 43/1), especially Art. 4(2).
170. For example: the concepts of "additionality" and "co-financing" within structural programmes could be identified with this phenomenon, cf. Regulation 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Reg. (EC) No. 1260/1999 (O.J. 2006, L 210/25), especially Art. 15(1): "Contributions from the Structural Funds shall not replace public or equivalent structural expenditure by a Member State.".
171. "Comitology is a fundamental structure of integrated administration.".
172. The constitutional nature of Comitology committees was discussed by the General Court in T-188/97, Rothmans v. Commission, [1999] ECR II-2463, where the Court held that these committees have their origin in Art. 202 EC and concluded "that, for the purposes of the Community rules on access to documents, 'comitology' committees come under the Commission itself." (paras. 58-62).
173. For recent literature on comitology, see Bergström, Comitology: Delegation of Powers in the European Union and the Committee System (OUP, 2005).
174. The comitology system was reformed in 2006, cf. Council Decision 2006/512 amending Decision 1999/468 laying down the procedures for the exercise of implementing powers conferred on the Commission (O.J. 2006, L 200/11).
175. For an analysis of this reform, see Schusterschitz and Kotz, "The Comitology Reform of 2006: Increasing the Powers of the European Parliament without changing the Treaties", 3 EuConst (2007), 68.
176. For the Commission's institutional view of the meaning of the control mechanisms required by Art. 291(3) TFEU.
177. While a few agencies already emerged in the 1970s, there has been a phenomenal "agencification" of the European legal order since the 1990s.
178. Today, almost forty European Agencies exist in the most diverse areas of European law. For an inventory and functional typology of European Agencies, see Griller and Orator, "Everything under control?: The 'Way Forward' for European Agencies in the Footsteps of the Meroni Doctrine", 35 EL Rev. (2010), 3 - Appendix.
179. On the rise and functions of European Agencies, see also Chiti, "The emergence of a Community administration: The case of European agencies", 37 CML Rev. (2000), 309.
180. As well as "An important part of the EU's institutional machinery: Features, problems and perspectives of European agencies", 46 CML Rev. (2009), 1395.
181. Case 9/56, Meroni & Co., Industrie Metallurgiche, SPA v. High Authority of the European Coal and Steel Community, [1958] ECR 133.
182. On the "Meroni doctrine" in the European legal order, see Lenaerts, "Regulating the Regulatory Process: 'Delegation of Powers' in the European Community", 18 EL Rev. (1993), 23.
183. The "Trade Marks and Designs Registration Office of the European Union" is formally defined as a European body, cf. Regulation 207/2009 on the Community Trade Mark (O.J. 2009, L 78/1). Its Art. 115(1) states: "The Office shall be a body of the Community. It shall have legal personality." According to Art. 116(1), the Staff Regulations of officials of the European Communities shall apply to staff of the office.
184. "The Administrative Board shall be composed of one representative of each Member State and one representative of the Commission and their alternatives.".
185. For another example, see Community Plant Variety Office established by Regulation 2100/94 on Community Plant Variety Rights (O.J. 1994, L 227/1). Art. 37(1) of the Regulation deals with the composition of the administrative Council. It states: "The Administrative Council shall be composed of one representative of each Member State and one representative of the Commission and their alternates.".
186. And continues : "What is lacking in Community administrative law is a complex of original principles similar to those worked out for the 'constitutional' dimension of the Community legal order, principles such as supremacy of Community law, direct effect". "Thus, the task awaiting scholars is the creation of new principles appropriate to the administrative law of European integration.".
187. Art. 5(1) of the 1957 EEC Treaty.
188. For literature on the rise of European Agencies.
189. Art. 5(3) TEU (Lisbon).
190. Art. 291 TFEU constitutes a lex generalis that will give way to special regimes within the Treaty, such as Art. 105 TFEU.