European Agencies' Rulemaking: Powers, Procedures and Assessment

Abstract

This article aims at identifying European agencies' rulemaking powers, mapping the procedures through which such powers are exercised and assessing the existing procedural arrangements. The first section analyses the main forms of European agencies' rulemaking. It shows, on the one hand, that not all European agencies are actually engaged in the adoption of administrative rules, on the other hand, that European agencies carrying out rulemaking activities tend to converge on two specific forms of rulemaking, namely participation in the adoption of binding implementing rules and regulation by soft law. The second section, devoted to mapping the procedures through which rulemaking powers are exercised, argues that the two main types of European agencies' rulemaking cannot be said to be subject to a really common procedural framework. In both cases, the emerging procedural rules implement the same principles of transparency and participation and rely on the same consultation mechanism, sometimes complemented by regulatory impact assessment. Yet, proceduralisation has an uneven development: while the establishment of a procedural discipline is quite common with reference to participation in the adoption of binding implementing rules, regulation by soft law remains largely under‐proceduralised. The last section proposes an assessment of the European agencies' rulemaking procedures. Two main shortcomings are identified: the asymmetry between the tendency to proceduralise the adoption of binding implementing rules and the parallel tendency to keep informal the process of adoption of soft law measures; and the too rudimental development of consultation.

Driven by Expertise and Insulation? The Autonomy of European Regulatory Agencies

“…Regulatory rules require interpretations and many ask for modifications once an ERA has gained more experience in implementing the regulatory framework. Within the larger legal framework set by the European institutions, ERAs moreover hold substantive "soft-law" rulemaking competences (Chiti, 2013). By (re-)interpreting and modifying existing rules and introducing new ones, ERAs can effectively raise regulatory standards, for instance by altering the scientific information required for a product authorisation.…”

Explaining Differences in Scientific Expertise Use: The Politics of Pesticides

“…In so doing, the attention is paid to a variety of actors and their relative influence. This article argues that the level of pressure coming from external actors, both political and non-political, makes a difference because the legitimate right of EU agencies to contribute to EU decision-making plays the key role in the debates on EU agencies' legal powers (Chiti, 2013;Hofmann & Morini, 2012) and de facto independence (Maggetti, 2012). That is, EU agencies are supposed to be an engine of expertise-based decisions within the EU and to derive their legitimacy by delivering unbiased and well-informed outputs (Borràs, Koutalakis, & Wendler, 2007).…”

On the Enforceability of EU Agencies’ Soft Law at the National Level:<br>The Case of the European Securities and Markets Authority

“…22 This is a problematic practice, since legitimacy requires that regulatory decision-making follows formal rules. 23 In fact, the current procedural framing of soft rule-making is of 'a very ad hoc nature' and resembles a 'patchwork blanket' , where some agencies may have put into place far more sophisticated procedural rules than others.…”

“…30 Especially in comparison with older agencies, it has been found that the establishing regulations of a number of newer EU agencies proceed in the direction of a proceduralisation of soft law rulemaking. 31 This is particularly the case for the European Supervisory Authorities (ESAs). Their procedures for issuing guidelines and recommendations addressed to national supervisory authorities or financial institutions are provided by their establishing regulations themselves.…”

“…19 Thirdly, EU agencies' regulation by soft law 'is concerned with an extremely low degree of proceduralisation' . 20 There is no overall tendency to formalize the procedures through which soft law measures are adopted, no common framework for agencies' governance, and the attempts to conclude an inter-institutional agreement on regulatory agencies so far have not led to any concrete results. 21 In…”