The growth of technical and specialised administrative tasks in the European Union require greater participation of European agencies in the implementation of technical-administrative functions, including normative functions. What critical issues does its application pose today, and in what sense is it necessary to “erode” it based on recent developments related to administrative innovation in the field of internal market regulation? However, this cardinal principle has not stopped their participation in sector-specific regulation, including technical assessments, but it necessarily required the adoption of instruments different from binding acts with the force of law. This means that in order to protect the institutional balance as set in the Treaties and the accountability of public powers, European agencies not established in the Treaties could not implement regulatory tasks. On the grounds of this case law, unlike national authorities and administrations, European agencies have largely been unable to carry out regulatory activities and they could only implement “clearly defined executive powers” and issue recommendatory acts with no legally binding force. Hence, it could only adopt non-binding “recommendations”. The content of this principle was further developed in another case of the Court of Justice, Romano, which excluded that an administrative commission with no legal basis in the then Treaty establishing the European Communities (CEE) could adopt acts with the force of law.
In particular, Meroni held that no wide margins of discretion that involve a substantive shift of responsibilities as established in the Treaty can be conference on agencies. The conclusion of the Court of Justice was that delegation could only be legitimate under specific conditions, which exclude any undemocratic conferral of regulatory tasks on bodies that have no democratic legitimation nor a solid legal basis in the Treaties.
Insofar as European agencies are concerned, the question of the limits of delegation was originally developed in the case Meroni v High Authority, a ruling dating back to 1958, at the time of the European Coal and Steel Community (ECSC): the High Authority had delegated tasks in the functioning of the financial mechanism for the regular supply of ferrous scrap for the Common Market to two private, Belgian law agencies, and this led to an “outflow of powers” as conferred on the High Authority under the ECSC Treaty.
This does not mean that no power can be delegated, but simply that precise limits to delegation exist. The non-delegation doctrine thus concerns all the EU institutions and ensures that no institution interferes in the exercise of powers by other institutions. In EU law the case law of the Court of Justice developed this doctrine through the principle of institutional balance, aimed at ensuring the balance amongst public powers in the EU legal order: in the absence of the principle of separation of powers – as it exists in individual Member States – this principle allowed the distinction of institutional powers as conferred by the Treaties. The non-delegation doctrine is the theory according to which constitutional bodies cannot delegate their constitutionally protected powers to other bodies, abdicating their public function. Your paper deals with the so called “non-delegation” doctrine : what is the “Meroni doctrine” and why was it established?