The Jean Monnet Program

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EU Member States:

-Danish Constitutional Court. Judgment of 6 April 1998 in the Carlsen Case.

-German Constitutional Court. “Judgment of 12 October 1993 on ratification of the Maastricht Treaty” in Common Market Law Review 1 (1994): 57.

-A.L.A. Schechter Poultry Corporation v. US. 295 U.S. 495: 1935.

-American Power and Light Co. v. Security and Exchange Commission. 329 U.S. 90: 1946

-Arizona v. California. 373 U.S.: 1963

-Case Field v. Clark. 143 U.S. 649: 1982

-Chevron USA Inc. v. Natural Resources Defense Council Inc. 467US837: 1984.

-Industrial Union Department AFL-CIO v. American Petroleum Institute. 487 U.S. 607: 1980.

-J.W. Hampton & Co. v. U.S. 276 U.S. 649: 1928.

-Panama Refining Co. v. Ryan. 293 U.S. 388: 1935.

-Touby v. U.S. 500 U.S. 160: 1991.

-U.S. v. Robel. 389 U.S.: 1967

1 To paraphrase a famous exclamation from Shakespeare's Hamlet.

2 The Commission already narrowly survived a censure motion in 1995-96.

3 See the Committee of Independent Experts' First Report on Allegations regarding Fraud, Mismanagement and Nepotism in the European Commission, 15 March 1999.

4 At a referendum on Denmark's membership of the euro, over 53% of the population voted against joining, despite the fact that the Government, the main political parties, employers and trade unions were in favour!

5 The Treaties of Maastricht, Amsterdam and Nice in 1993, 1997 and 2000.

6 Two groups of countries are knocking at the door: the first, consisting of Poland, Hungary, the Czech Republic, Slovenia, Estonia, Cyprus and possibly Malta, should join around 2004, while the second and more problematic group — Slovakia, Romania, Bulgaria, Latvia, Lithuania and possibly Turkey — is expected to join by the end of the decade. This means that around 2010 the EU could have twenty-eight Member States, without counting the former Republics of Yugoslavia (particularly Croatia, but also Macedonia, Bosnia and Serbia (with or without Kosovo and Montenegro) plus Albania, which will certainly have European aspirations once they have become democratic. And the question of Europe's geographical borders has not yet been settled … See Jacques Attali: Europe(s). Fayard ed., Paris 1994.

7 See Vice-President Neil Kinnock's communication, Some Strategic Reform Issues, 10 November 1999.

8 See Neil Kinnock’s communication, presented in agreement with the President and Ms Schreyer, Reforming the Commission, 1 March 2000. An amendment of the Staff Regulations of officials is also under way on the basis of proposals by the Reflection Group on Personnel Policy (the Williamson Report), European Commission, Brussels, 9 November 1998.

9 This was a period of massive extension of the Community's powers: backed up by the political will of the Member States, the Delors Commission assumed direct management of many of these new policy areas.

10 The principle of partnership, already a feature of the application of the common agricultural policy (CAP), was introduced into the management of the Structural Funds, which had gradually grown in importance to account for 35% of the Community budget; the principle of subsidiarity was introduced by the Maastricht Treaty to define more clearly how to exercise powers not held exclusively by the EU. See N. Emiliou: Subsidiarity: an effective barrier against the enterprises of ambition? ELR, vol. 17, 1992, p. 383-407.

11 The pace at which Community rules are introduced has clearly slowed and management of the CAP and regional policy by national government departments has been a marked success. But at the same time new needs have emerged. See below, p. 35-36.

12 Besides the agricultural and Structural Funds, the Commission recently delegated to national authorities the task of implementing major programmes in other fields of activity. See the communication on the Leonardo II, Socrates II and Youth programmes relating to education and training. (note 132 below). On the delegation of responsibilities to non‑member countries, see the Report by the Planning and Coordination Group on Externalisation, SEC(2000)823, 11 May 2000.

13 Augustin José Menéndez, Another view of the democratic deficit: no taxation without representation in Symposium: “Responses to Joschka Fischer”, Harvard Law School, Jean Monnet Chair Working Papers No 7/2000 (

14 Several authors have sensed and drawn attention to the transfer to the EU of powers relating to risk management after the traumatic experience of the BSE crisis. See, among others, Giandomenico Majone: Europe’s “democratic deficit”: the question of standards. ELJ, vol. 4, no. 1, March 1998, p. 5-28.

15 See the White Paper on European Governance "Enhancing democracy in Europe" - communication from President Prodi on working methods, SEC(2000)901, 30 May 2000.

16 The term "European Community" refers to the economic aspects of the Treaties and designates what is now known as the “first pillar”, while the term "European Union" has a wider meaning which also takes in the second and third pillars, i.e. the common foreign and security policy (CFSP) and cooperation in the fields of justice and home affairs. I use the two terms here interchangeably.

17 There is a vast bibliography on the institutional nature of the EU. However, all authors are agreed on its unique nature. See, among others, Jean-Victor Louis: The Community legal order, 2nd ed., European Perspective Series, European Commission, Brussels, 1990.

18 See below, p.28.

19 Meroni e Co, Industrie Metallurgiche, SpA v High Authority Cases 9 and 10/56, [1958] ECR 11-48 and 53-86.

20 See below, p.41-45.

21 Andrew Moravcsik: Why the European Community strengthens the State: domestic politics and international cooperation, Working Paper No 52, Center for European Studies, Harvard University, 1994.

In his more recent work, the author places the civil society as the most important aspect of the European integration. See, The choice of Europe: Social Purpose and State Power from Messina to Maastricht. Ithaca, N.Y.: Cornell University Press, 1998.

22 Joseph. H. Weiler: European neo-constitutionalism: in search of foundations for the European constitutional order, Political Studies, No. 44, 1996, p. 517-533.

23 G. Majone: Regulating Europe, Ed. Routledge, London 1996.

24 In a recent, as yet unpublished study (The institutional foundations of intergovernmentalism and supranationalism in the EU, in IO, no. 56, 2001, forthcoming), G. Garrett and G. Tsebelis attempt to transcend the main schools of thought by establishing a general theory of the workings of the Community institutions based on their overall functional interaction (legislation, implementation, adjudication) as players in the decision-making process (game theory+veto players).

25 Juliet Lodge: Democracy in the EU: the interrelationship between supranational, national and subnational levels of government in Démocratie et construction européenne, M. Tello ed., ULB, Brussels 1995.

26 For example, whether the intergovernmentalists, institutionalists or functionalists like it or not, the procedure of referring cases for a preliminary ruling (Article 234 (former Article 177) of the Treaty) was neither planned nor designed to become a means of exercising indirect control over the constitutionality of national laws.

27 If there is a reliable model for analysing the Community phenomenon, I would say it is a combination of a bottom-up approach (from individuals to the institutions) and a top-down approach (from the Member States to the institutions and Union citizens) aimed at identifying the interaction of the main players in the process, i.e. national bodies and the Community institutions, but also individuals (natural and legal persons), who are perhaps the most active architects, but the least visible and very much neglected by orthodox thinking on European integration. See, Xénophon Yataganas: The individuals and the Member States before the Community’s legality, 2 vol. Sakkoulas ed., Athens 1994 and 1998.

28 A selection of articles on different aspects of this question can be found in N.J. Ornstein and M. Perlman: The United States faces the United Europe, AEI Press, Washington DC 1991.

29 G. Gunther, K. M. Sullivan: Constitutional Law, 13th ed., 2000 Supplement, Foundation Press, New York 2000.

30 Like the Amsterdam Treaty, the Treaty of Nice specifically calls for a further Intergovernmental Conference (IGC) to settle questions left outstanding.

31 See D.J. Elazar: The US and the EU: models for their epochs, paper for the symposium on rethinking federalism in the EU and US, Kennedy School of Government, Harvard University, 19-21 April 1999. (forthcoming) and the bibliography cited therein. See also, J.H.H.Weiler: Federalism and Constitutionalism: Europe’s Sonderweg. Harvard Law School, Jean Monnet Chair papers, 2000.

32 In this context, some authors have asserted that the Community's sphere of responsibility is potentially unlimited. See Koen Lenaerts: Constitutionalism and the many faces of federalism, AJCL, vol. 38, 1990, p.205-263. Even more explicit are J.H.H. Weiler and N.J.S.Lockhart in “Taking rights seriously” seriously: the European Court and its fundamental rights jurisprudence, CMLR, vol. 32, 1995, p. 51-94 and 579-627: “…the potential for Community legislative reach into Member States' domains is not only dynamic but may, perhaps, be limitless.” However, seen in the context of the article's subject matter, I believe this is more of an obiter dictum than a normative statement.

33 This is a facility allowing Member States to remain outside of, go beyond or fall short of common rules in specific cases expressly provided for by general legislation and duly supervised. Despite initial fears that it would disrupt the uniform application of Community law, this tactic has actually proved to be a boon to federalism by defusing tensions and, in time, pulling the whole train in the right direction, while upholding the rule of law. C.D. Ehlermann: Differentiation, flexibility, closer cooperation: the new provisions of the Amsterdam Treaty, ELJ, vol.4, 1998, p. 246-270. N. Walker: Sovereignty and differentiated integration in the EU, ibid., p. 355-388.

34 Alan Dashwood: The limits of European Community powers, ELR, vol. 21, 1996, p. 113-128.

35 Paul Magnette and Eric Remacle ed.: Le Nouveau Modèle Européen: Institutions et Gouvernance. Institut d’Etudes Européennes, Brussels, 2001. Martine Meheut ed.: Le fédéralisme est-il pensable pour une Europe prochaine?, ed. Kime, Paris 1994.

36 It is not our intention to describe in detail the workings of the American institutions. We shall go into some detail later on, albeit selectively, when we come to discuss the delegation of legislative powers, the separation of powers and agencies, themes which have a direct bearing on our study.

37 The same applies to the detailed workings of the European institutions. For a general overview, see Stephen Weatherhill & Paul Beaumont: EU Law, 3rd ed., Penguin Books, London 1999, pp. 45-356.

38 The constant and gradual upgrading of Parliament's opinions culminated in a European Court of Justice ruling in 1980 that, in the absence of such an opinion, a Council decision might contain a formal error so serious as to warrant annulment of the instrument in question. Case 138/79, Roquette Frères v. Council (isoglucose) [1980] ECR 3333.

39 S. Weatherhill & P. Beaumont: EU Law; op. cit., p. 100.

40 P. Dankert: The joint declaration by the Community Institutions of 30 June 1982 on the Community budgetary procedure, CMLR, vol. 20, 1983, p. 707-712.

41 M. Westlake: The Commission and the Parliament, ed. Butterworths, London 1994. George Tsebelis: Institutional analyses of EU, European Community Studies Association, Spring 1999 (unpublished)

42 If the Council is in agreement with Parliament, it no longer requires unanimity to reject a Commission proposal. See, G. Garrett and G. Tsebelis argue that the role of the Commission (and the Court) could become important again after Amsterdam and Nice, because of the extension of qualified majority voting and the difficulties in forming majorities in the Council and Parliament to pass new legislation. In Legislative politics in the EU (forthcoming).

43 See Case C- 240/90 (Germany v Commission), [1992] ECR 5383.

44 See also below, p.42, note 151.

45 See the debate taking place after the treaty of Nice on the reshape of the EU.

46 See J.H.H. Weiler: The Constitution of Europe (essays), Cambridge University Press, 1999. His proposal for European ballots (p. 350) could speed up this trend.

47 Claude Blumann: La fonction législative communautaire, LGDJ, Paris 1995, pp. 143-144.

48 T. Bergman: The EU as the next step of delegation and accountability. E JPR, vol. 37, no. 3, May 2000, p. 415-429.

49 Especially if the Court were to begin to exercise judicial review of the subsidiarity principle, drawing a demarcation line between Community and national spheres of responsibility. See XVI FIDE Congress: The subsidiarity principle, vol. I, 1994, and X. Yataganas: The subsidiarity principle: a manual for the Commission, ERPL, vol. 8, No 4, Winter 1996, p. 1103-1115.

50 Costa v ENEL, Case 6/64, [1964] ECR 585 et seq., where the Court gave priority to Community law over provisions of Italian law.

51 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratstelle für Getreide und Futtermittel, Case 11/70, [1970] ECR 1125 et seq.

52 Van Gend en Loos v Nederlandse Administratie der Belastingen, Case 26/62, [1963] ECR 1 et seq.

53 Firma Foto-Frost v Hauptzollamt Lübeck Ost, Case C-314/85, [1987] ECR 4199.

54 J. Coppel and A. O’Neill: The European Court of Justice: taking rights seriously? CMLR, vol. 29, 1992, p. 669-692. S. Boyron: General principles of law and national courts: Applying a “jus commune”? ELR, vol. 23, 1998, p. 171-178.

55 See Pierre Pescatore's foreword to T.Sanadalow /E.Stein (eds), Courts and Free Markets, Oxford, Clarendon Press, 1982.

56 It is well-known that the procedural conditions laid down by the APA in 1946 for rule-making by agencies was inspired by the Democrats' fears that a Republican President might not manage the New Deal policy satisfactorily. See also below, p.25.

57 Cited in Gellhorn and Byse’s Administrative Law. 9th ed., New York 1995, p. 51.

58 Gerald Gunther, Kathleen M. Sullivan: Constitutional Law, 13th ed., op. cit., p. 354. The overlap between certain activities of the President and Congress has led some observers to talk of a bipolar executive branch, which closely resembles the situation in the Community, where executive power is shared between the Commission and the Council.

59 Ibid. p. lix-lxxi.

60 Gellhorn and Byse’s Administrative Law, 9th ed., NY 1995, p. 67.

61 D. Epstein and Sh. O’Halloran: Delegating powers: a transaction cost politics approach to policy making under separate powers. Cambridge University Press, 1999.

62 Both of them in the early 1930s: A.L.A. Schechter Poultry Corp. v US. 295 U.S. 495 (1935) and Panama Refining Co. v Ryan, 293 U.S. 388 (1935).

63 Touby v US., 500 U.S. 160 (1991).

64 J.L. Mashaum and D.L. Harfst: The struggle for auto safety. Cambridge, Harvard University Press (1990), which describes the more activist “hard look” approach of the Courts in reviewing agencies’ rules and the relative case law.

65 “ (A) hermetic sealing-off of the three branches of government from one another could easily frustrate the establishment of a National Government capable of effectively exercising the substantive powers granted to the various branches by the Constitution…” Chief Justice Taft’s opinion in J.W. Hampton & Co. v US, 276 U.S. 394 (1928).

66 Case Field v. Clark, 143 US 649 (1982).

67 Panama Refining Co. v Ryan, see supra note 58 .

68 Arizona v California, 373 U.S. (1963) and US v Robel, 389 U.S. (1967).

69 American Power & Light Co. v Security and Exchange Commission, 329 U.S. 90, (1946).

70 “…to my mind, simply illustrate the principle stated more than 50 years ago by Mr Chief Justice Taft that delegations of legislative authority must be judged according to common sense and the inherent necessities of the government coordination” Justice Rehnquist concurring opinion in Industrial Union Department AFL-CIO v. American Petroleum Institute, 487 US 607 (1980).

71 Chevron USA Inc. v Natural Resources Defense Council, 467 U.S. 837 (1984).

72 See the parallelism with the comitology procedure in the EU, that result to an effective aggrandizement of the legislative brunch. Below, p.41-45.

73 Arthur Lupia: Delegation of power (agency theory). Unpublished paper.

74 Dimitris Triantafyllou: Des compétences d’attribution au domaine de la loi. Etude sur les fondements juridiques de l’activité administrative communautaire. Ed. Bruylant, Bruxelles 1997.

75 See Article 7 TEC, in relation to the specific provisions in each area of Community activity. See H.P. Krausser: Das Prinzip begrenzter Ermächtigung in Gemeinschaftsrecht als Strukturprinzip des EWGV, ed. Duncker & Humbolt, Berlin 1991.

76 A. Bleckmann: Die Beihilfenkompetenz der EG. Ein Beitrag zum Prinzip der begrenzten Ermächtigung. DV, Heft 17, 1977, p. 615-619.

77 G. Nicolaysen: Zur Theorie von den Implied Powers in den EG. EuR 1966, p. 129-142.

78 ECJ, Case 139/79 Maizena [1980] ECR 3393 and Case 25/70 Koster [1970] ECR 1161.

79 M. Hilf: Die Organisationsstruktur der EG. Ed. Springer, Berlin-Heidelberg 1982.

80 M. Zuleeg: Der Verfassungsgrundsatz der Demokratie und die EG. Der Staat, vol. 17, 1978, p. 27.

81 On the administration's exclusive domain and the limits thereof see A. Laubadère/J-C. Venezia/Y. Gaudemet: Traité de droit administratif, LGDJ, Paris 1990, p. 516.

82 See, for example, Case 23/75 Rey-Soda v Cassa Conguaglio Zucchero [1975] ECR 1301. Case 133-136/85 Walter Rau Lebensmittelwerke v BALM [1987] ECR 2334 and Case C-27/89 Scarpe v Onic [1990] ECR I-1701. The Court considers in general that the Commission’s executive competence can be extended provided this does not violate the basic provisions of the Treaties.

83 Case 30/70 Scheer v Einfuhr und Vorratsstelle Getreide [1970] ECR 1197. See also K. St C. Bradley: Comitology and the law: through a glass, darkly. CMLR, vol. 29, 1992, p. 693-721. G.J. Buitendijk and P.C.M. Van Schendelen: Brussels advisory committees: a channel of influence? ELR, vol. 20, 1995, p. 37-56. Bernard Steunenberg, Christian Koboldt and Dieter Schmidtchen: Policymaking, comitology and the balance of power in the EU. IRLE, vol. 16, 1996, p. 329-344. Christian Joerges and Jürgen Neyer: >From intergovernmental bargaining to deliberative political processes: the constitutionalisation of comitology. ELJ, vol. 3, no. 3, 1997, p. 273-299. Ellen Vos: The rise of committees. Ibid, p. 210-229.

84 D.Triantafyllou, op. cit., p. 282.

85 G. Majone: The problem of regulatory legitimacy in the US and the EU. Paper for the symposium on “Rethinking Federalism in the US and the EU: the challenge of legitimacy” Kennedy School of Government, April 19-20th 1999. (forthcoming).

86 In fact, the majority of studies concerning the delegation problem in the EU deals with the transfer of competencies from the member States to the European institutions, and not from them to independent authorities.

87 Opinion of the ECJ 1/76 of April 26 1977, Draft agreement establishing a European laying-up fund for inland waterway vessels. [1977] ECR 741. See also, Jean Groux: Le parallèlisme des compétences internes et externes de la CEE. CDE, vol. 14, 1978, p. 3-32.

88 See below, p.32.

89 See below, p.32-35.

90 The definition given by the APA (Chapter 5, section 551) is very broad: “agency means each authority of the Government of the US, whether or not it is within or subject to review by another agency, but does not include..” followed by eight exceptions, the Congress, the Courts, the governments of the States, etc.

91 We shall consider here only the American model of the independent agencies. Nevertheless, the Canadian “regies” and British "quangos” (quasi-autonomous non-governmental organisations) are very similar.

92 See, S. Breyer & R. Stuart: Administrative Law and Regulatory Policy, Boston 1979. F. Heffron & N. McFeeley: The administrative regulatory process. New York, 1983.

93 The United States Government Manual (1985-86, p. VI-VII) lists 57 such authorities, including the Security and Exchange Commission (SEC), the Nuclear Regulatory Commission (NRC), The National Labor Relations Board (NLRB), The Federal Communications Commission (FCC), the Environmental Protection Agency (EPA), the Federal Energy Regulatory Commission (FERC),the Consumer Product Safety Commission (CPSC), the Food and Drugs Administration (FDA), the National Aeronautics and Space Administration (NASA), the Immigration and Naturalization Service (INS), to name just a few of the most important. But the list is only indicative, given that the Government Manual says “ and any other similar agency designated by statute as a Federal independent regulatory agency or Commission”.

94 Where Europeans would try to formulate a general theory of administrative law, most Americans would try to determine above all whether these agencies are appropriate or not to effective management of government activity and, consequently, whether they need to be improved or abolished. See, Michael H. Davis: L’expérience américaine des “independent regulatory Commissions”. In Cl.A. Colliard and G. Timsit: Les autorités administratives indépendantes. PUF, Paris 1988, p. 222-235.

95 Joan Flynn: “Expertness for what?”: the Gould years at the NLRB and the irrepressible myth of the “independent agency”. ALR, vol. 52, no. 2, p. 465-545.

96 Harold H. Bruff: On the constitutional status of the administrative agencies. AULR, vol. 36, 1987, p. 491-517.

97 Morton Rosenberg: Whatever happened to congressional review of agency rulemaking? A brief overview, assessment and proposal for reform. ALR, vol. 51, no. 4, Fall 1999, p. 1051-1092. Thomas O. McGarity: Presidential review of regulatory agency decisionmaking. AULR, vol. 36, 1987, p. 443-489. Richard J. Pierce Jr: The inherent limits on judicial control of agency discretion: the D.C. Circuit and the nondelegation doctrine. ALR, vol. 52, no. 1, Winter 2000, p. 63-95. Russell L. Weaver: Appellate review in executive departments and agencies. ALR, vol. 48, no. 2, Spring 1996, p. 251-305.

98 See the papers of the Symposium on the 50th anniversary of the APA, in ALJAU, vol. 10, Nr. 1, Spring 1996, and ALR, vol. 50, no. 4, 1998.

99 Gellhorn and Byse’s: Administrative Law, op. cit., p. 510 and 1325.

100 Mark Seidenfeld: Bending the rules: flexible regulation and constraints on agency discretion. ALR, vol. 51, no. 2, Spring 1999, p. 430-495.

101 Thomas O. Sargentich: The critique of active judicial review of administrative agencies: a reevaluation. ALR, vol. 49, no. 3, Summer 1997, p. 599-643.

102 Sidney A. Shapiro: Substantive reform, judicial review and agency resources: OSHA as a case study. Ibid., p. 645-670.

103 Daniel Cohen: S.981, the Regulatory Improvement Act of 1998: the most recent attempt to develop a solution in search of a problem. ALR, vol. 50, no. 4, Fall 1998, p. 699-721. Robin J. Evans: The Administrative Dispute Resolution Act of 1996, Ibid., vol. 50, no. 1, Winter 1998, p. 217-233.

104 Peter L. Strauss: The place of agencies in Government: separation of powers and the fourth branch. CLR, vol. 84, no. 3, April 1984, p. 573-633.

105 Les autorités administratives indépendantes. Op. cit., particularly pp. 135-185 for France, 199-203 for the United Kingdom, 203-207 for Germany and 207-210 for Spain.

106 The New European Agencies. Conference Report. Al. Kreher ed., Robert Schuman Center. No 96/49, Florence, 1996.

107 In chronological order of establishment, the European agencies are as follows:

  1. European Centre for the Development of Vocational Training (CEDEFOP), Articles 151 and 308, Regulation No 337/75 of 10.2.75.

  2. European Foundation for the Improvement of Living and Working Conditions, Article 308, Regulation No 1365/75 of 26.5.75.

  3. European Environment Agency (EEA), Article 175, Regulation No 1210/90 of 7.5.90.

  4. European Training Foundation, Article 308, Regulation No 1360/90 of 7.5.90.

  5. European Monitoring Centre for Drugs and Drug Addiction, Article 308, Regulation No 302/93 of 8.2.93.

  6. European Agency for the Evaluation of Medicinal Products (EMEA), Article 308, Regulation No 2309/93 of 22.7.93.

  7. Office for Harmonisation in the Internal Market (OHIM), Article 308, Regulation No 40/94 of 20.12.93.

  8. European Agency for Health and Safety at Work, Article 308, Regulation No 2062/94 of 18.7.94.

  9. Community Plant Variety Office (CPVO), Article 308, Regulation No 2100/94 of 27.7.94.

  10. Translation Centre for Bodies of the European Union, Article 308, Regulation No 2965/94 of 28.11.94.

  11. European Monitoring Centre for Racism and Xenophobia, Articles 284 and 308, Regulation No 1035/97 of 2.6.97.

European Agency for Reconstruction, Article 308, Regulation No 2454/99 of 15.11.99.

108 Ed. Alexander Kreher: The EC Agencies between Community Institutions and constituents: autonomy, control and accountability. European University Institute, Florence 1998.

109 Xénophon A. Yataganas: Certains aspects de la réglementation financière des organismes décentralisés. Ibid. pp. 39-50.

110 See the recent proposal for a Astute of agencies managing the Community Programs. 13 December 2000.

111 The proposal to create such an organisation (COM (96) 223 final of 29.5.96) was withdrawn by the Commission in June 1997.

112 See, Executive Summary on the possible added value of European Regulatory Authority for Telecommunications. Prepared by Eurostrategies and Cullen International, for the European Commission. October 1999.

113 White Paper on Food Safety presented by the Commission, COM (1999) 719 final of 12.1.2000. The Commission's definitive proposal on the subject was presented very recently: Proposal for a regulation of the Parliament and the Council laying down the general principles and requirements of food law, establishing the European Food Authority and laying down procedures in matters of food safety. COM (2000) 716 of 8 November 2000. Despite a few cautious improvements (rationalisation, restructuring and simplification of the chain of committees involved in the subject area, tentative opening to private individuals through informal information and consultation procedures, cooperation with national counterpart authorities via networks and introduction of a mediation procedure to resolve conflicts with them) the strict separation between risk assessment and risk management means that this document remains firmly within the tradition of purely consultative agencies: the European Food Authority would play no part in risk management, which would remain the exclusive responsibility of the Commission. For a more balanced approach to this important issue, see St. Breyer: Breaking the vicious circle: toward effective risk regulation. Holmes Lectures at the Harvard Law School, April 1992.

114 COM(2000)144 final of 13 March 2000, withdrawn following objections from the Legal Service. New proposal presented the 27 September 2000.

115 Proposal of 6 December 2000. COM(2000)802 final.

116 See the recent memorandum JUR (2000) 30465 of 10 July 2000.

117 C.D. Ehlermann: Reflexions on a European cartel office. CMLR, vol. 32, 1995, p. 471-486. The author moved recently (during a hearing before the “Governance” task force the 26 February 2001) from his previous positions and now accept the added value of a European “Kartellamt”. If this choice, in an area where the Commission’s competences are clearly provided by the Treaty itself becomes now plausible, we can imagine the necessity of the same modus operandi in areas where the EU’s decisionmaking shows important grey zones.

118 European Commission: White paper on modernisation of the rules implementing Articles 85 and 86 (after the consolidation of the Treaties, Articles 81 and 82) of the EC Treaty. COM (99) 101 final.

119 Directive 90/387 as amended by Directive 92/44 contains open network provisions, establishes a coordinating committee and dispute settlement and conciliation procedures (Articles 8 and 12) for cases involving several Member States that cannot be settled at national level. This is a step in the right direction, but by no means enough. The same problems apply, mutatis mutandis, to the Trans-European Networks (TEN).

120 P.A. Buigues, O. Guersent, J.F. Pons: Network utilities. The Institutions and the Member States. Unpublished paper, August 2000.

121 This is supported by all the memoranda from the Commission's Legal Service and also by the main literature on Community law. See, for example, Koen Lenaerts: Regulating the regulatory process: delegation of powers in the European Community. ELR, February 1993, p. 23-49, which accepts that agencies are useful but regards them as “internal bodies” in the institutional architecture (p. 40).

122 The recent memorandum of the Legal Service of 29 September 2000, in reaction to the announcement of the White Paper on Governance.

123 D. Triantafyllou, op. cit., p. 306.

124 “ …the possibility of entrusting to bodies established under private law,…”. Case 9/56, cited above, p.  151 and 157.

125 Cases 18/62 (Barge v High Authority) [1962] ECR 565 and 30/65 (Macchiorlati Dalmas v High Authority) [1966] ECR 50.

126 Case C-249/87 (Mulfinger v Commission) [1989] ECR 4127.

127 See for example Council Regulation (EEC) No 2081/93, which deals with the allocation of grants to final beneficiaries.

128 Memorandum from the Legal Service JUR(2000)60442 of 20 June 2000.

129 Case 9/56, already cited.

130 Case C-240/90 cited above, footnote 43.

131 On these, see X. Yataganas: L’exécution et le contrôle budgétaires en UE. In Commentaire J. Megret: Le droit de la Communauté Européenne. Les finances de l’Europe, vol. 11, ed. ULB, Brussels, 1999, pp. 329‑451.

132 Nevertheless, the Commission recently decided (13 December 2000) the further development of these executive agencies, exercising a part of its budgetary powers, until recently considered as undelegable by the Legal Service. See above, note 110. It represents a main breach to the Meroni doctrine, susceptible to have further consequences for the expansion of the regulatory agencies in the near future.

133 It is the fear of the so-called “agency capture”, the danger of an overwhelming influence by the big private interests. See, below, p.64-65.

134 Renaud Dehousse: Les avantages et les inconvénients de la délégation à des agences autonomes. Unpublished paper submitted to the “European Governance” task force. March 2001.

135 Philip Raworth: A timid step forwards: Maastricht and the democratization of the EC. ELR, vol. 19, 1994, p.16-33. Grainne de Burca: The quest for legitimacy in the EU. MLR, vol. 59, 1996, p. 349-376.

136 See the judgment of 12 October 1993 by the German Constitutional Court (Bundesverfassungsgericht) on the ratification of the Maastricht Treaty, reported in CMLR No 1, 1994, p. 57, and the judgment of 6 April 1998 by the Danish Constitutional Court (Hojesteret) in the Carlsen case. Michael Zürn: Democratic governance beyond the Nation-State: the EU and the other international institutions. EJIntRel, vol. 6, 2000, p. 183-221.

137 Preamble of the Treaty.

138 Especially, all the federalist movements.

139 Renaud Dehousse: European governance in search of legitimacy: the need for a process-based approach. In “Governance in the EU”. Ed. European Commission, Luxembourg, 2001, p. 185-205.

140 J.H.H. Weiler: The transformation of Europe. YLJ vol. 100, 1991, p. 2403-2525.

141 A linear extrapolation of the existing system may lead to absurd situations, where a group of States representing the absolute majority of the European population cannot get a legislative text passed within the Council, while another clearly minority group can block such decisions. The recent Treaty of Nice, by adopting a kind of triple majority system makes the decision making process more difficult. See, X.A. Yataganas: The Treaty of Nice: the distribution of power and the institutional balance in the EU: a continental perspective. Harvard Law School, The Jean Monnet Chair papers, March 2001.

142 Philippe C. Schmitter proposes a gradual institutional approach inspired by the Monnet method of small steps. In How to democratize the EU…and why bother? Rowman & Littlefield ed., New York-Oxford 2000.

143 Thomas Saalfeld: Members of Parliament and governments in Western Europe: agency relations and problems of oversight, EJPR, vol. 37, 2000, p. 353-376.

144 Werner Ungerer: Institutional consequences of broadening and deepening the Community: the consequences for the decisionmaking process. CMLR, vol. 30, 1993, p. 76-83. Tony Blair: Interview in the Financial Times, 23 March 1999. See also the Protocol annexed to the Amsterdam Treaty on the role of the national parliaments in the EU, which, according to most authors, reveals the double legitimacy of the Community decisions emanating from the European Parliament and the national parliaments. Jean –Claude Piris: Does the EU have a Constitution? Does it need one? Harvard Law School, Jean Monnet Chair working papers, 2000.

145 G. Majone: Regulatory legitimacy. In “Regulating Europe”, op. cit., p.298. But the opposite thesis was also supported, in particular in the field of taxation, where the Member States could manage their tax revenue better and more economically in common, while fully preserving their sovereignty. A.J. Menéndez: Another view…, op. cit. supra, note 13. Dietmar Nickel: The Amsterdam Treaty-a shift in the balance between the institutions!?, who points out that each change of the Treaties it is not a zero sum game and several institutions or all of them may gain , re-establishing the institutional balance at a higher level. Ibid. 1998.

146 J.H.H. Weiler: Europe after Maastricht. Do the new clothes have an Emperor? As cited by A. Moravcsik in “why the European Community strengthens the State…, op.cit., p. 24.

147 It is interesting to point out, that for the EMU a central European agency, the CEB, was created, thus in the other areas many member States would prefer an intergovernmental cooperation. See, X.A. Yataganas: The treaty of Nice…,op. cit.

148 As it has been pointed out, international organizations are not and probably cannot be democratic. This does not mean that they are undesirable; they are useful bureaucrats bargaining systems. Consequently, it is helpless trying to democratize something that is fundamentally non-democratic. See, Robert A. Dahl: Can international organizations be democratic? A sceptic’s view. In Ian Shapiro and Casiano Hacker-Cordon: Democracy’s edges. Cambridge University Press, 1999, p.19-36.

149P. Schmitter, How to democratize the EU…, op. cit., p. 23-52.

150 According to the general budget of the EU for the financial year 1997 there are over 400 of these committees. OJ L 44/1997, p. 485.

151 Council Decision 87/373/EEC of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ L 197/1987, p. 33.

152 This declaration asked the Commission to submit a proposal amending the previous decision, which it did in 1998. (OJ C 279/1998, p. 5). See now Council Decision 1999/468/EC, OJ L 184/1999, p. 23, replacing Decision 87/373/EEC.

153 Chr. Demmke, El. Eberharter, G.F. Schaefer and Al. Turk: The history of comitology. and J. Falke: Comitology and other Committees: a preliminary assessment. In Shaping European law and policy: the role of the committees and comitology in the political process, R.H. Pedler & G.F. Schaefer eds., Maastricht, 1996.

154 Case 25/70 cited above, note 78, and Case 5/77 (Tedeschi v Denkavit) [1977] ECR 1555.

155 Case 302/87 European Parliament v Council [1988] ECR 5615. Case law has since moved on, accepting a limited locus standi for the European Parliament, only where its institutional powers are at stake. Case 70/88 (European Parliament v Council), [1992] ECR I‑4193.

156 See the Plumb/Delors agreement of 1988 and, after the Maastricht Treaty and the new Article 189b, the interinstitutional agreement on comitology (modus vivendi) following the Commission's initiative between the three institutions of 1994. OJ. C. 43/1995, p.40.

157 Council Decision 1999/468/EC cited above.

158 Lisa L. Martin: Democratic commitments: legislatures and international cooperation. Princeton University Press, 2000, p.154.

159 See also, K. Strøm: Delegation and accountability in parliamentary democracies. EJPR, vol. 37, no. 3, May 2000, p.261-289.

160 Kieran St. Clair Bradley: The European Parliament and Comitology: On the Road to Nowhere? ELJ., vol. 3, 1997, p. 230-254.

161 The Lord Nicholas Phillips of Worth Matravers report to Tony Blair on the BSE crisis and the responsibilities of the British administration. Le Monde, 28 October 2000, p. 20. Recent pools also indicate that citizens are more confident to scientists than to politicians for dealing with the important questions of environment and health. See, Le Monde, 30 November 2000.

162 The committees have often been criticised for being selectively open to large‑scale organised economic interests. Despite some opening up to the public as regards information following the recent decision on comitology, interested parties may not take part in the administrative procedure of the adoption of acts and therefore have very little opportunity to mount a successful challenge to adopted measures once they have been enforced in the internal legal orders of the Member States.

163 P.P. Craig: Substantive legitimate expectations in domestic and Community law CLJ, vol. 55, 1996, p. 289-312.

164 Some authors come, indirectly to the same conclusion, in viewing the committees as a “deliberative supranationalism”, or as a “supranational political forum” and proposing measures enhancing the legitimacy and the democratic function of the comitology procedure. See, Ch. Joerges and J. Neyer. >From intergovernmental bargaining to deliberative political processes: the constitutionalisation of comitology. ELJ, vol. 3, September 1997, p. 273-299.

165 Federalist, 47.

166 This fear is even felt by Heads of State and of Government. See the Turin European Council clause in shaping the mandate of the IGC concluded by the Amsterdam Treaty: “…respecting the balance between the institutions…” Nevertheless, this balance was changed at Amsterdam and is continually changing.

167 See above, p. 32-35.

168 Ph. Schmitter: Alternatives for the future of European polity: is federalism the only answer? In M. Tello ed., op. cit., p. 349.

169 It is true that a large amount of academic work is based on a lack of knowledge of the realities and the proper functioning of the institutions. See, Ch. Crombez, B. Steunenberg and R. Corbett: Understanding the EU legislative process. Political scientists’ and practitioners’ perspectives. European Union Politics, vol. 1, no. 3, 2000, p.363-381.

170 For the reasons why Europe was so much later, see G. Majone: The rise of statutory regulation in Europe. In his work Regulating Europe op. cit., p. 46.

171 R. Baldwin and C. McCrudden: Regulation and Public Law. Ed. Weidenfeld & Nicolson, London, 1987.

172 M.A. Pollack: Delegation, agency and agenda setting in the European Community. International Organization, vol. 51, 1997, p. 99-134.

173 Ch. Joerges et al. eds. Integrating scientific expertise into regulatory decisionmaking: national traditions and European innovations, Nomos Verlag, 1997.

174 Ellen Vos: Reforming the European Commission: what role to play for EU agencies? CMLR, vol. 37, 2000, p.1113-1134.

175 Authors can basically be divided into those who distinguish between ex ante and ex post control and those who distinguish between substantive and procedural control. Arthur Lupia: Delegation and accountability: a theoretical perspective, June 1999. Outline on the web:

176 Mathew D. McCubbins, Roger G. Noll, Barry R. Weingast: Administrative procedures as instruments of political control, JLEO, vol. 3, no. 2, Fall 1987, p. 243-278.

177 We are not discussing administrative autonomy, which is self‑evident, but the degree of political independence, which is controversial.

178 Peter L. Strauss: The place of agencies in government: separation of powers and the fourth branch, op. cit., note 104.

179 The possibility of involving even the Court of Justice and/or the Court of First Instance, through the appointment of certain members of their management boards, would complete this synergy.

180 It is an attempt to transfer to public law the ancient French term of “droit d’évocation”, which indicated the prerogative of the monarch to withdraw a part or the entirety of some delegated powers, and still designates the right of a superior Court to recall a case from an inferior one, in order to adjudicate directly some important aspects. The “droit de rétension” also exists in French private law, indicating the right of the creditor to retain an object in his possession owned by his debtor, until the latter does not pay his debt.

181 The Commission votes only very rarely, if the President has exhausted all other means of reaching a consensus. The votes are not made public.

182 See below, p.55-59.

183 Philip J. Harter: Executive oversight of rulemaking: the President is no stranger, AULR 1987, vol. 36, p. 557-571; see also below p. 56-57.

184 Here, I revise a position I defended in the past and agree with the Committees on Budgets and Budgetary Control that the European Parliament could and should review in this connection even the budgets fed by the own resources of agencies billing services to their customers; X. Yataganas: Certains aspects…, op. cit., p. 42-43.

185 See below, p.58-59.

186 See below, p.59-62.

187 B. Dan Wood and R. W. Waterman: The dynamics of political control of the bureaucracy, APSR, vol. 85, no 3, September 1991, p. 801-828.

188 Terry M. Moe: Control and feedback in economic regulation: the case of NLRB, APSR, vol. 79, 1985, p. 1094-1116.

189 P. P. Craig: Administrative Law, Sweet & Maxwell ed., 3d edition, London, 1994.

190 Kenneth R. Foster and Peter W. Huber: Judging Science: Scientific Knowledge and the Federal Courts. The MIT Press, Cambridge MA/London, 1999.

191 See below, p.62.

192 P. Croley: Theories of regulation: incorporating the administrative process, CLR, no. 1, 1998, p. 1-168.

193 G. Majone and M. Everson: Institutional reform: independent agencies, oversight, coordination and procedural control, in O. De Schutter, N. Lebessis & J. Paterson: Governance in the European Union. European Commission ed., Luxemburg 2001, pp. 139-183.

194 46 Federal Regulation 13193.

195 Parallel, but non‑formalised powers were already exercised by Congress, via the Congressional Budget Office (CBO) and the General Accounting Office (GAO); see M. Farina: Congress: Keystone of the Washington establishment, Yale University Press, New Haven, 1977. These powers closely resemble those of the European Parliament in respect of the Community agencies, see M. Tappin: The EP Budget Committee and the agencies; L. Brinkhorst: The general budget and the agencies; and S. Tillich: Remarks on the financial autonomy and accountability of the agencies, in A. Kreher: The EC agencies…, op. cit., pp. 29, 35 and 123.

196 The equivalent of the C series of the Official Journal of the European Communities.

197 In the United States, the EPA has carried out extensive analysis to estimate the cost of recent amendments to the Clean Air Act and to the Safe Drinking Water Act. In the EU, the impact assessment form that must accompany all legislative proposals by the Commission constitutes a similar exercise.

198 This would be a kind of Activity Based Budgeting (ABB), which is already applied by the Commission, but extended to include indirect cost elements generated by the application of regulations.

199 Key recommendations 2 and 3 of the Majone and Everson report, slightly modified.

200 See McCubbins, Noll and Weingast: Administrative procedures…, op. cit., pp. 250-251.

201 Ibid. pp. 257-259

202 Media specialists say that greater freedom of information contributes to more effective control of the press. This principle can be transposed to agencies via information disclosure and obligatory processing of this information.

203 See the two anniversary volumes of the ALR, vol. 50, no. 4, Fall 1998, and the ALJAU, vol. 10, no. 1, Spring 1996, dedicated to 50 years of the APA.

204 What is important here is that the burden of proof that the information required cannot be made public rests with the agency and not the person making the request. We can measure how far these instruments are from the timid opening of the Community institutions as regards public access to documents.

205 It is obvious that the EU, despite a degree of timid opening, is very behind in this respect; see the report by the European Ombudsman, Mr Jacob Söderman, presented at the FIDE Congress on The citizen, the administration and Community law, Stockholm, Sweden, 3-6 June 1998.

206 The EU, which now accepts the environmental dimension in all other policies, may usefully draw inspiration from these Acts.

207 A. Lupia and M.D. McCubbins: Representation or abdication? How the citizens use institutions to help delegation succeed. EJPR, vol. 37, 2000, p.291-307.

208 McCubbins, Noll, Weingast: Administrative procedures…, op. cit., p. 267.

209 See especially the competition rules on controlling cartels and state aid, and Regulation 17/62.

210 D. Triantafyllou: Des compétences d’attribution…, op. cit. p. 343.

211 Majone and Everson reach the same conclusion, see Institutional Reform…, in “Governance in the EU”, op. cit. p.170-175.

212 M. Seidenfeld: A Syncopated Chevron: Emphasizing reasoned decisionmaking in reviewing agency interpretations of statutes, TLR, vol. 73, 1994, p.83-138 especially p. 92. Some scholars saw in this attitude of the Courts toward delegation a resuscitation of the non-delegation doctrine.

213 Chevron USA Inc. v Natural Resources Defense Council Inc., 467 US 837 (1984).

214 Th.O. McGarity: The Courts and the ossification of rulemaking: a response to professor Seidenfeld. TLR, vol. 75, 1997, p. 525-569

215 Ronald M. Levin: The anatomy of Chevron: Step Two Reconsidered, CKLR, vol. 72, 1997, p. 1253-1297.

216 Douglas C. Michael: Cooperative implementation of federal regulations, Yale Journal on Regulation, vol. 13, 1996, p. 535-601.

217 As M. Seidenfeld states, “currently, to promulgate a substantive rule an agency must comport with the procedural requirements of 20 statutes and executive orders, imposing over 100 independent steps in the rulemaking process”, Bending the rules…, op. cit., p. 440.

218 Richard J. Pierce Jr: The unintended effects of judicial review of agency rules: how federal Courts have contributed to the electricity crisis of the 90s,. ALR, vol. 43, 1991, p. 7-29.

219 Alfred C. Aman Jr: Administrative equity: an analysis of exceptions to administrative rules, DLJ, 1982, p. 277-331. Aristotle's notion of equity (Ηθικ Νικομχεια) would apply here. He considers equity to be a virtue that can correct in individual cases the injustices necessarily created by the uniform application of general rules.

220 Laurence H. Tribe: American Constitutional Law, 2d ed. 1988, p. 780. In fact, judges are neither trained to evaluate the scientific evidence nor institutionally suited to make the socio-economic trade-offs that such rulemaking entails.

221 Cas R. Sunstein: Deregulation and the hard look doctrine, SCR, 1983, p. 177-213.

222 Mark Seidenfeld: Bending the rules…, op. cit., p. 487.

223 It is worth noting also that, under the APA, only objections brought during the consultation procedure may be the subject of judicial review, see below, p.66-69. .

224 Here, we distinguish the first stages of quasi‑judicial powers granted to European agencies, see also the telecommunication directives, above, note 119.

225 This cumbersome procedure leads to long delays, which are criticised by the sector, see Peter Chapman: Drugs firms demand action to speed up approvals procedure, European Voice, 12‑18 October 2000, p.  6.

226 Abundant and long‑established case law exists in this area, but it is relatively restrictive, based on the terms of Article 288 of the Treaty.

227 For example, the ECJ’s recent willingness to use Article 253 of the Treaty to ensure that the decisions of Community institutions are well founded and taken with appropriate reference to expert advice and interested professional groups, indicate that Community law can easily encompass a scheme of judicial review which will increase the public accountability of the agencies through rights of individual review. See case C-269/90 Hauptzollamt München-Mitte v Technische Universität München [1991] ECR I-5469 and case C-212/91 Angelopharm v Freie und Hansestadt Hamburg [1994] ECR I-171.

228 See above, p.61.

229 By limiting individuals' rights of appeal to actions brought before the national courts against internal measures applying agency decisions, subject to review by the ECJ via the preliminary ruling procedure. See Francesca Bignami: The administrative State in a separation of powers Constitution: lessons for European Community rulemaking from the United States, Harvard Law School, Jean Monnet Chair working papers, 1999,

230 By extending the powers already conferred on such a body by J.H.H. Weiler: The EU belongs to its citizens: three immodest proposals, ELR, April 1997, p. 155.

231 Case C-303/94 European Parliament v Council of the European Union [1996] ECR I-2493.

232 We will consider networks as a means by which agencies are controlled by organised civil society. It is equally justified to consider them as a limiting factor on agencies' independence via the control exercised by citizens.

233 In the EU this is particularly urgent in the field of environmental policy, where the new powers are not accompanied by an appropriate administrative scheme.

234 McCubbins, Noll and Weingast [McNollgast] points out that in a system that disperses authority by entrusting legislative and executive powers to independent government branches, administrative procedure facilitates accountability. This is all the more true for the EU, where the legislative and executive powers are shared between the three main institutions, without mentioning the other bodies provided for or not by the Treaty. [McNollgast]: The political origins of the APA, JLEO, vol. 15, 1999, p. 180-221.

235 Renaud Dehousse: European institutional architecture after Amsterdam: parliamentary system or regulatory structure? European University Institute working papers No 98/11, Florence 1998.

236 Jeffrey Charlie: Sub-national mobilization and European integration. JCMS, vol. 38, no 1, 2000, p.1-23.

237 Evolutions in governance: what lessons for the Commission? A first assessment, European Commission, Forward Studies Unit, 1997.

238 John Peterson and Laurence J. O’Tool Jr: Networks and governance in Europe and America: grasping the normative nettle, draft of paper presented to the Transatlantic Symposium “Rethinking federalism in the EU and US: the challenge of legitimacy". Kennedy School of Government, Harvard University, 19-21 April 1999 (forthcoming).

239 F. Hayes-Renschau and H. Wallace: The Council of Ministers, Ed. Macmillan, London, 1997; Josef Flake: Comitology and other committees: a preliminary empirical assessment in “Shaping European law and policy…”, op. cit., pp. 117 and 142.

240 Christopher Lord: Democracy in the EU, Sheffield Academic Press, Sheffield 1998.

241 J. Greenwood and M. Aspinwall eds: Collective action in the EU, Routledge, London 1998. C. Demmke: The Europeanization of civil services and the role of national civil servants in the decisionmaking process, in Managing European environmental policy: the role of the Member States, C. Demmke ed., Maastricht, 1997.

242 Andrew McLaughlin and Justin Greenwood: The management of interest representation in the EU, JCMS, vol. 33, no. 1, 1995, p. 143-156. It should be noted that the committee procedure very rarely leads to opinions not in favour of Commission proposals, which suggests that its own experts consult experts in the Member States in advance.

243 It should be pointed out in this connection that 20% of Commission staff are non‑officials moving between the private sector and the European public service. See the Report of Independent Experts (Rapport des Sages), which led to the Santer Commission’s collective resignation in March 1999.

244 See McCubbins, Noll and Weingast: Administrative procedures…, op. cit., p. 264-268.

245 A similar tendency is noticeable in recent Commission proposals to decentralise the conditions for applying Articles 81 and 82 of the Treaty on restrictive practices and abuse of a dominant position (Commission White Paper on modernisation of the rules implementing the Treaty provisions on competition policy, 1999).

246 Institutional reform: independent agencies, oversight, coordination and procedural control, in Governance in the EU, op. cit., p.166.

247 J.L. Mashaw: Greed, chaos and governance: using public choice to improve public law, Yale University Press, New Haven 1997; T.M. Moe: The organisation of interest incentives and the internal dynamics of political interest groups, University of Chicago Press, Chicago 1980.

248 It is even preferable, because a special treaty provision may introduce other undesirable inflexibilities in the overall decisionmaking process. I thank Pr. J.H.H. Weiler to point me out this particular danger.

249 A similar proposal already exists: F. Bignami: The administrative State…, op. cit., in fine, section VIII: “Proposal for notice and comment in the Community”.

250 Which will de facto open up the Court under Article 230, since individual and direct interest is much easier to prove where compliance with procedural requirements is concerned.

251 Nevertheless, I must accept that imposing a heavy control mechanism to not independent entities could be counterproductive. The control measures cited before concern really independent agencies disposing a certain margin of discretionary power.

252 R. Dehousse: Les avantages et les inconvénients…, cited unpublished paper.

253 SEC(2001)340 of 20 February 2001.

254 COM(2001)428 of 25 July 2001.

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