The ESMA-short selling case: Erecting a new delegation doctrine in the EU upon the Meroni-Romano remnants

Abstract

The delegation of powers to EU agencies has been a matter for debate for a long time since no treaty provision has even governed this issue specifically, nor has the Court applied the restrictive Meroni standard of delegating executive and not discretionary powers directly to agencies. In light of the new ESMA-short selling judgment and its implications, this article discusses the issues of the nature and scope of powers that EU agencies can be given. It argues that upon the Meroni-Romano remnants, the new judgment erects a new delegation doctrine in the EU: EU agencies can be given powers to take legally-binding decisions of general application. These powers may entail discretion, which should be limited. This article concludes by highlighting a number of questions that remain unresolved. It argues for the necessity of a (treaty-based) legal framework because empowering EU agencies is an act of conferral, rather than delegation, and discretion given to agencies may be at times of a legislative (normative) nature. © 2014 Kluwer Law International BV, The Netherlands.