The Development of European Regulatory Agencies : What the EU Should Learn from the American Experience

The creation of a growing number of agencies at the EU level is one of the most significant developments in the administrative structure of the EU. These agencies play a useful role as they allow the Commission to decentralize a number of scientific, technical, or observatory functions to specialized bodies. Yet, the effectiveness of these agencies is hampered by several problems. First, because of the non-delegation doctrine adopted by the European Court of Justice in Meroni, it is not possible for the EU legislative authorities to delegate true regulatory powers to these agencies. European Agencies are thus often limited to executive functions. Second, the setting up of these agencies has followed a piecemeal approach. The creation by the EU of a series of uncoordinated, ad-hoc agencies contributes to the view that EU institutions are complex and impenetrable. Moreover, the lack of procedural requirements applicable across agencies creates a lack of clarity as to the procedural guarantees enjoyed by citizens affected by the actions of European Agencies. Third, European Agencies often fail to comply with principles of good governance, such as the principles of independence, accountability, transparency, and participation. This paper argues that the EU could learn a great deal by looking at the US experience with regulatory agencies, which is over a century old. In particular, it argues that the European Court of Justice should take a more relaxed view of delegation. Delegation of regulatory powers to agencies is desirable in a modern administrative state, and the EU should be no exception. It also claims that the EU would greatly benefit from expanding the rights of individuals affected by agency decisions to have such decisions reviewed in court. Finally, this paper argues that the EU would benefit from the adoption of a European version of the APA