Independence and Legitimacy in the Institutional System of the European Union (Collected Courses of the Academy of European Law)

As EU non-majoritarian bodies such as the European Commission, the Court of Justice of the European Union, and the European Central Bank grow in political influence, many have identified the pressing need to keep these bodies accountable to the repositories of the EU's democratic legitimacy. This collection of essays sheds light on the inherent tension between independence and legitimacy in the EU's institutional system and explores the options of reconciling the two. Featuring analysis from both legal and political perspectives, the volume assesses whether, to what extent, and how it is possible to control the various EU independent bodies and make them answerable for what they do, while at the same time upholding their independence. Cover Independence and Legitimacy in the Institutional System of the European Union Copyright Contents Notes on Contributors Introduction 1. The Scale of the Phenomenon of Recourse to Independent EU Bodies 2. Why Resort to Independent EU Bodies? 3. How to Ensure Independence 4. Independence and Legitimacy: An Insolvable Dilemma? 1: Lost in Transition:: The European Commission between Intergovernmentalism and Integration 1. The Commission and the Discourse on Method A. In Search of a Definition of the Community Method B. The Merits of the Community Method 2. Reality Gives Scant Consideration to Visions Relating to Method A. Inescapable Intergovernmental Cooperation B. Mutual Contamination 3. The Commission ́s Status, Balanced between the Intergovernmental Approach and the Community Approach A. Change in the Status of the Commission President and the Commissioners B. Composition of the College: Towards Intergovernmentalism? 4. The Commission ́s Functions: From the Decline of the Initiative to the Strengthening of the Powers of Management and Control A. The Decline of the Legislative Function 1. Decline of the Initiative 2. Loss of Control Over the Legislative Process B. Reinforcement of the Powers of Management, Implementation and Control 1. The Development of Management Tasks 2. Implementing Power (a) The Commission ́s power relies on the distinction between legislation and implementing measures (b) The title holder of implementing power i) The horizontal separation of powers after Lisbon and the attribution of executive power to the Commission ii) Allowance for the vertical separation of powers (c) Delimitation of the concept of implementation: delegated acts and implementing measures (d) The adoption of implementing measures and control of the Commission in the context of comitology 3. The Power of Control (a) The traditional function (b) The Commission ́s role after the financial crisis 5. Conclusion 2: The Politics of Delegation in the European Union 1. The Principal-Agent Model in a Snapshot A. Why Delegate? B. How much Discretion? 2. A Political System without a Principal A. Basic Principles B. Some Examples C. The Two Logics of Delegation 3. Full Delegation in the EU 4. Type II Delegation: EU Administrative Agencies A. The Growing Polycentricity of the EU Executive B. Who are the Principals? C. The Contribution of the Multiple-Principals Approach 5. A Model in Crisis? A. Growing Signs of Resistance B. The Eurozone Crisis and the Politics of Delegation 6. Conclusion 3: The Independence and Legitimacy of the European Court of Justice 1. Institutional Legitimacy: The Independence of the Court of Justice A. Access to the Office of Judge or Advocate-General 1. Composition of the CJEU (a) Member State representation (b) Pluralistic representation (c) Qualifications required to become a member of the CJEU (d) Number of the members 2. Appointment Process 3. Duration of the Term of Office and Reappointment 4. Conclusions B. Exercise of the Office of Judge or Advocate-General 1. Incompatibilities 2. Immunities and Privileges 3. Financial and Administrative Autonomy of the CJEU 4. Rules Governing the Exercise of the Judicial Functions 2. Functional Legitimacy 3. Social Legitimacy A. The Democratic Challenge to Constitutional Adjudication B. The State Challenge to the European Court of Justice 1. A Growing Issue 2. How to Respond 4: The Independence of the European Central Bank and Its New Banking Supervisory Competences Introduction 1. The Independence and the Accountability of the ECB A. Why Does the State (or the TFEU) Assign Competences to Independent Institutions (Central Banks)? B. Limits and Conditions for Assigning Competences to Independent Institutions C. The Specific Case of the Accountability of the ECB D. The Scope of Independence Protection as Defined in the TFEU E. TFEU Provisions Specifically Protecting the Independence of the ECB F. The ECB as an Independent Institution Supporting Democracy and Enhancing the Accountability of Majoritarian Institutions... 2. The Rationale and Scope of the Independence Granted by the TFEU to the National Central Banks of the ESCB A. The Rationale for Applying the Principle of Independence to the ESCB B. Scope of Application of the Principle of Independence C. The Four Features of NCBs ́ Independence and Its Protection 1. Personal Independence 2. Functional Independence 3. Institutional Independence 4. Financial Independence 5. Conclusions 3. The Independence of the ECB as a Banking Supervisory Authority A. Applicability of Article 130 TFEU? 1. The Independence of Supervisors 2. The Bank for International Settlements (BIS) Standard for the Independence of Banking Supervisors 3. Conclusion: Applicability of Article 130 TFEU also to the New Supervisory Powers of the ECB? B. The Rules on Independence in the SSMR 1. Relationship between Article 130 TFEU and the SSMR 2. Provisions on Independence when the ECB Exercises Supervisory Functions 3. Personal Independence of the Members of the Supervisory Board and the Steering Committee 4. Personal Independence and accountability of the Chair 5. Personal Independence of the Vice Chair 6. Personal Independence of the Four ECB Representatives 7. Financial Independence 8. Accountability to EU institutions 9. Accountability of the ECB to National Parliaments 4. Concluding Remarks 5: Independence, Interdependence, and Legitimacy:: The EU Commission, National Competition Authorities, and the European Co... Introduction 1. Independence and Legitimacy A. Independence B. Legitimacy 2. Independence and Legitimacy of EU Competition Enforcers A. The European Commission B. National Competition Authorities 3. Interdependence A. Managing Multi-level Enforcement B. Two Narratives of Regulation 1 C. The Transformation of the European Competition Network 4. Conclusions 6: EU Agencies and Independence 1. Introduction 2. Agencification Coming of Age 3. European Agencies in between Institutions and Member States 4. Independence as a Legal Concept in EU Law 5. Formal Independence of European Agencies: An Analysis A. Institutional Independence 1. Institutional Design of the Management Boards 2. A Special Case? The New Supervisory Authorities in the Financial Sector B. Staffing Independence C. Financial Independence D. Functional Independence 6. Concluding Remarks Index Each Year The Academy Of European Law In Florence, Italy, Invites A Group Of Outstanding Lecturers To Teach At Its Summer Courses On Human Rights Law And European Union Law. A 'general Course' Is Given In Each Of The Two Fields By A Distinguished Scholar Or Practitioner, Who Examines The Field As A Whole Through A Particular Thematic, Conceptual, Or Philosophical Lens, Or Looks At A Theme In The Context Of The Overall Body Of Law. In Addition, A Series Of Specialized Courses' Brings Together A Group Of Highly Qualified Scholars To Explore And Analyse A Specific Theme In Relation To Human Rights Law And Eu Law. The Academy's Mission, To Produce Scholarly Analyses Which Are At The Cutting Edge Of These Two Fields, Is Achieved Through The Publication Of This Series, The Collected Courses Of The Academy Of European Law. Introduction / Dominique Ritleng -- Lost In Transition : The European Commission Between Intergovernmentalism And Integration / Jean Paul Jacqué -- The Politics Of Delegation In The European Union / Renaud Dehousse -- The Independence And Legitimacy Of The European Court Of Justice / Dominique Ritleng -- The Independence Of The European Central Bank And Its New Banking Supervisory Competences / Chiara Zilioli -- Independence, Interdependence And Legitimacy : The Eu Commission, National Competition Authorities, And The European Competition Network / Giorgio Monti -- Eu Agencies And Independence / Ellen Vos. Edited By Dominique Ritleng. Includes Bibliographical References And Index. With many EU non-majoritarian bodies growing in political influence, this volume sheds light on the inherent tension between independence and legitimacy in the EU's institutional system, and explores ways to reconcile the two.