A New Landmark ECJ Case that re-launches on new basis the discussion and possible review of the Meroni Doctrine as a limitation to the establishment of new EU financial regulatory and supervisory agencies and the entrustment of appreciable public powers to such Agencies.
In a ruling of 22 January 2014, “United Kingdom of Great Britain and Northern Ireland, v. European Parliament and Council of the European Union
” (Case C-270/12
), the Court Justice of the EU reached important findings, which may be construed as having a broad scope considering the limitations that are usually associated to the so called Meroni Doctrine as regards the establishment of new EU agencies not provided for in the EU Treaties and delegations of powers to such agencies (limitations which, if considered though a restrictive hermeneutical perspective, tend to represent a serious hurdle to a new EU financial architecture of supervision of the financial sector having as fundamental institutional pillars new EU agencies entrusted with significant public powers that may be applicable to financial institutions). Two overriding findings of the Court are especially noteworthy in this normative context: one the one hand, The Court considered that the EU legislature may, in an area which requires the use of specific technical and professional expertise, confer discretionary implementing powers upon a Union agency if these powers are clearly defined and limited by various conditions and criteria; on the other hand the Court acknowledged that Article 114 TFEU corresponds to an appropriate legal base for the establishment of a mechanism which would enable measures to be adopted throughout the EU which may take the form, where necessary, of decisions directed at certain participants in financial markets.
On the whole, the ECJ made clear that some form of ‘aggiornamento’ or even adjustment of the Meroni Doctrine should be upheld at the current stage of evolution of EU law and EU integration. Somehow it will imply accepting the attribution of discretionary powers to Union agencies as long as the conditions for their use are clearly defined by the Union legislature. Although the facts of the case may appear to limit the scope of this judgment to last resort decisions the reasoning of this judgment does not. It is not required that the conferred powers are last resort. The key or decisive requirement is a clear and precise definition of these powers. This judgment should be viewed, therefore, as a precedent of the highest importance for the current legislative procedure related with the various building blocks of the European Banking Union, including namely the proposal of a Regulation establishing a Single Resolution Mechanism (SRM). In fact, it was disputed whether a new resolution Union agency or the Commission would have necessary executive powers for banking resolution under Article 114 TFEU. One of the main arguments on the basis of such potential objections was the Meroni precedent and its exclusion of the conferral of discretionary implementing powers upon Union bodies. The “United Kingdom of Great Britain and Northern Ireland, v. European Parliament and Council of the European Union
” ruling clearly is a step for setting aside that kind of objections and paves the way to new normative developments in terms of the European Banking Union.