Independent Supervisory Authorities: A Fragile Concept

Abstract

This article highlights the development of the legal (de jure) independence requirements of national and European supervisory authorities in European law. The European legislator recently strengthened the legal and political independence of national supervisors in the telecommunications and energy sectors. Moreover, European supervisors in the telecommunications, energy and financial sectors have been created. The national supervisors are represented in these new European bodies through their participation in the European supervisors' regulatory boards. The independence principle is one of the legal safeguards to prevent independence problems at the national level being transferred to the European level or vice versa, and has been laid down as a cornerstone of the regulations establishing the new European supervisors. These developments illustrate that the independence of supervisors has gained importance in European law. However, the specification of the independence principle has taken place in an ad hoc and piecemeal way and the different European provisions leave room for controversies. Therefore, it is too early to argue that the principle of the independence of European and national supervisors has acquired the status of a general principle of European law. Instead this article provides some suggestions as to how the European independence requirements could be interpreted in the light of recent case law of the European Court of Justice reconciling a sufficient degree of independence on the one hand with the need for adequate provisions for transparency and political and legal accountability on the other hand.