On the Enforceability of EU Agencies’ Soft Law at the National Level: The Case of the European Securities and Markets Authority

Abstract

TThe delegation of more and more soft regulatory powers to EU agencies occurs in an increasing number of policy areas, e.g. aviation, medicines and financial services. Although the growing scope of the delegation of public authority to agencies is said to be necessary to enhance the effectiveness of EU policies, it raises doubts concerning the legitimacy of agencies and their decisions at the same time. This article aims to contribute to the ongoing discussion on EU agencies’ regulatory powers by uncovering the problematic aspects which the application and enforcement of soft law rules of EU agencies may induce at the national level. Furthermore, it adds new elements to the wider reflection on the function and status of soft law within the EU. Ultimately, it argues that further procedural and good governance guarantees are required in order to ensure both the legitimacy and effectiveness of the soft regulatory powers of EU agencies. It does so by taking one of the European Supervisory Authorities (ESAs), namely the European Securities and Markets Authority (ESMA), as an illustrative example of how the establishing regulations of newer EU agencies proceed in the direction of the institutionalisation and proceduralisation of soft law rule-making.