EU agencies’ soft rule-making: Lessons learnt from the European Securities and Markets Authority

Abstract

The dissertation of Van Rijsbergen is the first to discuss the pertinent questions of legitimacy and effectiveness concerning EU agencies’ soft law. It focuses on the European Securities and Markets Authority (ESMA), the EU agency responsible for improving the functioning of the financial markets in Europe. ESMA has been given a variety of soft rule-making powers to deal with the lack of effectiveness which blighted the work of its predecessor. The ‘hard’ effect of ESMA’s soft law (technical standards, guidelines, and other non-binding instruments) raises, however, the legitimacy concerns of such instruments. What procedural and institutional safeguards regarding EU agencies’ soft law instruments would reflect an adequate balancing of both legitimacy and effectiveness concerns? This study develops an assessment framework for this ‘balancing exercise’. Van Rijsbergen tests the framework for each category of ESMA’s soft law acts at each stage of the policy cycle and demonstrates that the framework can be applied to other EU agencies with soft rule-making powers similar to those of ESMA. She uses multidisciplinary literature and case law as well as the results of an extensive empirical study conducted at ESMA during her traineeship. The research presents guidance for policymakers and the Union legislator in setting up EU agencies with soft rule-making powers. It is essential for practitioners confronted with the use of EU agencies’ soft law instruments and academics in the fields of soft law, EU agencies and national authorities, regulatory governance, and financial markets.