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Abstract:
We advocate a delegation-oriented taxonomy of European agencies according to the mode and scope of available instruments. The ECJ's Meroni doctrine, based on an “input-oriented” concept of European legitimacy and institutional balance, is relevant and, in princple, well founded. A delegation of wide discretionary powers is clearly unlawful under current primary law. Nevertheless, we submit that a flexible combination of legal restraints could pass the constitutional delegation test: a combination of elements securing the prerogatives of the legislature, safeguarding the Commission's prerogatives in defining and implementing legislation, guaranteeing legal scrutiny, and political accountability would establish a sufficient level of legitimate lawmaking and implementation. Overall, however, policy-shaping must remain essentially with the legislative organs, and implementation with Union institutions (and Member States).
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