Functional and normative delegation to non-majoritarian institutions: The case of the European Competition Network

Abstract: There is a normative and a functional dimension to delegation to non-majoritarian institutions. These dimensions are explored in this paper and considered in the context of the recent modernization of European Community (EC) competition law enforcement. The principal–agent model provides insights into how and why Member States delegate extensive enforcement powers to the EC Commission and the National Competition Authorities, but as it offers primarily a functional analysis the normative issues of control, accountability and legitimacy cannot be fully encapsulated within it. Thus, an analysis of the EC competition law regime requires consideration of both dimensions using the twin-track approach of principal – agent analysis and a rule of law analysis in order to understand how public power is and should be exercised within it.