Opinions of EU Agencies : Between Judicial Review and Procedural Legitimacy

While agencies are more and more developed in the EU institutional framework, they often do not have true decisional powers, since they participate in the decision-making process through the adoption of opinions. Although these opinions have a very narrow normative authority, they are however decisive for the decision finally adopted by the Commission. The recent Tribunal case-law takes these effects into account, accepting to review the legality of an opinion. While this development may be regarded as an improvement for the effectiveness of judicial review, the specific conditions of this recourse may affect its protective dimension, such as the restrictive access to court to challenge the final act, the limited scope of judicial control, the weight of scientific expertise, and the uncertain consequences of a finding of illegality of the opinion.

One solution for the adequate lack of judicial control may be to strengthen the procedural requirements applicable to the adoption of opinions. Secondary legislation often provides for specific requirements, such as the participation of interested parties or access to information for individuals. The question which this paper will address is whether an improvement of the procedural framework of agencies may be seen an alternative and more efficient way to scrutinize the actions of agencies, and whether such development would undermine the flexibility of their functioning.

This question will be answered by using the case studies of the European Food Safety Authority, the European Aircraft Safety Agency, the REACH Agency and the European Securities and Market Authority.