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Legitimationsdefizite und Kompetenzen der EIOPA im Lichte der Meroni-Rechtsprechung
Abstract
Der Prozess der Agenturisierung der Verwaltung der Europäischen Union hat mit der Gründung der Europäischen (Finanz-) Aufsichtsbehörden (ESA) einen neuen Höhepunkt erreicht. Der neu gegründeten Europäischen Aufsichtsbehörde für das Versicherungswesen und die betriebliche Altersversorgung (EIOPA) kommen hierbei zum Teil einschneidende Befugnisse gegenüber den nationalen Aufsichtsbehörden und den Marktteilnehmern zu. Im Hinblick hierauf stellt sich die Frage nach einer hinreichenden Ermächtigungsgrundlage der Europäischen Union zur Gründung dieser Aufsichtsbehörde. Zudem bleibt unklar, ob der Umfang der auf EIOPA übertragenen Befugnisse mit sonstigen Strukturprinzipien des europäischen Primärrechts und der Rechtsprechung des EuGH in Einklang steht.
Abstract
The establishment of the European (Financial) Supervisory Authorities (ESA) represents a new peak in the process of agencification of the administration of the European Union. The European legislator has granted the newly founded European Insurance and Occupational Pensions Authority (EIOPA) numerous far-reaching powers in relation to national supervisory authorities and market participants. In this regard the question arises if the European Union was duly empowered by primary law to found this supervisory authority. It has, hitherto, also remained unclear if the extent of the powers entrusted to EIOPA is in conformity with other founding principles of European primary law and the case law of the ECJ.
The advent of COVID-19 had tremendous effects in Germany, as elsewhere if not probably everywhere. However, the COVID crisis brought to light problems and solutions which may aid in the betterment of insurance in the future, and increased preparedness for future crises. The German discussions pertaining to the pandemic was much focussed—as was the case in many other countries—on the question of cover by business closure and business interruption insurance. While this question was especially salient, it was far from being the only legal problem raised by the crisis in insurance law. Additionally, the crisis brought to mind an ancient legal instrument: the clausula rebus sic stantibus, or in the particular German iteration the Wegfall der Geschäftsgrundlage. In Germany this was not given a brought field of application, since the legislator passed statutes that would alleviate certain policyholders and insurers in a very particular way. Beyond the question of timely performance, relayed time limits regarding court procedures, etc., several other insurance products were touched. While this was rather neglected in Germany and elsewhere, the Corona crisis also had significant effects for insurers in the realm of insurance supervisory law.
Increasing transparency is a key element of the still relatively new EU supervisory system that has been implemented in Germany through a fundamental reform of the Insurance Supervision Act (VAG) and accompanying Acts. Several instruments of German insurance supervisory law additionally address the regulatory goal of increasing transparency in various facets. Not only the German supervisory authority BaFin (and indirectly also EIOPA) shall be fully informed but also the public by generally available information on the insurer(s) and the insurance industry. The underlying principle-based approach complicates efforts of insurance companies to comply, which is particularly problematic since companies are now confronted with existential sanctions such as the imposition of fines and so-called naming and shaming. The Insurance Distribution Directive also enhances transparency by increasing information for the policyholder on the intermediary, the distribution and the insurance product. In addition, the supervisory authority regains influence on the production process by product oversight and governance.
A contentious issue regarding the institutional phenomenon of agencification of the Union administration is the question whether and to which extent executive powers may be conferred on EU agencies. This question has arisen because the Treaties neither foresee nor exclude the possibility for the Union legislature to establish other bodies through secondary law. So far this question has also remained unresolved because the Court of Justice has not yet ruled on this specific issue. In the case law of the Court there are however rulings to be found, notably the Meroni and Romano cases, in which the conferral of powers on bodies more or less similar to EU agencies was reviewed. Unsurprisingly these rulings, and especially the Meroni ruling, have therefore attracted the attention of legal scholars in their attempts to frame the process of agencification in the EU. Although the Meroni ruling is much more cited and analysed in the legal debate on agencies than the Romano judgment, it is argued in this contribution that the latter is far more relevant for current day agencies. By applying the reasoning in Romano to the EU agencies it is revealed, even more so than by applying the Meroni doctrine, that the ongoing agencification rests on very shaky legal grounds.
Two decades ago the process of agencification of the EU administration was initiated and has gained momentum ever since. Today there are about 30 agencies scattered across the EU, active in different policy fields and entrusted with different tasks. In a first part this article looks at the history and rationale of agency creation and at the political framework in which EU agencies operate. In a second part, building on the definition and classification of agencies by Griller and Orator, a closer look will be taken at the institutional position of the EU agencies. Because the creation of agencies was neither excluded nor foreseen in the Founding Treaties most authors search for clarification in the 1958 Meroni ruling of the CJEU. This article challenges this line of reasoning by identifying a number of problems. Furthermore this article also challenges the way in which a number of authors deduct the principle of institutional balance from the Meroni ruling, applying it to the functioning of agencies, thereby misconstruing the Court's original concern which it sought to express through this principle. In a last part the article links this legal discussion to the political discussions on the future framework for the agencies, identifying a critical role for the Commission in supporting the above mentioned dominant legal reasoning.
Agency creation at the European Union (EU) level differs from that at the national one. European regulatory agencies (ERAs) have limited formal powers and separation from other actors, resembling networks rather than stand-alone agencies. ERAs for economic regulation have been created later and in smaller numbers than for social regulation. Using a historical rational analysis, this paper argues that past delegations to other non-majoritarian institutions at the EU and national levels condition the creation of European agencies. The Commission has defended its existing role and powers, accepting ERAs when they aid its strategy to increase its own reach and ensuring that it has many controls over them. When member states have created independent regulatory agencies (IRAs), those IRAs have defended their autonomy and resisted strong ERAs. Formalized EU networks of IRAs have hindered the establishment of powerful ERAs and when created, ERAs have involved layering and conversion of those networks. Hence formal delegation to ERAs has been limited and uneven.