Constitutionalism of agencies

The comparison between the Old Approach to Technical Standardization with New Approach clearly demonstrates that the New Approach was clearly much more effective than the Old Approach. In other words including agencies is very beneficial. But can it be justified from the constitutional point of view?

The post-modern administrative law found way how to legitimize existence of private certification agencies within EU governance.¹ The answer to the question how existence of private certification agencies can be justified is not hidden at the beginning in the examining of the issue delegation of powers to them namely in the discussion whether the delegation of discretionary powers to agencies is included in the Treaty.

This is still subject to academic debate and the opinion differ.². Michelle Everson instead focuses on the issue of the purposivness of the traditional administrative law and comes to a conclusion that the traditional views can be compromised or better said adjusted to new circumstances.³ How ineffective the traditional approach to governance within the EU can be had been persuasively demonstrated by the deficiencies of the old approach to standardization within EU. Just to remember few, the lack of competence, lengthy legislative process and alarming lack of practical effect of the whole activity of standardization on the highest Community level.

It is apparent that the failure of the government by itself does not justify the shift of governance to private agencies; however in these circumstances it might be possible. Ellen Vos argues that modern administrative law is more concerned with procedural requirements of decision-making rather than hierarchical legitimating of rules.⁴

Michelle Everson argues that the link between accountability and legitimacy within modern administrative law is not simple.⁵ This can lead to danger that takes for granted the legitimacy and accountability of institution.⁶ One can find additional means of legitimacy as for example efficient governance.⁷ On this account it would seem clear that inefficient government can lack legitimacy. The efficacy with which the agencies are managing the standardization would seem to be, apart from other factors, sufficient source of legitimacy.

Ellen Vos also argues that the

‘Community’s constitutional structure will not be upset as long as the shift of powers is accompanied by a reinforcement or re-balancing of the existing institutions and constitutional guarantees for decision making are safeguarded.’⁸

Therefore it would seem that efficiency of the New Approach to Technical Harmonization compared to the Old Approach, together with consumer participation, would legitimize agencies within the EU government structure.

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