Introduction
The present blogpost will zoom in on how the Banco Popular judgments of the General Court (GC) have clarified the non-delegation doctrine commonly referred to as the Meroni doctrine. First, the different arguments in which the parties relied upon Meroni and how the GC responded to these arguments, will be presented. Subsequently, this blog post will comment on the GC’s findings and argue that the Banco Popular cases illustrate (i) how Meroni has been fundamentally deconstructed, (ii) how the EU Courts are still in the phase of reconstructing a new non-delegation doctrine, and (iii) how this new nascent doctrine may be applied.
Arguments presented to the GC and the GC’s findings
The main argument presented to the GC which invoked the Meroni doctrine claimed that the Commission violated the doctrine because the Commission had insufficiently evaluated the discretionary aspects of the SRB’s resolution scheme before endorsing it in line with Article 18(7) of the Single Resolution Mechanism Regulation (SRMR).
On this, the GC noted that the procedure provided for in the SRMR was ultimately inspired by an Opinion of the Council Legal Service on the procedure in the Commission’s original proposal (para. 115). In that Opinion, the Council Legal Service doubted whether the implementation of resolution instruments and decisions was sufficiently framed and whether the procedure should not be elaborated to be in line with Meroni (para. 117).
For ease of reference, the relevant provisions of the proposal and the SRMR are presented in the Table below.
The above Table helps in understanding why the GC stresses how the procedure was fundamentally altered: rather than merely adopting a framework and allowing the SRB to adopt the scheme (as foreseen in the proposal), the SRMR requires the Commission to approve or object to the scheme and prescribes that the scheme can only enter into force if no objection has been expressed by the Commission or Council within the 24h period (para. 120).
While it was unclear from the SRMR whether a scheme could enter into force if the Commission or Council stayed silent during the 24h period, as Tornese notes (§ 110), the GC reads Article 18(7) SRMR as requiring explicit approval of an EU institution, citing the legislature’s intention to entrust resolution policy to the Commission or Council, in line with Meroni (para. 121). This means that the Commission must have assessed the discretionary aspects of the scheme (para. 122) since otherwise, the Commission would delegate powers in breach of Meroni (para. 122). The GC thus agreed with the plaintiffs that the Commission is required to effectively review the scheme (para. 123). In this regard, the plaintiffs noted that since the Commission had approved the scheme 77 minutes after receiving the draft from the SRB it could not have seriously assessed it (para. 127). The GC rejected this argument by noting that the Commission sits on the SRB’s Board and is thus kept informed of all developments and that the Commission had been kept informed of various drafts of the scheme developed by the SRB since May 2017 (paras 130-140). In terms of motivation, the GC confirmed that the Commission in its decision can simply note that it agrees (with the discretionary aspects) with the scheme transmitted by the SRB (para. 578).
Regarding the exception of illegality raised against the SRMR itself, since it allows the SRB to write down or convert relevant capital instruments and to implement the sale of business tool, the plaintiffs argued that these two powers granted to the SRB did not respect the conditions in Meroni (para. 121). Recalling the resolutions procedure as defined in the SRMR, the GC stresses however that when the SRB writes down or converts relevant capital instruments and when it implements the sale of business tool, it will do so after the Commission has determined that this is appropriate (para. 141). As a result, no autonomous powers have been delegated to the SRB in the sense of Meroni (para. 146) which, according to the GC also means that the principles defined in the 2014 Short-sellingcase are not applicable in casu (para. 148).
Finally, in the case directed against the SRB’s scheme, it was the Commission (as an intervener) rather than the plaintiff that invoked the Meroni doctrine. The Commission tried to argue that because it had approved the SRB’s scheme, the latter ought to be imputed to it, meaning that the action directed against the SRB’s scheme would be inadmissible, only the Commission’s decision constituting a challengeable act in the sense of Article 263 TFEU (para. 126). The GC rejected this argument, however, by noting that the Commission’s approval was only aimed at securing compliance with Meroni since the approval ensures that the Commission takes political responsibility for the scheme’s discretionary aspects. However, this does not mean that only the Commission’s decision creates legal effects (paras 129-130). According to the GC, this results from the wording of various provisions of the SRMR which indicate that the SRB has autonomous powers and because in the resolution procedure, the Commission has a power of approval or objection but cannot exercise the SRB’s powers in place and instead of the agency (para. 132).
Comment
As noted above, this blogpost will zoom in on the issues of the deconstruction of the original Meroni doctrine, the reconstruction of a new non-delegation doctrine and its application.
Deconstruction of the non-delegation doctrine
It has already been amply noted in doctrine (e.g. here and here) that the original Meroni doctrine has been superseded by the Short-selling case law and the Banco Popular cases again illustrate this point. Not just pour la petite histoire, it may be noted that in the original Meroni constellation, the Commission (High Authority) also had an observer on the Board of the agencies at issue and that this observer both had a veto right and could reserve decisions to the High Authority, meaning the responsibility of the High Authority for the implementation of the policy was ensured (see also Article 1(2) of Decision 22/54) (for a discussion, see pp. 175-183). While the Commission’s presence on the SRB’s Board is now taken by the GC as a key factor for endorsing the legality of the resolution procedure, the analogous institutional constellation in Meroni failed to save the legality of equalisation scheme for scrap metal introduced by the High Authority.
As suggested elsewhere (p. 181) the Court’s strict approach in Meroni could have resulted from the High Authority’s explicit refusal to take responsibility for any irregularities committed by the agencies (pp. 148-149). In this respect, it is rather ironic that in Banco Popular the Commission insisted on the SRB’s resolution scheme being imputed to it, which the GC refused, whereas in the aftermath of the Meroni ruling, the Court, in SNUPAT, did impute the decisions of the Brussels agencies to the High Authority. In SNUPAT, this was necessary to ensure access to the Court but pursuant to Article 263 TFEU imputing EU agencies’ decisions to the Commission is not necessary anymore since agencies now have explicit passive locus standi.
In short, Banco Popular contributes to the deconstruction of the original Meroni ruling since the GC found that the problem of an agency conducting the EU’s policy (in casu in banking resolution) does not pose itself if the Commission is sufficiently involved in the resolution procedure, whereas according to the ECJ in 1958, an equivalent involvement of the High Authority in the equalisation scheme of scrap metal was not sufficient to save that scheme’s legality.
Reconstruction of the non-delegation doctrine
Turning to the reconstruction of the non-delegation doctrine, it may appear puzzling at first sight to see the GC engage with the plaintiffs’ arguments which invoked Meroni, rather than rebuffing these claims by noting that the Meroni doctrine is not relevant in casu and that any power granted to the SRB should only be checked in light of the Short-selling ruling. The GC did so in the 2019 Germany v. ECHA (para. 138) case by, entirely correctly, noting that Meroni concerned a genuine delegation of powers from the High Authority to two private law bodies whereas EU decentralised agencies are public law bodies that are typically granted powers by the EU legislature. In Banco Popular, however, the GC, incorrectly, notes that under Article 18 SRMR the Commission somehow delegated powers to the SRB. What is more, the GC even explicitly notes that the Short-selling ruling is not even relevant in casu!
The latter finding is unfortunate and could arguably be understood as follows: Short-selling sets out the conditions under which decision-making powers may be delegated. These may entail some discretion for the agency but the powers must be precisely delineated. In casu these conditions need not (and could not) be assessed since, according to the GC, there was no delegation of autonomous powers in the sense of Meroni, to begin with, because the Commission needed to explicitly endorse (and take political responsibility) for the resolution scheme. According to the GC, only if such powers would have been granted to the SRB would it have been in a position to, subsequently, verify whether they were precisely delineated. It is not clear however whether a constellation could ever present itself, where in the first stage the GC would find autonomous powers in the sense of Meroni to be at issue, which, in a second stage, are tested against and upheld in light of the precisely delineated requirement of Short-selling.
While this may be how the GC understood the interrelation between Meroni and Short-selling, it is arguably untenable. Firstly, in the case against the Commission’s decision, the GC finds that no autonomous powers in the sense of Meroni have been conferred on the SRB, yet in the case against the SRB itself, the GC rejects the Commission’s plea of inadmissibility by noting that the SRB does have autonomous powers. It may thus be that some powers are autonomous, albeit not in the sense of Meroni or the assessment is different depending on whether the question relates either to the justiciability of the SRB’s acts or their material features. In any event, the notion of ‘autonomous powers’ becomes rather confusing.
In addition, to conclude that the agency does not have autonomous powers in the sense of Meroni and that Short-selling, therefore, does not apply, the GC stresses the importance of the Commission’s involvement in the procedure. Yet, in Short-selling the Court also took into account the procedure to be followed to exercise the contested power (see para. 50) in order to conclude that the power was precisely delineated. The procedure (and, in casu, the involvement of the Commission) is, therefore, an integral part of the assessment under Short-selling. Indeed, in terms of reconstructing a non-delegation doctrine specifically for EU decentralised agencies such as the SRB, it would have been better had the GC clearly confirmed that any argument invoking Meroni would fail since EU agencies’ powers should only be assessed in light of Short-selling. Under the latter, EU agencies may only exercise precisely delineated powers and the important involvement of the Commission and Council in the resolution procedure set out in Article 18 SRMR meant that the SRB’s powers under that procedure were indeed precisely delineated. Now such a reconstruction is hampered since the GC somehow suggests that Meroni is still relevant and must be checked before a Short-selling assessment may be pursued.
The actual application of the non-delegation doctrine
Ignoring for a moment that the GC insists that EU agencies’ powers can be checked separately under both Meroni and Short-selling, this blogpost assumes that what the GC in Banco Popular effectively did was to check whether the SRB’s powers are indeed precisely delineated as required under Short-selling. Elsewhere, I suggested that a delegated power can be considered to be precisely delineated following Short-selling when three conditions are met: (i) the conferral of powers is exceptional, (ii) the agency’s powers are embedded in decision-making procedures involving other actors, and (iii) the agency acts pursuant to pre-defined criteria (see p. 260). Continuing from that assumption, the GC has further clarified the second condition of Short-selling and notably, two aspects of the GC’s judgments should be lauded.
Firstly, the GC has clarified that the resolution scheme prepared by the SRB cannot enter into force following an implied endorsement by the Commission. When the legislature wants to grant genuine discretionary powers to EU agencies it may do so by prescribing the agency’s involvement in a multi-staged administrative procedure which involves the mandatory involvement of the Commission. However, in order to be Short-selling-proof, the Commission’s involvement should be active rather than passive as it must explicitly endorse any discretionary policy choices made by the agency. The Commission’s agreement cannot be assumed from its silence. That being said, the Commission, as confirmed by the GC, may limit itself to simply stating it agrees with the agency’s assessment. Because this procedural requirement (Commission endorsement) is so strict, it could be argued that on its own it is already decisive to find that the Short-selling doctrine is complied with. The three conditions noted above could then arguably be complied with in varying degrees: if the pre-defined criteria (condition (iii)) are laid down by the legislature in a very detailed manner, this could compensate for the limited involvement in the procedure of other actors (condition (ii)); or, as in the case of Article 18 SRMR, the mandatory requirement of a genuine assessment by the Commission (see below) and the Commission’s explicit endorsement might constitute such a heavy procedural requirement that would compensate possible vagueness in the pre-defined criteria (condition (iii)) or the not-so-exceptional situations in which an agency would exercise its powers (condition (i)).
Secondly, it should be stressed that also following a measure of enquiry, the GC verified, in some detail, whether the Commission had actually discharged itself of its task of assessing the discretionary aspects of the scheme. While at first sight, the Commission could not have done so in the short period between the formal communication of the scheme by the SRB and its endorsement by the Commission, the GC retraced the drafting process of the scheme to ascertain that the Commission had indeed properly scrutinized the SRB’s proposed scheme. The GC’s application of the second, procedural, condition of the non-delegation doctrine is welcome since cases like the 2021 FBF case before the Court show how difficult it may be for the EU Courts to effectively test the third, substantive, condition where the agency should act pursuant to pre-defined criteria (for a discussion of this limited review, see here).
As the EU Courts continue to clarify the non-delegation doctrine, the Banco Popular cases constitute interesting stages in its deconstruction and, reconstruction as well as providing examples of its application.
Merijn Chamon is Assistant Professor of EU Law at Maastricht University, Visiting Professor at the College of Europe (Bruges) and voluntary collaborator at the Ghent European Law Institute.
Suggested citation: M. Chamon, “The non-delegation doctrine in the Banco Popular cases”, REALaw.blog available at https://wp.me/pcQ0x2-s6
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