Abstract
The European Union (EU) increasingly requires in the acquis the creation of independent public authorities (IRAs) at national level. These possess discretionary powers in determining economic thresholds, fundamental rights standards and financial penalties. If the rise of Majone’s ‘regulatory state’ was described as an improvement of output legitimacy, the contemporary legislative and judicial developments in the EU have led to the constitutionalisation of the regulatory state at national level. IPAs are shielded from external influence, except for limited mechanisms of checks and balances (appointment of boards by the executive, judicial review by courts). EU-law generated IPAs – which are independent administrations composed by sectoral experts selected through administrative appointments and Weber’s ‘rational-legal legitimacy’ – have been through three stages in constitutional and administrative terms over the last three decades. First, they were a mere extension of the executive and could be captured by Thatcher’s ‘Principal-Agent’ framework. Then, they became what de Somer called ‘autonomous public bodies’, characterised by an increased level of independence and a rise of monitoring and sanctioning prerogatives. Finally, they have been constitutionalised and constitute altogether a Fourth Branch of government, exercising direct authority over citizens and insulated from direct popular control. The consolidation of a second non-majoritarian branch at Member State level therefore begs a rethinking of the traditional justification of the regulatory state, since Vibert’s ‘rise of the unelected’ has been completed and that the EU’s alleged democratic deficit may also extend to the ways it shapes national administrative setups.
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