Beyond Meroni? EU Agencies’ Substitutive Regulatory Powers in EU Energy Case Law

This article examines the evolving nature of the European Union Agency for the Cooperation of Energy Regulators’ (ACER) substitutive decision-making powers in light of the Meroni doctrine. Drawing on recent General Court (GC) judgments, it assesses whether the GC’s expansive interpretation of ACER’s powers remains compatible with the constitutional limits established by that doctrine. The analysis shows that ACER increasingly operates de facto as a EU regulator exercising broad technical discretion and that the GC’s reasoning–particularly its recognition of implied powers grounded in the principle of effectiveness–stretches the boundaries of the Meroni doctrine. The article argues that, read in light of recent Court of Justice case law, notably Commission v SRB and ACER v Aquind, this broad interpretation may nonetheless be reconciled with that doctrine. This, however, requires that ACER’s substitutive regulatory powers be subject to an overall stringent and effective system of review, encompassing, in particular, the full quasi-judicial review exercised by the Agency’s Board of Appeal.