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persons or undertakings
47
etc. We may find other similar (although still very rare)
examples of decision making powers in other multilateral international agreements,
such as in the Agreement on International Energy Programme of 1974, which
grants certain decision powers to the Governing Board of the International Energy
Agency (IEA).
48
7. It is a matter of fact that each delegation of decision making power to any
international agency represents a limitation of the State‘s “jurisdiction to enforce”.
Mainly due to this fact, the existing examples of delegation of decision making
powers to international organisations have remained (most probably due to a relative
remoteness and particularity of the mentioned subjects) to great extent untouched
by the legal science for the last decades.
49
It is a matter of fact that the above
mentioned decision making powers find their legal base directly in the provisions
of the multilateral international agreements. The cases of decision making by these
international agencies are not considered to be the subject of regulation by national
rules governing administrative decision making.
50
Consequently, the decision
making of the international agencies is covered neither by the national rules of
administrative proceedings nor by the rules of judicial review of the concerned
states, which constitutes a rather important challenge in current international
administrative law. From another point of view, these cases might be also considered
as a kind of
obscurity
in international public law, while the phenomenon has become
currently rather frequent in the most recent EU law.
51
This is in particular the
case for various “decentralised” agencies (e.g. the
Agency for Cooperation of Energy
Regulators
,
the Community Plant Variety Office
,
the European Medicines Agency
,
the Office for Harmonisation in Internal Market
) and their direct decision making
competencies
vis-à-vis
private subjects in the territory of the EU. In strict contrast
to the framework existing under international public law, the applicable provisions
of the EU law do provide for procedural rules, as well as for rules of appeal and
review proceedings. However, it is a matter of fact that the EU currently lacks any
inspection. This order shall be submitted without delay to the President of the Court of Justice of the European
Union for subsequent approval
(Art. 81).
47
In the event of an infringement on the part of persons or undertakings of the obligations imposed on them by
this Chapter, the Commission may impose sanctions on such persons or undertaking
(Art. 83).
48
The Governing Board shall meet within 48 hours of receiving the Committee’s report and proposal. The
Governing Board shall review the finding of the Secretariat and the report of the Management Committee
and shall within a further 48 hours, acting by special majority, decide on the measures required for meeting
the necessities of the situation, including the increase in the level of mandatory demand restraint that may be
necessary
(Art. 20.3).
49
It is a matter of fact that some jurisdictions tried to deal with this issue by imposing national provisions
regulating execution of international controls in theirs territories.
50
SCHMIDT-ASSMANN, E.
The Internationalization of Administrative Relations as a Challenge for
Administrative Law Scholarship
, German Law Journal, 2008, pp. 2072
et seq.
51
HOFMANN, H.
Mapping the European Administrative Space
, in: Curtin, D., Egeberg, M.
(eds.)
Towards a new executive order in Europe,
Routledge, New York, 2009, pp. 24
et seq.