Agencification in the EU Energy Sector: Exploring the Blurred Line Between Political and Technical Rule-Making in EU Law

The governance of the energy sector in Europe is both politically sensitive and highly technical. The European Union (EU)'s legislative solution to governing the sector's complexity has, in part, involved the establishment of the Agency for the Cooperation of Energy Regulators, which wields significant powers in the form of delegated rule-making. The agency's powers are a representative illustration of a phenomenon referred to as agencification, which refers to the process of EU agencies’ increasing role in EU governance. This article contributes to this body of literature by examining whether and how EU law distinguishes between political and discretionary decision-making, typically exercised by democratically elected institutions, and technical and non-discretionary decision-making, which is frequently delegated to technocratic institutions with specialised expertise. The analysis seeks to demonstrate and problematise the fuzziness of drawing a line between these two modes of decision-making in the energy sector. Through a doctrinal analysis of the applicable primary and secondary rules on delegation of powers and the case law of the Court of Justice of EU, the article shows how the agency's de facto powers are not always aligned with how the legislative framework is structured by the legislator and interpreted by the courts de jure.