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Offers concluding thoughts about where to go from here.

This chapter confronts the rationales behind the trend of ‘EU impulse’ with those behind the trend of ‘national restraint’. The main tension between the EU requirements of political independence and national constitutional law relate to democratic concerns. This chapter gives examples of how the implementation of the EU obligations on political independence of NRAs and DPAs has encountered such constitutional objections in Belgium, France, the Netherlands and the UK. It then discusses and evaluates the position of the European Court of Justice on this particular tension, as expressed in the landmark judgment in Commission/Germany. Finally, it addresses the question of whether and to what extent the trend of ‘EU impulse’ gives rise to conflicts with the separation of powers doctrine as a derivative of constitutionalism and with concerns that are derived from the rule of law, which are two other meta values central to the trend of ‘national restraint’.

This chapter discusses the first trend that is central to the book: that of ‘EU impulse’. An increasing number of EU legislative documents oblige or strongly encourage Member States to entrust the implementation of substantive rules of EU law to administrative bodies that enjoy a certain (often substantial) degree of political autonomy. To many lawyers, this type of influence by EU law is counter-intuitive: the EU legislature has traditionally left decisions on national administrative organization to the Member States themselves. This is now changing and the question arises why this is the case and to what extent this interference is legitimate. The first part of this chapter is mainly descriptive in nature. It gives an overview of EU positive law in this field and more precisely discusses the obligations anchored in EU legislation on the (political) independence of national regulatory authorities (NRAs) on the one hand, and human rights monitoring or supervisory bodies on the other. As far as the latter category is concerned, considerable attention goes to the data protection authorities (DPAs), which are subject to far-reaching requirements of political independence under EU law. Subsequently, the chapter concludes that all instances of ‘EU impulse’ share two common features. First, EU legislation confers broad, discretionary powers on the NRAs and DPAs that it expects Member States to create. Secondly, Member States are under an obligation to insulate these bodies from all forms of political supervision or influence, especially at the level of their actual decision-making activities. These findings play a crucial role in Chapters 4 and 5, where the tension between EU law and national law is addressed. The final section of this chapter addresses the rationales behind ‘EU impulse’. These rationales are subsequently evaluated as to their legitimacy. The evaluation partly relies on theoretical arguments, but also on tentative interview research carried out with market players operating on the Belgian energy and electronic communications markets. The chapter concludes that the influential ‘time consistency theory’, as advocated by many proponents of regulatory independence today, may well be overrated. Ensuring that the decisions made by NRAs are based on expert judgements and precluding conflicts of interests are identified as the most important valid rationales behind NRA independence.