Differentiation and Dysfunction: An Exploration of Post-Legislative Guidance Practices in 14 EU Agencies

This paper offers up a map of self-authored post-legislative guidance practice among the EU’s decentralized agencies. It shows that the use of guidance by EU agencies is widespread and significant, but not pervasive in that 14 of the EU’s 33 agencies currently engage in guidance making. Where guidance is produced, it varies significantly between and within agencies as regards volume and length. These documents are hard to find, they are called a miscellany of different things and there seems to have sprang up, ad hoc, a hierarchy to guidance that is both interesting and lacking in clarity. The question as to whether such guidance binds those to whom it has been addressed has been fudged, with agencies and courts engaging in exercises of tautology and misdirection to avoid the appearance of anything that looks like binding norm making by the EU’s agencies. Consultation and participation in the making of guidance seems lackadaisical. This map suggests a level of differentiation that is so ill thought out, and so ad hoc, so lacking in foresight and oversight, as to be disfunctional. At the same time, the lack of engagement by the EU courts with these norms suggests that the site of opportunity for a way forward in this area lies other than with the judiciary.