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Boards of Appeal of EU Agencies
Boards of Appeal of
EU Agencies
Towards Judicialization of
Administrative Review?
Edited by
M E R I J N C HA M O N , A N NA L I S A VO L PAT O,
A N D M A R IO L I NA E L IA N T O N IO
1
3
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Foreword
No Power Without Control
In America, a famous saying indicates that those paying taxes should have a say in
the deliberations where decisions are taken on taxes: no taxation without repre-
sentation. The same could be said, probably, about the relationship between power
and control. In democracies, power should never be entrusted to people or insti-
tutions without establishing as a corollary a mechanism ensuring that the exer-
cise of that power can be controlled. Democracies are not compatible with power
concentration.
That issue is central in the book timely edited by Merijn, Annalisa, and
Mariolina, to whom I am extremely grateful for devoting part of their undoubtedly
very valuable time as scholars, teachers, and maybe partner, father and/or mother,
to the important issue of judicial control in the European Union.
As is successively pointed out in the contributions published in the opus, a major
development, in the history of the EU, has been the progressive creation of robust,
powerful agencies capable of carrying out missions in the fields where the Union
has competences and responsibilities. That development corresponded to a desire,
on the part of competent authorities, to have available high-quality personnel able
to think through important social, economic, and environmental challenges. It
also provided opportunities to disseminate administrative bodies throughout the
territory—thereby contributing to the construction of a Union where, whenever
possible, analysis is carried out and decisions are taken close to citizens.
Indeed, the proximity the Union seeks to build with its citizens should not be
underestimated. In that regard, it should be reminded that the Union has been the
first international body to create judicial remedies for legal and natural persons
within its organization in a context where the latter did not exist, to state it bluntly,
under international law. For the first time, provisions enshrined in an international
Treaty allowed such persons to challenge institutions on the legality of acts adopted
by them, their failure to act or the damages they may have caused illegally.
Explicitly established in the Treaty, that system found a complement in the in-
dication, by the Court of Justice, that the provisions contained in the (EEC, EC,
EU) Treaties, whenever they would be self-executing, created, beyond the Member
States inter se, rights and obligations which legal and natural persons could seek to
enforce in national courts.
Pursuing that path for more judicial protection, the Member States created a
Court of First Instance, that would later become the General Court, with a view to
vi Foreword
allocate, to a specific body, the task of reviewing the behaviour of the organization
in situations where, among others, legal and natural persons could be involved.
In that context, the decision recently taken by Council to increase the number
of judges on the General Court is greeted with enthusiasm in this book as, for the
authors concerned, it increased the capacity of EU courts to decide more efficiently
the cases submitted to them and increase the quality of their judgment. At the same
time, it is noted that that decision has produced consequences on the organization
of litigation in the EU. Under the Nice Treaty, there was a project to create spe-
cialized courts issuing rulings that would be appealed before the General Court
deciding in last resort. That project was in substance abandoned in 2015, together
with the idea that the Court of Justice would then be in a position to focus on mat-
ters with a ‘constitutional’ dimension.
As the situation has improved at the General Court, the risk now is that the
Court of Justice finds itself overwhelmed by the appeals formed against a more dy-
namic first instance jurisdiction, to be added to the increasing numbers of prelim-
inary references addressed to Luxembourg by national courts gaining confidence
in the system.
This is where the development discussed in this book, i.e. the emergence of a
more pronounced jurisdictional function for appeal boards, or at least some
of them, comes forth, at a moment where ideas are explored on how the burden
weighing on the Court could be alleviated. In a number of administrations, ap-
peal boards review complaints brought by legal and natural persons against acts
adopted by their administration. With the modification brought to the Statute, the
idea was to limit the number of cases reaching the Court of Justice—thereby re-
turning de facto to the idea of the General Court carrying out in most cases a con-
trol in last resort.
At this stage, it is too early to evaluate the system although clarity emerges as to
what is deemed essential to ensure a justice of quality.
One principle is that a certain measure of specialization is needed where the
decisions taken by the institutions, bodies, offices, and agencies of the Union are
technical in their nature. In that regard, the possibility to bring cases, in the areas
concerned, to appeal boards consisting of specialists, is greeted with satisfaction,
as is the fact that, within the General Court, areas of specialization are created and
cases are allocated in a way ensuring that similar cases will be handled by the same
chambers and/or persons.
Another principle is that, when it comes to justice, independence cannot be
considered a luxury but appears on the contrary to be a necessity. At the outset of
this preface, it was submitted that power must go hand in hand, in democracies,
with control. This in turn implies the independence of those exercising control.
There can be no justice, in the true sense of the word, if those reviewing the acts are
bound by those who adopted them. In our context, it will be for the administrations
Foreword vii
concerned to build confidence by providing guarantees that complaints are heard

with the subjective and objective impartiality required for a real review.
A last principle is that, in EU litigation, the final word should always remain,
at least in principle, with the Court of Justice. Legal systems do not easily accept
contradictions. At the end of the journey, a body must tell wat the law is. This is a
condition for legal certainty to exist—and a prerequisite for legal and natural per-
sons, but also institutions and Member States, to organize their activities and de-
velop their projects. In that regard, the possibility for the persons concerned to
bring the matters to the Court, where the coherence of the system is at stake, re-
mains of the essence.
Everything is in place—it is now for scholars and practitioners to tell us how
they analyse and experience the system.
Paul Nihoul
Judge at the General Court and
Professor at the University of Louvain, Belgium
Acknowledgements
The chapters of this book are based on the contributions presented by their authors
in an academic conference organized by the Globalisation and Law Network held
on 21–22 September 2020 at Maastricht University, Campus Brussels. The con-
ference and the publication were made possible by the funding provided by the
Sectorplan Social Sciences and Humanities of the Dutch Ministry of Education,
Culture, and Science; by the Limburg University Fund (SWOL); and by the Science
Committee of the Faculty of Law at Maastricht University. The editors would like
to express their gratitude to these institutions, as well as to the contributors for
their commitment and collaboration in realizing this project. They are also grateful
to the Academic Research Network on EU Agencies (TARN) and its members
for their support. Special thanks go to Martin Maguire for his thorough language
revision, and to Eleni Kamari, student-assistant to the Chair of European and
Comparative Administrative Law and Procedure at Maastricht University, for her
diligent and patient work in the formatting and editing of the book. The publi-
cation process was facilitated by the smooth cooperation with Anthuvan Arokia
from Newgen KnowledgeWorks, Imogen Hill and Rebecca Lewis from Oxford
University Press.
Table of Cases
DECISIONS OF THE COURT OF JUSTICE

Case 9/56, Meroni v. High Authority, ECLI:EU:C:1958:7��26–27
Case 46/59, Meroni e. a v. High Authority, ECLI:EU:C:1962:44 �� 280
Case 25/62, Plaumann v. Commission, ECLI:EU:C:1963:17�� 118
Case 61/65, Vaassen-Göbbels, ECLI:EU:C:1966:39 �� 54
Case 55/75, Balkan Import, ECLI:EU:C:1976:8 �� 284
Case 119/75, Terrapin, ECLI:EU:C:1976:94 ��63–64
Case 98/79, Pecastaing, ECLI:EU:C:1980:69��309–10
Case 60/81, IBM v. Commission, ECLI:EU:C:1981:264��48–49
Case 16/81, Alaimo v. Commission, ECLI:EU:C:1982:154�� 133
Case 70/83, Kloppenburg, ECLI:EU:C:1984:71��107–8
Case 42/84, Remia v. Commission, ECLI:EU:C:1985:327 �� 100
Case 294/83, Les Verts v. Parliament, ECLI:EU:C:1986:166 ��140, 275
Case 222/84, Johnston, ECLI:EU:C:1986:206 ��309–10
Joined Cases 142 and 156/84, BAT and Reynolds, ECLI:EU:C:1987:490�� 100
Case 325/85, Ireland v. Commission, ECLI:EU:C:1987:546��107–8
Case C-286/88, Falciola, ECLI:EU:C:1990:33�� 253
Case C-269/90, Technische Universität München,
ECLI:EU:C:1991:438.��100–1, 244, 284–85
Case C-97/91, Oleificio Borelli v. Commission, ECLI:EU:C:1992:491�� 236
Case C-325/91, France v. Commission, ECLI:EU:C:1993:245��107–8
Case C-54/96, Dorsch, ECLI:EU:C:1997:413�� 253
Case C-352/96, Italy v. Council, ECLI:EU:C:1998:175��107–8
Case C-386/96 P, Dreyfus v. Commission, ECLI:EU:C:1998:193�� 118
Case C-7/95, Deere v. Commission, ECLI:EU:C:1998:256�� 100
Case C-164/98 P, DIR International Film, ECLI:EU:C:2000:48��301–5
Case C-50/00 P, UPA v. Council, ECLI:EU:C:2002:462 �� 118
Case C-15/00, Commission v. EIB, ECLI:EU:C:2003:396�� 142
Joined Cases C-482/01 & C-493/01, Orfanopoulos, ECLI:EU:C:2004:262 ��309–10
Case C-87/00, Roberto Nicoli v. Eridania SpA, ECLI:EU:C:2004:604�� 100
Case C-106/03, Vedial SA v. OHIM, ECLI:EU:C:2004:611�� 179
Case C-447/02 P, KWS Saat AG v. OHIM, ECLI:EU:C:2004:649�� 63
Case C-12/03 P, Commission v. Tetra Laval, ECLI:EU:C:2005:87�� 284
Case C-416/04 P, The Sunrider Corporation v. OHIM,
ECLI:EU:C:2006:310��247–48
Case C-29/05 P, OHIM v. Kaul, ECLI:EU:C:2007:162��74, 75, 77, 128–29, 177, 178–79,
195–96, 217, 274–75, 299
Case C-246/05, Häupl, ECLI:EU:C:2007:340��67–68
Case C-326/05 P, Industrias Químicas del Vallés SA v. Commission,
ECLI:EU:C:2007:443��107–8
Case C‑16/06 P, Mobilix, ECLI:EU:C:2008:739��76–77
Joined Cases C-445/07 P and C-455/07 P, Commission v. Ente per
le Ville vesuviane, ECLI:EU:C:2009:529�� 118
Joined Cases C-402/97 and C-432/07, Sturgeon, ECLI:EU:C:2009:716��107–8
xviii Table of Cases
Case C-518/07, Commission v. Germany, ECLI:EU:C:2010:125�� 252

Case C-413/08, Lafarge v. Commission, ECLI:EU:C:2010:346 ��107–8
Case C-108/09, Ker-Optika, ECLI:EU:C:2010:725��107–8
Case C-51/10 P, Agencja Wydawnicza Technopol v. OHIM, ECLI:EU:C:2011:139�� 78
Case C-196/09, Miles, ECLI:EU:C:2011:388�� 59, 269
Case C-263/09 P, Elio Fiorucci, ECLI:EU:C:2011:452 �� 79, 180
Case C-272/09 P, KME Germany v. Commission ECLI:EU:C:2011:810�� 100
Case C‑406/11 P, Atlas Transport v. OHIM, ECLI:EU:C:2012:136�� 74
Case C-614/10, Commission v. Austria, ECLI:EU:C:2012:631 �� 252
Joined Cases C-101/11 P & C-102/11 P, Ornamentación,
ECLI:EU:C:2012:641�� 76–77, 315–17
Case C-271/11, Techniko Epimelitirio Elladas, ECLI:EU:C:2012:696��107–8
Case C-534/10 P, Brookfield New Zealand Ltd v. CPVO, ECLI:EU:C:2012:813��315–17
Case C‑363/11, Epitropos tou Elegktikou Sinedriou, ECLI:EU:C:2012:825�� 269
Case C‑583/11 P, Inuit Tapiriit Kanatami e.a. v. Parliament & Council,
ECLI:EU:C:2013:625�� 22
Case C-288/12, Commission v. Hungary, ECLI:EU:C:2014:237�� 252
Case C-604/12, H.N., ECLI:EU:C:2014:302 ��207–8
Case C-287/13 P, Bilbaìna de Alquitranes v. ECHA, ECLI:EU:C:2014:599 �� 100
Case C-290/13 P, Rütgers v. ECHA, ECLI:EU:C:2014:2174�� 100
Case C-289/10, Cindu Chemicals, ECLI:EU:C:2014:2175�� 100
Case C-288/13 P, Rütgers v. ECHA, ECLI:EU:C:2014:2176�� 100
Case C‑222/13, TDC A/S, ECLI:EU:C:2014:2265��263–64
Case C-166/13, Mukarubega, ECLI:EU:C:2014:2336 ��207–8
Case C-585/13, Europäisch-Iranische Handelsbank AG v. Council,
ECLI:EU:C:2015:223��107–8
Case C-546/12 P, Schräder v. CPVO, ECLI:EU:C:2015:332�� 67–68, 72, 74–75, 178–79,
195–96, 273–74, 305–6
Case C-203/14, Consorci Sanitari del Maresme, ECLI:EU:C:2015:664�� 54
Case C-439/13 P, Elitaliana SpA v. Eulex Kosovo, ECLI:EU:C:2015:753 �� 122
Case C-61/15 P, Heli-Flight v. EASA,
ECLI:EU:C:2016:59��111–16, 139–40, 181–82, 183, 301–5, 318–19
Case C-205/15, Toma, ECLI:EU:C:2016:499�� 218
Case C-396/14, MT Højgaard, ECLI:EU:C:2016:347��263–64
Case C-455/14 P, H v. Council, ECLI:EU:C:2016:569�� 122, 145–46
Case C-240/15, Autorità per le Garanzie nelle Comunicazioni,
ECLI:EU:C:2016:608�� 252
Case C-28/15, Koninklijke KPN and Others, ECLI:EU:C:2016:692 ��55–56
Case C-424/15, Xabier Ormaetxea Garai, ECLI:EU:C:2016:780 �� 252
Case C‑577/15 P, SV Capitol v. EBA, ECLI:EU:C:2016:947�� 17, 128
Case C-619/13 P, Mamoli Robinetteria v. Commission, ECLI:EU:C:2017:50��280–81
Case C-660/15 P, Viasat Broadcasting UK v. Commission, ECLI:EU:C:2017:178��107–8
Case C-72/15, Rosneft, ECLI:EU:C:2017:236 �� 122
Case C-437/15 P, EUIPO v. Deluxe, ECLI:EU:C:2017:380��76–77
Case C-625/15 P, Schniga v. CPVO, ECLI:EU:C:2017:435��74–75, 78, 178
Case C-73/16, Puškár, ECLI:EU:C:2017:725�� 129–30, 197–98, 205–6, 318
Case C-16/16 P, Belgium v. Commission, ECLI:EU:C:2018:79 ��55–56
Case C-64/16, Associação Sindical dos Juízes Portugueses,
ECLI:EU:C:2018:117�� 213–14, 253, 305
Case C-284/16, Achmea, ECLI:EU:C:2018:158�� 269
Case C‑565/17 P(R), BASF v. ECHA, ECLI:EU:C:2018:340 �� 89
Case C-564/16 P, EUIPO v. Puma, ECLI:EU:C:2018:509��64, 76, 312–13
Table of Cases xix
Case C-216/18 PPU, Minister for Justice and Equality,

ECLI:EU:C:2018:586��213–14, 215–16
Case C-308/18 P, Schniga v. CPVO, ECLI:EU:C:2018:886�� 187
Case C-219/17, Berlusconi and Fininvest, ECLI:EU:C:2018:1023��48–49
Case C-49/18, Vindel, ECLI:EU:C:2019:106�� 253
Case C-680/16 P, August Wolff and Remedia v. Commission,
ECLI:EU:C:2019:257��286–87
Case C-282/18 P, The Green Effort v. EUIPO, ECLI:EU:C:2019:300��64–65
Case C‑619/18, Commission v. Poland, ECLI:EU:C:2019:531��13, 213–14, 215–16
Case C-170/19 P, Cheapflights v. EUIPO, ECLI:EU:C:2019:581�� 71
Case C-556/17, Torubarov, ECLI:EU:C:2019:626�� 218, 219–20
Case C-461/19 P, All Star v. EUIPO, ECLI:EU:C:2019:797 ��73, 76–77
Case C-514/18 P, Steirisches Kürbiskernöl, ECLI:EU:C:2019:878��79–80
Case C-281/18 P, Repower AG v. EUIPO, ECLI:EU:C:2019:916��63, 178–79, 192–93
Joined Cases C-585/18, C-624/18 and C-625/18, A.K. and Others,
ECLI:EU:C:2019:982��213–14
Case C-414/18, Iccrea Banca, ECLI:EU:C:2019:1036��48–49
Case C‑274/14, Banco de Santander,
ECLI:EU:C:2020:17�� 13, 37, 67–69, 123, 144–45, 213–14, 253
Case C-240/18 P, Constantin Film Produktion v. EUIPO, ECLI:EU:C:2020:118��63–64
Case C-730/18 P, SC v. Eulex Kosovo, ECLI:EU:C:2020:176�� 123
Case C-97/20 P, Société des produits Nestlé SA v. EUIPO, ECLI:EU:C:2020:442�� 185
Case C-378/19, Prezident Slovenskej republiky, ECLI:EU:C:2020:462�� 252
Case C-702/18 P, Primart v. EUIPO, ECLI:EU:C:2020:489�� 73, 74, 190, 216–17, 267
Case C-14/19 P, SatCen v. KF,
ECLI:EU:C:2020:492�� 129, 139–40, 142, 145, 150, 188–89
Case C-658/18, Governo della Repubblica italiana,
ECLI:EU:C:2020:572�� 37, 54
Case C-214/19 P, Achtung! v. EUIPO, ECLI:EU:C:2020:632�� 76–77, 79–80
Case C-134/19 P, Bank Refah Kargaran v. Council, ECLI:EU:C:2020:793�� 122
Case C-809/18 P, EUIPO v. John Mills, ECLI:EU:C:2020:902��79–80
Case C-220/20, XX, ECLI:EU:C:2020:1022�� 253
Case C-808/18, Commission v. Hungary, ECLI:EU:C:2020:1029��169–70
Case C-316/19, Commission v. Slovenia, ECLI:EU:C:2020:1030 ��126–27
Case C-354/20 PPU, Openbaar Ministerie, ECLI:EU:C:2020:1033 �� 253
Case C-414/20 PPU, MM, ECLI:EU:C:2021:4 ��86–87, 253
Case C-471/18 P, Germany v. ECHA, ECLI:EU:C:2021:48 ��86–87
Case C-824/18, A.B. e. a, ECLI:EU:C:2021:153 �� 264
Case C-46/21 P, ACER v. Aquind (pending) �� 46, 188
Case C-276/20, B (pending) �� 253
Case C-464/20 P, KF v. SatCen (No. 2) (pending)�� 129–30, 134, 150
DECISIONS OF THE GENERAL COURT

Case T-163/98, Procter & Gamble v. OHIM,
ECLI:EU:T:1999:145��96, 197, 246–48, 301–5
Case T-54/99, max.mobil v. Commission, ECLI:EU:T:2002:20��100–1, 284
Case T-31/99, ABB Asea Brown Boveri v. Commission, ECLI:EU:T:2002:77��107–8
Case T-13/99, Pfizer Animal Health v. Council, ECLI:EU:T:2002:209�� 284
Case T-5/02, Tetra Laval v. Commission, ECLI:EU:T:2002:264��100–1
Case T-63/01, Procter & Gamble v. OHIM,
ECLI:EU:T:2002:317��68–69, 128–29, 147, 178–79, 195–96,
230–31, 248–49, 251, 265, 274–75, 301–5, 306–7
xx Table of Cases
Case T-110/01, Vedial v. OHMI -France Distribution

(HUBERT), ECLI:EU:T:2002:318�� 179
Case T-308/01, Henkel v. OHIM, ECLI:EU:T:2003:241�� 74, 177, 216–17
Case T-196/01, Aristoteleio Panepistimio
Thessalonikis v. Commission, ECLI:EU:T:2003:249.��314–15
Case T-66/04, Koffiebranderij en Theehandel ‘Drie Mollen
sinds 1818’BV v. OHIM, ECLI:EU:T:2004:190 �� 179
Case T-342/99, Airtours v. Commission, ECLI:EU:T:2004:192��100–1
Case T-107/02, GE Betz. v. OHIM,
ECLI:EU:T:2004:196�� 67–68, 142–43, 145, 214, 311–12
Case T-57/03, SPAG v. OHIM, ECLI:EU:T:2005:29�� 74, 180
Case T-112/03, L’Oréal v. OHIM, ECLI:EU:T:2005:102 ��301–5
Case T-273/02, Krüger v. OHIM, ECLI:EU:T:2005:134��306–7
Case T-242/02, The Sunrider Corporation v. OHIM,
ECLI:EU:T:2005:284�� 64, 129, 147, 222, 228, 306–7, 314–15
Case T‑379/03, Cloppenburg, ECLI:EU:T:2005:373. ��264–65
Case T-336/03, Editions Albert René v. OHIM, ECLI:EU:T:2005:379 ��264–65
Case T-252/04, Caviar Anzali SAS v. OHIM, ECLI:EU:T:2006:199�� 178, 248–49
Case T-416/04, Kontouli v. Council, ECLI:EU:T:2006:281��27–28
Case T-311/06, FMC Chemical SPRL v. EFSA, ECLI:EU:T:2007:67�� 236
Case T-351/03, Schneider Electric v. Commission, ECLI:EU:T:2007:212��100–1
Case T-111/06, Wesergold Getränkeindustrie v. OHIM, ECLI:EU:T:2007:352��78–79
Case T-95/06, Federación de Cooperativas Agrarias de
la Comunidad Valenciana v. CPVO, ECLI:EU:T:2008:25 �� 72
Case T-411/06, Sogelma v. AER, ECLI:EU:T:2008:419�� 142
Case T-187/06, Schräder v. CPVO, ECLI:EU:T:2008:511��74–75, 78, 197
Case T-171/06, Laytoncrest Ltd v. OHIM, ECLI:EU:T:2009:70��179, 214
Case T-70/05, Evropaïki Dynamiki v. EMSA, ECLI:EU:T:2010:55�� 140
Case T-189/08, Forum 187 v. Commission, ECLI:EU:T:2010:99��28–29
Case T-135/08, Schniga v. CPVO, ECLI:EU:T:2010:397��67–68, 79
Case T-292/08, Inditex v. OHIM, ECLI:EU:T:2010:399��216–17
Case T-145/08, Atlas Transport v. OHIM, ECLI:EU:T:2011:213�� 74
Case T-262/10, Microban v. Commission, ECLI:EU:T:2011:623�� 118
Case T-449/10, Clientearth e.a. v. Commission, ECLI:EU:T:2011:647��28–29
Case T-298/10, Christina Arrieta D. Gross v. OHIM,
ECLI:EU:T:2012:113�� 128–29, 301–5, 306–7
Case T-534/10, Organismos Kypriakis Galaktokomikis
Viomichanias v. OHMI -Garmo (HELLIM), ECLI:EU:T:2012:292�� 190
Joined Cases T‑133/08, T-134/08, T-177/08 and T‑242/09,
Ralf Schräder v. CPVO, ECLI:EU:T:2012:430��129, 178–79, 195–96, 273–74, 305–6
Case T-278/10, Wesergold Getränkeindustrie v. OHIM,
ECLI:EU:T:2012:459��216–17
Case T-387/09, Applied Microengineering Ltd v. Commission,
ECLI:EU:T:2012:501��107–8
Case T-368/11, Polyelectrolyte Producers Group e. a. v. Commission,
ECLI:EU:T:2013:53.��285, 286
Case T-93/10, Bilbaína de Alquitranes, SA and Others v. ECHA,
ECLI:EU:T:2013:106�� 94
Case T-96/10, Rütgers Germany v. ECHA, ECLI:EU:T:2013:109 ��284, 285–86, 287–88
Case T-539/10, Acino v. Commission, ECLI:EU:T:2013:110��280–81, 287–88
Case T-106/12, Cytochroma Development v. OHIM, ECLI:EU:T:2013:340��63–64, 71
Table of Cases xxi
Case T-236/12, Airbus v. OHIM, ECLI:EU:T:2013:343��72–73

Case T-320/10, Castel, ECLI:EU:T:2013:424�� 73
Case T-595/10, Cantina Broglie v. OHIM, ECLI:EU:T:2014:554��78–79
Case T-404/13, NIIT Insurance Technologies v. OHIM, ECLI:EU:T:2014:645��63–64
Case T-445/12, Koscher+Würtz v. OHIM, ECLI:EU:T:2014:829 �� 177
Case T-189/13, PP Nature-Balance Lizenz v. Commission,
ECLI:EU:T:2014:1056�� 286, 287–88
Case T-102/13, Heli-Flight v. EASA,
ECLI:EU:T:2014:1064�� 41–42, 111, 112–13, 114, 115–16, 139–40,
181, 183, 247–49, 251, 289, 301–5, 312–13, 314–17, 318–19
Case T-269/11, Xeda International v. Commission, ECLI:EU:T:2014:1069��285, 286
Case T-587/13, Schwerdt v. OHIM, ECLI:EU:T:2015:37��63–64
Case T-609/13, Blackrock v. OHIM, ECLI:EU:T:2015:54�� 178
Case T-378/13, Apple and Pear Australia v. OHIM, ECLI:EU:T:2015:186��78, 312–13
Case T-359/12, Louis Vuitton v. OHIM, ECLI:EU:T:2015:215 �� 73
Case T-135/13, Hitachi e. a. v. ECHA, ECLI:EU:T:2015:253��285–86, 287–88
Case T-201/13, Rubinum v. Commission, ECLI:EU:T:2015:311��285–86, 287–88
Case T-660/14, SV Capital OÜ v. EBA, ECLI:EU:T:2015:608�� 17, 128
Joined Cases T-91/14 and T-92/14, Schniga Srl v. CPVO, ECLI:EU:T:2015:624�� 179
Case T-446/10, Dow AgroScience e. a. v. Commission, ECLI:EU:T:2015:629�� 284, 287–88
Case T-850/14, CompuGroup Medical AG v. OHIM, ECLI:EU:T:2015:1019��64–65
Case T-100/15, Dextro Energy v. Commission, ECLI:EU:T:2016:150��284–85
Case T‑472/13, Lundbeck v. Commission, ECLI:EU:T:2016:449��27–28
Cases T-543/15 and T-669/15, Lysoform Dr. Hans Rosemann
GmbH and Others v. ECHA, ECLI:EU:T:2016:610��86–87
Case T-672/14, August Wolff and Remedia v. Commission,
ECLI:EU:T:2016:623��286–87
Case T-671/15, E-Control v. ACER, ECLI:EU:T:2016:626��46, 55–56
Case T-787/14 P, BCE v. Cerafogli, ECLI:EU:T:2016:633�� 190
Case T-290/15, Smarter Travel Media v. EUIPO, ECLI:EU:T:2016:651��64–65
Joined Cases T-828/14 and T-829/14, Antrax v. EUIPO,
ECLI: ECLI:EU:T:2017:87�� 178–79, 265
Case T-811/14, Unilever v. EUIPO, ECLI:EU:T:2017:98 �� 77
Case T-726/14, Novar, ECLI:EU:T:2017:99��69–70
Case T-115/15, Deza v. ECHA, ECLI:EU:T:2017:329��284–85
Case T-63/16, E-Control v. ACER,
ECLI:EU:T:2017:456�� 19–20, 40, 46, 50, 187–88, 301, 306, 312–14
Case T-767/14, Boomkwekerij van Rijn-de Bruyn BV v. CPVO,
ECLI:EU:T:2017:494�� 78, 217
Case T‑125/17 R, BASF v. ECHA, ECLI:EU:T:2017:496 �� 89
Case T-454/16, Arrigoni SpA v. EUIPO, ECLI:EU:T:2017:646 �� 179
Case T-140/15, Aurora Srl v. CPVO, ECLI:EU:T:2017:830 �� 134, 178, 180, 312–13
Case T-849/16, PGNiG Supply & Trading v. Commission,
ECLI:EU:T:2017:924�� 118
Case T–105/16, Phillip Morris v. EUIPO, ECLI:EU:T:2018:51 �� 78
Case T-727/16, Repower AG v. EUIPO, ECLI:EU:T:2018:88. ��192–93, 195–96
Case T-179/17, Laboratoire Nuxe v. EUIPO, EU:T:2018:89�� 79
Case T-463/17, Raise Conseil v. EUIPO, ECLI:EU:T:2018:249�� 178–79, 195–96, 306–7
Case T-283/15, Esso Raffinage v. ECHA, ECLI:EU:T:2018:263��86–87
Case T-584/13, BASF v. Commission, ECLI:EU:T:2018:279 ��284–86
Case T-768/16, BNP Paribas v. ECB, ECLI:EU:T:2018:471��288–89
xxii Table of Cases
Case T-758/16, Crédit agricole v. ECB, ECLI:EU:T:2018:472 ��288–89

Case T-757/16, Société générale v. ECB, ECLI:EU:T:2018:473 ��288–89
Case T-751/16, Confédération nationale du Crédit mutuel v. ECB,
ECLI:EU:T:2018:475��288–89
Case T-745/16, BPCE v. ECB, ECLI:EU:T:2018:476��288–89
Case T-733/16, Banque postale v. ECB, ECLI:EU:T:2018:477��288–89
Case T-14/16, Apimab Laboratoires v. Commission, ECLI:EU:T:2018:524 �� 280–81, 286
Case T-584/17, Primart v. EUIPO, ECLI:EU:T:2018:530�� 190
Case T-123/17, Exaa Abwicklungsstelle für Energieprodukte v. ACER,
ECLI:EU:T:2018:568�� 44, 46
Case T-146/17, Mondi v. ACER, ECLI:EU:T:2018:570�� 44, 46
Case T-672/17, Mamas and Papas v. EUIPO, ECLI:EU:T:2018:707�� 274–75, 301–5
Case T-400/17, Deza v. Commission, ECLI:EU:T:2018:712�� 285, 287–88
Case T-286/15, KF v. SatCen,
ECLI:EU:T:2018:718��129, 134, 139–40, 141, 145, 150, 305
Case T-253/17, Grüner Punkt v. EUIPO,
ECLI:EU:T:2018:909.��79–80
Joined Cases T-339/16, T-352/16 and T-391/16, Ville de Paris v. Commission,
ECLI:EU:T:2018:927��287–88
Case T‑177/16, Mema v. CPVO,
ECLI:EU:T:2019:57 ��74–75, 78, 178, 216–17, 247–48, 274–75,
301–5, 312–13, 314–15
Case T-796/17, Mouldpro ApS v. EUIPO, ECLI:EU:T:2019:88��177, 301–5
Joined Cases T-251/17 & T-252/17, Robert Bosch v. EUIPO,
ECLI:EU:T:2019:202��72–73
Case T-631/18, Herholz v. EUIPO, ECLI:EU:T:2019:208�� 79
Case T-629/18, mobile.de GmbH v. EUIPO, ECLI: ECLI:EU:T:2019:292 ��264–65
Case T-197/16, Andrea Incontri v. EUIPO, ECLI:EU:T:2019:347�� 79
Case T-276/17, Ogrodnik v. EUIPO, ECLI:EU:T:2019:525 �� 79
Case T-125/17, BASF v. ECHA,
ECLI:EU:T:2019:638�� 52–53, 56–57, 72, 74–75, 76,84, 95,
97, 98, 99–100, 182, 183, 198–99, 216–19,
248, 249, 301–5, 313, 315–17
Case T-755/17, Germany v. ECHA,
ECLI:EU:T:2019:647��56–57, 84, 93, 95, 96, 97–98, 99–100, 147, 182–83,
187–89, 191, 195–96, 197–98, 211, 217–18, 246–47,
250–51, 265, 266, 273–74, 301–5, 307, 313, 314–17, 329–30
Case T-279/18, Alliance Pharmaceuticals Ltd v. EUIPO,
ECLI:EU:T:2019:752�� 180
Case T-333/17, Austrian Power Grid and Vorarlberger
Übertragungsnetz v. ACER, ECLI:EU:T:2019:760 �� 41–42, 46, 47, 49–50
Case T-332/17, E-Control v. ACER, ECLI:EU:T:2019:761��46, 47, 49–50
Case T‑340/18 DEP, Gibson Brands v. EUIPO, ECLI:EU:T:2020:206��80–81
Case T-100/19, Olivia Torras v. EUIPO, ECLI:EU:T:2020:255�� 73
Case T-105/19, Louis Vuitton v. EUIPO, ECLI:EU:T:2020:258�� 73
Case T‑737/18, Siberia Oriental v. CPVO (Siberia),
ECLI:EU:T:2020:289��76–77
Case T-619/19, KF v. Satcen (No. 2), ECLI:EU:T:2020:337 �� 129–30, 134, 150, 305, 310
Case T-838/19, Koopman International v. EUIPO,
ECLI:EU:T:2020:343.�� 77
Case T-421/18, Bauer Radio v. EUIPO, ECLI:EU:T:2020:433�� 75
Table of Cases xxiii
Case T‑411/17, Landesbank Baden-Württemberg v. SRB, ECLI:EU:T:2020:435�� 14

Case T-735/18, Aquind v. ACER,
ECLI:EU:T:2020:542�� 17, 41–42, 43, 46, 47, 50, 51–52, 56–57,
72, 117–18, 134, 195–96, 211–12, 216–18, 247–48,
273–74, 296, 297, 301–5, 313, 315–17, 318–19, 329–30
Case T-152/20, BSH Hausgeräte v. EUIPO, ECLI:EU:T:2020:584��81–82
Case T-722/18, Repsol v. EUIPO, ECLI:EU:T:2020:592�� 71
Case T-30/20, Promed v. EUIPO, ECLI:EU:T:2020:599�� 79
Case T-176/19, 3V Sigma SpA v. ECHA, ECLI:EU:T:2020:621��100, 101–2, 315–17
Case T-207/18, PlasticsEurope AISBL v. ECHA, ECLI:EU:T:2020:623��101–2
Case T-515/19, Lego v. EUIPO, ECLI:EU:T:2021:155 �� 63
Case T-631/19, Bundesnetzagentur v. ACER (pending)�� 46
Case T-704/19, FGSZ v. ACER (pending).�� 46
Case T-684/19, Magyar Energetikai és Közmű-szabályozási
Hivatal v. ACER (pending) �� 46
Case T-212/20, Gaz-System v. ACER (pending)�� 46
Case T-606/20, Austrian Power Grid e.a. v. ACER (pending) �� 46
Case T-607/20, Austrian Power Grid e.a. v. ACER (pending) �� 46
Case T-632/20, OG v EDA (pending)��…… 132
DECISIONS OF THE CIVIL SERVICE TRIBUNAL

Case F-115/11, CG v. EIB, ECLI:EU:F:2014:187�� 127
OPINIONS OF ADVOCATES GENERAL

Opinion of AG Warner in Case 98/80, Romano, ECLI:EU:C:1980:267�� 140
Opinion of AG Jacobs in Case C-269/90, Technische Universität München,
ECLI:EU:C:1991:317�� 276
Opinion of AG Ruiz-Jarabo Colomer in Joined Cases C-65/95 &
C-111/95, Shingara et Radiom, ECLI:EU:C:1996:451��309–10
Opinion of AG Poiares Maduro in Case C-136/03, Dörr, ECLI:EU:C:2004:651 ��309–10
Opinion of AG Sharpston in Case C-29/05 P, OHIM v. Kaul,
ECLI:EU:C:2006:671�� 139
Opinion of AG Sharpston in Case C-273/05 P, Celltech, ECLI:EU:C:2006:786��76–77
Opinion of AG Bot in Case C-530/12 P, OHIM v. National
Lottery Commission, ECLI:EU:C:2013:782��78, 178–79, 195–96
Opinion of AG Sharpston in Case C-546/12 P, Schräder v. CPVO,
ECLI:EU:C:2014:2373�� 217
Opinion of AG Kokott in Case C-429/09, Fuss, ECLI:EU:C:2017:253�� 315
Opinion of AG Mengozzi in Case C-680/16 P, Dr. August
Wolff v. Commission, ECLI:EU:C:2018:819��284–85
Opinion of AG Campos Sánchez-Bordona in Case C-281/18 P,
Repower AG v. EUIPO, ECLI:EU:C:2019:426�� 188–89, 192–93, 195–96
Opinion of AG Saugmandsgaard Øe in Case C–328/18 P,
EUIPO v. Equivalenza Manufactory, ECLI:EU:C:2019:974��79–80
Opinion of AG Bobek in Case C-702/18 P, Primart v. EUIPO,
ECLI:EU:C:2019:1030�� 180, 189, 190, 195–96, 197–98, 211, 267
Opinion of AG Bobek in Case C-14/19 P, Satcen v. KF, ECLI:EU:C:2020:220 �� 141
Opinion of AG Bobek in Case C‑561/19, Consorzio Italian
Management, ECLI:EU:C:2021:291�� 269
xxiv Table of Cases
Opinion of AG Bobek in Case C-911/19, FBF, ECLI:EU:C:2021:294�� 271

Opinion of Advocate General Tanchev, Case C-283/20, CO, ME, GC and
42 Others v MJ (Head of Mission), European Commission, European
External Action Service (EEAS), Council of the European Union,
Eulex Kosovo, ECLI:EU:C:2021:781�� 123
DECISIONS OF THE BOARDS OF APPEAL
Joint Board of Appeal of the European Supervisory Authorities

Decision 2014 C1 02, SV Capital OÜ/EBA ��22, 24–25
Decision 2014 05, Investor Protection Europe/ESMA��21–22
Decision 2015 01, Onix Asigurări SA/EIOPA �� 20
Decision 2017 01, FinancialCraft Analytics/ESMA��24, 198–99
Decision of 30 November 2018, SEB/ESMA�� 23
Decisions 2019 01-04, Skandinaviska Enskilda Banken
AB e.a./ESMA�� 24–25, 27, 210, 219, 233, 293
Decision 2019 05, Creditreform Rating AG/EBA�� 20, 22, 23–24, 231, 236
Decision 2020 01, Howerton/ESMA�� 17
Decision 2020 02, Howerton/EIOPA �� 17
Decision 2021 01, Howerton/EBA�� 17
Decision 2021 03, Societatea de Asigurare-Reasigurare City Insurance SA/EIOPA�� 14
Appeal Panel of the Single Resolution Board

Decision in Case 1/2016�� 19
Decision in Case 36/2017��22–23
Decision in Case 21/2018�� 9, 26
Board of Appeal of the European Chemicals Agency

Case A-001-2010, N.V. Elektriciteits –Produktiemaatschappij
Zuid-Nederland EPZ �� 96, 98, 282
Case A-004-2011, Kronochem GbmH �� 96, 128
Case A-005-2011, Honeywell��95, 233–34, 290–91
Case A-019-2013, Solutia Europe sprl/bvba��86–87
Case A-020-2013, Ullrich Biodiesel v. ECHA��281–82
Case A-022-2013, REACheck Solutions GmbH�� 92, 94
Case A-004-2014, Altair Chimica e. a�� 282–83, 292
Case A-005-2014, Akzo Nobel Industrial Chemicals and Others�� 95
Case A-007-2014, SA Akzo Nobel Chemicals NV ��89–90
Case A-009-2014, Albemarle Europe �� 291
Case A-013-2014, BASF SE�� 291
Case A-014-2014, BASF Pigment ��282–83
Case A-018-2014, BASF Grenzach��290, 291, 292
Case A-004-2015, Polynt��290, 291
Case A-006-2015, United Initiators GmbH & Co. KG��89–90
Case A-008-2015, Evonik Degussa GmbH��89–90
Case A-009-2015, IQESIL SA ��89–90
Table of Cases xxv
Case A-010-2015, RHODIA OPERATIONS SAS��89–90

Case A-011-2015, J.M. Huber Finland Oy��89–90
Case A-015-2015, Solvay Advanced Silicas Poland SP ZOO��93, 94, 291, 292
Cases A-019-2015 and A-020-2015 , Lysoform Dr. Hans Rosemann
GmbH and others��86–87
Case A-022-2015, Manufacture Française des Pneumatiques Michelin �� 88
Case A-023-2015, Akzo Novel Chemicals e. a �� 233–34, 292
Case A-026-2015, Envigo Consulting and DJChem Chemicals Poland�� 93, 291
Case A-005-2016, Cheminova A/S �� 96, 233–34, 243, 291
Case A-006-2016, SI Group UK e. a �� 290
Case A-009-2016, Symrise AG.�� 93, 244
Case A-006-2017, Climax Molybdenum��282–83, 290–91
Case A-008-2017, SI Group UK and Oxiris Chemicals��290, 291
Case A-011-2017, REACheck Solutions GmbH��86–87, 92
Case A-008-2018, Taminco��264–65
Case A-010-2018, Symrise��96, 101–2
Case A-011-2018, Clariant Plastics & Coatings��96, 101–2
Case A-013-2018, Tecnofluid S.r.l�� 91
Joined Cases A-014-2018 to A-021-2018, Tecnofluid s.r.l��93–94
Case A-001-2019, Solvay Fluor��96, 101–2
Board of Appeal of the European Union Aviation Safety Agency

AP/01/2012, Heli-Flight GmbH & Co. KG v. EASA��111, 112–15, 198–99,
210, 211–12, 217, 295
AP/03/2012, Stephen Luck v. EASA��106, 107–8
AP/12/2012, Heli-Flight GmbH & Co. KG v. EASA��106, 107–8, 117–18
AP/04/2013, Robinson Helicopter Company v. EASA�� 106, 107–8, 109, 110, 128
AP/06/2013, Issoire Aviation v. EASA�� 106, 107–8, 109, 210, 217, 295
AP/04/2017, Reiner Stemme Utility Air-Systems GmbH v. EASA �� 106, 107–8, 109
Board of Appeal of the European Union Agency for

the Cooperation of Energy Regulators
Decision A-001-2015�� 40, 46
Decision A-001-2017�� 40, 46
Decision A-001-2017_R��46, 49–50
Decision A-001-2018�� 46, 49, 51–52, 210, 217, 295
Decision A-002-2018��44–45, 295
Decision A-001-2019��46–47, 273–74, 283
Decision A-003-2019�� 237
Decision A-004-2019��46, 48–49
Decision A-006-2019��46, 51, 55, 56, 296
Decision A-001-2020�� 46
Decision A-002-2020�� 46
Decision A-003-2020�� 43–44, 46–47
Decision A-007-2020�� 46–47, 53–54
Decision A-008-2020��53–54
Board of Appeal of the Community Plant Variety Office

A004/2008, Fachjan v. CPVO �� 76
A008/2013, Walter Gardens Inc v. CPVO�� 76
A010/2013, Aurora Srl v. CPV0. ��69–70
xxvi Table of Cases
Board of Appeal of the European Union Intellectual Property Office

R 1123/2018-1, Jules Gents�� 74
R 1034/2019-4, Shape of a Toaster�� 74
DECISIONS OF THE EUROPEAN COURT OF HUMAN RIGHTS

Le Compte, van Leuven and de Meyere v Belgium App no 6878/75
(ECtHR, 23 June 1981) ��307–9
Albert and Le Compte v Belgium App no 7299/75 (ECtHR, 10 February 1983) ��307–9
Van de Hurk v The Netherlands App no 16034/90 (ECtHR, 19 April 1994)�� 218
Bryan v the United Kingdom App no 19178/91 (ECtHR,
22 November 1995)��3, 307–9, 317
Terra Woningen v the Netherlands App no 20641/92
(ECtHR, 17 December 1996) ��3, 307–9
Helle v Finland App no 20772/92 (ECtHR, 19 December 1997)��307–9
Lenzing AG v Germany App no 39025/97 (ECtHR, 9 September 1998)�� 259
Menarini Diagnostics v Italy App no 43509/08 (ECtHR, 27 September 2011) �� 294
Fazia Ali v the United Kingdom App no 40378/10 (ECtHR, 20 October 2015)��3, 307–9
List of Contributors
Jacopo Alberti is Associate Professor of EU Law at the University of Ferrara
Graham Butler is Associate Professor of Law at Aarhus University
Merijn Chamon is Assistant Professor of EU Law at Maastricht University and Visiting

Professor at the College of Europe (Bruges)
Luca De Lucia is Professor of Administrative Law at Salerno University
Mariolina Eliantonio is Professor of European and Comparative Administrative Law and

Procedure at Maastricht University
Diane Fromage is a Marie Skłodowska-Curie Individual Fellow at the Law School of

Sciences Po Paris
Dominik Hanf is Head of Litigation Service (a.i.) at the European Union Intellectual
Property Office and Visiting Professor at the College of Europe (Bruges)
Leonhard den Hertog is Policy Advisor to MEP Sophie in ‘t Veld
Michał Krajewski is Postdoctoral Research Fellow at iCourts Centre of Excellence for

International Courts, University of Copenhagen
Eléonore Mullier is Partner at Steptoe & Johnson LLP.
Laura Muzi is Academic Fellow at Bocconi University
Sofie Oosterhuis is PhD Candidate in European Administrative Law at Utrecht University
Dominique Ritleng is a Professor of EU Law at the University of Strasbourg and a Visiting

Professor at Uppsala University
Marta Simoncini is Assistant Professor in Administrative Law at Luiss University
Marco Stefan is Research Fellow in the Justice and Home Affairs Unit at CEPS
Carlo Tovo is référendaire at the Court of Justice of the EU
Micaela Verissimo is Section Manager—Air Operations Standards at the EASA
Annalisa Volpato is Assistant Professor of European Administrative Law at Maastricht

University
Rob Widdershoven is Professor of European Administrative Law at Utrecht University and

Advocate General at the Dutch Council of State
Introduction
Merijn Chamon, Annalisa Volpato, and Mariolina Eliantonio
One of the most significant institutional developments in EU law over the past
decades has been the agencification of the EU administration.1 This phenomenon
may be defined as (EU) agencies taking up an increasingly important role in (EU)
administration both in a qualitative and a quantitative sense.2 The latter is cap-
tured most easily: not only is the number of agencies growing, the total number
of civil servants working at EU agencies and the total combined budgets of the
EU agencies are also continuously increasing.3 Admittedly, the qualitative dimen-
sion is more difficult to capture, but that increasingly important powers and tasks
are conferred on EU agencies is evident when looking at recent developments in
policy fields as diverse as financial regulation, border control, and public health.
Indeed, in new institutionalist terms, a logic of appropriateness, rather than a logic
of consequences,4 has appeared: today the EU legislature does not simply seem to
establish and empower EU agencies because they are a rational response to policy
challenges, but instead because the ‘appropriate’ way to tackle almost any type of
policy crisis or priority at EU level seems to be to (further) empower independent
bodies.5
1 See generally Wolfgang Weiß, ‘Dezentrale Agenturen in der EU- rechtsetzung’ (2016) 51
Europarecht 6, 631–5; Rostane Mehdi, ‘Le pouvoir de décision à l’épreuve de “l’agenciarisation” de
l’Union—Quelques questions constitutionnelles’ in Fabrice Picod, Brunessen Bertrand, and Sébastien
Roland (eds), L’identité du droit de l’Union européenne: Mélanges en l’honneur du Doyen Cl. Blumann
(Bruylant 2015) 698–713; Herwig Hofmann and Alessandro Morini, ‘Constitutional Aspects of the
Pluralisation of the EU Executive through “Agencification” ’ (2012) 37 ELRev 4, 419–43.
2 See Merijn Chamon, EU Agencies: Legal and Political Limits to the Transformation of the EU
Administration (OUP 2016) 45.

3 See TARN, Agencification of EU Executive Governance, TARN Policy Brief 2019/1, p 4.
4 See Ole Jacob Sending, ‘Agency, Order and Heteronomy’ (2016) 3 European Review of
International Studies 3, 66–7. Applied to the EU agencies, see Merijn Chamon, ‘The European Railway
Agency under the Fourth Railway Package: A Political and Legal Perspective’ in Cécile Rapoport (ed),
L’espace ferroviaire unique européen: Quelle(s) réalités (Bruylant 2015) 173.
5 For instance, to make the EU more social, then Commission President Juncker in his 2017 State of
the Union Speech proposed a ‘European Social Standards Union’ and pushed the establishment of a new
agency, the European Labour Authority. See Bart Vanhercke, Sebastiano Sabato, and Dalila Ghailani,
‘Conclusions: The European Pillar of Social Rights as a game changer’ in ETUI Nineteenth Annual
Report, Social policy in the European Union: state of play 2018, 160. In the wake of the COVID-19 pan-
demic, the European Commission proposed to beef up the European Centre for Disease Prevention and
Control, see European Commission, COM(2020) 726 final. The European Supervisory Authorities in
turn were established in the wake of the financial crisis (see also Chapter 1 by Chamon and Fromage in
this volume). For earlier examples, see Marc Blanquet and Nathalie de Grove-Valdeyron, ‘Le recours à
Merijn Chamon, Annalisa Volpato, and Mariolina Eliantonio, Introduction In: Boards of Appeal of EU Agencies. Edited
by: Merijn Chamon, Annalisa Volpato, and Mariolina Eliantonio, Oxford University Press. © Merijn Chamon, Annalisa Volpato,
and Mariolina Eliantonio 2022. DOI: 10.1093/oso/9780192849298.003.0001
2 Merijn Chamon, Annalisa Volpato, and Mariolina Eliantonio
Since the mid-1990s academics’ and practitioners’ interest in the EU agencies

has grown and the EU agencies have become a research topic in their own right.6 In
the meanwhile, different research strands are branching off that of the general re-
search on EU agencies. One of these is the topic of the present volume: the Boards
of Appeal, that is internal review bodies of EU agencies. These bodies allow for
a further level of administrative protection, preceding the judicial review acts of
these agencies’ acts that is provided under the EU Treaties.7
Historically, the first EU agencies established with a Board of Appeal were
the EU Intellectual Property Office (EUIPO) and the Community Plant Variety
Office (CPVO), following the example of the Boards of Appeal in the European
Patents Office,8 that have been working since the 1970s.9 Since then, their ranks
were joined by the European Aviation Safety Agency (EASA), the European
Chemicals Agency (ECHA), the European Agency for the Cooperation of Energy
Regulators (ACER), the three European Supervisory Authorities (ESAs), the Single
Resolution Board (SRB), and the European Railway Agency (ERA). The ERA
is an interesting case in point. So far it is the only decision-making agency that
was not originally established in 2004 with decision-making powers.10 The other
decision-making agencies were established as such ab initio but the ERA only re-
ceived ‘decision-making powers’ pursuant to the fourth railway package in 2016.11
The revision of its mandate meant that a Board of Appeal was also included in the
ERA’s organizational set-up.12 From the EU institutions’ practice, one clear rule
des agences de l’Union en réponse aux questions de sécurité’ in Joël Molinier (ed), Les agences de l’Union
européenne (Bruylant 2011) 103.
6 The body of literature on EU agencies has become too vast, but ex multis, see inter alia Dorothee
Fischer-Appelt, Agenturen der Europäischen Gemeinschaft (Duncker & Humblot 1999) 609 (here-
after Fischer-Appelt, Agenturen); Edoardo Chiti, Le agenzie europee—Unità e decentramento nelle
amministrazioni comunitarie (Cedam 2002) 514 ; Giacinto Della Cananea (ed), European Regulatory
Agencies (Éditions Rive Droite, 2005) 199; Joël Molinier (ed), Les agences de l’union européenne
(Bruylant 2011) 268; Nicolas Raschauer (ed), Europäische Agenturen (Jan Sramek Verlag 2011) 253;
Michelle Everson, Cosimo Monda, and Ellen Vos (eds), European Agencies in between Institutions
and Member States (Kluwer Law International 2014) 312; Merijn Chamon, EU Agencies: Legal and
Political Limits to the Transformation of the EU Administration (OUP 2016) 432 (hereafter Chamon,
Limits to the Transformation of the EU Administration); Carlo Tovo, Le agenzie decentrate dell’Unione
europea (Editoriale Scientifica 2016) 474 (hereafter Tovo, Le agenzie); Andreas Orator, Möglichkeiten
und Grenzen der Einrichtung von Unionsagenturen (Mohr Siebeck 2017) 549; Jacopo Alberti, Le
agenzie dell’Unione europea (Giuffrè 2018) 490 p.; Natalia Kohtamäki, Theorising the Legitimacy of EU
Regulatory Agencies (Peter Lang 2019) 429 (hereafter Kohtamäki, Theorising the Legitimacy).
7 Marta Simoncini, Administrative Regulation beyond the Non-Delegation Doctrine. A Study on EU
Agencies (Hart Publishing 2018) 158 (hereafter Simoncini, A Study on EU Agencies).

8 Oliver Streckert, Verwaltungsinterner Unionsrechtsschutz: Kohärenter Rechtsschutz durch
Einführung eines Widerspruchskammermodells für die Europäische Kommission (Mohr Siebeck 2016) 48.
9 The first edition of the EPO’s overview of the case law of its Boards of Appeal notes that the very
EPO BoA decision was adopted on 1 March 1979, see EPO, Case Law of the Boards of Appeal of the
European Patent Office 1987–1992, München, EPO, p 12.
10 See Regulation (EC) 881/2004 establishing a European Railway Agency [2004] OJ L164/1.
11 See Regulation (EU) 2016/796 on the European Union Agency for Railways [2016] OJ L138/1.
12 See also Chapter 2 by Tovo in this volume.
Introduction 3
thus emerges: decision-making agencies always have Boards of Appeal, regardless

of how many decisions these agencies adopt per year. Indeed, while for one of the
first two decision-making agencies (the EUIPO) the sheer number of decisions re-
quires a filter, consisting of the review exercised by the Board of Appeal, in order
to ensure that the General Court is not swamped with cases,13 the same does not
apply to the other agencies.14
Instead, part of the raison d’être of the Boards of Appeal, together with the speedy
and procedurally light weight review (see below), in these other agencies is to allow
a review of technically or factually complex cases by panels with expertise in the
field concerned. The review offered by those Boards of Appeal is then to be con-
trasted with the review exercised by the EU judge. The latter will in any event have
full jurisdiction in the sense of Article 6 of the European Convention on Human
Rights (ECHR),15 but given that it lacks specific scientific or technical expertise it
will typically only exercise a light touch review.16 In contrast, the Boards of Appeal
may provide a more thorough review and provide greater legal protection beyond
that which is required under Article 6 ECHR (when combined with the review ex-
ercised by the Courts).17
The additional added value of this internal review (compared to the ‘external’
review offered by the EU Courts) should be that, given their mixed composition
(of lawyers and experts), they can perform a more thorough review of technical
or scientifically complex decisions than ordinary judges. In addition, proceedings
13 See Chapter 3 by Hanf in this volume.

14 The exception here is the ECHA BoA for which the Commission had anticipated a signifi-
cant workload (of 549 cases in 2010) when the REACH Regulation was proposed but ultimately the
BoA’s workload remained very modest overall. See Chamon, Limits to the Transformation of the EU
Administration (n 6) 343 at footnote 246.
15 While the requirement of full jurisdiction has not fully crystallized yet, the EU Courts arguably
comply with the requirement that they must be able to review all relevant questions of fact and law,
see Terra Woningen v the Netherlands App no 20641/92 (ECtHR, 17 December 1996), para 52. On
the (sometimes erratic) jurisprudence of the ECtHR, see Miriam Allena and Francesco Goisis, ‘ “Full
Jurisdiction” under Article 6 ECHR: Hans Kelsen v. the Principle of Separation of Powers’ (2020) 26
EPL 2, 287–306.
16 Under the European Court of Human Rights’ (ECtHR) jurisprudence, this is indeed acceptable
and compatible with the idea of full jurisdiction. This is because the latter does not impose a single
uniform standard but only that ‘sufficient review’ is exercised whereby what is sufficient may vary
depending on several factors, such as when the dispute concerns ‘a specialised issue requiring profes-
sional knowledge or experience and whether it involved the exercise of administrative discretion and
if so, to what extent’. See Fazia Ali v the United Kingdom App no 40378/10 (ECtHR, 20 October 2015),
para 78.
17 This is because under the ECtHR’s jurisprudence, even when a body like a Board of Appeal might
not meet the requirements under Article 6 ECHR this can be remedied if that body’s proceedings are
subject to a subsequent appeal before a judicial body that does have full jurisdiction. See Bryan v the
United Kingdom App no 19178/91 (ECtHR, 22 November 1995), para 40. In contrast, Coutron suggests
that both before the Boards of Appeal and the EU Courts, Article 6 ECHR is respected. See Laurent
Coutron, ‘L’infiltration des garanties du procès équitable dans les procédures non juridictionnelles’ in
Caroline Picheral (ed), Le droit à un procès équitable au sens du droit de l’Union européenne (Anthemis
2012) 186 (hereafter Coutron, ‘L’infiltration’). Whether that is the case for the Boards of Appeal de-
pends, inter alia on whether they can be qualified as independent tribunals which does not seem to be
the case for most Boards of Appeal as transpires from the case studies in the first part of this volume.
before Boards of Appeal are also much more speedy than proceedings before the
Courts18 and they are subject to much less cumbersome or strict procedural re-
quirements, as they for instance do not require parties to be represented by quali-
fied lawyers and lodging an appeal may often be done simply by email. In addition
to these features that are especially interesting for litigants, one ‘systemic’ added
value is that the Boards of Appeal may fulfil a filtering function, sieving cases be-
fore they are lodged before the EU Courts. The Boards of Appeal have become a
characteristic feature of the agencification phenomenon and while the process of
EU agencification itself is characterized by ad hocery,19 the EU legislature has been
remarkably consistent in ‘equipping’ all agencies that have been granted decision-
making powers20 with a Board of Appeal.
So far, so good. But this specific characteristic feature of EU agencification raises
a host of questions from both a theoretic and practical perspective which are only
now starting to be systematically analysed.21 Are the Boards of Appeal judicial
bodies or are they an integral part of the agency in which they were established
and thus administrative in nature? Or are they to be considered an additional layer
of the judicial system? The distinction is not trivial since the standards, in terms
of organization and functioning, which they will have to comply with will be dif-
ferent depending on which ‘branch of government’ they form part of. At least ori-
ginally, some regarded the Boards of Appeal as exercising a judicial function,22 but
the more recent Boards of Appeal function differently from the original Boards
of Appeal of the EUIPO and CPVO,23 suggesting that they are administrative
bodies. This has led commentators to qualify them as ‘quasi-judicial bodies’,24 ‘not
courts . . . but not merely administrative bodies either’.25 It is precisely this ‘quasi’,
which denotes a hybridity, that raises the question on the nature of the Boards of
Appeal. From this fundamental question follows a plethora of more practical ques-
tions: if Boards of Appeal are equipped with technical expertise, do they also rely
on that expertise and offer applicants greater legal protection? Which type of par-
ties have recourse to the Boards of Appeal? What is the scope of review exercised by
18 Between 2015 and 2019, the average length of proceedings (resulting in both orders and judg-
ments) before the General Court was 18.5 months (own calculations based on Cour de Justice de
l’Union européenne, Rapport annuel 2019, Luxembourg, 2020, p 297).
19 Michelle Everson, Cosimo Monda, and Ellen Vos, ‘European Agencies in between Institutions and
Member States’ in Michelle Everson, Cosimo Monda, and Ellen Vos (eds), European Agencies in be-
tween Institutions and Member States (Kluwer Law International 2014) 4.
20 Kohtamäki, Theorising the Legitimacy (n 6) 108.
21 For earlier research on the Boards of Appeal, see n 26–28.
22 Marcus Navin- Jones, ‘A Legal Review of EU Boards of Appeal in Particular the European
Chemicals Agency Board of Appeal’ (2015) 21 European Public Law 1, 158 (hereafter Navin-Jones, ‘A
Legal Review’).
23 For the first dedicated work on the Boards of Appeal, which, however, only related to the EUIPO
and CPVO, see Amina Dammann, Die Beschwerdekammern der Europäischen Agenturen (Peter Lang
2003) (hereafter Dammann, Die Beschwerdekammern)
24 Fischer-Appelt, Agenturen (n 6) 314.
25 Navin-Jones, ‘A Legal Review’ (n 22) 144–5.
Introduction 5
the Boards of Appeal? What procedure applies before them? And, from an analyt-
ical perspective and squaring the circle, what do the answers to the latter questions
tell us in turn about the nature of the Boards of Appeal?
So far, the topic of the Boards of Appeal has not yet been explored and researched
in depth. There are some case studies dedicated to specific Boards of Appeal;26
while in some general studies on EU agencification27 or on legal protection vis-à-
vis agencies,28 some attention is being devoted to the mechanism of the Board of
Appeal. Very few specific studies on the Boards of Appeal have been conducted.29
Yet, no study has examined in an overarching and coherent manner how the Board
of Appeal as a mechanism should be conceptualized and how it should be assessed
in light of its rationale. This is a clear gap in current research and literature which
this volume aims to fill.
Some of the abovementioned questions are addressed in the first part of this
volume which brings together case studies of the Boards of Appeal. As editors we
made the conscious decision to include these case studies, since even if all Boards
of Appeal share some communalities, the above noted ad hocery in agencification
has also meant significant differences in the area of legal protection as there are
no two Boards of Appeal that function in the same way. In every case study the
above-noted questions are then tackled both in deductive and inductive fashion.
26 Navin- Jones, ‘A Legal Review’ (n 22) 143–68; Régis Vabres, ‘La commission de recours des
autorités européennes de surveillance’ (2012) Bulletin Joly Bourse 1, 4–5; William Blair, ‘Board of
Appeal of the European Supervisory Authorities’ (2013) 24 European Banking Law Review 2, 65–171;
Théophile Margellos, ‘La pratique du règlement négocié auprès des Chambres de recours de l’Office de
l’Harmonisation dans le Marché Intérieur’ (2013) RAE 2, 299–308; David Thomas, ‘European Chemical
Agency Board of Appeal Decisions in Honeywell and Dow Chemicals’ (2013) 20 MJ 4, 609–22; Marco
Lamandini, ‘The ESAs’ Board of Appeal as a Blueprint for the Quasi-Judicial Review of European
Financial Supervision’ (2014) 4 European Company Law 6, 284–90; Eléonore Mullier and Ruxandra
Cana, ‘The ECHA Board of Appeal and the Court of Justice: Comparing and Contrasting Chemicals
Litigation’ (2018) 1 International Chemical Regulatory and Law Review 3, 105–13; Marco Lamandini
and David Ramos Munoz, ‘Law and Practice of Financial Appeal Bodies (ESAs’ Board of Appeal, SRB
Appeal Panel): A View from the Inside’ (2020) 57 CMLRev 1, 119–60; Luca Bolzonello, ‘Independent
Administrative Review within the Structure of Remedies under the Treaties: The Case of the Board
of Appeal of the European Chemicals Agency’ (2016) 22 EPL 3, 569–81; Manuel Cienfuegos Mateo,
‘El control de las agencias del Sistema Europeo de Supervisión Financiera por la Sala de Recurso y el
Tribunal de Justicia de la Unión Europea’ (2018) 110 Revista Vasca de Administración Pública, 215–65.
27 See inter alia Fischer-Appelt, Agenturen (n 6) 313–16; Chamon, Limits to the Transformation of the
EU Administration (n 6) 338–46; Tovo, Le agenzie (n 6) 334–42; Simoncini, A Study on EU Agencies (n

7) 157–62.
28 Loïc Grard, ‘Le Contrôle des Actes des Agences de Régulation: Analyse Comparée’ in Fabienne
Peraldi Leneuf and Jacques Normand (eds), La légistique dans le système de l’Union européenne: quelle
nouvelle approche (Bruylant 2012) 150–53; Merijn Chamon, ‘Les agences décentralisées et le droit
procédural de l’UE’ (2016) 52 Cahiers de droit européen 2, 555–61; Katharina Pabel, ‘Europäische
Agenturen: Rechtsschutz’ in Nicolas Raschauer (ed), Europäische Agenturen (Jan Sramek Verlag 2011)
76–81 ; Jules David, ‘Les recours administratifs contre les actes des agences européennes’ (2016) Revue
trimestrielle de droit européen 2, 275–92; Barbara Marchetti (ed), Administrative Remedies in the
European Union (Giappichelli Editore 2017) 320.
29 Dammann, Die Beschwerdekammern (n 23) 230; Paolo Chirulli and Luca De Lucia, ‘Specialised
Adjudication in EU Administrative Law: The Boards of Appeal of EU Agencies’ (2015) 40 European Law
Review 6, 832–57; Estanislao Arana Garcia, Los recursos administrativos en la Unión Europea: Hacia
un modelo común de justicia administrative, (2015) Working Papers IDEIR 27.
Deductively, because every Board of Appeal’s functioning and organization is de-

fined first in the establishing regulation of its agency. From those secondary law
provisions, preliminary answers on our overarching questions may be deduced.
However, to present a full and veracious picture of a Board of Appeal, account
must also be taken of its corpus of decisions to complement the aforementioned
preliminary answers. Inductively, further (refined) insights may then be identi-
fied from the institutional practice of the Boards of Appeal. The first part of the
volume brings together chapters by Chamon and Fromage on the Boards of Appeal
of the European Supervisory Authorities (ESAs) and Systemic Risk Board (SRB)
(1); by Tovo who analyses the Boards of Appeal of the Agency for the Cooperation
of Energy Regulators (ACER) and EU Agency for Railways (ERA) (2); by Hanf
who looks into the two original Boards of Appeal of the EUIPO and CPVO (3);
by Volpato and Mullier who investigate the Board of Appeal of the European
Chemicals Agency (ECHA) (4); and by Simoncini and Verissimo who study the
Board of Appeal of European Union Aviation Safety Agency (EASA) (5). In add-
ition, two further studies were included in the volume’s first part although they are
not dedicated to typical Boards of Appeal. While they have not been established
as decision-making agencies, the agencies in the Common Foreign and Security
Policy (CFSP) and the Area of Freedom, Security and Justice (AFSJ) have also (re-
cently) been endowed with specialized review mechanisms. These are assessed by
Butler (6) and Stefan and Den Hertog (7) respectively and were included in our
project to capture and identify possible broader trends in specialized review in the
EU’s administration.
These chapters of the first part lay the groundwork for the ‘horizontal’ second
part of the volume. As noted above, the specificities of each Board of Appeal do
not preclude that a similar, if not identical, function can be identified across the
different Boards of Appeal. Since the entry into force of the Lisbon Treaty, this is
also reflected in primary law. While the Treaty is pretty much silent on EU agen-
cies,30 a notable exception are the provisions on judicial protection. Article 263(5)
TFEU, in particular, provides that ‘[a]‌cts setting up bodies, offices and agencies of
the Union may lay down specific conditions and arrangements concerning actions
brought by natural or legal persons against acts of these bodies, offices or agencies
intended to produce legal effects in relation to them.’ This provision has been in-
terpreted as allowing for more favourable standing requirements for non-privil-
eged applicants,31 as well as requiring the latter to exhaust the remedies before the
Boards of Appeal of EU agencies before seizing the EU Courts.32
However, the relative uniformity which this provision introduced in primary
law was subsequently broken when the Statute of the Court of Justice was amended
30 Chamon, Limits to the Transformation of the EU Administration (n 6) 290.

31 Coutron, ‘L’infitration’ (n 17) 182.
32 Kohtamäki, Theorising the Legitimacy (n 6) 160 at footnote 242.
Introduction 7
in 2019. Through Regulation 2019/629,33 an Article 58a was added to the Statute
which makes the possibility of introducing an appeal against a judgment of the
General Court, where the latter ruled on a decision of an ‘independent Board of
Appeal’ of the EUIPO, CPVO, ECHA, EASA or any decision-making agency estab-
lished in the future, subject to the approval by the Court of Justice. The many ques-
tions which this amendment raised are analysed in the chapter by De Lucia (8). To
better understand the potential and possible future evolution of the EU Boards of
Appeal, Oosterhuis and Widdershoven explore the counterparts of the EU BoAs in
a selection of national legal orders (9). Muzi in her chapter addresses the question
what kind of parties make use of the review procedures offered by the Boards of
Appeal (10). Subsequently, Alberti, starting from the theoretic and practical conse-
quences of the elusive notion of ‘functional continuity’, looks at how the recent re-
form of the Statute of the Court of Justice has impacted the Boards’ independence
(and how, arguably, that independence should be further enhanced) (11). Next,
Krajewski scrutinizes the promise of the main added value which Boards of Appeal
may theoretically offer: the more in-depth scrutiny of technically complex deci-
sions compared to the scrutiny offered by EU Courts (12). Finally, Ritleng investi-
gates how the Boards of Appeal should be assessed from the perspective of Article
47 of the Charter of Fundamental Rights (CFR) (13). In a final Chapter we present
a conclusion and identify a future research agenda based on the chapters of Parts
I and II.
33 Regulation (EU, Euratom) 2019/629 amending Protocol No 3 on the Statute of the Court of Justice
of the European Union [2019] OJ L111/1.

1
Between Added Value and Untapped
Potential: The Boards of Appeal in the Field
of EU Financial Regulation
Merijn Chamon and Diane Fromage*
1.1 Introduction
In response to the Great Financial Crisis of 2008, the European System of Financial
Supervision (ESFS) was established in 2010. Under this System, macro and
micro prudential supervisory powers were conferred on European bodies for
the first time. In line with Article 2(2) of the European Supervisory Authorities
Regulations (ESAs Regulations),1 the ESFS is composed of the European Systemic
Risk Board (ESRB) in charge of macro financial supervision; the three European
Supervisory Authorities (ESAs) (the European Banking Authority (EBA), the
European Securities and Markets Authority (ESMA) and the European Insurance
and Occupational Pensions Authority (EIOPA)) in charge of the micro pruden-
tial supervision of banks, markets, and insurance, respectively; the ESAs Joint
Committee which ensures the necessary coordination between the ESAs (and
which is headed by the chairpersons of the ESAs); and the competent national
authorities.2
Soon after its establishment, the ESFS demonstrated certain limitations
prompting Euro area Member States to establish the European Banking Union
(EBU) in 2012.3 The EBU is composed of three pillars: the Single Supervisory
* Diane Fromage acknowledges that her contribution to this chapter is the outcome of research con-
ducted in the framework of the research project IMPACTEBU, a project that received funding from the
European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-
Curie grant agreement No 895841.
1 Regulation (EU) 1093/ 2010 establishing the European Banking Authority [2010] OJ L331/12,
Regulation (EU) 1094/2010 establishing the European Insurance and Occupational Pensions Authority
[2010] OJ L331/48, and Regulation (EU) 1095/2010 establishing the European Securities and Markets
Authority [2010] OJ L 331/84 (hereafter ESAs Regulations).
2 For general information on the EFSF, ESRB, and the ESAs, see Gianni Lo Schiavo and Alexander
Türk, ‘The Institutional Architecture of EU Financial Regulation: The Case of the European Supervisory
Authorities in the Aftermath of the European Crisis’ in Leila Simona Talani (ed), Europe in Crisis: A
Structural Analysis (Palgrave Macmillan 2016) 89–121.
3 European Commission, Communication on Completing the Banking Union, COM(2017) 592
final, 3.
Merijn Chamon and Diane Fromage, Between Added Value and Untapped Potential: The Boards of Appeal in
the Field of EU Financial Regulation In: Boards of Appeal of EU Agencies. Edited by: Merijn Chamon, Annalisa
Volpato, and Mariolina Eliantonio, Oxford University Press. © Merijn Chamon and Diane Fromage 2022.
DOI: 10.1093/oso/9780192849298.003.0002
Between Added Value and Untapped Potential 9
Mechanism (SSM), within which, essentially, the European Central Bank (ECB) is
in charge of the prudential supervision of credit institutions; the Single Resolution
Mechanism (SRM) which consists of the establishment of a common mechanism
for the orderly resolution of credit institutions and which is headed by an EU
agency, the Single Resolution Board (SRB); and a European Deposit Insurance
Scheme (EDIS) which still has to be established.4 The creation of the ESFS and the
EBU has thus brought about important changes to the institutional system of the
EU. These have included the creation of new agencies, as well as a far-reaching re-
form of the ECB within which a ‘Chinese wall’ had to be erected to separate its or-
gans in charge of conducting the monetary policy function of the European Union
(EU) from those in charge of financial supervision.5
One of the features of this new institutional landscape is the possibility of in-
ternal review for the decisions adopted by the ECB and the agencies. While these
review mechanisms will be studied in the present chapter to contribute to an-
swering the overall research question of this volume, that is to determine the na-
ture of the Boards of Appeal (BoAs) and the type of review they offer, it should be
noted that the Joint Board of Appeal (JBoA) of the ESAs and the Appeal Panel (AP)
of the SRB on the one hand, and the Administrative Board of Review (ABoR) of the
SSM on the other, operate rather differently. Among other things, the ABoR pro-
vides ‘solely’ the possibility for review, resulting in a non-binding opinion for the
ECB. By contrast, the decisions of the JBoA and the AP are binding, and follow ap-
peal procedures that need to be exhausted before going to the EU Courts.6 Owing
to these differences and to the focus on EU agencies in this volume, this chapter
will not consider the ABoR.7 Instead, it will provide a comparative analysis of the
JBoA and the AP with a view to assessing their suitability in providing an effective
and swift remedy to individuals, and with a view to identifying any potential need
for reform.
4 For general information on the EBU, see Giuseppe Boccuzzi, The European Banking
Union: Supervision and Resolution (Palgrave Macmillan 2016).

5 See Article 25 of Regulation (EU) 1024/2013 conferring specific tasks on the European Central
Bank concerning policies relating to the prudential supervision of credit institutions [2013] OJ L287/
63 (hereafter SSM Regulation). See on this separation, Matthias Goldmann, ‘United in Diversity? The
Relationship between Monetary Policy and Prudential Supervision in the Banking Union’ (2018) 14
European Constitutional Law Review 2, 283–310.
6 However, two parallel procedures may be launched where they do not overlap. See Case 21/18, para
34 of the AP.
7 On the ABoR see for instance, William Blair, ‘The ABoR and the Role of Independent Panels
of Administrative Review: An Introduction’ in ECB, Building Bridges: Central Banking Law in an

Interconnected World. ECB Legal Conference 2019, 333– 4; Concetta Brescia Mora, ‘Nature and
Role of the ABoR’ in ECB, Building Bridges: Central Banking Law in an Interconnected World. ECB
Legal Conference 2019, 335–49; and Concetta Brescia Mora, René Smits, and Andrea Magliari, ‘The
Administrative Board of Review of the European Central Bank: Experience after 2 Years’ (2017) 18
European Business Organisation Law Review 3, 567–89.
10 Merijn Chamon and Diane Fromage
This chapter first introduces the main features of these bodies (Section 1.2), be-
fore their corpus of decisions to date is examined (Section 1.3). The conclusion
offers an assessment, and discusses potential avenues for reform (Section 1.4).
1.2 The Joint Board of Appeal and

the Appeal Panel: Main Features
This sub-section presents the main features of these bodies by first comparing the
provisions defining their establishment and composition (Section 1.2.1). Second,
their competences and the procedures before them are compared (Section 1.2.2).
1.2.1 Establishment and composition
The establishment and functioning of the JBoA are laid down in Articles 58 to 61 of
the ESAs Regulations, whilst the AP is defined in Article 85 of the SRM Regulation.8
The differences and similarities in their composition and their functioning, as de-
fined in the establishing regulations, are highlighted in Table 1.1 below.
Table 1.1 clearly shows that the provisions of the AP were very much inspired by
those of the older JBoA.9 At the same time, however, the provisions applicable to
the JBoA are more elaborate than those of the AP, though this is partially the result
of the reform of the ESAs Regulations conducted in 2019. Indeed, on that occasion,
the requirements were added in relation to members’ international experience and
knowledge of EU law, nationality of the members and their knowledge of EU lan-
guages, and the involvement of the European Parliament in the appointment of the
members. Unlike the BoAs of other agencies, the JBoA and AP may adopt their
own rules of procedure, and no power is granted to the Commission to adopt ter-
tiary law on the composition or functioning of the JBoA or AP. Whereas, for in-
stance, the qualifications of the members of the BoA of the European Chemicals
Agency (ECHA) and the European Union Aviation Safety Agency (EASA) are
detailed in acts of the Commission,10 the ESAs and the SRM Regulations only
8 Regulation (EU) 806/2014 establishing uniform rules and a uniform procedure for the resolution
of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism
and a Single Resolution Fund [2014] OJ L 225/1 (hereafter SRM Regulation).
9 As also noted by Lamandini and Ramos Muñoz, see Marco Lamandini and David Ramos Muñoz,
‘Appeal Bodies of EU Financial Regulatory Agencies: Are We Where We Should Be?’ in ECB, Building
Bridges: Central Banking Law in an Interconnected World. ECB Legal Conference 2019, 386 (hereafter
Lamandini and Ramos Muñoz, ‘Appeal Bodies of EU Financial Regulatory Agencies’).
10 See Commission Regulation 104/2004 laying down rules on the organisation and composition of
the Board of Appeal of the EASA [2004] OJ L16/20 and Commission Regulation 1238/2007 on laying
down rules on the qualifications of the members of the Board of Appeal of the ECHA [2007] OJ L280/
10.
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fully capable of discerning the sublime genius and most
extraordinary talents of that man whom he greatly admired. While
Mr. Jefferson resided in Philadelphia, as secretary of State, he made
frequent visits to Dr. Rittenhouse: he thus became intimately
acquainted with his character, for which he conceived the highest
respect; and, as a mark of his esteem for him, he presented him with
his own bust, in the costume of the day, cast in plaster, from one in
marble executed by Houdon, of Paris.
Mr. Jefferson has testified to the world the exalted opinion he

entertained of our Philosopher. In his refutation of the Count de
Buffon’s preposterous theory, “of the tendency of nature to belittle
her productions on this side the Atlantic,” he makes the following
remarks, on the assertion of another French philosopher[288]—that
America has not produced “one able mathematician, one man of
genius in a single art or a single science:”—“In war,” says Mr.
Jefferson, “we have produced a Washington, whose memory will
be adored while liberty shall have votaries, whose name will triumph
over time, and will in future ages assume its just station among the
most celebrated worthies of the world: when that wretched
philosophy shall be forgotten, which would have arranged him
among the degeneracies of nature. In physics,“ continues Mr.
Jefferson, “we have produced a Franklin, than whom no one of the
present age has made more important discoveries, nor has enriched
philosophy with more, or more ingenious solutions of the
phænomena of nature.—We have supposed Mr. Rittenhouse
second to no astronomer living: that in genius, he must be the first,
because he is self-taught. As an artist he has exhibited as great a
proof of mechanical genius, as the world has ever produced. He has
not indeed made a world; but he has by imitation approached nearer
its Maker, than any man who has lived from the creation to this
day.”[289]
Mr. Jefferson retained the highest esteem for Dr. Rittenhouse,

during his life; and it is believed this sentiment was mutual. Letters of
friendship were occasionally interchanged by them: part of one of the
latest of these, is as follows:
“Monticello, Feb. 24, 1795.
“Dear Sir,
....[290]
“I am here immersed in the concerns of a farmer, and more

interested and engrossed by them, than I had ever conceived it
possible. They in a great degree render me indifferent to my books,
so that I read little and ride much; and I regret greatly the time I have
suffered myself to waste from home. To this, indeed, is added
another kind of regret, for the loss of society with the worthy
characters with which I became acquainted, in the course of my
wanderings from home. If I had but Fortunatus’s wishing cap, to seat
myself sometimes by your fireside, and to pay a visit to Dr. Priestly, I
would be contented: his writings evince, that he must be a fund of
instruction, in conversation, and his character an object of
attachment and veneration.
“Be so good as to present my best respects to Mrs. Rittenhouse;

and to accept, yourself, assurances of the high esteem of, dear sir,
your sincere friend and humble servant,
“Th. Jefferson.
“David Rittenhouse.”
At this time, Dr. Rittenhouse still held the Directorship of the Mint,
though he resigned it a few months after; and from that period, his
health being then much on the decline, he seemed to be desirous of
passing the remainder of his days in tranquillity, and an abstraction
from all business and severe studies, in the society of his family and
a few particular friends. He now received numerous proofs of the
affectionate respect and high consideration, in which his person and
character were held; both among his own countrymen and in foreign
nations. Many of his fellow-citizens were assiduous in their attentions
to him: they frequently visited him; and, when he was suffering in his
health, he experienced repeated acts of friendship and kindness:—
President Washington often made calls upon him, and enquiries
concerning his health; and among his other friends, the late Mr.
Henry Hill and Mr. Robert Morris manifested towards him the kindest
attentions.
In the spring of the year 1795, our amiable Philosopher was
admitted a member of the Royal Society of London. He was apprized
of this new mark of distinction conferred on him, by the following
note, addressed to him by Phineas Bond, Esq. late the British
Consul, resident in Philadelphia.
“Chesnut Street, 15th June, 1795.
“Mr. Bond has the honour to inform Mr. Rittenhouse, that he has
received a letter from his friend Mr. George Chalmers, of the office of
the Lords of the Committee of Council for Trade, &c. at White-hall, in
which he requests him to apprize Mr. R. of his election as a Fellow of
the Royal Society of London, which took place on the 23d of April.
“Mr. B. begs leave to congratulate Mr. R. on this new honour, to

which his merits, as a Philosopher, so eminently entitle him.
“David Rittenhouse, Esq.”
It was not until towards the close of the summer, that Dr.
Rittenhouse received the certificate of his Fellowship, in the Royal
Society. His Diploma, for this honour, bears date the 16th of April,
1795;[291] and was accompanied by the following letter:
“Sir,
“Having the honour to transmit to you the Diploma of your election

into the Royal Society, as a foreign Member, I beg leave to
congratulate you on this proof of the high esteem in which you are
held by that illustrious body. I have the honour to be, with the
greatest respect, Sir, your most obedient and very humble servant.
“Charles Peter Layard.

“R. Society’s Apartments, Somerset Place,
“London, July 3d, 1795.”
The Royal Society of London has dealt out the honour of

Fellowship with a sparing hand, to foreigners; and very few
Americans have been admitted into that body, at any time: the Writer
does not recollect any others than Dr. Franklin, Dr. Johnson, formerly
of Connecticut, and the late Dr. Morgan and Mr. John Bartram, of
Philadelphia, who were Fellows of the Royal Society before the
American revolution; and since that period, he believes Dr.
Rittenhouse to have been one of but two or three native Americans
who have borne that mark of distinction.
Soon after Dr. Rittenhouse became associated with that illustrious

band of scientific men, a letter was written to him by Mr. Lalande, the
celebrated Astronomer of France; of which the following translation
is given in this place, as it will be perused with interest by the reader
versed in astronomy.
“Paris, at the College of France, May 14th, 1795.
“It is a long time, my dear Associate, since I have heard from you:
but Mr. Adet, our worthy ambassador, will probably procure for me
that satisfaction. You will see by the little history which I send you,
that the troubles of the revolution have not impaired my labours; and
that I have, now, twenty-seven thousand stars, observed.
“I have seen with great pleasure, in the transactions of your

Philosophical Society, the annular eclipse of 1791:[292] I have
calculated the conjunction 7h 42′ 19″; but I have been obliged to take
one minute from the phases of the ring, and to suppose {6h 49′ 30″} /
{6h 53′ 47″}, in order to agree, either with your end of the eclipse, or
the difference of meridians, already known with sufficient accuracy
by the transit of Venus, which gives 9h 10′ 6″; and your eclipse gives,
9h 10′ 3″, or 5h 0′ 43″ in relation to Greenwich.
“What has given me still greater pleasure, is, that the duration of
the ring, as you observed it, agrees very well with the diameters of
the Sun and of the Moon, which T have adopted in the third edition
of my Astronomy (1792), and the diminutions that I there propose for
eclipses; viz. 3″½ to be taken from the diameter of the Sun, and 2″
from that of the Moon.[293]
“I pray you to make many compliments for me, to the astronomers
whom I know, in your country, Mr. Willard at Beverley and Mr.
Williams at Cambridge: Is there any other astronomer, now, who
applies himself seriously to astronomy? I greet you with health and
brotherhood.
“Lalande.
“Professor of Astronomy, and Inspector of the
College of France,[294] Cambray Place.“
The mind of Dr. Rittenhouse, ever intent on doing, good, was

always zealously engaged on occasions which afforded him
opportunities of contributing to the rewards of merit and the
promotion of beneficial establishments, or useful undertakings of any
kind.
Such an occasion presented itself, at the close of the year 1795.

His nephew Dr. B. S. Barton, to whom he was attached by the
strongest ties of friendship, then held the Professorship of Botany
and Natural History in the University of Pennsylvania: but a vacancy
being at that time expected in the chair of the Materia Medica, which
branch of medicine was then taught by Dr. Samuel Powell Griffitts,
Dr. Rittenhouse exerted himself to obtain that appointment for his
nephew; upon whom it was conferred soon after, in conjunction with
the chair he already occupied.
With a view to the gratification of his anxious wishes, in the

attainment of this object, Dr. Rittenhouse addressed himself
personally to some of his colleagues in the board of trustees of the
University: and to Dr. M‘Kean, president of that board, he wrote the
following letter[295] on the subject.
“Philadelphia, Dec. 26th, 1795.
“Dear Sir,
“I am informed that Dr. Griffitts intends to resign his

Professorship in the University, sometime this winter. On this
occasion, I beg leave to recommend to your favourable notice my
nephew, Dr. Barton. He certainly has abilities sufficient to enable him
to be useful in any branch of medicine, and ambition enough to
induce him to make the greatest exertions: Besides, the Materia
Medica seems so nearly connected with Botany and Natural History,
his favourite studies, that I flatter myself he will be successful in his
intended application to the honourable Board of Trustees; yet I am
certain this will much depend on your interest. I am, Dear Sir, with
the sincerest affection and esteem, your most obedient Servant,
“David Rittenhouse.[296]
(Superscribed.)
“Hon. Thomas M‘Kean, LL. D.
Chief Justice of Pennsylvania.”
The affectionate regard and high respect which Professor Barton
uniformly cherished for the person and character of this worthy
relative,—who, on all occasions, evinced himself to be his sincere
friend,—cannot be better manifested, than by citing his own words.
In his dedication to Dr. Rittenhouse, of a dessertation, entitled, A
Memoir concerning the fascinating faculty which has been ascribed
to the Rattle-Snake and other American Serpents, is this passage
—“In inscribing this Memoir to you, dear sir, I follow the regular
course of my feelings, which, when I have received acts of friendship
or kindness, ever lead me to acknowledge them. Whilst your
example early implanted in me an ardent love of science, the
assistance which you afforded me, by removing many of the
obstacles that have opposed my advancement in life, has enabled
me to devote a portion of my time to the cultivation of science; and
thereby to increase the quantity of my happiness:” This was written
just four months before the decease of our Philosopher. And in a
subsequent inscription by the same gentleman,—that of his New
Views of the Origin of the Tribes and Nations of America,—dedicated
to Mr. Jefferson, and dated about a year after that event, he says:
“The only dedications I ever wrote, were to two persons[297] whom I
greatly esteemed and loved; the last, to a common friend, whose
virtues and science endeared him to his country, and whose removal
from us, we shall long have reason to deplore.”
Soon after Dr. Priestley’s arrival in Pennsylvania, our Philosopher

became personally acquainted with him, and presently conceived for
his fellow-labourer in science a sincere esteem. This was reciprocal;
and, therefore, while the celebrated English philosopher remained in
Philadelphia, and also when he occasionally visited that city after his
removal to the town of Northumberland on the Susquehanna, he
passed much of his time in Dr. Rittenhouse’s family. So far as the
pursuits of these gentlemen, in matters of science, were congenial—
for, in some respects they were very dissimilar,—their opinions
appeared to harmonize with each other: but, how far their sentiments
accorded on other subjects, or whether at all, the Writer cannot
undertake to pronounce; not possessing the necessary means to
enable him to do so with a sufficient degree of certainty. Dr.
Rittenhouse’s intercourse with Dr. Priestley, either personal or
epistolary, was, however, of short duration; being terminated by the
death of the former, in little more than two years after the latter first
came to Philadelphia. One of the last interviews which Dr.
Rittenhouse had with his friend Priestley, was very shortly before our
philosopher’s death: he was one of a select few whom the writer had
the pleasure of meeting at Dr. Rittenhouse’s, to dine, on the 18th of
March, 1796.
That learned and eminent foreigner,—for Dr. Priestley never
became a naturalized citizen of the United States,—died at
Northumberland in Pennsylvania, at an advanced age, on the 6th
day of February 1804.
The scanty remnant of life that yet remained to the great American
Astronomer and Mathematician, was neither uselessly, nor
altogether unpleasantly employed. In this interval of time, short as it
was, such portions of it as afforded him some respite from sickness
and pain, were either devoted to the society of his family and friends,
or occupied in study. From these sources of rational enjoyment, be
derived much comfort; and the solace he drew from them, was
greatly heightened by the endearing attentions, which, amidst the
rapid decline of his health and strength, he experienced, in an
eminent degree, in the bosom of his affectionate family and some
surrounding relatives. He was fully sensible of the approaching crisis
of his disease; and he appeared to be quite prepared to meet the
awful stroke, with the fortitude which a retrospective view of a well-
spent life would naturally inspire; as well as with the resignation,
which an entire confidence in the goodness, the wisdom, and the
mercy of his omnipotent Creator, taught him to be a duty. His
elevated conceptions of the Deity, together with his decided belief of
the immortality of the soul, according at the same time with the
doctrines of a pure religion, animated him with the stedfast hope of
an happy futurity, worthy of a Christian and a Philosopher. His
intimate knowledge of the sublimest works of creation, rendered him
highly sensible of the wisdom and power of the Great Supreme;
while that knowledge, aided by the lights furnished by the Christian
dispensation, led him to ascribe suitable attributes to the Author of
Nature,—a Being infinitely good, as well as perfect: for, as he once
familiarly expressed himself,[298] he was “firmly persuaded, that we
are not at the disposal of a Being, who has the least tincture of ill-
nature, or requires any in us.”[299]
It is an observation of a judicious biographer,[A] that “nothing can

awaken the attention, nothing affect the heart of man, more strongly,
than the behaviour of eminent personages in their last moments; in
that only scene of life where we are all sure, later or sooner, to
resemble them.” The writer of these Memoirs feels a sort of pensive
gratification, in having it in his power to announce the manner in
which the great American Astronomer deported himself, during the
closing scene of his life: The following information on this head, was
communicated by the writer’s brother, Professor Barton, the
deceased’s nephew and friend,—for some years, also, his family-
physician; and who, in his medical capacity, attended him in the
whole of his last illness.
“The last visit I ever received from Mr. Rittenhouse was about the
middle of June, 1796. He called at my humble habitation in Fifth
street, to inquire about my health, and to learn from me the result of
the experiments and inquiries in which he knew I was, at this time
engaged, concerning the mode of generation and gestation of our
opossum, an animal to whose economy and manners he had himself
paid some attention, and whose history he justly considered one of
the most interesting in the whole range of zoology.
“It was on this occasion, that our excellent friend first informed me,
that he had received a diploma from the Royal Society. He observed,
with a tone of voice and with a certain expression of countenance,
which were not calculated to afford me any pleasure, “that a few
years ago, such a mark of respect from that illustrious body would
have been received by him with pleasure and with pride.”
“In fact, Mr. Rittenhouse, now and for some months past, was
strongly impressed with the idea, that his career of usefulness and
virtue was nearly at an end. He had several times, during the
preceding part of the spring and summer, intimated to me (and
doubtless to others of his friends) his impressions on this head. In
what precise condition of his system, whether physical or intellectual,
these impressions were founded, I have only been able to form a
distant, and unsatisfactory conjecture.
“A few days after this interview, viz. on the 22d of June, I was sent
for to visit Mr. Rittenhouse. I found him in his garden, where he loved
to walk, and soon learned that he laboured under a severe attack of
cholera, accompanied, however, with more fever than we generally
find with this disease; and with a great increase of that violent pain
and sense of oppression at the region of his stomach, to which he
had been subject for at least thirty years. Notwithstanding his age,
the debility of his system, and the unfavourable state of the season, I
ventured to flatter myself, that the attack would not prove mortal. On
the following day, however, finding him no better, but rather worse, I
requested permission to call in the aid of another physician; and
having mentioned the name of Dr. Adam Kuhn, that gentleman
accordingly visited our friend, in company with me, during the
remainder of his illness.
His febrile symptoms being very urgent, it was thought necessary

to bleed our patient; and notwithstanding his great and habitual
repugnance to the practice on former occasions, he now readily
consented to the operation, on condition that I would perform it
myself. The blood which was drawn, exhibited a pretty strong
inflammatory crust; and the operation seemed to give him a
temporary relief from his pain. Soon after this, his strength gradually
declined; and on the third day of his illness, it was but too obvious,
that our illustrious relative was soon to be separated from his friends.
He expired without a struggle, and in the calmest manner, ten
minutes before two o’clock on the morning of Sunday the 26th, in the
presence of his youngest daughter, Mrs. Waters, and myself. His
excellent wife, who had ever been assiduous in her attention on her
husband, both in sickness and in health, had retired from his
chamber about two hours before, unable to support the awful scene
of expiring genius and virtue.
“There can be no doubt, I think, that Mr. Rittenhouse, from the first
invasion of his disease, or at least from the day when he was
confined to his bed or room, entertained but little hopes of his
recovery. He signed his will in my presence. He discovered no more
solicitude about his situation, than it is decorous and proper in every
good or great man to feel, when in a similar situation. During the
greater part of his illness, he manifested the most happy
temperament of mind: and it was only in the last hour or two of his
life, that his powerful intellects were disturbed by a mild delirium.
About eight hours before he died, the pain in the region of his
stomach being unusually severe, a poultice composed of meal and
laudanum was applied to the part. In less than two hours after the
application, I called to see him, and upon asking him if he did not feel
easier, he calmly answered, in these memorable words, which it is
impossible for me to forget,—for they were the last he ever distinctly
uttered, and they make us acquainted with the two most important
features in his religious creed,—“Yes, you have made the way to
God easier!”
“Such were the dying words, as it were, of our illustrious relative

and friend. He was dear to us both, to all his relatives and friends;
and to his country. To me, let me add, he was peculiarly dear. The
most happy and profitable hours of my life were passed in the
society of this virtuous man. I followed his foot-steps in the
wilderness of our country, where he was the first to carry the
telescope, and to mark the motions and positions of the planets. In
the bosom of his family, I listened to his lessons, as an humble
disciple of Socrates, or Plato. Science mixed with virtue was ever
inculcated from his lips.—But to me, Mr. Rittenhouse was more than
a friend and preceptor. He was a father and supporter. He laid the
foundation of what little prosperity in life I now, or may in future,
enjoy: and if it shall ever be my fortune, either by my labours or my
zeal, to advance the progress of science, or to reflect any honour
upon my country, I should be the most ungrateful of men, if I did not
acknowledge, and wish it to be known, that it was David
Rittenhouse who enabled me to be useful.”
Such was the death of David Rittenhouse,—soon after his

entrance into the sixty-fifth year of his age:—“Thus, with a heart
overflowing with love to his family, friends, country, and to the whole
world, he peacefully resigned his spirit into the hands of his God.”[300]
Thus did his immortal soul gently pass away, from this transitory but
variegated scene; from a theatre of mingled afflictions and comforts,
of privations and enjoyments, of absolute certainty with respect to
the non-continuance of this state, and of equal incertitude as to our
possible knowledge of the term of its duration:—And it is most
confidently believed, that his departed spirit, while yet hovering on
the confines of time, devoutly relied on being “promoted to a more
exalted rank among the creatures of God.”[301]
145. Joseph Galloway, Esq. a representative in assembly from the

county of Bucks. He was speaker of the house, from the year 1766
to 1773, inclusively; excepting a short interval in the session of 1768-
9, in which Joseph Fox, Esq. officiated as speaker.
146. William Allen, Esq. chief-justice of the supreme court of

Pennsylvania, and a member of assembly from the county of
Cumberland.
147. Equal to 533 Spanish or American dollars.
148. John and George Ross, Esqrs. lawyers of great

respectability, and brothers; the former a resident in Philadelphia; the
latter in Lancaster. Mr. George Ross was a member of the first
congress; and was appointed by the assembly on the 5th of April,
1775, judge of the admiralty-court for Pennsylvania.
149. Edward Biddle, Esq. a lawyer of eminence, and a

representative in assembly for the county of Berks, in which he
resided. This gentleman was one of the delegates appointed to the
congress of the 10th of May, 1775, under an unanimous resolution of
the assembly, passed in December, 1774; but, having succeeded Mr.
Galloway as speaker of that house, in the session of 1774-5, he did
not take his seat in congress, with his colleagues. These were John
Dickinson, Charles Humphreys, John Morton, George Ross, Thomas
Mifflin, Benjamin Franklin, Thomas Willing and James Wilson, Esqrs.
150. Emanuel Carpenter, Esq. long a respectable member of
assembly from Lancaster county.
151. Thomas Minshull, Esq. a respectable member of the house,

from York county.
152. The Hon. John Penn.—This worthy gentleman, a grandson of

the celebrated William Penn, was lieutenant-governor of
Pennsylvania, under the chief proprietaries of the province, from
October 1763, to May 1771; and again, from August 1773, until the
revolution.
153. The proprietary’s and governor’s council, consisting of James

Hamilton, William Allen, Joseph Turner, William Logan, Richard
Peters (D. D.), Lynford Lardner, Benjamin Chew, Thomas
Cadwallader, Richard Penn, James Tilghman, Andrew Allen, and
Edward Shippen, jun. Esquires. Joseph Shippen, jun. Esquire,
officiated many years as provincial secretary and clerk of the council.
154. Matthias Slough, Esq. who served several years with

reputation as a representative in the assembly, from the county of
Lancaster.
155. On the 4th of Feb. 1770, he mentioned to Mr. Barton his then
contemplated removal into that city, in these terms—“Dr. Smith, to
whom I am indebted for many kindnesses, is very urgent to have me
come to Philadelphia to reside, which it is probable I may do shortly:
but I am not yet determined. If I live to write again, you shall know
more of my mind; in the mean time, I shall be glad to have your
opinion of the matter.”
156. Since writing the above the author has ascertained, that
towards the close of April, 1770, the orrery was purchased for the
college of New-Jersey. On the 23d of that month, Dr. Witherspoon,
then the president of that college, accompanied by some gentlemen,
went to Norriton for that purpose, and it appears that the orrery was
then nearly finished.
157. The following extract of a letter from Dr. Smith to Mr. Barton,
written the day after Mr. Rittenhouse’s on the same subject, will
further explain the embarrassing circumstances that attended this
transaction, and the delicate situation in which Mr. Rittenhouse,
particularly, was placed.
“I never,” said the Doctor, “met with greater mortification, than to

find Mr. Rittenhouse had, in my absence, made a sort of agreement
to let his Orrery go to the Jersey College. I had constantly told him,
that if the Assembly did not take it, I would take it for our College,
and would have paid the full sum, should I have begged the money. I
thought I could depend, as much as on any thing under the sun, that
after Mr. Rittenhouse knew my intentions about it, he would not have
listened to any proposal for disposing of it, without advising me, and
giving our College the first opportunity to purchase. I think Mr.
Rittenhouse was never so little himself, as to suffer himself to be
taken off his guard on this occasion. This province is willing to
honour him, as her own: and believe me, many of his friends
wondered at the newspaper article; and regretted that he should
think so little of his noble invention, as to consent to let it go to a
village; unless he had first found, on trial, that his friends in this city
had not spirit to take it: For if he would wish to be known by this work
—and introduced to the best business and commissions for
instruments, from all parts of the continent,—his Orrery being placed
in our College, where so many strangers would have an opportunity
of seeing it, was the sure way to be serviceable to Himself.
“You will think, by all this, that I am offended with him, and that our
friendship may hereby be interrupted: Far from it—I went to see him,
the day the newspaper announced the affair. I soon found that I had
little occasion to say any thing: he was convinced, before I saw him,
that he had gone too far. But still, as no time was fixed for delivering
the Orrery, I was glad to find he had concluded that it should not be
delivered till next winter; against which time, he said, he could have
a second one made, if this one staid with him for his hands to work
by. As I love Mr. Rittenhouse, and would not give a man of such
delicate feelings a moment’s uneasiness, I agreed to wave the
honour of having the first Orrery, and to take the second.”
In fact, the Orrery was not at that time finished; for Mr. Rittenhouse
then informed Dr. Smith, that he was under the necessity of waiting
for brass from England, to enable him to complete it. “The result
(continued the Doctor) will be, I think, that he will keep his Orrery till
towards winter; and should they not then receive it, in the Jersies,
they will take it at New-York.”
On the 7th of the following month, Dr. Smith wrote thus finally, to
Mr. Barton, on this subject—“Your and my friend, Mr. Rittenhouse,
will be with you on Saturday. The Governor says, the Orrery shall not
go: he would rather pay for it, himself. He has ordered a meeting of
the Trustees on Tuesday next; and declares it as his opinion, that we
ought to have the first Orrery, and not the second,—even if the
second should be the best.”
158. The Rev. Dr. Peters wrote thus to Mr. Barton, under the date
of March 22, 1771—“Dr. Smith has done wonders in favour of our
friend Rittenhouse. His zeal has been very active: he has got enough
to pay him for a second orrery; and the assembly has given him
300l. The Doctor, in his introductory lecture, was honoured with the
principal men of all denominations, who swallowed every word he
said, with the pleasure that attends eating the choicest viands; and in
the close, when he came to mention the orrery, he over-excelled his
very self!”—“Your son will acquaint you with all the particulars
respecting it. The lectures are crowded by such as think they can,
thereby, be made capable of understanding that wonderful machine:
whereas, after all, their eyes only will give them the truth, from the
figures, and motions, and places, and magnitudes of the heavenly
bodies.”
159. The author of The Vision of Columbus, a Poem, (first

published at Hartford in Connecticut, in the beginning of the year
1787,) alludes to the Rittenhouse-Orrery, and to the numerous resort
of persons to the College-Hall, for the purpose of viewing that
machine, in the following lines, (book vii.)
“See the sage Rittenhouse, with ardent eye,
Lift the long tube and pierce the starry sky;
Clear in his view the circling systems roll,
And broader splendours gild the central pole.
He marks what laws th’ eccentric wand’rers bind,
Copies Creation in his forming mind,
And bids, beneath his hand, in semblance rise,
With mimic orbs, the labours of the skies.
There wond’ring crouds with raptur’d eye behold
The spangled Heav’ns their mystic maze unfold;
While each glad sage his splendid Hall shall grace,
With all the spheres that cleave th’ ethereal space.”
160. In a letter from Dr. Smith to Mr. Barton, dated March 23,
1771, is this paragraph:—
“I have been so busy these two months past, that I could not find a
moment’s leisure to write. A good deal of time was to be given to the
public lectures, the Orrery, and the getting our dear friend
Rittenhouse brought into as advantageous a light as possible, on his
first entrance into this town as an inhabitant; all which has
succeeded to our utmost wishes; and the notice taken of him by the
province, is equally to his honour and theirs. The loss of his wife has
greatly disconcerted him; but we try to keep up his spirits, under it.”
161. Joseph Galloway, Esq. was then speaker.
162. The committee, named in the above order of the general

assembly, made the following report to that body, on the 24th of
September, 1771; viz.
“The committee appointed to agree with, and purchase from Mr.

Rittenhouse a new Orrery for the use of the public, beg leave to
report, that they have, in pursuance of the order of assembly, agreed
with Mr. Rittenhouse for a new Orrery, at the price of four hundred
pounds, the price limited by the house; to consist of one principal
square (face,) of eight feet or more each way, with two wings;
making in the whole one large front, as nearly resembling the form of
the Orrery now standing in the College of the city of Philadelphia, as
its superior size will admit.” (Signed by all the members of the
committee.)
163. Messrs. Dickinson, Humphreys, Morton, Ross and Biddle,

together with Mifflin and Franklin, were delegated on the part of
Pennsylvania to the first general congress, which met in Philadelphia
on the 5th of September, 1774; and the same gentlemen, with the
addition of Messrs. Willing and Wilson, were also delegates from
Pennsylvania in the second general congress, which met in the
same city on the 10th of May, 1775. Of these “dignified and ever
memorable assemblies,” composed of that “illustrious band of
patriots whose worth sheds a lustre on the American character,” the
great Washington was also a member.
Mr. Dickinson, the writer of the celebrated Farmer’s Letters, was a

distinguished lawyer, statesman and scholar. Dr. Ramsay (who
published his History of the American Revolution at the close of the
year 1789,) remarks, that “the stamp-act, which was to have taken
place in 1765, employed the pens and tongues of many of the
colonists,” and, that “the duties imposed in 1767, called forth the pen
of John Dickinson, who in a series of letters, signed ‘A Pennsylvania
Farmer,’ may be said to have sown the seeds of the revolution.”
From the commencement of the momentous controversy between

the North-American colonies and the parent state, Mr. Dickinson was
an able and strenuous assertor of the rights of the colonists. In the
summer of the year 1768, the Rev. Mr. Barton sent him a little
artificial fountain or jet-d’eau, called a perpetual fountain, prettily
contrived and ornamented. On that occasion, the patriotic feelings of
Mr. Dickinson were thus expressed, in an handsome allusion to this
engine; feelings, called forth by some sentiments contained in the
letter which accompanied this small present,—“I wish” (said he, in
his answer to Mr. Barton’s letter, dated the 29th of August,)—“I wish
‘a perpetual fountain’ may water the tree of American liberty—I shall
always be ready and willing, with pious hands, to sprinkle its roots;
even though, for every drop of the pure element I throw upon them,
the free-booters should pour upon me all the foul waters in which
they delight to dabble. I have acted from the best of motives, the love
of freedom and of my country. If reproaches can influence the weak
and malicious, they never can blot from my memory the pleasing
consciousness of having endeavoured to do my duty. I am extremely
sensible of my own frailties; and yet I think I have so much charity,
that I reflect with pleasure, that perhaps these very people who
abuse me, may derive some little advantage from those very actions
of mine for which they abuse me. May heaven grant this to be the
case! It is all the revenge I desire to take of them; and this I think, my
good sir, is a Christian revenge.”
Messrs. Allen, Ross, and Biddle, shall be noticed in another place.
Mr. Sellers was a sensible and ingenious country-gentleman,

possessed of some skill in mathematical and astronomical science.
Messrs. John and Israel Jacobs (whose sister was the second wife
of Mr. Rittenhouse) were also well-informed country-gentlemen: the
former was speaker of the general assembly of Pennsylvania, and
the latter a member of congress, after the revolution. Mr. James
Wright was a very respectable representative of the county of
Lancaster, before the revolution. The gentlemen named in the
committee of the general assembly, to treat with Mr. Rittenhouse for
the purchase of an Orrery for the use of the public, were likewise
conspicuous for their worth. Of these, Mr. Rhoads was one of the
vice-presidents of the American Philosophical Society, and Mr.
Morton, a judge of the supreme court of Pennsylvania, before the
revolution: both were afterwards members of congress.
164. See Note 167.
165. Dr. William Cadogan’s “Dissertation on the Gout and all

Chronic Diseases,” &c. made its appearance in America about that
time; and the Rev. Mr. Barton, who had long experienced an
hereditary gouty affection, then thought favourably of the Doctor’s
general theory, although he could not adopt that ingenious theorist’s
doctrine, denying the existence of any hereditary diseases.

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Boards of Appeal of EU Agencies:

No Power Without Control

concerned to build confidence by providing guarantees that complaints are heard

DECISIONS OF THE COURT OF JUSTICE

Case C-​518/​07, Commission v. Germany, ECLI:EU:C:2010:125������������������������������������������� 252

Case C-​216/​18 PPU, Minister for Justice and Equality,

DECISIONS OF THE GENERAL COURT

Case T-​110/​01, Vedial v. OHMI -​France Distribution

Case T-​236/​12, Airbus v. OHIM, ECLI:EU:T:2013:343�����������������������������������������������������72–​73

Case T-​758/​16, Crédit agricole v. ECB, ECLI:EU:T:2018:472 �����������������������������������������288–​89

Case T‑411/​17, Landesbank Baden-​Württemberg v. SRB, ECLI:EU:T:2020:435������������������� 14

DECISIONS OF THE CIVIL SERVICE TRIBUNAL

OPINIONS OF ADVOCATES GENERAL

Opinion of AG Bobek in Case C-​911/​19, FBF, ECLI:EU:C:2021:294���������������������������������� 271

DECISIONS OF THE BOARDS OF APPEAL

Joint Board of Appeal of the European Supervisory Authorities

Appeal Panel of the Single Resolution Board

Board of Appeal of the European Chemicals Agency

Case A-​010-​2015, RHODIA OPERATIONS SAS�����������������������������������������������������������������89–90

Board of Appeal of the European Union Aviation Safety Agency

Board of Appeal of the European Union Agency for

Board of Appeal of the Community Plant Variety Office

Board of Appeal of the European Union Intellectual Property Office

DECISIONS OF THE EUROPEAN COURT OF HUMAN RIGHTS

Jacopo Alberti is Associate Professor of EU Law at the University of Ferrara

Graham Butler is Associate Professor of Law at Aarhus University

Merijn Chamon is Assistant Professor of EU Law at Maastricht University and Visiting

Luca De Lucia is Professor of Administrative Law at Salerno University

Mariolina Eliantonio is Professor of European and Comparative Administrative Law and

Diane Fromage is a Marie Skłodowska-​Curie Individual Fellow at the Law School of

Leonhard den Hertog is Policy Advisor to MEP Sophie in ‘t Veld

Michał Krajewski is Postdoctoral Research Fellow at iCourts Centre of Excellence for

Eléonore Mullier is Partner at Steptoe & Johnson LLP.

Laura Muzi is Academic Fellow at Bocconi University

Sofie Oosterhuis is PhD Candidate in European Administrative Law at Utrecht University

Dominique Ritleng is a Professor of EU Law at the University of Strasbourg and a Visiting

Marta Simoncini is Assistant Professor in Administrative Law at Luiss University

Carlo Tovo is référendaire at the Court of Justice of the EU

Micaela Verissimo is Section Manager—​Air Operations Standards at the EASA

Annalisa Volpato is Assistant Professor of European Administrative Law at Maastricht

Rob Widdershoven is Professor of European Administrative Law at Utrecht University and

Administration (OUP 2016) 45.

Since the mid-​1990s academics’ and practitioners’ interest in the EU agencies

Agencies (Hart Publishing 2018) 158 (hereafter Simoncini, A Study on EU Agencies).

thus emerges: decision-​making agencies always have Boards of Appeal, regardless

13 See Chapter 3 by Hanf in this volume.

EU Administration (n 6) 338–​46; Tovo, Le agenzie (n 6) 334–​42; Simoncini, A Study on EU Agencies (n

Deductively, because every Board of Appeal’s functioning and organization is de-

30 Chamon, Limits to the Transformation of the EU Administration (n 6) 290.

of the European Union [2019] OJ L111/​1.

Union: Supervision and Resolution (Palgrave Macmillan 2016).

of Administrative Review: An Introduction’ in ECB, Building Bridges: Central Banking Law in an

1.2 The Joint Board of Appeal and

1.2.1 Establishment and composition

“Permit me to repeat my earnest request, that you should be kind

“Dr. Rittenhouse, Pres. of the Am. Phil. Society.”

This really “interesting piece of furniture” was viewed by Dr.

The friendship that subsisted between Dr. Rittenhouse and Mr.

Mr. Jefferson has testified to the world the exalted opinion he

Mr. Jefferson retained the highest esteem for Dr. Rittenhouse,

“Monticello, Feb. 24, 1795.

“I am here immersed in the concerns of a farmer, and more

“Be so good as to present my best respects to Mrs. Rittenhouse;

Case C-518/07, Commission v. Germany, ECLI:EU:C:2010:125�� 252

Case C-216/18 PPU, Minister for Justice and Equality,

Case T-110/01, Vedial v. OHMI -France Distribution

Case T-236/12, Airbus v. OHIM, ECLI:EU:T:2013:343��72–73

Case T-758/16, Crédit agricole v. ECB, ECLI:EU:T:2018:472 ��288–89

Case T‑411/17, Landesbank Baden-Württemberg v. SRB, ECLI:EU:T:2020:435�� 14

Opinion of AG Bobek in Case C-911/19, FBF, ECLI:EU:C:2021:294�� 271

Case A-010-2015, RHODIA OPERATIONS SAS��89–90

Diane Fromage is a Marie Skłodowska-Curie Individual Fellow at the Law School of

Micaela Verissimo is Section Manager—Air Operations Standards at the EASA

Since the mid-1990s academics’ and practitioners’ interest in the EU agencies

thus emerges: decision-making agencies always have Boards of Appeal, regardless

EU Administration (n 6) 338–46; Tovo, Le agenzie (n 6) 334–42; Simoncini, A Study on EU Agencies (n

of the European Union [2019] OJ L111/1.