Research note. EU Agencies in contemporary academic research

Today EU (independent) agencies seem to require hardly any introduction. Their proliferation in quantitative and ‘qualitative’ (powers) terms has attracted an incredible amount of attention from scholars of political science, public administration, and law as well as of EU and national policy-makers. After an approximately a decade of a somewhat general discussion, which has produced a number of seminal publications and policy documents [1], the contemporary trend in investigating EU agencies seems to have become zooming in to more specific questions and relationships from both theoretical and practical perspectives. [2] Two of such relationships, namely EU Commission – EU agencies and Member States – EU agencies, will be critically assessed in this commentary in light of reviewing two recent publications by Egeberg et al. and Buess. [3]

EU Agencies in contemporary academic research, research note by Dr. Miroslava Scholten (Utrecht University) 

The major reasons for all the attention given to EU agencies are interconnected with the questions of legitimacy and consequently accountability of holders of public power. Should we, the people, accept the power of those whom we did not (directly) authorized (e.g. via elections)? Can agencies’ conventionally problematic input legitimacy be substituted by their ‘good deeds’ (output legitimacy)? Can independent agencies be held to account? These questions are among the major concerns since in its essence agencification implies de-concentration of the executive power.[4] The people have been governed by multiple centers of autonomous authority instead of a unitary executive body authorized by a constitutional text and held accountable before the people directly or indirectly via people’s representatives. De-concentration of executive power by proliferation of independent agencies threatens accountability:

One of the weightiest objections to a plurality in the Executive is that it tends to conceal faults and destroy responsibility. <…> It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment <…> ought really to fall  (Alexander Hamilton ‘The Federalist No. 70’).

Thus, it becomes less feasible to determine who is responsible, for what, before whom, and how various (independent) entities are accountable before “the ultimate principle, the people.”[5] Complex governmental structures and indirect/long lines of authorization from the people undermine democratic legitimacy; “it is doubtful that the exercise of public authority may be perceived as legitimate if it is not understood.”[6]

While agencification leads to de-concentration of executive power, Egeberg et al. notice also a parallel and perhaps an unexpected development: agencification seems to indicate centralization of EU executive power. They explain this development from an organization approach perspective, i.e., by analyzing organization structure and factors at the EU level. They argue that EU agencies are less under the control of national governments and more under the control of the Commission with which agencies have established a close relationship. This is for the four reasons. First, EU agency personnel and Commission share their supranational identity. This is different from the officials seconded from national ministries to the management board of EU agencies. Second, they share similar functions, which are rule implementation and development and not law-making, the function exercised predominantly by the Council and the European Parliament. Third, the Commission disposes organizational capacity to incorporate EU agencies into its realm. Finally, the existing ministry-agency relationships at the Member States’ level seem to account for establishing of similar accepted templates at the EU level, where the Commission’s departments getting control over specific EU agencies becomes ‘the usual way of doing governmental business’ in Europe.

This finding has to be taken from a perspective that the collected data, including official documents and interviews, are biased towards the Commission; the authors admit this themselves. Hence, it is to be tested further in light of other developments, such as the growing interest of the European Parliament and its evolving relationship with EU agencies. It is true that a legitimized template of a direct relationship between an independent agency and a representative body comes from the other side of the Atlantic (the USA), rather than from the national practices of EU member states. The practice of putting parliamentary questions by MEPs over EU agencies goes indeed to and sometimes via the Commission to agencies, but this is not the only existing possibility for the European Parliament to exercise control over EU agencies. The European Parliament, also sharing the supranational identity with EU agencies, has been establishing a direct relationship with EU agencies (at this moment with some agencies more than others but still) via assigning them to its standing committees, appointing liaisons among its members or staff to maintain the relationship with individual agencies and make visits to agencies directly.[7] With the expansion of its legislative power, the European Parliament has been gaining more controlling powers over EU agencies on paper and in practice.[8] Given this is a rather recent task for the European Parliament and the rotation of MEP’s is quite high,[9] the Parliament may not have managed yet to organize its control in a coherent manner. In this light, the Commission’s institutional characteristics (more centrally organized, permanent inner structure and longer relationship with agencies) may have given it the advantage to win the first battle in the ‘war’ on who gets to control EU agencies. Whether she has won the ‘war’ is yet to be seen.

The same may apply to the national control. National governments may be in need of more time to organize their control over EU agencies; agencification at the EU level may have happened too fast for the ossified national bureaucracies to respond properly. Buess has discussed the existing ‘vertical relationship’ of EU agencies with the Member States. His findings show a number of shortcomings in the current organization of the political accountability of national representatives/designates at the management board of EU agencies back at home. It is not uniformly or well organized at the national level. Logical hypotheses formulated with an attempt to show that the Member States are co-controllers over EU agencies along with the EU institutions could not be confirmed because of the absence of any grand design and consistency among and within national ministries and their control strategies over EU agencies. Hypothesis 1 was that management boards of more powerful and more independent EU agencies were expected to be composed of national representatives from more dependent national institutions to assert more control over the ‘lost’ powers. For the same reason, national representatives on management boards of powerful and independent agencies were expected to be held stronger to account domestically (hypothesis 2).

Having diverse pictures as a result of the investigation of the political accountability of national representatives at the management boards of six EU agencies, Buess has concluded that other factors, such as the level of domestic euroscepticism, should be taken into account in running further tests in this direction. This seems indeed necessary. Hypothesis 1 may perhaps still be confirmed if to take the ‘salience factor’ of a particular sector in a specific Member State into account. As an example, on the one hand, Malta, which does not have railroads, could be perhaps excused for having less stringent control over her representative at the management board of the European Railway Agency (if this were to be the case). In any case, this member state’s possible poor control should not perhaps be counted as equally as that of other member states, which have strong railway sector. On the other hand, while “every country has pilots and airlines,” “not every country has an airplane industry. Only 10” (from my interview with the Chair of the management board of the European Aviation Safety Agency).[10] An assessment of the political accountability of national representatives in those ten member states, which have the airplane industry, seems essential in confirming or disproving the hypotheses of Buess.

Furthermore, Egeberg et al. discuss the establishing of a strong controlling relationship between the Commission and EU agencies. Their findings show that a kind of hierarchical relationship has been established between DG’s of the Commission and EU agencies, at least in the eyes of the Commission. The Commission has regular meetings with EU agencies and she uses much more often ‘parent’ rather than ‘partner’ terms in her policy documents when referring to EU agencies. This finding is interesting but to make it ‘waterproof’ further investigation seems necessary.

For instance, the authors provide rich quantitative data on the number of contacts and specific terms found in policy documents. Qualitative (empiric) analysis of the content of the relationship between the Commission and EU agencies could help to understand what kind of control the Commission is asserting. Is it ‘simply’ providing temporary buildings and technical support or is there more policy-steering from the side of the Commission involved? As an example, having interviewed a number of EU agencies’ representatives and MEPs on the topic of parliamentary oversight over agencies, I have found out that what looked like ‘oversight’ meetings between the European Parliament and EU agencies’ representatives were actually meetings where MEPs asked for technical advice from EU agencies, rather than were checking upon them.[11] In this light, content can help to nuance numerical data.

What could also be interesting to investigate here is in how far a tighter/more established relationship between an EU agency with the European Parliament affects the strength of the controlling grip of the Commission. The negative correlation (the tighter control by the European Parliament, the weaker control by the Commission) could speak against the spotted trend of the centralization of the EU executive power. Finally, an investigation into a possible correlation between, on the one hand, EU agencies’ powers and place within the EU policy cycle (whether an agency provides information, gives an advice or takes the decision) and, on the other hand, the existing control by the Commission of those agencies could shed more light on the scope of centralization of the executive power. Here, it would be interesting to see whether the Commission is able to control powerful EU agencies as strongly as other agencies, a finding which would support the spotted trend.

Anyhow, if centralization of EU executive power under the Commission’s realm is indeed happening, what are its implications in terms of legitimacy and accountability? At the first sight, it seems to bring good news. The Commission, the evolving ‘unitary executive’, is an institution established by the Treaties, hence it is legitimized by national parliaments. It operates within an established accountability framework and accountability is more feasible in a unitary structure of the executive branch.[12] If something goes wrong with a policy implementation, it is the Commission, who would be held accountable. Digging deeper, however, the situation may be not as easy as it may seem, at least not in the current legal setting. While the Commission may centralize control over EU agencies, she does not necessarily centralize accountability for the agencies.[13] While some MEPs in the European Parliament opined that “the autonomy which is to be conferred on the agency in respect of technical matters falling within its remit does not relieve the Commission of its political responsibility for the agency’s activities,”[14] the Commission shares the conclusion of the Ramboll evaluation of 26 EU agencies that it is “sometimes made accountable for what is beyond its responsibility.”[15] In the current legal setting, the accountability of EU executive is dispersed: separate legal entities not directly subordinated to the Commission are (individually) responsible for separate stages of the policy cycle. EU ‘regulatory’ agencies differ from executive agencies in this respect. The latter are established by the Commission who renders account for them. The former are, however, separate entities with own legal personality, powers, and accountability settings. When one body gathers information, another body gives an advice and a third body takes the decision, holding to account for a policy failure becomes a challenging task and is likely to provoke ‘mutual accusations’.

In this light, centralization of executive power at the EU level in the sense of transferring some powers from the national to the EU level agencies controlled by the Commission may not be solving accountability and legitimacy problems interconnected with the still existing dispersion of EU executive’s accountability. To this end, the current setting requires its modification in light of the arguably ongoing development of the centralization of EU executive power under the Commission. At this moment, the growth of controlling power of the Commission over EU agencies seems to be taking place without the expansion of her responsibility for the agencies.

Mira 1 (1)

Miroslava Scholten is Assistant Professor of EU Law at Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE), Utrecht University

 

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[1] According to Vos, “The literature on European agencies is by now abundant” (Vos, Ellen. “European Agencies and the Composite EU Executive.” In Michelle Everson, Cosimo Monda, and Ellen Vos (eds) European Agencies in between Institutions and Member States, 11-48. Alphen aan de Rijn: Wolters Kluwer, 2014. P. 13).

See, e.g., Busuioc, Madalina, Groenleer, Martijn, and Trondal, Jarle (eds). The agency phenomenon in the European Union: Emergence, institutionalisation and everyday decision-making. Manchester: Manchester University Press, 2012; Chiti, Eduoardo. An Important Part of the EU’s Institutional Machinery: Features, Problems and Perspectives of European Agencies, Common Market Law Review 46, no. 5 (2009): 1395 – 1442; Chiti, Eduoardo. The Emergence of A Community Administration: The Case of European Agencies, Common Market Law Review 37, no. 2 (2000): 309 – 343; Curtin, Deirdre. Holding (Quasi-) Autonomous EU Administrative Actors to Public Account, European Law Journal 13, no. 4 (2007), 523 – 541; Geradin, Damien, Muňoz, Rudolph, and Petit, Nicholas (eds) Regulation through Agencies in the EU, A New Paradigm of European Governance. Cheltenham: Edward Elgar, 2005; Verhey, Luc, and Zwart, Tom (eds) Agencies in European and Comparative Law. Cambridge: Intersentia, 2003; to name but a few.

Concerning policy documents, the White Paper on European Governance (COM (2001) 428 final) was followed by Communication from the Commission ‘The operating framework for the European Regulatory Agencies (COM (2002) 718 final), Draft Interinstitutional Agreement on the operating framework for the European regulatory agencies (COM (2005) 59 final), Communication from the Commission to the European Parliament and the Council ‘European agencies – The way forward’ (COM (2008) 135 final), the ‘Common Approach’ on EU agencies (June 2012), the Roadmap on implementation of the Common Approach (2012) and most recently a progress report of the Commission (2013). See also, European Parliament’s Note ‘Accountability of EU regulatory agencies’, At a Glance, March 2015 (http://epthinktank.eu/2015/03/03/accountability-of-eu-regulatory-agencies/ (last check May 2015)).

[2] Egeberg, Morten, Trondal, Jarle, and Vestlund, Nina. The quest for order: unravelling the relationship between the European Commission and European Union agencies, Journal of European Public Policy 22, no. 5 (2015), 609-629; Buess, Michael. European Union Agencies’ Vertical Relationship with the Member States: Domestic Sources of Accountability?, Journal of European Integration 36, no. 5 (2014), 509-524; Scholten, Miroslava. The Political Accountability of EU and US Independent Regulatory Agencies. Leiden: Brill, 2014; Busuioc, Madalina. The Accountability of European Agencies: Legal Provisions and Ongoing Practices. Delft: Eburon, 2010; Groenleer, Martijn. The Autonomy of European Union Agencies: A Comparative Study of Institutional Development. Delft: Eburon, 2009; to name but a few.

[3] Egeberg et al. (2015) supra fn 2; Buess (2014) supra fn 2.

[4] Egeberg, Morten. How bureaucratic structure matters: an organizational perspective, In Guy Peters and Jon Pierre (eds.) The SAGE Handbook of Public Administration. London: Sage. P. 157 – 168.

[5] Auel, Katrin. Democratic Accountability and National Parliaments: Redefining the Impact of Parliamentary Scrutiny in EU Affairs, European Law Journal 13, no. 4 (2007): 487 – 504. P. 504.

[6] Dyrberg, Peter. “Accountability and Legitimacy: What is the Contribution of Transparency?” In Antony Arnull and Daniel Wincott (eds) Accountability and Legitimacy in the European Union, 81 – 96. Oxford: Oxford University Press, 2002. P. 83.

[7] Scholten (2014) supra fn 2 P. 148.

[8] Ibid. P. 72-76; 146-150.

[9] The turnover of the members of the European Parliament members is 50 per cent (Corbett, Richard, Jacobs, Francis, and Shackleton, Michael. The European Parliament, 8th ed. London: John Harper Publishing, 2011. P. 74).

[10] Scholten (2014) supra fn 2 P. 96.

[11] Ibid. P. 149.

[12] See the ‘Unitary Executive’ literature in the US (e.g. Calabresi, Steven G., and Rhodes, Kevin H. The Structural Constitution: Unitary Executive, Plural Judiciary. Harvard Law Review 105, no. 6 (1992): 1153 – 1216; Calabresi, Steven G., and Yoo, Christopher S. The Unitary Executive: Presidential Power from Washington to Bush. New Haven, CT: Yale University Press, 2008).

[13] The ‘Common Approach’ on EU agencies seems to strengthen control by the Commission (Scholten, Miroslava. ‘The Newly Released ‘Common Approach’ on EU Agencies: Going Forward or Standing Still?’, 19 Columbia Journal of European Law F. 1 (2012); http://www.cjel.net/wp-content/uploads/2013/02/Scholten-edited-and-rev1.pdf (last check May 2015)), but it is not that elaborate concerning the Commission’s responsibility for agencies.

[14] Motion for a Resolution ‘Further to Question for Oral Answer O-93/05 pursuant to Rule 108(5)’, 24 November 2005. P. 3 (http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+MOTION+B6-2005-0634+0+DOC+XML+V0//EN&language=ro (last check May 2015).

[15] Analytical Fiche Nr° 31 ‘Commission’s Role’, P. 4; The Ramboll Management – Eureval – Matrix Evaluation of 26 Decentralised Agencies (2009), Volume I. P. 25.