Research note by Stéphanie De Somer.

An  increasing number of EU legislative documents oblige or strongly encourage Member States to entrust the implementation of substantive rules of EU law to administrative bodies that enjoy a certain (often substantial) degree of political autonomy. Independent regulatory bodies and data protection authorities are  the best-known examples of this trend. To many lawyers, this type of influence by EU law is counter-intuitive: the EU legislature has traditionally left decisions on national administrative organization to the Member States themselves. This is now no longer the case and this evolution provokes various questions.

Typical for the national regulatory or supervisory bodies that are created pursuant to this EU legislation is that they enjoy broad discretionary powers. True, these powers are often ‘technical’ in nature: they require substantial scientific or experience-based knowledge. This does not mean, however, that they are ‘apolitical’. Independent regulatory authorities, for instance, are increasingly obliged to take into account a number of different different objectives and considerations (of social, economic, environmental nature etc.) and to make policy trade-offs.

EU obligations to establish independent national regulatory or supervisory bodies are inspired by considerations of credibility, comprising more general values such as integrity, quality and trustworthiness. Ensuring that expertise plays a decisive role in the decision-making process and avoiding conflicts of interest are components of this wider goal of ‘credibility’. For economic regulation more specifically, ‘time consistency’ has been put forward by political economists and others as an imperative goal and as the major benefit of political independence. This argument still knows wide acclamation in academic literature and its value seems quite uncontested. At the same time, there are both theoretical and empirical arguments for arguing that the value attached to time consistency may be overrated.

The independent supervisory authorities whose creation and empowerment is currently mandatory under EU law have given rise to tensions with national constitutional law in various EU Member States. Central to these tensions are concerns about democratic accountability. The combination of a far-reaching degree of political autonomy with large discretionary powers is particularly hard to reconcile with the way in which many national European Constitutions embed executive power in the system of representative democracy.

In Autonomous Public Bodies and the Law, I dedicate a separate chapter to a legal movement on the domestic level in European states that is characterized by a reticent stance towards autonomous public bodies in general. This movement originates from an exercise of rethinking the validity and legitimacy of these entities from the viewpoint of fundamental principles governing administrative organization. Governments and legislatures are gradually becoming more reluctant to create autonomous public bodies. This movement is closely related to what scholarly research in political science has labelled the ‘whole of government’ or ‘post-NPM’ movement. All initiatives of rationalization and reform that are discussed in the book depart from a re-valuation of fundamental constitutional principles governing administrative organization. A separate title is dedicated to the identification of a common core of relevant constitutional principles in the four national legal systems that were studied: Belgium, France, the Netherlands and the United Kingdom. From there, the book reveals which avenues and tools for reform have been used in order to square the landscape of autonomous public bodies with these constitutional principles once again.

The book gives concrete examples of how the implementation of the EU obligations on political independence of national regulatory authorities and data protection authorities has encountered constitutional objections in Belgium, France, the Netherlands and the United Kingdom. It then discusses and evaluates the position of the Court of Justice of the European Union on this particular tension, as expressed in the landmark judgment Commission/Germany.

One of the main recommendations in the book is that the EU legislature should take into account fundamental principles common to the constitutional traditions of European democracies when enacting legislation that directly affects Member States’ systems of administrative organization. Similarly to what has been argued and accepted for fundamental rights and freedoms, the EU should accept these principles, which are constitutional in nature, as general and predominant principles, constituting an integral part of the EU administrative legal order. Pursuant to article 6 TEU, ‘[f]undamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law’. Before this provision featured in the Treaty, the EU legislature and the ECJ qualified fundamental (human) rights as general principles of EU law already. The question arises why the same should not be true for other common European fundamental principles with constitutional value.

As far as national supervisory bodies are concerned, efforts should be made to explore the potential of balanced solutions for political supervision and accountability. Definitely, regulatory bodies are subject to many other forms of accountability and derive their legitimacy from other sources than the electoral process. All of these mechanisms, however, serve specific goals and no alternative source of legitimacy is sufficiently comparable to political accountability to replace it entirely, even though they all play an important complementary role.

A series of in-depth interviews that I have carried out with Belgian and Dutch autonomous public bodies, revealed that there are ways to protect the role of experts in supervisory authorities, while at the same time allowing for political input. More specifically, balanced forms of political input should aim to establish a form of equal partnership between experts in supervisory bodies and political principals. Since the ultimate decision should be both technically and politically desirable, dialogue between experts and politicians, in which both sides are invited to empathize with each other’s viewpoints and to accept the reasonableness of each other’s concerns, should be a central concern.

This requires tailored solutions on a case-by-case basis. It may not always be easy to find a proper balance between the input of experts on the one hand and elected politicians on the other hand. Acknowledging this inherent complexity in the institutional design of supervisory bodies, however, is preferable to the more one-sided solutions that have often been put forward in the past and that have been adopted by the EU legislature.

• Stéphanie De Somer, Autonomous Public Bodies and the Law – A European Perspective, Cheltenham, Edward Elgar, 2017, 384 p.

About the Author

Stéphanie De Somer, FWO postdoctoral researcher and guest Professor at the University of Antwerp, research group Government & Law.