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Agency Governance in the EU
The rapid proliferation of EU agencies represents one of the most significant
changes to the EU’s organisational set-up in past decades. At the same time,
this development has significantly affected regulatory policy-making in the
EU.
This volume assembles the most renowned scholars in the field to address
the key themes and challenges that agency governance in the EU poses to
effective and legitimate policy-making. The first theme addresses the causes
and dynamics of the creation and design of regulatory bodies in EU governance, focusing not only on EU agencies but also on alternatives to the agency
format, such as regulatory networks. Second, once agencies are established,
the book goes on to explore the consequences and trajectories of agency
governance. How effective and autonomous are EU agencies? How does EU
agency governance transform existing patterns of executive governance in the
EU? Third, as the book addresses the design of EU agencies as independent,
non-majoritarian institutions, this poses pressing questions with a view to
their legitimacy and accountability.
The volume appeals to scholars and practitioners interested in the development and transformation of executive governance in the EU.
This book was published as a special issue of the Journal of European
Public Policy.
Berthold Rittberger is Professor and Chair of International Relations at the
University of Munich, external fellow at the Mannheim Centre for European
Social Research (MZES), and adjunct Professor at the University of Canterbury, Christchurch (NZ).
Arndt Wonka is field coordinator and postdoctoral researcher at the Bremen
International Graduate School of Social Sciences (BIGSSS) and external
fellow and project director at the Mannheim Centre for European Social
Research (MZES).
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Journal of European Public Policy Series
Series Editor: Jeremy Richardson is a Professor at Nuffield
College, Oxford University and National Centre for Research on
Europe, University of Canterbury, New Zealand
This series seeks to bring together some of the finest edited works on European Public Policy. Reprinting from Special Issues of the Journal of European Public Policy, the focus is on using a wide range of social sciences
approaches, both qualitative and quantitative, to gain a comprehensive and
definitive understanding of Public Policy in Europe.
Towards a Federal Europe
Edited by Alexander H. Trechsel
The Disparity of European
Integration
Edited by Tanja A. Börzel
Cross-National Policy Convergence
Causes Concepts and Empirical
Findings
Edited by Christoph Knill
Civilian or Military Power?
European Foreign Policy in
Perspective
Edited by Helene Sjursen
The European Union and New Trade
Politics
Edited by John Peterson and
Alasdair R. Young
Comparative Studies of Policy
Agendas
Edited by Frank R. Baumgartner,
Christoffer Green-Pedersen and
Bryan D. Jones
The Constitutionalization of the
European Union
Edited by Berthold Rittberger and
Frank Schimmelfenig
Empirical and Theoretical Studies in
EU Lobbying
Edited by David Coen
Mutual Recognition as a New Mode
of Governance
Edited by Susanne K. Schmidt
France and the European Union
Edited by Emiliano Grossman
Immigration and Integration Policy
in Europe
Edited by Tim Bale
Reforming the European
Commission
Edited by Michael W. Bauer
International Influence Beyond
Conditionality
Postcommunist Europe after EU
enlargement
Edited by Rachel A. Epstein and
Ulrich Sedelmeier
The Role of Political Parties in the
European Union
Edited by Björn Lindberg,
Anne Rasmussen and
Andreas Warntjen
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EU External Governance
Projecting EU Rules beyond
Membership
Edited by Sandra Lavenex and
Frank Schimmelfennig
EMU and Political Science
What Have We Learned?
Edited by Henrik Enderlein and
Amy Verdun
Learning and Governance in the EU
Policy Making Process
Edited by Anthony R. Zito
Political Representation and EU
Governance
Edited by Peter Mair and
Jacques Thomassen
Europe and the Management of
Globalization
Edited by Wade Jacoby and
Sophie Meunier
Negotiation Theory and the EU
The State of the Art
Edited by Andreas Dür,
Gemma Mateo and
Daniel C. Thomas
The Political Economy of Europe's
Incomplete Single Market
Edited by David Howarth and
Tal Sadeh
The European Union's Foreign
Economic Policies
A Principal-Agent Perspective
Edited by Andreas Dür and
Michael Elsig
The Politics of the Lisbon Agenda
Governance Architectures and
Domestic Usages of Europe
Edited by Susana Borrás and
Claudio M. Radaelli
Agency Governance in the European
Union
Edited by Berthold Rittberger and
Arndt Wonka
The EU Timescape
Edited by Klaus H. Goetz and
Jan-Hinrik Meyer-Sahling
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Agency Governance in the EU
Edited by
Berthold Rittberger and Arndt Wonka
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First published 2012
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
Simultaneously published in the USA and Canada
by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2012 Taylor & Francis
This book is a reproduction of the Journal of European Public Policy, vol. 18, issue 6. The
Publisher requests to those authors who may be citing this book to state, also, the bibliographical
details of the special issue on which the book was based.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form
or by any electronic, mechanical, or other means, now known or hereafter invented, including
photocopying and recording, or in any information storage or retrieval system, without
permission in writing from the publishers.
Trademark notice: Product or corporate names may be trademarks or registered trademarks, and
are used only for identification and explanation without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
ISBN13: 978-0-415-68966-3
Typeset in Times New Roman
by Taylor & Francis Books
Publisher’s Note
The publisher would like to make readers aware that the chapters in this book may be referred to
as articles as they are identical to the articles published in the special issue. The publisher accepts
responsibility for any inconsistencies that may have arisen in the course of preparing this volume
for print.
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Contents
Preface
1
1. Introduction: agency governance in the European Union
Berthold Rittberger and Arndt Wonka
2
2. The creation of European regulatory agencies and its limits:
a comparative analysis of European delegation
Mark Thatcher
12
3. Regulatory networks and regulatory agencification: towards a
Single European Regulatory Space
David Levi-Faur
32
4. The policy-making structure of European regulatory networks
and the domestic adoption of standards
Martino Maggetti and Fabrizio Gilardi
52
5. Agency growth between autonomy and accountability:
the European Police Office as a ‘living institution’
Madalina Busuioc, Deirdre Curtin and Martijn Groenleer
70
6. EU-level agencies: new executive centre formation or
vehicles for national control?
Morten Egeberg and Jarle Trondal
90
7. Perspectives on EU governance: an empirical assessment of the
political attitudes of EU agency professionals
Arndt Wonka and Berthold Rittberger
110
8. The European Parliament and the legitimation of agencification
Christopher Lord
132
Index
150
vii
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Preface
The papers presented in this collection were first discussed in a workshop at the
Mannheim Centre for European Social Research (MZES) in September 2010.
The workshop formed part of the research project ‘Agency governance and its
challenges to the EU’s system of representation’, jointly led by the two
editors and based at the MZES. The project is affiliated to the EU FP-7 Integrated Project ‘Reconstituting Democracy in Europe’ (RECON) and funded
by ARENA (Centre for European Studies) based at the University of Oslo.
We would therefore like to thank RECON and ARENA, Erik Oddvar
Erikson and John Erik Fossum in particular, for their support, which was integral for the success of the workshop and, ultimately, the publication of this
collection. Moreover, we would like to thank the MZES, its administrative
staff (Connie Nickel in particular) and our research assistants (most notably
Theresa Breitmaier and Philipp Beiter) for their indispensable support in organizing and ensuring the smooth running of the workshop. We also want to
thank our pool of referees who worked hard and incredibly efficiently.
Finally, we would like to thank Jeremy Richardson for his enthusiasm,
support, patience and efficient handling of the entire process, as if Christchurch
and his family home had never been hit by a gruesome earthquake.
Berthold Rittberger and Arndt Wonka
Mannheim and Bremen
March 2011
1
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Introduction: agency governance in
the European Union
Berthold Rittberger and Arndt Wonka
ABSTRACT The literature on European Union (EU) agencies has proliferated
rapidly since the first essay collection on EU agencies was published by the Journal of
European Public Policy in 1997. This collection picks up three thematic threads contained in the initial collection and provides state-of-the-art treatises on these different
themes. The first theme addresses the causes and dynamics of the creation and design
of regulatory bodies in EU governance, focusing not only on EU agencies but also on
alternatives to the agency format, such as regulatory networks. Second, once agencies
are established the consequences and trajectories of governance with and by EU agencies
will be explored. Third, the design of EU agencies as independent, non-majoritarian
institutions poses pressing questions with a view to their legitimacy and accountability.
In 1997, the Journal of European Public Policy published a special issue on ‘European Agencies’, edited by Alexander Kreher and Yves Mény (Kreher and Mény
1997). At the time, the agency-phenomenon was hardly known and recognized
by scholars of the European Union (EU). This has changed considerably as scholarly work on EU agencies has proliferated remarkably in the past decade and half.
However, the 1997 special issue already addressed a set of pressing questions that
continue to occupy scholars until the present day (Kreher 1997; see also Busuioc
et al. 2011a): First, how can the creation and proliferation of EU-level agencies be
accounted for? What is the relationship between agencies and other regulatory
bodies, such as regulatory networks? Second, what is the trajectory of governance
by agencies for executive governance in the EU? To what degree can agencies act
autonomously from their principals, once they are operational? Do agencies affect
the pattern of policy-making and implementation in the EU in particular ways?
Third, what are the implications of agency involvement in EU policy-making for
legitimate and accountable EU governance?
1. THE CREATION AND DESIGN OF EU REGULATORY BODIES:
AGENCIES AND NETWORKS
Part of the current research agenda on EU agencies is to uncover the factors
causing the remarkable proliferation of EU agencies over the past two
2
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AGENCY GOVERNANCE IN THE EU
decades. The existing literature focuses on (a) structural factors and trends, such
as rise and growth of the regulatory state, (b) functional imperatives triggering
the demand for independent agencies, as well as (c) the role of inter-institutional
politics and ‘power games’ in the EU. With regard to structural factors, the
‘agencification’ of the EU is said to reflect a broader trend, which has unfolded
in national political systems in Western Europe and other regions of the
world (Christensen and Lægreid 2005; Gilardi 2005, 2008: 107–8; Elgie and
McMenamin 2005). It is claimed that the remarkable growth of regulatory
agencies throughout the industrialized world can be seen as part of a broader
shift towards ‘regulatory capitalism’ (Levi-Faur and Jordana 2005), which is
fuelled by attempts of policy-makers to credibly commit to liberalization
agendas and effective regulatory rules. The argument about credible commitments reflects the claim that regulatory policy decisions and the provision of
information for regulatory policy-making are more credible when they are insulated from re-election seeking politicians and instead are left in the hands of
independent regulators following professional considerations. Independent regulators and agencies can thus be considered a functional solution to the credible
commitment problem faced by policy-makers in regulatory policy-making.
Some of the very early works on the creation of EU agencies, published in
the 1997 special issue, develop this argument to explain why regulatory
functions, which have traditionally rested with the Commission, have been
‘outsourced’ to EU agencies (Dehousse 1997, Majone 1997). One stipulation
is that the capacity and resources of the Commission to ensure the uniform
implementation of EU legislation is limited and that the structure of
decision-making inside the Commission renders it prone to ‘politicization’,
which is detrimental to provision of credible regulation. The collegiate character
and composition of Commissioners and the concomitant concern that political
considerations enter the debates inside the college of Commissioners (Wonka
2007, 2008) undermine the credibility of regulation since it might be driven
by political rather than functional concerns (Dehousse 1997: 253).
From this perspective, EU agencies are considered integral in ensuring that
regulatory policies can be implemented coherently and consistently throughout
the EU ‘by ensuring that the actors in charge of the implementation of Community policies behave in a similar manner. In practice, this will only be possible
if they agree on the definition of a given problem, and on the response it calls
for’ (Dehousse 1997: 254). To work towards the uniform definition and
solution of regulatory policy problems, EU agencies help to establish and run
pan-European networks to bring together the relevant (public and private) regulatory players in the domestic and transnational sphere to promote ‘horizontal
cross-fertilization among national administrations’ and stakeholders to ensure
consistency of information (Dehousse 1997: 255) and ‘to facilitate the development of behavioural standards and working practices that create shared
expectations and enhance the effectiveness of social mechanisms of reputational
enforcement’ (Majone 1997: 272). In the EU-27, which is marked by considerable political, economic and administrative differences, agencies’ role in
3
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AGENCY GOVERNANCE IN THE EU
collecting and processing information might be even more important because of
their direct involvement in the implementation of EU decisions.
While functional arguments focus on the demand side of agency creation,
they ignore the supply side and hence the politics and inter-institutional bargaining over the creation of EU agencies (Kelemen 2002; Kelemen and Tarrant
2011; Roederer-Rynning and Daugbjerg 2010). Kelemen and Tarrant (2011)
argue, for example, that not functional imperatives but rather political considerations and the strategic interaction among the member states, Commission and
European Parliament are the key to understanding the design choice for a particular type of regulatory body, i.e., whether EU agencies or rather loose regulatory networks are being created. Moreover, the degree of distributional
conflict in a particular policy area affects the design choice: The higher the
level of distributional conflict, e.g. when core politico-economic and electoral
interests are at stake, the less likely the agency solution becomes given
member state resistance. Concomitantly, when distributional stakes are high,
member states tend to prefer looser regulatory networks. This has been the
case with regard to the regulation of utilities (e.g. electricity, railway, telecoms),
policies where distributional conflicts are prominent and where, consequently,
not agencies but weak regulatory networks issuing non-binding opinions have
been established (see Kelemen and Tarrant 2011).
In this collection, two papers address the question of agency creation and
proliferation as well as the question of design choice for regulatory bodies.
Mark Thatcher’s contribution provides a supply-side explanation for the creation of EU-level regulatory agencies. His point of departure is the puzzle
why the pattern of agency creation in the EU differs so markedly from that
in domestic contexts: Why have EU agencies been predominantly established
in areas of social regulation and not economic regulation (e.g. utilities, competition)? He argues that the pattern of ‘agencification’ in the EU has been heavily
conditioned by the past delegation of powers to the Commission as well as by
the role played by domestic regulators. The Commission, eager to defend its
turf, has agreed to the establishment of EU-level agencies only when this strategy
promised to enhance the Commission’s own objectives. Hence, ‘in domains
where the Commission had limited discretion and powers, an [EU agency] represented an opportunity for an expansion in the Commission’s role not a rival to
it’ (Thatcher 2011, this collection). At the same time, domestic regulatory
agencies and networks of national regulators have been equally alert and resistant to the creation of EU-level agencies, most notably in the area of economic
regulation (see also Coen and Thatcher 2008).
David Levi-Faur’s contribution to this collection starts from the observation of
a ‘double movement toward a single market and a single European regulatory
space’ and maps and discusses the different (institutional) manifestations of the
European regulatory space comprising a diverse set of agencies and agency-like
institutions ranging from the European Central Bank to OLAF (European
Anti-Fraud Office) as well as regulatory networks such as ENISA (European
Network and Information Security Agency). Levi-Faur (2011) argues that the
4
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AGENCY GOVERNANCE IN THE EU
development of the ‘European regulatory space reflects’ a set of interesting patterns: Agencies are increasingly replacing or dominating regulatory networks
through processes that he labels ‘agencification of networks’ or ‘agencified networks’. The focus of the paper is on mapping forms of institutionalization and
the extent to which agencies and networks (co-)exist in EU forming regulatory
regimes. While Levi-Faur’s analysis indicates that the process of ‘agencification
of networks’ is driven by both, the Commission and agencies, functional and
structural factors also play a decisive role. Future analyses will have to discuss
the political, functional and structural factors explaining the institutionalization
of what he labels the single European regulatory space.
2. AGENCIES IN ACTION: CONSEQUENCES AND
TRAJECTORIES OF AGENCY GOVERNANCE
Focusing on the causes of agency creation hardly permits definitive conclusions
on how agencies act and employ their competencies ‘post delegation’. Agencies
may have been created for various reasons and mirror different degrees of formal,
de jure autonomy (Wonka and Rittberger 2010), yet this may tell us very little
about their actual autonomy or day-to-day policy-making practices (see, for
example, Busioc et al. 2011; Groenleer 2009; Krapohl 2004). The study of
‘actual’ or de facto agency autonomy is an interesting field of study, since it
shifts our focus on different dimensions of agency governance and its consequences. How agencies work and operate is likely to have an effect on various
dimensions of governance with and by agencies. In this collection we will highlight three dimensions: first, the capacity of regulatory governance arrangements
to obtain particular regulatory objectives will be explored. Second, it will be
demonstrated that the capacity of an agency to act autonomously is affected
by accountability practices. Third, analysing behavioural patterns of the personnel of EU agencies permits conclusions with regard to questions about the trajectory of agency governance: Do agencies ‘look’ to the member state governments
as their masters, or do they spur supranational centre-formation?
2.1 Attainment of regulatory objectives
In the 1997 special issue, Renaud Dehousse argued that one of the most pressing
problems of European integration is to ensure the uniform application of EU
regulations in the member states. While the approximation of legislation or
the strengthening of the Commission provides only partial solutions at best,
he argued that what is really required is ‘that the actors in charge of the
implementation of Community policies behave in a similar manner. In practice,
this will only be possible if they agree on the definition of a given problem, and
on the response it calls for’ (Dehousse 1997: 254). How can this be achieved?
The solution propagated by Dehousse lies in the establishment of pan-European
regulatory networks bringing together the relevant regulatory players to improve
information exchanges and enable mutual learning processes by promoting
5
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AGENCY GOVERNANCE IN THE EU
‘horizontal cross-fertilization among national administrations’ (Dehousse
1997: 255).
In their contribution to this collection Maggetti and Gilardi (2011) focus on
one area of regulatory governance, the securities sector, where, until recently, the
Committee of European Securities Regulators (CESR) has played a crucial role
in the regulatory policy-making and implementation process. On 1 January
2011, the European Securities and Markets Authority (ESMA), a new independent EU-level agency, replaced the European network of national securities’ regulators. Following the turmoil on the financial markets and the ensuing
financial crisis, ESMA was instituted to play a central role in safeguarding the
stability of the EU’s financial system. Maggetti and Gilardi explore, inter alia,
the effectiveness of the CESR network in achieving regulatory harmonization
across its members. They find that the regulatory bodies of countries with
larger financial industries tend to occupy more central positions in the
network and that network centrality is associated with a swifter domestic
implementation of standards. They conclude that the creation of new EUlevel agencies in the regulation of financial markets, and ESMA in particular,
can hardly be accounted for by a concern about regulatory failure, since
CESR ‘seems to be effective in performing its main task, namely the promotion
of harmonized rules’ (Maggetti and Gilardi 2011).
2.2 The (im)balance between autonomy and accountability
While scholarship on the relative effectiveness of (different) regulatory governance arrangements constitutes a promising field for future research, the contribution by Busuioc et al. (2011b) points to yet another exciting field in the study
of the consequences of governance with agencies: the nexus and tension between
agency autonomy and accountability. On the one hand, there is the ‘functional’
argument that agencies must be independent from the interference of their principals so as to provide credible, unbiased information and regulatory decisions.
On the other hand, there is the normative argument that agencies have to be
held to account for their actions and policies by different accountability
forums to prevent them from abusing their powers (see Busuioc et al. 2011b;
Curtin 2005). How can these two objectives be reconciled? Busuioc, Curtin
and Groenleer approach this tension conceptually and empirically. Conceptually, they argue that autonomy and accountability are in balance when high
levels of de facto or ‘actual autonomy’ coincide with a robust framework of de
facto accountability. Consequently, they envisage situations in which there
can be autonomy overload when accountability practices are underused and
lag behind an agency’s exercise of its actual autonomy. Conversely, an accountability overload occurs when an agency lacks actual or de facto autonomy.
Tracing the fragile balance between autonomy and accountability, the contribution shows in the case of Europol that despite a subsequent increase in the
agency’s de jure autonomy, the lack of close co-operation with its national
counterparts has prevented the agency from exercising these formal powers
6
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AGENCY GOVERNANCE IN THE EU
effectively. Moreover, the increase in the European Parliament’s powers has led
to a situation whereby parliament employed its role in holding Europol to
account much more actively. While the authors emphasize that accountability
not necessarily impacts on agencies’ ability to act autonomously, the contribution highlights conditions under which the expansion of accountability
mechanisms can work to the detriment of an agency’s capacity to act autonomously.
2.3 Supranational centre formation?
The proliferation of EU agencies is considered to be part and parcel of the transformation of the EU’s ‘executive order’, which denotes a process whereby the
organization and exercise of executive power in the EU have undergone profound changes in the past decades, which is reflected first and foremost by
the ‘emergence and consolidation of the position of the Commission as a
central executive actor’ (Curtin and Egeberg 2008: 640, see also Trondal
2010). Within this new executive order, agencies are said to represent a ‘compromise’ reflecting the interests of their multiple principals (the Council, Commission and even the European Parliament). This begs the general question of
how autonomous agencies can actually act vis-à-vis their principals. Does the
agency-phenomenon mirror a development towards more European integration, ‘in the sense of a supranational state in the mould of European
nation states, or as a step back towards the strengthening of member states’?
(Kreher 1997: 226). In their contribution to this collection, Egeberg and
Trondal (2011a) delve into this question by asking what role EU agencies play
in the process of ‘executive centre formation’ at the EU level. Presenting new
data from a survey among senior agency officials, they argue that EU agencies
spur the development of executive centre formation at the EU level: ‘EU-level
agencies find themselves much closer to the Commission than to the Council
and national ministries’ (Egeberg and Trondal 2011a, this collection).
3. LEGITIMACY AND ACCOUNTABILITY OF AGENCY
GOVERNANCE
EU agencies exert political authority: Their opinions and decisions impact
directly on policy outcomes and thus on citizens, governments and stakeholders.
Yet, as we have already seen, agencies are deliberately designed to operate at
arm’s length from their political principals. Hence, agency independence has
been heralded as a solution to overcome ‘petty politics’ which eschews credible
and efficient regulatory policy-making (Majone 1997, 2000). It is precisely the
discretionary nature of the EU agencies, which has spurred debates about the
sources of EU agencies’ legitimacy. Shapiro (1997) has issued the caution
that substituting the legitimacy of expertise for democratic legitimacy is
highly problematic: ‘If the independent agency argument is that information
¼ technical expertise outside of politics ¼ technocracy ¼ a non-democratic
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AGENCY GOVERNANCE IN THE EU
legitimacy, the response is that information is not technical but political and
that technocracy is, these days, not perceived by the public as legitimate’
(Shapiro 1997: 287). Thus, there is a potential legitimacy ‘cost’ associated
with governance by and through agencies since the provision of expertise and
information is not politically neutral (see Vibert 2007 for a contrasting argument).
Given the limitations of justifying the authority of agencies via the principle
of technocratic legitimacy, the democratic principle, which legitimizes the exercise of political authority as long as it reflects the decisions and deliberations of
representative institutions (parliaments) and citizen involvement, seems to be no
less problematic given the deliberate non-majoritarian character of EU agencies.
To escape this legitimacy ‘trap’, scholars have turned to the question about how
non-majoritarian institutions can be ‘checked’ and held to account (see, for
example, Bovens 2007; Busuioc 2009, 2010): Accountability mechanisms
demand from ‘agents’ to explain and justify their conduct and procedures
enabling political, legal, administrative, professional or societal ‘forums’ to
pass judgement and thereby add to the legitimacy of democratic governance
(see Fossum and Eriksen 2003).
The last section of this collection presents work, which pushes the normative
agenda of EU agency governance in an empirical – analytical direction. Wonka
and Rittberger (2011) explore the political attitudes of EU agency staff focusing,
inter alia, on perceptions about the sources of legitimate and accountable governance. One of the main findings holds that while EU agency professionals
strongly and almost uniformly approve of the notion of ‘professional’ accountability, forms of ‘social’ accountability and the desire for public approval are also
considered important. The authors interpret these findings as an indication that
the self-understanding of EU agency professionals is rooted in strong sense of
professionalism with, at the same time, an acute awareness of the political character (and impact) of their work. This self-understanding might result from
agency professionals’ principled scepticism towards a purely ‘technocratic’
notion of legitimacy and accountability. Moreover, it may also reflect the
conviction that efficient regulation in the heterogeneous EU context relies on
the general approval of the public and of political elites.
The final contribution to this collection by Christopher Lord considers the
role played by the European Parliament in ensuring that the agencies are controlled and held to account. He sets out with the normative claim that ‘[o]nly
democratically elected legislatures can ultimately establish the legitimacy of delegations to executive bodies by deciding those questions of public control,
justice, values and rights which are raised by the exercise of their functions’
(Lord 2011, this collection). He argues that the role of the European Parliament
can be considered paradoxical given parliament’s strong scepticism vis-à-vis EU
agencies on the one hand, and the legislative efforts on behalf of parliament to
increase the powers and autonomy of EU agencies on the other hand. Lord
argues that the paradox can be ‘solved’ when considering the argument that
the European Parliament was willing to grant greater powers as long as it
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AGENCY GOVERNANCE IN THE EU
contained the possibility to project its own legitimation beliefs and requirements onto the design of EU agencies via legislative amendments. Notions
about the appropriate form and level of public control, fair treatment and
rights protection featured prominently in parliament’s justifications for the
amendments the European Parliament tabled for the legislation to establish
new EU-level agencies.
Biographical notes: Berthold Rittberger is Professor and Chair of Political
Science and Contemporary History at the University of Mannheim; Project
Director at the Mannheim Centre for European Social Research (MZES); and
Adjunct Professor at the University of Canterbury, Christchurch, New
Zealand. Arndt Wonka is Field Co-ordinator and Postdoctoral Researcher at
the Bremen International Graduate School of Social Sciences and External
Fellow and Project Director at MZES.
REFERENCES
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European Law Journal 13: 447–68.
Busuioc, M. (2009) ‘Accountability, control and independence. The case of European
agencies’, European Law Journal 15: 599–15.
Busuioc, M. (2010) The Accountability of European Agencies: Legal Provisions and
Ongoing Practices, Delft: Eburon.
Busuioc, M., Curtin, D. and Groenleer, M. (2011a) ‘Agency growth between autonomy
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The creation of European regulatory
agencies and its limits: a comparative
analysis of European delegation
Mark Thatcher
ABSTRACT Agency creation at the European Union (EU) level differs from that
at the national one. European regulatory agencies (ERAs) have limited formal powers
and separation from other actors, resembling networks rather than stand-alone
agencies. ERAs for economic regulation have been created later and in smaller
numbers than for social regulation. Using a historical rational analysis, this paper
argues that past delegations to other non-majoritarian institutions at the EU and
national levels condition the creation of European agencies. The Commission has
defended its existing role and powers, accepting ERAs when they aid its strategy
to increase its own reach and ensuring that it has many controls over them. When
member states have created independent regulatory agencies (IRAs), those IRAs
have defended their autonomy and resisted strong ERAs. Formalized EU networks
of IRAs have hindered the establishment of powerful ERAs and when created,
ERAs have involved layering and conversion of those networks. Hence formal
delegation to ERAs has been limited and uneven.
Governance through agencies is spreading, especially in European countries,
giving rise to claims of ‘agencification’ or ‘agency fever’ (Politt et al. 2001).
The creation of national ‘independent regulatory agencies’ (IRAs) in particular
has been underlined as part of the rise of the ‘regulatory state’ (Gilardi 2008;
Levi-Faur 2005; Majone 1997).
Agencies have also been established at the European Union (EU) level, spurring considerable interest in the reasons for their creation, their functioning and
their implications for European governance.1 They appear to represent a significant development, forming part of the emergence of ‘distributed governance’
and an important element in a wider transformation of the EU’s administrative
system (Chiti 2000; Egeberg 2006: Chapter 2; Flinders 2004; Trondal and
Jeppesen 2008).
This paper studies the establishment of European regulatory agencies (ERAs)
since regulation lies at the core of the EU’s activities. It finds that EU ‘agency
fever’ is considerably more limited and follows a different pattern than for
European nations. Fewer ERAs for economic regulation have been created
than for social regulation and they have been established later, whereas the
12
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AGENCY GOVERNANCE IN THE EU
opposite pattern is seen in EU member states. Moreover, the formal powers of
ERAs are often rather limited, and the Commission and national bodies enjoy
many controls over them. Institutionally, ERAs are often closer to being networks incorporating the Commission and national policy-makers rather than
being free-standing bodies with clear formal autonomy and regulatory powers.
The pattern of ERA creation provides some puzzling features for two major
explanations for European agencies. For functionalist analyses, ERAs have not
been set up or were set up later in sectors where the theories would predict
the strongest reasons for delegation. For institutional isomorphic analyses,
ERAs have not been set up in domains where IRAs have been created and/or
have different institutional forms, indicating limited institutional isomorphism
between the national and EU levels, while there is considerable variation in
agencification across domains, suggesting limited isomorphism at the EU level.
The paper therefore uses a historical-rationalist approach to study the puzzling features found. European regulation takes place in an ‘institutional
space’ where much delegation to non-majoritarian organizations has already
taken place at both the EU and national levels. The paper examines the influence of past delegations to put forward three claims that are developed theoretically and empirically. If past delegation to the Commission has been high in a
domain, this is an obstacle to setting up an ERA, whereas if it has been limited,
an ERA offers the Commission opportunities to expand its role. Second, the
past delegation to IRAs at the national level makes the rapid creation of a
strong free-standing ERA more difficult. Third, if formalized European regulatory networks have been created in a domain, they usually slow down or offer an
alternative to an ERA.
The overall argument is that past delegations to non-majoritarian institutions
condition the subsequent creation of ERAs. They shape responses to functional
pressures through their effects on the actors in decision-making and their strategies and choices. They contribute to the reform of regulatory structures being
incremental, through processes such as layering and conversion of existing institutions (cf. Streeck and Thelen 2005). As a result, ERAs are strongly tied to
other actors and agencification has been limited and uneven.
The findings relate not only to understanding EU agencification, but also the
development of the EU’s system of regulation. The limitations arising from past
delegations to non-majoritarian institutions contribute to the use of networks
and the growth of ‘experimentalist’ EU governance and more generally, to
the EU being marked by a combination of several forms of governance rather
than one dominant mode (Börzel 2010; Kohler-Koch and Eising 1999;
Olsen 2010; Sabel and Zeitlin 2010).
ANALYSING THE SPREAD OF ERAS
Early explanations for the spread of European agencies relied heavily on claims
of functional benefits (Dehousse 1997; Everson 1995; Groenleer 2009: 100 –2;
Majone 1997, 2000). Thus agencies are said to be able to obtain appropriate
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AGENCY GOVERNANCE IN THE EU
resources, such as technical expertise and staff, by avoiding limits on Commission staff numbers and spending. They may be well placed to ‘regulate through
information’ which is argued to be superior to other modes of governance in the
EU (Majone 1997). Equally, ERAs aid the co-ordination of the multiple organizations involved in EU regulation (Dehousse 1997). Finally, they may respond
to ‘institutional fragilities’ of EU regulation, including the weakening of the
Commission’s independence from governments and hence ability to offer credible commitment (Majone 2000).
Functionalist theories thus suggest that ERAs should be established when one
or several of these factors are present and strong. If credible commitment is
important, then ERAs would be expected in economic regulation and in
domains characterized by high sunk investment such as network industries
(cf. Levy and Spiller 1996). Equally, if there are many organizations to
co-ordinate, ERAs are more likely. Finally, if domains are highly technical
and likely to require considerable resources, then an ERA is more likely.
Functionalist theory responds directly to the issue of the benefits for EU
decision-making if actors delegate to agencies as opposed to keeping powers
themselves. But, it faces the question of who is the principal in delegating to
ERAs – is it member states and/or the Commission (Dehousse 2008)? It
also fails to examine the potential dysfunctionalities of ERAs, such as problems
of co-ordination, legitimacy and loss of control (cf. Shapiro 1997). But perhaps
the most significant criticisms concern the lack of discussion of the politics of
agency creation (Keleman 2002, 2005). In particular, creating an ERA is an
institutional choice by policy-makers with their own interests and strategies
from among competing alternatives, such as regulatory networks, regulation
directly by the Commission or the traditional implementation method of
implementation by national regulatory authorities monitored by the Commission and the European Court of Justice (ECJ) (Thatcher and Coen 2008).
An alternative approach is offered by sociological theories (Christensen and
Nielsen 2010). While diverse, they often draw on institutional isomorphism,
in which institutional change takes place through mimetism, the development
of cultural norms about ‘appropriate institutional forms’ across organizational
fields and by coercion (cf. DiMaggio and Powell 1991). The result is diffusion
of agencies both across sectors and internationally (Gilardi 2005; Jordana et al.
forthcoming).
Sociological theories are now being applied to ERAs (Christensen and
Nielsen 2010). The argument is that the agency form is copied at the EU
level or becomes seen as the ‘legitimate’ organizational form. If isomorphism
occurs at the EU level, then ERAs in one domain should spread in a similar
form to other domains, especially adjacent ones, regardless of functional pressures and benefits. If isomorphism occurs between the national and EU levels,
then if IRAs exist in a domain, these forms should be replicated at the EU
level even if costs and benefits differ.
Sociological explanations offer an important alternative to those based on efficiency. They study preference formation rather than taking it as given (Tallberg
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AGENCY GOVERNANCE IN THE EU
2006). They respond to the dangers of being a teleological ‘reading back’ of
intentions behind the creation of ERAs from the functions that they in fact
perform. However, they face questions about why certain choices are made.
After all, several institutional options are often available and hence also
alternative norms and examples. They need to explain who are the transmitters
of norms or mimetism, and why they succeed in achieving institutional
change.
A third approach is offered by historical institutionalist analyses which argue
that past institutional development strongly condition present decisions, either
through the effects of existing organizations that limit and influence institutional modifications (cf. Streeck and Thelen 2005) and/or through path
dependency (Pierson 2003). They focus on how inherited context influences
the actors in decision-making and their interests, strategies and alliances.
Historical approaches are careful about offering general predictions, but
instead suggest that agency creation will vary according to context and inheritance (cf. Yesilkagit and Christensen 2010; Pollitt and Bouckaert 2004). It is
possible that a similar process operates to that seen at the national level; in
particular, if agencies already exist, then the creation of further independent
agencies is more likely through isomorphism and bounded rationality (cf. van
Thiel 2004). Equally, however, the effects of past delegations may differ at
the EU level compared with the national one because of the different context.
Moreover, institutions such as agencies must be investigated empirically
within their contexts since bodies with similar labels may in fact differ.
Historical approaches allow actors’ preferences and strategies to be understood and studied rather than being assumed. Equally, they avoid teleological
explanations. But, they may suffer from lack of theoretical positions, relying
instead on empirically grounded generalizations. Moreover, although many
writers present historical institutionalism as a separate approach, they mix
elements of both rational choice and sociological institutionalism. Indeed,
Stacey and Rittberger (2003) suggest that a combination of historical institutionalist and rational choice lenses is especially suitable for looking at EU
decision-making, while for their part, Yesilkagit and Christensen (2010) refer
to ‘cultural-historical approaches’ to agency creation.
A RATIONAL-HISTORICAL APPROACH TO ERAS
The present paper adopts a historical rational approach to analysing ERAs for
several reasons. First, it allows examination of whether ERAs are in fact the
same kind of agency as national IRAs, which is crucial to understanding what
phenomena are to be explained. Second, it can respond to criticisms of the
lack of political analysis in functionalist approaches and offer contextual
factors that shape and mediate institutional choices. However, the most important reason is that, as will be seen in the next section, some aspects of the pattern
of ERA creation do not match those expected by either functionalist or institutional isomorphic approaches. The paper does not claim that past delegations
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AGENCY GOVERNANCE IN THE EU
are the sole explanation for patterns of ERA creation – rather it seeks to examine
their contribution as at least part of the explanation of puzzling features.
Delegation theory offers a good starting point for the analysis (Huber and
Shipan 2002; Pollack 2003; Tallberg 2006). Although it forms part of the
rational choice principal-agency theory and hence is also a functionalist
theory, it seeks to explain the decision to delegate and its formal institutional
form by looking at both the functions that agents can play for principals and
also their costs. Agencies may perform useful functions for their principals
such as enhancing credible commitment, dealing with political conflict, uncertainty and blame or increasing the efficiency of decision-making (Thatcher
2002; Yesilkagit and Christensen 2010). But delegation also has costs,
notably agency losses from ‘shirking’ due to diverse preferences between principals and agents and information asymmetries, and also the costs of control
(Kiewiet and McCubbins 1991; cf. Pollack 2003: 26 –7).
Delegation choices are influenced by both the preferences of the actors, including the potential conflict between principals and agents, and also the institutional
context that affects the costs and benefits of delegation for the principals, such as
their capacity to pass legislation, the bargaining environment or the availability of
non-statutory forms of control over agents (Huber and Shipan 2002). Concerning preferences, it is argued that EU member states, seen as principals delegating
to supranational bodies such as the Commission and ECJ, seek both to achieve
credible commitment and to minimize adjustment costs and protect state sovereignty (Pollack 2003; Tallberg 2003). Supra-national institutions such as the
Commission, seek greater integration and powers for themselves. However, as
will be seen, there are also other relevant actors in agency creation, such as
IRAs and European networks of regulators. With respect to context, in addition
to the general institutional architecture of the EU, an important (if not the most
important) feature of EU regulation is extensive, delegation to non-majoritarian
institutions at both the national and EU levels.
In the case of ERAs, there are at least three such major relevant delegations.
First, member states have delegated powers to EU institutions. Of particular
importance for regulation is delegation to the European Commission, especially
its monopoly to propose legislation and its powers over monitoring enforcement
of European Community (EC) legislation. Second, the EU often delegates
responsibility for implementing EC regulation (directives) to member states,
and especially to the ‘national regulatory authorities’, which themselves can
be IRAs and hence are already agents, as well as to government ministries.
Hence the Commission is both an agent of the member states and also a supervisor of these national organizations (Tallberg 2003). Third, both the Commission and national bodies have sometimes delegated functions and powers to
other bodies such as European networks of regulators (cf. Coen and Thatcher
2008; Eberlein and Norman 2008).2
With respect to the first delegation, an extensive Commission role may mean it
is facing pressures of workload, resources and additional tasks, making the creation of ERAs attractive, as suggested by the early functionalists. However, it
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AGENCY GOVERNANCE IN THE EU
may also mean that powers are transferred from the Commission to the ERA,
making the Commission its principal (Dehousse 2008). This may be significant
because many of the functionalist rationales for delegation to agencies set out by
principal-agent theory, such as increased electoral popularity which arises from
the beneficial effects of enhanced credible commitment or the use of delegation
to deal with political conflicts and uncertainty are likely to be weaker for unelected
bodies such as the Commission than for elected politicians. Indeed, such unelected
bodies may be most concerned with keeping their administrative powers. If creating
an ERA requires the taking away of powers from the Commission, it is in fact a
‘double delegation’ (Coen and Thatcher 2008). The Commission may obstruct
this, both because of loss of powers and because altering legislation afterwards
(if the agency shirks) is difficult; the Commission’s role is important, given its
powers over European legislation which make it a veto player. In addition, an
ERA may face multiple principals – both national governments and the Commission. But this may increase difficulties of limiting shirking as it can play off principals against each other (cf. McCubbins et al. 1989); this may make both the
Commission and national governments wary of establishing ERAs or of delegating
strong powers to them and keen to ensure strong ex post controls.
The existence of IRAs too may affect the creation of ERAs. Although numerous
IRAs may offer functional advantages of ERAs as coordinating ‘hubs’ (Dehousse
1997), IRAs may view ERAs as competitors, and loss of power to an ERA may
offset any gains they enjoy from co-ordination. IRAs (and their national governments and firms) may see ERAs as increasing the EU’s supervisory powers over
national implementation of European regulation, reducing their own flexibility
and autonomy. Moreover, if powers are being transferred from IRAs to ERAs,
those IRAs are another set of principals, again raising problems of post-delegation
control. Thus, IRAs may oppose the development of ERAs or at least press for
strong controls over them and limits on their ability to expand their power.
The third delegation is to formal European networks of national regulators –
for instance, in coordinating IRAs, offering opinions, preparing legislation or
aiding in its implementation. They offer an institutional alternative to ERAs,
one that can have advantages for both IRAs and national governments, such
as limited formal autonomy, separation from the Commission and strong controls (cf. Coen and Thatcher 2008). Moreover, networks themselves can act as
organizations, with their own interests, and can be expected to defend their
existence and turf and participate in decision-making about ERAs.
Overall, the argument is that these past delegations can affect who is the principal
in a delegation to an ERA, the actors in the existing institutional space, the costs and
benefits of ERAs and the range of institutional alternatives to ERAs. These are
investigated empirically, after a section offering an analysis of the spread of ERAs
A COMPARATIVE ANALYSIS OF THE CREATION OF ERAS
EU organizations called ‘agencies’ have been seen since the birth of the EC in
1958, but the earliest ones had few formal institutional resources (Groenleer
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AGENCY GOVERNANCE IN THE EU
2009). Using a definition of EU agencies as ‘EU level public authorities with a
legal personality and a certain degree of organizational and financial autonomy
that are created by acts of secondary legislation in order to perform clearly specified tasks’ (Keleman 2005: 175–6), Wonka and Rittberger (2010) list 29 such
agencies that had been created by 2008. Although two were created in 1975,
there have been two major ‘waves’ of agency creation – 1990 –1994 and
then 2002– 2007.
The majority of the agencies (18 out of 29) are information or executive agencies.
They fulfil purely managerial tasks or have an observational role and lack even predecision-making powers (Griller and Orator 2010; for surveys, see Christensen and
Nielsen 2010; Wonka and Rittberger 2010). The remaining agencies are ERAs –
i.e. they are regulatory, being involved in the application of rules. They may take
decisions in individual cases (for instance, the aviation safety agency (European
Aviation Safety Agency, EASA) or the plant registration agency (Community
Plant Variety Office, CPVO)). However, they also include ‘pre-decision-making
agencies’ whose non-binding ‘opinions’ or proposed decisions can have an effect
on the formal decision of the Commission and hence can sometimes be reviewed
by the ECJ. An important example is the medicines agency, the European
Medicines Agency (EMEA), where the ECJ found it could examine the formal
legality of its scientific opinion (Griller and Orator 2010: 13–14).
A notable feature is that the majority of ERAs are engaged in ‘social regulation’ rather than ‘economic regulation’. Although not always a clear-cut
distinction, the latter refers to issues of competition, such as prices, ‘unfair
competition’ or obstacles to market access, and may be concerned with correcting markets to ensure competition or constituting markets, whereas social regulation refers to risks involving the environment, health and safety (cf. Gilardi
2008: 15; Hawkins and Hutter 1993). Much social regulation by ERAs is
advice about safety standards and authorizations, for instance, concerning aviation, food, chemicals and railways.
As of 2008, at most, there was only one ERA engaged in economic regulation,
the Trade Marks Office (Office for the Harmonization in the Internal Market
(OHIM)), displayed in Table 1.3 The strikingly low number of agencies for
economic regulation is being partly offset by a ‘third wave’ of agency creation
that began in 2009–2010. It involves new agencies or authorities for energy,
banking, pensions, securities and insurance markets. Their creation has been
very slow – discussions of an ERA for telecommunications and securities
date back to the early 2000s and even the 1990s (cf. Goodman 2006; Lee
2005; Moloney 2011: 5). Nevertheless, there are still no ERAs for key
markets, including several network industries (telecommunications,4 postal services and water). Most significantly, there is no EU general competition agency.
Instead, general competition powers over mergers and acquisitions, dumping
and state aids are held by the Commission and/or by national regulatory authorities, mostly IRAs.
The formal powers of many ERAs are limited. Indeed, as Scott (2005) points
out, most have fewer powers than other actors in EU regulatory regimes such as
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Table 1 European regulatory agencies (as at March 2011)
ERAs for social regulation
European Centre for the
development of
vocational training –
Cedefop (1975)
European Foundation for
the Improvement of
Living and Working
Conditions (1975)
European agency for
safety and health at
work (1994)
CPVO (1994)
European Maritime Safety
Agency (2002)
ERA for economic
regulation
Trade Marks and
Designs – OHIM
(1993)
No ERA set up or proposed
General competition,
telecommunications,
postal services, water
Agency for the
Cooperation of
Energy Regulators –
ACER (2009)
European Banking
Authority (2010)
European Insurance
and Occupational
Pensions Authority
(2010)
European Securities
and Markets
Authority – ESMA
(2010)
EASA (2002)
European Food Safety
Authority – EFSA
(2002)
EMEA (2004)
European Railway Agency
(2004)
European Chemicals
Agency (2006)
the Commission. Thus far, no ERAs with general rule-making powers have been
created. Thus, many offer scientific opinions to the Commission, which then
takes decisions. The food safety agency (EFSA) offers a good example.
Another is the EMEA, which has an important role in the centralized authorization procedure for medicines, but does not take formal decisions itself which
are left to a complex process involving the Commission, a standing committee
composed of member state representatives and ultimately the Council. (It
should be noted that what occurs in practice may well differ (see Groenleer
2009 and Vos 2010, cf. Trondal and Jeppesen 2008)).
ERAs for economic regulation also have limited formal powers. Thus for
instance, the Trademarks Office plays a very important function, but its discretionary powers are limited as it is essentially a registration office. Moreover,
applicants can always bypass the Office by seeking to register trademarks at
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the national level. Even the formally strongest and recently set up energy agency
ACER, can only take decisions on terms and conditions for access to and the
operational security of cross-border infrastructure (and even here, only if
national regulatory authorities have failed to reach agreement for 6 months or
at their request) or on certain ‘technical issues’.5 Otherwise it can report
matters to the Commission, provide non-binding guidelines and codes, offer
opinions and monitor events. Similarly, the new financial ERAs are constrained
in rule making. Thus for instance, the securities regulator ESMA can only
propose binding technical standards while ‘regulatory technical standards’ can
be vetoed by the Council and the European Parliament.
Many ERAs appear closer to being set up as networks of national agencies
than free-standing and independent bodies. Thus for instance, ACER the
new energy ERA and the European financial agencies all have two boards –
the traditional management board composed of national representatives
(usually from ministries) and a board of regulators (for ACER) or supervisors
(for the new financial ERAs) composed of senior representatives of regulatory
authorities. In addition, there is a non-voting member of the Commission
and sometimes other non-voting members. ACER’s regulatory board even
needs a two-thirds majority to take decisions, while the boards of supervisors
for the financial ERAs will need a qualified majority for decisions about technical standards. Given the powers held by other actors and its place within a wider
European System of Financial Supervision, Moloney (2011: 63) comments that
‘ESMA’s independence becomes more illusory on closer inspection’. Approval
of medicines can either be given by a national agency or by means of a centralized EU assessment following a recommendation by the EMEA, but the latter
carries out its assessments through national authorities. Indeed, Groenleer
(2009: 145) argues that ‘the agency was supposed to be the hub of a multilevel network of actors’.
The pattern of EU agency creation differs from that in many EU member
states. Here, IRAs for economic regulation have been set up for many
markets, often in the 1990s or even earlier (Gilardi 2008, cf. Table 2). Thus
many general competition authorities were created in the 1980s and IRAs for
telecommunications in the 1980s and 1990s, so that by 2002, all EU
member states had one. IRAs for energy followed in the late 1980s and
1990s in most member states. In contrast, IRAs for social regulation have
either been set up later or not at all. Hence IRAs for chemicals, railways or aviation safety are rare. Even in food safety, most IRAs were set up only in the late
1990s and early 2000s and five member states did not have an IRA in 2002
(Gilardi 2008: 149–51).
The formal resources and powers of ERAs for economic regulation are also
much more limited than for many national IRAs. Thus for instance, most
IRAs are headed by a board of individuals appointed for fixed terms of
several years. They have their own staff and budgets, which are often larger
than those of the ERAs (thus for example, ACER’s initial budget will be 5m
euros and 50 staff, whereas the UK energy IRA, Ofgem, has a budget of 9m
20
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AGENCY GOVERNANCE IN THE EU
Table 2 ERAs, IRAs and formal EU networks in selected domains
Domain
General
competition
Telecoms
Electricity
Securities/
financial
services
Food safety
Medicines/
pharmaceutical
Chemicals
ERA
Number of IRAs in
15 EU member
states when ERA
created (or 2010
if no ERA)
Number
of IRAs
in 2000
Number
of IRAs
10 years
before
ERA
created
No
15
13
n/a
No
2009
2010
15
14
15
14
14
11
n/a
11
12
2002
2004
8
11
7
9
1
7
None
None
n/a
n/a
None
2006 No sector-specific
agencies found
– general health
and safety IRAs
Formal EU
network with
powers
European
Competition
Network
2002
ERG 2002
ERGEG 2003
CESR 2001
Source: Gilardi (2008), Coen and Thatcher (2008), Levi-Faur, this volume.
Notes: ERG, European Regulators Group for Electronic Communications Networks
and Services; ERGEG, European Regulators’ Group for Electricity and Gas; CESR,
Committee of European Securities Regulators.
euros and a staff of 54).6 IRAs for economic regulation have considerable formal
powers to make rules and to take individual decisions. Thus for example, most
enjoy powers to enforce licenses, and sometimes to issue and/or modify them.
They also typically have powers over pricing and access conditions to the infrastructure. Some have powers to levy fines for breaches of license or even for
breaking competition law. The duties of IRA are usually set in broad terms,
such as ensuring universal service and competition, allowing them much discretion, while governments lack many formal powers to overturn IRA decisions, as
the legislation typically defines the competencies of the latter.
Thus ERAs have indeed spread over the past twenty years. But, the pattern of
fewer agencies for economic than social regulation runs counter to functionalist
analyses as many of their explanatory factors for ERAs appear to be very strong
for economic regulation (great technical expertise and high numbers of staff
and/or expensive staff who are difficult to attract, or acting as hubs in
domains with many actors, including national IRAs). The absence or weakness
of ERAs for economic regulation of network industries is noteworthy, given that
21
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AGENCY GOVERNANCE IN THE EU
that many of the functionalist arguments for delegation to IRAs have been
developed concerning those industries (cf. Levy and Spiller 1996). At the
same time, the contrast between IRAs and ERAs indicates that the institutional
isomorphism from the national to the EU level seems to have been limited.
In addition, important variations have been seen in adjacent domains in
which similar functional advantages would be expected, for example, the creation of ACER for energy but the lack of a fully constituted ERA for telecommunications. Finally, the creation and powers of ERAs are limited compared
with the national level, which calls for analysis given that the EU is presented
as a good example of the regulatory state (Majone 1997). Thus the creation
of ERAs present puzzling features, for which past delegations may offer part
of the explanation.
PAST DELEGATIONS AND THE CREATION OF ERAS
Previous formal delegation to the Commission
The Commission is a central actor in the creation of ERAs as it proposes
legislation. In certain domains, it already had a powerful role and considerable discretion before proposals for agencies were made. This is especially
true in economic regulation, both concerning general and sector-specific
competition. Thus for instance, Franchino (2007: 103) shows that the five
pieces of EC legislation that give greatest discretion to the Commission are
all to be found in the field of competition. In these domains, the Commission (especially the powerful Competition Directorate General), has often
defended its existing bastions, notably employing the ‘Meroni doctrine’.7
Sometimes it has enjoyed the support of some member states who prefer
regulatory powers in the hands of the Commission rather than a powerful
and independent ERA.
The clearest case is the general competition policy, where the Commission
enjoys considerable powers over mergers, unfair practices and state aid. A
powerful European Cartel Office could have destroyed DG Competition’s
position, and indeed emptied the Commission of its most influential unit.
The example is important both as general competition policy is at the core of
EU regulation and because the earliest discussions for ERAs were for a European
Cartel Office, dating back to the 1960s, but strongly revived in the mid-1990s
(Financial Times 23 June 1995; Wilks and McGowan 1995). Thus for instance,
in the mid-1990s, Germany proposed a European Cartel Office that would be
independent from the Commission, which it believed would reduce politicization, increase transparency, enjoy sufficient resources and respond to strong
pressures on DG Competition (then DG IV) by certain member states
(notably France) for mergers and state aid to be permitted. Industrialists associations representing large firms supported the idea. Nevertheless, it was rejected
by the Commission, which argued that such an ERA would not resolve problems.8 The Commission’s position won the support of other member states
22
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AGENCY GOVERNANCE IN THE EU
(Financial Times, 3 August 1994; 19 October 1994). Hence no agency was
established. Instead, reforms introduced in 2003 –2004 involved delegating
some Commission powers to the national agencies and creating a European
network of competition authorities, a move that limited DG Competition’s
caseload and also gave it the opportunity to engage deeply with national interlocutors and hence gain influence (Wilks 2005).
Other examples concern the regulation of network industries. There have
been several serious discussions of ERAs from the 1990s onwards (cf. Coen
and Doyle 1999 for advantages and disadvantages). But the Commission’s
role has expanded from the mid-1980s onwards both thanks to traditional
powers, but also by using or threatening to use general competition powers
such as Article 106(3) (formerly Article 90) to issue directives to deal with
liberalization (cf. Schmidt 1998). Powerful ERAs for telecommunications or
energy would have undermined the Commission’s newly expanded power,
especially that of DG Competition. Instead, a network of national regulators
was established for telecommunications, energy and securities in the early
2000s, in which the Commission was an observer and acted as the secretariat
(cf. Coen and Thatcher 2008). When proposals were made again for a telecommunications ERA in the late 2000s, there was opposition within the Commission, notably from the Competition Commissioner, fearing loss of powers
(Financial Times, 14 January 2007). The outcome is no formal ERA for
telecommunications and instead a body (Body of European Regulators for
Electronic Communications [BEREC]), with very few formal powers, was
created in 2009.
In contrast, in many of the fields in which ERAs have been established, the
Commission lacked strong inherited powers and roles. Thus for instance,
unlike other network sectors, it had played little role in railway regulation,
especially concerning safety. Hence the European Railway Agency did not
represent a loss of power for it. Similarly, the Commission has very limited discretion in the field of safety and health of workers – Directive 98/391 figures
among the lowest five legislative acts for its discretion classified by Franchino
(2007: 103). Pharmaceuticals offer another good example: the Commission
had played only a limited role in health care and medicines licensing and
hence creating an ERA (EMEA) actually offered an increase in the Commission’s role (Keleman 2002: 103).
When ERAs have been created, the Commission has ensured institutional
arrangements to protect its role and powers. Thus for example, in food
safety, before the creation of the EFSA, functions were scattered across the Commission and various committees, so that national actors enjoyed a major role.
However, the EFSA is led by a management board whose members are
appointed as individuals not representatives of member states, but includes a
Commission representative. It only deals with risk assessment, offering scientific
advice – decisions about what action to take remain with the Commission,
Council and European Parliament (Chalmers 2003). An analogous situation
exists in pharmaceuticals, where the EMEA offers opinions and does not take
23
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AGENCY GOVERNANCE IN THE EU
formal decisions (Gering and Krapohl 2007; Kelemen 2002). Hence the Commission has a representative within many ERAs for social regulation without
losing its formal decision-making powers. When ERAs for economic regulation
have finally been established, the Commission keeps many powers. Thus for
instance, although ESMA can propose binding technical standards, the Commission can change or reject them (Moloney 2011: 64– 7). Hence the Commission keeps decision-making powers, but gains through ERAs an additional
means of rule-making, information and enforcement.
Thus in domains where the Commission had limited discretion and powers,
an ERA represented an opportunity for an expansion in the Commission’s role
not a rival to it, as Kelemen (2002) rightly underlines. Moreover, in the creation
of ERAs, the Commission has defended its ‘turf’, limiting their powers and
scope to ensure that its own role remains.
Previous delegation to national IRAs
Previous delegations to IRAs within member states can also influence the
creation and form of ERAs. Powerful, free-standing ERAs could compete
with IRAs over control of implementation of EC regulation and reduce their
autonomy. In discussions about creating ERAs, IRAs lobby (at both national
and EU levels) and are often influential, thanks to their expertise and relationships with governments and suppliers. Moreover, since EC legislation frequently allows much scope for discretion in implementation, governments
may wish to protect the autonomy of national IRAs to pursue national policies.
More generally, IRAs, especially those in the area of economic regulation, often
play an important role in national political and industrial strategies over matters
such as tariffs, mergers and takeovers or protection of national suppliers. In the
field of economic regulation, when ERAs were debated in the late 1990s and
2000s, most member states already had IRAs.
National IRAs often favour an alternative to strong ERAs, namely informal
networks of IRAs. Examples include the Independent Regulators Group (for telecommunications – established 1997), FESCO (the Forum for European Securities Commissions, 1997) or the CEER (Council of European Energy
Regulators, 2000) that they themselves created and ran, in part to protect
against the Commission (Coen and Thatcher 2008: 54– 60; Eberlein 2010).
In the 2000s, IRAs (and their governments) accepted formalized networks of
IRAs rather than an ERA; examples included the ERGEG, the ERG, and the
CESR. Indeed, sometimes IRAs (usually with the support of their national governments) hindered the establishment of ERAs. One example was financial
regulation, where powerful bodies such as UK’s Financial Services Authority
and British government strongly opposed an ERA for several years and
expressed strong concerns about the ‘centralisation’ of supervision.9
Another good example is offered by telecommunications. In the mid-1990s,
an ERA was proposed by the Industry and Information Technology Commissioner, Martin Bangemann (Agence Europe, 24 May 1996, 25 February 1997;
24
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AGENCY GOVERNANCE IN THE EU
Financial Times, 3 July 1996, 19 December 1997). But governments opposed
the idea; one reason was that they (and often national suppliers) did not wish
their recently created IRAs to be overtaken by an ERA (Agence Europe, 25 February 1997; European Voice, 17 April 1997; Financial Times, 19 December
1997, 8 June 2001). Through their regulatory decisions, IRAs permitted
member states to continue diverse industrial and political strategies concerning
important matters such as tariffs, competing infrastructures or third generation
mobile licensing (Goodman 2006: 132 –56) rather than follow a single harmonized approach. Then in the late 2000s as part of preparations for a new legislative package, the idea of a European authority reappeared. The media
Commissioner Viviane Reding proposed a pan-European authority with
considerable powers, including the authority to ensure regulatory consistency
across member states (Financial Times, 14 November 2007). But the plan
again met with resistance by national regulators (and governments and incumbent operators) opposed to an ERA on the grounds that it would ‘centralise’
regulation (Simpson 2009; article by Ed Richards, Ofcom chief executive,
Financial Times, 31 October 2007, 14 January 2007). The idea of an ERA
was abandoned and instead, an institutionally highly convoluted arrangement
was created in 2009, whereby the new office for telecommunications
(BEREC) is not formally an agency or authority.10
When economic ERAs have been created, IRAs (and their governments) have
sought to limit their powers. Thus for instance, the ERAs’ most significant
autonomous powers concern cross-national questions, such as cross-border
transmission in energy or in financial regulation, disputes between IRAs.11 As
for BEREC, it has few powers, its tasks being ‘to deliver opinions’, be consulted,
assist the Commission and national regulatory authorities (‘on request’) and
‘monitor and report’ (cf. Simpson 2009). Its main potential coercive ‘power’
is that national regulatory authorities and the Commission must ‘take utmost
account’ of its opinions and recommendations.12
Moreover, IRAs have pressed for a direct role in the running of ERAs. Hence
for instance, the energy agency ACER and the new financial regulators are led by
two boards – a traditional management board composed of member state representatives (usually officials from government ministries) and also regulatory
boards composed of representatives from IRAs. Thus the economic ERAs
face two internal veto players. In addition, they remain highly dependent on
IRAs for implementation, due to lack of their own resources. Moloney
(2011: 79) argues that ‘ESMA [the securities ERA] has a “hub and spoke” structure . . . in which national supervisors are key operation spokes’.
National IRAs for social regulation are less frequent than IRAs for economic
regulation and often have lower institutional independence from governments
than the latter (Gilardi 2008: 56 –9). Hence the creation of ERAs in these
domains does not face so many strong established IRAs who may fear loss of
autonomy. Moreover, a major institutional alternative to an ERA, namely establishing a formal network of IRAs, is more difficult as not all member states have
IRAs. Thus for example, few member states had an IRA for chemicals, railways
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AGENCY GOVERNANCE IN THE EU
or air safety when ERAs were created (or even today). As a result, ERAs in these
domains could be set up without integrating or posing a threat to IRAs. Equally,
the lack of IRAs has allowed ERAs in social regulation to have simpler and lessconstraining management structures. Thus, nine of the ten social regulators are
led by one management board that included one representative from each
member state and seven of those nine also included other members from
outside the Commission.13 These arrangements for ERAs for social regulation
stand in sharp contrast to those for ERAs for economic regulation in which
representatives of IRAs have central roles.
Previous delegation to European networks of regulators
In many domains, formal and informal European networks of regulators and
officials have been established. While both types of network have often
played important roles in the creation of ERAs, formalized EU networks have
usually hindered the rapid creation of strong ERAs. They have their own
interests and strategies. Often they have resisted being superseded by the creation of ERAs and instead promoted a gradual evolution involving their own
development.
The role of existing networks can be seen in the development of ERAs for
telecommunications, energy and securities. After the establishment of informal
networks established in the late 1990s, the Commission initiated the establishment of more formalized networks of IRAs set up through EU legislation (Coen
and Thatcher 2008). They were delegated limited powers and functions
– notably to consult, co-ordinate and at most to aid in preparing standards.
They were composed of representatives of IRAs with a representative of the
Commission attending meetings. Although the networks had very few formal
powers, they soon developed their own small secretariat, websites and policies.
They were active participants in (lengthy) debates on new governance arrangements. Thus for instance, in telecommunications, the European Regulators
Group and some of its national members strongly opposed an ERA (Financial
Times, 31 October 2007; Simpson 2009). In financial services, the CESR produced its own plan in 2004 (the ‘Himalaya strategy’), but the highest mountain
to climb was an ERA and CESR focused on the gradual development of the
existing system, including its own role. The Commission followed this path
– the internal market Commissioner Charlie McGreevey declared that he was
‘not proposing major institutional changes . . . as these are neither desirable
nor politically feasible at this stage’ (Financial Times, 21 November 2007)
and instead would build on the existing financial regulators. Only with the
financial crisis was this approach altered.
The networks of regulators affected the development of ERAs. In all these
sectors, the new ERAs are evolutions or conversions of the existing formal
network. Thus for instance, the three new financial regulators are being
created from the existing formal networks – including using the same locations.
Similarly, in energy, ACER takes over from the formalized network ERGEG.
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The somewhat contorted institutional position of BEREC in telecommunication reflects in part the powerful opposition by the European Regulators
Group to an ERA. Moreover, one reason for the limited powers of the new
ERAs is that they are a compromise between the Commission and the regulatory
networks concerned to maintain their own identity and autonomy.
Formal networks of IRAs were much less frequent in social regulation than in
economic regulation, although informal networks existed (see Table 2 and
Levi-Faur, this volume). As a result, establishing an ERA offered opportunities
for the Commission to expand its power and role. Moreover, it and other actors
seeking centralization of regulation could criticize the existing informal networks on grounds such as inadequate powers and capacities to deal with EU
issues and problems, limited organizational resources and weak legitimacy.
Informal networks lacked the status and personnel to oppose the creation of
an ERN as effectively as more formalized networks were able to do, even if
they wished to do so. Indeed, sometimes informal networks of scientists prepared the ground for the creation of an ERA, for instance, in pharmaceuticals
(see Hauray and Urfalino 2009: 441– 6).
Civil aviation safety provides an excellent example of these factors (for details,
see Pierre and Peters 2009; Schout 2008). For many years, co-operation was
undertaken through the Joint Aviation Authority, established in 1990 under
the aegis of the European civil aviation conference rather than the EU. The
JAA was an informal ‘club’ or network of national civil servants, with no secretariat or staff. It operated by deliberation and consensus and lacked a
formal ‘constitution’. From the late 1990s onwards, the Commission criticized
the JAA on several grounds: its reflection of only its members’ interests; its lack
of powers to act quickly and impose Europe-wide standards; its claimed lack of
transparency, formal accountability and explicit rules. Behind this, however,
also lay Commission desires to expand its remit and pursue its policy of liberalizing air transport. Although JAA members expressed unhappiness, the network
was replaced with an ERA for aviation EASA.
CONCLUSION
Although agencies have spread at the EU level, ERAs for economic regulation
have been created in smaller numbers and later than for social regulation.
ERAs enjoy only limited powers. This pattern differs from that of regulatory
agencies at the national level. Many ERAs resemble regulatory networks more
than highly separate bodies with many formal powers (Scott 2005).
Past delegations at the EU and national levels to non-majoritarian institutions
condition agencification and the development of the institutional architecture of
EU regulation. They provide part of the explanation for the pattern of agencification. The Commission has defended its existing role and powers, accepting
ERAs when they aid its strategy to increase its own reach and ensuring that it has
many controls over them. When member states have created IRAs, those IRAs
have defended their autonomy and resisted strong ERAs. Formalized EU
27
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AGENCY GOVERNANCE IN THE EU
networks of IRAs have hindered the creation of powerful ERAs and when
created, ERAs have involved layering and conversion of those networks.
Thus investigating previous delegations helps to understand better the politics
of ERA creation – the actors, their preferences and strategies, their costs and
benefits from delegation and their institutional choices. It is not yet clear
whether ERAs represent incremental movement towards substantial agencification or whether in fact the EU has adopted the agency form, but not the reality
of agency governance.
Biographical note: Mark Thatcher is Professor in Comparative and International Politics at the London School of Economics and Political Science, UK.
ACKNOWLEDGEMENTS
The author greatly thanks Niamh Moloney, Berthold Rittberger and Arndt
Wonka and the participants of the Mannheim workshop and three anonymous
referees for comments on earlier drafts.
NOTES
1 See Everson (1995), Majone (1997, 2000), Chiti (2000), Dehousse (1997, 2008),
Kreher (1997), Geradin et al. (2005), Vos (2000), Keleman (2002, 2005), Trondal
and Jeppesen (2008), Groenleer (2009), Wonka and Rittberger (2010), Christensen
and Nielsen (2010); in addition there are studies of individual agencies.
2 Although the existence of IRAs and networks are linked, the two types of delegation
are both analytically separate – for the former, the Commission is supervisor,
whereas for the latter, it and national bodies are the principals – and also empirically
so since the second form of delegation has generally preceded the third.
3 The classification used here differs slightly from that in Wonka and Rittberger
(2010), after careful consideration of the central functions of agencies, since
ERAs that decide whether supply is permitted on health and safety grounds
rather than on competition ones and lack powers over how firms price and
compete in supply are classed here as social regulators – such as the EMEA, ERA
or CPVO.
4 Discussed below.
5 Regulation 713/2009 establishing an Agency for the Cooperation of Energy
Regulators OJ 2009 211/1, especially articles 6 – 9.
6 Available at http://ec.europa.eu/energy/gas_electricity/acer/acer_en.htm (accessed 1
November 2010); Ofgem Annual Report 2009 – 10.
7 Meroni SpA v ECSC High Authority 9/56 ECR Spec ed 133 and a second case 10/
56 ECR spec ed 157.
8 See for instance, the article by Claus-Dieter Ehlermann when head of DG Competition – Financial Times, 9 July 1993.
9 Financial Times, 16 September 2000; where financial IRAs opposed French plan for
an ERA, Financial Times, 24 September 2009, 16 September 2009; The Economist,
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AGENCY GOVERNANCE IN THE EU
10
11
12
13
1 March 2001; Moloney (2011: 4 – 5); on Britain’s opposition see Lee (2005); FSA
and Treasury (2007) which argued for the development of the existing network
approach and continued flexibility for national regulators.
Regulation 1211/2009 establishing the BEREC and the Office OJ 2009 L337/1; it
is supported by an Office that is given legal personality.
For example, see Articles 8 and 18 of Regulation 1095/2010 establishing a European Supervisory Authority (ESMA) OJ 2010 L331/84.
See Article 3 of the Regulation.
Source: Barbieri and Ongaro (2008).
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Regulatory networks and regulatory
agencification: towards a Single
European Regulatory Space
David Levi-Faur
ABSTRACT The European regulatory space has been expanding rapidly since the
1990s. The double movement towards a single market on the one hand and a Single
European Regulatory Space on the other is evident almost everywhere. A new regulatory architecture is emerging and is expressed in the extension of regulatory
capacities beyond the European Commission via two major forms of institutionalization: agencies and networks. This paper explores the politics and architecture of the
institutionalization and administrative rationalization of the EU regulatory space and
demonstrates (a) how agencies replace networks in a process that might best be called
‘agencification’; (b) how agencies compete with networks and are often able to create,
employ, and control them, creating what might best be called ‘agencified networks’;
and (c) how networking empowers agencies creating a new type of regulatory organization that might best be called a ‘networked agency’.
The European regulatory space has been expanding rapidly since the 1990s, and
the double movement towards a single market on the one hand and a Single
European Regulatory Space (SERS) on the other is evident almost everywhere.
Of course, markets are still split across nations, regions, and even different
neighbourhoods of the same urban space. Similarly, the multi-level, multispatial European regulatory space is still divided and fragmented between different types of institutions, actors, and instruments on the one hand and modes of
co-ordination and decision-making on the other. Different principles of governance are creating interesting experimentalist architectures and unique governance mixes (Börzel and Risse 2010; Coen and Thatcher 2008; Eberlein and
Newman 2008; Lehmkuhl 2008; Sabel and Zeitlin 2012). The SERS is
composed of standing committees, committees of wise men, working groups,
programmes, task forces, ad hoc high-level expert groups, forums, agencies, networks, and Directorates-General (DGs) – all operating in a multi-level and
multi-spatial architecture. Its major administrative expression is still the
European Commission and its departments (or DGs). Yet beyond the Commission, which can be thought of as the traditional and most capable actor in the
EU regulatory regime, two important institutions have recently appeared:
32
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AGENCY GOVERNANCE IN THE EU
agencies and networks (Coen and Thatcher 2008; Dehousse 1997; Eberlein and
Newman 2008; Eberlein and Newman 2008; Eberlein and Grande 2005;
Kelemen and Tarrant, 2011; Lehmkuhl 2008; Majone 1994; 1997; Thatcher
and Coen 2008). Both institutions represent emerging modes of administrative
governance, and their rise reflects a process of architectural design that might be
called ‘governancing’, echoing the transformation from ‘government’ to ‘governance’ (Rhodes 2012; Peters 2012). While agencies commonly represent
the fragmentation of regulatory authority and the delegation of responsibility
(even if limited) from the ‘political’ Commission to ‘professional’ and independent institutions, networks represent an effort to harmonize the fragmented
institutional landscape. The expansion and diversification of the EU regulatory
space can be explored in various quantitative ways: via the horizontal and vertical administrative specialization and division of labour; via the growing
numbers of regulations, directives, and other legal outputs of the EU; via the
expansion in the number of EU regulatory regimes; via the growth of agencies;
and via the emergence of regulatory networks. Here it is done via a survey of
agencies and networks of 36 regulatory regimes. Regulatory regimes encompass
the norms, the mechanisms of decision-making, the various institutions, and the
networks of actors that are involved in regulation (Levi-Faur 2011).
While EU-level agencification was a marginal development before 1990, and
while it started to grow in importance in the 1990s, it boomed after 2000. The
first regulatory agency was established in 1975, but the second only in the
1990s. By the end of 1999, the number of agencies had grown to 8; by 2007
there were 24; and by the end of 2010 there were 28 regulatory agencies covering 29 of the 36 regimes surveyed here. No fewer than 6857 administrative posts
were assigned to these bodies in 2010, representing a significant and growing
share of the EU administrative space (see also Dehousse 2008; Wonka and
Rittberger 2010). The cumulative budget of EU agencies for 2011 is expected
to amount to about 1.5 billion euros (with the ECB’s share being a third of this
amount).
The expansion and institutionalization of regulatory networks is likewise an
interesting feature of the SERS. Regulatory networks of public officials
became a popular form of EU governance in the 1990s. The origin of regulatory
networks in the regimes surveyed here goes back at least to the 1930s and, of
course, the postwar period. Still, the first EEC/EU regulatory network that
was identified in my survey is that of heads of EEC central banks (‘Committee
of Governors’), which was established in 1964.1 The second is the TREVI
network, which was established in 1975 as a secret intergovernmental policing
forum in the context of domestic terrorism. These two networks are now both
‘dead’, and two agencies – the European Central Bank (ECB) and EUROPOL
– now dominate the two regimes.
Agencies and networks may be understood as administrative innovations that
complement or compete with each other and with older and more established
modes of regulatory governance, such as the Commission. If the Commission
represents a mode of regulatory governance that is hierarchical and political,
33
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AGENCY GOVERNANCE IN THE EU
then agencies represent a mode of regulatory governance that is based on a professional hierarchy of authoritative experts. When compared with the Commission and agencies, networks appear to represent less hierarchical and more open
and collegial modes of governance. If agencies represent the fragmentation of
regulatory authority, then networks represent an effort to harmonize the fragmented institutional landscape. Taken together, however, they open a
window on the politics of the design of EU regulatory institutions (Pierre
and Peters 2009). Networks and agencies coexist in most of the regimes surveyed here, but not all. In telecoms, for example, the network is the preferred
mode, and the Commission, mainly because of opposition from regulators in
the EU member states, tried but failed to create an EU agency (Simpson
2009; Groenleer and Kars 2008). Instead, an independent network that
existed in the telecoms sphere was brought under the formal influence of the
Commission. In aviation safety, to offer another example, the Commission
managed to establish an agency in a move that led to the dismantling of a
well-established regulatory network (Pierre and Peters 2009). Are networks
only a temporary and provisional step on the long road to higher and more
developed forms of institutionalization, or are they perhaps an independent,
stable, and new regulatory institution? The survey suggests a trend towards
agencification as the major instrument of choice in the EU governance
system, and the deliberate institutionalization of dependent networks by the
agencies and the Commission. Yet networks are still important for understanding the SERS, and network relations play an important role in legitimization
and co-ordination. The boundaries between networks and agencies are becoming more blurred. Two interesting hybrid organizations, a ‘networked agency’
and an ‘agencified network’, were identified, and the relations between the networks and the agencies are understood as important features of the European
governance mix (Börzel 2010; Brown and Scott 2010; Christensen and
Nielsen 2010).
The discussion proceeds as follows. The first section presents the literature
and the main findings so far on the dynamics of the European Regulatory
Space, focusing on the institutionalization, de-institutionalization, and
re-institutionalization of agencies and networks. The second section present
the methodology, while the third presents the findings from a mapping exercise
of 36 regulatory regimes and discusses the relations between agencies and
networks within them. The fourth section concludes.
1. MAPPING THE SERS
Agencies, networks, and new instruments of regulatory design are some of the
most interesting aspects of the changes in regulatory governance and the
reform of bureaucracy since the 1980s (Levi-Faur and Gilad 2004). They
imply new ways of policy-making, represent new venues and challenges for
accountability, transparency, and participation, and suggest changes in the
34
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AGENCY GOVERNANCE IN THE EU
power relations within the state administration, between types of bureaucrat,
between politicians and bureaucrats, and between citizens and administrators.
Neither agencification nor networks are new features of bureaucratic organization; but the extent to which they have grown since the 1980s in some
countries and political arenas may represent a radical change in the way the
modern state is constructed and exercises its authority (Slaughter 2004). In
short, agencification on the one hand and ‘networkation’ on the other may
serve as indicators of changes in the organization of the state, of the
economy, and of civil society.
An agency is defined as an administrative organization with a distinct, formal
identity, an internal hierarchy, functional capacities, and, most important, at
least one principal (cf. Christensen and Lægreid 2006; Pollitt and Talbot
2004). My interest here is in special types of agencies: those that are separate
from formal political organizations and are given specific tasks that are
considered to be less political than the tasks of the parent organization or the
principal. I am also mainly interested in regulatory agencies rather than agencies
that are also or mainly involved with planning, administration of services, distribution, and redistribution (Levi-Faur 2011). It is important to note that in
the EU system of governance, despite the rise of agencies and networks, the
Commission is generally the major regulatory institution. The four functional
tasks of regulation – information gathering, rule setting, monitoring, and enforcement – are strictly divided between different actors and institutions; both the
regulatory fragmentation (Flinders 2004) and the formalization of roles and
responsibilities on the other hand are much greater than in other regulatory
systems, including the system of check and balances of the US constitution.
Most EU agencies do not have rule-making responsibilities; and although
their role and capacities are probably expanding, the Commission still guards
its rule-setting prerogatives.
A network is a set of relatively stable relationships of a non-hierarchical and
interdependent nature which link a variety of actors (cf. Ahrne and Brunsson
2011: 6; Börzel 1998: 254; Podolny and Page 1998: 58). Unlike agencies, networks often do not have principals or administrative and independent financial
capacities. Their decision rules are flexible and informal, and membership of
them is voluntary. The literature on policy networks distinguishes between
intergovernmental and supranational networks, between public and private networks, between informal and formal networks, and between advocacy, regulatory, and strategic networks. While the literature often distinguishes networks
from markets and hierarchies (Ahrne and Brunsson 2011: 6; Klijn 2008;
Rhodes 1990; Sørensen and Torfing 2007) and tends to see networks as informal organizations, in the EU intergovernmental networks are increasingly being
institutionalized and formalized (this seems to be true also in other regions; see
for example Berg and Horrall 2008). There is, however, scant literature on the
question of the independence of networks and on the institutional platforms
that encourage, inhibit, accommodate, and challenge their independence and
relations with agencies.
35
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AGENCY GOVERNANCE IN THE EU
In our golden age of regulation, even networks are defined by procedures,
rules, and formalities. Informal organizations of power are conceived of as by
definition non-transparent and unaccountable. The rise of regulation can be
understood as a ‘war on the informal’ and an effort to formalize all social and
political institutions. Yet not all social and political institutions are easily and
uniformly susceptible to formalization. Recognizing this leads me to conceptualize agencies and networks as two distinct types of organization. They differ in
the extent and scope of the formalization of their decision rules; the extent of
their administrative capacities; the extent of their internal hierarchies; and the
existence of external principals. Each has its own advantage. When voluntarism
and mutual interdependence are prioritized, networks are the preferred institutional form. Another way to think about and conceptualize their advantages
is to see them as agenda setters, consensus builders, co-ordination mechanisms,
exchanges of information and knowledge, and norm setters (Berg and Horrall
2008; Martinez-Diaz and Woods 2009). Yet these functions can be performed
also by agencies. The most important difference between agencies and network
is not so much in function as in the degree to which they can develop administrative and regulatory capacities, and can be subject to accountability and
transparency requirements. On these three grounds – capacity, accountability,
and transparency – agencies are the ‘natural’ choice. Yet agencies require
resources (financial) and degree of political commitment (delegation) that are
not in the interests of all the actors involved. When resources are limited and
political commitment is weak – network might be the preferred form of
choice. Yet, as will be shown below, in practice the institutional distance
between network and agency is not that great, at least when networking
becomes a strategic choice of weak agencies.
Three processes of institutionalization and de-institutionalization are important to understanding the intuitional architecture of the SERS: governancing,
agencification, and networkation. ‘Governancing’ is the act of designing governance systems. If governing is the act of government and the design of a hierarchy
of governmental institutions, then governancing is about decentralization of
power and the creation of decentralized, informal, and experimental systems
of governance. Governancing thus refers to governance-in-action (Barkay
2009). ‘Agencification’ is one strategy of governancing. It is the process of formalizing roles and missions in organizations with spatial boundaries and formal
identities, either by the devolution of functions from the core organization or
the creation of new organizations for performing new functions. The literature
on agencification has focused so far on the agencification of ministerial units
into autonomous agencies (Christensen and Lægreid 2006; Pollitt and Talbot
2004) but, as we demonstrate below, the EU Commission has managed to agencify networks and to turn them into mechanisms of European governance and
integration, so creating a hybrid organization, a potential innovation that might
usefully be adopted at the global level more generally. ‘Networkation’ – or the
creation and formalization of networks – is also a strategy of governancing
because networks are associated with governance rather than governing. It is
36
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AGENCY GOVERNANCE IN THE EU
the process of formalizing roles and missions in loose organizations in a way that
bridges the gaps between insulated hierarchies to form a network of stable and
interdependent relations. To recognize networkation as a governancing strategy
is to recognize the importance of the informal aspects of power and the ability to
shape it, accumulate it, and apply it outside the boundaries of formal organizations (Ansell 2000; Slaughter 2004). As we will demonstrate, agencies are more
resilient than networks, which tend either to disappear or to become more
dependent on agencies and other hierarchies.
2. METHODOLOGY AND CASE SELECTION
The empirical analysis starts with the mapping of the regulatory terrain. In order
to structure the exercise, the starting point is not agencies or networks but regulatory regimes. Case selection is based first on a data set from Jordana et al. (2011)
which identifies 15 regulatory regimes for data collection: competition, electricity,
environment, financial services, food safety, gas, health services, insurance, pensions, pharmaceuticals, post, security and exchange, telecommunications, water,
and work safety. Twenty-one more regimes that were surveyed for this paper
on the basis of the existing literature on EU public policy bring the total
number to 36: administrative integrity, aviation safety, broadcasting, consumer
protection, central banking, drug addiction, chemicals, fisheries, fraud, gender,
human rights, intellectual property rights, justice, network communications, policing, privacy, product safety, shipping safety, railways safety, trademarks, and
working conditions. This selection is based on the author’s reading of the literature and observation of policy discussion at the EU level and in national policymaking institutions. While wider than in other exercises, the scope of the regimes
covered is not clear because we simply do not have an exhaustive list of regimes
from which a random sample can be drawn. The selection is thus biased
towards the current issues and policies covered in the public policy literature, contested or otherwise visible on the public agenda, and ones that are reflected the EU
administrative structure.
The regimes covered often have blurred boundaries. Thus, the railway safety
regime also deals with the interoperability of railways, which has direct and
immediate implications for economic issues. The aviation and maritime
safety regimes have more subtle implications for competition among airlines
and producers of aviation equipment. Yet the existence of both regimes at the
EU level should not distract us from the fact that economic regulation –
mainly determining market conditions and rules of competition – is limited,
in these spheres as in many others, to the authority of competition law, and
does not fall within the remit of sector-specific agencies. These three examples
– all drawn from the transport industry – suggest that there might be a bias in
the mapping exercise and that economic regulation regimes are underrepresented here. In other words, the scope of agencification and networking
is likely to be somewhat less than the data collected may suggest. This may
reflect selection bias on the dependent variable (meaning positive power of
37
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AGENCY GOVERNANCE IN THE EU
the EU), the ability of the Commission’s departments to retain some issues
outside the scope of agencies, and the lack of regulatory power over some
issues at the EU level.
Deciding what is an agency was not always simple. Not all the agencies are
called ‘agency’. Four are called ‘authority’, another four ‘office’ and two
‘centre’. In other cases we have a ‘unit’, a ‘supervisor’, an ‘institute’, a ‘foundation’, an ‘ombudsman’, and another is simply a ‘central bank’. Only 11
out of the 28 regulatory agencies identified (40 per cent) are called straightforwardly ‘agency’. The situation is similar in the organizations that were identified
and classified as networks: their titles include ‘forum’, ‘working party’, ‘conference’, ‘system’, ‘advisory committee’, ‘joint authority’, ‘group’, ‘council’, and
‘platform’. Only 19 out of the 51 networks identified (38 per cent) are straightforwardly called ‘network’. Nine are titled ‘Committees’, seven ‘Groups’ and
four ‘Forums’.
The extent to which an agency or a network is also regulatory is likewise not
easy to determine. Agencies’ mission statements and legal mandates are determined by negotiations and political compromises. Governancing as a political
activity does not necessarily prioritize analytical clarity, and the EU governance
system distributes functions and responsibilities more widely than any other
political system. Neither agencies nor networks necessarily stick to their
mission statements. I therefore adopted a different approach here. If a regime
was regulatory in nature (the EU system of governance is indeed predominantly
regulatory), and if its major function was not the direct distribution or provision
of goods and services, then for the purpose of this study, its agencies and networks were classified as regulatory. Agencies that collected information for
the purpose of fact finding, rule setting, monitoring, or enforcement were
defined as regulatory. Agencies whose major function was administration,
research, or service provision were not included (thus, I excluded agencies
such as the European Training Foundation and the Education, Audiovisual
and Culture Executive Agency).
Networks sometimes have principals, and this is all the more evident amid
processes of institutionalization when formal structures make the networks
less informal. Who initiates, finances, and controls transnational networks is
an issue that requires some attention. We do not have elaborate measures of
formal and informal independence of networks, such as we have for agencies
(Gilardi and Maggetti 2011). What we do know, however, is who is financing
the agency and where its secretariat is located. On the basis of these two indicators, networks were classified as independent or dependent, with respect to
either the relevant agency in the regime or the Commission.
A distinction is commonly made between economic regulations and social
regulations. Economic regulations include those that aim to shape the organization and the governance of the market. They can be constitutive (about the creation of markets) or corrective, that is, directed towards market failures such as
monopolies and cartels. Social regulations include those that aim to shape the
organization and the governance of the social aspects of human life. Social
38
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AGENCY GOVERNANCE IN THE EU
regulation agencies have more diverse functions and institutional designs than
economic regulation agencies. They come in multiple forms such as safety regulation, health regulation, integrity regulation, moral regulation, rights, and
environmental regulation. Again, not all agencies fall into clear-cut categories.
Politicians are not there to please researchers or to draw sharp analytical lines
but to produce compromises. They rarely read regulation manuals. The maritime safety agency, for example, operates systems promoting safety and preventing pollution and thus plays managerial as well as regulatory roles. Another
relevant distinction is that between sector-specific regulation (for example, the
regulatory regimes for telecoms or workplace health) and multi-sector regulation, where an agency has responsibilities for more than one sector (for
example, environmental and consumer protection, or labour conditions and
antitrust regimes). For our purposes it is also important to distinguish
between EU regulation of second parties (such as European businesses or
member states) and EU regulation of its own conduct (regulation inside governance, such as the European Anti-Fraud Office).
3. FINDINGS
Table 1 provides a comprehensive overview of the findings. Twenty-eight of the
50 agencies that were identified in the survey play a regulatory role.2 A regulatory agency was identified in 29 of the 36 regulatory regimes that were explored
(28 agencies in total as one agency covers both electricity and gas). In seven
regimes I did not identify any agencies – namely, in broadcasting, competition,
telecoms, water, post, product safety, and consumer protection. Agencies were
identified in 8 of the 11 economic regimes (73 per cent) and in 21 of the 25
other regimes (84 per cent). EU regulatory agencies tend to retain a stable
organizational identity. None of the agencies was dismantled, and the two
changes in organizational identity that have occurred so far were in the
context of role expansion. Fifteen of the agencies that were identified in the
survey were established between 2001 and 2010, another 11 between 1990
and 1999, and 1 in 1975. The agencies vary considerably in size of staff and
budget. In the largest group of 16 agencies, the annual agency budget ranges
from 5 million to 25 million euros and the number of staff from 30 to 175.
In a second group of 7 agencies, the annual agency budget ranges from 36
million to 70 million euros and the staff from 170 to 440. Finally, in the smallest group of four agencies – European Medicines Agency (EMEA), Europol,
Office for Harmonisation in the Internal Market (Trade Marks and Designs)
(OHIM), and the ECB – the annual agency budget ranges from of 100
million to 400 million euros, and the staff from 470 to 1500. While the total
budget of the EU regulatory agencies is about 1.5 billion Euros, it is minuscule
compared with the regulatory budget of the US federal agencies (with the
notable exception of the ECB, which has a similar budget and staff to the
Federal Reserve). In terms of both their ability to set rules and their financial
and human resources, US federal agencies such as the Securities and Exchange
39
Agency name
Est.
year
Network
security
Migration and
borders
5
European Network
and Information
Security Agency
(ENISA)
Agency for
Management of
Operational Cooperation at the
External Borders
(FRONTEX)
2004
2004
The European Union’s 2002
Judicial Cooperation Unit
(EUROJUST)
Drug addiction European Monitoring 1993
Centre for Drugs
and Drug Addiction
(EMCDDA)
Policing
European Police
1995
Office (EUROPOL)
Judicial
EU regime
4
3
2
1
No.
70
8
64
14
23.3
198
102
605
107
175
Budget
(Em) Staff
Regulatory agency
Table 1 European regulatory agencies and regulatory networks
1998
Est/death year
1975–1992
2010
Frontex Risk Analysis Network (FRAN) 2006
European Migration Network (EMN)
2003
TREVI
Informal meeting of the Chiefs of
Police of the European Union
European Crime Prevention Network 2001
The European Information Network on 1993, 2003,
2006
Drugs and Drug Addiction (Reitox)a
European Judicial Network
Network name
Regulatory network
Agency dependent
Commission dependent
Independent
Independent
Independent
Agency dependent
Council dependent
Independence/dependence of
network
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Chemical
safety
9 Human health
risks
(medicines)
European Agency for 1994
10 Health and
safety at
Safety and Health
at Work (EU-OSHA)
work
11 Disease
European Centre for 2004
prevention
Disease Prevention
and Control (ECDC)
12 Food safety
European Food Safety 2002
regime
Authority (EFSA)
13 Product safety None
8
Fisheries
7
1990
Community Fisheries 2005
Control Agency
(CFCA)
European Chemicals 2006
Agency (ECHA)
EMEA
1993
Environmental European
risks
Environment
Agency (EEA)
6
358
565
64
64
389
173
15
41
66
49
169
21
8.5
36
Independent
Independent
DG environment dependent
DG environment dependent
1993
2007
2005
1995
Commission dependent
Commission dependent
Commission dependent
1997
1998–2008
2004–2008
2008
The General Product Safety Directive
(GPSD) Committee
The Consumer Safety Working Party
(CSWP)
Product Safety Network (PSN)
Consumer Safety Network (CSN)
(Continues)
Commission dependent
1999–200x
The European Food Safety Network
Independent
Independent
Independent
Independent
Agency dependent
NA
1992
1996
Agency dependent
1994
The European Network for Workplace 1996
Health Promotion
The European Heads of Medicines
Agency Regulatory Network
European Environment Information and
Observation Network (EIONET)
Network of the Heads of EPA
EU Network for the Implementation
and Enforcement of Environmental
Law (IMPEL)
EEAC
European Network of Heads of Nature
Conservation Agencies (ENCA)
GreenForce (Conservation
practitioners)
Green Spider Network (environmental
information officers)
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21 Railways
safety
European Railway
Agency (ERA)
European Institute for
Gender Equality
European
Fundamental
Rights Agency
(FRA – previously
EUMC)
18 Privacy
European Data
Protection
Supervisor
19 Maritime
European Maritime
safety
Safety Agency
(EMSA)
20 Aviation safety European Aviation
Safety Agency
(EASA)
16 Gender
equality
17 Human rights
None
15 Consumer
protection
5.4
47
102
2001
2002
2002
18
15
2007
2004
7
116
467
181
35
31
34
Budget
(Em) Staff
2006
NR
Est.
year
Regulatory agency
Agency name
None
EU regime
14 Broadcasting
No.
Table 1 Continued
JAA – Transition (JAA-T)
The Working Party on Rail Transport
JAAs
European Civil Aviation Conference
Joint Airworthiness Authorities
European Conference of Privacy
Commissioners
Data Protection Working Party
Independent
UNECE’S network
Independent
Independent
Independent
Agency dependent
1995
1955
1970–1987/
90
1987/90–
2007
2007–2010
1951
Agency dependent
2004
Commission dependent
Agency dependent
Commission dependent
2005
2009
Commission dependent
Independent
Independence/dependence of
network
1992–2005
2001–2005
1995
Est/death year
EU Network of Independent Experts in 2002–2007
Fundamental Rights (CFR-CDF)
European Platform of Regulatory
Authorities
Euroguichets
Network for the Extra-judicial
Settlement of Consumer Disputes
(EEJ-Net)
The European Consumer Centers
Network (ECC-Net)
Expert Forum
Network name
Regulatory network
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30 Banking
European Banking
Authority (EBA)
23 Citizen
responsiveness
63 The European 1996
Network of
Ombudsmen
European
Improvement of
Foundation
Living and Working
for the
Conditions
EUROFOUND)
25 Trade marks
Office for
Harmonisation in
the Internal Market
(Trade Marks and
Designs) (OHIM)
26 Property rights CPVO
(new plants)
None
27 Competition
regime
(Antitrust)
28 Monetary
European Monetary
Co-operation Fund
European Monetary
Institute
European System of
401
Central Banks
29 Securities
European Securities
and Markets
Authority (ESMA)
22 Administrative European Anti-Fraud
fraud
Office (OLAF)
12.6
1994
45
643
97
438
2010
12.5
40
Group of Chairmen
High-Level Group
Forum of European Securities
Commission (FESCO)
CESR
CEBS
dependent
1994
2010
1998
Committee of Governors
European Competition Network
OLAF Anti-Fraud Communicators
Network
the Advisory Committee for the Coordination of Fraud Prevention
(COCOLAF)
European Ombudsman
dependent
1994–
Agency
1563
14.2
43
319
1993
1973
20
Agency
57
1975
1999
Commission dependent
Commission dependent
2001– 2010
2003– 2010
(Continues )
Independent
Commission dependent
Commission dependent
1998
Independent
Commission dependent
1990s –1997
1990s –1997
1997– 2001
ECB
1964– 1994
2002
9
Welfare at Work Regime
Agency dependent
1994
1992 (1995)
24
Agency dependent
2001
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EU regime
Est.
year
5.1
10.5
40
40
Budget
(Em) Staff
Florence Forum for Electricity
The Council of European Energy
Regulators (CEER)
European Regulators Groups for
Electricity and Gas
Madrid Forum for Gas
The Council of European Energy
Regulators (CEER)
European Regulators Groups for
Electricity and Gas
Independent Regulators Group
European Regulatory Group
BEREC
Informal Meetings of the Water and
Marine Directors
ERGP
CEIOPS
Network name
2010
Commission dependent
Independent
Independent
Commission dependent
Commission dependent
Commission dependent
2003–2010
1997
2002–2010
2009
2000
Commission dependent
Independent
Independent
2003
1999
2000
Commission dependent
Independent
Commission dependent
Independence/dependence of
network
1998
2000
2003–2010
Est/death year
Regulatory network
NA: Information not available; dates of reorganization; Data for December 2010.
Notes: Where available and relevant the table shows the existence of previous networks. The ‘historical’ survey is not exclusive.
Sources: Groenleer (2009), Christensen and Nielsen (2010), and Wonka and Rittberger (2010) agencies’ annual reports, email
questionnaires for agencies and networks; EU budget books. Budget data for 2008 except for agencies that were established in 2010.
In these cases the data refer to the proposed budget for 2011.
a
None (to some extent NR
the EEA)
None
NR
35 Water
36 Postal
None
NR
European Insurance 2010
and Occupational
Pensions Authority
(EIOPA)
Agency for the Co2009
operation of Energy
Regulators (ACER)
Agency name
Regulatory agency
34 Telecoms
33 Gas
32 Electricity
31 Social
insurance
No.
Table 1 Continued
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AGENCY GOVERNANCE IN THE EU
Commission, the Environmental Protection Agencies, the Federal Aviation
Agency, and the Food and Drug Administration are bigger and more resourced
than EU agencies.
The survey identified a total of 57 regulatory networks in the 36 regimes. As
can be seen from Table 1, some of these networks were dismantled and replaced
by new networks but others were replaced by agencies. In 22 (61 per cent) out of
the 36 regulatory regimes there was at least one active network by the end of
2010. These figures most probably underestimate the number of informal
and ad hoc networks because of their short life span and the fact that they
tend to escape public and academic attention. In some cases, such in the
environmental regime, more than one network was identified. The extent of
governancing via networking is greater than I expected. It varies across
regimes, with the environmental regime as one of the more networked (see
more below). Some of the networks were established outside the scope of the
EU but were attracted and reoriented gradually into the EU policy arena.
This is the case with aviation safety but also policing, post, telecoms and broadcasting. The only regime in our survey that included a network outside the scope
of the EU and with no EU-oriented counterpart is that of rail transport, where
an early form of institutionalization in the form of The Working Party on Rail
Transport (established in 1951) existed as a network in the United Nations
Economic Commission for Europe (UNECE).
While the scholarly and public image of a network is that of an informal
voluntary forum of exchange and advice, the findings here reveal that agencies
and the European Commission are making considerable investments in institutionalizing them as their agents. Only in 9 regimes of the 36 surveyed (25 per
cent) it was possible to identify independent networks, that is, networks that
controlled their own agendas and operated with their own members’ financial
resources. In four of the nine regimes independent and dependent networks
coexisted (drugs, environment, electricity, gas, and telecoms). One example of
a network that was not independent is the European Regulators Group for
Postal Services (ERGP), which was recently set up by the Commission. Its existence, procedures, and institutional design were established by Commission
Decision (2010/C 217/07) on the basis of directives on the internal market
in general and postal services in particular. The decision determines the name
of the network, its membership, its operation, and its meeting expenses. All
these four tasks make the Commission the de facto principal of the network.
The network’s budget will be set by the Commission, and the network is
obliged to submit an annual report of its activities to the Commission and
the Commission or the Agency is represented in meetings. A similar legal
style of networkation is evident in all financial regimes, telecoms, energy, competition, justice, and crime.
Table 2 presents the data on the coexistence of networks and agencies in the
36 regimes surveyed. It shows that networks and agencies exist in 15 of the 36
regimes but, as reported earlier, in most of these cases the networks are not
independent from the agencies or the Commission. In a similar number of
45
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AGENCY GOVERNANCE IN THE EU
Table 2 Networks and/or agencies in 36 regimes (data for December 2010)
Agency
Networks
Yes
No
Yes
No
15 of 36 regimes (42%)
14 of 36 regimes (39%)
7 of 36 regimes (19%)
0 of 36 regimes (0%)
cases (14 of the 36) only an agency exists. In only about one-fifth of the regimes
did I find a network but not an agency (7 agencies or 19 per cent of the regimes).
Regulatory regimes do not necessarily have administrative institutions for monitoring or enforcement, yet in this paper survey I found no regime with neither
an agency nor a network.3 While in most of the cases, networks and agencies
coexist, the relations are not simple. I could not find a case where the creation
of a network led to the dissolution of an agency, but I found cases where agencification implied the dissolution of a network. For example, the Joint Aviation
Authority (JAA) will be almost completely dissolved as soon as the aviation
safety agency is finally able to take over its functions. It was the European Commission that was the major force that pushed in this direction against the resistance of the established and highly effective network (Pierre and Peters 2009).
Power and prestige mattered in the European Commission’s decision to
extend and tighten its control over aviation governance. A similar process of dissolution of a network is expected with the recent establishment of the three new
agencies in banking, securities, and insurance. Another example of dissolution is
the EU network of independent experts on fundamental rights. In telecoms,
however, network organization – in a much enhanced form – was the
compromise arrangement after the failure of the Commission to establish a
regulatory agency. These are clearly cases where institutional competition and
a preference for formalization led to the rise of one institution on the expense
of another.
At the same time, we observe that until recently agencification was strongly
prevalent in safety and social regulation, while networks were the instrument
of choice in economic regulation. The agencification of networks in electricity
and gas in 2009 and in securities, insurance, and banking in 2010 suggests a
trend towards agencification of the SERS. It is likely that in the coming
decade agencies will participate in the regulatory space also in the seven economic regulation spheres of telecoms, post, water, product safety, consumer protection, broadcasting, and competition. Still, it is important to note that
currently the development of the EU as an economic regulator is lagging
behind that of the EU as a social regulator. Not only do these seven regimes
lack agencies but so too do spheres such as transport (aviation, maritime, and
rail) and pharmaceuticals, where EU-level regulation mainly focuses on safety
and risk issues. In other words, agencification still tends to focus on social
46
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AGENCY GOVERNANCE IN THE EU
and risk issues – with the notable exceptions of The ECB, the Community
Plant Variety Office (CPVO), and the OHIM.
Coexistence and intensive co-operation are evident in some other cases as
well. For example, networks exist around the office of European Ombudsman
and energy and workplace health agencies. Interesting enough are not only the
competition and co-operation between agencies and networks but also the creation of hybrid institutions that reflect and express regulatory experimentalism
(Sabel and Zeitlin 2010). Two hybrid organizations, a ‘networked agency’ and
an ‘agencified network’, were identified, and demonstrate the accountability and
efficacy challenges facing EU governance. The European Environmental Agency
(EEA) demonstrates the extent to which agencies can collaborate with networks
and indeed acquire network characteristics. The EEA collaborates with at least
five different networks. Some of the five enjoy a more formal status than the
others. The Environmental Protection Agency’s (EPA) network is an informal
grouping bringing together the directors of environment protection agencies
and similar bodies across Europe. The network exchanges views and experiences
on issues of common interest to organizations involved in the practical day-today implementation of environmental policy. The Eionet, established in 1994, is
a partnership network of the EEA and its member and cooperating countries.
The European Union Network for the Implementation and Enforcement of
Environmental Law (IMPEL) is an international non-profit association of the
environmental authorities. IMPEL was set up in 1992 as an informal
network of European regulators and authorities concerned with the implementation and enforcement of environmental law (Martens 2006). The European
Network of Heads of Nature Conservation Agencies (ENCA-Network) was
established to strengthen nature conservation in the European Union by enhancing co-operation between its members. Finally, European Environment and
Sustainable Development Advisory Councils (EEAC) aims to enrich the
quality of policy advice at national and regional levels by exchanging information with colleagues from other countries and ‘to exert, where appropriate,
an influence on policy developments at EU level by acting cooperatively’.
Two more intergovernmental environmental networks exist in connection
with DG Environment rather than the environmental agency: GreenForce
(conservation practitioners) and the Green Spider Network (environmental
information officers).
The postal services regime is an example of the institutionalization of networks that is so broad that a new hybrid institution, which we might call an
‘agencified network’, should be recognized. The degree of institutionalization
– formalization of decision rules, administrative capacities, formal hierarchy,
and the existence of an external principal of the network – suggests that we
need to rethink the relations between hierarchy and networks and to recognize
the extent to which networks can be institutionalized as agents in global and
European governance. While only one ‘networked agency’ (the EEA) was identified in the survey, it is possible to identify at least five similar cases, such as the
Committee of European Securities Regulators (CESR), the Committee of
47
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AGENCY GOVERNANCE IN THE EU
European Banking Supervisors (CEBS), the Committee of European Insurance
and Occupational Pensions supervisors (CEIOPS), the Body of European
Regulators in Electronic Communications (BEREC), and the Agency for the
Co-operation of Energy Regulators (ACER). In each of these cases, the new
institution seems to be a temporary solution in the Commission’s and supranationalists’ quest for agencification. In the three cases of finance (CESR, CEBS,
and CEIOPS) an agency was already established, replacing the ‘agencified
network’ form. In one case (ACER) the agencification was so advanced that it
is codified as an agency in Table 1. In other words, in some cases the difference
between agency and network is one of degree; what is important is to identify
trends and processes.
4. CONCLUSIONS
Bringing together agencies and networks within one framework of analysis
demonstrates (a) how agencies replace networks, displaying an evolutionary trajectory of development (Thatcher and Coen 2008) in a process that might best
be called the ‘agencification of networks’; (b) how agencies compete with networks and are often able to create, employ, and control them, creating what
might best be called ‘agencified networks’; and (c) how networking empowers
agencies (Martens 2006; 2010; Zitto 2009), creating a new type of regulatory
organization that might best be called a ‘networked agency’. The extent of agencification across the regimes examined here is surprising, even though regulatory
institutionalization is lagging in some important regulatory spheres despite the
likely selection bias in the choice of the 36 regimes (see methodological section).
Still, networks, both in their ‘captured’ form and in their ‘independent’ form,
seem to allow the agencies and the Commission to deal flexibly with the
more restrictive institutional constraints on their formal spheres of authority.
The findings and analysis also allow us some insights into the EU system of
regulatory governance. The patchwork of regulatory institutions, instruments,
committees, observatories, directives, rules, and networks at various levels and
arenas that together make up the SERS is diversifying and expanding. The
scale, depth, and scope of agencification create the world’s largest and probably
most complex transnational regulatory system. The European regulatory system
is constantly changing and reinventing itself in order to keep pace with Europeanization, liberalization, and market integration on the one hand and new and
old risks and occasional economic, social, and environmental crises on the
other. As demonstrated in this paper, and in line with the work of scholars of
both agencies and networks, there are increasing pressures for agencification
and expansion of regulatory power in the SERS. Agencification is not, of
course, a guarantee of successful Europeanization, especially given the small
size of the EU regulatory budget when compared with that of the federal government in the USA. Moreover, it is neither the sole nor the most effective
mechanism of governance. Yet it is fast becoming a dominant form: agencies
are extending their reach via networks, and networks are becoming similar to
48
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AGENCY GOVERNANCE IN THE EU
agencies. The forces that advance their institutionalization, shape a choice
between agency and network, and are responsible for convergence on ‘agencified
network’ or ‘networked agency’ are clearly beyond the scope of this paper; but
they clearly raise some of the most interesting questions facing scholars of
regulatory governance.
Biographical note: David Levi-Faur is an Associate Professor at The Hebrew
University, Jerusalem. He is currently a Senior Fellow at the Kolleg-Forschergruppe ‘TheTransformative Power of Europe’, Free University of Berlin,
Germany.
ACKNOWLEDGEMENTS
The author acknowledge the useful advice of Martijn Groenleer, Husein
Kassim, Alexander Kobusch, Jon Pierre, Adrianne Schout, Seamus Simpson,
and Manuel Szapiro, who very kindly responded to his queries during the
research and writing. Special thanks are due to Sandra Eckert, Jacint Jordana,
Jon Pierre Berthold Rittberger, Arndt Wonka, and Torban Heinze and to the
JEPP referees who commented on previous drafts of this paper. Earlier versions
of this paper were presented in the Workshop on ‘Agency Governance in the EU
and its Consequences’ (RECON/MZES), Mannheim Centre for European
Social Research (MZES), University of Mannheim, 16– 17 September 2010
and at the weekly seminar of Kolleg-Forschergruppe (KFG) ‘The Transformative Power of Europe’, Freie Universität, Berlin. Research for this paper was
supported by grant 986/2009 by the Israeli Science Foundation.
NOTES
1 The oldest network in the survey is the railways network (est. 1951), which is organized from the UN Economic Commission for Europe and therefore outside the
EU’s jurisdiction.
2 Agencification also encompasses service provision, distributive functions, and
research management (Groenleer 2009; Egberg and Trondal 2009). See complete
list on the author’s website.
3 Although the water network is loose and the railways transport network exists outside
the EU formal competences.
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The policy-making structure of
European regulatory networks and the
domestic adoption of standards
Martino Maggetti and Fabrizio Gilardi
ABSTRACT European regulatory networks (ERNs) constitute the main governance instrument for the informal co-ordination of public regulation at the European
Union (EU) level. They are in charge of co-ordinating national regulators and ensuring the implementation of harmonized regulatory policies across the EU, while also
offering sector-specific expertise to the Commission. To this aim, ERNs develop
‘best practices’ and benchmarking procedures in the form of standards, norms and
guidelines to be adopted in member states. In this paper, we focus on the Committee
of European Securities Regulators and examine the consequences of the policymaking structure of ERNs on the domestic adoption of standards. We find that
the regulators of countries with larger financial industries tend to occupy more
central positions in the network, especially among newer member states. In turn,
network centrality is associated with a more prompt domestic adoption of standards.
1. INTRODUCTION
European regulatory networks (ERNs) are transnational groups that allow
national regulatory authorities to formalize, structure and co-ordinate their
interactions pertaining to the governance of a number of important domains,
such as banking, securities, insurance, electricity, gas, telecommunications,
broadcasting and competition (Coen and Thatcher 2008; Eberlein and
Newman 2008). They constitute a new crucial step towards the institutionalization of regulatory governance in Europe, which calls for an empirical investigation of its consequences. While several studies examined their origins and
evolution (e.g. Thatcher and Coen 2008), the effects of ERNs on regulatory
policy-making remain unclear. On the one hand, some scholars have argued
that networks might enhance decision-making quality through peer pressure
and reputational dynamics, improving professional standards and policy commitments (Eberlein and Grande 2005; Majone 2000). On the other hand, it
has been argued that networked administrative action can lead to cooptation,
clientelism and other practices hindering performance (O’Toole and Meier
2004); that dense policy networks tend to produce closure, inertia and negative
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AGENCY GOVERNANCE IN THE EU
externalities (Soda and Usai 1999); and that power dynamics are not absent
from transnational networks (Bach and Newman 2010). More generally, sociological theories of diffusion point out that practices can spread within networks
regardless of their effectiveness (Strang and Soule 1998). Whether these diverse
views correspond to actual policy-making dynamics within ERNs is an open
question because, as regulatory networks gain prominence at the European
Union (EU) level and beyond, evidence of their performance remains scarce
(Kenis and Provan 2009).
In this paper, we investigate a specific aspect of ERNs, namely, their policymaking structure and its connection with national standardization patterns. To
be precise, our research question relates to the impact of network centrality on
the domestic adoption of standards developed at network level. We focus on the
Committee of European Securities Regulators (CESR), which is one of the most
developed networks in terms of competencies, powers and formalization of its
structure. Using publicly available but previously unexploited data, we
examine the network relationships among its member regulatory authorities
and their connection with the extent to which the decisions taken by the
CESR are adopted at the national level. We identify five patterns of adoption
(full, selective, partial, selective and partial, and non-adoption) and find that
the regulators of countries with larger financial industries tend to occupy
more central positions within the network, especially among newer EU
member states. In turn, network centrality is associated with a faster adoption
of standards. However, most countries eventually catch up. These findings
suggest that closer interaction among regulators is shaped by national interests
and that it influences the pace of domestic adoption more than its eventual level.
Because of our case selection, these results are likely to constitute a ceiling for
adoption patterns within ERNs.
The paper is structured as follows. Section 2 introduces ERNs and their relevance for EU governance. Section 3 discusses the structure of ERNs and the
development of transnational standards, focusing especially on the case of the
CESR. Section 4 examines patterns in the domestic adoption of standards,
first by identifying several types of adoption and then by analysing their determinants. The conclusion discusses the implications of the findings for policymaking within regulatory networks.
2. ERNS AND EU GOVERNANCE
ERNs operate in the shadow of European institutions, but have substantial
room for manoeuvre in the conduct of their various tasks, including providing
advice to the EU Commission on technical matters, co-ordinating the policy
positions of domestic authorities, offering fora for discussing current issues
with the representatives of regulated industries and, most importantly, developing standards and guidelines of ‘best practices’ to be approved at the network
level and adopted by member national authorities on a voluntary basis. Some
ERNs were created upon the initiative of a group of national regulators with
53
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the aim of strengthening their connections, whereas others were established
under the impulsion of the EU Commission as the outcome of a process of
negotiation among member states in which the option of sectoral pan-European
agencies was discarded in favour of an intergovernmental solution (Thatcher
and Coen 2008). However, in both cases, they brought into being a new, distinctive, flexible and effective level of governance (Eberlein and Newman
2008: 45).
ERNs are regarded as a fundamental layer of the multi-level political system
of the EU. They should permit to manage the new European economic regimes
by enacting a distinctive framework wherein political power and public authority are increasingly dispersed within a system of task-driven governance.
Because they are permeated by academic experts and non-state actors, they
convey new actors and new structures into the policy process beyond the
nation-state. In addition, ERNs are deemed to constitute organizational
devices for the promotion of norms through a mechanism of socialization
and peer pressures, and they should contribute to the implementation of international standards, which are initiated and developed by a variety of unelected
actors.
ERNs possess a number of peculiar features that distinguish them both from
other instruments of ‘new’ governance, such as politics forum and platforms for
policy transfer, and from other types of policy networks that are relevant for
policy-making, which are generally defined as quite informal and non-hierarchical ‘webs of relatively stable and ongoing relationships which mobilize and pool
dispersed resources so that collective (or parallel) action can be orchestrated
towards the solution of a common policy’ (Kenis and Schneider 1991: 36).
In general terms, policy networks are expected to exert the most effective peer
pressures only under a specific set of circumstances, such as the existence of
durable relations among members, the development of co-operative interactions, the existence of a state of mutual interdependence and network representativeness, all of which are the basic elements of a co-operative and
deliberative decision-making process (Papadopoulos 2007) and which seem
exceptionally prominent in the case of ERNs.
From the point of view of the structure of interaction, one can observe that
network ties are, by design, particularly strong in ERNs. Unlike the case of
ordinary policy networks, which can be conceptualized as relatively blurry, permeable and nebulous advocacy coalitions or epistemic communities, ERNs have
an official, well-defined structure, also possessing resources and competences
directly and indirectly derived from the European level. This state of affairs produces stable, durable, resourceful arenas, which might promote constructive
horizontal interactions among the participating actors. In this framework,
actors interact frequently, and the boundaries of the network are clearly specified, favouring a situation wherein information spreads rapidly, and there are
more opportunities for ‘diffuse reciprocity’ (Elgström and Jönsson 2000). In
addition, long-term and repeated interactions within small groups encourage,
through a socialization process, the development of an ‘esprit de corps’ that is
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likely to generate co-operative behaviour and problem-solving attitudes (Boyt
et al. 2005). Therefore, these networks were established with the expectation
that they might create the appropriate peer pressures and reputational incentives
for regulators to act professionally and thus co-produce higher-quality regulatory outcomes (Majone 2000).
Concerning the actor-level strategies of regulators embedded in ERNs, two
points deserve attention. On the one hand, the units that constitute the
nodes of the network – that is, domestic agencies – are distinct organizations
with uneven resources, but they constitute a relatively uniform type of actor.
ERNs federate authorities that display approximately the same organizational
model and have comparable competencies. Above all, they also share
common goals as regards regulatory policies. In this sense, the policy interests
of domestic regulators do not conflict a priori, and they are confronted with
similar challenges vis-à-vis elected politicians and regulated industries. Collaboration within networks should then be perceived as a win – win option, favouring co-operative, deliberative interactions, which might produce, in the ideal
case, Pareto-optimal solutions (Papadopoulos 2007). On the other hand, as
regulatory agencies are unelected and isolated from the electoral cycle, the interaction among their members is expected to follow a less strategic and short-term
game than negotiations among other types of political actors, such as representatives of political parties and interest groups. In fact, ERNs are to be considered
as knowledge-based arenas that promote the exchange of ideas and information
– in contrast to power-based arenas, which rely on the asymmetry of political
resources – raising again the probability of a virtuous, problem-solving form
of interaction (Elgström and Jönsson 2000).
Despite these arguments pointing to the virtues of ERNs, it would be wrong
to believe that networks have univocally positive consequences on policymaking. Some authors have emphasized that politics is not absent from networks, which may even reinforce existing power structures (Bach and
Newman 2010; O’Toole and Meier 2004). Furthermore, many sociological
studies have shown that practices can spread within networks in virtue of
their symbolic and socially constructed properties, regardless of their actual consequences, and even despite their ineffectiveness (Strang and Soule 1998). Thus,
we consider the possibility that, in spite of the characteristics that seem to make
them conducive to effective policy-making, ERNs may be unable to fulfil the
high hopes that they have engendered. Furthermore, in this paper, we are agnostic as to the specific contours of decision-making processes within networks, also
because the interactions among member regulators are usually surrounded by a
high level of confidentiality. Instead, we argue that the unfolding of particular
decision-making processes should have observable implications for their outcomes, that is, the patterns of standards approval and adoption. In line with
the literature on interlocking directorates (Mizruchi 1996), we expect these patterns to be shaped by the position of actors within the network, as defined by the
communication and informational structure emerging from co-participation
linkages in the network’s official subgroups. Therefore, we offer an empirical
55
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exploration of the dynamics of standards adoption for a selected network – the
CESR – and examine the connection between the regulators’ structural positions within the network and the domestic adoption of standards approved
at network level. While adoption per se does not allow us to assess the consequences of policy-making within ERNs in detail, it does constitute a minimal
criterion of effectiveness (Bach and Newman 2010). If an ERN is not able to
promote successfully the adoption of the standards it develops, then its effectiveness would be called into question. However, we emphasize that we see the
examination of adoption patterns as a first step towards a more comprehensive
study of the consequences of regulatory networks.
3. THE STRUCTURE OF ERNS AND THE DEVELOPMENT OF
TRANSNATIONAL STANDARDS
All ERNs function as federations of the regulatory authorities of EU member
states as well as some non-member states, such as Iceland, Norway and Switzerland. The EU Commission is usually represented at ERN meetings too. The
ERNs’ organizational model normally comprises a secretariat; a management
board, which is ultimately responsible for decision-making; and a number of
permanent committees and ad-hoc working groups, whose members convene
on a regular basis. Committees and working groups frequently involve academic
experts and business representatives, and are in charge of preparatory meetings
and day-to-day meta-regulatory functions, such as reports, standard setting and
peer review assessments. Despite these common organizational features, the
degree of institutionalization of ERNs, like their resources and assignments,
varies across sectors, following functional rationales engaging the EU level
and cross-national path-dependent trajectories.
The Council of European Energy Regulators/European Regulators’ Group
for Electricity and Gas (CEER/ERGEG) and Independent Regulators
Group/Body of European Regulators for Electronic Communications (IRG/
BEREC) are networks of utilities regulators, presenting a hybrid structure.
They bring together bottom-up and top-down groups of national regulators of
electricity and gas, and, respectively, telecommunications, which largely
overlap. Bottom-up groups, such as the CEER and IRG, are voluntary associations of national regulatory authorities, with the aim of facilitating consultation,
co-ordination, co-operation, information exchange and assistance amongst regulators. Top-down groups, such as ERGEG and BEREC (which recently
replaced the ERG), were established through EU directives and Commission
decisions, in order to function as advisory bodies and to foster harmonization
of national regulations, thanks to the enactment of ‘soft law’ prerequisites
(Coen and Thatcher 2008). The European Competition Network also consists
of national competition authorities and the EU Commission, but has the distinctive feature of enjoying closer support from the Commission and of not being
organized by committees drawn from member states (Wilks 2005). This
network is mostly dedicated to the effective enforcement of EC competition
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rules across Europe by acting as a powerful system that favours the spread of
information and the co-ordination of national authorities. It is considered a
uniquely independent transnational network promoting the first real supranational policy in the EU – that is, competition policy – with unexpected
smoothness (Wilks 2007). Finally, the European Platform of Regulatory Authorities is the least institutionalized network. It operates externally, somewhat parallel to European institutions, and functions essentially as an open forum for
information exchange and informal discussions among regulatory authorities
in Europe and beyond.
The CESR, Committee of European Banking Supervisors and Committee of
European Insurance and Occupational Pensions Supervisors constitute the socalled level-three committees of the Lamfalussy process – namely, the stage
devoted to the implementation of the new system of regulation of the European
financial markets (Chaher 2005). These three networks were designed to cooperate closely, but, a decade after their creation, evidence indicates that the
CESR holds a distinctive leading role, mostly because the European policy of
securities regulation is more coherent and consensual than the other issues to
be co-ordinated at the transnational level (De Visscher et al. 2008; Lütz
2004). To examine patterns of standards adoption and for the effect of networks’ structures, we focus on the CESR, which was set up in 2001 with the
aim of harmonizing securities regulation in Europe. In particular, it is in
charge of improving co-ordination among securities regulators, acting as an
advisory group to assist the EU Commission, and ensuring consistent and
timely implementation of community legislation in the member states. These
tasks are accomplished through the dissemination of standards, guidelines
and recommendations (Baker et al. 2005). Each EU member state is represented
by the head of the national regulator authority in the field of securities. The
Director General of the DG Market participates as the representative of the
European commission. Furthermore, the securities authorities of Norway and
Iceland are represented. The observed time period is 10 years (2001 –2010)
– that is, from its establishment to the present time. We focus on the CESR
for two reasons. First, this network is of the ‘harder’ type, in terms of competencies, powers and formalization of its structure (Coen and Thatcher 2008),
representing thus a ‘most-likely’ case of consistent domestic adoption.
Second, it is the most transparent network and discloses a considerable
amount of information, especially data on standard adoption, which are
crucial for our research goals.
CESR standards consist of sector-specific corporate governance measures to
promote harmonized pro-competition rules in member (and non-member)
states securities markets. They seek to improve transparency and investor protection while eliminating market barriers and to reduce costs for investors
and fund management companies. The standards and guidelines are not mandatory because they do not have Community law status, which means that
CESR members introduce them in their day-to-day regulatory practices on a
voluntary basis (Chaher 2005). However, the review panel of the CESR assesses
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the overall process of implementation and offers recommendations about
specific problems in the implementation process encountered by individual
members. It encourages self-assessment procedures to obtain a first picture of
the practice of supervision in a given area. Most importantly, it exercises
group pressure through peer reviews, which are carried out by other members
on the implementation in all jurisdictions concerned, by setting so-called benchmarks that are used to evaluate the levels of compliance, not unlike in the open
method of co-ordination (Heidenreich and Bischoff 2008).
We selected three standards and a set of guidelines developed autonomously
by the CESR and for which there is consistent information on the adoption
process:
. The standard for investor protection (2002) provides a harmonized conduct of
business rules for retail investors in the following areas: standards and rules of
general application, information to be provided to customers, the ‘know your
customer’ standards and the duty of care, customers’ agreements, dealing
requirements (including the ‘best execution’ standards) and individual discretionary portfolio management.
. Standard 1 on financial information (2003) represents a contribution to the
task of developing and implementing a common approach to the enforcement of International Financial Reporting Standards in Europe. It provides
for principles by which harmonization on the institutional oversight
systems in Europe may be achieved.
. Standard 2 on financial information (2004 – 2005) aims to contribute to the
consistent enforcement of International Accounting Standards Board standards within Europe, implemented in 2005, namely by providing a formalized structure and a number of common principles to national supervisors.
. UCITS guidelines (2006) aim to simplify the notification procedure of
UCITS (undertakings for collective investments in transferable securities)
– that is, the use of passports for facilitating the cross-border activities of
investment funds. In particular, this document offers a common approach
to domestic authorities in order to bring greater simplicity, transparency
and certainty to the notification process.
4. THE DOMESTIC ADOPTION OF STANDARDS
4.1 Patterns of adoption
According to CESR terminology, ‘implementation’ means the adoption of a
given standard at domestic level in the form of a compulsory regulation.
These standards are coded item by item by the review panel of the CESR as
‘implemented’ (1), ‘partially implemented’ (0.5) or ‘not implemented’ (0).
Using these data, we can examine the patterns of standard adoption in
member states. Each item for any given standard was preliminarily aggregated
by calculating its overall average value, but the analysis leads to essentially the
same conclusions if it is carried out using the individual items.
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We assess the adoption of the four standards taken as a whole, using the latest
‘implementation’ data: investor protection (2010), Financial 1 (2010), Financial 2 (2009) and UCITS guidelines (2010). We use cluster analysis, which is
a simple procedure to identify groups of individuals that are similar to each
other but different from individuals in other groups (Kaufman and Rousseeuw
2005). Hierarchical clustering is a technique that does not need prior assumptions about the distribution of data nor does it predetermine the number of clusters. Before running the analysis, ‘squared Euclidean distance’ was chosen as the
appropriate measure of distance between groups, and ‘between-group linkage’ as
the procedure for forming the groups. Accordingly, the software (Stata 11) computes the smallest average distance between all group pairs and combines the
two groups that are closest. In the first step, the two cases with the smallest distance between them are clustered. Then, the software computes distances again
and combines the two that are next closest. The process continues until all cases
are grouped into one large cluster. Therefore, the last analytical step is to determine how many clusters one shall use to represent the data, with the help of the
agglomeration schedule and the clustering tree elaborated by the statistical
package. The tree should be cut at a stage representing a big leap in the
values of the index, and offering a good balance between the homogeneity of
the groups and their number. Here, these conditions were met after five agglomerations.
Table 1 displays the results. The analysis produced five clusters and one isolated case (Hungary). As this process of categorization is inductive, we labelled
each group ex-post, according to the distinctive pattern they represent: full, selective, partial, selective-and-partial or non-adoption. Accordingly, besides the first
group of ‘good pupils’, we identify countries that adopted the four standards
very selectively, that adopted most standards but only partially, and also a
small number that presents both of these limitations. Finally, two countries
did not adopt any proper standard yet, except from the less demanding
UCITS guidelines.
Table 1 Patterns of adoption of three standards and a set of guidelines
Full
Finland
Portugal
Ireland
Greece
Great Britain
Cyprus
Italy
Selective
Partial
Belgium
Germany
Norway
Romania
Denmark
France
Spain
Poland
Netherlands
Luxembourg
Estonia
Slovakia
Latvia
Lithuania
Malta
Bulgaria
Sweden
59
Selective and partial
Non-adoption
Czech Republic
Slovenia
Austria
Iceland
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How can we explain this pattern? The classic ‘veto players’ argument –
namely, that law-making will be particularly difficult in countries where the
agreement of numerous actors is constitutionally and politically required –
appears limited for characterizing the profile of the best domestic adopters of
CESR standards, given the good performance of some countries whose political
system are punctuated by several institutional and partisan veto players, such as
Italy and Portugal. Another frequently cited condition for domestic change is a
‘manageable misfit’ between domestic and EU-level regulations producing
adaptational pressures, whereas there is no need for adaptation when EU
rules fit well with domestic policies, and ‘Europeanization’ hardly occurs
when a high level of incompatibility leads to conflicts, resistance and blocking
(Börzel and Risse 2002; Knill and Lehmkuhl 2002). Again, the existing
‘misfit’ seems hardly useful in this case, since the group of the smoothest adopters comprise countries whose corporate governance rules are the most in line
with the CESR standards, such as the UK and Ireland, together with some of
the least compatible jurisdictions (Greece, Cyprus). Finally, the politico-administrative culture of compliance with EU law can be dismissed as not suitable for
portraying these patterns, because the clusters of adopters do not match at all
with the typology of the three ‘worlds of compliance’, respectively dominated
by ‘law observance’, ‘domestic politics’ and ‘neglect’ (Falkner et al. 2005).
These findings are not exceedingly surprising per se, because voluntary standards should not be equated to community law, for which the aforementioned
literature was developed. Nonetheless, they are interesting because they
reinforce the plausibility of an endogenous explanation. In other words, we
might expect patterns of domestic adoption to be shaped by the characteristics
of the structure of interaction within networks, and, in particular, by the varying
positions of participating actors as defined by their institutional linkages, which
represent their organizational communication potential (Mizruchi 1996).
However, our expectations are mixed. On the one hand, actors in central positions hold a considerable amount of structural power and are likely to influence
the approval of standards at network level (Burt 1995; Knoke 1990). Therefore,
they should be eager to adopt them. On the other hand, these actors should have
the material and symbolic resources to resist the peer pressure exerted within the
network, and not feel compelled to adopt any standards in their country with
which they do not fully agree or which are no longer in their best interest.
4.2 Determinants of adoption
We analyse the determinants of adoption for the ‘Financial 1’ standard, one of
the oldest, and the only one for which all the relevant information is available,
especially longitudinal data for domestic adoption. Furthermore, the approval
of this standard at CESR level constituted a pivotal issue for network
members (interview with a CESR executive, 28 September 2010), while its
domestic adoption ‘represents a major change’ in financial regulation (Brown
and Tarca 2005), which is expected to have a sensible impact on the regulated
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firms (Lantto and Sahlström 2009). Data were extracted from the annual reports
of the CESR (1999 – 2010) and from a number of CESR official documents and
working papers. Our analysis consists of three steps. First, we examine the determinants of network centrality: which regulators have a more central position
within the network? Second, we consider whether countries whose regulators
are more central tend to adopt the standard more promptly. Third, we
inspect to what extent, and why, the standard is widely adopted by the end
of the observation period.
Our main hypothesis concerns the position of agencies within networks, a
variable which is expected to be related to their willingness to adopt at the domestic level the standards developed and approved at the transnational level. In
relational terms, their position corresponds to the centrality determined by
the structure of interaction within the network (Carrington et al. 2005). If
ERNs are conceptualized as social networks, this structure of interaction consists
of the social ties that derive from different types of linkages among agencies. In
that regard, this paper focuses on the formal structure of ERNs. From an organizational perspective, formal rules and institutional design are expected to have
crucial effects on actors’ behaviour, as the structure of the organization constrains choices, but at the same time, it creates and enhances capacity in
certain directions (Egeberg 1999). Thus, this social network, based on linkages
of co-participation in networks subgroups, represents the framework of the
institutionalized structure of communication and potential influence among
agencies within the ERN (Mizruchi 1996). It can be mapped and explored
with the application of some simple measures of social network analysis
(Scott 2000).
Concretely, national regulatory authorities constitute the nodes of the social
network, while ties represent instances of co-participation between given pairs
of member regulators. We distinguish four types of linkages, following coparticipation in (1) the network, (2) the board, (3) permanent groups, (4)
working groups. We first computed a two-mode matrix (actors/years) for each
subgroup, to be transformed in one-mode with the standard procedure (called
‘affiliations’) in the social network analysis software UCINET (Borgatti et al.
1999). The resulting matrices are then aggregated by computing the sum of
values cell-by-cell. For instance, if two agencies co-participate for 3 years in
one subgroup and for 1 year in another, their relation for the time-period will
receive a (symmetric) value of 4. Finally (by excluding the diagonal in the subsequent analysis), we calculate the degree centrality and the Eigenvector centrality of actors for three distinct cumulative measures: 2001 –2006, 2001 –2008,
and the whole observation period (2001 –2010).1 The first measure of centrality
refers to the number of ties for any given nodes – that is, local connectivity –
while the second assesses the relative importance of a node in the network.
In the rest of this paper, we refer to actors’ network centrality as their degree,
because this measure is more straightforward. However, as a robustness check,
we repeated all calculations using Eigenvector centrality and found that there
is little change in the results.
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In addition to network centrality, other explanatory variables could be related
to the adoption of standards at the domestic level. First, we expect systematic
differences between older and newer member states, as well as the two nonEU members in the CESR (Norway and Iceland). We operationalize this
factor simply by taking the log of the number of years since EU-accession.2
Second, the regulators’ resources might play an important role, as it may be
easier for larger agencies to send staff to permanent and working groups, and
generally to be more strongly involved in the network’s activities. We operationalize this factor with the log of the number of employees.3 Third, it could be
expected that countries with larger financial industries have stronger interests at
stake and may be more involved at the network level. We operationalize this
factor with the market capitalization of the financial industry as a percentage
of the GDP, which reflects the relative importance of the financial sector for
the political economy of the various countries and, therefore, the level of priority
that a reform of the regulations of the financial sector should have on the political agenda of the regulatory authorities. The World Bank (2010) database can
be used to construct an average value for 2001– 2008. Another important variable is the number of actors involved in enforcement at the domestic level, a
measure which is more pertinent than the typical veto player scheme when
studying the domestic adoption of transnational voluntary standards (Mattli
and Büthe 2003). The higher the number and the more diverse the actors,
such as regulatory authorities in charge, other agencies, central banks, the parliament, the governments and other actors like courts, the more difficult the
implementation of standards is expected to be. Information on this variable is
derived from official documentation of the CESR review panel (CESR 2009),
completed with the results of our own survey.
The results of the ordinary least squares (OLS) regressions are displayed in
Table 2. In Models 1–3, the dependent variable is network centrality in the
2001 –2006 period. Model 1 shows that regulators with more employees
tend to occupy a more central position within the CESR, but the relationship
is by far not statistically significant, even when no other variables are included.
Model 2 indicates that the more central regulators are those of older EU
member states and of countries that have large financial industries. Although
the coefficient of financial size does not achieve statistical significance in
Model 2, Model 3 shows that the relationship between financial industry capitalization and network centrality varies with years of EU membership and is
stronger among newer memberstates.4 These results are shown graphically in
Figure 1, which plots the marginal effect of financial services capitalization as
a function of years of EU membership, based on Model 3. We see that a sizeable
financial industry is associated with a more central position only for younger
member states – namely, those who joined the EU in the last 20 years. To
give an idea of the size of the effect, a standard deviation increase in financial
industry capitalization is associated with a 0.85 standard deviation increase in
network centrality for countries that joined the EU in 2007. More concretely,
this means that if the size of the Bulgarian financial sector were to increase to the
62
(6.42)
(3)
–0.31∗∗∗ (0.09)
0.17
(0.11) 1.13∗∗∗ (0.30)
∗∗∗
27.54
(4.11) 41.04∗∗∗ (6.18)
(2)
0.23∗∗ (0.11)
(4)
0.14 (0.11)
0.41∗∗ (0.18)
(5)
89.51∗∗ (36.56) 50.39∗∗∗ (9.36) 13.90
(13.31) 0.20 (0.15) –0.23 (0.23)
0.02
0.78
0.84
0.12
0.24
29
29
29
29
29
8.11
(1)
–0.65∗∗∗ (0.12)
0.70∗∗∗ (0.07)
0.50
29
(6)
Notes: The dependent variables are network centrality (2001–2006) (Models 1 –3), adoption until 2006 (Models 4 and 5) and the
difference in adoption between 2010 and 2006 (Model 6).
Standard errors in parentheses; ∗∗ significant at 5%; ∗∗∗ significant at 1%.
Number of employees (log)
Financial industry capitaliz
Years of EU membership
(log)
Capitalization ×EU
Number of actors
Network centrality
(2001 –2006)
Adoption (2006)
Constant
Adjusted R2
N
Table 2 OLS estimates
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Figure 1 Effect of financial industry capitalization on centrality in the CESR network,
conditional on years of EU membership, with a 95 per cent confidence interval. The
figure is based on Model 3 in Table 2.
level of Greece, the position of the Bulgarian regulator in the CESR network
would be expected to be similar to that of Poland, which joined the EU
3 years before Bulgaria. More generally, Model 3 suggests that, for countries
that joined the EU in the Eastern enlargement phase, the effect of a standard
deviation increase in financial services capitalization is roughly equivalent to
that of joining the EU 3 years earlier. Thus, the effect of the financial industry’s
size is not sweeping, but certainly not trivial.
Models 4 –5 in Table 2 examine the determinants of adoption in 2006. In
Model 4, we see that there is a positive relationship between the number of
actors involved in enforcement and the degree of adoption, which is unexpected.
However, Model 5 shows that this relationship becomes smaller and statistically
insignificant when network centrality is included. The interesting result,
however, is that domestic adoption up to 2006 tends to be higher in countries
that had a more central position in the CESR. The plausibility of the connection
between network centrality and domestic adoption is reinforced by additional
pieces of information. On the one hand, according to a CESR executive,5 the
Financial 1 standard was fully developed within a working group of the
CESR itself, composed by representatives of each member authority, which
are also in charge of domestic adoption, without the participation of external
actors. On the other hand, a survey carried out by the CESR shows that 75
per cent of national regulators consider network influence on national regulation as ‘quite high’ or ‘very high’, and none as ‘quite low’ or ‘very low’
(CESR 2007). Finally, Model 6 shows that while central countries tend to be
early adopters, most other countries caught up between 2006 and 2010. The
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dependent variable is the difference in adoption in this period, and the explanatory variable is the level of adoption in 2006. The strongly negative and statistically significant coefficient indicates the presence of b-convergence (Heichel
et al. 2005), whereby countries with lower levels of adoption in 2006 increased
it more subsequently.
In sum, the Financial 1 standard developed by the CESR was adopted in most
countries by 2010, but the regulators that were more central within the network
adopted it more quickly. In turn, network centrality is associated with the size of
the financial industry, especially among newer EU member states.
5. CONCLUSION
In this paper, we examined the domestic adoption of standards developed by the
CESR, the European network of national agencies regulating the financial
markets. Our analysis highlighted a number of points related to the policymaking structure of the CESR and its consequences for domestic adoption,
which permit us to corroborate and refine claims that transnational regulatory
networks influence policy convergence and that lead regulators shape domestic
regulatory agendas (Bach and Newman 2010).
First, it is interesting to note that these standards, although on a voluntary
basis, are adopted quite consistently as compulsory regulations by member
states. Therefore, decision-making within ERNs matters. More precisely,
using a cluster analysis of the four existing standards, we identified five patterns
of adoption (‘full’, ‘selective’, ‘partial’, ‘selective and partial’, and ‘nonadoption’) that do not match with those expected following the ‘(mis)fit’,
‘veto players’ and ‘cultural’ arguments developed in the literature on Europeanization. This result is intriguing because it shows that the effect of European
networks on domestic regulations is mediated by different factors than those
evoked for traditional European-level processes, policies and institutions. In
particular, it reinforces the plausibility of network structures as distinctive
filters for national interests.
Second, the diachronic analysis of adoption of Standard 1 on financial information shows that the regulators of countries with larger financial industries
tend to occupy more central positions in the network, and that the relationship
is stronger among newer Member States. This finding suggests that agencies
representing countries with higher stakes in financial market regulation have
both the incentives and the legitimacy to join the network and to engage themselves more actively in the network board, permanent groups and working
groups. The fact that this dynamic is particularly strong for newcomers might
suggest that, given their weaker integration within EU structures, they are
even more relying on this peculiar type of horizontal arena to support their
points of view and protect their national interests.
What is more, network centrality is associated with a more prompt domestic
adoption of standards. The fact that this form of structural power is apparently
influencing the timing of adoption, but not necessarily its extent, leads us to
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think that this effect is less owing to the influence of central actors on standard
approval at network level than to their increased resources in terms of communication and information flows, which enhances their willingness and capacity to
adopt the standards. In this regard, it is worth noting that not only does the
Financial 1 standard represent a major change in financial regulation, but
that it is also the most consistently adopted standard of the most institutionalized network. Therefore, these results are likely to constitute a ceiling for adoption patterns within ERNs and, thus, to be relevant especially for cases of
successful transnational standard-setting.
In conclusion, the CESR seems to be effective in performing its main task,
namely the promotion of harmonized rules. The Lamfalussy system of EU
financial regulation was purposely limited to the regulation of markets and
business conduct, while the prevention and reduction of systemic risks (‘prudential regulation’) is beyond its competencies (Posner 2010). In this context, the
current reform of the regulatory regime implying the creation of an European
agency for financial markets could be interpreted less as a recognition of regulatory failures than as an expansion of EU authority through the application of a
pre-formatted, socially valued organizational model – an integrated independent regulator (Gilardi 2005) – thanks to a windows of opportunity triggered
by the 2008 financial crisis.
Biographical notes: Martino Maggetti is senior researcher and lecturer at the
University of Zurich and at the University of Lausanne, Switzerland. Fabrizio
Gilardi is professor of public policy at the University of Zurich, Switzerland.
ACKNOWLEDGEMENTS
The authors thank Berthold Rittberger, Mark Thatcher, Arndt Wonka and two
anonymous referees for helpful feedback. This research is part of the NCCR
Democracy (http://www.nccr-democracy.uzh.ch/) and is funded by the Swiss
National Science Foundation. A replication dataset and codebook are available
on the authors’ websites.
NOTES
1 2006, 2008 and 2010 are the 3 years for which data on domestic adoption is available.
2 Using the simple (unlogged) number of years does not change the results. The main
analysis uses the year of European economic area-accession (1994) for Norway and
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Iceland. Setting this variable to 0 for these two countries, or dropping them
altogether, does not alter the results substantively.
3 Using the unlogged values does not affect the results.
4 As noted earlier, these results are robust to various alternative operationalizations of
EU membership.
5 Telephone interview, October 2010.
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Agency growth between autonomy
and accountability: the European
Police Office as a ‘living institution’
Madalina Busuioc, Deirdre Curtin and
Martijn Groenleer
ABSTRACT Autonomy and accountability of public agencies are two sides of the
same coin, yet often they are examined separately and at only one point in time. This
contribution therefore examines the interaction between accountability and autonomy over time. It does so in the context of a European Union agency, the European
Police Office (Europol), the creation of which has been the subject of much
contestation and discussion in terms of its possibility to wield autonomy and
escape accountability. The contribution looks at de jure aspects of both autonomy
and accountability, but moves beyond a strictly formal analysis and investigates
actual practices. Drawing on extensive document analysis and 26 in-depth semistructured interviews with key agency officials as well as members of the relevant
accountability forums, this contribution shows that tailored accountability arrangements, which are acceptable to the actors involved, reinforce autonomy, whereas an
inappropriate and contested accountability system has the opposite effect, stifling
autonomous development, as seems to have been the case with regard to Europol.
1.
INTRODUCTION
The scope of the power that is exercised by actors and institutions under the
auspices of the European Union (EU) is fuzzy for many citizens, businesses
and third states. Decisions in the EU are taken by a wide variety of actors in
a broad range of institutions. In this context too the mushrooming of
EU-level agencies, often linked to networks of national agencies, and the
consolidation and reinforcement of their competences are noteworthy. Such
agencies, populated by European as well as national-level civil servants, enjoy
executive and regulatory power at the EU level and have become pervasive
features of an emergent European executive order (Busuioc et al. forthcoming,
2012; Curtin 2009; Trondal 2010).
As ‘satellites’, EU agencies are not at the heart of the ‘Community method’ as
such but in orbit around it, with differing ties back to the core political actors
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and the formal decision-making processes (Curtin 2009). In that context, it is
generally assumed that it is necessary that agencies are enabled to operate autonomously from their political masters but nonetheless are subject to a number of
procedural and substantive constraints (Majone 1996, Vos 2005). Yet, in practice, agencies are often perceived as having too much autonomy, while not being
embedded in a proper accountability framework with real oversight and checks
and balances on the power they exercise.
Thus, the recurring question in relation to the emerging EU executive order is
how a balance can be struck between the autonomy of EU agencies and the
accountability they must render (e.g. Everson 1995; Majone 1996; Vos
2005). To ensure the credibility of their output, these non-majoritarian
bodies are expected to operate at arm’s length from the political interference
of their principals. At the same time, however, to safeguard their legitimacy,
agencies are also expected to render account for their actions and be embedded
in strong systems of controls, fencing in abuses of power (Groenleer 2006: 156).
How these seemingly contradictory goals are reconciled has been described as
‘perhaps the most demanding challenge facing independent regulatory agencies’
(Everson 1995: 156; see also Magnette 2005).
In order to address the above question we focus on one of the first EU
agencies, the European Police Office (Europol), which in its 15 year’s existence
has developed from a highly intergovernmental organ, established by agreement
among the member states, into a supranational actor at the core of the EU. We
zoom in on Europol because we consider it most illustrative for the phenomenon under research, i.e., the interaction between autonomy and accountability
in the context of EU agencies. In view of the sensitive nature of its information
gathering, processing and operational-type tasks, striking a balance between the
two is particularly crucial for this agency. This is demonstrated by the fact that
its autonomy and accountability have been heavily debated ever since its creation, more so than in the case of any other EU agency. Thus, the value of
the Europol case does not so much stem from its theoretical appeal, but from
it being instructive in terms of its extremity with regard to the interaction
between autonomy and accountability (Gerring 2007).
In spite of (or perhaps for that very reason) the sensitive nature of its tasks,
there is, with some exceptions (Groenleer 2009; Busuioc 2010), a dearth of
empirical research on Europol, both on the level of its autonomy and on
the level of its accountability. By drawing on an extensive analysis of official
and unofficial documents and 26 in-depth semi-structured interviews with
agency practitioners (including all Europol directors till the present day) as
well as members of the relevant accountability forums,1 this contribution
aims to address this lacuna. Autonomy and accountability, although two
sides of the same coin (Lastra and Shams 2000), are usually studied separately.
We, however, examine them in the context of Europol jointly, investigating
how they interact through within-case analysis. Moreover, when autonomy
and accountability are studied, this is often being done statically, concentrating on one moment in time. We, however, trace their development over time,
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focusing not only their de jure character, but also on their de facto manifestation.
We start this contribution with a brief examination of the autonomy and
accountability concepts, teasing out the possible links between them (Section
2). On the basis thereof we empirically investigate the relationship between
autonomy and accountability in the context of Europol’s growth (Section 3).
Subsequently, we analyse our findings, exploring how autonomy and accountability interact in the Europol case, and we draw lessons, more generally, for EU
agencies on this interaction (Section 4).
2. LINKING AUTONOMY AND ACCOUNTABILITY: IN PRACTICE
AND OVER TIME
Agency creation at the European level can be considered as an instance of delegation of powers, either directly by the member states or, at an intermediary
level, by the Commission or the Council (Dehousse 2008). The basic
mandate of the agent (i.e. the EU agency) delimits the extent of the delegation
and draws the boundaries within which the respective agent has autonomy. This
autonomy generally comes with countervailing checks meant to ensure that the
agent complies with its obligations (Majone 1996). While current studies of EU
agencies, often applying Principal-Agent (P-A) models, offer a helpful analytical
framework to explain the logic of delegating powers (e.g. Kelemen 2002), they
generally do not help us to understand how autonomy and accountability
interact in reality, post delegation. This contribution seeks to fill this gap in
the literature.
2.1. Autonomy
Agents are said to have autonomy when they have the capacity to manage their
own affairs, acting and deciding unbound by the preferences and interests of
their principals. This does not mean that they are completely free, without
restrictions or independent; they are confined within a predefined discretionary
space, with (democratic, judicial, professional) safeguards placed on the exercise
of that discretion. Indeed, independent (i.e. fully autonomous) agents generally
do not exist in systems of representative government, as agencies are ultimately
bound by what elected executives, parliamentarians and judges allow (or forbid)
them to do (Kaufman 1981).
To study an EU agency as a living institution, we have to distinguish the
formal autonomy of an agent from its actual level of autonomy (Verhoest
et al. 2004, Yesilkagit 2004). When students of political science and law deal
with autonomy, it is usually in terms of discretion, also referred to as formal
or de jure autonomy, meaning the latitude officially granted to agents in
order to implement policies. Formal autonomy is laid down in an EU
agency’s constituent document and can hence be operationalized into the
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following dimensions (Bouckaert and Peters 2004; Christensen 2001; Gilardi
2002; Verhoest et al. 2004):
(a) Policy autonomy: the extent to which agencies can decide on goals, prioritize tasks, choose clients or target audience, determine working methods,
and draw conclusions and opinions.
(b) Personnel autonomy: the extent to which they can recruit, train, promote
and pay their staff as well as fire them.
(c) Financial autonomy: the extent to which they can generate their own financial resources and decide on how to allocate them.
(d) Legal autonomy: the extent to which they can enter into agreements with or
procure and provide goods and services from and to other organizations.
While an agent is usually endowed with some degree of formal autonomy
from the start, the amount of autonomy it makes use of in practice is not
fixed (Carpenter 2001). That is, once an agent has been created, it may very
well develop its own preferences and interests, separate from its principals but
also from stakeholders or clients (Majone 1996, Moe 1989). Hence, it is not
enough to look at the autonomy that an agent has by design, as in that way
informal adjustments or expansions of its formal autonomy may be overlooked
(Thatcher and Stone Sweet 2002).
This contribution therefore also examines an agency’s actual or de facto autonomy (see Groenleer 2009). This not only requires paying attention to amendments made to the agency’s legislative statute, but also investigates the
behaviours developed on the basis of formal documents but not codified as
such (Thatcher and Stone Sweet 2002). Actual autonomy can thus be assessed
by tracing the process of autonomy development over time through document
analysis and interviewing, in particular focusing on an agency’s decisions or
actions with regard to mandate, objectives and tasks, human and financial
resources and relations with other actors.
2.2. Accountability
Accountability consists of ascertaining after the fact whether a (public) actor has
complied with its mandated obligations. It is understood as an ex post facto
process of information, explanation and justification of actions (debate) and
consequences (Bovens 2007; Day and Klein 1987; Mulgan 2003; Pollitt
2003; Romzek and Dubnick 1998). More precisely, accountability refers to
the ‘relationship between an actor and a forum, in which the actor has the obligation to explain and justify his or her conduct, the forum can pose questions
and pass judgment, and the actor might face consequences’ (Bovens 2007:
452).
Accountability can be exercised by a variety of bodies with the authority to
monitor and assess their behaviour and the principal is just one of the various
account holders. This approach thus departs from the P-A model, which
includes both ex ante and ex post elements of ‘control’ as well as referring to
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‘control’ rather than ‘accountability’. In the P-A model, controls are provided to
reduce agency losses and to ensure post-delegation congruence between the
agent’s actions and the principal’s desired result. Given its narrower, retrospective character, the conceptualization of accountability adopted here is particularly suitable in the context of non-majoritarian bodies such as EU agencies,
as equating accountability with control would run contrary to one of the
main reasons for setting up such bodies: their autonomy.
As opposed to direct control, which amounts to interference and steering,
accountability is concerned with ex post oversight, with assessing after the
fact the behaviour of the actor. Thus, accountability is non-intrusive in the
sense that it does not amount to direct interference in the agent’s zone of discretion or a limitation of the agent’s formal autonomy as granted by the mandate
(Busuioc 2009). It becomes relevant precisely in situations where a body is
autonomous and the delegating body has relinquished control (Busuioc
2009). It is autonomy that renders accountability pertinent.
As in the case of autonomy, we can distinguish two dimensions of
accountability: de jure and de facto accountability. De jure accountability
refers to the accountability arrangements as provided for by formal design.
In the case of EU agencies, a variety of formal arrangements have been
provided for by constituent act – procedures for accountability vis-à-vis
the management boards, hearings before the European Parliament, procedures for budgetary discharge, etc. – as well as by Treaty, i.e. procedures
for legality review by the Court, etc. These various arrangements can be
grouped into several dimensions, which will be systematically studied in
this contribution:
(a) Managerial accountability: encompassing accountability arrangements visà-vis the management board.
(b) Political accountability: encompassing accountability arrangements vis-àvis political institutional actors (such as the European Parliament and the
Council).
(c) (Quasi-)judicial accountability: encompassing accountability arrangements
vis-à-vis judicial and quasi-judicial bodies (such as the Court or the Joint
Supervisory Board).
(d) Financial accountability: encompassing accountability arrangements vis-àvis financial forums (such as EP’s budgetary committees or the Court of
Auditors).
These procedures display the three phases of an accountability process as they
generally entail informing, debating and possibilities for consequences (see
further, Busuioc 2010). De facto accountability refers to practices of accountability and more explicitly, to how the various formal arrangements provided
by design operate and are used in practice in the interaction between the
actor and the forum, below or above formal requirements. As in the case of
actual autonomy, this is ascertained on the basis of documents and interviews
conducted with both agency staff and forum members.
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2.3. Towards exploring the interaction between autonomy and
accountability
In theory, the need for accountability thus becomes most stringent when a body
has been granted a wide margin of formal autonomy and has developed the
capacity to act autonomously in practice. The absence of accountability arrangements or their underuse in the case of a body with a high level of de jure autonomy could result in an excess of actual autonomy. Actual autonomy can thus
very well coincide with formal accountability (Carpenter 2001; Moe 1984).
Conversely, in the absence of actual autonomy, accountability is arguably less
important. The availability of extensive accountability arrangements and their
use in practice on a body that lacks the ability to undertake autonomous
action(s) would result in an accountability overload. Hence, actual accountability may occur at the same time as formal autonomy (Busuioc 2009; Thatcher
2005).
Thus, autonomy and accountability are not mutually exclusive but closely
connected. Indeed, autonomy and accountability may complement, or even
reinforce each other. Effective and legitimate governance, it is argued, is only
possible if EU agencies are allowed some margin of autonomy to fulfil their
tasks, within a framework of multiple accountability mechanisms not centralized in one accountability forum (Bovens 2007; Busuioc 2010; Curtin 2005;
Groenleer 2009; Harlow and Rawlings 2007; Majone 1996). Yet, in reality,
autonomy and accountability are likely to be less balanced in certain episodes
of an agency’s existence as their interaction may be influenced by the dynamics
involved in the development of an EU agency. How accountability and autonomy exactly interact, beyond formal rules, in living practices, remains unclear,
and under which conditions they are in balance needs to be investigated
empirically.
In terms of autonomy, this contribution therefore examines with what degree
of autonomy Europol has performed its tasks and to what extent this surpassed
(or stayed within) the level of formal autonomy it was invested with in the
course of its existence. With regard to accountability, this contribution looks
at how the accountability of Europol vis-à-vis the various forums have developed
formally as well as in practice over the years. It thus examines the dynamics of
autonomy and accountability and their relationship in the development of
Europol as a living institution.
3. THE TRAJECTORY OF EUROPOL’S AUTONOMY AND ITS
ACCOUNTABILITY
3.1. New born Europol: stunted shape
3.1.1. A toothless intergovernmental organization
Europol was formally created on 18 July 1995 with the signing of the Europol
Convention.2 The disappearance of border controls between the EU member
states in combination with the rise in trans-boundary crime as a result of the
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collapse of the Berlin Wall had led politicians to call for greater co-operation
between European police forces (Den Boer and Walker 1993: 8 –9). By
1995, member states were not ready to transfer authority to a supranational
entity, however. Original plans of a ‘European FBI’ were diluted to render
the agency acceptable to member states and their various national enforcement
agencies, which were apprehensive about losing control to Europol (Den Boer
and Bruggeman 2007).
Hence, Europol was created as an intergovernmental body, outside the Community legal framework and with its own Convention, which entered into force
on 1 July 1999. Amendments to the Convention required the adoption of
additional protocols, which had to be ratified by the national parliaments of
all member states before they could enter into force. This often meant a long
and cumbersome process seriously constraining the agency in its functioning
(Groenleer 2009: 277– 9).
In accordance with the Convention, Europol’s objective was to improve the
co-operation of national police agencies in preventing and combating international crime. It was set up to support member state investigations, co-ordinate
and support international investigations and co-operate with third states and
international organizations. Unlike national police forces, Europol was not
invested with operational powers. Europol officers cannot carry guns, conduct
home searches or tap wires, nor can they question, arrest or detain suspects.
Europol’s core task was, and still is, to facilitate the exchange of information
between the member states. For that purpose, it set up its own database, the socalled Europol Computer System. But the agency was invested with limited
powers to make member states share information and had restricted access to
external databases. Whether national police officers provided Europol with
data was essentially left up to their discretion. Moreover, compiled information
generally did not have to be shared with other member states. Information
bearing on specific cases and with an operational aim could only be accessed
by the member state that had provided the information, those directly concerned and others that were invited. National law enforcement agencies thus
remained owners of the information they had gathered.
To facilitate information exchange, the member states are represented at
Europol headquarters by one or more Europol Liaison Officers (ELOs).
Although selection and recruitment of personnel was the responsibility of the
Europol’s director, ELOs did not fall under his command. They remained
subject to the national law of the seconding member state. This rather
limited autonomy in personnel matters was matched by limited autonomy on
financing. Europol used to be funded by contributions from the member
states, based on a GDP key, with the draft budget subject to the Council’s
approval.
3.1.2. Little to no supranational accountability
The new body’s accountability arrangements mirrored the intergovernmental
logic: Europol operated under the authority of its intergovernmental board
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composed of member state representatives and that of the Council, to the exclusion of more supranational institutional actors. The board was granted a broad
range of oversight powers such as adopting the agency’s work programme and
annual report, taking part in the appointment and dismissal of the director and
overseeing his performance.
This was supplemented at the higher political level with additional monitoring as well as control instruments in the hands of the Council. For instance, the
Council’s accountability powers vis-à-vis Europol included endorsing the work
programme and the annual report, approving the draft budget, granting the
budget discharge and dismissing the director. Furthermore, the conclusion of
Europol agreements with third countries, other EU bodies and international
organizations,3 usually named as an illustration of Europol’s unprecedented
powers, was in fact made subject to control by the Council. Consequently,
the director’s autonomy was significantly circumscribed on these issues. The
director could not start negotiations or sign an agreement without the Council’s
approval.
Additionally, given that the main responsibilities of Europol related to the
processing and exchange of information, including personal data, Europol’s
activities, were made subject to the monitoring of an independent organ, the
Joint Supervisory Body, composed of representatives of national data protection
supervisory bodies. All in all, given the rather limited level of autonomy with
which Europol was endowed from the beginning, the lack of any type of executive or operational powers, the limited scope and intensity of the accountability
mechanisms did not appear insufficient or misbalanced to its actual autonomy.
Yet, Europol came under heavy criticism for its lack of adequate provisions
for accountability from journalists, civil liberties groups, national parliaments
and the European Parliament. This was partially due to the secrecy shrouding
the creation of Europol not only from the average citizen but also from national
parliaments and the European Parliament, which were largely kept at bay (Den
Boer 2002: 283; Woodward 1993: 26 –7). The brunt of the criticism, however,
was directed at the insulation of Europol and its (policing) activities from
parliamentary and judicial scrutiny.
The EP played virtually no role in the negotiation of the Europol Convention
as it was not even consulted during the negotiation or the drafting stage (Curtin
2005: 100; Den Boer 2002: 283; Peers 2005). Not surprisingly, as a result, the
European Parliament’s powers vis-à-vis Europol were almost non-existent and it
lacked the power to exert any effective scrutiny. Formally, the EP would only
receive a ‘special’ annual report4 (a ‘sanitized’ version) and the Europol director
was not required to appear for hearings before the European Parliament.
Additionally, as Europol was funded by member state’s contributions, the EP
was deprived of a strong leverage vis-à-vis Europol: its budgetary and discharge
powers.
Similarly, the role of the Court of Justice was at best ‘limited’. Preliminary
rulings on the interpretation of the Europol Convention were subject to an
‘opt in’ declaration by each member state, rendering the Court’s jurisdiction
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voluntary rather than mandatory. What is more, the agency’s acts were deprived
of judicial review, in line with the restricted role of the European Court of
Justice under the third pillar (see Busuioc 2010: 182– 8).
The absence of the more supranational EU institutions was not a Europolspecific deficit but rather a characteristic of the policy area of justice and
home affairs in general (Monar 2001). Member states had repeatedly resisted
attempts to provide for a fuller communitarization of JHA, indicative of a
general apprehension of a sovereignty loss to European institutions, particularly
strong in an area such as policing (Walker 1993: 39– 40).
3.1.3. Low de jure autonomy, low de jure accountability
Despite the relatively low formal autonomy of Europol and the provision of
formal accountability arrangements (albeit intergovernmental ones), the exclusion of this whole set of supranational, non-executive actors from Europol’s
monitoring structures, coupled with the secrecy surrounding the creation of
Europol, bred misconceptions and gave rise to heavy criticism. It conjured a
public image of ‘a somewhat sinister Europol’, which would be ‘seizing
people and searching houses at the behest of another country’s police, and spiriting them into a foreign police cell’ (The Guardian 1992 in Woodward 1993),
further fuelling criticism and demands for accountability. This perceived lack of
accountability due to a system of oversight skewed in favour of intergovernmental actors created expectations of a ‘runaway bureaucracy’ in the making.
3.2. Early years: arrested development
3.2.1. Demonstrating added value?
The inflexible procedure to amend the Convention did not prevent the Council
from progressively extending Europol’s remit by expanding the types of crime it
is competent to handle and the kind of activities it is allowed to undertake
(Occhipinti 2003). Expansions of the crime areas (to include such crimes as
counterfeiting of the Euro, terrorism and money laundering) came with highprofile events or incidents and typically were decisions of member state politicians, often without getting the opinions of law enforcement officers in the
field. In 2002, Europol’s mandate was extended to all forms of international
organized crime.
Yet more controversial was broadening the powers with regard to the different
areas of crime, as most EU countries for a long time opposed any operational
activity of Europol. Since 2007, Europol is nonetheless permitted to request
that national police forces conduct investigations, the so-called ‘right of initiative’, and to participate in joint operations with national authorities, the so-called
Joint Investigation Teams (JITs). These mandate expansions, however, came
after very lengthy ratification processes, with as much as five to seven years
lapsing in between adoption and ratification.
In spite of fears that the participation in JITs would invest Europol officers with
de facto operational powers, not much changed in practice. Europol officers’ role
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remained limited to producing analyses on information delivered by the member
states. Furthermore, the lack of familiarity with the mechanism among national
police forces led to a low level of use of JITs and even if used at all, Europol’s
work was often not taken into account. As a consequence, the mere possibility
for Europol to enhance its operational role remained limited (Groenleer 2009).
Europol has enjoyed limited support from national law enforcement agencies,
which from the very beginning perceived Europol as a competitor (Den Boer
and Bruggeman 2007). They were guarded about sharing information with
Europol and preferred to co-operate on a bi-lateral basis. It has been estimated
that as many as 80 per cent of exchanges occurred outside Europol structures
(House of Lords 2003: 22).5 The delayed development of Europol’s computer
system, due to technical problems and a corruption scandal, in combination
with the strict rules for data protection, initially set to gain trust and confidence
of national police officers, further hindered the office’s capacity to facilitate the
exchange of information and demonstrate added value (Groenleer 2009: 285).
Europol did try to increase its information position vis-à-vis the member
states by for instance concluding agreements allowing for the exchange of
data with the USA, Interpol and Eurojust (Groenleer 2009: 299 –300). The
agreement with the USA on paper made Europol the ‘one-stop-shop’ for
EU – US cooperation in the area of terrorism and organized crime,6 but
cooperation in practice developed slowly. Due to the strict data protection
rules, Europol analysts could initially not share information with US liaison
officers in The Hague. Moreover, US law enforcement officials mistrusted the
office, preferring long-established and well-functioning bilateral co-operation
with EU member states over using Europol (Brady 2007).7
Europol’s leeway in deploying staff has been limited. When the office came
into being, its director was in theory able to recruit his ‘own’ staff. In practice,
however, many seconded officials became Europol staff and the majority of new
staff came from national law enforcement agencies.8 Member states have
generally been keen on getting their nationals selected, putting pressure on
the director to balance the nationalities of staff. The higher the post, the
more the member states were involved in the selection of a candidate, and
the more political the appointment process became.
Member states, especially those who have contributed to a large share of the total
budget, such as Germany and the United Kingdom, have in a similar way
demanded influence over the office’s finances. Hence, early proposals to provide
Europol with additional resources from the Community budget were received by
the member states with great resistance. An enlarged role for the Commission
and the Parliament would make it difficult for them to set the office’s priorities,
as the Community’s priorities would not necessarily coincide with their priorities.
3.2.2. Sufficient yet indirect oversight
The extension of Europol’s mandate, the lack of EP consultation for the adoption
of the Council act of November 2002 drawing up a Protocol amending the
Europol Convention and the Protocol on privileges and immunities, and the
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adoption of the aforementioned data agreement with the USA without consulting
the EP or national parliaments further amplified the criticism of a lack of democratic and judicial control of Europol (Lavranos 2003; Bruggeman 2006). These
criticisms are likely to be the result of parliamentary discontent about being marginalized on these issues and the low(er) legitimacy of the other (intergovernmental) arrangements in place rather than a threat of a scrutiny-free Europol, for
Europol was by no means a free agent on any of these issues.
This is in line with the observations of the Commission in its 2002 Communication on the adequacy of democratic control over Europol in relation to Europol’s existing powers. While observing that the controls are exercised in an
‘indirect’, ‘fragmented’ (i.e. due to being shared between 15 national parliaments
and the EP) and ‘not easily understood manner’, it also noted that at the nationallevel parliamentary control is also indirect: ‘Parliaments do normally not have a
direct influence on the running of the police’. While it did make some suggestions
for consideration (e.g. a single annual report, hearings before the EP), the Commission concluded ‘the current system cannot be regarded as legally insufficient,
given the limited nature of the powers attributed to Europol in comparison
with those of national police forces [emphasis in original]’.9
Successive de jure as well as de facto changes resulted in some improvements to
the EP’s position. Thus, the EP gained the power of consultation with the
Treaty of Amsterdam and through amendments to the Europol Convention
it gained access to the same annual report as the Council10 and the possibility
to have a formal exchange with the Presidency of the Council on Europol.11
Furthermore, in the absence of a formal obligation to do so and likely in an
effort to increase the body’s credibility and legitimacy, the director of
Europol started appearing for hearings before the Committee on Civil Liberties,
Justice and Home Affairs (LIBE) of the European Parliament and there were
regular contacts between Europol and various MEPs (Groenleer 2009;
Busuioc 2010). However, Europol continued to be perceived as an ‘unaccountable European FBI’ (Statewatch 2002), a source of increased distrust.
3.2.3. Low de facto autonomy, yet calls for increased de jure accountability
What we can observe from the above developments is not at all what we might
have expected. While de jure the autonomy of Europol was rather limited and de
facto, due to the variety of reasons outlined, Europol had difficulties growing
into its assigned role, one would have expected the demands for accountability
to be low as well. In fact, the opposite was true: demands for accountability were
vociferous and increasing and did not seem to be related to a real worldview of
the office’s autonomy.
3.3. Into the teens: a bit more ‘cop’
3.3.1. Slowly increasing its (supranational) role
Not surprisingly, in the years to follow, information provision continued to be a
problem; member states do not, and will probably never, rely exclusively on
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Europol for their information. This is most evident in the area of terrorism
where a host of new institutions have been created, often without the (direct)
involvement of Europol, e.g. the Council’s Joint Situation Centre (SitCen)
(see further Den Boer et al. 2008). A House of Lords (2005: 28) committee
thus remarked: ‘The proliferation of other groups and bodies might not all
have been necessary if Europol had established itself as the lead EU player in
this area’.
Only in recent years is Europol gradually establishing itself as the autonomous
European law enforcement agency foreseen by its originators. An example is the
introduction of the Euro that has served as an opportunity for Europol to
demonstrate its capacity. While the Euro is the common currency in a majority
of EU member states, none of them has a particular interest in combating its
counterfeiting. The resulting collective action problem is what makes Euro
counterfeiting different from other forms of crime that Europol is tackling,
and has made it possible for Europol to increase its operational involvement
in this area.
Moreover, since 2006, Europol produces Organised Crime Threat Assessments (OCTAs).12 Instead of descriptively reporting on the dominant trends,
as it did before, the OCTA provides ‘a more far-reaching predictive assessment’13 and fits the more pro-active approach to fighting organized crime
that Europol has adopted in recent years. Whereas Europol previously tried
to ‘sell’ its projects to the member states, now projects are developed in cooperation with the member states, thereby ensuring that they are in line with
their priorities.14 The OCTA also uses information that Europol generates
itself, through ‘connecting the dots’, which makes the agency less exclusively
reliant on national police forces for information and more relevant for those
national police forces because it can actually contribute to investigations
(Groenleer 2009: 296).15
Further changes will likely follow from Europol’s new basic act. As of 1
January 2010, the Europol Council Decision,16 replacing the Europol Convention, came into force, which removed the cumbersome amendment process, a
straightjacket on Europol’s development. Moreover, post-Lisbon and under
the lead of the Standing Committee on Operational Cooperation on Internal
Security (COSI), Europol is receiving further institutional impetus. It is to be
one of the main contributors to a more coherent policy cycle in the area
of Justice and Home Affairs, opening up greater possibilities for its identified
priorities to become actual priorities and to demonstrate added value at the
national level.17
3.3.2. The supranationalization of accountability
In more recent years, the failure of Europol to gather support from the national
level further accentuated the tensions existing since Europol’s creation as a topdown political project and impacted on its de facto accountability relations.
Reportedly, the board of Europol started displaying a distrustful and critical
attitude towards Europol, micromanaging the agency and the director.18 The
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board’s agenda was ‘buried in details’, with the board discussing minute administrative details, notably to the detriment of the agency’s strategy (see also House
of Lords 2008). This reportedly caused tensions between the previous director
and the board, over reports to be drafted, then sent back redrafted and rejected
again.19 At the same time, the most problematic issue faced by Europol, i.e. the
lack of information input by member states, was largely not addressed either by
the board or at the Council level.20
The new Council Decision and the institutional overhaul brought about by
the Lisbon Treaty significantly increased possibilities for oversight by the EP
and the Court, enhancing the agency’s much debated accountability, at least
on paper. Hearings before the EP, already common practice, are now formally
provided for: the director of Europol, the chairman of the board and the Presidency of the Council must appear for hearings before the EP at the latter’s
request.21 Another significant change introduced by the Decision affects the
agency’s financing: Europol now receives contributions charged to the EU
budget, as a result of which the EP becomes the budgetary authority for
Europol as well as its discharge authority. The EP can refuse to endorse the
budget, freeze part of the budget and make its release conditional (as it did in
the case of the European Police College (CEPOL)22 and can call the directors
for hearings before its two budgetary committees (see Busuioc 2010). This is
a significant break with the past, when the EP repeatedly advised against the
approval of Europol’s budget, advice that was always ignored by the Council.
A further increase in parliamentary powers vis-à-vis Europol is quite likely in
the future as the EP gained co-legislator rights through the Lisbon Treaty. Thus,
Article 88(2) TFEU provides for the adoption of future regulations, in accordance with the ordinary legislative procedure, to determine Europol’s structure,
operation, tasks as well as scrutiny procedures by the EP and national parliaments. In fact, the European Commission has already announced that it will
make a proposal for a ‘Europol Regulation’ in 2013.23 What is more, in
practice, high-level agency interviewees already report renewed and increased
institutional attention, particularly from the LIBE committee, in the follow
up of Lisbon and in light of ongoing institutional developments in the
context of the JHA policy cycle.24
Not only the powers of the European Parliament have been expanded, but,
importantly, also those of the Court of Justice. Explicitly, in terms of judicial
review, by virtue of Article 263 TFEU, the Court is granted jurisdiction over
agencies’ acts, including those of Europol, Eurojust and CEPOL. This,
however, is subject to a five-year transitional period after the entry into force
of the Treaty of Lisbon (or earlier if its basic act is amended), during
which the powers of the Court remain the same as pre-Lisbon, i.e. the opt-in
for preliminary rulings and no legality review.25
3.3.3. Increased de jure accountability, but also increased de facto autonomy?
As formal accountability towards supranational actors increases, there is an
expectation that this would lead to an expansion of its actual autonomy
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through an increase in trust and credibility. This might also lead to more operational powers for Europol, as the political discourse on the granting of operational powers has been linked to the granting of parliamentary and judicial
powers vis-à-vis Europol (Wagner 2006). The recent transformation into a
full-fledged EU agency, also entailing a further expansion of the possible
accountability mechanisms, as well as the central role foreseen for Europol by
COSI in the context of the EU policy cycle in the JHA area, can be seen as
first steps in this direction. The jury is still out, however, and although some
institutional obstacles have been overcome, Europol remains dependent on
member states for information, a fact that cannot be changed at the legal
level: ‘it’s still an issue and it’s the biggest challenge that Europol has always
had’.26
4. ‘LIVING’ EUROPOL AND BEYOND: STRIKING A BALANCE
BETWEEN AUTONOMY AND ACCOUNTABILITY
Executive governance at the level of the EU is being transformed in close association with executive governance at the national level. With the entry into force
of the Treaty of Lisbon, the intensification of the non-legislative domain
received a further impulse. Part of this territory is occupied by the expanding
role of agencies at the EU level of governance, a phenomenon that raises the
question, which is also central to this contribution, how to strike a balance
between their autonomy and accountability. As this question is still underinvestigated empirically with regard to actual practices and dynamics occurring
over time, we focused on one specific agency, the Europol that started at the
outer periphery of the EU more than 15 years ago and has now been fully
integrated into the core of the EU, both in institutional and legal terms. Our
empirical investigation demonstrates that the agency’s autonomy and accountability interact in unexpected ways; the dynamics observed are complex, to some
extent counter-intuitive and, occasionally, also counter-productive.
4.1. Autonomy and accountability in the case of Europol
With regard to autonomy we have shown how Europol has grown de jure with a
few leaps and bounds over the years. But more important is the de facto level of
how the institution has evolved in practice. Here we saw that despite having
certain formal supranational powers Europol has difficulty in freely manoeuvring within its zone of discretion primarily because its national counterparts did
not (always) provide it with the necessary information. In other words, the lack
of cooperation from national agencies prevented Europol in practice from using
fully its putative autonomy. This rather stunted autonomy in practice can be
contrasted with the growth phenomenon that has been its ‘accountability’,
emerging from poor genetic material in the early days to a rather robust framework during the teenage years.
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We thus find that in the Europol case accountability and autonomy have
evolved separately, with developments in accountability irrespective of actual
autonomy and the former changing independently of the ‘realities’ of the
latter. Whereas Europol was not able to harness the powers it was expected to
be able to yield at its creation and its actual autonomy remained and remains
rather ‘limited’, an expansion of accountability took place at the formal level
and, depending on the eagerness of forums to use their powers, may translate
into an informal expansion as well.
In one way Europol can be considered as a specific type of agency given the
fact that its tasks relate to the highly sensitive task of police cooperation. This
clearly limits the generalizability of our findings. Yet, its growth has taken
place along a trajectory that throws into relief the relationship between the
autonomy of EU agencies and their accountability. In the Europol case, striking
a balance appeared difficult and affected its growth, indicating that this relationship is potentially also of relevance to other agencies that are proliferating in all
shapes and sizes within the EU political system. As such, our study gestures
more generally to the effects of the interplay between autonomy and accountability as an avenue for further research.
4.2. The interaction between autonomy and accountability: legitimacy as
the linking pin
This contribution shows that the relationship between autonomy and accountability in reality is often anything but balanced: accountability may reinforce
autonomy, but it can also have the opposite effect by stifling autonomous development, as seems to have been the case with regard to Europol. To what extent
then is it possible to draw more general conclusions as to the circumstances
under which autonomy and accountability interact in positive or in negative
terms?
Accountability can reinforce autonomy with a positive impact on the agency’s
growth. Thus, the structure of accountability arrangements and their ‘fit’ with
the actor, in light of its autonomy, is crucial. Tailored accountability arrangements are likely to positively affect the credibility of an agency, which may
breed trust and increase actual autonomy. In turn, such actual autonomy may
be formalized as accountability forums will feel more confident that the
agency is under control and, thus, more power can be delegated. This also
explains why, in the absence of a formal accountability obligation in this direction actors, like the director of Europol, occasionally choose to initiate new
forms of accountability as a strategy to promote agency credibility, fend off criticism and, ultimately, achieve greater autonomy (Busuioc 2010; Schillemans
2006).
In terms of negative dynamics, we observe that an overload of formal
accountability arrangements can restrict actual autonomy, hampering growth.
Whereas accountability arrangements are meant to prevent abuse of power
and bureaucratic pathologies, they are not meant to come at the price of an
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agency’s expert judgement (one of the main reasons to delegate tasks in the first
place) and its operational flexibility (another reason for delegation), thus undermining its credibility and effectiveness (Majone 1996). For instance, as observed
in the case of Europol, the requirements for amendments to the Europol Convention resulted in sluggish decision-making and had a considerable impact on
the ability of the body to ‘deliver’, demonstrate added value and ultimately on
its autonomy.
In turn, autonomy can also have an impact on accountability. Interestingly,
but counterproductively, low levels of actual autonomy can generate dynamics
resulting in high or intensive levels of de facto accountability. To elaborate, an
agent that has failed to demonstrate its value added and gain credibility, and,
thus, has achieved a low level of actual autonomy, will lack trust from its political principals and the executive actors involved in its operations. The kneejerk reaction, as illustrated by the case of Europol, is to increase the intensity
of accountability, to micromanage the organization. Apart from being relatively
costly for principals, this is often counterproductive, notably when it comes to
relations with national counterparts, and feeds into a vicious circle as it further
reinforces the agency’s low degree of actual autonomy, stifling its development
(Groenleer 2009; Moe 1987).
Finally, in terms of the structure of accountability, it appears that all actors who
have a stake in the agency’s critical tasks, also those who cannot be formally subjected to its decisions or actions, need to be included in one way or the other in the
arrangements through which it is held to account. As the case of Europol shows,
arrangements that were skewed towards national actors, while likely to keep the
agency under control, were not considered acceptable by supranational actors
and the agency was perceived as unaccountable. This, in turn, impacted on the
credibility of the agency, its effectiveness and bred further distrust, not only
from supranational actors, but also from national ones, which in turn negatively
affected its autonomy, placing it on a very steep path to institutional growth.
Actors more easily accept outputs resulting from an accountability process in
which they have been able to provide inputs (cf. Joerges and Neyer 1997;
Majone 1996; Scharpf 1999). Ensuring a scheme of accountability between
the various institutional actors that not only fits the agent’s autonomy but is
also perceived as legitimate, thus seems key for EU agencies to strike a
balance between autonomy and accountability.
Biographical notes: Madalina Busuioc is a Post-doctoral researcher at the
Amsterdam Centre for European Law and Governance (ACELG) of the University of Amsterdam, the Netherlands. Deirdre Curtin is Professor of European
Law at the University of Amsterdam and director of the Amsterdam Centre
of European Law and Governance (ACELG). She also holds the part-time
Chair in European and International Governance at the Utrecht School of Governance of the University of Utrecht, the Netherlands. Martijn Groenleer is
Assistant Professor of Public Administration in the Faculty of Technology,
Policy and Management at Delft University of Technology, the Netherlands.
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ACKNOWLEDGEMENTS
The authors acknowledge funding received from the Netherlands Organisation
for Scientific Research (NWO). They are grateful for the useful comments of
the participants in a panel on agencies at the ECPR Fifth Pan-European Conference on EU Politics, Porto, 23–26 June 2010, and a workshop on agencies
organized by the Mannheim Centre for European Social Research (MZES),
16 –17 September 2010, and express their thanks to the editors of this collection
as well as two anonymous reviewers for their helpful suggestions to improve the
present contribution.
NOTES
1 Respondents originated from different EU countries and fulfilled a variety of positions within or outside the agency. They were interviewed in the period between
2005 and 2011. See for further details, Groenleer (2009: 80– 90) and Busuioc
(2010: 49 –58).
2 Convention Based on Article K.3 of the Treaty on European Union, on the Establishment of a European Police Office (Europol Convention), adopted on 26 July
1995.
3 Council Decision of 27 March 2000 authorising the Director of Europol to enter
into negotiations on agreements with third states and non-EU bodies; amended
by the Council decision of 6 December 2001 and the Council decision of 13
June 2002.
4 Article 34 of the Convention.
5 Interviews with management board representatives. The Hague, May 2007,
November 2007, January 2008.
6 Agreement between the USA and the European Police Office, Brussels, 6 December
2001; Draft Supplemental Agreement between the USA and the European Police
Office on the Exchange of Personal Data and Related Information, Brussels, 4
November 2002, 13689/02, Europol 82.
7 Council of the European Union, Mutual evaluation of the co-operation agreements
Europol-United States, 11502/05, Brussels, 27 July 2005, p. 11.
8 Telephone interview with former agency official, September 2006.
9 Commission of the European Communities, Communication from the Commission to the European Parliament and the Council, Democratic Control over
Europol, COM(2002)95final, Brussels, 26.2.2002.
10 Article 28(10) of the Europol Convention replaced by the Council Act of 27
November 2003.
11 Article 34(2) of the Europol Convention, as substituted by Article 18 of the Danish
Protocol, OJ C 002, 06/01/2004, P. 0003-0012.
12 See Council Conclusions of 12 October 2005.
13 OCSR 2005, Foreword by the Director, p. 3.
14 Interview with agency official, The Hague, December 2005.
15 Europol Annual Report 2006, p. 5. Also interview with agency official, The Hague,
December 2005.
16 Council Decision of 6 April 2009 establishing the European Police Office (Europol)
(2009/371/JHA), OJ L 121, 15.05.2009.
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AGENCY GOVERNANCE IN THE EU
17 Interviews with several agency officials, The Hague, February 2011.
18 Interviews with management board representatives, The Hague, January 2008 and
agency official, The Hague, October 2008.
19 Interviews with management board representatives, The Hague, May 2007 and
November 2007 and agency official, The Hague, October 2008.
20 Interview with management board representative, The Hague, January 2008 and
agency official, The Hague, October 2008.
21 Article 48 of the Europol Council Decision.
22 See CEPOL News Release, Non-Discharge Statement, Ref: 60/2010/Director, 07
October 2010.
23 Communication to the European Parliament, the Council, the European Economic
and Social Committee and the Committee of the Regions, Action Plan Implementing the Stockholm Programme, COM (2010) 171, 20 April 2010.
24 Interviews with several agency officials, The Hague, February 2011.
25 Article 10 of Protocol No. 36 on Transitional Provisions.
26 Interviews with several agency officials, The Hague, February 2011.
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EU-level agencies: new executive
centre formation or vehicles for
national control?
Morten Egeberg and Jarle Trondal
ABSTRACT The jury is still out with respect to whether European Union (EU)level agencies act primarily as tools of national governments or not, although parts of
the literature as well as the legal framework of EU agencies seem to favour the former
interpretation. We argue that EU agencies which might be able to act relatively independently of national governments and the Council, but not necessarily independently from the Commission, would contribute to executive centre formation at
the European level and thus to further transformation of the current political-administrative order. By measuring along several dimensions, we demonstrate that the
Commission constitutes by far the most important partner of EU agencies. EU
agencies deal (somewhat surprisingly) to a considerable extent with (quasi-) regulatory and politicized issues. When engaging in such areas, national ministries and the
Council tend to strengthen their position, however, not to the detriment of
the Commission. In addition to the Commission, national agencies make up the
closest interlocutors in the daily life of EU agencies, indicating how EU-level
agencies become building blocks in a multilevel Union administration, partly
bypassing national ministries. We build our analysis on an on-line survey among
senior officials in EU agencies.
INTRODUCTION
One of the interesting research questions as regards European Union (EU)
agencies is the extent to which they contribute to transformation of the existing
European political-administrative order: do they bring this order further away
from the inherited intergovernmental order, or do they, on the contrary, actually contribute to sustaining patterns of this order by being vehicles for nationstate control? Our argument is that EU-level agencies contribute to system
transformation to the extent that they are able to act relatively independently
of national governments or the (Union) Council. Thus, if one focuses on
system transformation in a European context, what matters is the extent to
which agencies are, in practice, autonomous from key components of an intergovernmental order, not whether they are autonomous in general. Developing
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AGENCY GOVERNANCE IN THE EU
close relationships and dependencies to institutions such as the (European)
Commission, or the European Parliament (EP) for that sake, might be highly
compatible with new executive centre formation at the European level and
thus with order transformation. By ‘new executive centre formation at the
European level’, we mean the establishing of executive bodies that are able to
act relatively independently of national governments.
If we take a short look at nascent federal states, such as the USA in the nineteenth century, at the history of European integration or at contemporary
regional (international) organizations outside Europe, establishing central
executive bodies outside the realm of the constituent states seems to have
been the ‘hard case’: in the USA, a federal executive branch with sufficient
action capacity was not in place in Washington before at the end of the nineteenth century, thus long after Congress and the Supreme Court were well
established in the city (Skowronek 1982). And Europe had experienced international organizations for about a century before the advent of the Commission.
In its early history, the Commission faced challenges of an almost existential
character, for example, during the ‘empty chair crisis’ in 1965 (Loth 2007).
And none of the hundreds of international organizations has yet a comparable
body among its institutions (Schiavone 2008). Thus, it seems to have been politically more feasible to set up parliamentary assemblies and courts of justice at a
new centre than executive bodies. The reason for this reluctance among constituent states may be found in the fact that while such assemblies and courts
may generate talk and formal decisions, executive bodies, on the other hand,
usually entail real action capacity. Thus, the latter may be seen as more threatening and challenging to state power and autonomy.
In this paper, which builds on a (questionnaire) survey among senior officials
in 16 EU agencies within what was formerly the first pillar, we show that EUlevel agencies are involved in regulatory or ‘quasi-regulatory’ tasks, not only in
technicalities, data collection or network facilitation. Although embedded in a
complex, institutional environment consisting of other EU bodies, national
ministerial departments and national agencies, international organizations as
well as interest groups, EU agencies tend to be much closer to the Commission
than to any other institution surrounding them. The pivotal role of the Commission in the daily life of EU agencies becomes even more evident within
policy areas in which the Commission itself disposes over considerable organizational resources. Moreover, we demonstrate that national agencies are closer
interlocutors than ministerial departments, indicating that EU agencies constitute some of the building blocks of a multilevel and integrated Union administration, partly circumventing ministerial departments (Curtin and Egeberg
2008; Egeberg 2006; Hofmann and Türk 2006; Trondal 2010), and particularly so at the implementation stage of the policy process. Finally, we are able
to control our findings for the extent to which an issue area is characterized
by political debate and attention, and also for if work tasks (function) make a
difference. Under politicization, formal political institutions such as the Commission, Council, EP and national ministries seem to increase their influence;
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AGENCY GOVERNANCE IN THE EU
however, the Commission keeps its leading role. Also among those managers
who are much involved in regulatory tasks, the concerns of the Commission
are the concerns most emphasized.
We proceed from here by first, in the next section, presenting our hypotheses
based on an organization theory argument. This section is followed by a method
part in which we discuss some of the challenges that seem to accompany an élite
survey such as this one. Then, we give the empirical analysis before we reach the
concluding discussion.
AGENCY BEHAVIOUR: EXPECTATIONS FROM AN
ORGANIZATION PERSPECTIVE
The special issue of Journal of European Public Policy on EU-level agencies in
1997 (vol. 4, no. 2) contributed to a quantum leap in the study of EU-level
agencies. Since then, however, only a few studies have offered a comprehensive
diagnosis of how EU-level agencies operate both as regards intra-institutional
affairs and with respect to inter-institutional roles vis-à-vis pre-existing power
structures (e.g. Busuioc 2010; Groenleer 2009; Trondal and Jeppesen 2008).
Current literature leaves the impression that research on EU-level agencies has
so far been very much centred on exploring their formal and legal structures as
well as their establishment and reform (Geradin and Petit 2004; Kelemen
2002; Krapohl 2004; Randall 2006; Thatcher and Stone Sweet 2003; Vos
2000). The actual decision-making dynamics that unfold within and around
EU-level agencies seem, however, to have received scant scholarly attention.
And, those authors who do focus on the daily life of these bodies tend to interpret the role of EU-level agencies in the overall EU polity quite differently: on
the one hand, agencies are portrayed as tools of national governments and as
being under the control of governments (Christensen and Nielsen 2010;
Groenleer et al. 2010: 1227; Kassim and Menon 2010; Krapohl 2004) or
as entities that primarily run networks among national agencies (Dehousse
1997). Thus, governments may have accepted the need for more uniform
practising of EU legislation, but in order to achieve this, they have devised
instruments that remain under their control instead of transferring more
power to the Commission. In a later article, Dehousse (2008) described EU
agencies as subject to several political institutions (Council, Commission
and EP), arguing that under such circumstances, strong agencies at the EU
level are rather unlikely. On the other hand, others have found EU agencies
to be able to act relatively autonomously, not least in situations in which
they may provide valuable expertise (Gehring and Krapohl 2007; Groenleer
2009).
At first glance, the formal structure of EU agencies gives an impression of
bodies solidly anchored within the realm of national governments: management boards are, in general, dominated by member state representatives as
regards composition, and agency mandates seem overwhelmingly ‘soft’ in
the sense that they are, with few exceptions, concentrating on information
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AGENCY GOVERNANCE IN THE EU
and data gathering and network facilitation (Barbieri and Ongaro 2008;
Busuioc 2010; Wonka and Rittberger 2010: 745). Arguably, though, a
closer look at the organization may nuance this picture considerably: concerning EU agencies’ lack of formal regulatory competences, scholars have
reminded us not to underestimate the actual role that agencies might play
in regulatory affairs owing to their role as providers of expertise and information (Majone 1997; Shapiro 1997). An interesting example is the role
that EU agencies might play as regards training of national agency personnel
in order to make law application more uniform across Europe (Groenleer
et al. 2010; Gulbrandsen 2011). Given that international administrations,
in general, seem to be able to expand their tasks at their own initiative
(Barnett and Finnemore 2004), and that this also seems to hold for EU
agencies (Groenleer 2009), we expect to find somewhat more involvement
in regulatory, or ‘quasi-regulatory’, tasks than formally prescribed. The
more emphasis on the latter, the more agencies might be seen as possible components of centre formation.
Let us now turn to the management boards: in terms of composition, they
are most typically strongly dominated by member state representatives.
However, for the most part, directors of national agencies in the respective
policy fields make up those representatives (Busuioc 2010). Compared with
their counterparts in ministerial departments, they are, owing to their organizational position, at arm’s length from ministers, significantly less sensitive to
political steering and signals from above. Instead, professional concerns and
considerations tend to have the highest priority (Egeberg and Trondal
2009a). It may follow from this that their representational role on management boards is more ambiguous than usually thought. Moreover, one has to
take into consideration that their board membership is a highly secondary,
part-time activity on top of an already demanding chief executive position.
A study shows that they are, in general, relatively ill prepared and little
involved in discussions at board meetings (Busuioc and Groenleer forthcoming, 2012). Commission board members are often better prepared and
informed (Busuioc 2010; Groenleer 2009). In addition, a board meeting’s
size (up to a 100 participants, including advisors, etc.) and relatively few
meetings (about 3– 4 meetings a year) make thorough discussions and coordinated opposition in relation to the head of the EU agency rather unlikely. Thus, although EU-agency directors may have limited formal powers,
they are, in practice, not that frequently restrained by their respective
boards (Busuioc and Groenleer forthcoming, 2012). On this background,
we do not expect boards to be dominating actors in the life of agencies.
The less dominant they are, and the more important we observe actors
such as the Commission, EP and transnational interest groups to be, the
more EU agencies take part in centre formation.
Contrary to management board members, EU-agency personnel have the
EU-level body as their primary organizational affiliation. Even if a lot of them
are seconded from national administrations and on temporary contracts, it is,
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on the basis of what we know about comparable organizations, reason to believe
that their primary loyalty is to the EU agency (Trondal et al. 2008). Which
institutions in the environment can agency decision-makers be expected to
feel a certain nearness to? Whose concerns will they pay attention to in particular? Possible expectations might be derived from the way the EU polity is organizationally specialized: according to the sectoral principle, we expect EU
agencies to engage primarily with institutions or parts of institutions within
their own issue area, for example, with the relevant directorate general (DG)
in the Commission, the relevant EP committee or national agencies in the
same policy sector. Within their own issue area, they can, according to the functional principle, be expected to develop particularly strong relationships with
institutions that share their functions, namely bodies in charge of policy
implementation and, to a certain extent, those responsible for policy preparation, for example, the Commission and national agencies. If we then
combine the sectoral and the functional principles, and, in addition, take into
consideration that EU-agency managers have EU-level institutions as their
primary affiliation, our expectation is that the concerns of the Commission
will have the highest priority among EU-agency managers (except for their
own agency). If this is the case, we interpret such a finding as indicating
centre formation. Next, we expect to observe rather close co-operation with parallel national agencies.
The extent to which EU-agency managers assign weight to the concerns of
various institutions and regard them as more or less pivotal in the policy
process might be contingent upon several factors. First, the phase of the
policy process may make a difference: for example, we expect institutions
such as the Council and the EP to be more central at the stage of policy formulation than that of implementation. Moreover, we expect the role of the Commission to be even more important in situations where it has organizational
resources partly overlapping EU-agency portfolios. This so-called duplication
effect is well documented at the national level between ministerial departments
and agencies (Egeberg and Trondal 2009a, 2009b). Finally, one could argue
that if topics are really politicized, governments would in the end take centre
stage. Thus, we look at whether high levels of political attention and debate
tend to increase the role of national governments and the Council to the detriment of institutions such as the Commission, EP or transnational groups. In the
same vein, we investigate whether regulatory or non-regulatory tasks make a
difference in this respect.
In summary, we expect to find that national governments play a less dominant role in the daily life of EU agencies than parts of the literature and the composition of management boards could lead us to believe. Since EU-agency
personnel, such as Commission personnel, have their primary organizational
affiliation at the EU level, they may be more inclined to take the concerns of
their respective sectoral DGs into consideration than the concerns of any
other institution.
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AGENCY GOVERNANCE IN THE EU
DATA AND METHOD
Our study was planned in 2009 as an on-line questionnaire survey among senior
officials in what was formerly categorized as ‘Community’ or ‘First Pillar’
agencies. Second and Third Pillar agencies were left out owing to the ratification
of the Lisbon Treaty: this treaty dismantled the so-called pillar structure and we
wanted to avoid confusion as regards how to interpret results from agencies that
may find themselves in a period of transition. Among the 22 Community
agencies (in 2009), 19 were selected for investigation. The three not included
were considered less relevant from a policy analysis point of view, for
example, the Translation Centre for the Bodies of the European Union.
However, two agencies did not respond to our initial letters (European
Network and Information Security Agency and Community Fisheries
Control Agency), and one agency was impossible to contact (European Institute
for Gender Equality). Thus, we ended up covering 16 agencies.
A formal letter that shortly introduced our project was sent to all agency heads
(chief executives) in order to, hopefully, legitimize the project but also to give
them an opportunity to keep their agency outside the project if deemed desirable. In November 2009, about half of the agencies had made staff contact
information available on their website. The rest were kindly asked to provide
the necessary email addresses. Three agencies refused to give us the addresses
and insisted on distributing themselves a paper version of the questionnaire
among relevant personnel. ‘Senior officials’ were defined as employees occupying positions equivalent to head of unit, or above, in the Commission. Based on
this background, agencies were asked to select the relevant staff members.
There are at least two reasons for focusing on senior officials in our project.
First, we expected a considerable proportion of personnel employed in highly
specialized bodies such as EU agencies to deal with rather technical issues. By
concentrating on the manager group, we hoped to reach people who are relatively more involved in policy-making activities. Second, we believe that institution leaders are becoming increasingly sensitive to the extra work burden
that questionnaire studies might cause to their institution. Thus, by significantly
narrowing down the sample size, we hoped for more understanding as regards
our own study. Moreover, although senior officials make up a relatively limited
number of respondents, they, arguably, can be seen as persons who are
‘summing up’ on behalf of a much larger number of people within their respective portfolios.
The questionnaire was circulated in January 2010 and, after three reminders,
we had received 54 responses. All agencies were represented among the respondents, varying between 1 and 7 respondents per agency (mean ¼ 3.4; median
¼ 3). The exact response rate is, unfortunately, impossible to calculate. The
reason is that we do not know the universe within those three agencies which
refused offering lists of senior officials and their addresses. However, the
response rate among those who replied electronically is 45 (see Appendix).
Moreover, a fairly low N does not allow for separate analyses of each agency.
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One caveat is needed: as in most social sciences based on interview and survey
data, the observations reported in this paper rest on the perceptions of the respondents. Admittedly, there are no guarantees that actors’ perceptions of behaviour
are always reflecting actual behaviour. Studying actors’ perceptions renders the
conclusions vulnerable to perceptual errors. However, perceptions serve as cognitive and normative frames for action, rendering it more likely than not that particular behavioural dynamics are associated with certain perceptional patterns
(Aberbach et al. 1981: 86; Van Knippenberg and Van Leeuwen 2001: 250).
EMPIRICAL FINDINGS
Are EU agencies mainly dealing with technical issues of a non-regulatory nature
or do we see a task expansion where EU agencies also deal increasingly with
regulatory portfolios? Table 1 shows how EU-level agency managers spend
their time on various tasks.
Studies show that EU-level agencies established in the first wave of agencification were basically stripped of regulatory responsibilities, whereas agencies
erected in the EU post 2000 have been increasingly assigned quasi-regulatory
Table 1 EU agencies’ tasks, ranked by the amount of time being spent by EU-agency
managers on the following tasks (% reporting ‘a fair amount’ or ‘very much’)a
A fair amount
or more
Information, data, statistics
Agency budget/resource
allocation
Facilitating co-operation
among national agencies in
the field
Personnel policy: recruitment,
promotion
Deciding on individual cases
Preparing individual cases for
the Commission
Issuing guidelines on national
application of EU law
Preparing new/changing EU
legislation
Involving in national agencies’
handling of individual cases
Fairly
Somewhat little or less
Total
57
54
20
26
22
20
100 (54)
100 (54)
51
16
33
100 (49)
46
20
33
100 (54)
26
22
14
24
60
53
100 (42)
100 (45)
17
7
76
100 (41)
15
24
61
100 (46)
10
13
77
100 (39)
Notes: Original question: ‘Concerning your own issue area: how much time is being
used on the following tasks?’
a
Original scale: very little/nothing (value 1), fairly little (value 2), somewhat (value
3), a fair amount (value 4) and very much (value 5).
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AGENCY GOVERNANCE IN THE EU
functions (Schout forthcoming, 2012). Still, information, networking and
internal administrative tasks rank top among current EU agencies. In addition,
however, Table 1 reveals that despite focusing heavily on non-regulatory tasks,
EU agencies have also experienced task expansion into regulatory or quasi-regulatory areas – such as deciding on individual cases, preparing individual cases
for the Commission, issuing guidelines on national application of EU law
and involving in national agencies’ handling of individual cases. Similar observations were made in a survey among national agency heads: their involvement
with EU-level agencies clearly points beyond information gathering and
exchange. That study also suggested that the role of EU-level agencies in the
implementation of EU decisions is not ‘only’ about formulating guidelines
but also about involving in individual cases dealt with by national agencies
(Egeberg et al. forthcoming, 2012). By combining what can be categorized as
regulatory or quasi-regulatory tasks in Table 1 (i.e. deciding on individual
cases, preparing individual cases for the Commission, issuing guidelines on
national application of EU law, preparing new/changing EU legislation and
involving in national agencies’ handling of individual cases), we find, in fact,
that as many as 50 per cent of the senior officials spend much of their time
on regulatory or quasi-regulatory tasks.
How influential then are the management boards of EU-level agencies in
comparative terms? Table 2 shows how senior officials assess the power structures surrounding EU agencies, and it does so by comparing these structures
as regards policy formulation as well as implementation.
Table 2 unveils that institutional influence is clearly patterned, as could be
predicted, by the EU policy-making cycle. In the policy formulation phase,
the ‘parent’ Commission DG, the standing committee in the EP in the relevant
policy area and the Council are seen as particularly influential. At the policy
implementation stage, by contrast, influence is tilted relatively towards one’s
own agency and national agencies, although the Commission is considered to
be the most powerful institution outside one’s own agency also at this
stage. However, it might be the case that respondents tend to assign too
much weight to their own organization: our respondents’ assessment is not
shared by national agency personnel who rank EU agencies far below national
ministries, national agencies and the Commission in terms of influence at the
rule application stage (Egeberg and Trondal 2009b: 786; Egeberg et al.
forthcoming, 2012).
Clearly, management boards do matter in the daily life of EU agencies. But
they do not seem to be dominant in any way: our senior officials tend to perceive
them as less powerful than the agencies themselves and far less powerful than the
external institution seen as most influential in both phases of the policy process,
namely the Commission. Now, arguably, even if the Commission is considered
as most influential within one’s own issue area, this does not necessarily mean
that the EU agency as such is not under tight national control. We must remember, however, that the Commission is, most commonly, represented on management boards, and it is highly likely that the institution generally considered as
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Table 2 Per cent of EU-agency managers who perceive the following institutions to
be influential (% reporting ‘a fair amount’ or ‘very much’) when it comes to policy
formulation (developing new/changing existing EU policies and legislation) and
concerning policy implementation (practising EU policies/applying EU legislation)a
Own agency
The agency’s management board
The Commission DG(s) within own issue
area
Other Commission DGs
The standing committee of the EP within
own issue area
Council of the European Union
National agencies
National ministries
National interest groups
European/transnational interest groups
International governmental organizations
Mean N
Policy
formulation
Policy
implementation
53
45
86
77
51
69
34
58
22
15
70
37
33
18
33
33
49
24
61
50
15
23
23
49
Notes: Original question: ‘Concerning your own issue area, how influential are the
following institutions/actors when it comes to policy formulation (developing new/
changing existing EU policies and legislation)’ and ‘when it comes to policy
implementation (practicing EU policies/applying EU legislation)?’
a
Original scale: very little/no influence (value 1), fairly little influence (value 2),
somewhat influential (value 3), a fair amount of influence (value 4) and very
influencial (value 5).
the most powerful will make its voice heard at board meetings. As has been
already discussed above, Commission board members also tend to be better prepared and informed compared with national representatives (Busuioc 2010;
Groenleer 2009).
Next, Table 3 reports the contact patterns of EU-agency managers.
Once more, the pivotal role of the Commission becomes evident, and in particular, that of the ‘parent’ DG, in the daily life of EU-level agencies. National
agencies and European (transnational) interest groups constitute key interlocutors. Since the main activities of EU agencies are more on the implementation
side than on the policy formulation side, it makes sense that the EP and the
Council are less contacted.
Another more direct way to measure the extent to which EU agencies are
under the control of national governments or not is to ask EU-agency managers
about whose concerns they pay attention to when exercising discretion in their
work. The results are given in Table 4. Care should, however, be taken when
interpreting the results. Perceptions of actor influence (see Table 2) are different
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AGENCY GOVERNANCE IN THE EU
Table 3 Distribution of types of contact (e.g. meetings, emails and phone calls) of
EU-agency managers within their own issue area (% reporting ‘a fair amount’ or ‘very
much’)a
The Commission DG(s) within own issue area
Other Commission DGs
The standing committee in the EP within own issue area
The Council
National agencies
National ministries
National interest groups
European/transnational interest groups
International governmental organizations
Mean N
70
30
8
10
55
21
14
49
34
51
Notes: Original question: ‘Concerning your own issue area, how often is contact
made (e.g. meetings, emails, phone calls) with the following institutions?’
a
Original scale: very seldom/no contact (value 1), fairly seldom (value 2), somewhat
seldom (value 3), a fair amount (value 4) and very much (value 5).
Table 4 Percentage of EU-agency managers who consider the following concerns/
considerations to be important when they exercise discretion in their work
(% reporting ‘fairly important’ or ‘very important’)a
The concerns of own agency
Professional/expert considerations
The concerns of national agencies
The concerns of national ministries
The concerns of the Council
The concerns of the Commission DG(s) within own issue area
The concerns of other Commission DGs
The concerns of the standing committee in the EP within own issue area
The concerns of affected clientele
The concerns of my country of origin
Mean N
94
78
39
41
33
77
33
40
70
0
50
Notes: Original question: ‘How important are the following concerns/considerations
when you exercise discretion in your work?’
a
Original scale: very little/not important (value 1), fairly unimportant (value 2),
somewhat important (value 3), fairly important (value 4) and very important
(value 5).
from concerns taken into considerations by the same actors (Table 4). In the
former case, respondents are informants about the relative influence of various
actors. In the latter case, our informants report about their own behaviour:
whose concerns they take into consideration when exercising discretion in their
work. Thus, the results given in Tables 2 and 4 are, not surprisingly, different.
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Table 4 suggests that our senior officials tend to consider the concerns of their
own agency as most important when they exercise discretion in their work. On
the one hand, this might be seen as not that surprising. It may indicate that EU
agencies may have their own will and that they may be more than mere tools in
the hands of governments or other external institutions. Quite consistent with
our findings with regards to influence assessment and contact patterns (Tables
2 and 3), Table 4 also substantiates the key role of the Commission for EU
agencies. Moreover, Table 4 highlights the large proportions of our respondents
who assign weight to professional (expert) considerations and the concerns of
affected clientele. Not a single manager reports that he or she pays particular
attention to the concerns of his or her country of origin.
As has been discussed above, it is well documented at the national level that
the sensitivity of agencies towards political signals from (parent) ministerial
departments increases the more organizational capacity the department disposes
over within the respective issue areas (‘organizational duplication’). We investigated whether this holds even at the EU level. A fairly high percentage (30 per
cent) of agency managers report that organizational units that cover their own
issue area to a large extent exist within the Commission. Thus, we expect a positive relationship between the existence of relevant organizational capacities
within the Commission and the actual power of the Commission within
various policy fields. Our data support this prediction regarding both the
policy formulation phase and the policy implementation phase, although the
relationships are not statistically significant. Commission DGs within relevant
issue areas of EU agencies tend to be perceived as more influential when organizational duplication exists (Pearson’s r ¼ 0.09 as regards policy formulation
and 0.26 as regards policy implementation). A similar effect, now statistically
significant, is observed with respect to agency managers’ emphasis on concerns
of parent DGs (Pearson’s r ¼ 0.40).
So far, our data indicate that EU agencies do not find themselves in an institutional environment which is clearly dominated by national governments. On
the contrary, the Commission stands out as more pivotal in the daily life of these
agencies. One could argue, however, that such a portrayal might become less
accurate as soon as EU agencies embark on less ‘trivial’ activities: what
happens when they start to adopt regulatory or quasi-regulatory tasks rather
than mere information gathering and network facilitation? We remember that
half of the EU-agency managers today spend much of their time on regulatory
or quasi-regulatory tasks, thus making it possible to investigate whether the type
of task makes a difference with respect to the pattern we have observed. Table 5
shows that the Council and national ministries are seen as only marginally more
influential by those who deal extensively with (quasi-)regulatory tasks than by
those who do not deal much with such issues. The management board, as
well as the EP, though, seems to play a less significant role in the regulatory
field. The Commission apparently upholds its leading position at both stages
of the policy process, and EU agencies are seen to strengthen their influence
as regards implementation. Table 6 mainly confirms this pattern: EU-agency
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Table 5 Correlations between agency tasksa and EU-agency managers’ perceptions
of institutional influenceb when it comes to policy formulation and policy
implementation (Pearson’s r)
Policy
formulation
Own agency
The agency’s management board
The Commission DG(s) within own issue
area
The standing committee in the EP within
own issue area
The Council
National ministries
National agencies
Policy
implementation
20.05
20.24
0.03
0.29
20.09
0.11
20.23
20.44∗∗
0.09
0.04
20.08
20.03
0.11
0.15
Notes:
Regulatory tasks refer to the extent to which agency managers spend ‘a fair
amount’ or ‘very much’ time on one or more of the following tasks: deciding on
individual cases, preparing individual cases for the Commission, issuing guidelines
on national application of EU law, preparing new/changing EU legislation and
involvement in national agencies’ handling of individual cases (see Table 1). This
variable is dichotomized as follows: regulatory tasks combine the following original
values: a fair amount (value 4) and very much (value 5). Non-regulatory tasks
combine the following original values: very little (value 1), fairly little (value 2) and
somewhat (value 3).
b
This variable applies the following five-point scale: very little/not important (value
1), fairly little importance (value 2), somewhat important (value 3), fairly important
(value 4) and very important (value 5).
∗∗
p ≤ 0.01.
a
managers in the regulatory field tend to pay relatively more attention to the concerns of national bodies; however, the concerns of the Commission loom particularly high on our respondents’ agenda.
A similar argument could be advanced as regards potential effects of politicization: studies of administrative behaviour at the national level have demonstrated that formal political bodies such as ministries tend to strengthen their
grip on ‘semi-detached’ agencies if issues are contested and subject to public
debate (Egeberg and Trondal 2009a, 2009b). Do we see a parallel in our
context? Does politicization boost the importance of formally political
bodies? Do national governments resume control of the policy process under
such circumstances? First, Table 7 reveals that EU-level agencies do not primarily work on non-politicized issues. A majority of the agency managers, in fact,
report that their issue area is, to a considerable extent, characterized by public
debate and political attention.
As predicted, Table 8 shows that formally political bodies such as the Commission, national ministries, the EP (policy formulation stage) and the Council
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Table 6 Correlations between agency tasksa and EU-agency managers’ emphasis on
the following concerns/considerationsb when they exercise discretion in their work
(Pearson’s r)
The
The
The
The
The
The
concerns
concerns
concerns
concerns
concerns
concerns
of own agency
of national agencies
of national ministries
of the Council
of the Commission DG(s) within own issue area
of the standing committee in the EP within own issue area
20.02
0.19
0.23
0.04
0.30∗
20.18
Notes:
a
Regulatory tasks refer to the extent to which agency managers spend ‘a fair
amount’ or ‘very much’ time on one or more of the following tasks: deciding on
individual cases, preparing individual cases for the Commission, issuing guidelines
on national application of EU law, preparing new/changing EU legislation and
involving in national agencies’ handling of individual cases (see Table 1). This
variable is dichotomized as follows. Regulatory tasks combine the following
original values: a fair amount (value 4) and very much (value 5). Non-regulatory
tasks combine the following original values: very little (value 1), fairly little (value
2) and somewhat (value 3).
b
This variable applies the following five-point scale: very little/not important (value
1), fairly little importance (value 2), somewhat important (value 3), fairly important
(value 4) and very important (value 5).
∗
p ≤ 0.05.
Table 7 Per cent of EU-agency managers reporting own issue area being
characterized by public debate and political attention (political salience)
Very much
Fair amount
Somewhat
Fairly little
Very little
Total
26
35
17
17
6
100 (54)
Note: Original question: ‘To what extent is your issue area characterised by public
debate and political attention?’
(policy implementation stage) tend to be perceived as more influential when
issues become politicized. This is particularly evident as regards national ministries. However, among these political institutions, the Commission keeps its
superior role also when politicization takes place: 94 per cent of those who
deal extensively with politicized issues consider the Commission as particularly
influential at the policy formulation stage, while 81 per cent do the same as
regards implementation. Comparable figures as regards the influence of national
ministries are 42 and 63 per cent, respectively. Third, this pattern is highly confirmed by Table 9, which shows the relationship between the concerns paid
attention to and political salience of issue areas: the concerns of formally political bodies such as ministries, the EP and the Council are significantly more
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Table 8 Correlations between political saliencea and EU-agency managers’
perception of institutional influenceb when it comes to policy formulation and policy
implementation (Pearson’s r)
Policy
formulation
Own agency
The agency’s management board
The Commission DG(s) within own issue
area
The standing committee in the EP within
own issue area
The Council
National ministries
National agencies
Policy
implementation
20.08
0.05
0.19
20.17
20.15
0.18
0.10
0.01
20.05
0.42∗∗
20.04
0.12
0.52∗∗
0.36∗
Notes:
a
This variable has the following values: very little (value 1), fairly little (value 2),
somewhat (value 3), a fair amount (value 4) and very much (value 5).
b
This variable applies the following five-point scale: very little/not important (value
1), fairly little importance (value 2), somewhat important (value 3), fairly important
(value 4) and very important (value 5).
∗
p ≤ 0.05; ∗∗ p ≤ 0.01.
emphasized when issues get contested. The same holds with respect to the Commission, although the relationship is not statistically significant. Still, however,
the concerns of the Commission are most highly ranked among EU-agency
managers dealing extensively with politicized issues (except for the concerns
Table 9 Correlations between political saliencea and EU-agency managers’
emphasis on the following concerns/considerationsb when they exercise discretion
in their work (Pearson’s r)
The concerns of own agency
Professional/expert concerns
The concerns of national ministries
The concerns of national agencies
The concerns of the Commission DG(s) within own issue area
The concerns of the standing committee in the EP within own issue area
The concerns of the Council
20.21
0.13
0.49∗∗
0.17
0.15
0.37∗
0.33∗
Notes:
a
This variable has the following values: very little (value 1), fairly little (value 2),
somewhat (value 3), a fair amount (value 4) and very much (value 5).
b
This variable applies the following five-point scale: very little/not important (value
1), fairly little importance (value 2), somewhat important (value 3), fairly important
(value 4) and very important (value 5).
∗
p ≤ 0.05, ∗∗ p ≤ 0.01.
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AGENCY GOVERNANCE IN THE EU
of the EU agencies themselves): 81 per cent report the concerns of the Commission to be important, 52 per cent mention national ministries and 41 per cent
mention the Council.
CONCLUDING DISCUSSION
We started out asking whether EU-level agencies contribute to transformation of
the existing European political-administrative order or not: do they bring this
order further away from the inherited intergovernmental order, or do they, on
the contrary, actually contribute to sustaining patterns of this order by being
vehicles for nation-state control? As pointed out above, the literature so far has
provided different answers to this important question. Our argument is that
EU-level agencies contribute to system transformation to the extent that they
are able to act relatively independently of national governments or the Council.
Thus, if one focuses on system transformation in an EU context, what matters
is the extent to which agencies are, in practice, autonomous from key components
of an intergovernmental order, not whether they are autonomous in general.
Developing close relationships and dependencies to institutions such as the
Commission might be highly compatible with new executive centre formation
at the European level and thus with order transformation.
Our main conclusion is that EU-level agencies find themselves much closer to
the Commission than to the Council and national ministries. This seems to be
the case not only as regards interaction but also as regards whose concerns
agency managers take into consideration when exercising discretion. In that
sense, agencies can be said to contribute to additional executive centre formation
at the European level and thus to bring the existing political-administrative
order further away from an intergovernmental order. It is harder to assess the
extent to which EU agencies are able to translate their own will into practice:
on the one hand, EU-agency managers assign much weight to the role of
their respective agencies in the policy process, and particularly so as regards
the implementation stage. On the other hand, as we have seen, this ‘positive’
self-assessment is not shared by national agency personnel. Management
boards do matter in the daily life of EU agencies, but they do not seem to constitute a dominant component. In terms of composition, boards are dominated
by national representatives, however, the institution generally perceived as most
powerful, the Commission, is also on the board. The influence of the Commission tends to increase the more organizational resources the parent DG disposes
over within the respective fields.
It has been demonstrated that EU agencies’ agendas encompass more than
information gathering (which, arguably, is not necessarily unimportant in the
policy process) and network facilitation: as many as half of the senior officials
spend much of their time on (quasi-) regulatory tasks. Moreover, more than
half report that their issue area is much characterized by political debate and political attention. We found that in areas marked by less soft modes of governance
and more politicized issues, national ministries in particular tend to strengthen
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their position, however, not to the detriment of the Commission, which also
tends to grow in importance. The pattern is rather consistent across dimensions:
nothing indicates that power relationships are dramatically reversed under the
given conditions. In fact, the pivotal role of the Commission may have been
somewhat underestimated in our analysis since we have only included the
‘parent DG’ in our discussion. As we have documented, other DGs are not
without importance. However, the fact that the role of ministries tends to
increase when issues become contested may illustrate that control procedures,
such as management boards, can be more activated if needed.
We have suggested that EU agencies’ close relationship with particular Commission DGs might be partly explained by organizational factors at the EU level:
both are organized according to the same purpose (sector), the same function
(executive) and the same territorial level (EU level). Our study seems to substantiate Groenleer’s (2009) findings, indicating that EU agencies increasingly
tend to relate to particular ‘parent DGs’ (cf. also Martens 2010). That would
imply a kind of ‘normalization’ of Commission –agency relationships, in the
sense that they become more similar to those observed at the national level
between ministerial departments and ‘their’ respective agencies.1 Moreover,
the fact that European (transnational) interest groups score higher than national
interest groups on all dimensions underpins the centre formation thesis.
In addition to the Commission, both the Council and the EP constitute
important parts of EU agencies’ institutional environment, particularly in the
policy formulation phase. However, when it comes to implementation and
daily interaction, EU agencies’ key interlocutors are primarily the Commission
and national agencies. This configuration illuminates how EU-level agencies
increasingly make up building blocks of a multilevel and integrated Union
administration, partly circumventing ministerial departments (Egeberg 2006;
Hofmann and Türk 2006; Trondal 2010). Such organizational forms, which
are more conducive to direct implementation, do not, however, seem to
replace previous forms built around indirect implementation. Basic components
of the intergovernmental, indirect implementation structure, such as ministries,
remain key actors, thus showing that qualitatively different orders might co-exist
(Olsen 2007) and that the current executive order is indeed an accumulated or
compound order (Curtin and Egeberg 2008; Trondal 2010).
However, the system might be even more complex than portrayed so far: it
has been observed that EU agencies may adopt the role as executive body also
on behalf of global organizations, such as the International Civil Aviation
Organization (ICAO) in the area of aviation safety regulation (Chiti 2009).
Although not a topic in this paper, our data have shown that international
organizations are indeed part of the institutional environment of EU agencies,
although not at all to the same extent as, for example, the Commission. Nevertheless, an interesting question for future research could be whether EU-level
agencies are becoming ‘double-hatted’ in the sense that in addition to constituting obvious parts of the EU polity, they also make up parts of global governance
structures. We might see a striking parallel to the ‘doublehattedness’ observed as
105
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AGENCY GOVERNANCE IN THE EU
regards national agencies (Egeberg 2006): agencies at both levels relate directly
to institutions at a higher level of governance that are, arguably, partly based on
another logic of action: while national agencies have an additional hat linked to
Community institutions such as the Commission and EU agencies, EU agencies
may have an additional hat linked to international organizations, bringing
governments back in.
Biographical notes: Morten Egeberg is Professor of Political Science (Public
Policy and Administration) at the University of Oslo and holds a joint position
at the Department of Political Science and ARENA (Centre for European
Studies), Oslo, Norway. Jarle Trondal is Professor in Public Administration at University of Agder and at ARENA (Centre for European Studies), Oslo, Norway. He
is also Honorary Professor at the University of Copenhagen, Denmark.
ACKNOWLEDGEMENTS
The authors greatly acknowledge the financial support from EUROTRANS
(Transformation and Sustainability of European Political Order – The Norwegian Research Council). They cordially thank Mathias Johannessen for excellent
research assistance and Edoardo Chiti, Berthold Rittberger, Arndt Wonka and
two anonymous referees for their valuable comments. A previous version of this
paper was presented at the ARENA seminar, University of Oslo, 21 September
2010, the Workshop on ‘Agency Governance in the EU and its Consequences’,
University of Mannheim (MZES/RECON), 16 –17 September 2010, and the
ECPR Fifth Pan-European Conference, Porto, 24– 26 June 2010.
NOTE
1 A search on the Commission’s website showed that seven EU agencies were, in Commissioners’ job description, said to be under their authority. Some DGs present links
to particular EU agencies, and some name cabinet members with a special responsibility for particular agencies.
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APPENDIX
EU agencies surveyed: number of respondents and response rate
Agency
Community Plant Variety Office (CVPO)
European Food Safety Authority (EFSA)
European Foundation for the Improvement of
Living and Working Conditions (EUROFOUND)
European Environment Agency (EEA)
Office for Harmonization in the Internal Market
(OHIM)
European Monitoring Centre for Drugs and Drug
Addiction (EMCDDA)
European Agency for Safety and Health at Work
(EU-OSHA)
European Centre for Disease Prevention and
Control (ECDC)
European Railway Agency (ERA)
European Chemicals Agency (ECHA)a
European Maritime Safety Agency (EMSA)a
European Agency for the Management of
Operational Cooperation at the External
Borders of the Member States of the European
Union (FRONTEX)a
European Medicines Agency (EMA)
European Centre for the Development of
Vocational Training (CEDEFOP)
European Aviation Safety Agency (EASA)
Fundamental Rights Agency (FRA)
Total (all respondents)
Total (web respondents)
Respondents
(no.)
Response rate
(%)
4
2
4
67
7
33
1
7
17
100
7
87
2
40
3
50
4
2
1
3
67
–
–
–
4
3
57
30
4
3
54
48
66
43
–
45
Note: aQuestionnaires were circulated among senior officials by personnel in the
agency. The response rate could, therefore, not be calculated.
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Perspectives on EU governance: an
empirical assessment of the political
attitudes of EU agency professionals
Arndt Wonka and Berthold Rittberger
ABSTRACT European Union (EU)-level agencies have emerged as important
actors on the EU’s policy-making scene. To date, we know relatively little about the
personnel working in EU agencies: what attitudes do EU agency staff members
hold on issue-dimensions relevant for the EU integration process? How do they perceive of their role in EU policy-making? Moreover, we know little about the cohesiveness of attitudes of agency staff within and between different EU agencies. The aim of
this contribution is conceptually and empirically descriptive. It draws on original data
from an online survey of professionals working in EU agencies to gain insights into the
attitudes held by EU agency staff on three substantive attitudinal dimensions: conceptions relating to legitimate and accountable EU governance, conceptions about
the preferred level of centralization of political authority in the EU, as well as views
on economic governance in the EU. While the conceptual focus of this paper is on
attitudes and not on behaviour, the attitudes held by EU agency staff and their relative
homo- or heterogeneity is likely to affect perceptions and evaluations of the political
environment and interpretations of the challenges agency staff members face in their
substantive area of work. The findings of the survey will enable us to draw broader conclusions about the type and quality of accountability relationships as well as of the EU’s
democratic legitimacy. Moreover, the data will permit to inform arguments about
the actor quality of EU agencies, which are often conceived as efficient institutional
solutions to overcome credibility problems.
1. INTRODUCTION1
In an article published in 1973, Robert Putnam posed a rhetorical question
when asking whether there could be much doubt as to ‘who governs our
complex modern societies’ (Putnam 1973: 17). His argument that nonelected bureaucratic élites and their monopoly of policy-relevant information
and expertise had gained a position of dominance in the policy-making
process in modern societies is all but faintly echoed by contemporary scholarship which sees ‘the rise of the unelected’ (Vibert 2007) as a defining attribute
of our times. There is broad agreement among scholars that ‘non-majoritarian
institutions’ (Gilardi 2008; Majone 2001; Thatcher and Stone Sweet 2002),
such as regulatory agencies, central banks or constitutional courts, have been
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AGENCY GOVERNANCE IN THE EU
empowered to deliver better informed, more credible or even ‘fairer’ policy solutions to various public policy problems. Over the past decades, non-majoritarian institutions have thus come to play an ever more important role in affecting
the political agendas of modern government, both at the domestic as well as on
the international level.
In this contribution, we take a closer look at European Union (EU)-level
agencies, which have emerged as important actors on the EU’s policy-making
scene. Given the variable but undisputed impact of EU agencies on EU
policy-making, we know surprisingly little about the personnel working in
EU agencies. Who are the experts working in EU agencies, called upon to
deliver seemingly ‘technical’ opinions, which may nevertheless carry profound
political implications? How do they perceive of their role in the world of politics? Do professionals working in EU agencies see themselves primarily as ‘technocrats’ answerable merely to the scientific standards defined by their peers? Or
do they consider their profession as one, which is inherently ‘political’? Questions like these have occupied political scientists and élite theorists for a long
time: ‘Some have hailed technocracy as the wise and disinterested role of philosopher-kings, whereas others fulminated against technocrats as despots of a new
and peculiarly inhuman sort’ (Putnam 1977: 383; see also Centeno 1993).
The aim of this contribution is conceptually and empirically descriptive. It
draws on original data from an online survey of professionals working in EU
agencies to gain insights into the attitudes held by EU agency staff on three substantive attitudinal dimensions: conceptions relating to legitimate and accountable EU governance, conceptions about the preferred level of centralization of
political authority in the EU, as well as views on economic governance in the
EU. We thus approach the study of EU agencies by turning our attention to
the professionals working in EU agencies, and explore the content and relative
cohesiveness of their attitudes on the above-mentioned issues of European integration. The attitudes of agency professionals can be thought to have an effect on
the behaviour of individual agency staff members or agencies as collective actors
(Aberbach et al. 1981: 30 –3; Hooghe 2001: 11; Olsen 2008: 199), especially in
situations where no standard routines apply, for instance, in situations of high or
unprecedented technical complexity and, more generally, in situations of uncertainty (Denzau and North 2000: 33 –7; North 1990: 23). In contrast, in situations where professional assessments are uncontested, where administrative
rules offer clear behavioural guidelines in specific situations and where administrative and political leadership formulates a clear mandate and engages in active
supervision, the attitudes of agency professionals should carry less weight in the
activities of EU agencies. This paper, however, does not investigate the impact of
attitudes on agency professionals’ behaviour in policy-making.
This paper is organized as follows: in Section 2, we introduce three substantive dimensions of ideology in more detail: conceptions relating to legitimate
and accountable EU governance; conceptions about the preferred level of centralization of political authority in the EU; views on economic governance in the
EU. We follow Hooghe (2001) in deriving different analytically relevant
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categories to study the attitudes of agency staff on each dimension. Section 3
provides an overview of the online survey and information on our sample. In
Section 4, we present our empirical results by assessing the substantive
content and the relative cohesion of the attitudes of agency personnel along
the different political authority-relevant dimensions. We conclude by discussing
the implications of our findings for the study and analysis of ‘executive governance’ in the EU and other international organizations.
2. ASSESSING THE CONTENT AND COHESION OF IDEOLOGIES
OF EU AGENCIES’ STAFF
Our study will focus conceptually and empirically on different conflict dimensions that are of crucial importance in structuring political contestation in EU
politics, namely on how competencies and authority should be distributed
between the member state and the EU level and the extent to which political
authority should intervene in the economy (Marks and Steenbergen 2004).
Moreover, we will investigate the sources underpinning legitimacy and accountability of EU agency governance by exploring the attitudes agencies’ staff holds
when it comes to legitimizing their work and to holding EU agencies accountable. We will treat each of these dimensions in turn.
Legitimacy and accountability
Since agencies form part and parcel of the regulatory policy-making process in
the EU by providing policy-relevant information and expert opinions, agencies
can be said to exercise political authority, which they share with a multitude of
other actors involved in the policy process. We distinguish between two basic
principles to legitimize political rule in modern democracies: the democratic
and the technocratic principle (see Centeno 1993; Hooghe 2001). The democratic principle is reflected by the chain of representation, which places a
premium on representative institutions (parliaments) and citizens’ involvement
via regular and competitive elections. While representative democracy marks
one way to define the democratic principle, democratic theory provides alternative conceptualizations of the democratic principle. Participatory democracy
emphasizes that the democratic process ought to offer venues to provide
access for all interests potentially affected by particular decisions, i.e. citizens
as well as organized groups. The rapid process of ‘agencification’ in the EU
has provided fuel to the debate about the role of expertise and a technocratic
logic to legitimize public policy more generally and EU policy-making in particular (see Boswell 2008; Majone 2005; Radaelli 1999a, 1999b; Schrefler 2010;
Shapiro 1997; Sosay 2006; Vibert 2007). The technocratic principle rests on the
assumption that decision-making should ensue from the ‘use of value-free,
objective criteria’ (Centeno 1993: 311) and promises to deliver socially and politically neutral decisions generating ‘Pareto-optimal’ solutions. Unlike the
democratic principle, the technocratic principle is rooted in an ‘ideology of
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AGENCY GOVERNANCE IN THE EU
method’, that is ‘a belief in the ability to arrive at the optimal answer to any discussion through the application of particular practices’ (Centeno 1993: 312).
Moreover, the belief that in a democratic polity various actors have a legitimate
claim to exercise authority depends ‘on whether or not the actor is accepted as
having appropriate accountability relationships with others’ (Black 2008: 150).
Below, we will discuss two types of accountability relationships, professional
accountability (which is derived from the technocratic legitimation principle)
and the democratically inspired concept of social accountability. The thrust of
the term accountability posits a social relationship between an actor and a
forum, in which the actor ‘accounts’ for her behaviour by explaining her
conduct and providing information. The forum, in turn, renders assessment and
judgement of the conduct and decides on whether or not to sanction the accounting actor (Bovens 2007; Curtin and Egeberg 2008). What does this definition
imply for the accountability of EU agencies? Some argue that the nature of EU governance in regulatory policy-making, characterized by governance through networks, defies the strict logic embodied in the notion of a chain of delegation
from clearly defined principals to agents (Curtin and Egeberg 2008: 654). Sabel
and Zeitlin (2010: 12) claim that ‘principal-agent accountability gives way to
peer review through fora, networked agencies, councils of regulators, and open
methods for coordination: the full repertoire of processes by which EU decisionmakers learn from and correct each other even as they set goals and performance
standards for the Union’. These peer-review processes are said to contribute to
agencies’ professional accountability (Bovens 2007). Professional accountability
works via explaining and justifying actions to an accountability forum in which
actors possess the knowledge and information to evaluate and understand the
explanations provided by the agent, which are unlikely to be ordinary citizens
but rather professional peers (Bovens 2007: 456; Sabel and Zeitlin 2010: 12) or
disciplinary ‘epistemic communities’ (Haas 1992). From a functionalist perspective on delegation, the focus on professional norms of accountability whereby
‘scientists are seen to be totally independent from policy-makers’ might contribute
to agencies’ reputation to efficiently and credibly support EU regulatory policymaking (Majone 2000: 300). If these professional norms of accountability are of
relevance for EU agency staff, they should be reflected in their attitudes towards
accountability vis-à-vis their professional peers.
Social accountability rests on the assumption that the relevant accountability
forum is composed of public and private stakeholders. It is a derivative of calls
for more participatory democracy and contradicts the conception of professional
accountability in that social accountability suggests that agencies should ‘feel
obliged to account for their performance to the public at large’ or, at least, to
affected stakeholders, such as ‘civil interest groups, charities and associations of
clients’ (Bovens 2007: 457). The fine line between social accountability of
agency personnel vis-à-vis organized groups or the broader public and the collusion of agency personnel and interest groups in policy subsystems whose members
‘share preferences, or at least share understandings concerning the basic dimension
of conflict’ (Baumgartner and Jones 2009: 19) is empirically difficult to draw.
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Agency personnel might value interactions with private groups not because they
feel obliged to give account to these, but for instrumental reasons, i.e. to pursue
their individual and common interests. The extent to which ‘accountability’ or
‘collusion’ dominates the relationship will depend to a large degree on whether
preferences in a specific decision are indeed shared and groups therefore do not
see the need to raise public pressure on an agency. Importantly, however, it
will also depend on the extent to which agency personnel feels obliged to give
account of their work also to the public at large instead of just relying on interactions with like-minded actors (Bovens 2007: 457).
Level of centralization
This dimension enquires whether the members of staff working in EU agencies
favour a more centralized or decentralized organization of authority in the EU,
i.e. whether they favour a more supranational or a more intergovernmental allocation of competencies and authority. Why and how does this matter for how
EU agencies fulfil their tasks? If we follow the logic of the ‘Europeanization
thesis’ (Eberlein and Grande 2005: 92), regulatory functions are increasingly
delegated to the EU level to reduce transaction costs, since EU agencies
provide independent expertise and information, thereby increasing the efficiency and the transparency of EU regulatory policy-making. Moreover, EU
agencies are also said to improve the implementation of regulatory decisions
given their enmeshment in regulatory networks with national administrations
well acquainted with the situation in their respective country (see Groenleer
2009: 100– 1). Delegating tasks to EU agencies can thus be regarded as a functional solution to the problems arising from uncoordinated or domestic-level
activities alone (Majone 1997, 2005). If agency personnel share this assessment,
we would expect to observe attitudes favouring supranational centralization.
An alternative logic underpinning support for supranational centralization is
not rooted in functional reasoning but in the bureaucratic self-interest of agency
personnel. Kelemen (2002) claims that EU agencies should be considered part
of an ‘Eurocratic structure’ in which the Commission tries to expand its regulatory powers by pushing for the establishment of agencies. As governments are
increasingly hesitant to delegate further powers to a Commission, which is perceived to be too ‘entrepreneurial’, the agency solution seemed to be the best
available alternative for the Commission (Kelemen 2002: 95, 98). This argument is in line with a set of institutional theories of bureaucracies, which
posit that the designers of bureaucratic organizations are able to structurally
determine ‘political preferences’ of these organizations (Moe 1990). It is also
in sync with theories of bureaucracies claiming that bureaucrats have an inherent
interest in empowerment and aggrandizement of their organization (Majone
1996; Niskanen 1971). If these theories of bureaucratic empowerment
provide a valid interpretation for EU agencies’ political motivation, their staff
should hold attitudes that are strongly in favour of European integration and
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centralized, supranational political solutions and in particular of a strong and
powerful Commission.
In contrast, the ‘nationalization thesis’ (Eberlein and Grande 2005: 92– 3)
posits that the functionally best solution to regulate domestic markets is not
found by abdicating sovereignty to the EU level, given the relative economic,
administrative and political heterogeneity of the EU-27 and the continuing
dominance of member state politics in the regulation of markets. Followers
of this thesis will see the regulatory capacity of the EU-level much more critically
and may be more inclined to express support for decentralized forms of political
regulation. One way to avoid regulatory fragmentation in the common market
is to acknowledge the heterogeneous situation in the EU-27 and respond with a
regulatory strategy that operates according to the principle of subsidiarity. The
EU’s regulatory networks comprising national and EU regulatory institutions
can be seen as an institutional realization of this principle (see Coen and
Thatcher 2008). Given the EU’s heterogeneity, decentralized regulatory solutions might be better able to find efficient responses to the heterogeneous institutional and economic situations in member states, enhancing trust among
regulators in these networks and, as a consequence, acceptability and effectiveness of EU regulation (Majone 2000: 295– 8).
Economic governance
EU agency professionals might also differ attitudinally in the extent to which they
endorse an active role of politics in economic governance. Economic governance
can be broadly understood as the relationship between employers and employees,
the redistribution of material benefits between different strata of society, as well as
regulatory activities such as rule or standard setting in matters relating to workers’
health and safety, consumer protection or environmental standards, etc. Two positions can be contrasted along this dimension: while economic liberals and conservatives emphasize a minimal role of the state in economic governance, which
finds its expression in less regulation and an emphasis on market liberalization,
proponents of welfare state interventionism conceive of the state as an active
player in economic governance, emphasizing the positive role of state interventionism and regulation to correct for market excesses and failures (Hooghe
et al. 2002; Kriesi et al. 2008). In academic and public parlance, we also refer
to these two positions as ‘right’ and ‘left’.
As far as legislation in the area of economic governance is concerned, EU
agencies have no formal powers of agenda-setting or co-decision. While some
are responsible for the administrative implementation of particular programs
and EU regulations, others have a more informal role in providing national
and EU political actors with policy-relevant expertise. Depending on their ideological convictions of the role of the state in economic governance, they might
come up with different solutions to address regulatory policy problems. While
free-market ‘liberals’ might ask for non-binding ‘voluntary agreements’ and
forums in which relevant actors share their experiences, ‘interventionists’ might
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prefer and push for ‘command and control’ instruments, such as binding regulations. If EU agency professionals share a common outlook on questions of economic governance, this is likely to be reflected in a uniform view on the problems
they identify, the information they provide to political decision-makers and the
possible solutions they suggest. A widely shared particular ideological outlook
on economic governance might also lead to greater attention and responsiveness
of an agency towards representatives of political parties, interest groups and firms
sharing the same ideological outlook. Such an ideological bias would, however,
compromise agency independence and its ability to provide untainted, neutral
‘expertise’.
3. THE SURVEY
We conducted an online survey including a total of 720 agency staff members
from nine different agencies to assess the content and cohesion of EU agency
staff attitudes (see Table 1).2 To secure broad comparability, we drew on
items from Hooghe’s élite study of Commission officials (Hooghe 2001),
Putnam’s work on bureaucratic élites (Putnam 1977) and Eurobarometer
items on economic governance and European integration (Brinegar et al.
2004). Where necessary, we slightly adapted them to our object of investigation
and theoretical interests. In order to grasp potentially systematic differences in
agency staff attitudes, we selected agencies according to the following criteria
(see Table 1): first, we selected agencies displaying different levels of formal
institutional independence, following the agency independence index developed
by Wonka and Rittberger (2010). Second, we made sure that our agency sample
contained agencies performing regulatory and non-regulatory tasks, i.e. agencies
predominantly occupied with informational or executive functions. These two
selection criteria reflect the argument that agencies with different levels of
formal institutional independence and different tasks potentially display differences with regard to how agency employees perceive of their role.
Our survey targeted the multinational staff of these agencies working ‘on the
ground’, i.e. those involved in taking decisions, preparing recommendations
and providing policy-relevant expertise. We did not survey members of the
different agencies’ management boards, which are formally responsible to
oversee the work of an agency. We have also excluded support staff and clerical
staff from our sample. To obtain information on agency staff members, we consulted the home pages of the respective agencies and the staff lists included
therein. If information provided on the home page was missing or incomplete,
we consulted the agency administration to obtain information on, for example,
email addresses of the staff. The survey was carried out in the period between
April and June 2010. Among the 720 staff surveyed, we received between
178 and 186 responses for individual attitude items, which bring us to an
overall response rate for individual items between 25 and 26 per cent (Tables
2 –4). Response rates vary, however, considerably for individual agencies (see
information in Table 1).3 Given the moderate response rate and the fact that
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Table 1
Agencies surveyed and response rates
Agency
Independence
scorea
Task
0.45
0.50
0.21
0.62
0.23
0.33
0.64
0.54
0.21
Regulatory
Regulatory
Informational/executive
Regulatory
Informational/executive
Regulatory
Informational/executive
Regulatory
Regulatory
Cedefop
CPVO
EEA
EFSA
EMCDDA
EMA
ETF
EUROFOUND
OSHA
Target
population
(N)
65
20
125
227
53
51c
96
43
38
720
Response
rate (%)b
9 (13.8)
7 (35.0)
18 (14.4)
41 (18.1)
32 (60.4)
23 (45.1)
17 (17.7)
23 (53.5)
6 (15.8)
178 (24.7)
–186
(25.8)
Notes:
Based on Wonka and Rittberger (2010).
b
Response rates for individual items vary between 178 and 186. For individual
agencies, we provide the response rate for items where the least number of agency
staff participated.
c
For EMA, we had only access to leadership personnel (.head of unit).
a
we do not cover all agencies, we cannot generalize our results to the overall universe of EU agencies. The fact that responses of agencies with high and low
response rates are very similar, however, indicates that self-selection among
respondents did not lead to responses of only a very particular type of agency
employee, thus increasing our confidence in the reliability of our data.
4. ANALYSIS
The goal of our conceptual discussion in Section 3 was to introduce three different
dimensions – principles of legitimate governance, political centralization and
economic governance – to capture the attitudes of agency professionals on key
aspects of political authority. Some of the items relate directly to the experiences
of agency professionals in their respective agency (see questions 4, 5, 7 and 8 in
Table 2), while other items demand of our respondents to abstract from their
immediate working environment in the agency. These items hence intend to
capture attitudes on the EU and the nature of democratic politics more generally
(see questions 1, 2, 3, 6 and 9 in Table 2). The items employed to tap into different aspects of the ideology of EU agency staff are hence not meant to capture one
single underlying concept of legitimacy, centralization or economic governance
but are employed as indicators to explore how EU agency professionals think
about these different issues at different levels of abstraction.4
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Turning to the data, we find that the attitudes expressed by agency staff on the
different items hardly differ between the nine agencies in our sample.5 Significant differences could only be found for the question on whether agencies
should be concerned with the public approval of their work (x2(with ties):
33.7, df: 8, p: 0.0001) (question 5, Table 2) and the question whether citizens’
influence on political decisions should be expanded (x2(with ties): 16.0, df: 8, p:
0.04) (question 6, Table 2). Individuals working in different agencies thus hold
fairly similar attitudes on issues of legitimacy, EU centralization and economic
governance. The (institutional) working environment thus does not seem to
shape the attitudes of agency professionals. In the ensuing discussion, we will
therefore only look at the overall distributions and not at individual agencies.
We begin our analysis with the legitimacy and accountability dimension for
which we devised nine questions to tap agency staff attitudes (see Table 2). We
analytically subdivided these nine questions to capture attitudes on the merits of
majoritarian political institutions and politics (questions 1– 4), attitudes on the
direct involvement of citizens (questions 5 –6) and stakeholders (question 7), as
well as attitudes towards professional and expertise-based (as opposed to political) forms of accountability (questions 8 and 9). While questions 4, 5, 7 and 8
demand of the respondents to relate their answer to their work and experience in
the agency, the other questions tap their general attitudes towards majoritarian,
participatory and expertise-based legitimation principles.
Several findings are eye-catching. For one, as regards the role of ‘professionalism’ and expertise, we find that more than 86 per cent of our respondents
agree or strongly agree with the notion that their own accountability should
flow from upholding professional standards, while 61 per cent consider expertise to be more important than political considerations in policy-making more
generally (questions 8 and 9, Table 2). This is not overly surprising, given that
agency staff members are not political ‘generalists’ but are trained as specialists
in particular professions. Yet, it is not only professional accountability that is
broadly supported as accountability standard among our respondents, social
accountability has an equally central status in the minds of EU agency staff:
not only is direct participation and influence of citizens in policy-making
seen positively, agency professionals also tend to place a high value on their
work being publicly approved (questions 5 and 6, Table 2). Taken together,
these findings indicate that agency staff members consider a purely professional or expertise-based form of accountability to be insufficient to legitimize their work. On the level of individual agency staff members, however,
agency professionals do not seem to directly relate public approval of their
work and professional accountability (r(tB): 0.06, p(z): 0.34; questions 5
and 8, Table 2].6 Yet, those who approve of professional accountability also
tend to be generally in favour of more direct citizen influence in policymaking (r(tB): 0.14, p(z): 0.04; questions 6 and 8, Table 2). Interestingly,
agency staff members draw a distinction between citizen influence and
public approval of their work on the one hand, and the role attributed to ‘stakeholders’, i.e. those organized interests directly affected by an agency’s work
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60 (32.6)
11 (6.11) 45 (25.0)
4. Agency staff should be willing to express
their ideological convictions, even if they
risk conflict with their colleagues
5. The agency should not be concerned with
public approval of its work
16 (8.9)
3. I do not mind politicians and their methods
as long as they guarantee reasonably
satisfactory public policies
82 (44.6)
50 (27.9)
63 (37.2)
5 (2.7)
2. Great ideological principles never provide
solutions to the problems of European
citizens
Disagree
50 (27.2)
Strongly
disagree
18 (9.8)
51 (28.3)
59 (33.0)
58 (31.7)
71 (38.6)
Neither agree
nor disagree
Ideological predispositions of EU agency staff – accountability and legitimacy
1. Although parliaments play an important
23a (12.5)b
role in a democracy, they often stand in the
way of efficient policy solutions
Question
Table 2
N
3 (1.7) 179
14 (7.7) 183
8 (4.4) 184
Strongly
agree
19 (10.3)
5 (2.7) 184
51 (28.3) 22 (12.2) 180
51 (28.5)
43 (23.5)
32 (17.4)
Agree
(Continues )
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5 (2.7)
4 (2.2)
7. The best advice on a proposed policy
usually comes from the interests directly
affected
8. The agency should be held accountable for
its work strictly on the basis of
professional standards of its area of
expertise
9. In contemporary policy-making, it is
essential that expertise be given more
weight than political considerations
Notes:
a
Absolute numbers.
b
Numbers are percentages (modal category in bold).
0 (0)
2 (1.1)
Strongly
disagree
6. Citizens’ influence on political decisions
should be improved
Question
Table 2 Continued
17 (9.3)
6 (3.3)
54 (29.5)
10 (5.5)
Disagree
55 (30.2)
16 (8.8)
60 (32.8)
28 (15.5)
Neither agree
nor disagree
Strongly
agree
N
9 (4.9) 183
78 (42.9) 32 (17.6) 182
91 (50.0) 65 (35.7) 182
55 (30.1)
89 (49.2) 52 (28.7) 181
Agree
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on the other. There is strong disagreement among our respondents on the role
and the value of information provided by stakeholders. While 35 per cent of
respondents think that those directly affected provide the ‘best’ information,
almost the same proportion of respondents disagrees with this statement (see
question 7, Table 2).
Turning to agency staff members’ attitudes on the role of majoritarian politics,
the findings are more ambivalent. This holds especially with regard to the role
ideology should play in the work of agency staff as well as with regard to the
role of political ideology and politics more generally (questions 1 –4, Table 2).
While around 30 per cent of the respondents disagree with the statement that political considerations should drive contestation among agency staff, 41 per cent do
approve of ‘politicization’ inside the agency (see Table 2, question 4). Thus, while
agency professional have a ‘technocratic’ inclination as indicated by the broad
consensus on ‘professionalism’, this does not strictly rule out approval for majoritarian politics and ‘politicized’ decision-making inside the agency.7 Positive attitudes towards professional and social accountability as well as split attitudes on
the desirability of majoritarian politics imply that EU agency staff members
entertain a more nuanced set of attitudes as might be expected by those who
argue that the modern regulatory state entertains a clear division of labour
between ‘technocrats’ and ‘politicians’ (see Vibert 2007). While demanding professional standards for the evaluation of their own work, agency staff members
seem to approve of ‘normal’ politics in general and also, to some degree, in
their work as experts inside EU agencies. This should open up the potential
for conflicts among ‘experts’ within agencies that may go beyond mere ‘scientific’
debates on the nature of evidence and the application of appropriate methods.
This view is underpinned by the observation shared by a substantial share of
our respondents who report that it ‘normally takes quite a while’ to arrive at a
common position and that ‘regularly’ decisions are taken even consensus could
not have been established.8
What are the implications of these findings for our discussion about the sources
of legitimacy of governance by and through agencies? As shown, the ‘technocratic’ and ‘participatory’ principles to legitimize policies loom large in the
responses of agency staff members to our survey as reflected in the broad
support for more citizen influence (participatory principle) and the role accorded
to expertise vis-à-vis political considerations (technocratic principle). In turn, the
democratic principle is more contested. The views our respondents hold on political representatives and their ‘methods’ to provide efficient policy solutions is
quite divided: while approximately 30 per cent of the respondents display ‘tolerance to politics’, a slightly larger share of about 37 per cent consider politicians
and their methods a discomforting state of affairs (see Table 2, question 3).
To put our findings into a broader perspective and to allow for a comparison
between EU agencies and, given its regulatory ‘mission’ and non-majoritarian
quality, another ‘relevant’ EU organization – the Commission – we adopted
and adapted a number of survey items employed by Liesbet Hooghe in her
study of high-ranking Commission officials (2001) (questions 2, 3, 4 and 7,
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122
6 (3.4)
4. The strength of Europe does not lie in more
power to Brussels, but in effective government
at the lowest possible level
Notes:
a
Absolute numbers.
b
Numbers are percentages (modal category in bold).
24 (13.1)
57 (30.8)
23 (12.9)
52 (28.4)
81 (43.8)
35 (18.8)
4a (2.2)b
3. It is imperative that the European Commission
becomes the true government of the European
Union
2. Too many members of the agency staff let
their nationality interfere with their
professional judgements
Disagree
Strongly
disagree
63 (35.4)
64 (35.0)
32 (17.3)
63 (33.9)
Neither agree
nor disagree
Ideological predispositions of EU agency staff – level of centralization
1. The egoistic behaviour of some member states
threatens the survival of the European project
Question
Table 3
72 (40.5)
35 (19.1)
13 (7.0)
68 (36.6)
Agree
14 (7.9)
8 (4.4)
2 (1.1)
16 (8.6)
Strongly
agree
178
183
185
186
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Table 2).9 It turns out that Commission officials have a more ‘technocratic’
inclination than professionals working in EU agencies: 54 per cent of the surveyed Commission officials agree that ideological principles never provided solutions to the problems of European citizens (question 2, Table 2) and even 72
per cent, compared to 37 per cent of EU agencies’ staff, object to politicians and
their methods (question 3, Table 2). Moreover, Commission officials attribute
even less value to the information provided by ‘stakeholders’ than agency officials: 57 per cent of the surveyed Commission officials disagree with the statement that directly affected stakeholders usually provide the best advice on a
proposed policy, compared to 32 per cent of the surveyed agency officials (question 7, Table 2). Yet, with respect to their work inside the Commission, Commission officials show greater sympathy for ideological convictions: 59 per cent,
compared to 41 per cent of agencies’ staff, do think that they should express
their ideological convictions in internal Commission discussions, even if they
risk conflict with their colleagues (question 4, Table 2).
Turning to the second substantive dimension – the preferred level of centralization in EU policy-making – our respondents hold diverging views on
whether or not they support a more ‘intergovernmental’ or a more ‘supranational’ Europe (see Table 3, questions 1 –4). While 24 per cent of our respondents want to see the European Commission as the true government of Europe,
more than 40 per cent oppose such a view (see Table 3, question 3). At the same
time, while a considerable share of agency staff (approximately 45 per cent) do
see member states’ pursuit of their respective national interest as a threat to the
survival of the EU, a significant minority does not consider this to be problematic. Interestingly, almost 50 per cent of agencies’ employees disagree with
the claim that the EU level is the ‘natural’ place for addressing European political problems, while less than one-fifth do have a strong and unconditional preference for EU policy solutions (see Table 3, question 4). Hence, a ‘functional’
perspective, according to which problems should be addressed at the level where
they can be tackled most efficiently, seems to be of considerable relevance in the
views of the respondents and might support the claims of the proponents of
multi-level network governance that efficient and legitimate policy solutions
can be best found by linking EU-level experts with experts possessing ‘local
knowledge’. As Majone argues ‘preferences vary locally and local conditions
often affect both the costs and benefits of regulation, decentralized rulemaking and enforcement can provide a better match between local public
goods and citizen preference [. . .] subsidiarity is an important source of regulatory legitimacy’ (Majone 2000: 295). Finally, there is broad agreement among
our survey respondents that conflicts driven by national interests and misunderstandings based on professional working cultures across EU countries do not
substantively impact on their everyday work (see question 2, Table 3).
Comparing these findings with the results of Hooghe’s study of Commission
officials shows that more than 60 per cent of Commission officials share with
agencies’ staff their positive inclination towards subsidiarity (question 4,
Table 3). However, with almost 70 per cent, the share of Commission officials
123
5 (2.8)
2 (1.1)
2. The welfare state makes for a fairer
society
3. Europe should be more than a
common market
Notes:
a
Absolute numbers.
b
Numbers are percentages (modal category in bold).
44 (24.4)
17a (9.4)b
1. Public ownership in industry should
be expanded
4 (2.2)
18 (10.0)
Disagree
Strongly
disagree
Question
12 (6.6)
48 (26.7)
89 (49.4)
Neither agree nor
disagree
Ideological predispositions of EU agency staff – economic governance
Table 4
77 (42.1)
67 (37.2)
24 (13.3)
Agree
88 (48.1)
42 (23.3)
6 (3.3)
Strongly
agree
183
180
180
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AGENCY GOVERNANCE IN THE EU
who perceive member states’ pursuit of their respective national interests as a
threat to EU integration is considerably larger than among agencies’ staff (question 1, Table 3). Moreover, Commission officials are almost perfectly divided
over the question whether the Commission should become the government
of the EU (question 3, Table 3). Finally and almost perfectly in line with EU
agencies’ staff, there is broad agreement among Commission officials that problems resulting from colleagues’ different national backgrounds do not play a
significant role in their day-to-day work (question 4, Table 3). Thus, while
being in favour of policy solutions respecting the principle of subsidiary and
while holding differentiated views on its own role in the political system of
the EU, overall Commission officials are more wary about the merits of the
intergovernmental mode of EU policy-making than agency staff seems to be.
In sum, while the majority of agency professionals favours European integration and political cooperation among EU member states, there seems to
be a less clear-cut notion on how this should be realized institutionally. There
is no common outlook on the preferred allocation of authority across different
territorial levels. The picture which emerges from the questions tapping the attitudes of agency staff members on the state of European integration and the EU’s
future is therefore less straightforward as might have been expected by those
scholars arguing that EU agencies are part of an ‘Eurocratic’ structure aiming
at the expansion of their competencies together with the European Commission
(Kelemen 2002) or by structuralist bureaucratic theories that directly infer the
interests of an organization from its functional and territorial institutional
location.
The last analytical dimension we are discussing in this contribution deals with
the attitudes of EU agency staff on the role the state should play in economic governance in general and the role of the EU in economic governance in particular
(questions 1 –3, Table 4). Around 60 per cent of our respondents see a positive
role for welfare states in promoting a ‘fairer’ society (Table 4, question 2), while
only around one-tenth of our respondents oppose such an active role of the state.
There is hence a strong inclination towards support for state intervention among
those working in EU agencies, which is also reflected in attitudes on the role of the
EU level and its role in political regulation. There is almost unanimous agreement that the EU should engage in ‘positive’ regulation and not reduce itself
to ‘merely’ putting a common market in place (see question 3, Table 4).
Among Commission officials, there is even stronger agreement on this issue,
with the vast majority of respondents in agreement that Europe should be
more than a common market (Hooghe 2001). This relationship also holds at
the individual level: agency employees who have a positive attitude towards
state intervention in general also tend to see such an interventionist role for the
EU [r(tB): 0.26, p(z): 0.0001]. On regulatory matters, agency staff members’ attitudes on state intervention might thus result in a strong inclination to suggest
more direct and hierarchical instead of non-binding forms of regulation.
In their self-placement along an eleven-point left (1) –right (11) scale, agency
staff shows a rather centrist political outlook (mean value: 5.1; SD: 1.8), slightly
125
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AGENCY GOVERNANCE IN THE EU
bending to the (very moderate) left. This rather centrist political (self-) positioning is in line with the findings of other studies on members of national administration (Aberbach et al. 1981). More generally, one might claim on the basis of
the data presented here that members of EU agencies do see a positive role for
political intervention, but have no very strong and polarized ideological convictions on the form and content this intervention should take, as could be
expected from ideologically dedicated (redistributive) ‘leftist’ and (liberal)
‘rightists’.
5. CONCLUSION
This contribution has explored the attitudes of EU agency staff members. Our
descriptive analysis has shown that the ideologies of agency professionals are by
no means uniform and cohesive across the different dimensions under scrutiny.
In this regard, our findings are largely in sync with Hooghe’s (2001) analysis of
the attitudes of Commission top officials. We find strong cohesion among
agency staff with regard to the perceptions they hold on legitimacy and accountability of their work. According to our respondents, legitimacy and accountability
of EU agencies builds on expertise and should be based on professional standards.
Yet, legitimacy does not flow from professionalism and expertise alone; the results
clearly indicate that agency staff members also seek public approval of their work.
Moreover, the professionals working in EU agencies do also attribute an important
role to the classic elements of majoritarian politics. There thus seems to be a selfunderstanding among EU agency staff members rooted in a strong sense of professionalism with, at the same time, an acute awareness of the political character
(and impact) of their tasks. EU agency staff members might consider the exclusive
reliance on professional norms insufficient to legitimize their work and are therefore also attentive to the political preferences and sensitivities of the broader public
as well as of their political principles. Such attentiveness might exist for a number
of principled, functional and instrumental reasons: first, agency professionals may
not belief in the possibility to always separate ‘objective facts’ from ‘value judgements’. They might therefore see a need for extra-professional norms underpinning
accountability and legitimation of their work (see Brown 2009; Shapiro 1997).
Second, agency staff might see a (functionally driven) need for public and political
approval of their work to see their suggestions and proposals being taken up and
implemented by political decision-makers (Scharpf 2009). From such a perspective, professionally derived norms of efficiency and democratic responsiveness
are mutually reinforcing rather than exclusive (Majone 2010). Finally, agencies
might consider public and political approval of their work instrumental in order
to secure their organizational survival in the medium to long run.
Our interpretation of the data presented here does not lend itself to a perspective
on EU agencies emphasizing a cohesive ideology or regarding EU agencies as a very
special ‘breed’ or ‘class’ of like-minded experts, all sharing the same goals and outlooks, while – at the same time – being disconnected from the realm of politics.10
While most agency staff members might not consider themselves as key players in
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AGENCY GOVERNANCE IN THE EU
the political game, they appear to be sensitive and responsive to the political discussions going on around them. Yet, whether agency professionals approve of
democratic legitimation for intrinsic or functional/instrumental reasons cannot
be answered on the basis of our data. A number of our empirical findings lend
support to the interpretation that the general ideological outlook of EU agency
professionals is conducive to their institutionally and politically prescribed roles
to improve quality and effectiveness of EU regulation. The approval of agency
staff of ‘governance by subsidiary’ in the EU and their relatively strong scepticism
of a ‘federalist’ EU with the European Commission working as the EU’s government does not lend support to the thesis that their primary (and unconditional)
goal is an extension of the EU’s regulatory and bureaucratic powers. Moreover,
their attentiveness towards public approval and, at least in parts, acceptance of
democratic politics and majoritarian institutions should have a positive impact
on their responsiveness and their ability to recognize and react to the culturally,
economically and politically heterogeneous situation in the EU. Whether and
how these factors will play out in agencies’ behaviour in individual policy decisions
will have to be the object of policy studies.
Biographical notes: Arndt Wonka is a field co-ordinator and a postdoctoral
researcher at the Bremen International Graduate School of Social Sciences
(BIGSSS) and an external fellow and a (co-) project director at the Mannheim
Centre for European Social Research (MZES). Berthold Rittberger is Professor
and Chair of Political Science and Contemporary History at the University of
Mannheim, Project Director at the Mannheim Centre for European Social
Research (MZES), and Adjunct Professor at the University of Canterbury,
Christchurch.
ACKNOWLEDGEMENT
We wish to thank the participants of the workshop ‘Agency Governance in the
EU and its Consequences’, held at the Mannheim Centre for European Social
Research in September 2010, as well as the JEPP referees for their comments on
the paper. Moreover, helpful comments were provided by panel participants
and discussants at the conference of the ECPR Standing Group on the
European Union in Porto, June 2010, and the UACES conference in Bruges,
September 2010.
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NOTES
1 This paper is part of the research project ‘Agency governance and its challenges to
the EU’s system of representation’, jointly led by the two authors and based at the
Mannheim Centre for European Social Research (MZES). The project is affiliated
to the FP7 Integrated Project ‘Reconstituting Democracy in Europe’ (RECON) and
financed by ARENA (Centre for European Studies) at the University of Oslo.
2 We sent our survey to 734 individuals, seven of whom let us know that they are only
involved in clerical tasks and therefore not part of the population, which is of interest to us in this study. Another seven persons were not working for the respective
agency anymore.
3 Respondents in our sample have an average age of 45 and are fairly equally distributed as regards their sex (42 per cent women vs. 58 per cent men). Almost all earned
a university degree (96 per cent; 38 per cent hold a doctoral degree), with natural
scientists/mathematicians constituting the largest group (33 per cent), followed
by social scientists (18 per cent) and business administrators/economists (13 per
cent). Moreover, our sample covers nationals from 20 EU member states and five
non-EU member states, with Italians (18 per cent) and Germans (15 per cent)
being the most frequent respondents. Given the relative heterogeneity of our
respondents along relevant criteria, the results should not be driven by respondents
with particular characteristics. Since, however, we have no information on the
demographics in the overall target population, let alone in all EU agencies, we
are not able to assess the representativeness of our sample.
4 Consequently, correlation coefficients among different factors (items) are moderate
at best, reflecting the fact that agency personnel can, for example, have a very positive attitude towards majoritarian politics in general (questions 2 and 3 in Table 2)
but at the same time hold the opinion that their own work should be evaluated
strictly in terms of professional standards (questions 5 and 8 in Table 2).
5 Since variances for some items differ between agencies and sample sizes for individual agencies vary considerably, we chose a non-parametric test of variance (Kruskal–
Wallis) to test for differences between agencies.
6 Correlation coefficients are non-parametric, rank-based, Kendall tau-b values. A list
of pairwise correlations of all items, ranging between 20.25 and 0.30, is available
from the authors upon request.
7 While not ruling out ideological conflicts, staff members do not seem to see it as a
complement to professionally based accountability, as the two items are not strongly
positively related (r(tB): 0.10, p(z): 0.14).
8 We included a number of questions on the ‘mode’ of decision-making inside agencies
in our survey: ‘Normally there is agreement among the employees of the agency on
how to proceed, and me and my colleagues do not really differ on the positions we
upon different issues’ (54 per cent: agree somewhat, 26 per cent: agree strongly; N
¼ 189); ‘When taking decisions, it normally takes quite a while until we find a
common position within the agency and are able to take a decision in consensus’
(38 per cent: agree somewhat; 14 per cent: agree strongly); ‘We regularly take
decisions, even if consensus among the relevant members of the agency cannot be
established’ (38 per cent: agree somewhat; 14 per cent: agree strongly).
9 Hooghe originally used a four-point scale for her answer (disagree with reservation,
disagree without reservation, agree without reservation, agree with reservation). She
subsequently coded those not answering as ‘undecided’ and introduced this middle
category (Hooghe 2001: 69). In our discussion, we treat Hooghe’s scale as equivalent to ours. The number of responses to Hooghe’s survey for the items discussed
here varies between 103 and 105.
10 The findings of this paper support the conclusions drawn by Trondal (2010) and
Trondal and Jeppesen (2008).
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The European Parliament and the
legitimation of agencification
Christopher Lord
ABSTRACT The European Parliament (EP) has often criticized the agencification
of the European Union. Yet in practice it often uses its legislative powers to
strengthen the powers and independence of European agencies. To explain this
paradox, this paper analyses the six cases where the 2004 – 2009 EP legislated to
create a new European agency. It argues that the Parliament overcame some of its
doubts about agencification by proposing amendments which brought the legislation
closer to its own legitimation beliefs. Moreover, the EP has developed a substantial
repertoire of amendments which it now more or less repeats every time it is
confronted with a proposal for a new agency. Many of these amendments are
designed to shore up control of agencies, sometimes in novel ways which suggest
that the Parliament has in part made its peace with agencification by becoming
more amenable to the control of agencies by methods involving multiple principals.
1.
INTRODUCTION
The agencification of the European Union has mainly been studied as a
phenomenon of executive politics: as one further contribution to the formation
of a new kind of executive order in the European arena (Egeberg 2010; Egeberg
and Trondal 2009; Flinders 2004; Groenleer 2006, 2007; Majone 1997;
Trondal 2010). If, though, we are to grasp the novelty of any European executive order we obviously need to do more than study the inner workings of its
component parts. We also need to study each of those parts in relation to any
legislative body which can define its powers, resourcing, independence, operating procedures and key appointments. Thus, European agencies need to be
studied in relation to their parliamentary principals, and not their just
member state or Commission principals.
Yet little has been written on the contribution of the European Parliament (EP)
to agencification. This is doubly unfortunate. As just suggested, we are only likely
to achieve a full and accurate understanding of the behaviour of agencies by investigating the entire range of relationships within the EU’s political system to which
they are a subject. Second, in the absence of a thorough study, the attitude of the
EP towards agencies has been misunderstood. It is not, as is often supposed,
132
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AGENCY GOVERNANCE IN THE EU
uniformly hostile to agencification. Rather, it paradoxically combines a certain
suspicion towards the process in general with a tendency to propose amendments
which often increase the powers and independence of specific agencies.
Now, it might be hoped that we can avoid the need for too much fresh
research by inferring the likely behaviour of the Parliament towards agencification from what we already know about its general behaviour. Thus, the general
finding that 90 per cent of voting in the Parliament is best explained by ‘left –
right’ policy preferences, and less than 10 per cent by pro-anti integration preferences (Hix and Lord 1997; Hix et al. 2007) might be grounds for expecting
the Parliament’s decisions on agencies to reflect the changing preferences of its
members between the deregulation and re-regulation of markets. Yet, proposals
for agencification are unusual in the degree to which they allow MEPs to participate in decisions of institutional design through ordinary legislation. It is
thus possible that MEPs will give somewhat more than normal salience to
their ‘integration preferences’ and somewhat less to their left – right preferences
when taking decisions on agencification. Indeed, the policy preferences of individual actors may, in any case, be an incomplete basis for decisions that also
require more normative justification of where it is legitimate to delegate
powers at the European level to executive bodies that are able to act more or
less independently of democratically mediated political competition.
This paper investigates the role of legitimation beliefs in EP decisions on
agencification. To do so, it employs six case studies of all the major legislative
acts on agencification approved by the 2004 –2009 Parliament. As shown in
Table 1, these included regulations established five new agencies and a
Council decision which converted an existing agency – Europol – into a
Union agency. Four of the six cases were decided by Co-decision and two by
the Consultation procedure. Two were agencies concerned with market regulation (The Chemicals Agency and the Agency for the Co-operation of
Energy Regulators); two with Justice and Home Affairs (Europol and European
Asylum Support Office) and two with standards and values of general application to Union policy (the EU Agency for Fundamental Rights and the European Institute for Gender Equality). The paper proceeds as follows. Section 2
reconstructs the EP’s critique of agencification. Section 3 shows how notwithstanding that critique the 2004 –2009 Parliament used its powers to strengthen
the agencies on which it legislated. Section 4 sets out my theoretical claim that
the opportunity for the Parliament to amend legislation to bring it closer to its
own legitimation beliefs has helped it overcome its doubts about agencification.
Sections 5 and 6 investigate how far that claim is supported by evidence from
the votes and amendments in the six cases where the 2004 –2009 Parliament
legislated to create new agencies. Section 7 concludes.
2. THE EP AS A CRITIC OF AGENCIFICATION
The EP has often criticised agencification. As recently as the Patastamkos report
(2008a) agreed by 619 votes to 25, the Parliament fretted about a ‘proliferation
133
a
Approved
Approved
Approved
–
–
–
15
42
46a
62
42
18
62
Second-stage
amendments
75
First-stage
amendments
3
9 (17/01/08)
17. (1104, 1110, 1134, 1140, 1142, 1144-7, 1160-1
(17/11/05); 2237 2241-2, 2242-6 (13/12/06))
13. (3719 –3731 (17/01/08))
4. ( 2209–2210 (30/11/06), 2073–4 (12/10/06))
2 (6171-2 (07/05/09))
2. (4430 (18/06/08) and 5804 (22/04/09))
Roll-call votes (reference numbers and dates
in Vote Watch.eu data base)
The European Chemicals Agency was established under Title VI of REACH. Only the amendments from that Title X are included here.
1. Agency for the Co-operation COD. First and
of Energy Regulators
second readings
3. European Asylum Support
COD. First and
Office
second readings
3. European Chemicals Agency COD. First and
second readings
4. EUROPOL
CNS
5. EU Agency for Fundamental CNS. Establishing
Rights
Legislation.
CNS. Multi-annual
programme
6. EU Institute for Gender
COD
Equality
Procedure
COD ¼ Co-decision
CNS ¼ Consultation
Table 1 Legislative votes of the 2004– 2009 EP on agencies
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of agencies in crucial areas of social activity’. Indeed a critique of agencification
with at least the following interactive and cumulative elements can be inferred
from various reports of the Parliament.
2.1. Agencification as fragmentation
Although the academic literature has come to see agencification as contributing
to executive centre formation at the European Union (Egeberg 2010; Trondal
2010) that has not always been the view of the EP. The Herman report (European Parliament 1999) warned that agencification could lead to a double fragmentation: both in the coherence of the Union’s executive and in any prospect
of bringing it to account through one well-integrated structure of public
control. In Herman’s view, there was even a risk that agencification could
trigger a competitive despoilation of the Union’s executive. Individual governments would compete to secure the location of agencies in their own member
states at the expense of a shared interest in ensuring that Union policies were
coherently co-ordinated from a single administrative centre (European Parliament 1999: 7 –8).
2.2. Agencification as irresponsibility
When commenting on the political responsibility of agencies, the EP has firmly
rejected one view in the scholarly literature on administrative accountability
while associating itself firmly with just one side of a second debate. The view
it has rejected is that there are normatively defensible reasons why some acts
of delegation should not be democratic (Majone 2006). As it has put it, the
‘democratic principle’ requires the public control of ‘any body wielding executive power’ (European Parliament 2008a). The debate in which the EP has
taken sides is that between vertical and horizontal accountability. It has
expressed a clear preference for the former insofar as its reports on agencies
assume that all administrative bodies should be part of a single hierarchy of political control that leads back to the public via the power of an elected Parliament
to sanction a politically appointed leadership of an integrated executive (Strøm
2003: 64 –6). When, therefore, the Commission put forward its proposals for
innovations in ‘Governance’ in its 2001 White Paper, the Parliament responded
by expressing a clear preference for ‘Government’. The section of the Parliament’s report on the White Paper which dealt with agencies insisted that they
should only be delegated powers of a ‘purely technical nature with no political
dimension’. Even then the Commission should remain politically responsible
for the exercise of those powers (European Parliament 2001: 11– 2). By implication, the EP has shown little sympathy with (or awareness of) the alternative
view, so nicely summarized by Moe (1990: 143), that it is possible that ‘no one
controls the agency and yet the agency is controlled’. In other words many of the
EP’s pronouncements on agencies show little inclination for solutions in which
a number of mutually suspicious bodies constrain executive agencies, without
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any single supervisory institution exercising some element of command and
control over them.
2.3. Agencificiation as counter-reformation and de-parliamentarization
At times the EP has bracketed agencification and comitology together as two
forms of ‘counter-attack’ it could expect to the development of its own
powers. While it has seen extensions to its legislative powers as vulnerable to
the trick of postponing more of the detail of law-making to comitology, it
has worried that improvements in its scrutiny and control of the Commission
might be exposed to the ruse of delegating executive functions away from the
Commission itself. That risk seemed especially acute after the Parliament
made first successful use of its power to force the resignation of a College of
Commissioners in 1999. Thus, its response to the Commission’s White
Paper on Governance also included the claim that ‘the right of co-decision
and scrutiny by the EP and the Council would become more difficult if EU
administrative powers were increasingly delegated to European agencies with
decision-making powers’ (European Parliament 2001).
Nor to be discounted is the EP’s simple preference for what it terms an ‘executive within Parliament’ (see for example European Parliament 2010: 5). Doubts
as to how far any parcelling out of executive functions to a series of agencies
dispersed around the national capitals can replicate the working relationship
the EP has come to expect with the Commission are reflected in some of the
demands that it has agreed to make in response to any proposal for a new
agency. As summarized in the Herman report, these include (i) representation
on the boards of agencies; (ii) uniform reporting and accounting obligations
to the Parliament ‘with respect to both the budgets and work programmes of
agencies’; (iii) full and equal access of all Union bodies – the Parliament
included – to information, and to the technical advice of the agencies (European Parliament 1999: 7 –8). Its nervousness on the last point echoes the
argument that it is precisely through asymmetries of information that executives
dominate parliaments (Krehbiel 1991). Thus, the Herman report insisted on
equal access to the expertise of agencies on the grounds that ‘many’ of the
EP’s ‘core responsibilities in fields subject to co-decision and elsewhere
require considerable scientific and technical knowledge, which is only available
to a limited extent in house (1999: 24)’.
3. THE EP AS FRIEND OF AGENCIFICATION
Given the foregoing criticisms, the EP might be expected to function as a brake
on agencification. But is that really so? To answer this question, this section
briefly identifies the Parliament’s powers over agencification. It then uses the
six case studies from 2004 to 2009 to analyse the Parliament’s use of those
powers.
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The financing of agencies out of the Union’s budget provides the EP with one
important instrument of control. Most agencies are, moreover, covered by the
annual budgetary discharge procedure. Thus, only the EP can sign off their
annual accounts. It has recently used the discharge procedure to summon directors of particular agencies (Busioc 2010: 104–5. See also Groenleer, 2009). Its
budgetary committee has also developed the potentially important sanction of
putting 10 per cent of the annual budget of agencies in reserve until they
have completed the discharge procedure (Busioc 2010: 117). Although it has
not employed this mechanism, an indication of the grievances it could be
used to pursue is provided by the EP’s decision in 2009 to postpone budgetary
discharge of the accounts of the European Police College on the grounds that
they provided ‘incomplete information about the private use of public
money’ and raised unanswered questions about the ‘legality and regularity’ of
the College’s procurement practices (European Parliament 2009a: 12 –4).
Yet the Parliament’s main powers over agencification are legislative. Indeed,
several of its other powers derive from opportunities to shape and re-shape the
legislation under which agencies are established. As Co-decision (now the
Ordinary Legislative Procedure) has been extended, so more agencies have
been established under proposals requiring Co-decision. Co-decision obviously
gives the Parliament veto powers and the power to propose amendments that
can be backed by the threat of a veto (Tsebelis 1994). Yet, even under Consultation, it often does succeed in amending legislation that define the ‘agency of
agencies’. Moreover, the EP often gets repeat opportunities to use its powers
whenever the Commission feels the need to amend or recast existing legislation.
So how does the Parliament use these powers in practice? Contrary to some of
its concerns about the general process of agencification, the 2004 –2009 Parliament sought to extend the competence or independence of each of the six new
European Agencies on which it legislated. The following are among the most
striking examples. In the REACH legislation, which also established the European Chemical Agency, the Committee on Environment and Public Health
proposed to give the Agency ‘full responsibility for the management of the
new chemicals policy’. While the Commission proposed that Agency should
provide ‘advice’ on which substances should be prioritised for authorisation,
the EP (2005: 25) proposed that the Agency should decide that question ‘on
its own authority’. It also made an unsuccessful attempt to designate the European Chemicals ‘Agency’ as the ‘competent authority’ for the registration of new
chemicals in place of national authorities (European Parliament 2005: 121).
Likewise, in the case of the Agency for the Co-operation of Energy Regulators,
the Parliament complained that ‘uncertainties and confusions’ are derived ‘precisely from the lack of competences’ given to the agency. It argued that the
Agency should not just co-ordinate national energy regulators. It should be
‘given binding powers’ over them. Moreover, to increase the independence
with which the Agency could use its powers, the Parliament sought to delete
provisions that would have allowed voluntary contributions and the secondment of staff from national authorities to the Agency (European Parliament
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2008b). In the case of European Asylum Support Office, the EP also favoured
an Agency that would have the powers and independence to administer ‘binding
obligations’. Perhaps unsurprisingly this pitched it against the Council’s preference for an Agency that would ‘entrench’ a ‘voluntary’ pattern of ‘co-operation’
between member states (Rapporteur Jean Lambert, EP Debates 20 April 2010).
However, the 2004–2009 Parliament was at its most ambitious in its
attempts to extend the competence of the European Union Agency on Fundamental Rights. One of its amendments would have effectively allowed the
Agency to review the ‘compatibility’ of any draft Union legislation with fundamental rights on a request from the Commission, Council or Parliament (European Parliament 2006a). Another would have given the Agency a blanket
responsibility for ‘monitoring compliance of the EU institutions and the
member states with all international human rights conventions to which
member states are a party’ (European Parliament 2007b). The EP likewise
proposed amendments which would have provided the Agency with a role in
supplying information for a rights-based foreign policy. While, the Commission
proposed that countries with association agreements with the Union could opt
to participate in the work of the Agency, an EP amendment required ‘the
Agency “to” concern itself with the situation of fundamental rights in countries. . .to the extent it is relevant to the respective association agreement’
(European Parliament 2006a). Most dramatically of all, the EP responded to
a Commission proposal to extend the Agency’s competence to Title VI, with
an amendment which would have extended it to the whole of the Common
Foreign Security (European Parliament 2006b).
4. POLICY GOALS AND LEGITIMATION BELIEFS
Thus far the paper has identified a paradox. The EP has often criticised the
general process of agencification. Yet the 2004– 2009 Parliament proposed
amendments aimed at strengthening the new European agencies on which it
legislated. Theories of what representatives do when they make decisions
about the design of institutions are an obvious place to turn for possible explanations of this paradox. One possibility is that legislators choose those institutions that are most likely to deliver particular policy outcomes. In other
words they are, at the end of the day, relatively agnostic about institutions,
preferring to cut and trim their design to whatever policy outcomes they have
in mind. As Berthold Rittberger (2005: 22) summarizes this point of view,
‘actors prefer to create and sustain those institutions and rules from which
they expect the production of “policy streams” which help them maximise
their policy preferences under given constraints’.
MEPs might plausibly use their powers over agencification to advance a
number of policy preferences. Those with different left– right preferences
may, as already noted, be expected to use agencification to secure more deregulation or re-regulation of markets. Eurosceptic MEPs might be expected either
to oppose agencification outright or to accept it for administrative or regulatory
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reasons only, while rejecting it for what they think are ‘polity-building’ purposes. Pro-integration MEPs might be expected to oppose agencification
where they see it as a threat to the coherence of the Union’s executive order,
while supporting it in preference to less integration of a specific policy sector.
The Patastamkos hints at such ‘second-best’ thinking where it describes agencification as ‘an expression of cooperation between the Member States in areas
where the conferral of responsibilities exclusively on the EU institutions,
would give rise to objections concerning centralisation’ (European Parliament
2008a). A preference for agencification over no integration at all is likewise
evident in the EP’s response to the proposal to convert Europol into a Union
agency. As the Civil Liberties Committee put it, ‘While the Commission proposal is currently blocked in Council owing to a profound controversy as to
whether Europol should be communitarised [sic] at all, Parliament wants to
act quickly in order to show its support for the Commission’s intention to
make Europol an EU agency’ (European Parliament 2007a).
However, the notion that legislators can be guided only by their own policy
preferences in deciding questions of institutional design seems odd to scholars of
political legitimacy. Simply put, questions of legitimacy cannot be solved by
asking ‘what can I get from institutions’? Instead they can only be resolved by
asking ‘how far can we agree institutions for regulating aspects of our lives in
common in ways we can all more or less believe to be right’? Put more formally,
individual policy preferences only require actors to‘seek ends and interests’ that
are ‘peculiarly’ their ‘own’ (Rawls 1993; Sibley 1953: 553). In contrast legitimation arguments can, of their nature, only succeed where they appeal to ‘reasons
capable of being’ accepted by others in the light of their own moral beliefs
(Nagel 1987: 229; Sibley 1953: 557).
At the very least legitimation requirements imply that the individual interest
of representatives in pursuing policy gains is constrained by a shared interest in
ensuring sufficient agreement on the legitimacy of laws to assure their uniform
enforceability at a reasonable cost. In a sense then parliamentarians need to
perform two roles. As representatives who are elected in competitive elections
they need to compete over specific policy preferences if they are to offer
choices to voters. As legislators, however, they also need to engage in a very
different task: namely, that of ‘norming’ the law. They need to give legislation
a form which satisfies the requirement of liberal systems that individuals should
be able to comply with laws through the ‘propositional logic of their own moral
beliefs’ (Habermas 1996: 67). Habermas (157 –62) argues that, in turn, requires
legislators to satisfy themselves as to the fairness with which a law balances interests: as to the implications of a law for values and identities inside the polity
itself; and as to its implications for the rights of all affected persons, including
those outside the polity. Indeed, the challenge of combining competition over
specific policy outcomes with a search for agreement on conditions for the
justifiable exercise of political power arises twice over for legislatures in
liberal-democratic systems: first, in passing a law and, then, in ‘programming’
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any executive body – such as an agency – to administer it (Habermas 1996:
171).
If, then, legitimation beliefs were important to the way in which the 2004–
2009 Parliament legislated on new agencies we would expect to find evidence
that its legislative behaviour was influenced by beliefs about fairness, rights
and values, as well as the pursuit of preferences over policy outcomes. Note,
there is no expectation here that legitimation beliefs and policy preferences
are ever likely to shape legislative behaviour to the exclusion of the other. On
the contrary, I have argued that legislators in liberal democratic systems have
to seek agreement on the first at the same time as they compete on the
second. A plausible view is that policy preferences motivate representatives,
while legitimation beliefs constrain them. Yet, if that is so, then change in the
behaviour of representatives may be explained by changes in how legitimation
beliefs constrain choices and not just by policy preferences themselves. Thus,
for example, if the EP has become more amenable to agencification, that may
be because it has changed its views on the legitimacy of agencies or because it
is able to amend proposals for new agencies to bring them closer to its own
legitimacy requirements What evidence is there for these possibilities? To
answer that question I look first at the votes (Section 5) and then at the amendments (Section 6) which the 2004 –2009 Parliament passed to the six new
agencies on which it legislated.
5. VOTES
Even assuming that roll-call votes really are representative of all votes of the
Parliament, the 50 roll-call votes the 2004– 2009 Parliament recorded on legislation to establish new agencies are too few to carry out the most advanced forms
of statistical analysis to which roll-calls lend themselves. Yet it would be a
mistake to ignore this evidence altogether. It suggests some interesting patterns
for future research based on any greater availability of cases and EP votes on
agencies.
As is common with much of its work, the 2004– 2009 Parliament took
decision on agencies with large majorities. Only in the case of the European
Institute for Gender Equality did the Parliament pass the final legislation –
or, indeed, many amendments – with the agreement of less than two-thirds
of its Members. Given that minimum-winning legislative coalitions are of
course the most efficient means of translating preferences into outcomes to
the exclusion of alternatives, their absence from votes in any of the six cases
where the 2004 –2009 Parliament legislated on agencies might imply that
MEPs give priority to inter-institutional competition over policy outcomes,
rather than any policy competition within the Parliament itself. That would certainly fit with the claim that the EP often makes strategic use of an appearance of
consensus; or, in other words that it disguises its own internal disagreements by
legislating with large majorities that it believes will strengthen its bargaining
hand with the Commission and Council (Kreppel 2000). Yet this interpretation
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of the voting behaviour of the 2004– 2009 Parliament on agencies runs into a
difficulty. The average majorities in the votes which the 2004 –2009 Parliament
recorded on agencies were 84.5 per cent in votes under the Consultation procedure, 67.8 per cent in votes held during the first readings of Co-decisions,
and 77.7 per cent during second-readings. Majorities were thus lowest where
they were most needed to signal the Parliament’s determination to insist on
its amendments (first-stage Co-decision). It is thus less than self-evident that
these were strategic majorities, as opposed to majorities that were also to
some measure designed to explore agreement within and across institutions
on conditions that would legitimate delegations to the agencies.
Maybe further clues can be found in the exact composition of winning
majorities and losing minorities in the votes which the 2004–2009 Parliament
took on agencies? More than half the votes cast against the final texts were cast
by a combination of the Eurosceptic group (14.2 per cent), far right unattached
members (14.1 per cent), a handful of national parties from the far left group
that are generally classifed as Eurosceptic (4.7 per cent) and national party delegations which now belong to the Eurosceptic/Conservative European Reform
Group (24.4 per cent). Indeed, the Eurosceptic groups and the unaligned far
right provided the only consistent opposition to all six agencies, while the
British Conservatives opposed all but the two regulatory agencies.
This pattern of dissent, together with the large majorities that were otherwise recorded in support of the final texts on agencification, might suggest
that the capacity of the 2004 –2009 Parliament to reach agreement on agencification was mainly only constrained by those of its members who questioned the legitimacy of integration itself. Some further evidence of what
motivated the albeit limited opposition to the six pieces of legislation
which the 2004– 2009 Parliament passed on agencies is provided by
written justifications for votes. These were filed by around 20 per cent of
those who voted against the final texts of the legislation, once account is
taken of justifications submitted on behalf of whole national party delegations. Some members of the far left group questioned the legitimacy of
delegations to the Chemicals Agency and to the Agency for the Co-operation
of Energy Regulators on the grounds that the legislation privileged particular
social and economic preferences against reversal by normal processes of
democratic competition. Most of the written justifications for ‘no-votes’
were, however, registered by eurosceptic MEPs in opposition to the Fundamental Rights Agency, Europol, the European Gender Institute and the
European Asylum Office. Given the association of these agencies with citizenship, rights, boundaries and policing, eurosceptic MEPs argued that agencification was becoming a subterfuge for pursuing European Union’s ‘statebuilding’ project by other means. Since, in their view, polity-building was
precisely what had been rejected in the French and Dutch referendums on
the Constitution, any attempt to continue with it by means of agencification
was counter to the express wishes of European publics (Various European
Parliament debates).
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6. AMENDMENTS
I have briefly discussed the role of legitimation beliefs in the opposition to new
agencies. However, my principal interest is in asking whether legitimation
beliefs had any positive role in shaping support for the legislation on agencies
approved by the 2004 –2009 Parliament. In particular, I asked earlier
whether there is any evidence that the opportunity to amend legislation on
new agencies to bring it closer to their legitimation beliefs has helped MEPs
overcome doubts about agencification. For ease of analysis I focus only on
first-stage amendments. Almost all the second-stage amendments in the four
cases where the 2004– 2009 Parliament co-decided legislation establishing a
new agency either re-affirmed first-stage amendments or reflected compromises
with the Council rather than the unilateral position of the EP itself. As shown in
Table 1, a total of 347 first-stage amendments were tabled across the four codecisions (counting only those REACH amendments from Title X on the
Chemicals Agency itself) and two consultations. Several of the amendments
were accompanied by written justifications agreed in the lead committees
responsible for the legislation. Given the theoretical analysis in Section 4 of
what may be involved in ‘norming’ legislation so that it complies with legitimation requirements, I coded the amendments into those which concerned:
(a)
(b)
(c)
(d)
democratic or parliamentary control (20.5 per cent);
rights (9.2 per cent);
fairness, equality and non-discrimination (9.8 per cent); and
procedural standards, such as transparency, due process, duties to consult
and rights of appeal (20.2 per cent).
All this suggests that many of the amendments which the 2004– 2009 Parliament proposed to legislation on agencies were concerned with questions of
legitimacy. But how far did that matter in practice? To answer that question,
the remainder of the paper focuses on just two of the categories set out in the
previous paragraph: namely, those amendments which MEPs justified on
grounds of fairness, equality or non-discrimination; and, second, those which
were presented as improvements to democratic or parliamentary control. I
use the first to demonstrate how even some of the smallest choices that the
2004– 2009 Parliament took on agencies were hard to decide without taking
a position on legitimation questions. I use the second example to argue that
legitimation beliefs accounted for important changes to the Parliament’s
approach to agencification.
A nice example of how large philosophical questions of legitimacy can ‘go the
whole way down’ to some of the most technical details of legislative decisions is
provided by the problems of fairness which Parliament encountered in legislating to establish the European Chemicals Agency under the REACH directive.
The Commission, Council and Parliament all wanted to limit the testing of
chemical, and especially animal testing. They thus agreed to a principle of
‘one substance, one registration’. However, that raised the question of who
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should pay for the tests. It hardly seemed fair that the first registrants should pay
the full cost without any contribution from subsequent users. The Commission
initially proposed that each subsequent registrant should pay the first 50 per cent
of the costs of the test. The EP (2005, p. 75) counter-proposed that the costs
should be shared in proportion to ‘each party’s production volume’. The eventual legislation stipulated that the costs should be shared equally if the parties
could not otherwise agree between themselves. Thus, the three institutions
struggled to identify what the Parliament termed some ‘fair, proportionate
and non-discriminatory’ means of sharing the costs of testing that would also
be feasible for the European Chemicals Agency could administer. To understand why fair treatment of registrants was understood by all three institutions
as essential to the legitimacy of the legislation, it is important to note that
REACH has from the outset been unusually dependent on the active
co-operation of its stakeholders. Indeed, one study notes, how that dependence
is reflected in two extraordinary provisions of the legislation. First, any stakeholder can be invited to attend committees of the agency. Second registrants
can comment on draft decisions (Ehnert 2008: 58 –9).
What, though, of the amendments which the 2004 –2009 Parliament justified on grounds of democratic or parliamentary control? As seen, the Parliament
has often articulated a preference for a single or ‘vertical’ chain of political
responsibility in which agencies are responsible to the Commission and the
Commission to Parliament. Yet, in the six cases studied here, the 2004– 2009
Parliament seemed at the least to modify its previous understanding of vertical
accountability to the extent it proposed several amendments aimed at making
agencies more independent of the Commission. The Parliament’s Economic
and Monetary Affairs Committee was of the view that the Agency for the
Co-operation of Energy Regulators should not just be ‘independent from
economic and political interests, but from the Commission’ too (European
Parliament 2008b: 34). In the case of the Gender Equality Institute,
the Parliament sought to amend a provision which would have allowed the
Commission to decide on a renewal of the director’s appointment after an evaluation. In its opinion, it was ‘not auspicious for the Agency’s independence that
the Commission should be able to decide this alone’ (European Parliament
2006c).
One interpretation of all this is that the Parliament has become increasingly
confident that it can exercise a measure of control over agencies without depending on the Commission. Several amendments proposed by the 2004– 2009
Parliament might support that interpretation. Specific committees within
agencies were required to report directly to the EP on specified goals, such as
progress towards non-animal testing methods in the case of the Chemicals
Agency (European Parliament 2005). Other Agencies, notably the Fundamental
Rights Agency, were required to take EP resolutions into account in defining
their own work programme (European Parliament 2006a). And, of course,
the EP responded to each proposal for a new Agency with amendments
which demanded representation on the management board, participation in
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the appointment of the director and powers to summon representatives of
agencies to appear before parliamentary committees.
Yet, it would be a mistake to see the amendments of the 2004 –2009 Parliament as merely aimed at finding more direct ways to secure its own control of
agencies. Those amendments also imply significant adaption on the Parliament’s part to a form of control based on the responsibility of agencies to multiple principals (Strøm 2003: 65). The best example is provided by the
Parliament’s amendments to powers to appoint to key offices and committees
in the agencies. Each of the six cases produced much the same ritual. The
Commission proposed that the power to appoint the management board of
each agency should be divided between itself and the Council. It then proposed
that the director of each agency should be appointed by the management board
from a short list prepared by the Commission. The successful candidate should
then be invited to make a statement to the relevant committee of the Parliament
and answer its questions. In each case, the EP counter-proposed that it should
also be able to appoint (usually two) members of the management board. In
each case it also proposed what it termed a ‘co-operation’ procedure for appointing agency directors in which the Commission or the management board would
propose a short list. The Council and the Parliament would then have the
opportunity to hear all the short-listed candidates, to express an order of preference between them and to write an opinion on each (European Parliament
2005, 2006a, 2006c, 2007a, 2008b, 2009b).
Where the EP proposed amendments to increase its own appointing powers,
it was often careful to propose matching changes to the benefit of the Council.
Doubtless it did this to increase the chances of the amendments succeeding. But
that, in turn, implies that the structure of the EU’s political system has itself
required the Parliament to moderate its earlier preferences for a form of
control in which agencies answer to the Commission and the Commission to
the Parliament, all to the exclusion of obligations on the agencies to account
to other bodies. Indeed the amendments proposed by the 2004 –2009 Parliament suggest that it has also come to support obligations on agencies to
account to multiple principals as a corollary of attempts to strengthen administrative and judicial standards. Consider two examples. In the case of the Agency
for the Co-operation of Energy Regulators, the Parliament proposed an amendment which would have made it possible to appeal the decisions of the Agency’s
Board of Appeal to the European Court of Justice (European Parliament
2008b). In the case of the Council decision to convert Europol into a Union
Agency, at least 23 of the 62 amendments proposed by the Parliament concerned standards of data protection. The EP not only supported a role for a
data protection officer. Its amendments also supported a role for national
courts in reviewing standards of data protection (European Parliament 2007a).
If the accommodation of the claims of multiple political principals suggests
that the Parliament’s approach to agencification has had to adapt to the
multi-level and polycentric structures of the EU’s political system, the role its
amendments allow for administrative and judicial controls, arguably, amount
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to an adaptation to the logic of agencification itself. Agencification has always
posed a puzzle of how to retain ultimate control by elected bodies without
defeating the whole purpose of delegating some functions to agencies which
can operate with a margin of independence from day-to-day forms of political
competition. The puzzle is conceivably more likely to be solved where representative bodies avoid too much discretionary, as opposed to rule-based, control of
agencies. A fairly obvious way in which they can do that is to give enforcement
responsibilities to courts and ombudsmen, rather than attempt to supervise all
the procedural obligations they put on agencies.
Let me conclude this section by anticipating an objection. I have made a great
deal of use of documents produced by MEPs themselves to interpret the intentions of their amendments to the legislation the 2004 –2009 Parliament passed
on agencies. It is, of course, possible that many of those statements were more
strategic than sincere; and that amendments designed to advance their own
powers and preferences were dressed up in justifications which suggested that
MEPs were more concerned than they really were with improving the legitimacy
of the legislation. What does, however, seem clear is that whatever motivated the
amendments which members of the 2004–2009 Parliament proposed to new
agencies they were prepared to pay a cost to obtain them. All four of the
co-decisions went to the second stage. This was quite unusual in a Parliament
which dealt with a crowded legislative agenda by reaching agreement on most
co-decisions at the first stage.
In any case, there is no reason why we should take the EP’s own account of its
own amendments as the only indicator of how far they were motivated by legitimacy beliefs that were also capable of convincing others. The Parliament’s legislative powers require it to convince two other institutions which are
presumably well able to take a critical view of the EP’s claims (Kreppel
2000). Indeed the Council’s own interest in legitimate law making may even
exceed that of the EP insofar as it is Member States which have to enforce legislation. Conveniently for analytical purposes it is possible to distinguish instances
where the Parliament has some procedural power to constrain the Commission
and Council in their rejection of its amendments (Co-decisions) from cases
where it has to rely on little more than its ability to persuade the other two institutions of the value of its amendments (Consultation). Two hundred and
twenty-five of the amendments proposed by the 2004– 2009 Parliament to
new legislation on Agencies were to Co-decisions and 122 to Consultations.
Yet the proportion of its amendments which were accepted in whole or in
part by the Commission and the Council was much the same under the two
procedures: 50.9 per cent under the Co-decisions and 52.9 per cent under
the Consultations. That the other two institutions were slightly more likely to
accept the EP’s amendments where they did not need to – in other words, in
the two instances where new European agencies were established under Consultation – would be hard to explain if the emphasis the amendments put on
public control, rights, administrative standards and fairness were just a disguised
form of competition over policy outcomes. It is less counter-intuitive if it is
145
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AGENCY GOVERNANCE IN THE EU
assumed that some of the amendments were indeed accepted as a valuable contribution to the legitimation of the agencies.
7. CONCLUSION
Any complete understanding of the agencification of the European Union
requires us to analyse the role of the EP in shaping the legislation that delegates
powers to European agencies. Only democratically elected legislatures can ultimately establish the legitimacy of delegations to executive bodies by deciding
those questions of public control, justice, values and rights which are raised
by the exercise of their functions. While the EP has expressed reservations
about the general process of agencification, it has often voted to strengthen
the powers of specific agencies. One possible explanation for that paradox is
that the EP may be prepared to give greater powers to specific agencies where
it can also amend legislation to bring their institutional design closer to its
own legitimation requirements. To examine whether there is any evidence of
that possibility, this paper has analysed case study material from the six agencies
established under new legislation of the 2004 –2009 EP.
Three things seem clear. First, legitimation considerations of public control,
fair treatment, rights and so on did feature strongly in the justifications provided
for the amendments the 2004–2009 Parliament proposed to the six new
agencies. Second, even quite technical choices entailed by agencification
appeared to be difficult to decide at all without specifying conditions for the
fair and right exercise of delegated functions. Third, the Parliament has developed an elaborate repertoire of amendments aimed at increasing its own oversight and defining administrative standards ex ante. Insofar as the Commission
has not already anticipated those amendments in the proposals it makes to the
Parliament in the first place, the EP more or less repeats them each time it is
asked to decide on a new Agency. Yet, the Parliament’s response to agencification does not seem to be just a linear development of its earlier preferences for a
single integrated hierarchy of control in which agencies are controlled by the
Commission and the Commission answers to Parliament. The EP would
seem to have become amenable to multiple methods of control which also
involve the Council, the courts, administrative bodies and stakeholders. The
latter approach is, arguably, better suited both to the structure of the Union’s
political system and to agencification itself. That may be at least a part of the
explanation for why the EP seems to be making its peace with agencification
on terms that also seem acceptable to the Commission and the Council.
Biographical note: Christopher Lord is Professor at ARENA, The Centre for
European Studies, The University of Oslo, Norway.
146
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AGENCY GOVERNANCE IN THE EU
ACKNOWLEDGEMENTS
The author thanks the Co-Editors and the JEPP referees for their comments on
earlier drafts.
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Index
Page numbers in Italics represent tables.
autonomy and accountability 5–7; and
agencification 135–6; and EUROPOL
70–86; types of 74
Aberbach, J.: et al 96, 111
Agence Europe 24–5
agencies and networks 32–51;
Community 95–6; differences 34–9;
European Union level 90–109; listings
40–4, 109; pillars 95; professionals
110–30
agencification 3, 112; accountability and
irresponsibility 135–6; counterreformation and deparliamentarization 136; EP 132–48;
EP votes 134, 140–1; fragmentation
135; and SERS 32–51
agencified network 34–49
Agency for the Cooperation of Energy
Regulators (ACER) 19–26, 44, 48,
133–47
agency governance 2–11; consequences
and trajectories 5–7; legitimacy,
autonomy and accountability 6–9;
regulatory objectives 5–6;
supranational centre formation 7
agency professionals (EU) 110–30;
accountability and legitimacy 112–26,
119–20; content and cohesion of
ideologies 112–16; economic
governance 115–16, 124–7, 124; level
of centralisation 114–15, 122–3, 122;
political attitudes 110–28; response
rates 117; tasks survey and analysis
116–26
Ahrne, G.: and Brunsson, N. 35
Amsterdam, Treaty 80
Ansell, C. 37
ARENA (Centre for European Studies)
1
Bach, D.: and Newman, A. 53–6, 65
Baker, A.: et al 57
Bangemann, M. 24–5
Barbieri, D.: and Ongaro, E. 93
Barnett, M.: and Finnemore, M. 93
Baumgartner, F.: and Jones, B. 113–14
Berg, V.: and Horrall, J. 36
Bischoff, G.: and Heidenreich, M. 58
Black, J. 113
Body of European Regulators for
Electronic Communications (BEREC)
23–7, 48, 56
Borgatti, S.: et al 61
Börzel, T. 13, 34; and Risse, T. 32, 60
Bouckaert, G.: and Peters, B. 73
Bovens, M. 73–5, 113–14
Boyt, T.: et al 55
Brady, H. 79
Brinegar, A.: et al 116
Brown, C.: and Scott, C. 34
Brown, P.: and Tarca, A. 60–1
Bruggeman, W. 80; and Den Boer, M.
76, 79
Brunsson, N.: and Ahrne, G. 35
Burt, R. 60
Busuioc, M. 75, 80, 84, 93, 98, 137;
Curtin, D. and Groenleer, M. 6, 70–
89
Büthe, T.: and Mattli, W. 62
Carpenter, D. 73–5
Carrington, P. 61
Centeno, M. 112–13
centrality 61–6
Chaher, S. 57
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INDEX
Egeberg, M. 12, 61; and Curtin, D. 7,
91, 105, 113; and Trondal, J. 7, 90–
109, 132–5
Ehnert, T. 143
Eionet 47
Eising, R.: and Kohler-Koch, B. 13
Elgie, R.: and McMenamin, I. 3
Elgström, O.: and Jönsson, C. 54–5
Environmental Protection Agency
(EPA) 45, 47
Erikson, E.O. 1
Eurobarometer 116
Eurojust 40, 79, 82
European Anti-Fraud Office 4, 39, 43
European Asylum Support Office 133,
138, 141
European Aviation Safety Agency
(EASA) 18–19, 37, 42
European Banking Authority 19, 43
European Cartel Office 22
European Central Bank (ECB) 4, 33, 39,
47
European Chemicals Agency 19, 133–47
European Commission (EC): ERAs and
IRAs 12–31; and ERNs 52–66; and
EU agency professionals 110–28; and
EUROPOL 70–89; Governance
White Paper 135–6
European Competition Network 56–7
European Court of Justice (ECJ) 14, 18
European Environment and Sustainable
Development Advisory Councils
(EEAC) 47
European Environmental Agency (EEA)
41, 47
European Food Safety Authority
(EFSA) 19–23, 41
European Institute for Gender Equality
95, 133, 140–3
European Maritime Safety Agency
(EMSA) 19, 37–9, 42
European Medicines Agency (EMEA)
19–24, 39–41
European Network of Heads of Nature
Conservation Agencies (ENCA) 47
European Network and Information
Security Agency (ENISA) 4, 95
European Ombudsman 47
European Parliament (EP) 2–9; and
agencification 132–48; amendments
142–6; Economic and Monetary
Affairs Committee 143; Members of
133–46; policy goals and
Chalmers, D. 23
Chiti, E. 12, 105
Christensen, J. 73; and Nielsen, V. 14,
34, 92; and Yesilkagit, K. 15, 16
Christensen, T.: and Lægrid, P. 3, 36
Civil Liberties Committee 139
Coen, D.: and Thatcher, M. 14–17, 24–
6, 32–3, 48, 52–7
command and control instruments 116
Committee on Civil Liberties, Justice
and Home Affairs (LIBE) 80, 82
Committee of European Banking
Supervisors (CEBS) 48, 57
Committee of European Insurance and
Occupational Pensions Supervisors
(CEIOPS) 48, 57
Committee of European Securities
Regulators (CESR) 6, 24–7, 47;
centrality 61–6; and ERN standards
52–66; existing standards 65–6;
financial industry capitalisation effect
64; linkages 61–2; patterns and
determinants of adoption 58–65, 59;
standards 57–8
Community Fisheries Control Agency
95
Community Plant Variety Office
(CPVO) 18–19, 43, 47
Council of European Energy Regulators
(CEER) 24, 56
Curtin, D. 70–1, 75–7; and Egeberg, M.
7, 91, 105, 113; Groenleer, M. and
Busuioc, M. 6, 70–89
Daugbjerg, C.: and Roederer, C. 4
Day, P.: and Klein, R. 73
de facto accountability 6–7, 72–5, 85
de facto agency autonomy 5–7, 72–5
de jure autonomy 5–7, 72–5
De Visscher, C.: et al 57
Dehousse, R. 3, 5–6, 6, 13–17, 33, 72, 92
Den Boer, M. 77; and Bruggeman, W.
76, 79; and Walker, N. 76
Denzau, A.: and North, D. 111
Directorates-General 22–3, 32, 56–7;
and the EC 32–51, 92–106; and EU
level agencies 90–109
Dubnick, M.: and Romzek, B. 73
duplication effect 94, 100, 105–6
Eberlein, B. 24; and Grande, E. 33, 52,
114; and Newman, A. 32–3, 52–4
Education, Audiovisual and Culture
Executive Agency 38
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INDEX
institutional influence 97–104;
management boards attitudes and
perceptions 93–106; political salience
100–6, 102–3; RECON 1; regulatory
bodies creation and design 2–5;
regulatory tasks and attitudes study
95–106, 96–103, 109; Treaty on the
Functioning (TFEU) 82
European Union Network for
Implementation and Enforcement of
Environmental Law (IMPEL) 47
Everson, M. 13, 71
legitimisation beliefs 138–40; votes
134, 140–1
European Platform of Regulatory
Authorities 57
European Police College (CEPOL) 82,
137
European Police Office (EUROPOL) 33,
39–40, 70–86, 133–9; autonomy and
accountability 70–86; computer
system 76, 79; Conventions 76–85;
creation and early history 75–80; Joint
Investigation Teams (JITs) 78–9; Joint
Supervisory Body 77; legitimacy 84–5;
Liaison Officers (ELOs) 76; Organised
Crime Threat Assessments (OCTAs)
81; SitCen 79–82, 137–47;
supranational development 76–8, 80–
3; US/Interpol co-operation 79–80
European Railway Agency (ERA) 19,
37, 42
European Regulators Group for
Electricity and Gas (ERGEG) 24–7,
56
European Regulators Group (ERG) 24–
7
European Regulators Group for Postal
Services (ERGP) 45
European regulatory agencies (ERAs)
12–31, 19, 21; delegation to the
Commission 22–4; delegation to
European regulator networks 26–7;
delegation to national IRAs 24–6;
rational-historical approach 15–17;
spread analysis 13–15, 17–22
European regulatory networks (ERNs)
52–69; centrality 61–6; distinguishing
features 54–5; domestic adoption of
standards 52–66; and EU governance
53–6; existing standards 65–6;
linkages 61–2; patterns and
determinants of adoption 53, 58–65,
59; policy-making structure 52–66
European Securities and Markets
Authority (ESMA) 6, 19–24, 43
European System of Financial
Supervision 20
European Training Foundation 38
European Union (EU): agencies high
level 90–130; agency behaviour 92–4;
Agency for Fundamental Rights 133,
138; agency professionals 110–30;
contact types 99–100, 99; executive
order 7; important concerns/
considerations 99–104, 99, 102–3;
Falkner, G.: et al 60
Financial Times 22–6
Finnemore, M.: and Barnett, M. 93
Flinders, M. 12, 35, 132
Forum for European Securities
Commissions (FESCO) 24
Fossum, J.E. 1
Franchino, F. 22
Fundamental Rights Agency 141–3
Gehring, T.: and Krapohl, S. 24, 92
Geradin, D.: and Petit, N. 92
Gerring, J. 71
Gilad, S.: and Levi-Faur, D. 34
Gilardi, F. 3, 12–14, 20, 25, 66, 110; and
Maggetti, M. 6, 38, 52–69
Goodman, J. 25
governancing 36–8; economic 115–16
Grande, E.: and Eberlein, B. 33, 52, 114
Green Spider Network 47
Greenforce 47
Griller, S.: and Orator, A. 18
Groenleer, M. 5, 13, 17, 20, 71, 75–81,
85, 98, 105, 132; Busuioc, M. and
Curtin, D. 6, 70–89; et al 92–3; and
Kars, M. 34
Haas, P. 113
Habermas, J. 139–40, 140
Harlow, C.: and Rawlings, R. 75
Heichel, S.: et al 65
Heidenreich, M.: and Bischoff, G. 58
Herman Report 136, 147
hierarchical clustering 59
Hix, S.: and Lord, C. 133
Hofmann, H.: and Türk, A. 91, 105
Hooghe, L. 111, 111–12, 116, 121–3,
126; et al 115
Horrall, J.: and Berg, V. 36
Huber, J.: and Shipan, C. 16
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INDEX
Lütz, S. 57
Independent Regulators Group (IRG)
24, 56
independent regulatory agencies (IRAs)
12–31
Industry and Information Technology
Commission 24–5
Insurance and Occupational Pensions
Authority 19
International Civil Aviation
Organisation (ICAO) 105
International Financial Reporting
Standards 58
interventionists 115–16
McGowan, L.: and Wilks, S. 22
McGreevey, C. 26
McMenamin, I.: and Elgie, R. 3
Maggetti, M.: and Gilardi, F. 6, 38, 52–
69
Majone, G. 3, 7, 12–14, 22, 33, 52–5,
71–5, 85, 93, 110–15, 123, 123–6,
132–5
Mannheim Centre for European Social
Research (MZES) 1
Marks, G.: and Steenbergen, M. 112
Martens, M. 47–8
Martinez-Diaz, L.: and Woods, N. 36
Mattli, W.: and Büthe, T. 62
Meier, K.: and O’Toole, L. 52–5
Menon, A.: and Kassim, H. 92
Mény, Y.: and Kreher, A. 2
Meroni doctrine 22
Mizruchi, M. 55, 60
Moe, T. 73–5, 85, 114, 135
Moloney, N. 20, 24, 25
Monar, J. 78
Mulgan, R. 73
Jeppesen, L.: and Trondal, J. 12
Joint Aviation Authority (JAA) 27, 46
Jones, B.: and Baumgartner, F. 113–14
Jönsson, C.: and Elgström, O. 54–5
Jordana, J.: et al 37; and Levi-Faur, D. 3
Journal of European Public Policy 2
Justice and Home Affairs 77–83, 133–
47; Committee on Civil Liberties
(LIBE) 80, 82
Kars, M.: and Groenleer, M. 34
Kassim, H.: and Menon, A. 92
Kaufman, H. 72
Kaufman, L.: and Rousseeuw, P. 59
Kelemen, R. 14, 18, 23–4, 24, 92, 114,
125; and Tarrant, A. 4, 33
Kenis, P.: and Provan, V. 53; and
Schneider, V. 54
Klein, R.: and Day, P. 73
Klijn, E. 35
Knill, C.: and Lehmkuhl, D. 60
Knoke, D. 60
Kohler-Koch, B.: and Eising, R. 13
Krapohl, S. 5, 92; and Gehring, T. 24,
92
Krehbiel, K. 136
Kreher, A.: and Mény, Y. 2
Kreppel, A. 140
Kriesi, H.: et al 115
networkation 35–49
networked agency 34–49
Newman, A.: and Bach, D. 53–6, 65;
and Eberlain, B. 32–3, 52–4
Nielsen, V.: and Christensen, J. 14, 34,
92
Niskanen, W. 114
non-majoritarian institutions 110–11
North, D.: and Denzau, A. 111
Occhipinti, J. 78
Office for Harmonisation in the Internal
Market (OHIM) 18–19, 39, 43, 47
Ofgem 20
Olsen, J. 13, 105, 111
Ongaro, E.: and Barbieri, D. 93
Orator, A.: and Griller, S. 18
ordinary least squares (OLS) regressions
62–5; ERN and CESR estimates 63
O’Toole, L.: and Meier, K. 52–5
Lægrid, P.: and Christensen, T. 3, 36
Lamfalussy process 57, 66
Lastra, R.: and Shams, H. 71
Lavranos, N. 80
Lehmkuhl, D. 32–3; and Knill, C. 60
Levi-Faur, D. 4–5, 12, 32–51, 33–5; and
Gilad, S. 34; and Jordana, J. 3
Lisbon Treaty 82–3, 95
Lord, C. 8, 132–48; and Hix, S. 133
Loth, W. 91
Papadopoulos, Y. 54–5
Patastamkos Report 139, 147
Peers, S. 77
Peters, B. 33; and Bouckaert, G. 73; and
Pierre, J. 34, 46
Petit, N.: and Geradin, D. 92
Pierre, J.: and Peters, B. 34, 46
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INDEX
Pierson, P. 15
Politt, C.: et al 12
Pollack, M. 16
Pollitt, C. 73
Posner, E. 66
Principal-Agent (P-A) models 72–4
Provan, V.: and Kenis, P. 53
Putnam, R. 110, 111, 116
Standing Committee on Operational
Cooperation on Internal Security
(COSI) 81–3
Steenbergen, M.: and Marks, G. 112
Stone Sweet, A.: and Thatcher, M. 73,
92, 110
Strang, D.: and Soule, S. 55
Strøm, K. 135, 144
Rail Transport: Working Party 45
Randall, E. 92
Rawlings, R.: and Harlow, C. 75
Reconstituting Democracy in Europe
(RECON) 1
Reding, V. 25
Registration, Evaluation, Authorisation
and Restriction of Chemicals
(REACH) 137–47
regulatory bodies 2–31; agencies and
networks 2–5, 12–31; creation and
design 2–5; spread analysis 12–31
Rhodes, R. 33–5
Risse, T.: and Börzel, T. 32, 60
Rittberger, B. 138; and Stacey, J. 15; and
Wonka, A. 1–11, 18, 93, 110–30
Roederer, C.: and Daugbjerg, C. 4
Romzek, B.: and Dubnick, M. 73
Rousseeuw, P.: and Kaufman, L. 59
Tallberg, J. 14–16
Tarca, A.: and Brown, P. 60–1
Tarrant, A.: and Kelemen, R. 4, 33
Thatcher, M. 4, 12–31, 75; and Coen, D.
14–17, 24–6, 32–3, 48, 52–7; and
Stone Sweet, A. 73, 92, 110
The Guardian 78
Torfing, J.: and Sørensen, E. 35
Trade Marks Office 18–19
Translation Centre for the Bodies of the
European Union 95
Treaty on the Functioning of the
European Union (TFEU) 82
TREVI network 33–4
Trondal, J. 70, 91; and Egeberg, M. 7,
90–109, 132–5; and Jeppesen, L. 12
Tsebelis, G. 137
Türk, A.: and Hofmann, H. 91, 105
UCINET (social network analysis
software) 61
United Nations Economic Commission
for Europe (UNECE) 45
United States of America (USA):
federal agencies 39, 45
Usai, A.: and Soda, G. 53
Sabel, C.: and Zeitlin, J. 13, 32, 47, 113
Safety and Health at Work Agency 19
Scharpf, F. 126
Schiavone, G. 91
Schillemans, T. 84
Schneider, V.: and Kenis, P. 54
Scott, C. 18–19; and Brown, C. 34
Scott, J. 61
Shams, H.: and Lastra, R. 71
Shapiro, M. 7–8, 93
Shipan, C.: and Huber, J. 16
Simpson, S. 25–6, 34
Single European Regulatory Space
(SERS) 32–51; agencies and networks
listing 40–4; analysis methodology
and case selection 37–9; findings 39–
48, 40–4; mapping 34–7; regimes 33–
49, 46
Skowronek, S. 91
Slaughter, A. 35–7
Soda, G.: and Usai, A. 53
Sørensen, E.: and Torfing, J. 35
Soule, S.: and Strang, D. 55
Stacey, J.: and Rittberger, B. 15
Van Knippenberg, D.: and Van
Leeuwen, E. 96
Verhoest, K.: et al 72–3
veto players 60, 65
Vibert, F. 110
Vocational Training Development
Centre 19
voluntary agreements 115–16
Vos, E. 71, 92
Wagner, W. 83
Walker, N. 78; and Den Boer, M. 76
Wilks, S. 23, 56–7; and McGowan, L.
22
Wonka, A.: and Rittberger, B. 1–11, 18,
93, 110–30
Woods, N.: and Martinez-Diaz, L. 36
Woodward, R. 77–8
154
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INDEX
Yesilkagit, K. 72; and Christensen, J. 15,
16
Zitto, A. 48
Zeitlin, J.: and Sabel, C. 13, 32, 47, 113
155
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