September 19, 2016
Last Wednesday, the Council gave its final approval on the creation of a European Border and Coast Guard. The regulation grants additional powers to the agency formerly known as Frontex. This development highlights the contemporary relevance of an earlier TARN-blog by CERiM co-director Ellen Vos. In her blog, she discusses the agencies’ constitutionality and the powers conferred upon them. Prof. Vos observes a constitutional neglect of agencies and holds that it is necessary to improve EU agencies’ constitutional position.
By Ellen Vos
Operating in the shadows of constitutional framework
The rise and operation of agencies within the European Union institutional structure fits well in the academic thinking on the nature of the EU executive. EU agencies as ‘in-betweeners’ amidst EU institutions and Member States are part and parcel of the EU executive and strengthen its composite character. This position of EU agencies is inevitably also a cause for critical concern, in particular in relation to their constitutional position and legitimacy; their increasing role at the global level and their hierarchical way of knowledge production, their functional operation and effectiveness in furthering European integration.
This worry is intensified by the new Meroni 2.0 doctrine developed by the Court of Justice of the European Union in the ESMA or Short-selling case that allows agencies to further develop their own regulatory roles. The notable absence of their position in the system of non-legislative acts and delegation of powers laid down in Articles 290-291 TFEU raises further concerns in relation to the nature of the EU executive and the possible conflicting roles of the Commission and the agencies and the accountability and measures of control on these agencies. This absence displays agencies as actors that are operating in the shadow of hierarchy and can adopt binding executive acts. This would ultimately be at odds with the principle of conferral, i.e. EU can only act within the powers conferred to it by Member States. Although the Court in ESMA recognised the possibility to delegate binding decision-making powers to agencies outside the framework of Articles 290 and 291 TFEU, this can nonetheless be only seen as a provisional solution.
Beyond technical assessment?
The proliferation of EU agencies and the new tasks and new rationales as well as the diversification of their tasks have made it increasingly difficult to reconcile agency operation with the traditional agency model based on depoliticised operation. To be sure, where the Commission is expected also to play a more politicised role, as the Juncker Commission has clearly taken on, certain technical tasks might be better undertaken in isolation from the political process by EU agencies. However, practice shows that the tasks conferred upon agencies are often going beyond a mere technical assessment and involve political, economic or social choices. The recognition of this practice by the General Court in its case law is meaningful. Agencies are increasingly deciding on issues pertaining to the public good.
Highly problematic hereby is the situation that agencies may be used to move European policy and integration strategies beyond and circumvent current institutional impasses and political conflicts within the Commission, amongst the Member States, or between Union institutions. This seems to have been precisely the case with the delegation of powers to the three supervisory authorities in the financial sector: European Securities and Markets Authority (ESMA), the European Banking Authority (EBA), the European Insurance and Occupational Pensions Authority (EIOPA) and seems to occur again in the refugee crisis.
What is problematic is not only that EU agencies are asked to engage in political processes and need to operate within complex and conflicting interests to pursue rather open-ended mandates instead of clear mandates, but also that these agencies are confronted with these open-ended mandates in relation to highly contentious situations and might be unable to carry out such tasks.
Calling for fully-fledged constitutionalisation of agency operation
This evolvement of EU agencies therefore demands profound scholarly attention. It crucially requires a thorough rethinking of the position of EU agencies in the EU executive, necessitating inter alia a careful reconsideration of current independence and accountability mechanisms for agencies while acknowledging at the same time that they are part of the EU composite executive power. Ultimately, this calls for further, fully-fledged constitutionalisation of agency operation.
Ellen Vos is coordinating partner of TARN. She is professor of European Union law at Maastricht University, co-director of the Maastricht Centre for European Law and the Centre for European Research in Maastricht.J.Adriaensen