October 11, 2018
by Katrijn Siderius and Miroslava Scholten
EU agencies’ number and powers have grown tremendously in the recent years. Despite the so-called Meroni ‘non-delegation’ doctrine, EU agencies perform a wide range of tasks. They can contribute to or pass (soft) rules of general applications and impose sanctions for violation of EU laws vis-à-vis private actors (Scholten and Luchtman 2017). The increase of powers and hence impact of EU agencies on society raises the urge for legitimising these institutions. One of the major ways to legitimize institutions is establishing proper governance structures and ensuring suitable top-level officials who manage agencies and bare responsibility for agencies’ performance. In this blog post, we offer a comprehensive evaluation of EU agency directors’ functions and appointment procedures and requirements. We show that the appointed directors fit the profiles of EU agencies that they head well, nevertheless we quest the necessity of the existing excessive variety of appointment procedures (12!), which in our view hinders legitimacy.
Zooming in at the EU agencies’ directors
Who is an EU agency director and what are their tasks? The director is normally a man (at the moment of our research, only 6 out of 33 EU agencies were headed by a woman) and responsible for the daily management of the agencies of the EU. Their job consists of management of human resources, procurement procedures and data protection, but also of drafting concept working programmes and controlling budgets. To be more specific, one of the most wide-spread powers of agency directors is the responsibility for staff matters: 30 out of 33 (studied by us) agency directors have this power. Closely following are the preparation of draft work-programme and budget, with 28 and 26 appearances, respectively. Roughly half of the directors, 17 in total, is responsible for drafting reports about the functioning of the agency. And only a small minority, 8 directors, is explicitly required to take measures against fraud within the agency. Two agencies stand out with regard to functions and powers. First, the director of ENISA has the task to maintain in good contact with other EU institutions and stakeholders. The director thus has an explicit external role. Second, the director of FRONTEX has very far going powers with regard to requests from Member States for joint operations and equipment: idem has to approve those requests.
How are they appointed? Most commonly, the Commission, after a publication of the vacancy in the Official Journal of the European Union, proposes a list of suitable candidates to the Management Board of the agency. The Management Board choses a candidate. Before the candidate is officially appointed, he or she is required to make a statement to the relevant committee in the European Parliament and ask questions. Additionally, the whole procedure needs to be open and transparent.
Almost all agencies have a variation on this procedure; Scholten (2014) distinguishes 12 different formulas for 35 EU agencies that she studied. In the case of some agencies the European Parliament is not involved at all. Most of the time these are the agencies that do not say anything about open and transparent procedures or publication in the Official Journal of the European Union as well. For these agencies, the law merely prescribes that the commission proposes and the Management Board choses.
In some procedures, the European Parliament has more power. Sometimes it is asked to adopt a non-binding opinion (eight agencies). In the case of EASO, FRONTEX and EU-LISA, the management board also has to report to the Parliament on how it has considered this opinion. In the case of FRA and FRONTEX, the Parliament may ask all suitable candidates questions and state a preferred candidate. For the financial supervisors, ESMA, EIOPA, EBA and SBR, the European Parliament has the power of approval.
For two agencies, the Management Board has even more power than being the veto-player; Management Boards of EU-LISA and EASO can ask for a completely new procedure if they are of the opinion that the candidates proposed by the Commission are not suitable.
Table 1 gives an overview of the role of the different EU institutions. It becomes clear that the European Parliament has the least and the Management Board the most powerful role. The last veto player is usually the Management Board and otherwise it is the Council. The member states, who make up most of the Management Boards, thus have a tight grip on director appointment.
Level of power
|European Parliament||The Council||The Commission||Management Board*|
* Some agencies do not call their highest body ‘Management Board’, but ‘Administrative Board’, ‘Governing Board’ or ‘Supervisory Board’.
Is there a ‘fitness and proper’ test? A small majority of the regulations on agencies (17) has explicit statements on the basis on which agency directors need to be appointed. These statements ask for a person who has substantive expertise in the policy area that the agency is working in, for example in the case of EASO: “On the basis of experience in the field of asylum”. Some of the agencies also look for administrative and management skills and some of them mention ‘personal merit’.
Strikingly, our research of their cv’s shows that whether or not an agency has a wanted profile, virtually all agencies have directors with the wanted profiles. All 33 directors (heading agencies that we have studied) have management experience. Most of the directors have gained this experience within public administration, sometimes combined with some private experience; 23 agency directors have experience with EU administration and 13 with the agency itself. As for substantive expertise, only one agency director is not an expert in the field where the agency is working on, which is the EASO director.
Remarks on legitimacy
In the recent years, the EU has been constantly attacked for its ‘legitimacy deficit’. In this debate, it is important also to scrutinize EU governance procedures, especially those in relation to an executive actor that has been on the rise in terms of numbers and powers, i.e., the EU agencies. Our analysis brings both good and somewhat concerning news in this respect. On the positive side, EU agencies directors’ seem to have relevant experiences, which brings confidence in the well-functioning of their agencies. As regards the concerns, the existing excessive variety of appointment procedures is questionable and affects legitimacy by increasing the complexity of the EU. In both respects, to enhance coherence, legislative changes could be beneficial for promoting legitimacy of EU agencies: first, explicit criteria for selection of EU agency directors’ should be extended from 17 to all EU agencies, and second, the variety of appointment formula’s should be decreased from 12 to a comprehensible, functionally-necessary and justifiable number.
Author : TARN
Katrijn Siderius is a master student of EU governance master programme, Utrecht University, and Miroslava Scholten is an Associate Professor of EU law, Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE), Utrecht University.