June 23, 2020
By Miroslava Scholten and Alex Brennikmeijer
This blogpost introduces the book ‘Controlling EU Agencies The Rule of Law in a Multi-jurisdictional Legal Order’ which launches the debate on how to build a comprehensive system of controls in light of the ongoing trends of agencification and Europeanisation of the executive in the EU. The book was edited by Miroslava Scholten, Associate Professor of EU Law, Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE), Utrecht University and Alex Brenninkmeijer, Member of the European Court of Auditors and Professor of the Rule of Law’s Institutional Aspects, Utrecht University. The book is highly relevant to TARN members and everyone interested in European agencies.
Agencification and Europeanisation of the executive have challenged the system of controls and legitimacy in the EU. How can a court deal with the challenges of an act being ‘too soft, too technical or too shared’ to review? Which type of control is necessary for an inaction by an independent agency? Which jurisdiction should be selected to exercise controls for decisions taken by EU and national officials, by whom and how? We believe that these and other pertinent questions of control and protection of fundamental rights over the executive in the EU can be better addressed by having a comprehensive system of controls. The comprehensive system entails different types of control, relevant institutions, procedures and jurisdictions being interconnected in such a way that they are aligned with each other and could, if necessary, mitigate each other’s gaps and excesses. This book hopes to launch the debate on the build-up of such a system for a particular type of executive institution: EU agencies.
This year, we stand at the 45th anniversary since the creation of the first two EU agencies who have grown since 1975 drastically in ‘quantity’ and ‘quality’. EU agencies have been expanding their powers from information gathering to taking de jure or de facto binding decisions and advice. This growth has occurred in different types and speeds in different policy areas. The proliferation of agencies has followed no ‘grand design’ for organizing controls over their actions and outputs resulting in a great many different controlling mechanisms and standards and in potentially unnecessary gaps and excesses in controls. This puts the legitimacy of the EU (and its agencies) at risk. So, how can we build a comprehensive system of controls for EU agencies and ultimately the EU executive to ensure controls and promote legitimacy?
Controlling EU Agencies brings relevant concepts of control together which are sought to be useful to connect further when building the comprehensive system of controls in further research and (legislative) practice. These include accountability, autonomy, liability, protection of fundamental rights, effective judicial protection, deference, transparency and the effects of multi-jurisdictional setting upon these. Furthermore, the book discusses how controls have been organized in the case of seven EU agencies, which represent different functional types, and analyzes controls for specific outputs. It seems logical to organize controls over an agency in correlation to the strength of powers of agencies. The list of EU agencies include EASO, EFSA, Eurojust, ESMA, EASA, EFCA, and SRB, with insights useful also for other EU agencies. In conclusion, the book suggests three key areas for further investigation based on all the comparative observations taken from the various concepts and analyses of controls for specific tasks. Here, it calls first for the necessity of raising technical expertise in the controlling institutions and procedures. Bridging the mismatch in knowledge between the controllers and the experts under control is essential to be able to exercise meaningful controls. Then, it suggests interplays necessary to consider for the creation of the comprehensive system. These interplays include traditional and agency-specific, ex ante and ex post, internal and external, de jure and de facto mechanisms. The controlling mechanisms are further better aligned with the necessary degree of autonomy, the controls, rules and institutions of other jurisdictions, where relevant. Finally, the book raises the question of who should be building the comprehensive system of control, hinting at the potential usefulness of collaboration for this between academics and practitioners, the latter including, especially, members of national legislative bodies and the European Parliament.
All in all, the book presents an idea as to how to build a comprehensive system of controls in light of the ongoing trends of agencification and Europeanisation of the executive in the EU. Our research has not yet arrived at the exact formula for the potential (legislative) act and necessary nuances for the number and type of controls for specific agencies’ functional types. In this light, we hope that the book lays down a necessary start in that direction and that it will be valued for what it achieves as such. We invite further research and (legislative) practice to consider the insights from this book when analyzing and designing controls for EU agencies and ultimately the EU executive.
This book is an edited volume written by 30 top experts in respective fields from different research centers of Utrecht Law School and School of Governance, the Netherlands and from across Europe: G.J. Brandsma, A. Brenninkmeijer, A. Buijze, F. Cacciatore, M. Catanzariti, M. Chamon, P. Craig, E. de Jong, M. Eliantonio, D. Fernandez-Rojo, S. Gabbi, T. Huisjes, B. Kleizen, M. Maggetti, F. Meyer, C. Moser, L. Mustert, S.F. Nicolosi, Y. Papadopoulos, S. Prechal, M. Scholten, M. Simoncini, B. Strauss, J. Timmermans, S. Tosza, A.H. Türk, M. van Rijsbergen, K. Verhoest, R. Widdershoven, M. Wood. We are grateful for the financial support by the Utrecht Law School, the Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE) and the Dutch Scientific Council (the ‘veni’ project of M. Scholten).
The book can be ordered here: https://www.e-elgar.com/shop/gbp/controlling-eu-agencies-9781789905410.html
This post first appeared here: https://www.uu.nl/en/news/controlling-eu-agencies-new-book-by-miroslava-scholten-and-alex-brenninkmeijer
Author : TARN