Jean Monnet Center at NYU School of Law


3. European agencies: Delegation v. Accountability?

A. The Growth of European Agencies

Quantitatively and qualitatively, the mushrooming of specialized European agencies is one of the most interesting developments in the functioning of EU bureaucracy in the post-Maastricht years.

To better illustrate this, a general remark is in order. The Commission is by far the largest sector of the EU's administration: in 1999, the number of authorized staff totalled 21,438 persons (including temporary agents), compared to 4,102 in the European Parliament and 2,671 in the Council of Ministers.35 However, the staffing of both the Council and Parliament - although starting from a much more modest base - recently appears to have grown at a faster rate than that of the Commission.36 This is noteworthy, given the expansion in the scope of EU policies registered at Maastricht and Amsterdam. As indicated above, the growing role of the EU in the field of risk regulation does not merely entail the adoption of legislative rules; it also requires an elaborate apparatus for scientific assessment, as well as decisions about risk management that must be taken at the European level. One might thus have expected this evolution to be reflected in a sizeable growth of the Commission, but this does not appear to have been the case. Between 1995 and 2000, Commission staff (including clerical and logistical support staff, as well as translators) increased from 15,836 to 17,087. In roughly the same period, ten European administrative agencies with a total staff of 1,045 were created. These covered areas ranging from the environment, or health and safety at work, to racism and xenophobia, and reconstruction in Kosovo. These figures provide a simplistic, yet arguably telling, picture of the contradictory trends at work. On the one hand, national governments keep enlarging the range of missions entrusted to the Union; on the other hand, they are reluctant to accept parallel growth in the means with which the Commission (symbol of the loathed Brussels Eurocracy) is endowed. It is known that the tension between these two logics has resulted in the managerial inadequacies - massive outsourcing, absence of control, and ultimately corruption - depicted in the report of the independent experts that prompted the resignation of the Santer Commission.37 However, beyond these pathological episodes, the same structural contradictions have also played a key role in the emergence of some kind of functional decentralization within the EU bureaucracy.

Most of the agencies created in recent years appeared as responses to the growing need for administrative assistance in the preparation of EU policies and their implementation. The existing agencies can be grouped in three broad categories:38

The trend towards the establishment of specialized administrative structures seems to have been encouraged by the criticisms levelled at the Commission's managerial capabilities in recent years. The establishment of agencies for food safety,43 aviation safety44 and maritime safety45 is currently contemplated, and others are said to be following. This might be seen as an indication that the evolution towards a greater devolution of administrative responsibilities to European structures is fairly uncontroversial. However, the situation is more complex.

Following the lead of Giandomenico Majone, some scholars have been arguing that the establishment of specialized agencies was a positive development in its own right, likely to improve the effectiveness and the credibility of European regulatory policies.46 However, reactions within the relevant policy communities have shown far less enthusiasm. Commission officials have warned against a development that might lead to the establishment of rival structures and that they thus view as a threat to their institution. Commission President Romano Prodi was most explicit in this respect. In a speech before the European Parliament on 3 October 2000, he made a vibrant plea in favour of the necessity of preserving the Commission's authority over specialized agencies.47 On their side, national administrations have often insisted on retaining a measure of control over the work of agencies.

All this has led to the establishment of a system of checks and balances aimed to ensure that agencies will not emerge as structures that are likely to be too autonomous in their operations. All existing agencies are therefore governed by administrative boards composed of national representatives, to which an expert appointed by the European Parliament is occasionally added. Great care has also been taken to ensure the smooth co-operation of European agencies with their national counterparts, particularly for those agencies that enjoy autonomous decision-making power (such as the Trademark Office) or that are entrusted with the responsibility to prepare decisions to be made by the Commission, as is the case for the European Agency for the Evaluation of Medicinal Products (EMEA).48 Last, but not least, agencies' powers have generally been defined fairly strictly. Most of them have been denied any decision-making power of their own. The regulation establishing the Lisbon Drug Monitoring Centre made it explicit that `[t]he Centre may not take any measure which in any way goes beyond the sphere of information and the processing thereof'.49 Whereas the Commission's initial proposal foresaw the possibility that the EMEA would make autonomous decisions about certain procedural matters - such as the format of the application for marketing authorizations50 - the regulation that was ultimately adopted denied the Agency even this limited degree of autonomy.51 Even the above-mentioned `implementation agencies', which were given narrowly-defined executive powers to implement specialized EU regimes, are subject to a legality control by the Commission.52

A more relaxed attitude seems to have emerged in recent times. Council Regulation 2454/1999 of 15 November 1999 has granted to the European Agency for Reconstruction in Kosovo53 wide powers to manage external aid programmes, which appears to encroach upon the Commission's budgetary powers ex Art. 274 EC. The Commission proposal for the establishment of a European Aviation Safety Agency also envisages the possibility that the latter might adopt non-binding `guidance material';54 coupled with the power to issue individual decisions, this comes close to an independent regulatory power, as has been shown by the Commission's experience in the field of competition policy. Recent proposals also suggested that the administrative boards of yet-to-be-created agencies might not include representatives of the Member States. This seems to reflect a hope that the credibility of these new bodies will thereby be strengthened.55

Notwithstanding these signs of greater openness, a strong anti-delegation bias seems to prevail. The explicit conferral of regulatory powers on autonomous agencies is perceived to be encroaching on the Commission's own implementation powers. Even more symptomatically, although Commission President Romano Prodi had initially called for the establishment of a `strong' regulatory body at the EU level in the wake of manifold food scares, the Commission's own proposal did not even suggest providing the European Food Authority with autonomous power to adopt individual decisions.56

B. Meroni and the non-delegation doctrine

This reluctance to delegate decision-making powers to decentralized bodies is allegedly based on the rather restrictive case law of the European Court of Justice. As early as 1958, the Court's famous Meroni ruling set out a series of conditions that had to be met if delegations of power were to be admissible. The Court admitted that it "cannot be excluded" that power might be delegated to bodies whose existence was not contemplated by the Treaties, if doing so appears compatible with the regulatory powers conferred on the institutions (in the case at hand, the High Authority of the Coal and Steel Community). However the ruling also specified that such delegation is permissible only when "it involves clearly defined executive powers the exercise of which can, therefore, be subject to strict review in the light of criteria determined by the delegating authority", whereas delegation of "a discretionary power, implying a wide margin of discretion" is to be excluded in all cases.57 The Court justified this restrictive position by stressing that the balance of power between European institutions is "a fundamental guarantee granted by the Treaty in particular to the undertakings and associations of undertakings to which it applies".58 It added that the delegating authority could not confer any powers other than those that it had itself received under the Treaty. Delegated powers are thus to be subject to the conditions that would have applied if the delegation had not taken place; treaty rules on publicity, the giving of reasons, and judicial review, cannot be evaded by transferring powers to outside bodies.59

Although given in the framework of the ECSC Treaty, this ruling is generally considered to be valid within the wider Community legal order.60 However, this view appears to neglect the important differences that exist between the institutional settings created by the various treaties establishing the European Communities. The Coal and Steel Community was a largely integrated system in which the High Authority had been endowed with important regulatory powers. In contrast, the Treaty of Rome is regarded to be a mere "framework agreement" that establishes a system in which broad objectives are to be reached gradually through legislative decisions. These basic elements are important in order to assess the relevance of the Meroni precedent in the context of what is now the European Community.

The factual situation that gave rise to the Meroni dispute is worth recalling. Article 53 ECSC confers power upon the High Authority to make financial arrangements common to several undertakings. On that basis, the High Authority adopted a decision establishing a financial arrangement for ensuring a regular supply of ferrous scrap. The implementation of this agreement was entrusted to two private law funds established in Brussels, which enjoyed broad autonomy in the operation of the equalization scheme. The Court therefore concluded that the High Authority had delegated a power it enjoyed by virtue of the Treaty. Situations of this kind are rather rare in the EC context, where decisions taken by the European institutions are usually to be implemented by national administrations. Assuming implementation powers are to be given to some administrative agency, those powers would rarely be taken away from a Community institution; they would instead be removed from national administrations. Indeed, prior to the establishment of EMEA or OHIM, marketing authorizations for medicinal products were delivered, and trademarks were registered, by national bodies rather than the Commission.

The concept of delegation is therefore quite ill-suited to such situations; as the Court pointed out in Meroni, such a concept makes sense only in relation to powers "which the delegating authority itself received under the Treaty".61 Europeanization would be a better description of a process in which powers are transferred vertically (from the national to the EU level) rather than horizontally (from Community institutions to specialized agencies).

Yet, it is through the prism of delegation that the legal community has examined the legality of European agencies.62 This may be partly due to the problem of making sense of a novel type of structure that is difficult to frame within existing categories because of its network-like character.63 But less innocent interpretations are also possible. The alleged inflexibility of the legal system has often been invoked - not least by the Commission and its legal service - against any attempt to confer autonomous powers on specialized agencies, regardless of how limited this delegation might be.

The example of the EMEA is again quite significant. Even though Regulation 2309/93 entrusted the Agency with the management of some procedures for the authorization of pharmaceuticals, its powers stop short of actual decision-making. The measures to be adopted in this framework must therefore be taken by the Commission acting under the supervision of two `comitology' committees (the Committee for Proprietary Medicinal Products and the Committee for Veterinary Medicinal Products). This limitation is largely viewed as a consequence of the non-delegation principle defined in Meroni. Decisions about whether or not to grant a marketing authorization for a given pharmaceutical are indeed complex; they involve difficult choices and a balance must be found between a variety of objectives ranging from health and safety to industrial concerns. As such, they clearly fall into the category of "discretionary decisions" contemplated in Meroni. But even in this case, the Meroni precedent is not as restrictive as one might have thought, for it explicitly contemplated the possibility that the High Authority "grant agencies the power to draw up resolutions the application of which belongs to the High Authority, the latter retaining full responsibility for the same".64 The Court argued that in such a case there is actually no delegation because the High Authority remains in charge. Thus, a system in which the EMEA would have been granted the power to adopt marketing authorizations would have been perfectly in line with the Meroni doctrine, provided that the Commission retained the power to disallow those decisions.65 In other words, even accepting that the Meroni precedent was relevant for the new agencies - a questionable view, as has been seen - other control devices that are more respectful of agency autonomy might have met the demands of the Court of Justice. Another option was chosen nonetheless. This clearly suggests that, in addition to legal concerns, considerations of political opportunity obviously played a role in the definition of agencies' power.

The difference between the current system, in which decisions are prepared by the agency and formally adopted by the Commission, and the kind of delegation contemplated here, might appear tenuous. Yet keeping an arms' length between agencies' operations and the Commission might offer advantages of two kinds.

First, it would significantly increase the transparency of the system. Although all marketing authorizations are Commission decisions under the present rules, the Commission systematically rubber-stamps EMEA recommendations - apparently without even discussing them - since a written procedure is followed. Thus, while EU institutions appear, in principle, to stick to a very strict non-delegation doctrine, in practice they have been content to adopt a far more relaxed attitude. This is easily understandable: given the technical character of the decisions in question, the Commission is naturally inclined to follow expert advice. But why portray a substantively expert decision as a `political' decision? Wouldn't the situation be clearer if the respective responsibilities of scientists and politicians were more clearly delineated? The Commission appears to fear the emergence of potential competitors. However, it should appreciate that the present situation's ambiguity creates risks. One day the Commission might be called upon to bear the responsibility for decisions in which it played a merely formal role. The risk is not simply political. Risk regulation and litigation have developed in parallel in several countries, as citizens aggrieved by decisions of public authorities tend to bring the matters before administrative or even criminal courts. Politicians and public officials are increasingly being sued for their alleged wrongdoings. It would therefore be in their interest to assist in the clarification of everyone's responsibilities.

Second, a clearer delegation of authority to agencies might have the advantage of reducing the risk of undue political interference in what constitutes primarily technical decisions. This does not mean that all political considerations should be precluded. Indeed, many scientific decisions do involve political dimensions: a decision about whether or not to authorize the morning-after pill will necessarily entail ethical considerations in addition to efficacy concerns. Other decisions will have distributive implications that are not for experts to determine. But a clearer demarcation between these two kinds of logic would make it more difficult for all kinds of economic interests and political concerns to hide behind pseudo-scientific arguments, as frequently happens. Of course political bodies would retain the right to disallow the experts, but they would be forced to do so openly. This would force them to give reasons for their deeds. Paradoxically, the development of delegation might therefore enhance accountability, instead of reducing it as is often feared.

35 Source: Final budget of the European Community, OJL39, 12 February 1999.

36 Anne Stevens (with Wandley Stevens) Brussels Bureaucrats The Administration of the European Union, Basingstone: Macmillan, 2001, 15

37 Committee on Independent Experts, `First Report on Allegations regarding Fraud, Mismanagement and Nepotism in the European Commission', 15 March 1999,

38 A general description of EU agencies tasks can be found in Kreher, `Agencies in the European Community: A Step towards Administrative Integration in Europe', 4 Journal of European Public Policy(1997), 246-61; see also Chiti, `The Emergence of a Community Administration: the case of European Agencies', 37 CML Rev. (2000), 309-43.

39 The expression is borrowed from Majone, supra note 9.

40 This is e.g. the case of the European centre for the Development of Vocational Training (Council Regulation 337/75, OJ 1975, L39/1), the European Foundation for the Improvement of Living and Working Conditions (Council Regulation 1365/75, OJ 1975 L 139/1) as well as the European Environment Agency (Council Regulation 1210/90, OJ 1990 L 131/1, amended by Council Regulation 2063/94 OJ 1994, L 216/9)

41 Office of Harmonization in the Internal Market (OHIM), Council Regulation 40/94, OJ 1994, L 11/1 ; Community Plant Variety Office, Council Regulation 2100/94, OJ1994, L 227/1

42 European Training Foundation Council Regulation 1360/90, OJ 1990, L120/1.

43 COM(00)716 of 8 November 2000

44 COM(00)595 of 27 September 2000

45 COM(00)802 of 6 December 2000.

46 Majone, supra note 6, Majone and Everson, `Institutional Reform: Independent Agencies, Oversight, Coordination and Procedural Control' in Olivier De Schutter et al., Governance in the European Union (2001); Vos, `Reforming the European Commission: What Role to Play for European Agencies', 37 CML Rev. 2000 1113-34, Kelemen, `The European `Independent' Agencies and regulation in the EU, CEPS Working Document N° 12, 1997.

47 Speech/00/352 of 3 October 2000.

48 See Dehousse, supra 8 note at 256-57, for a detailed analysis.

49 Article 1 (4) of Council Regulation EEC 302/93, OJ [1993] N° L36/1.

50 Article 13 (2) of the amended Commission proposal for a regulation establishing a European Agency for the Evaluation of Medicinal Products, OJ [1991] C 310/7

51 See Art. 6(5) of Council Regulation 2309/93 of 22 July 1993 establishing a European Agency for the Evaluation of Medicinal Products, OJ[1993] N° L 214/1.

52 See eg Art. 44 of Regulation 2100/94 on Community Plant Variety Rights, supra note 41. A similar control is foreseen in the regulation establishing other agencies. See e.g. Art 18 of the regulation establishing the Centre for the Development of Vocational Training, supra note 40.

53 OJ 1994 L46, p. 58.

54 See Art 13 (b) of the Commission proposal, supra note 44.

55 See Article 24 of the proposal for a Regulation establishing the European Food Authority, supra note 43, and Article 11 of the proposal concerning the European Maritime Safety Agency, supra note 45.

56 Proposal for a Regulation of the European Parliament and of the Council laying down the general principles and requirements of food law, and laying down procedures in matters of food safety, COM(00)716 of 8 November 2000.

57 Meroni v. High Authority, [1957-58] ECR 133, at 151-52.

58 Ibid.

59 Ibid., at 149-50

60 See e.g. Lenaerts, "Regulating the Regulatory Process: `Delegation of Powers' in the European Community ", European Law Rev (1993) 22-49 at 41.

61 Meroni, supra note at 150.

62 See Chiti, "The Emergence of a Community Administration: the case of European agencies", 37 CML Rev. (2000), 309-43, Lenaerts, supra note 60 and Everson, "Independent Agencies: Hierarchy Beaters?", 1 ELJ (1995), Vos, Institutional Frameworks of Community Health and Safety Regulations: Committees, Agencies and Private Bodies (1999) 200-3, 241-48.

63 Dehousse, supra note 8, and Ladeur, `Towards a Legal Concept of the Network in European Standard-Setting' in Joerges and Vos (eds.), supra note 7, at 151-170.

64 Supra note 57 at 147.

65 In Meroni, the Court of Justice clearly indicated that a system in which decisions may be subordinated to the approval of the High Authority, as was envisaged in Articles 8 and 9 of Decision 14/55 ECSC, cannot be assimilated to a delegation since the last say (implicitly or explicitly) remains with the High Authority.




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