Accountability, Control and Independence: The Case of European Agencies

• DOI: http://doi.org/10.1111/j.1468-0386.2009.00480.x
• Author: Madalina Busuioc
• Date: 01 September 2009
• Published date: 01 September 2009

eulj_480599..615

Accountability, Control and Independence:

The Case of European Agencies

Madalina Busuioc*

Abstract: This article points at two problematic assumptions made in some of the con-

temporary European agency literature. It proposes a conceptual framework, integrating

accountability, autonomy and control, and aims to demonstrate how this type of concep-

tualisation contributes to clarifying problematic aspects of the current European agency

debate. Empirical evidence from interviews with high-level practitioners is provided to

illustrate the relevance of the proposed framework. The empirical information reveals

that, at times, the de facto level of autonomy displayed by some European agencies is

below the autonomy provided by the formal legal rules as a result of ongoing controls

exercised by one (or other) of the principals. The repercussions that flow from these

empirical insights for the agency debate in general, as well as for our understanding of

agency accountability, will be discussed at length.

I Introduction

The growing workload of the Union as a result of a continuous expansion of its

activities, coupled with a substantial increase in the complex nature of its attributions,

has resulted in the need to delegate some of its policy implementation functions to

decentralised agencies. Established by both the Commission and the Council,1these

non-majoritarian bodies have multiplied at an increasing pace in recent years.

Although this trend helped partially to qualm inefficiency charges by rendering the

process more effective and expedient, it also opened a veritable Pandora box of pro-

blems relating to independence, control and accountability.

The purpose of this article is to reopen the box—to revisit the academic debate on the

topic and to identify and address some problematic aspects of the contemporary

research. With this aim in mind, the article will show, first of all, that the productivity

of some of the academic discourse on agencies could be improved by critically analys-

ing two of its core assumptions. Second, in light of this, an alternative taxonomy will be

put forward and it will be demonstrated how this type of conceptualisation contributes

to clarifying these central aspects of the agency debate. Third, some empirical evidence

* Utrecht School of Governance (USBO), Utrecht University, the Netherlands. This article has recently won

the Europe Award for Junior Academics from the Montesquieu Institute. I am grateful to Mark Bovens,

Deirdre Curtin, Paul Hart, Sebastian Princern and Kutsal Yesilkagit for their useful comments.

1See, further, D. Curtin, ‘Delegation to EU Non-Majoritarian Agencies and Emerging Practices of Public

Accountability’, in D. Geradin et al (eds), Regulation through Agencies in the EU. A New Paradigm of

European Governance (Edward Elgar, 2005), 88–119.

European Law Journal, Vol. 15, No. 5, September 2009, pp. 599–615.

© 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

from provisional interviews conducted at European agencies will be presented and this

plausibility probe is intended to show the practical relevance of the proposed concep-

tualisation. As such, the article is not meant as an empirical study of agency autonomy,

accountability and control, but as a conceptual piece which makes use of empirical

insights to illustrate the merits of the conceptual framework. Finally, additional rel-

evant consequences that flow from such an approach and have been overlooked in the

agency debate will be revealed.

Before going in depth into these issues however, the general background on the issue

at hand will be provided below by presenting, in brief, some highlights of the academic

discussion surrounding agencies. This is relevant for setting the context for the ensuing

discussion by mapping out the evolution of the contemporary European agency debate,

its status quo, as well as pinpointing where some of the knotty issues lie.

II Retracing the Debate on the Accountability of European Agencies:

Origins and Highlights

The creation of European agencies is one of the most remarkable institutional devel-

opments at the EU level in recent years. Agencies are supposed to operate free of all

political influence and ‘most founding acts expressly stipulate that the agency con-

cerned will be completely independent from the makers of law and politics. The

agency’s output may and should not be influenced by political considerations’.2

Although the first European agencies were established as early as the mid-1970s, the

issue of control and accountability did not come to the forefront initially, given the

fact that the tasks to be performed by the earliest agencies were meant to be purely

informational and non-discretionary in nature. However, with the passage of time,

the process of agencification gained momentum and is now increasingly heralded as

‘the new paradigm of European governance’3and ‘the next mode of growth of the

Union’.4

At present, we are faced with a veritable mushrooming of agencies, coupled with an

increase in agencies’ tasks touching on issues of adjudication, regulation and decision

making, functions quite discretionary in nature. As Geradin and Petit succinctly state

‘the EU’s appetite for creating new agencies seems limitless’.5While originally wel-

comed for their functional benefits and separation from political organs such as the

Council and an increasingly politicised Commission,6agencies subsequently came

under attack precisely due to their operation at a distance from the reach of long-

established controls. Anxiety arose at the possibility of agencies escaping accountabil-

ity and control, predating on the democratic character of the Union and further

increasing the EU’s democratic deficit. The need for agency control and accountability

2R. Van Ooik, ‘The Growing Importance of Agencies in the EU: Shifting Governance and the Institutional

Balance’, in D. Curtin et al (eds), Good Governance and the European Union. Reflections on concepts,

Institutions and Substance (Intersentia, 2005), 145

3Geradin et al,op cit n1supra.

4M. Shapiro, ‘The Problems of Independent Agencies in the United States and the European Union’, (1997)

4(2) Journal of European Public Policy 279.

5D. Gerardin and N. Petit, The Development of Agencies at EU and National Levels: Conceptual Analysis

and Proposal for Reform, Jean Monnet Working Paper (2004), 4

6See, further, G. Majone, ‘Functional Interests: European Agencies’, in M. Shackleton (ed.), The Institu-

tions of the European Union (Oxford University Press, 2002) and M. Everson et al,The Role of Specialised

Agencies in Decentralising EU Governance, Report to the Commission (1999).

European Law Journal Volume 15

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