Decentralisation and Integration into the Community Administrations: A New Perspective on European Agencies

• DOI: http://doi.org/10.1111/j.1468-0386.2004.00223.x
• Date: 01 July 2004
• Published date: 01 July 2004
• Author: Edoardo Chiti

Decentralisation and Integration into the

Community Administrations: A New

Perspective on European Agencies

Edoardo Chiti*

Abstract: This paper focuses on the adoption of a number of Community regulations,

each for a specific sector, to be implemented not just by a supranational administration

(central or peripheral), but by a plurality of national, supranational and sometimes mixed

authorities, with a special role assigned to a Community office set up by the same legis-

lation for a given sector, and granting it legal personality. The purpose of this paper is to

verify whether the various regulations by sector ought not to be regarded as variants of

an emergent general model of joint exercise of certain Community functions. It is argued

that such general model is still in the making, but it is in the process of becoming con-

solidated, notwithstanding the variety of approaches adopted by European legislators.

Such a pattern is characterised by specific, differentiated organisational and procedural

features. This conclusion is relevant in several different ways, the first of which is that it

provides new conceptual tools for interpreting and explaining the process of administra-

tive integration between supranational and national public authorities, in particular by

specifying the taxonomy of the patterns through which a Community function can be

carried out by two different authorities acting jointly. Second, the decentralised integra-

tion model should be considered as a sound and feasible option for the administrative evo-

lution of the Community legal system.

IIntroduction: Issues, Suppositions, and Method

The question of European agencies has been the subject of inquiry on numerous occa-

sions in both political and legal science. As such these studies range from the pioneer-

ing work carried out by Lauwaars1to the first systematic surveys conducted from the

European Law Journal, Vol.10, No. 4, July 2004, pp. 402–438.

© Blackwell Publishing Ltd. 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*Associate Professor of Administrative Law, University of Lecce, Faculty of Law.

1Cf. R. H. Lauwaars,‘Auxiliary Organs and Agencies in the E.E.C.’,(1979) 16 CMLR 365. This work had

indirectly been anticipated by E. Noël and H. Etienne,‘Quelques considérations sur la déconcentration et

la délégation du pouvoir de décision dans la Communauté économique européenne’, (1967) Revue du

Marché Commun 127; with specific reference to European agencies, see K. Lenaerts, ‘Regulating the

Regulatory Process:“Delegation of Powers” in the European Community’,(1993) 18 European Law Review

23, and more recently,X. A. Yataganas, Delegation of Regulatory Authority in the European Union—The

relevance of the American model of independent agencies,Harvard Jean Monnet Working Papers, 03/01.

second half of the 1990s onwards,2as well as Majone’s research into the regulatory

character of the Community,3and more recently, the works reflecting upon the evolu-

tion of European governance.4

These studies should be accredited with the recognition they deserve for having

opened up debate relating to a central tenet of research in the field of European law,

and for having shed light upon certain crucial aspects of the agencification process in

Europe, both from an empirical and normative perspective.

Nonetheless, one should acknowledge that reflection on the subject of European

agencies has developed around an inadequate conceptualisation of the legal framework

in which the new administrative reality is located. Thus, for example, it is by no means

certain that the agencies can be equated, as is maintained by several observers, to the

model of independent authorities. Neither are the studies that identify decentralisation

as the principal characteristic of the agencification process convincing, as they tend to

neglect several other highly important legal elements of establishing regulations; simi-

larly, academic writing focusing on the regulations integrative aspects of European

agencies tends to overlook their specific legal nature, recognising the general emergence

of new forms of administrative collaboration in the European legal order, which are

functionally similar to the existing forms, yet distinct from them on account of their

greater institutional stability.

This failure to provide an in-depth analysis of the legal nature of European agencies

causes numerous problems when these general interpretations are applied to individual

cases: an operation which reveals the scarce resistance of the available reconstructions,

as well as the need for a more detailed consideration of the regulatory framework of

July 2004 Decentralisation and integration in EC admin

© Blackwell Publishing Ltd. 2004 403

2The agencification process was first dealt with systematically thanks to an initiative taken by the Robert

Schuman Centre at the European University Institute,which held a series of conferences on the subject,

the results of which were published in A. Kreher (ed.), The New European Agencies,European Univer-

sity Institute Working Papers, RSC, 96/49; A. Kreher (ed.), The EC Agencies between Community Insti-

tutions and Constituents: Autonomy, Control and Accountability,European University Institute Working

Papers, RSC, 1998; and M. Shapiro, Independent Agencies: US and EU,European University Institute

Jean Monnet Chair Papers, RSC, 1996. Also in 1996, a conference was held by the University of Flo-

rence on the subject of ‘The new European and national agencies: do they constitute an original admin-

istrative model?’ (‘Le nuove agenzie europee e nazionali. Un originale modello amministrativo?’), in

relation to which, mention should be made of the contribution of C. Franchini, ‘Le relazioni tra le agenzie

europee e le autorità amministrative nazionali’, (1997) Rivista italiana di diritto pubblico comunitario 15,

and G. Greco, ‘Le agenzie comunitarie: aspetti procedimentali e giurisdizionali della tutela degli interes-

sati’, (1997) Rivista italiana di diritto pubblico comunitario 27.

3R. Dehousse, C. Joerges, G. Majone, F. Snyder (in collaboration with M. Everson), Europe After 1992.

New Regulatory Strategies,European University Institute Working Papers,Law, 92/31; G.Majone, Under-

standing Regulatory Growth in the European Community,European University Institute Working Paper,

SPS, 94/17; G.Majone, La Communauté européenne: un Etat régulateur (Montchrestien, 1996); G. Majone,

‘The New European Agencies: Regulation by Information’, (1997) 4 Journal of European Public Policy

262; and G. Majone and A. La Spina, Lo Stato regolatore (Il Mulino, 2000). Cf. also R. Dehousse,

‘Regulation by Network in the European Community: the Role of European Agencies’, (1997) 4 Journal

of European Public Policy 246.

4The question of agencies, for example, appears in several different articles in the publication produced by

O. de Schutter, N. Lebessis and J. Paterson (eds), Governance in the European Union (European Commu-

nities’ Official Publications Office, 2001). L. Metcalfe offers a different perspective in ‘Etablissement de

liens entre les différents niveaux de gouvernance: intégration européenne et mondialisation’, (2000) 66

Revue internationale de sciences administratives 139. In addition to the research referred to in this and

earlier footnotes, mention should be made of the works dedicated to specific agencies, in particular,

J. S. Gardner,‘The European Agency for the Evaluation of Medicines and European Regulation of Phar-

maceuticals’, (1996) 2 ELJ 48.

the agentification process. These difficulties are even compounded by recent develop-

ments in positive law, characterised by the widespread contamination of organisation

and procedural models. Thus, to cite just one of several examples, should we agree with

the definition accredited by the official website of the Union when it states that the

Food Safety Authority can be assimilated to the European agencies of the past? How

should we evaluate the ‘new’ agencies that are responsible for implementing the

European regulatory framework for Air and Maritime Safety? And how should we

differentiate between the European agencies and certain administrative mechanisms

that have been created recently, such as those foreseen for the new telecommunications

regime?

This article argues that an in-depth survey of the eleven regulations establishing

European agencies5reveals different conclusions must be drawn from those usually

made by legal or political scientists.

Indeed, legal analysis leads us to the conclusion that European agencies are specific

organisational figures, which must be distinguished from other mechanisms of the

Community system and whose role can only be understood in the context of a more

general scheme of exercise of the European function.

In fact, each of the establishing regulations can be traced back to a single framework

for the joint exercise of the Community functions, which can be referred to as

European Law Journal Volume 10

404 © Blackwell Publishing Ltd. 2004

5Reference is made in particular to the regulation establishing the EEA—The European Environment Agency

(Council Regulation 1210/90, OJ 1990 L120, as amended by Council Regulation 933/99, OJ 1999 L117),

ETF—The European Training Foundation (Council Regulation 1360/90, OJ 1990 L131, as amended by

Council Regulation 2063/94, OJ 1994 L216), EMCDDA—The European Monitoring Centre for Drugs and

Drug Addiction (Council Regulation 302/93, OJ 1993 L36, as amended by Council Regulation 3294/94,

amending Regulation 302/93 relating to the establishment of a European Monitoring Centre Drugs and

Drug Addiction, OJ 1994 L341), EMEA—the European Agency for the Evaluation of Medicinal Products

(Council Regulation 2309/93, OJ 1993 L214; Council Directive 93/39, OJ 1993 L214; Council Directive

93/40, OJ 1993 L214; Council Directive 93/41, OJ 1993 L214; cf. also Commission Regulation 1662/95,

OJ 1995 L158; and Council Regulation 297/95, OJ 1995 L35, as amended by Council Regulation 2743/98,

OJ 1998 L345), OHIM—the Office for Harmonisation in the Internal Market (Council Regulation

40/94, OJ 1994 L11, as amended by Regulation 3288/94, OJ 1994 L349; cf.also Commission Regulation

2868/95, OJ 1995 L303, and Commission Regulation 216/96, OJ 1996 L28), EU-OSHA—The European

Agency for Safety and Health at Work (Council Regulation 2062/94, OJ 1994 L216), CPVO—The Com-

munity Plant Variety Office (Council Regulation 2100/94, OJ 1994 L227, as amended by Council Regu-

lation 2506/95, OJ 1995 L258; cf. also Commission Regulation 1238/95, OJ 1995 L121; Commission

Regulation 1239/95, OJ 1995 L121; and Commission Regulation 1768/95, OJ 1995 L173, as amended by

Commission Regulation 2605/98, OJ 1998 L328), CdT—Translation Centre for the Bodies of the European

Union (Council Regulation 2965/94, OJ 1994 L314, as amended by Council Regulation 2610/95),

EUMC—The European Monitoring Centre on Racism and Xenophobia (Council Regulation 1035/97,

OJ 1997 L151; Decision of the Government Representatives of the Member States, OJ 1997 C194) and

EAR—The European Agency for Reconstruction (Council Regulation 2454/99, OJ 2000 L37; the Regula-

tion was repealed by Council Regulation 2666/00, OJ 2000 L306; cf. also Council Regulation 2667/00,

OJ 2000 L306). To these, two existing public bodies must be added, which were reformed by the Com-

munity legislator in the first half of the 1990s: CEDEFOP—The European Centre for Development of Pro-

fessional Training (Council Regulation 337/75, OJ 1975 L39, as amended by Council Regulation 1946/93,

OJ 1993 L181, and Council Regulation 1131/94, OJ 1994 L127; cf. also Council Regulation 1416/76, OJ

L169 1976 L 164, as amended by Council Regulation 1948/93, OJ 1993 L181) and EUROFOUND—The

European Foundation for the Improvement of Living and Working Conditions (Council Regulation 1365/75,

OJ 1975 L139, as amended by Council Regulation 1947/93, OJ 1993 L181; cf. also Council Regulation

1417/76, OJ 1976 L164, as amended by Council Regulation 1949/93, OJ 1993 L181). The recent regula-

tions establishing the agencies responsible for Maritime Safety (European Parliament and Council Reg-

ulation 1406/2002, OJ 2002 L208) and Air Safety (European Parliament and Council Regulation

1592/2002, OJ 2002 L240), which have still not taken effect, are not taken into consideration in this essay.