EU agencies : legal and political limits to the transformation of the EU administration

433 Pages·2016·3.21 MB·English

by  Chamon

OXFORD STUDIES IN EUROPEAN LAW
Series Editors
PAUL CRAIG
Professor of English Law at St John’s College, Oxford
GRÁINNE DE BÚRCA
Professor of Law at New York University School of Law
EU Agencies
OXFORD STUDIES IN EUROPEAN LAW
Series Editors
Paul Craig, Professor of English Law at St John’s College, Oxford and
Gráinne de Búrca, Professor of Law at New York University School of Law
The aim of this series is to publish important and original research on EU
law. The focus is on scholarly monographs, with a particular emphasis on
those which are interdisciplinary in nature. Edited collections of essays will
also be included where they are appropriate. The series is wide in scope and
aims to cover studies of particular areas of substantive and of institutional
law, historical works, theoretical studies, and analyses of current debates,
as well as questions of perennial interest such as the relationship between
national and EU law and the novel forms of governance emerging in and
beyond Europe. The fact that many of the works are interdisciplinary will
make the series of interest to all those concerned with the governance and
operation of the EU.
Other titles in this series
Economic Governance in Europe National Identity in EU Law
Comparative Paradoxes, Constitutional Elke Cloots
Challenges The Constitutional Foundations of European
Federico Fabbrini Contract Law
Foreign Policy Objectives in European A Comparative Analysis
Constitutional Law Kathleen Gutman
Joris Larik The Criminalization of European
Private Regulation and the Internal Market Cartel Enforcement
Sports, Legal Services, and Standard Setting Theoretical, Legal, and Practical
in EU Economic Law Challenges
Mislav Mataija Peter Whelan
The EU Deep Trade Agenda Fundamental Rights in Europe
Law and Policy Challenges and Transformations in
Billy A. Melo Araujo Comparative Perspective
The Human Rights of Migrants and Refugees Federico Fabbrini
in European Law The Principle of Loyalty in EU Law
Cathryn Costello Marcus Klamert
An Ever More Powerful Court? Constitutional Pluralism in the EU
The Political Constraints of Legal Integration Klemen Jaklic
in the European Union EU Consumer Law and
Dorte Sindbjerg Martinsen Human Rights
The Concept of State Aid under EU Law Iris Benöhr
From Internal Market to Competition The Principle of Mutual Recognition
and Beyond in EU Law
Juan Jorge Piernas López Christine Janssens
Justice in the EU The Coherence of EU Free
The Emergence of Transnational Solidarity Movement Law
Floris de Witte Constitutional Responsibility and
The Euro Area Crisis in Constitutional the Court of Justice
Perspective Niamh Nic Shuibhne
Alicia Hinarejos European Law and New Health
The European Fundamental Freedoms Technologies
A Contextual Approach Edited by Mark Flear, Anne- Maree Farrell,
Pedro Caro de Sousa Tamara Hervey, and Thérèse Murphy
EU Agencies
Legal and Political Limits to the Transformation of
the EU Administration
MERIJN CHAMON
1
1
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The present book is the abridged version of my doctoral thesis. As a
result, I would first like to thank my supervisor, Professor Govaere, for her
guidance and trust in me. I would also like to thank the other members
of my jury, Professors Everson, Lenaerts, Türk, Van Elsuwege, and
Lannon, for their observations and questions on the thesis, from which
the present book has evidently benefited. I would also like to thank the
people of OUP for the friendly and professional co- operation leading to
the publication of this volume. Finally, for their support, I would like to
thank my parents.

Series Editors’ Preface
This books aims to explore the striking growth and spread of agencies within the
EU, and to examine the institutional and constitutional implications of this phe-
nomenon for the EU more generally.
Merijn Chamon sets out to provide a thoroughly comprehensive account of
the field of EU agencies, and to define and classify the array of different types of
agencies in existence, given the absence of a single formal model of EU agency
and in view of their ad hoc development. He then proceeds to examine the driv-
ers of this development as well as the political and legal limits to their spread.
As the book notes, there is now almost no area of EU law and policy without
an agency which is responsible for much of the governance and administration
of that area.
The author argues that the political limits to the process of agency- creation
and spread are related to the origins of the agencies, most of which emerged
from some existing committee or bureaucratic structure already in existence at
EU level, and were driven by the political interests of the relevant actors rather
than by a purely functional logic. He suggests ultimately that the process of
‘agencification’ (to use the rather ugly term which is increasingly used to de-
scribe the process of agency spread in the EU) is unlikely to develop in ways
which the Commission, the Council, or the Parliament considers to be contrary
to its interests.
On the other hand, the author argues that the legal limits to the establishment
of EU agencies, and the legal principles which should inform their establishment,
are to be found in the treaty provisions: in the principle of conferred powers, as
well as in the principles of subsidiarity, proportionality, and— despite the diffi-
culty in defining this as a legal principle— institutional balance. The book also
contains an extensive discussion of the famous Meroni doctrine on delegation and
institutional balance, and its relevance for EU agencies today.
A comparison with the legal and constitutional controls over the establishment
and functioning of agencies in Germany and the USA not only sheds some light
on the importance of the kind of federal system in question, but also highlights
differences between the kind of agencies which have been created in the EU and
elsewhere. Ultimately, the author concludes that while agencies in the EU rest still
on a somewhat uncertain legal and treaty foundation, their legitimacy resides in
the broad political support they enjoy. He proposes an amendment to the treaties
that would more securely anchor existing and future EU agencies within the EU
institutional and constitutional framework.
At a time when the EU’s legitimacy is under constant question and scrutiny,
and when its political and legal structures are contested and under strain, a thor-
ough and comprehensive inquiry into the phenomenon of agency growth in
viii Series Editors’ Preface
the EU is welcome and timely. Chamon’s thorough and careful analysis of this
phenomenon and his proposals for a better anchoring of agencies under EU law
should be of interest to legal scholars and political scientists alike, and to all those
concerned with EU administration.
Paul Craig and Gráinne de Búrca
Table of Contents
List of Figures xiii
Table of Cases xv
Table of Legislation xxiii
List of Abbreviations xxvii
Introduction 1
I. Setting the Scene: EU Agencies, Agencification,
and the EU Administration 3
1 EU Agencies and the Agency Phenomenon 3
1.1 Definition 5
1.2 EU agencies 15
1.3 Agencification 45
1.4 The EU administration 46
2 Situating the EU Agencies in the EU Administration 47
2.1 Executive federalism in the EU 48
2.2 EU agencies under a functional and procedural perspective 50
2.3 Conclusion 51
II. In Search of an Agency Model: The Provisions in Agencies’
Establishing Acts 52
1 Introduction 52
2 The EU’s Sources of Legitimacy 53
2.1 The EU’s democratic deficit 53
2.2 Legitimacy of the EU administration 61
3 The EU Agencies’ Statutes 64
3.1 The Boards 65
3.2 The Directors 76
3.3 Work programmes and annual reports 81
3.4 External relations 86
3.5 Seat Agreement 93
3.6 The Common Approach’s contribution to an agency model 97
4 Practice Following the Common Approach 98
4.1 Review of agencies’ acts following the Common Approach 99
5 Conclusion 100
III. The Political Limits to Agencification 102
1 The Origins of Agencies 102
2 Explaining Agencification 106
2.1 The functional accounts of agencification 107
2.2 Non- functional accounts of agencification 109
2.3 Concluding remarks 113