Basile Ridard / Sep 2018
Since European agencies experienced a boom in the 2000s, the EU legislator has always granted them more power. New, decentralised agencies were created in response to the financial crisis. Today, agencies are again presented as solutions to the challenges facing Europe, such as the refugee crisis, cyber-attacks, posted workers and terrorism.
In his 2018 State of the Union address, President Juncker proposed to strengthen the EU Border and Coast Guard Agency with an additional 10,000 operating staff by 2020. Last year he announced the creation of a European Labour Authority and the transformation of the EU Agency for Network and Information Security into a fully-fledged Cybersecurity Agency by doubling its budget. In its proposals for the next Multiannual Financial Framework, the Commission decided to step up activities of EU agencies in the areas of security, border and migration management, whose budget should rise from €4.2 billion to €14 billion.
This budgetary increase for agencies who deal with the most pressing and critical challenges in Europe, reflects how suited they are to delivering EU policies. The EU already spends today ten times more than it did 15 years ago on its agencies, which further increases their importance in the EU institutional landscape. But it remains only a marginal expenditure of the EU budget, amounting to 0,8% and costing every inhabitant €2,35 per year. In this context, the crucial question is whether the EU is making the right choice by delegating more power to agencies.
Key actors for delivering EU policies efficiently
Five reasons explain why EU agencies are often more suited than national competent authorities (NCAs). First, a growing number of issues are better solved at European level. EU agencies coordinate Member States’ actions to tackle problems faced by economic actors.
Second, they meet the increasing requirements for technical expertise and bring together knowledge from across Europe. EU agencies can implement policies more efficiently in their area of competences as they operate in a centralised manner compared to 28 dispersed NCAs.
Third, EU agencies take a neutral approach in managing problems and prevent “gold-plating” practices of national regulators. They make the general interest of EU citizens prevail over vested interests.
Fourth, EU agencies are also a way to save money in pooling competences previously exercised at national level. The concentration of technical and human capacity allows significant economies of scale.
Last, the geographical distribution of EU agencies throughout the Member States makes Europe more visible for its citizens, from Lisbon to Tallinn. Local businesses profit from supporting agencies activities, as it is demonstrated by the rivalry between European capitals over the relocation of agencies after Brexit.
Granting more autonomy to EU agencies
The powers conferred to EU agencies cannot exceed the limits that were laid down by the CJEU in 1958, which considers the EU legislator to remain solely responsible for political choices. This overly precautionary approach forces the legislator to prepare highly prescriptive mandates for EU agencies, while not being equipped with sufficient technical knowledge. Instead, the EU legislator should set principle-based law that would allow agencies to be more flexible in finding the best ways to apply the agreed legal framework.
Greater flexibility for the EU agencies’ functioning should be accompanied by measures improving their democratic legitimacy and transparency. If EU agencies are granted more freedom to bring European policies to life, they should also be made more responsible. An annual hearing of every EU agency executive director should be held in the European Parliament to report on all agency activities.
New agencies could be set up to fulfil tasks that are more relevant to organise at EU level than at national level. The idea of an EU agency for anti-money laundering and financial crime was recently raised, as well as a new agency to organise the distribution of refugees. If new agencies are created, their increasing diversity could make the decision-making process harder to understand. While one size does not fit all situations, the proliferation of agencies nonetheless calls for the adoption of a common (legal) framework. Such a streamlined set of procedures would harmonise their functioning and make agency work easier to understand.
EU agencies offer the best answer to the most technical questions in their respective area of expertise. As such, they can provide added value and not just an additional layer of bureaucracy if there is sufficient political will. Legislators need to be more courageous to adopt principle-based laws. EU agencies need to act with greater autonomy, while keeping in mind that the CJEU still has a final say on the interpretation of these laws.