2. Evolution of European Agencies
2.1. Types of European Agencies
3. Legal Framework and Community method
4. Delegated power and the Meroni law-case
5. EU Agencies: Fourth Branch?
The European Agencies (EAs) are more than 40 today, all of them with different competences and facing different topics, but they all have the same origin, the European Union (EU).
Aim of this paper is to understand the role and types of these EAs and the main problems connected to them. First, we will try to find a definition of Agencies. Starting from the first agencies we will analyse how these developed in their number, structure, role and competencies.
After this, it is important to understand the legal framework in which EAs are established, and to analyse if the agencies are attracted by the community method or not. At this point, we will find several critics, the main rising question concerns the delegation of power, how much competencies can the European Commission delegate to Agencies? Why should the EU delegate power? In order to have basic knowledge to discuss this topic we have to mention the Meroni law-case.
In the academic literature, the EAs are often considered as the fourth branch of governments. What does this mean?
After an overview about basics elements of EAs and a discussion about the main problems involved, we will come to our conclusion.
2. Evolution of European Agencies
There is no clear definition of what an EA is. The author Majone refers to the American definition provided by the United States Administrative Procedure Act (APA), which describes an agency as part of the federal government, usually independent, which can take a final and binding action affecting rights and obligations of individuals. (Majone, 2002: 300) According to Van Ooik there are some elements, which are fundamental and characterize an agency: a certain degree of independence (this makes the difference with committees); a complex organizational structure; and be established under an official act. (Van Ooik, 2005: 135)
The originally idea of a Community without an administration of its own changed drastically, firstly with the establishment of transnational committees and since the 1990s with the establishment of these new bodies, the EAs. (Chiti, 2000: 310) The progressive establishment and expansion of EAs is a challenge to the original model described in the Treaty of Rome. (Chiti, 2000: 341)
The development of Agencies happened very rapidly, in only four years (1990-1994) ten agencies have been established. (Chiti, 2000: 310) EAs have grown even more rapidly in the last years, in the year 2000 the number of agencies was 12, in 2009 it had raised to over 30. (Curtin, 2009: 146)
It is important to mention here that the EU “agencification” process is not so strong as the American one, the EAs have rather modest competences, which usually are processing data, write annual reports, gathering of technical information, generally it is the Commission performing executive competencies, not the agencies. (Van Ooik, 2005: 126)
But why do governments establish agencies? Theoretically, agencies are created in order to face particular circumstances in particular periods. (Curtin, 2009: 147) Other researches, like Van Ooik, argues that, due to capacity problems the Commission has to delegate technical competencies, in this case the advantage is the expertise. (Van Oik, 2005: 127)
2.1. Types of European Agencies
Since the beginning of the century we can see a change, agencies are increasing in number and are gathering more competencies.
Professour Chiti makes a functional analysis at EAs, giving an important contribution to academic research. He distinguishes between information – in charge of collection, management and dissemination of information - and regulatory agencies – in charge of executing EU provisions. (Chiti, 2009: 311) Moreover, he says that the field in which EAs operate is wide, it comprehends free movement of goods and competition, public health, environmental protection, human health protection and safety and the linguistic sector. In Chiti`s view the main tasks of agencies are the regulation of private conduct and information.
The Office for Harmonisation in the Internal Market (OHIM) can be considered the first EA which differs from the so called “new generation” agency since it has the power to decide whether an application for trade market is going to be registered or not, a similar power has been given to European Aviation Safety Agency (EASA), which is responsible for granting certain kind of certificates. This new type of agencies is called “regulatory agency”. (Van Ooik, 2005: 126) These particular agencies have more power, they can take individual and sometimes legally binding decisions. (Van Ooik, 2005: 142)
Executive EAs are “community bodies” whose aim is to empower structures with their own legal personality differing from Community institutions. They exercise limited discretion; the problem is that there is no clear limit to discretion. Agencies should not be build as permanent, but only for the specific duration of the particular issue and they do not have to comprehend representatives of the Member States (MS). The Commission delegates some technical and administrative competencies because these agencies should cooperate even with the private sector. (Curtin, 2009: 144) This type of EAs mainly assist the Commission in implementing some decisions. Examples of operational activities are trainings or courses for officials. (Van Ooik, 2005: 144) Executive agencies take an important part of the budget, and the number raised extremely fast in the last decades, this makes it difficult to categorise them and understand a clear logic behind. (Curtin, 2009: 147)
Majone analyses regulatory agencies established since the 1990s, as well as the third generation agencies (telecommunication and food safety). According to Majone the main alternative to these EAs are the General Directorate, since they have more expertise and detailed knowledge than public agencies, they reduce the cost of rule making and facilitate the adaptation of new rules, the risk is that they could be regulated by interests. (Majone, 2002: 301)
Here we can resume the tasks of the agencies in: provide MS and Community institutions with information; collect, record, assess data on the state of the environment; encourage harmonization of the methods of measurements; promote incorporation of European environmental information into international monitoring programmes; ensure data dissemination; cooperate with other community bodies and with international institutions. (Majone, 2002: 302)
Furthermore, we have to analyse the organisational aspects, Chiti says that according to the grade of development of the system the agencies function may change, their competence, in fact, may depend on the level of integration. (Chiti, 2000: 328). While, concerning the procedural aspects: EAs have to operate unitarily, but this is proved to be wrong when he analyses case by case. There is a big lack in law, Chiti concludes that there is no general model of the administrative procedures managed by the EAs. (Chiti, 2000: 341
All agencies have their legal personality and concerning their internal structure it emerges that the majority of them have a similar structure, with three main important organs, plenary, executive and experts. (Van Ooik, 2005: 133)
Nowadays, very important agencies are: European Environment Agency (EEA) and European Medicines Evaluation Agency (EMEA). (Majone, 2002) Moreover, there are agencies with external powers: the head of the agency Europol has the power to negotiate “administrative arrangements” with third countries. Although the Council decides with which institutions exactly the Europol is going to negotiated. (Curtin, 2009: 158)
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- european agencies development european politics community method first generation agencies european agencies european union