European Union Agencies as Global Actors

A Legal Study of the European Aviation Safety Agency, Frontex and Europol

Florin Coman-Kund

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351136846
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book examines a largely unexplored dimension of the European agencies, namely their role in EU external relations and on the international plane. International cooperation has become a salient feature of EU agencies triggering important legal questions regarding the scope and limits of their international dimension, the nature and effects of their international cooperation instruments, their status within the EU and on the global level, and leading potentially to tensions between EU law and international law.

This book fills the existing knowledge gap by scrutinizing the international cooperation legal framework and practice of EU agencies, including their mandate, tasks and instruments, together with their legal status as actors with a global dimension. It sets out a general legal-analytical framework which combines legal parameters from EU and international law to assess EU agencies as global actors, and examines in detail three case studies on carefully selected agencies to shed light on the complexities of EU agencies' daily international cooperation.

Part I
Setting the general framework

1
The legal profile of EU agencies and their international dimension according to law and practice

1.1 Introduction

This chapter sets the scene for the analysis of the external dimension of European agencies. It does so by providing an account of the relevant features and problems of European agencies and by placing these bodies within the EU institutional context. Moreover, EU agencies as global actors are introduced by means of an account of their international cooperation practice and relevant legal framework.

First, the institutional background within which European agencies are operating is depicted, focusing on the so-called EU ‘executive branch’ (section 1.2). Secondly, an overview of the evolution of the EU ‘agencification’ process and of some relevant legal aspects concerning agency creation is provided; furthermore, various reasons behind the proliferation of European agencies are discussed (section 1.3). In spite of the variety of EU bodies in this category, an attempt is made at providing a working definition of the European agencies and identifying their general features (section 1.4). Next, a closer look at the formal or legal design of European agencies is taken by examining the nature and scope of their powers in light of the principle of institutional balance and of the delegation of powers or the so-called Meroni doctrine, as well as by looking at their organisational design with a focus on their main leading bodies (section 1.5). Then, the role of European agencies within the EU institutional framework is briefly depicted by taking a more dynamic perspective based on the constellation of relationships which these bodies establish, not only with the main EU institutions but also with other relevant European, national and international actors (section 1.6). The chapter ends with a panoramic overview of the international dimension of the EU agencies, combining a formal legal perspective with insights from practice in order to provide a more accurate account of the state of art in this field (section 1.7).

1.2 Institutional context: European agencies and the EU ‘executive branch’

European agencies could be situated arguably within the so-called ‘executive branch’ of the EU, where they seem to perform tasks of an administrative or technical nature. This requires some conceptual clarifications with a view to reveal the wider picture relevant to assessing these bodies.

First, the European Union is characterised by a functional separation of powers,¹ combined with an institutional design based on the principle of the representation of interests.² Although the European Union is atypical,³ in that it is more than a classical international organisation, but less than a federal state, it is possible, however, to identify within the EU a judicial function, a legislative process and an executive activity.⁴ Instead of having separate organs performing distinct functions of the government, the EU has institutions representing different interests,⁵ which are involved in various ways and to different degrees in the exercise of the same prerogative or the performance of the same type of activity.⁶ Such a design requires the preservation of a fair balance between the powers of the EU institutions. This is guaranteed by the principle of institutional balance, which is intended to maintain a system of checks and balances between the institutions involved and the interests they represent.⁷ The principle of institutional balance is dynamic in that it can evolve over time and, moreover, the balance of powers can vary depending on the distribution of powers reflected in the relevant Treaty provision for the policy field or issue at stake.⁸ It has also been maintained that the institutional balance of powers could be construed in such a way as to include not only a horizontal dimension (the balance between the EU institutions) but also a vertical dimension (the balance between the EU and the Member States).⁹ According to this view, the principle of institutional balance would also cover the division of powers between the EU and Member States, and also the proportionality and subsidiarity issues related to the exercise of EU powers.

Secondly, it is relevant to inquire into the meaning and the functions of the executive branch or power within the EU. Traditionally, the executive power is responsible for the implementation of the legislation, the management of policies, the exercise of supervisory and enforcement tasks. But the executive is also involved in the adoption of the most important political decisions. Thus, it determines the essential political directions of the community, initiates policies and sets the legislative agenda.¹⁰ Based on this reality, a distinction is generally made with respect to the executive branch, between the political or core executive – the government – vested with the leading role within the community and the administrative or subordinate executive – the administration or the bureaucracy – which fulfils technical and implementing tasks.¹¹

There are some difficulties in defining and identifying the executive branch of the EU.¹² First, as concerns the implementation of EU law, it should be noted that, traditionally, preference has been given to the indirect or shared administration model (through the authorities of the Member States) rather than to the direct administration model (through EU institutions).¹³ Although the former European Community (EC) retained limited implementing tasks (assumed mainly by the Commission), the focus was on the instruments necessary to ensure the implementation of EC law by the Member States (eg coordination and monitoring) and not on the creation at Community level of a coherent system of executive or administrative organs.¹⁴ Secondly, in view of the founding principles of the EU institutional system, the functions usually performed by the executive are not vested in one single institution, but they are shared in a rather complex manner among several institutions.¹⁵ Thus, the Commission represents par excellence the executive branch of the EU,¹⁶ but the Council of Ministers also exercises executive functions.¹⁷ Moreover, the rise of the European Council as the most influential political organ of the Union makes the picture even more intricate.

As EU stands today one may argue that there is an ‘executive branch’ within the Union. This EU executive power does not match the executive power at the national level¹⁸ just as the Union is not the same as a federal state. Thus, the Union still relies heavily on the national authorities of the Member States for the implementation and enforcement of EU law.¹⁹ At the same time, the gradual expansion of Union’s competences seems to have led to a steady increase of the executive and administrative tasks at the EU level.²⁰ This substantive advancement was soon matched by institutional adjustments and enrichment, such as the creation of various EU agencies and other bodies. This intermingling between the Union’s own institutional framework and the administrations of the Member States in the process of the implementation of EU decisions and carrying out of policies has been described by some as a ‘system of integrated administration’ or as a ‘composite EU executive power’.²¹

Accordingly, one may attempt, although cautiously, to identify a core executive (setting the main political directions and priorities and taking the most essential decisions) and an administrative executive (in charge of the implementation of legislation and policies) at the EU level. As regards the core or political executive of the Union, at present it includes mainly the European Council, the Council and the Commission interacting with each other in a complex manner.²² As for the EU administration, if one takes a broad view, all European institutions and bodies performing tasks in the process of the implementation of EU law, the management of Union policies and programmes or fulfilling various administrative technical functions could be included here.²³ The list should start with the Commission which is the main administrative organ of the EU. It is the ‘manager’ of the EU policies²⁴ and ensures the implementation of EU law in the context of direct administration;²⁵ furthermore, the Commission, acting as a ‘guardian of the Treaties’,²⁶ supervises the implementation of EU law and policies by the Member States.²⁷ The Council also has implementing powers, but, as a rule,²⁸ these powers have been delegated to the Commission, which in turn is subject to the so-called ‘Comitology procedure’.²⁹ The Lisbon Treaty makes explicit that the Commission is the main repository of most of the implementing powers,³⁰ whereas the Council retains implementing powers in the field of Common Foreign and Security Policy (CFSP) and also in ‘duly justified specific cases’.³¹ Finally, the EU public administration comprises many other bodies which perform technical and administrative tasks in various policy areas.³²

1.3 The European agencies

1.3.1 The rise of EU agencies

The European agencies were not all created at once and not even at a constant pace, but rather they were developed in waves.³³ The first wave was rather symbolic consisting of two discrete agencies set-up in 1975. The European Centre for the Development of Vocational Training (Cedefop)³⁴ and the European Foundation for the Improvement of Living and Working Conditions (EUROFUND)³⁵ were the first EU agencies and their creation was closely related to the implementation of a social policy action programme adopted in 1974.³⁶

The second wave of ‘agencification’³⁷ began in 1990 with the creation of the European Environment Agency (EEA)³⁸ and the European Training Foundation (ETF),³⁹ and it reached its apex in 1993 and 1994 when six more agencies were established: the European Centre for Drugs and Drug Addiction (EMCDDA);⁴⁰ the European Medicines Agency (EMA);⁴¹ t...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of abbreviations
• List of boxes
• Preface
• Introduction
• PART I Setting the general framework
• PART II Case studies
• Conclusion
• References
• Annexes
• Index