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: EU agencies as ever-changing creators of enforcement practices

Moreover, EU agencies stand out in the field of EU enforcement also because of some peculiar institutional abilities.

EU agencies at least take part in (or even directly perform) all those types of enforcement already discussed in the previous chapter, namely the promotion of transnational cooperation, the enforcement’s influence via hard and soft law, infringement proceedings and the issue of direct sanctions towards individuals.[1] Usually, they perform two or more of these functions at the same time. Indeed, agencies always constitute a forum for transnational cooperation, because every agency is made up of representatives of all the Member States and has the function to collect and share best practices among national administrations for the implementation of EU law (often interacting with third countries and other international organizations). Moreover, a huge majority of agencies harmonise national legislations through acts with a variable nature and impact: industrial standards, opinions and recommendations, guidelines, or the drafting of delegated and implementing acts. Furthermore, some agencies also assist the Commission in infringement proceedings and, finally, a few of them also have direct sanctioning powers towards private parties.

However, the added value of agencies is not only their ‘multitasking nature’, but also their flexibility in evolving from performing a simpler type of enforcement to a more complex one (think, for instance, from sharing best practices to issuing harmonising guidelines).

Indeed, agencies can also be seen as legislative laboratories at the disposal of the EU (and the Member States) to understand how far they want to go in the common regulation of a specific sector. Even when they face a common problem (e.g. asylum; financial stability; energy or TLC regulation), Member States are not sure ex ante to what extent they are ready to cope with this issue at EU level or how to concretely solve their common regulatory problems. Instead of granting powers to old institutions like the Commission, which are already too powerful and to some extent also ‘biased’ in the approach to the issue, Member States often prefer to create an agency. The new body will be made up by new faces coming from national administrations, with mainly a technical and not political background. It will be the task of the newly established agency to identify the enforcement methods that can better suit each policy field or each political momentum. The Commission accepts this compromise, since it also participates in the agency and, moreover, this latter body attracts at EU level powers that otherwise would remain national.,8 For the same reason, the European Parliament usually well accepts this outcome, pushing for powerful EU regulators yet accountable to the legislator.[2]

From this perspective, agencies can be seen both as a boost for enhancing EU sanctioning powers, or as bodies that slow it down. Indeed, they can both foster a common legal and administrative culture of supervision, which constitutes the fundamental basis for developing a common and efficient sanctioning framework; or they can push the political debate towards solutions that can be very different from sanctioning; for instance, because they manage to solve the enforcement problems on a technical level or simply by sharing best practices and standards.

Economic and political scientists have analysed this phenomenon describing agencies as bodies for an ‘experimentalist governance’.[3] Therefore, enforcement through agencies inevitably creates legal incoherencies; this outcome, however, can be very efficient from an economic and perhaps even diplomatic perspective, exactly because it responds to the need to tackle certain transnational problems even if there is still no consensus among the Member States on the solution. This does not prevent, of course, legal scholars from discussing how EU agencies’ hy-bridity should be harmonised with the established set of rules and principles: this point will be tackled further below, after having evaluated in concrete terms EU agencies’ powers and functions in the specific field of sanctioning.

  • [1] 54 Echoing S. Montaldo, I limiti della cooperazione in materia penale nell’Unione europea (2015, Editoriale Scientifica), p. 26, who evocatively refers to the ius puniendi as secret garden of the Member States; moreover, it bears noting that, also when exercised by bodies other than agencies, the ‘Europeanization’ of sanctioning functions is the result of an erosion of settled institutional boundaries: see on this point ivi. p. 27. 2 ” See Chapter 2. 56 This area is largely underexplored by legal and political scientists: see G. Schusterschitz, ‘European Agencies as Subjects of International Law’, (2004) International Organizations Law Review 163; C. Rapoport, ‘La participation des Etats tiers aux agences de l’Union européenne’, in J. Molinier (ed.), Les Agences de l’Union européenne (2011, Bruylant) 145; F. Coman-Kund, ‘The international dimension of the EU agencies: framing a growing legal-institutional phenomenon’, (2018) European foreign affairs review 97; J. Alberti, supra note 3, 399-452. 3 ’'The precise analytical taxonomy of EU agencies’ sanctioning (or pre-sanctioning) powers
  • [2] will be provided below, at Section 3.4. For a general evaluation of EU agencies’ powers and functions, see ex multis the different taxonomies provided R. van Ooik, ‘The growing importance of Agencies in the EU: Shifting governance and the institutional balance’, in D. Curtin, R. Wessel (eds), Good Governance and the EU: Reflections on Concepts, Institutions and Substance (2005, Brill) 139; E. Chiti, ‘An important part of EU’s institutional machinery: features, problems and perspectives of European agencies’, (2009) Common Market Law Review 1395; P. Craig, EU Administrative Law (2012, OUP) 148.; M. Chamon, supra, note 11, 18; C. Tovo, supra, note 11, 265; J. Alberti, supra note 3, 185-204. ’«See Communication from the Commission to the European Parliament and the Council, COM(2008) 135 final, ‘European agencies - The way forward’, 5, where the Commission admits that ‘the establishment of agencies can make possible a pooling of powers at EU level which would be resisted if centred on the institutions themselves’. ’«For a comprehensive analysis of the EU agencies’ relationship with the European Parliament, see F.B. Jacobs, ‘EU agencies and the European Parliament’, in M. Everson, C. Monda, E. Vos (eds), European Agencies in between Institutions and Member States (2014, Wolters Kluwer) 201.
  • [3] 4(1 C.F. Sabel, J. Zeitlin, ‘Learning from Difference: The New Architecture of Experimentalist Governance in the EU’, (2008) European Law Journal 271; J. Pollak, P. Slominski, ‘Experimentalist but not accountable governance? The role of Frontex in managing the EU external borders’, (2009) West European Politics 904; V. Termini, ‘Dall’armonizzazione al mercato unico: Acer -1’Agenzia europea per la regolazione dell’energia’, in P. Bilancia (ed.), La regolazione dei mercati di settore tra autorita indipendenti nazionali e organismi europei (2012, Giuffre) 131. 2 See supra note 37. 3 It is worth rioting that this function should nevertheless not be underestimated: see G. Ma-jone, ‘The New European Agencies: Regulation by Information’, (1997) Journal of European Public Policy 262.
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