October 29
2020

Controlling EU Agencies: the Rule of Law in a Multi-jurisdictional Legal Order

Miroslava Scholten and Alex Brenninkmeijer (eds)

review by

Dolores Utrilla

This is the book to be read by anyone interested in understanding the legal problems posed by the fragmentary, disperse and heterogeneous regimes of control of EU agencies. More importantly, this is the book to be read by those aiming to identify the key elements framing any attempt to improve these defective regimes of control and to build a more complete, comprehensive, and effective framework for the control of EU agencies.

The collection in this book rests on the hypothesis that complex governance structures such as the EU require the establishment of sophisticated controlling systems, which can be achieved by connecting relevant concepts, types and systems of control stemming from both EU and national law. One of the book’s main premises is therefore that enhancing the control of EU agencies from a rule of law perspective warrants the establishment of a comprehensive and systematic – but not homogeneous – legal framework: one containing diversified but efficiently interconnected regimes for each functional type of agency.

With that aim, the first part of the book examines the cross-cutting elements underlying the control of EU agencies. Starting with the requirements of any rule-of-law oriented system of control of the executive branch (Chapter 2, by Mariavittoria Catanzariti and Alexander H. Türk), the contributions in this part of the volume examine the key concepts of control, focusing in particular on the features of independence and technical competence of agencies, which usually justify their very existence but also pose specific problems in terms of scrutiny, both from a legal and a political perspective. Judicial deference as a device to adjust the intensity of judicial review is assessed in this light (in Chapter 6, by Paul Craig). Other central concepts are transparency and information as a prerequisite for any form of control (Chapter 9, by Anoeska Buijze) and liability as a possible tool of control (Chapter 7, by Elbert de Jong).

The general, cross-cutting assessment of the key concepts of control in Part I of the book results in an adequate analytical framework for the studies on agency-specific mechanisms of control contained in Part II of the volume. These case studies function as ‘reference fields’ for the assessment of how control is (and should be) shaped in each type of EU agency. In this regard, the case studies concern a selected group of agencies which are deemed as representative of the categories of existing agencies in the EU. Such categorisation is built taking into account mainly the functions of agencies (including information-gathering, cooperation-providing, service-providing, advisory functions, regulatory decision-making, and enforcement functions), but also their outputs and the division of competences between the EU and national authorities in the respective area of law.

The combination of the general and the sector-specific approaches in Part I and II of the book leads to the conclusion that the development of ‘control models’ is possible. The reader may miss further indications on which these models could be and how they would function, an issue that the authors leave open for future research. In any case, they put forward several useful elements in this regard.

Firstly, it is suggested that improvements in the control of EU agencies may be achieved by departing from their traditional consideration as institutional units, and by looking at them from a functional perspective. In this regard, the book makes apparent the need to establish a clear typology of EU agencies’ functions, for which the authors propose to start by distinguishing among advisory agencies and regulatory agencies. Additionally, the book stresses the need to further refine this categorisation in view of the legal nature of the agencies’ outputs (guidance, decisions, rules…) and of the distribution of competences between the EU and the Member States in the corresponding area of law.

Secondly, the book makes clear the need for complementarity between different mechanisms of control, even in respect of the same agency. It is shown in almost every chapter that the interplay between different control tools must be carefully assessed, because such interaction can be mutually reinforcing but also self-defeating. Useful examples of effective complementarity are provided concerning, inter alia, ex ante and ex post control tools (in Chapter 14, concerning EASA), and internal and external checks (in Chapter 16, concerning the SRB).

Lastly, the book suggests that a comprehensive system of controls must focus not only on controlling mechanisms and forums, but also on standards of review. Creating a sophisticated and complete system of control but leaving the forums with the discretion of determining how they should exercise their scrutiny may lead to defective results, if such decisions are taken in the absence of an overarching design.

 

Dolores Utrilla is Assistant Editor at EU Law Live and Associate Professor at the University of Castilla-La Mancha.

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