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Jean Monnet Jean institutions.” without lasts nothing but men, without possible is “Nothing Powell (1990), Schout 2011. Schout (1990), Powell legislation): through e.g. steering (hierarchical hierarchies and networks, (competition), website Clingendael the on found be can They Brief. Policy Clingendael evidence-based policymaking? –Towards EU Commission the in Regulation Better (2018), Schwieter C. A., Schout, facts? politicised or policy –Fact-based Value EU Added (2018), D. Bevacqua A., Schout, are: papers These EU. the in making policy based evidence strengthen to efforts EU’s the of the into insight give together, that, policy Regulation Better EU’s the and Value Added EU Agencies, EU on papers three of part furthermore is It forthcoming). Schwieter, and (Schout created being currently are that agencies EMU the to paper this of findings the of application the is research this of A follow-up capacities. inspection multilevel emerging EU’s This paper is part of a longer-term study of the the of study alonger-term of part is paper This Broadly defined, tools of governance are markets markets are governance of tools defined, Broadly Introduction: The potential The Introduction: of EU agencies The Hague: Clingendael Policy Brief, and: and: Brief, Policy Clingendael Hague: The EU governance a missed opportunity to enhance EU agencies after 25 years: 2018 DECEMBER . The Hague: Hague: The Two decades of of Two decades 1

* 3 2 and national credible without stake at are legitimacy) (output deliver to of capacities in terms states member between trust mutual Trust EU and in the problematic. remained has delivery effective levels, EU and national at structures existing change to resistances ambitions policy to instruments in matching interest an underdeveloped to due and enforcement, implementation over concerns with negotiations political complicating avoid to an inclination to due Either compromises. (legal) finding to devoted is energy of political deal great negotiations is in normal political As rules. fiscal EMU’s of the drift the and by markets, financial and mobility, labour in as migration, such crises by underlined as achallenge, have remained and enforcement monitoring implementation, and effective Yet, legislation on legislation. largely fitting builds integration European In essence, 2010. Schout and Schwieter, forthcoming. Schwieter, and Schout Jordan and Schout 1973; Wildavsky and Pressman 3 , or due to to due , or 2 , a

Adriaan Schout Policy Brief Clingendael Policy Brief

EU administrative structures to implement, for responses to the credibility crisis9 that monitor and enforce policies.4 the EU suffered as a result of the activist ambitions of Delors and the fall of the Responsibility for implementation and . Once hailed as a major enforcement are shared5 between member addition and as a professionalization of EU states, which are generally responsible for governance, the question has to be asked first-order control, and the EU Commission, what has come of the alleged agencification generally responsible for second-order of the EU’s polity. This question is of control (monitoring the management of considerable practical value given the implementation in the member states). renewed interest in EU agencies due to Given the mutual dependence on national the current developments in the banking and European administrations, the EU is union (ESMA, EBA, ESA, ESFS, EIOPA)10, prone to administrative deficits. Hence, macroeconomic supervision (independent although Juncker presents his ‘the EU fiscal institutions, the European fiscal board has to deliver results’6 as a major policy and national productivity boards11), the challenge, it would have been equally wise initiative for a European labour authority12, of him to reflect onhow to deliver results, the strengthening of border control (Frontex, i.e. on the way instruments are designed EASO), the ongoing discussion about in terms of national and EU responsibilities keeping the Regulatory Scrutiny Board and capacities. The Commission’s Better attached to Commission or placing it at Regulation Communication (Com2016/615) a distance in an independent body13, and discusses delivery in terms of numbers of the elaboration of the European statistical regulatory proposals. Focus in legislative system14. The ECB can also be regarded ambitions is of course important. Yet, it as an EU agency.15 Moreover, Merkel16, misses the shared obligations as regards in her interview on the future of Europe, effective implementation, monitoring and addressed key agency questions related to enforcement, and related instruments the design of the ESM/EMF, the use of the such as EU agencies and their networks of Single Resolution Fund, and her preference national counterparts. Agencies and their for keeping the European Refugee Agency networks formed part and parcel of the independent from the Commission. Her reflections on EU governance and better suggestions about the future of the EMU regulation policies.7 Agencies, at their own are prematurely depicted as representing – national or EU – level of , can an intergovernmental view.17 She might as contribute to fact-finding and supervision well have alluded to a supranational union while the related networks that bind governed through EU agencies. Combining a them together are required to ensure the supranational agency and -based emergence of epistemic communities with network of national agencies, the agency shared professional values.8 model does not easily fit into the traditional intergovernmental-supranational dichotomy. EU agencies and their subsidiarity- based networks of national counterparts are components of the EU’s multilevel administrative system. The EU now has 9 Majone 2002. 25 years of experience with EU agencies. 10 Lonardo 2016. Agencies became a theme in the search 11 Schout and Schwieter, 2018. 12 COM(2018) 131 final, 2018/0064 (COD). 13 Smulders, Paquet 2018. 14 ESS Vision 2020: Building the future of 4 Majone 1996. European Statistics. https://ec.europa.eu/eurostat/ 5 Rijsbergen and Rijsbergen 2016). Scholten 2017. documents/7330775/7339647/ESS+vision+2020+b 6 J.-C. Juncker (2015), State of the Union: Time rochure/4baffcaa-9469-4372-b1ea-40784ca1db62 for Honesty, Unity and Solidarity, Strasbourg, 15 Busuioc 2010; Tucker, 2018. 9 September. 16 https://www.deutschland-kann-das.de/dekd/ 7 (2001) European politik/aktuelles/europa-muss-handlungsfaehig- Governance: A White Paper, COM(2001)428. sein-1141498 8 Selznick 1949, Sorensen & Torfing 2007; Kleef et al 17 ‘Merkel on EU reform: a decryption’. Jacques Delors 2017. Institute, 6 June 2018.

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The question about the outcomes of monitoring of trends. This decentralisation the EU’s agencification is also of major and fragmentation of policy processes is analytical value in assessing and explaining complemented by the search for suitable ex the (limited) outcome of the ‘governance ante and ex post accountability structures turn’ that started 25 years ago at a more such as task definitions, rules of procedure, general level. Moreover, both academia and transparency protocols, code books, practitioners need to be able to address the supervisory boards (input legitimacy) and question of what the role of EU agencies performance indicators (output control).20 could potentially be, and how to get the Agencies have become part and parcel of design of agencies right so that they can the checks and balances in public sector act as independent bodies in the context of governance. They are an essential part of political decision making. governance modernization in technologically advanced societies by fragmenting the policy Section 2 addresses the emergence of space between different types of institutions agencies (generally) in public management and actors, by offering independent data literature as well as the rise of EU agencies gathering, and independent monitoring as a core element of EU governance. Section and enforcement,21 and by contributing to 3 offers three complementary approaches professionalization of management – leaving to understanding the emergence of EU value judgements and standard setting to the agencies: as a fashion, as a functionalistic political level (i.e. through the Community imperative, and as a political phenomenon.18 method). By adding professionalisation to The state of play 25 years after the major , agencies should not be equated agencification steps is reviewed in section 4. with technocratization seeing that tasks Section 5 discusses the policy relevance of and parameters are defined at the political the main findings. In addition to interviews level.22 Agencification is about improving conducted for previous agency studies political discussions and implementation (see bibliography), this paper also draws of political decisions. Moreover, operating on interviews with national and EU officials within politically defined margins only and national and European parliamentarians works in times of reasonable stability - as involved in setting up agencies in different also underlined by the need for the ECB to policy areas. explore the margins of its mandate.23 New public management modernisation has been influenced by administrative cultures. At 2 EU agencies: definitions and national level, agencification was particularly functions important in the Nordic countries, the UK and the .24 An important question is whether the EU’s administrative model Agencies as part of the New Public is moving towards a Nordic type of agency Management revolution system. An agency can be defined as a body that has its own legal personality and a certain degree The EU’s agencification of administrative and financial autonomy Inspired by the NPM revolution and in carrying out its tasks as specified by triggered by necessity, agencies also the government. Inspired by the slogan ‘let became a theme in EU reform. During the managers manage’, New Public Management 1990s, the EU was rapidly widening and (NPM) spurred decentralisation of authority deepening. The internal market programme and empowerment of public authorities (the 1992 programme), the introduction of around 1990.19 This marked a separation between politics and expert input to arrive at fact-based policies and independent 20 Curtin 2005. 21 Börzel and Risse 2010; Coen and Thatcher 2008; Eberlein and Newman 2008; Lehmkuhl 2008. 22 Larch and Braendle 2017, p.1. 18 Allison 1971. Bendor and Hammond 1992. 23 Majone 2009. 19 Osborn and Gaebler, 1993; Hood 1995. 24 Boin, James and Lodge 2016.

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the , the requirements of new border EU’s instrumentation is highly informal and management systems in Schengen, and therefore overly weak. Moreover, studies in enlargement exposed that the EU suffered the Netherlands show that, depending on the from overload and a “management deficit”.25 definition, agency arrangements are more EU agencies, as part of the wider search widely used at the national level.34 for “new”26 governance instruments, was one of the planks in the EU’s management modernisation. 3 EU agencies as innovation?

A specific, and important, feature of EU Taking stock of three waves of agencifi­ agencies is that they cooperate closely with cation35 in the EU in 25 years, some national agencies.27 For different reasons, conclusions can be drawn about their impact. most EU agencies should be expected to The development of (semi-)independent operate as hubs in agency networks. First agencies and networks has been studied of all, as underlined by Nobel-Prize winner from functional and political perspectives Herbert Simon, a complex system, which the as well as a reflection of administrative EU is in many ways, has to be decomposed fashion.36 to be effective and resilient.28 Secondly, the subsidiarity principle creates expectations EU agencies as a fashion as regards the design of the EU’s multilevel The current mood swing in the EU seems to administration with a view to efficiency, be away from independent authorities and and creating ownership, local flexibility and towards putting politics first. Commission visibility. Governance in the EU therefore President Juncker presents the Commission often involves subsidiarity-based networks.29 as a “very” political body that “should politicise everything”.37 The euro crisis, a The impression exists that there are many perceived investment gap, high (youth) EU agencies, leading academic literature unemployment, the migration crisis as to refer to ‘agency fever’ and a ‘limitless well as institutional developments such appetite’ for agencies.30 The website of the as the Spitzenkandidaten procedure EU Commission lists over 40 agencies.31 In have contributed to the politicisation of addition, new agencies, such as a European the Commission38. This has coincided Monetary Fund, are being explored and with discussions over e.g. the shifting existing agencies, such as Frontex, are being interpretation of the independence of central reinforced. On top of the official EU agencies, banks. ‘Independence’ has acquired the Eurostat, the ECB and many less known connotation of “unelected technocrats to do bodies and networks resemble agency-type the ‘dirty work’” and being overly concerned arrangements.32 Nevertheless, it is equally with efficiency.39 Under the influence of possible to claim that there are only few crisis, the attention for ‘politics’ as form of agency-type bodies and networks in the governance mechanism seems to have risen EU. For example a recent study of the EU’s among practitioners and in academia.40 policy33 finds that little attention During the German elections Martin Schulz has been given to creating agency-type created the impression that “we are not the arrangements and that the design of the mushy technocrats of public imagination

25 Metcalfe 1992. 34 ABD 2013. 26 Hodson and Maher 2001. 35 Groenleer 2009. 27 Dehouse 1997. 36 Chiti 2009; Börzel and Risse 2010; Henry 2007. 28 Groenleer 2016. 37 Juncker, State of the Union, 2015. 29 Schout and Jordan 2010. 38 e.g. Hartlapp 2017. 30 Busuioc, 2010; Geradin and Petit 2004: 4 39 Transparency International EU (2017), Collins, P 31 https://europa.eu/european-union/about-eu/ (2004). Balls, E, J Howat and A Stansbury (2016). agencies/decentralised-agencies_en de Haan and Eijffinger (2016). Fischer (2015). 32 Everson et al 1999. Tucker (2018). 33 Schout and Luining 2018. 40 Van Middelaar, 2017.

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but idealists”41. Visionary leadership has its institutions. Even though new agencies are value and is part of the governance tools. now on the agenda, it seems they are mostly Yet, pitting politics versus marks on it as light tools of governance. the shift away from the earlier governance debate about complementary political and Functionalist analysis of EU agencies depoliticised tools of governance. Functional perspectives elaborate the rationality of independent expertise Another sign of agencies being out of (technocratic legitimacy) by enhancing fashion is the dislike of creating new bodies the credibility of government through and agencies, and the preference for independent bodies, offering the ability streamlining EU decision making and for to combine resources across levels of reducing “complexity” by reeling in outside government, and allowing the possibility to bodies rather than creating new ones (e.g. share responsibilities where the EU lacks EMU reflection paper 201742). A comparable legal competencies.47 Moreover, agencies impression can be found at the national level, and their networks are presented as namely that EU agencies lead to ever more essential for creating commitment, trust, a “useless bureaucracy”.43 When discussing sense of belonging to an expert community, the creation of new EU agencies, national and peer pressure.48 Professional epistemic and EU officials explained that they try to networks form systems of (horizontal) checks avoid new EU agencies. EU agencies, their and balances and help to institutionalize potential strengths and how to set them up professional values as a counterweight to in relation to subsidiarity-based networks hierarchical relations between experts and do not seem to have generated a deep .49 The expert community acts as understanding among practitioners. a buffer against political pressures. In terms of organisational development, agencies can However, in some areas, such as EMU, contribute to offering the differentiation and agency-type arrangements are back on requisite variety needed to respond to the the agenda and are pushed by the ECB, technological and dynamic challenges in the Commission and IMF.44 It now seems to economic environment. From a functionalist fit the logic of appropriateness (March perspective, the resilience and success of and Olsen 1989) that countries organisations require both differentiation have fiscal and economic watchdogs. Yet, (requisite variety) and integration.50 Politics their chances of success are limited given can benefit from relevant expertise before their position as “neglected” bodies.45 The taking value decisions and in monitoring ambitions with the new EMU bodies are progress. Factual proof of the functional very modest.46 As regards management relevance of good administrative systems modernisation, agencification seems to have has been derived from correlations between been a temporary fashion in the EU, if at competitiveness, quality of regulation, and all. This probably tells us something about quality of government.51 North EU influence on the design of the EU’s Political approaches to understanding EU agencies Political studies build on principal-agent 41 Economist on Schulz SPD speech (8-12-2017). models and focus on the pulling and https://www.economist.com/blogs/kaffeeklatsch/ hauling between agencies, EU institutions 2017/12/use-value-0?fsrc=scn/tw/once and member states. Governments and 42 https://ec.europa.eu/commission/sites/beta- Commission, for example, can use agencies political/files/reflection-paper-EMU_en.pdf 43 https://www.eerstekamer.nl/id/vi0vd1zmkfko/ document_extern/jaarbericht_2007_2008/f=/ vi0vd2id9dlo.pdf ; https://www.raadvanstate. 47 Busuioc, 2013. nl/adviezen/zoeken-in-adviezen/tekst-advies. 48 Majone 1996; Heims 2016. html?id=5753, 2006. 49 Sorensen & Torfing 2007; Kleef et al 2017. 44 Tesche 2018. 50 Lawrence and Lorsch 1967; Groenleer 2016. 45 Larsch and Braendle, 2018, JCMS. 51 For a discussion, see Schout 2017. Demertzis and 46 Schout and Schwieter, 2018. Goncalves Gaposo 2018.

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to offload sensitive policies (blame The political perspective builds on the shifting52). Outsourcing demands new control realisation that instruments are not mechanisms53 and the Commission has been neutral and affect power relations.60 The able to develop itself into a dominant actor interinstitutional power balance plays a in the supervision of agencies54. Principal- major role in the negotiations between agent studies also point to the learning Commission, EP and member states over processes through which EU agencies decisions about EU agencies. Interviews aim at strengthening their positions and also display fears at the national level to tensions between more supranational of seeing tasks being taken over by EU or more intergovernmental supervision.55 agencies or, implicitly, by the Commission Thatcher (2011) concludes that the directly. Agencies and better regulation Commission is keen on keeping tasks within more generally, also have to be seen in its own organisation, but that it has been relation to the power struggle between small willing to create agencies when it increased and big member states. Juncker appointed its own powers. Hence, agencies will be his Commissioners according to national a temporary ‘second-best’ option for EU priorities and, in line with the Dutch interests, institutions if member states otherwise block Frans Timmermans was appointed First Vice- integration and the related influence of the President with Better Regulation in his brief. Commission.56 A French expert commented that the Dutch are always keen to discuss interinstitutional Meanwhile, member states seem to relations whereas this is hardly a theme have developed a dislike of placing in French politics. For a smaller country, new agency-type bodies under the EU influence depends on the rules of the game Commission57, and fights about authority so that political haggling is constrained61 over independent bodies have become whereas big countries have the political clout visible in EMU governance. The European to steer outcomes. Stability Mechanism (ESM), for example, was set up as an intergovernmental Importantly, political realism is about special vehicle outside the realm of the speaking truth to power.62 Yet, those in Commission. Similarly, due to lacking trust power have to meet short-term expectations in the Commission, the Council attached of citizens and to negotiate between different banking supervision to the ECB, not to parties. Politicians therefore have to practise the Commission, after fierce political the art of the feasible and to formulate negotiations.58 As appeared in interviews, initiatives that fit the potential landing zones some fear the Commission’s growing power amidst the conflicting interests. Hence, fact- in terms of responsibilities and resources finding and independent controls are often while others criticise its politicisation of unavoidably regarded as only part of the supervision. In response, the Commission day-to-day realities and, as often mentioned has embarked on a piecemeal approach, in interviews, politicians and officials have e.g. by proposing a stabilisation fund and by serious doubts about the level of political creating parallel ESM-type funds under the backing for independent bodies. Commission as a way to erode ESM.59 Fashion, rational functionalism and politics are complementary approaches that help 52 Eberlein and Grande, 2005. to identify the pulls and pushes that shape 53 Busuioc and Groenleer 2012. EU agency arrangements. They help identify 54 Christensen and Nielsen 2010 ; Levi-Faur 2011; pressures that public managers in the EU Egeberg and Trondal 2017. face in designing agency-type arrangements. 55 Zito 2009; Thatcher and Coen 2008; Kelemen and Even though governance is associated Tarrant 2011; Blauberger and Rittberger, 2015 56 Kelemen 2002, p111; Dehousse 2008. 57 Kelemen and Tarrant 2011: 929. 58 De Rynk. 60 Lascoumes and Le Galès 2007, Kassim and Le 59 http://bruegel.org/2018/05/new-emu-stabilisation- Galès 2010. tool-within-the-mff-will-have-minimal-impact- 61 Compare Olsen 2003. without-deeper-eu-budget-reform/ 62 Wildavsky 1996.

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with ‘governance without government’, it turn’66 as fundamental changes in generally includes management roles for - suggesting that government so as to bring actors together, there has been growing attention for focus attention, design roles and rules, instrumentation and that this has addressed ensure that common objectives are defined, the EU’s management deficit.67 However, facilitate sustainable governance patterns, on closer examination, the outcomes of solve problems, bring discussions forward the governance innovations have been with new ideas, monitor implementation, disappointing. EU impact assessments have etc. Managed networks perform better so remained a serious point of concern and that governance can be much more than their use has become less systematic and soft governance.63 Fashion, rationality and has possibly even deteriorated in some politics focus on different aspects of social respects under the political Commission processes that management may help to Juncker. More generally, studies on the bring together.64 components of the Commission’s better regulation policy show that reforms are The outcomes of these social processes taking place but that the outcomes are define the effectiveness of the EU’s checks rarely unconditionally positive.68 The mixed and balances by combining politics and outcomes of professional and independent independent tasks. Current uncertainty information and management instruments over the future design of the EMU bodies were also underlined by Anne Glover, Chief underlines the importance of having Scientific Advisor to Barroso. She presented a concept of EU agencies: are these the Commission, and EU decision making bodies set up as Commission affiliates, generally, as being ruled by the “political as intergovernmental bodies, as half-way imperative”, where facts are “twisted” and houses, or as independent networked an environment in which there is little room EU agency arrangements? Does Merkel for independent information.69 Similarly, as have a model in her responses to French regards the interest in the design of new and Commission proposals or is it simply governance tools, public management issues politics that rules? Interviews point to a do not seem to play a major role in the reality limited awareness among practitioners and of everyday policy making or in European politicians of these design options. This integration theory.70 suggests an intellectual deficit when it comes to instrumentation decisions in the EU. Although, agencies and networks have evolved and performed differently despite similar structures71, the first general 4 The experience with conclusion about EU agencies concerns EU agencies the ambition to put tasks at arm’s length of government. Innovations in the Eurozone introduced by the Six Pack obliged Before assessing the value of EU agencies governments to create independent as governance innovation, we should moderate our expectations by looking at the poor results results of the EU governance debate more generally. The development and use of instruments in 66 Trondal, J. (2007). the EU has progressed in many ways. 67 Kassim 2015. EU literature has hailed the ‘governance 68 For a review of Better Regulation and Impact turn’65 and the related ‘administrative Assessments at EU level, see Schout (2018). 69 https://www.euractiv.com/section/science- policymaking/news/eu-twisting-facts-to-fit- political-agenda-chief-scientist-says/ 70 Blauberger et al. 2015. 63 Maccio, L., D. Cristofoli 2017. 71 Wonka and Rittberger (2010) conclude that internal 64 See e.g. Allison, 1971; Blauberger and Rittberger market agencies have acquired higher levels 2015. of (informal) independence than those in more 65 Boussaguet, L, R. Dehousse, S. Jacquot (2011). sensitive social regulation. Groenleer 2009.

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authorities72 specifically independent fiscal seem to have to juggle with potentially authorities, and to make statistical offices conflicts between fact-based policy making independent. Yet, the Commission has and on the political expectations. Despite carefully defended these tasks as internal years of discussions on placing it at arm’s Commission tasks. Hence, ambitions to length, as e.g. Timmermans in his capacity put agencies at arm’s length and to make as Dutch Minister for Foreign Affairs had them independent seem to apply to national preferred, the Regulatory Scrutiny Board has and less to Commission reforms. Eurostat been kept within the Commission (although remains hosted within the Commission, the it now also includes 3 external experts).77 The quality of EU statistics has remained a point same applies to the European Fiscal Board of concern, progress has been slow, and that relies on the Secretariat General of the ‘no proposal has been made to develop an Commission, and independent experts of independent supervisory function’ regarding the EFB have been granted 12 days per year improvements in the European Statistical for their work. When it comes to creating System.73 checks and balances by separating tasks, the Commission has been keen to prevent As regards the independent economic placing bodies at arm’s length. As explained monitoring capacities (independent fiscal in an interview in the Commission, the boards), the Commission was supposed to reeling in of agencies can be seen in the create an independent “budget tsar” within reform proposal of the European Food Safety the Commission underp Commissioner Agency (COM(2018)179). It had a board Rehn. To ensure European and independent consisting of 15 (not 28) independent experts supervision of national fiscal policies but the recent reform proposals presents a and to separate economic supervision in board consisting of national representatives the Commission from other EU semester and the Commission. tasks, the Commission’s internal rules of procedure were rewritten. However, the Member states have also been slow to Commission’s economic supervision has develop independent agencies. Progress remained political in practice and the Fin has been achieved in terms of central banks Rehn was succeeded by the more political and national statistic offices.78 However, French Commissioner Moscovici.74 Similarly, the creation of independent fiscal boards the position of the Commission’s internal and productivity boards has been less independent Regulatory Scrutiny Board forthcoming. Only seven member states has been carefully guarded under the have set up national productivity boards. President of the Commission75 also because Independent fiscal institutions have been of the expectation that in-house checks created by 23 of the 25 members that have and balances are assumed to be effective committed themselves, but these bodies and easier to connect to day-to-day policy vary in terms of resources. In addition, the making.76 Under the Commission Juncker, network of European fiscal institutions the RSB was placed under the first Vice- is little more than a light platform for President (Frans Timmermans) who has discussion due to fears of being controlled substantial ‘own’ policies, has to keep the by the EU Commission or apprehension momentum going on the priorities of the among independent authorities (Schout and Commission Juncker, and represents a Schwieter, 2018). Similarly, although member Commission that is keen to meet political expectations of citizens. Hence, Timmermans

77 See also the letter from his successor Henk Kamp as Minister of Economic Affairs on behave 72 Council Directive 2011\85\EU of 8 November 2011 of Likeminded Countries: Likeminded paper on requirements for budgetary frameworks of the ‘Momentum for Better Regulation’, The Hague, Member States, O.J.L. 306. 1 April 2015. 73 European Court of Auditors 2012. 78 Although remains a problem, “Greek 74 Schout and Mijs 2015; Schout and Mijs 2016. supreme court rejects statistics chief’s appeal”, 75 Schout and Sleifer 2014; IAI 2017. FT 11 June 2018. https://www.ft.com/content/ 76 Smulders, Paquet, 2018. c7bca3c4-6cd0-11e8-92d3-6c13e5c92914.

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states are committed to better regulation, lack formal decision-making powers and reducing administrative costs, and impact are insufficiently in touch with national assessments, only approximately seven implementation bodies. Networks of national countries79 (including ) have more authorities lack resources and cohesion or less comparable independent regulatory due to major differences in traditions and quality control offices The OECD concludes operating philosophies.83 According to five that most national scrutiny boards are Audit Officers, this path dependence is also hybrids (halfway in and halfway out of visible in the network of European ; see the RSB that includes three banks, where the centrality of the ECB is independent experts next to Commission not accompanied by the development of the officials). Interviews at national and EU appropriate supervisory and transparency level revealed the serious political concerns mechanisms.84 In addition, due to a lack of a and resistances as well as little awareness culture of cherishing independence, boards of potential advantages of agencies e.g. in are closely linked to national authorities85, as terms of arriving at a subsidiarity system of can also be seen in the composition of the monitoring based on first-level monitoring ECB’s governing council, which consists of (national control on implementation) the 19 member National Banks of which only and second-level monitoring (monitoring a few come from hard-currency countries organised at EU level of national monitoring so that the administrative culture in most systems). Interviews with practitioners also euro countries tends to be more political point to a concern about how to ensure that ( Tucker 2018). the gap between technocratic expertise and political decisions is not too wide, thus This shows that path dependence enabling communication and usability of characterises the development of the EU’s findings. administrative space. It appears to be hard to incorporate independent supervision Research findings conclude that the added due to different pulls and pushes from value of EU agencies is not exploited.80 national and EU administrations on agency EU agencies and the related networks are networks (‘double hattedness’, Egeberg dominated by the EU Commission81: the and Trondal, 2017), vested interests of the Commission holds strong positions in the economic sector (Kelemen and Tarrant EU agencies, and the EU agencies tend to 2011) and cultural differences. Hence, dominate the networks, among others due national and EU institutions are sticky and to the resource dependence of national innovations in sectoral governance may agencies, permanence in the networks, and turn out differently in reality than intended greater adaptability than national bodies or take longer than expected to develop. (‘agencified networks’, Levi-Faur, 2011). Ennser-Jedenastik86 therefore concludes that The Commission has kept the upper hand, ‘de-facto independence of an agency may also due to its relatively strong formal not correspond to its level of legal autonomy’. involvement in boards, appointments and staff policies.82 Furthermore, as underlined by Chiti (2013), EU agencies

83 Heims 2016. However, the European Competition Network is an example of a central organisation 79 http://www.actal.nl/english/regwatcheurope/ of supervision that is subsequently decentralised 80 Scholten 2014. and more or less successfully evolves into a 81 Thatcher and Coen, 2008; Levi-Faur 2011; Egeberg subsidiarity-based agency-driven network (Kassim and Trondal 2011; Rittberger and Wonka, 2013; and Wright, 2018). Egeberg and Trondal 2017. 84 Report of the Task Force on European Banking 82 Proposal for a Regulation of the to the Contact Committee of Supreme Parliament and of the Council amending Audit Institutions of the European Union and the Regulation (EU) 2016/399 as regards the rules European Court of Auditors, 14-12-2017. applicable to the temporary reintroduction of 85 Compare the European Food Agency where the border control at internal borders, COM(2017) 571 board is composed of independent experts. final. 86 Ennser-Jedenastik, L. (2016).

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This conclusion of path dependence and Currently, the EU is again confronted with centralisation modifies the earlier assumption crises that cast doubts over the EU’s ability that agencies and networks would become to deliver. The current challenges concern independent arrangements at arm’s length different policy areas but ‘better regulation’ of the Commission due to the multiplicity again figures prominently in the debates on of national and EU principals.87 This can modernising governance, and the content be explained by shifts in fashion, by power overlaps with the situation of 25 years ago. struggles and, although hardly addressed Yet, the current discussions centre around in the literature, by scant awareness of and politics, as underlined by Juncker’s ambition attention for the design and development to be a ‘very political’ Commission. Attention of agencies. As regards attention for design for complementing politics with independent issues, exceptions include the work by authorities has lost momentum on the Egeberg and Trondal (2017), who studied agenda due to changes in fashion, increasing staffing of agencies and the Commission’s politicisation and lack of awareness of administrative capacity, the study on the how to design agencies so that functional centralising influence of the EU’s personnel advantages can be reaped. Although EU policy on EU agencies by Schout and Pereyra agencies are again a major theme, there (2011), and Mathieu’s (2016) assessment of now seems to be little ambition to regard the extent to which national and European their potential advantages, as independent agencies reinforce each other. authorities, as a serious tool for modernising governance.

5 Conclusions and policy The policy implication of this analysis is implications that governance and better regulation discussions have insufficiently progressed or possibly even regressed so that they need to Approximately 25 years ago, the EU suffered be put back on the agenda. More specifically from a credibility crisis. This triggered related to agencies, EU agencies have to be lively debates in academia and among set up so that their specific advantages can practitioners over European governance materialize and political decision making is tools such as soft coordination, impact complemented with independent fact-finding assessments and EU agencies. Already and monitoring. Their potential advantages under President Santer, EU policies had in terms of checks and balances seem no to be fact-based and focused on essential less relevant now. Apart from a number of objectives (‘doing less but doing it better’88). good examples, research conducted over Acknowledging that governance demands the past decades shows that the way in complementary steering instruments, the which agencies are now used and designed governance turn of 25 years ago, influenced add little in terms of good governance. As by New Public Management thinking, was a corollary, officials and politicians have looking for ways to complement and improve to invest in expertise on what agencies political decision making with independent are and how they can be used. Interviews fact-finding and monitoring. At first sight, show that there is little awareness of the little has changed in the strive for better benefits of EU agencies and little expertise regulation. In this historical context, about their proper design. As a result, the slogan of the Commission Juncker/ agencies have tended towards becoming Timmermans ‘Big on big and small on small’89 more of the same with a strong role for the looks familiar. (politicised) Commission. Yet it is difficult to see how multilevel governance in areas varying from to border control can be credible without well- 87 Dehousse 2008; Thatcher and Sweet 2002. designed subsidiarity-based independent Compare Moe’s principle: no one is in control and therefore it is under control (Majone 1996). agencies to complement political decision 88 http://news.bbc.co.uk/2/hi/europe/297643.stm. making. As agreed in the interinstitutional 89 http://europa.eu/rapid/press-release_SPEECH-14- agreement and Commission rules of 585_en.htm procedure, information-gathering and

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monitoring processes have to be trusted, Boussaguet, L., R. Dehousse, S. Jacquot transparent and, hence, should be organised (2011) ‘The governance turn revisited’, independently from political institutions. in: R. Dehousse (ed), The Community This is certainly not less relevant now than Method: Obstinate of obsolete?, New 25 years ago when the EU was primarily York: Palgrave Macmillan. struggling with internal market legislation. Busuioc, M. (2010) The Accountability of More generally, the drifting of EU agencies European Agencies, Leiden: Eburon. as a tool of governance underlines the Busuioc, M. (2013) ‘Rule-making by continued relevance of public management the European Financial Supervisory modernization in the EU. With political Authorities: Walking a Tight Rope’, discussions focusing on policies and European Law Journal, 19:1, 111-125. ignoring the thorny multilevel governance Busuioc, M., M. Groenleer (2012) ‘Wielders implications, the EU seems to still suffer of Supranational Power?’, in: M. Busuioc, from a continued management deficit. In M. Groenleer, J. Trondal (eds), The addition, given the limited attention for how Agency Phenomenon in the European to use agencies and their networks, the EU Union, Manchester: Manchester may well suffer from an intellectual deficit. University Press. Lasting impact of policies demands effective Christensen, J., V.L. Nielsen (2010) institutions such as EU agencies. ‘Administrative capacity, structural choice and the creation of EU agencies’, Journal of European Public Policy, 17:2, 176-204. Bibliography Chiti, E. (2013) ‘European Agencies’ Rulemaking: Powers, Procedures and ABD (2013) Onderzoek naar de Assessment’, European Law Journal, 19:1, herpositionering van zbo’s, Den Haag: 93-110. Ministerie van Binnenlandse Zaken, Coen, D., M. Thatcher (2008) ‘Network Algemene Bestuursdienst. governance and multi-level delegation: Allison, G.T. (1971) Essence of decision European networks of regulatory making, Boston: Harper Collins. agencies’, Journal of Public Policy, 28:1, Balls, E., J. Howat, A. Stansbury (2016) 49–71. Central Bank Independence Revisited: Collins, P. (2004) The Ascendancy of the After the Financial Crisis, What Should a Scientific , New York: Model Central Bank Look Like?, Harvard iUniverse. Kennedy School Mossavar-Rahmani Curtin, D. (2005) ‘Delegation to EU Non- Centre for Business and Government Majoritarian Agencies and Emerging Associate Working Paper No. 67. Practices of Public Accountability’, in: Bendor, J., T.H. Hammond (1992) ‘Rethinking D. Geradin, N. Petit, R. Munoz (eds), Allison’s models’, American Political Regulation through Agencies in the EU: A Science Review, 86:2, 301-322. New Paradigm for European Governance, Blauberger, M., B. Rittberger (2014) Cheltenham: Edward Elgar. Conceptualizing and theorizing EU Dehousse, R. (1997) ‘Regulation by Networks regulatory networks, Jerusalem Papers in in the European Community: The Role of Regulation & Governance Working Paper European Agencies’, Journal of European No. 65. Public Policy, 4:2, 246–261. Blauberger, M., B. Rittberger, A. Boin, Dehousse, R. (2008) ‘Delegation of powers O. James, M. Lodge (2015) ‘The new in the European Union: the need for public management ‘revolution’ in political multiprincipals models’, West European control of the public sector: promises Politics, 31:4, 789–805. and outcomes in three European prison Demertzis, M., I. Goncalves Raposo (2018) systems’, Public Policy and Administration, Structural Reforms 0.0 – The case for 21:2, 81-100. strengthening institutions, Bruegel: Blog Börzel, T.A., T. Risse (2010) ‘Governance post. without a state: can it work?’ Regulation Dunlop, C.A., C.M. Radaelli (2015). ‘Impact & Governance, 4:2, 113–34. Assessment in the European Union: Lessons from a Research Project’,

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14 About the Clingendael Institute Clingendael – the Netherlands Institute of International Relations – is a leading think tank and academy on international affairs. Through our analyses, training and public debate we aim to inspire and equip governments, businesses, and civil society in order to contribute to a secure, sustainable and just world. www.clingendael.org  @clingendaelorg [email protected]  The Clingendael Institute +31 70 324 53 84  The Clingendael Institute

About the author

Adriaan Schout is Senior Research Fellow and Coordinator Europe at the Clingendael Institute. He combines research and consultancy on European governance questions for national and European institutions. He has worked on projects addressing issues of the EU presidency, EU integration and Improving EU regulation, amongst others.

Disclaimer: This paper was commissioned by the Netherlands’ ministries of Foreign Affairs and Defence within the PROGRESS framework agreement, lot 3, 2018. Responsibility for the contents and for the opinions expressed rests solely with the authors. Publication does not constitute an endorsement by the Netherlands’ ministries of Foreign Affairs and Defence.