by Emilio De Capitani & Giulia Del Turco
Agencification is a relatively recent and yet highly relevant phenomenon at EU level: developed over the past two decades, it can be seen as a compromise between the functional needs to provide Brussels with more regulatory capacity and the reluctance of the Member States to transfer executive authority to the European Commission. Agencies have been rapidly mushrooming, being empowered with a wide range of regulatory tasks and resources.
According to the 2020 European Court of Auditors report, the existing 42 agencies can count on a total budget of €3.7 billion, their staff amounting to 12,881 officials (about 18% of the total number of staff members employed by the EU).
Since the entry into force of the Amsterdam Treaty (1999), agencies have increased their role notably in the Area of Freedom Security and Justice (AFSJ), to such an extent that they are now implementing (if not, in some cases, designing) some essential policies: protection and promotion of Fundamental Rights (FRA), management of large Information systems (EU-LISA), strengthening of the police cooperation (EUROPOL, CEPOL, EMCDDA, ENISA), judicial cooperation in criminal matters (EUROJUST, EPPO), establishment of a Common European Asylum System (EUAA) and, last but not least, shaping the EU Integrated Border management (Frontex/EBCG).
This process is not without controversies and has indeed raised many issues in the scientific debate (See the 2018 EP Study “EU Agencies, Common Approach
and Parliamentary Scrutiny”).
What is particularly striking is that, apart from Europol and Eurojust, there is no explicit legal basis in the Treaties, nor a clear reference to the possibility of delegating to the EU Agencies a discretional power, even if the EU Court of Justice (ECJ) has recently updated its old “Meroni doctrine” (according to which the EU institution cannot delegate their discretional powers to other bodies and this to preserve the institutional balance between the institutions themselves and in a more general perspective the democratic accountability of the EU construction as such).
Following the 2014 “ESMA” ruling – where the ECJ considered that Agencies may exercise some discretional powers, although circumscribed by various conditions and criteria – the situation has radically changed. The EU legislator is creating new agencies by conferring them a vast set of powers, ranging from strategic to regulatory and operational powers with also a treaty-making and budgetary competence (as clearly written in the new founding regulations of Frontex and of the European Agency for Asylum).
Such trend may be understood as a consequence of the expansion of EU competencies and powers since the entry into force of the Lisbon Treaty. But it is taking place in a questionable way because the tools are created before defining in clear terms the legal and political framework of the policy which the new agency should serve.
Quite paradoxically, being it difficult to agree on a common policy (e.g., a common migratory policy), the EU legislator is turning to the creation of a “technical” tool, which could pave the way for the establishment of the common EU policy. Accordingly, Europol defines the objective of the EU Internal Security policy that it should implement; Frontex defines the content of the integrated border management it is deemed to implement; the EU Agency on Asylum has been reshaped before the definition of the Common European Asylum System and has been charged of the definition of a Fundamental Rights Strategy in this domain.
Unfortunately, these apparent “pragmatic” shortcuts are only delaying the hard political and Institutional choices which should be made.
Moreover, the principles of legal certainty and of the EU institutional balance risk to be profoundly shattered: formally, Agencies are set up as “independent” supranational bodies, but in fact they are mainly driven by Member States representatives, while the European Commission has a very limited control on their Management Board. Similarly, both the European and the National Parliaments have no real means of controlling the Agencies activity because most of their activities is classified as confidential and it is extremely difficult to retrieve both at European and national level.
Directors answer to the management Board where Ministerial representatives share the same profile and have no incentive in denouncing any possible shortcoming.
Not surprisingly, being freed from adequate external control, some Agencies are tempted of operating outside the scope of their mandate, as it patently happens in the case of Frontex. The latter whose legal basis covers the protection of the external borders and of Irregular migration is de facto becoming a central piece of the EU Internal Security policy (which should be in principle be covered by other legal basis in the EU Treaties) by so becoming de facto the first EU-wide Law Enforcement Authority.
To make things even more worrisome, these Agencies now enjoy also operational powers in domains where EU legislation is addressed to the Member States and does not frame the activities of the EU Agencies operating in the same domain (with the exception of EPPO, and of the EDPS). To overcome this blurred situation there are an increasing number of soft law instruments such as “Guidelines”, “Handbook”… which could not be considered an adequate legal basis when the activity of the EU Agencies has an impact or limits individual fundamental rights. The new legal trend of creating Fundamental Rights Officers operating inside the Agencies’ structure (as it has been the case for Frontex or the EUAA and is currently planned for EUROPOL) risks to become a fig’s leave. However, no matter of the seriousnees of the problem denounced by the Fundamental Rights Officer, the last word will be of the Agency’s Management Board where Member States Representatives will have a little appetite of denouncing each other (as it is also proved at highest level by the art. 7 TEU procedure..).
The establishment of an European Independent Authority for the protection of fundamental rights by the EU Institutions Agencies and Bodies, as suggested in 2004 by the European Parliament at the time of the establishment of the Fundamental Rights Agency, could be the only credible structured solution. In this perspective the creation of the European Data Protection Supervisor (and of Data Protection Officer inside each EU Institution, Agency or Body) has already shown its merits.
Unfortunately this solution which could add some flesh to the bones of the EU Fundamental Rights internal policy, risks to be rejected, as it happened in 2004 by the European Commission and by the Council of Europe .
Without a credible administrative redress, the only remaining way remain the judicial one. However, even if, since the entry into force of the Lisbon treaty there is an easier possibility of asking a judicial redress before the Court of Justice it is also clear that this remain a bumpy road notably for vulnerable categories such as migrants and asylum seekers or even, most of the EU Citizens themselves.
Last but not least the lack of a legal framework for the implementation of the principle of good administration as required by art. 41 of the EU Charter and of art.298 of the TFEU is worsened by the lack of a credible policy on access to internal documents so that it becomes almost impossible for an ordinary EU citizen as well as for a specialized journalist to discover possible Agencies’ wrongdoing or omissions.
In such degrading situation it would be sensible that the European Parliament with the active support of the European Commission re-launch the initiative of a true binding legal framework for this parallel and unchartered EU Agencies administrative world.
The situation is more than urgent for Agencies operating in the Freedom, Security and Justice Area and it would be wise that the Parliamentary Committee in charge of controlling those Agencies (LIBE) establish as soon as possible an inquiry on the real impact of these Agencies in the European Freedom Security and Justice Area.
At the end of the day, all these Agencies have been shaped and established in co-decision also by the European Parliament and this institution, no matter of the Meroni or ESMA jurisprudence, is at least indirectly corresponsible of their current shortcomings. Furthermore it should now be clear that the “Strategies” framing the activities of these Agencies should be endorsed by the European Parliament and the Council themselves (at least as delegated acts according to art.290 of the TFEU) and their Executive Directors should have a time limited mandate and enjoy the trust of both the co-legislators and be accountable before the European Parliament as it is the case, for instance for the US Congress.
Emilio DE CAPITANI
Against this background, the Academy of Law and Migration (ADIM) devoted its Fourth annual Conference (recording available here) to the complex issues surrounding the agencies operating in the AFSJ. In particular, it addressed the question as whether and to what extent the expansion of their mandates provides adequate solutions to the implementation needs and shortcomings of the EU migration governance. But also, whether and to what extent this expansion of powers has been accompanied by an equally increased level of accountability with regard to the agencies’ operational and administrative tasks.
In particular, Jacopo Alberti (see at min. 7:38) provides an overview of the topic of decentralized implementation through agencies, highlighting the institutional and normative issues that arise from the lack of a legal basis in the Treaty for the creation of such agencies. Attention is especially devoted to the negative implications of the use of soft law instruments by the agencies, mostly in terms of judicial review. Such issue is also dealt with by reflecting on the opportunity to extend to the AFSJ the experience of the Board of Appeal, an internal but independent administrative review mechanism, which is already available in 9 EU agencies, allowing individuals to review the validity of the actions of agents.
Valsamis Mitsilegas (see at min. 28:57) questions whether the experimentalist governance, which denotes a certain excess on the extension of the exercise of power, acts as a flexible means to achieve a more effective management of migration or as a threat to the rule of law. His analysis focuses on Frontex and Europol, whose instances of experimentalist governance are intertwined with the well-known process of securitization that has characterized European
migration policies for years. It then addresses the interagency cooperation also in the external relations policies (e.g., Operation Sofia and now Irini), where the deficit of rule of law appears even more exacerbated.
Marco Stefan (see at min. 1:12:34) analyzes the Frontex’s fundamental rights administrative complaint mechanism. He notes, in particular, that, although the 2019 reform of the mechanism has significantly increased the chance for individuals to hold Frontex accountable, the mechanism still suffers from significant shortcomings: notably in terms of independence, as it remains an internal procedure, as well as in terms of effectiveness of the performed
control.
An overall assessment of the new European Asylum Agency is conducted by Lilian Tsourdi (see at min. 1:32:53), highlighting the complex compromises behind the adoption of the new regulation, which indeed appears to be particularly limited when compared to the proposal put forward by the European Commission. In particular, the operational involvement of the
agency in asylum procedures, is still defined in terms of “facilitation” or “assistance” to Member States, but this does not reflect the current administrative reality where instead we have many more models of joint implementation, in which agency staff conduct part of the procedures independently. Also, part of the compromise is the new monitoring mechanism to control the operational and technical implementation of the CEAS, the full application of which has been blocked by Mediterranean States until the current Dublin Regulation is replaced.
The role of Frontex also recurs in the presentation by Roberto Cortinovis (see at min. 2:18:00), who analyzes the approach and initiatives that have been established in the New Pact on Migration and Asylum in the field of search and rescue. Cortinovis, in particular, observes how the Common (non binding) european approach to SAR, while on the one hand confirms and strengthens the role of Frontex in the so-called “disembarkation crisis”, on the other fails to provide any element to address the long-standing ambiguities concerning it, such as the absence of any specific mandate to engage in proactive SAR, or the multiple accusations of human rights violations for directly or indirectly pushbacks practices.
Tamás Molnár (see at min. 2:37:30) closes the conference with a presentation investigating the role of the EU Fundamental Rights Agency in monitoring respect for fundamental rights at the EU’s external borders. He also offers a comprehensive assessment of the new independent monitoring mechanism foreseen in Article 7 of the Proposal for a “Screening” Regulation, which
provides for the involvement of the FRA but only as a guidance for Member States, highlighting the presence of some aspects that raise serious concerns and need a rethink in the sense of a more effective safeguarding of fundamental rights.
Giulia DEL TURCO
(*) THIS IS AN EXTENDED VERSION OF A POST PUBLISHED ALSO ON ADIM WEB PAGE
Suggested citation: E. DE CAPITANI, G. DEL TURCO, Are the New EU Agencies in the Freedom Security and Justice Area Becoming the New Sorcerer’s Apprentices?, ADiM Blog, Editorial, November 2021.
European Area of Freedom Security & Justice 