The phenomenon of "agencification" in the administration of the European Union

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The phenomenon of "agencification" in the administration of the European Union

Werner Miguel Kuhn

Abstract

The purpose of this article is to explain the so-called “agencification” in the European administration, a phenomenon that plays an increasingly important role in the activity of the European Union (“EU”). In fact, there are currently around thirty decentralized agencies, each performing different functions and often replacing the institutions themselves. This diversity entails the risk of chaotic and uncoordinated development, capable of adversely affecting the EU legal order. In order to establish common criteria for the establishment of such agencies, the European institutions adopted in 2012 the so-called “Common Approach”, which introduces a number of common principles, thus making it possible to make “agencification” a more coherent, effective and accountable process. The features of any European agency will then be presented, with a view to enabling the reader to better understand the challenges that the EU has had to face in the course of the evolution of its administrative structure. Also, this article has presented various facets of the phenomenon of agencification in the European administration, explaining the status of agencies within the EU legal order, how they are set up, their internal organization and funding, their decision-making procedures and how they function. Agencies have also been classified according to certain categories in order to facilitate a better understanding of their “raison d'etre”. The challenges faced by the agencies in their day-to-day business have also been presented. The article has also focused on their relationship with the EU institutions, in particular on the control of legality carried out by the EU institutions. It has thus been shown that the agencies are far from operating in a legal vacuum. Instead, they are firmly anchored in the EU's institutional structure and subject to a strict scrutiny of legality by various actors, including the Commission, the Parliament, the EO and the CJEU. Agencification has succeeded in establishing itself as a new form of mixed administration, not initially provided for in the Treaties, including the participation of the Member States, hereby promoting the acceptance of EU law by the latter. agencification european administration

Keywords: “agencification” in the European administration, European Union, administrative autonomy.

Introduction

The purpose of this article is to explain the so-called “agencification” in the European administration, a phenomenon that plays an increasingly important role in the activity of the European Union (“EU”). In fact, there are currently around thirty decentralized agencies, each performing different functions and often replacing the institutions themselves. This diversity entails the risk of chaotic and uncoordinated development, capable of adversely affecting the EU legal order. In order to establish common criteria for the establishment of such agencies, the European institutions adopted in 2012 the so-called “Common Approach”, which introduces a number of common principles, thus making it possible to make “agencification” a more coherent, effective and accountable process. The features of any European agency will then be presented, with a view to enabling the reader to better understand the challenges that the EU has had to face in the course of the evolution of its administrative structure.

Agencies within the EU institutional structure

It should be noted at the outset that the name of an agency as such does not say much about its legal status. Agencies can be called “agencies”, “offices”, “foundations”, “authorities”, etc. without any immediate inference of their precise functions or their situation in the institutional structure of the EU. Rather, it is necessary to analyze its internal rules in detail in order to obtain more information. The aim of this work is to demonstrate that it is possible to describe the main features of agencies despite their great diversity.

Legal status

The treaties establishing the EU refer to “institutions, agencies and other bodies”, from which it can be inferred that there are significant differences between these categories. Article 13 of the EU Treaty (“TEU”) contains an exhaustive list of the institutions of this integration system, including the European Parliament, the Council, the Commission and the Court of Justice of the EU (“CJEU”), to mention only those most important for the purposes of this article. It is worth mentioning that the treaties do not include any similar list of agencies. In fact, apart from certain exceptions limited to EUROPOL, EUROJUST, EDA and the European Public Prosecutor's Office (“EPPO”) European Public Prosecutor's Office (Article 86 TFEU); Europol (Articles 85, 86 and 88 TFEU); Eurojust (Article 88 TFEU); EDA (Articles 42 (3) and 45 TEU)., the treaties do not mention them at all. It is therefore feasible to conclude that there is no limit on the number of agencies that can be set up, so that the EU can make use of this power whenever it deems it necessary. As regards the modalities of their establishment, it should be noted that, unlike the institutions, agencies are not based on the founding treaties themselves, but on legal acts derived from EU law, namely regulations, which determine the objectives and competences of each agency. As defined in Article 288(3) of the Treaty on the Functioning of the EU (“TFEU”), a regulation “has general application, is binding in its entirety and directly applicable in all Member States”. In other words, agencies are created once their founding regulations enter into force in the EU legal order, without the need for any transposition by the Member States. The latter will have to apply the regulation as such, in full recognition of the agency created, which is particularly important for cooperation between the agency and the Member States. In addition, while the institutions are established by the founding treaties, i.e. legal instruments of public international law concluded by the Member States, agencies are established only by the EU legislator in the framework of a regular legislative procedure. This has the advantage of making it easier to change the powers and other characteristics of an agency, without having to resort to the lengthy and politically risky procedure for amending the founding treaties, which requires the approval of the Member States in accordance with their constitutional requirements, which may require the agreement to be submitted to a referendum.

Legal personality and capacity

It is important to highlight the fact that agencies have legal personality. They also enjoy in each of the Member States the most extensive legal capacity accorded by national law to legal persons. These features enable agencies to act alone, i.e. independently of the EU, in the international legal order and to conclude administrative arrangements with institutions, in addition to other EU agencies, Member States, third countries and international organizations. The exercise of such legal personality is, however, limited to what is strictly necessary to enable the agencies to fulfil the tasks assigned by the EU legislator. The scope of such limitations can generally be inferred from the provisions of the founding regulation, which will specify the procedures to be followed, as well as the institutions from which authorization will be required in order to conclude an agreement with the above-mentioned entities. Administrative arrangements will normally be subject to prior authorization by the Commission, which ensures that the agencies do not exceed their powers, while it will be sufficient to inform Parliament once the agreement has been concluded. The requirement of prior authorization implies that the Commission is also entitled to demand amendments to the draft administrative agreement, which it considers necessary. The Commission will therefore be able to impose on the agencies in a certain way their vision of how the agencies should fulfil their tasks.

The role of the agencies in European public procurement

Legal capacity is essential for public procurement. The founding regulations specify that the agency “may acquire or dispose of movable and immovable property”, which implies concluding contracts for the sale of goods and the acquisition of services. Like the EU institutions, agencies need goods and services to fulfil their tasks. Such contracts may provide for the purchase of mere office supplies or even highly technical equipment. The services purchased may be related to simple aspects such as cleaning up infrastructure or foreseeing activities inherent to their functions, such as the surveillance of the external borders of the Schengen area and transporting illegal immigrants to their country of origin by means of a previously hired private aircraft. Since agencies are part of the EU, they are obliged to apply the public procurement rules set out in the financial regulations Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) N° 1304/2013, (EU) N° 1309/2013, (EU) N° 1316/2013, (EU) N° 223/2014, (EU) N° 283/2014, and Decision 541/2014/EU and repealing Regulation (EU, Euratom) N° 966/2012 (OJ L 193, 30.7.2018, p. 1).. In order to take account of the particular status of agencies, specific rules (laid down in the `framework financial regulations') apply Commission Delegated Regulation (EU) 2019/715 of 18 December 2018 on the framework financial regulation for the bodies set up under the TFEU and Euratom Treaty and referred to in Article 70 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (OJ L 122, 10.5.2019, p.1). and are incorporated into the financial regulations of the respective agencies. Agencies may conclude contracts with institutions, other agencies and economic operators established in the EU or in third countries. In certain cases, inter-agency cooperation is expressly provided for in the founding regulations in order to ensure the unity and coherence of the EU legal order, such as cooperation with the CDT and the Publications Office, entities entrusted with specific tasks.

In this context, it is important to mention that, when the EU exercises exclusively the competences of its States in the area of international trade in goods and services The EU's exclusive competence for external trade in goods and services derives from Article 2(1) TFEU in combination with Article 3 (1)(e) TFEU., the World Trade Organization (“WTO”) agreements provide that the EU is a full member, together with its 27 Member States. It must therefore comply with the obligations arising from those agreements. Given the fact that they are not explicitly listed in the Government Procurement Agreement (“GPA”) as public authorities subject to the provisions of this Convention, agencies themselves are not obliged to comply with WTO rules on government procurement, unlike certain EU institutions, such as the Council, the Commission and the European External Action Service. This means that agencies have a greater margin of discretion in the area of public procurement as regards acquisition from third countries.

Administrative autonomy

Agencies enjoy administrative autonomy in the sense that they can freely decide on their staff and internal organization in order to respond adequately to their respective needs, obviously provided that compliance with the existing legal framework is ensured. They may recruit and dismiss staff in accordance with the provisions of the Staff Regulations of Officials and the Conditions of Employment of Other Servants (“CEOS”) of the EU, which apply to officials and temporary/contract agents respectively Regulation N° 31 (EEC) 11 (EAEC) laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community.. While the institutions employ officials and temporary/contract staff, the second category of staff in the agencies predominates. While officials are appointed by an administrative act, staff members conclude employment contracts with the agency. The duration of such contracts may vary from agency to agency, ranging from 3 years (renewable), as in FRONTEX, to 9 years (non-renewable), as is the case in EUROPOL.

Having administrative autonomy also means that agencies can set their own specific objectives and take the necessary measures to achieve them, obviously within the limits set by the founding regulation and the political priorities identified by the main EU institutions in this area, i.e. the European Council, the Council of Ministers and the Commission Lenaerts, K./Van Nuffel, P., European Union Law, 3rd edition, Oxford 2011, 13-123, p. 559..These institutions set out the political priorities to be subsequently implemented by the agencies through an action plan.

The agencies also have a certain financial autonomy and can decide which projects the funds shall be allocated to. Each agency adopts its own internal financial regulation, which reflects the provisions of the financial regulation applicable to the institutions and requires compliance with EU financial princi- ples These are the principles of unity, budgetary accuracy, annuality, equilibrium, unit of account, universality, specification, sound financial management and transparency.. It should be noted in this context that the funding of agencies comes to a large extent from the EU budget, contributions from Member States and associated States participating in the activities of these agencies, as well as services provided. Where third countries participate in the activities of the agencies, they shall be obliged to contribute to the budget of the respective agency, in accordance with the provisions contained in the founding regulations and association agreements with the EU. As will be explained below, Parliament adopts the EU's multiannual budget, which includes the resources to be allocated to the respective agencies. This power gives Parliament considerable power, making it a guarantor of democratic control over the agencies' activities.

A new form of European administration

The concept of administration

From a legal perspective, the concept of “administration” means the application and enforcement of EU law by competent authorities. Application involves both a de facto activity and the adoption of implementing rules or legal acts. It differs from the legislative activities attributed to both the Parliament and the Council and the judicial role assigned to the CJEU. The EU follows in some way the model of the division of powers known at state level without copying it completely. In the course of its history, the EU has developed various types of administration, making “agencification” a new form, which, as will be seen below, has raised questions as to its compatibility with the founding treaties. Before setting out what this new type of administration consists of, it is useful to briefly describe its more traditional forms.

Traditional forms of administration

One of the traditional forms of administration is the direct application of EU law by the institutions themselves. The role of the Commission as an executive body par excellence must be emphasized in this context. Another form of administration consists of its indirect application by the Member States, which are called upon to determine the necessary bodies and procedures (“procedural autonomy”) Article 19(1) TEU refers to the procedural autonomy of the Member States. However, it refers to a specific area related to “remedies necessary to ensure effective judicial protection in the fields covered by EU law”. It is therefore not so relevant in the purely administrative context at issue in this article., imposing as the sole condition that enforcement is effective (“principle of efficiency”) and that the rights granted to individuals are not treated less favorably than the rights guaranteed by national law (“principle of equivalence”) See judgment of the CJEU of 4 October 2018, Kantarev, C-571/16, EU:C:2018:807, paragraphs 124 and 125, as well as Judgment of 8 March 2017, Euro Park Service, C-14/16, EU:C:2017:177, paragraph 36. ^{Frenz, W., „Vollzug des Europarechts“, Handbuch Europarecht, Berlin/Heidelberg 2010, paragraph 1743, p. 523.}. Article 291 (1)TFEU, according to which “Member States shall adopt all measures of national law necessary to implement legally binding EU acts” is based on the premise that this is the standard form of administration¹¹. EU law generally leaves Member States freedom to apply substantive and procedural administrative law, as long as it does not regulate this matter. Within this category of indirect application, it is possible to identify the constellation in which EU law does not give Member States any discretion, requiring its application as such by the national authorities. According to another constellation, EU law confers a margin of discretion on the national authorities, merely determining the objectives to be achieved, as well as certain useful criteria to be taken into account, so that the Member States are called upon to adopt their own rules in order to ensure its application at the national level.

Administration through agencies

Administration through agencies, not foreseen at the time of the creation of the EU, is clearly different from the more traditional forms described in the previous paragraph, in that it provides for the creation of joint institutional structures, allowing for the joint participation of supranational and national entities Callies, C., EUV/AEUV -- Das Verfassungsrecht der Europaischen Union mit Europaischer Grundrechtecharta (ed.Christian Cal- liess/Matthias Ruffert), Munich 2011, Article 13 EUV, paragraph 36, p. 221, refers to the creation of a “European administration network” through a union of the national and the supranational administrative bodies.. The agencies are supranational entities that, however, require the cooperation of the Member States in order to make their actions effective. Member States are represented in the agencies by the members of the Management Board, who have the right to vote and participate in the preparation of decisions, as well as in the control of the activity of the respective agency. Member States thus become part of the administration in so far as they are called upon to implement the decisions taken by the agency at their national level. The Member States therefore play a decisive role in the preparation, adoption and implementation of administrative measures, which has the advantage of ensuring that this form of administration is accepted. This in turn has the consequence of ensuring the effective implementation of EU law at the national level. Through their representation on the Board, Member States become aware of their responsibility (“accountability”) in the decision-making process at the supranational level. The need for a dialogue with representatives of other Member States and institutions reminds them that there are different realities that need to be taken into account. In some way, Member States gain access to the supranational perspective, forcing them to abandon national egoism. It should be noted in this context that the possibility of having an exchange with colleagues from other Member States on essentially technical aspects has the advantage of “depoliticizing” many potentially sensitive issues, which the EU had already achieved at the beginning of the European integration process by assigning tasks to the Commission as a supranational entity.

The agencies thus form an intermediate form of administration between the purely supranational and decentralized ones. As Member States are responsible for implementing EU law, often assisted by the agency, the Management Board can itself verify compliance with this obligation and record this in a regular report of activities. By informing Member States of the progress in implementing EU law at the national level, they can put political pressure on those who show compliance deficits, which has the effect of alleviating the work of the Commission, which generally has the role of “a guardian of the treaties” in the EU legal order. Breaches of law by Member States can thus be prevented, making it unnecessary for the Commission to initiate infringement proceedings against them. In addition to the Management Board, the agency is supported by national experts who can meet at the Agency's headquarters and discuss current problems. This representation of the Member States allows them to infer that the agency “belongs” to them, which, however, should not lead to the erroneous conclusion that the barrier between the supranational level and the national level ceases to exist. This form of administration aims to achieve greater involvement of Member States in decision-making at supranational level.

Classification of agencies

When talking about “administration” by agencies, it is essential to take account of the type of functions they perform. The variety of functions allows them to be classified more precisely. In order to avoid misunderstandings, it is worth pointing out beforehand that this article deals only with so-called “decentralized agencies”, but not with “executive agencies”. The second category of agencies comprises administrative entities incorporated in the internal structure of the Commission, without legal personality, which have been entrusted with the task of implementing certain Commission programs. The first category of agencies includes administrative entities having legal capacity, as mentioned above, the functions of which differ from those normally performed by the Commission.

With regard to the tasks generally assigned to agencies, a distinction can be made between (i) the collection and dissemination of information, (ii) technical assistance, (iii) the regulation of a given area, (iv) supervision/control and (v) the implementation of operations There are several possible types of classification. See in this regard the report of the European Parliament's Constitutional Affairs Committee of 30 January 2019 on the implementation of the legal provisions and the Joint Statement ensuring parliamentary scrutiny over decentralized agencies (procedure: 2018/2114 (INI)/Document: A8-0055/2019)..While certain agencies fulfil their role by assisting the Commission and the Member States or by producing soft law documents, allowing Member States to apply EU law more efficiently, others can directly influence the internal market by taking decisions that affect the legal position of economic operators. Some agencies are also responsible for sending staff to the Member States or even to third countries, in order to implement European legislation. Some agencies provide services to others, thereby strengthening the cooperation network.

It is also, in principle, possible to classify agencies according to their respective area of competence, the pillar in which they were established (Community or intergovernmental, depending on the division that existed before the entry into force of the Lisbon Treaty), by period of creation, size, the circle of beneficiaries of the agency's services, the origin of its resources and funding, the type of administrative board, etc. These classification criteria are less widely used, being the “type of function” exercised by the respective agencies (see the various “tasks” listed above) the most common criterion.

The concept of “administrative law” in the EU legal order

A brief parenthesis should be made in order to explain the concept of “administrative law” in the EU legal order. As in national legal systems, this concept deals with substantive and procedural administrative law. Under “substantive” law, there is a general understanding of the set of rules that articulate EU policies, be it at the supranational or national level, while “procedural” law regulates the way in which EU institutions, Member States and individuals interact.

EU administrative law is as old as the integration process itself. Regardless of whether it concerns the rules on aid to agriculture, the provisions relating to the customs union, the authorization of mergers between undertakings, the registration of trademarks, etc., the administrative law of the EU is now omnipresent. The EU was born as a highly bureaucratic organization with a view to fostering cooperation between Member States. As the EU is increasingly assuming competences previously exercised by the Member States, it is clear that the national administrative law is being replaced by a new supranational administrative law of its own. This new supranational administrative law is built on the legal traditions of the Member States, incorporating general principles as important as the principle of proportionality and the principle of legal certainty, which in turn knows various expressions, such as legitimate expectations and the prohibition of retroactivity Widdershoven, J., “Developing administrative law in Europe: Natural convergence or expected university?”, Review of European Ad-ministrative Law, Vol. 7, No 2, 2014, p. 9.. These are supplemented by other essential principles of administrative law, such as the obligation to state reasons for decisions taken by the EU institutions and to grant access to the file.

These principles were often codified in administrative law itself, which could constitute a single regulation. However, it was the CJEU, which, firstly, required that they be taken into account even if they were not expressly codified and, secondly, developed other principles that the legislator had not initially envisaged. The CJEU has therefore played a major role in the development of supranational administrative law. Many of these principles created by case law were subsequently incorporated into the EU administrative codes. More importantly, some of these principles have even been codified in the Charter of Fundamental Rights See Article 41 of the Charter, which refers to the principle of good administration, according to which everyone has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the EU. This right includes in particular: the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; the obligation of the administration to give reasons for its decisions. In addition, everyone has the right to compensation by the EU for damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States. Finally, any person may contact the EU institutions in one of the lan-guages of the Treaties and must receive an answer in the same language. (if not already found in the founding treaties themselves See Article 5 TEU, which refers to the principles of subsidiarity and proportionality, as well as Article 296 TFEU on the obligation to state reasons for legal acts adopted by the EU institutions. Furthermore, Article 298(1) TFEU states that “in the performance of their tasks, the institutions, bodies, offices and agencies of the EU shall rely on an open, efficient and independent European administration.”), which has the status of primary law in the EU legal order See Judgment of the CJEU of 19 January 2010 in Case C-555/07, Kucukdeveci, EU:C:2010:21, paragraph 22.. It should be borne in mind that this does not prevent the CJEU from further developing principles of administrative law. On the contrary, the CJEU has the power to interpret the principles already recognized in the Charter of Fundamental Rights and to make them evolve, while at the same time creating new principles This is mainly due to the fact that Article 6 TEU distinguishes between the rights, freedoms and principles set out in the Charter of Fundamental Rights of the EU, on the one hand, and the general principles of EU law, on the other, which are influenced by the interpre-tation given to the European Convention for the Protection of Human Rights and Fundamental Freedoms.. The CJEU's competence to develop EU law through its case law has been recognized even by the constitutional courts of the Member States See judgment of the German Federal Constitutional Court of 6 July 2010 in Case 2 BvR 2661/06, DE:BVerfG:2010:rs20100706.2bvr266106, paragraph 62., leaving aside specific cases of opposition by national courts See Kuhn, W.M., “The non-contractual liability of the EU following the violation by the CJEU of the fundamental right to a reasonable length of proceedings”, Review of the Secretariat of the Permanent Court of Review of Mercosur, 6, No 12, September 2018..

The term “codes” should be used in the plural, as there is no single EU administrative code to date. The applicable administrative law may vary considerably depending on the subject matter. Although there are often general principles, which, as the term itself states, are of “general” (or “universal”) application, they may find a different expression, depending on the requirements of administration. For example, the obligation to state reasons may depend on the administrative context and the interest, which an individual may have in knowing the reasons for the adoption of a particular administrative decision affecting him See, to that effect, judgments of 15 November 2012 in Cases C-539/10 P and C-550/10 P Al-Aqsa v Council and Netherlands v Al- Aqsa, EU:C:2012:711, paragraph 139; of 11 July 2013 in Case C-444/11 P Team Relocations and Others v Commission, not published, EU:C:2013:464, paragraph 120, and of 28 March 2017 in Case C-72/15, Rosneft, EU:C:2017:236, paragraph 122.. Such a decision may also be subject to a less strict legal review in the light of the principle of proportionality, depending on the discretion enjoyed by the administration. Furthermore, considerations of public security may require a nuanced application of these principles See judgment of 15 February 2016 in Case C-601/15 PPU, J.N, EU:C:2016:84, paragraph 53.See, to this effect, Van Drooghenbroeck, S./Rizcallah, C.:Charte des droits fondamentaux de l'Union europeenne -- Commentaire article par article, Bruylant, Brussels, 2018, pp.1099 and 1103.. The time limits for submitting an application or lodging an appeal may be shorter than for other cases, depending on the interest of the administration in creating legal certainty. Certain remedies may provide for a full review of legality or be limited to preventing arbitrary decisions See opinion of Advocate General Pikamae of 9 September 2020 in joint cases C-225/19 and C-226/19, R.N.N.S. and K.A. v Minister van Buitenlandse Zaken, EU:C:2020:679, paragraph 99..These considerations prevent the creation of a single administrative code.

Furthermore, it is important to bear in mind in this context that EU administrative law includes not only general principles with legal force, breach of which may lead to the unlawfulness (or even nullity) of the administrative decision, apart from a right to compensation for the prejudice suffered by the person concerned, but also other principles whose observance is merely recommended in order to ensure “good administration”. There are certain requirements for “good administration” which, if not fulfilled, do not necessarily lead to the unlawfulness of an administrative decision. Failure to comply with those requirements is simply an instance of maladministration, which must be avoided. The distinction between these requirements and legal defects is not always easy, especially as certain legal defects may be remedied by the administration itself because they are not considered to be so serious. This is generally the case for certain formal errors, which do not affect the substance of the administrative decision. However, it is important to be able to differentiate between different cases, as this depends on the competence of the EU bodies responsible for enforcing legality. Thus, while the CJEU is solely responsible for examining defects in law, the European Ombudsman (“EO”) also deals with cases of “maladministration”, in accordance with Article 228 TFEU The EO and the Commission have separately developed “codes of good administrative conduct”, which have no legally binding force. However, they have some authority in the administrative practice of the European institutions and other entities in so far as they incorporate principles recognized by the case law of the CJEU, the founding treaties of the EU, as well as the Charter of Fundamental Rights.. Its competence is therefore much broader, regardless of the very specific instruments that the latter has at its disposal, which essentially consist in the possibility to publicly denounce instances of maladministration and to ask the authorities to remedy them.

Despite the difficulty in creating a single EU administrative code, there have already been some attempts to at least codify procedures. It is worth mentioning the Parliament's resolution of 15 January 2013 recommending to the Commission the creation of an EU Law on Administrative Procedure European Parliament resolution of 15 January 2013 with recommendations to the Commission on a Law of Administrative Procedure of the European Union (procedure: 2012/2024 (INL); document: A7-0369/2012).. For its part, the Court of Auditors in its Opinion N° 1/2015 called for the same idea Opinion N° 1/2015 of the Court of Auditors of the EU on a proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU, Euratom) N° 966/2012 on the financial rules applicable to the general budget of the Union (2015/C 52/01) (OJ C 52, 13.2.2015, p. 1).. On 13 January 2016, a proposal for a regulation on administrative procedure for the EU was published, after being adopted by the Parliament's Committee on Legal Affairs the previous week.

The codification of EU administrative law has important consequences, as it has the effect of complementing or even replacing national administrative law. This means that national authorities will have to apply autonomous concepts in accordance with the requirements of the EU legal order. Where the EU legislator does not provide for specific administrative procedures, substantive law must be applied in accordance with the procedures known under national administrative law while respecting the procedural autonomy of the Member States referred to above. However, should the EU legislator decide to regulate itself the procedures to be followed when applying substantive administrative law, this will obviously have as a consequence that the said procedural autonomy will be diminished.

Institutional openness

The EU is very concerned about the integrity of its legal order, and the CJEU has on many occasions stressed the need to preserve its unity, coherence and primacy Opinion 2/13 of the CJEU of 18 December 2014 on EU accession to the European Convention on Human Rights, paragraphs 164 et seq.. While it is true that the European integration process has evolved to the point of accepting “multiple speed integration”, allowing Member States to join the various integration projects offered by the EU (e.g.: the monetary union, the area of freedom, security and justice, the establishment of the Unified Patent Court (“UPC”) through the “enhanced cooperation” mechanism under Article 329TFEU The UPC is not incorporated into the CJEU, but constitutes a separate jurisdiction, created on the initiative of most Member States (Poland, Spain and Italy were opposed at an inception) and some third states on the basis of an international agreement. Despite its origin in international law, the UPC will have to apply the substantive patent law created by the EU through two regulations. Patents issued will have a dual effect, in the sense that they are supranational and national in nature (in all participating States).The seat of the UPC will be located in Paris, with sections in London and Munich, and regional and local divisions (see Wathelet, M./Wildemeersch, J., Contentieux europeen, 2nd edition, Brussels 2014, p. 89)., the security and defense cooperation in the framework of the so-called “permanent structured cooperation” provided for in Articles 42 (6) and 46TFEU See Lopez-Jacoiste Diaz, E., "The New Permanent Structured Cooperation: Definitive impulse for a common security and defense policy in Europe ", Spanish Yearbook of International Law, 34, 2018, p. 1075, for further details., etc.) where they consider it appropriate, it is clear that certain limits to such flexibility have been established. As recently seen during the negotiations between the EU and the UK related to the withdrawal of the latter and the conclusion of a partnership agreement that still needs to be defined in contractual terms, the EU is opposed to any kind of segmentation of the internal market On the Brexit process, Kuhn, W.M., “Legal aspects and political prospects of a possible withdrawal from the European Union by the United Kingdom”, Revista de la Secretaria del Tribunal Permanente de Revision del Mercosur, No 8, August 2016, p. 64..The EU therefore rejects the UK's proposal to remain in the internal market after becoming a third country, whilst totally excluding or at least significantly limiting the free movement of workers.

With the exception of this particular case, the EU has on certain occasions accepted that third countries voluntarily join the integration process without having to join the EU and obtain full membership status. This is the case for internal market integration with certain Member States of the European Free Trade Association (“EFTA”)EFTA Member States are Iceland, Norway, Liechtenstein and Switzerland.The first three are part of the European Economic Area., achieved through the conclusion of the Agreement on the European Economic Area (“EEA”). This agreement allows for an extension of the EU internal market freedoms to these states See on the EEA, Kuhn, W. M., “Reflections on possible regional convergence with the participation of the Andean Community and Mercosur. Lessons from European integrative experience ", International Policy, N° 109, July-September 2013.. Another example illustrating the openness of the European integration process is the participation of EFTA States in the Schengen legal acquis, i.e. the set of rules allowing the free movement of persons exempted from border controls in the geographical area made up by the participating States All EFTA Member States are part of the Schengen area.. This participation is possible thanks to the agreements concluded between the EU and the respective EFTA States.

Due to the high degree of integration in the above areas and taking into account the need to ensure uniformity in the application of EU law, it is necessary to provide for a very close institutional cooperation. It is precisely in this context that the administrative aspect becomes essential. It is important to stress that the manner in which EFTA States have joined the internal market and the Schengen area is quite different. While in the first case, rather complex parallel institutions have been set up within EFTA (the so-called “two pillar structure”), thus ensuring formal autonomy, in the second case, the EFTA States have joined the EU individually on the basis of bilateral agreements providing only for basic institutionality, in the form of joint committees. The participation of the EFTA States in both projects raised some problems, due to the fact that the phenomenon of agencification exists in both areas. Because several agencies operate in the field of the internal market and the Schengen area, the way in which EFTA States can participate in the work of these agencies had to be established. Otherwise, it would have been very difficult to ensure that the decisions taken within the agencies would be implemented in those States. It would also have been difficult to resolve the sensitive problem of the democratic legitimacy and the validity of EU law in the legal systems of the EFTA States. In addition, it would have been a waste of resources not to benefit from the technical expertise of experts from these countries. It should be borne in mind that Article 100 of the EEA Agreement itself requires the participation of those States in the phase preceding the legislative procedure, which is influenced by the opinions of experts (“decision sharing”). This form of participation is perfectly compatible with the EU treaties as it does not mix up the status of a “Member State” and that of an “associated State”. It should be recalled that under EU law, the status of “associated State” is generally granted less privileges compared to the status of “Member State”, as the first status mentioned does not provide for any participation in the EU legislative process within the Council. Instead, the associated States must accept legislative acts adopted by the EU legislator and, if provided for in the association agreements, transpose them into their national legal order However, this does not preclude ad hoc adaptations to EU legislative acts in the framework of the Joint Committee (the Association's decision-making body) in order to take into account the needs of the Associated State.. It is obvious that the autonomy of the EU legal order is not undermined by a simple “technocratic” participation in the good functioning of the EEA. The founding regulations of certain agencies provide for the participation of EFTA States as voting members (in matters concerning them) in the Management Board, while in other agencies at least one observer status is provided for Oesch, M./Lang, A., „EU-Agenturen und die Schweiz“, Zeitschriftfur Europarecht, N° 6, November 2014, p. 136..

Institutional openness in agencies is not limited to third countries but extends even to international organizations. Since the agencies constitute genuine centers of technical competence Chiti, E., “Is EU Administrative law dealing in some of its crucial tasks”, European Law Journal, Vol. 22, N° 5, September 2016, p. 589., it would be inconceivable to disregard the support of international organizations and non-governmental organizations operating in the same field. The founding regulations of the various agencies take account of this by providing for the participation of specialized entities within the consultative bodies of the respective agencies, which allows for a useful exchange of ideas. In certain cases, international organizations are even represented in the Management Board, but without having the right to vote. The participation of international organizations, of which the EU itself is not a member (but its Member States) -- such as the UN Refugee Agency (“UNHCR”) in EASO's Management Board and FRONTEX's Consultative Forum -- is a remarkable fact demonstrating the EU's commitment to the international community.

Inter-agency Cooperation

Being part of the EU's institutional structure, it is consistent that agencies are called upon to cooperate in areas of common interest. The agencies' cooperation with the CDT and the Publications Office in the area of public procurement, which is expressly provided for in the founding regulations, has already been mentioned above. Apart from this, agencies operating in a similar field or interested in a given category of services can cooperate and acquire them jointly (“joint procurement”). The EU financial regulations provide for such cooperation in order to reap the benefits it brings, i.e. saving financial resources and benefiting from synergy effects. This type of cooperation generally requires that two or more agencies agree on the services or goods to be procured (e.g. the purchase of aerial surveillance services between FRONTEX, EFCA and EMSA), the modalities of inter-party cooperation (internal allocation of resources or goods purchased according to the needs of each agency), as well as the organization of the procurement procedure (publication of a call for tenders, evaluation of tenders, award of the contract).

Many agencies are meant to collaborate with each other because they operate in the same field. The EU legislator has often even provided for complementarity of tasks, making certain agencies natural allies. This is the case for agencies such as FRONTEX, EUROPOL and EUROJUST, which are responsible for fighting crime in the so-called area of freedom, security and justice set out in Article 3(2) TEU. The eu-LISA agency could also be added to this list due to its IT support to the above-mentioned agencies operating in this area. Where the Treaties do not provide for explicit cooperation, such cooperation is regulated in an abstract manner in the founding regulations by conferring the respective agencies the power to conclude administrative arrangements between them, in which the terms of cooperation are laid down in detail. The requirement to submit such administrative arrangements to the Commission for approval (and to inform Parliament thereof) ensures that the requirement of compatibility with EU rules is respected, as will be explained below.

Cooperation between agencies can also be achieved through an exchange of knowledge and experience in areas, which may cover issues as diverse as civil service matters, public procurement, litigation, as well as the creation of a European school for the children of civil servants in the host Member State. Knowledge sharing can happen either directly between agencies or in a more institutionalized framework such as the “EU Agencies Network”, to which the Commission is also usually invited. As agencies face very similar challenges, it is understandable that such close cooperation has been developed. The younger agencies thus benefit from the experience gained by the older agencies. The meetings of the EU Agencies Network take place in different formats, according to the respective topics to be dealt with. Of particular interest is the network of lawyers, where topical legal issues are discussed. They are usually organized at the seat of the agency holding the rotating presidency.

Creation and legal basis

Method of creation

As stated at the outset, agencies are created through the adoption of founding regulations that set out the objectives and competences of every agency, as well as the organizational structure and decisionmaking procedures. They also regulate fundamental aspects of EU law, such as legal personality and capacity, non-contractual liability, the power to conclude agreements, the seat of the agency, immunities, the application of financial and staff regulations, language arrangements, provisions on public access to documents and data protection. The use of the regulation as a legal instrument allows for a swift establishment as well as a flexible modification of the functioning of the agency, as the EU legislator may, if necessary, make a punctual amendment to the relevant provisions. This is how the legislator has repeatedly responded to crises, such as the migration crisis that led to an extension of competences of the FRONTEX and EASO agencies Peers, S., EU Justice and Home Affairs Law, 4th edition, Vol. 1 (EU Immigration and Asylum Law), Oxford 2016, p. 150.. It also ensures immediate and uniform application by the Member States, without the need for transposition into national law.

While it is true that, hypothetically, recourse could be had to other legal instruments referred to in Article 288 TFEU, such as a directive or a decision, it should be noted that only the regulation ensures that the constituent act has sufficient normative value to regulate matters as important as legal personality, as well as of a substantive and procedural nature, thus completely dispensing with a legislative complement at national level which could jeopardize legislative and administrative uniformity. These are the main reasons why the regulation is the primary legal instrument for setting up agencies. The establishment of EUROPOL confirms this, since this agency was initially set up (in 1992) on the basis of an international agreement (which entered into force only in 1998), which was subsequently replaced by a framework decision and finally by a regulation. EUROPOL thus underwent a transformation from an intergovernmental to a supranational agency Mollers, R., Polizei in Europa -- Die Sicherheitsagenturen EUROPOL und FRONTEX im Raum der Freiheit, der Sicherheit und des Rechts, 2rd edition, Frankfurt 2017, p. 53.. EUROJUST experienced a similar evolution due to the fact that cooperation in criminal matters began to take place within a strictly intergovernmental framework. With the dissolution of the supranational and intergovernmental pillar structure (commonly known as the “Greek temple structure”) following the entry into force of the Lisbon Treaty, criminal cooperation has been placed on a new legal foundation, which, however, retains certain particularities.