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

Although this article focuses on the establishment of agencies, it is also necessary to take into account the competence of the legislator to close them, following the same legislative procedure that led to their creation. It also has the power to amend founding regulations and to merge agencies. It should be noted that to date none of the agencies has been closed, merged or significantly modified in their scope, except for the European Agency for Reconstruction, which was set up in 1999 and wound up in 2008. Over the past ten years, the Commission has twice proposed to merge agencies for reasons of coherence, but did not obtain Parliament's agreement Court of Auditors, Special Report “Future of EU Agencies -- Reinforcing flexibility and cooperation” (2020), p. 22.. In 2007, the Commission's impact assessment accompanying the proposal for a European Electronic Communications Market Authority (which became BEREC Office in 2009) suggested merging ENISA with the new authority, but the legislator chose instead to create a separate new body that would coexist with ENISA. CEPOL provides online and face-to-face training sessions for police officers and is closely linked to EUROPOL. In 2013, the Commission presented a legislative package, based on an impact assessment, proposing to merge EUROPOL and CEPOL for reasons of efficiency. However, Parliament rejected the proposal. This is why the agencification process seems to be moving forward rather than being reverted.

The headquarters agreement concluded with the host Member State

In a certain way, European agencies reflect the idea of a federal and decentralized EU, due to the fact that they have their headquarters outside Brussels, Luxembourg and Strasbourg, informally referred to as “EU capitals”. To some extent, agencification in the EU is inspired by similar processes that have taken place in other parts of the world, especially in federally structured States such as the USA and Germany. The idea of decentralization responds to the need to create an institutional structure that is closer to the citizen. Agencification is thus a reaction to resentment towards Brussels, which is widely cultivated by certain groups of eurosceptics and nationalists. On the other hand, the idea of becoming the seat of an agency has become very popular among Member States, which even compete to be granted such status. This has been the case recently for EMA, which, after years in the UK, has had to look for another home state following Brexit. Several Member States submitted proposals for cities that could provide suitable conditions for hosting this agency, with Amsterdam being eventually selected. The same was true for EBA, which was also based in London before Brexit and ultimately moved to Paris. There are various reasons for such a positive stance towards agencies, such as the reputation of being a host State, the expected benefits of public procurement and the employment of nationals of that Member State, the hope of being able to influence in some way the policy of the agency, among others. The seat of an agency is determined by common agreement of the Member States within the Council. Recently, it was the Commission that has been proposing possible headquarters, based on applications previously submitted by the Member States, which highlight the advantages of their respective cities, e.g. geographical location, connectivity, infrastructure, availability of buildings, quality of life, etc. All these criteria play an important role in the choice of the city where the seat is located.

Although the founding regulations (complemented by the provisions of the Treaties) contain legal provisions allowing an agency to operate autonomously immediately after its creation by regulating essential aspects such as finance, immunities, employment, functions, etc, it is inevitable in practice to conclude headquarters agreements with the host Member States Report from the Commission to the European Parliament and the Council on the implementation of the Joint Statement and Common Approach on the location of the sites of decentralised agencies, COM (2019) 187 final, p. 8.. Indeed, the founding regulations expressly require this. There are several aspects that need to be regulated in more detail in a headquarters agreement, such as relations with national authorities, the respect of the inviolability and the immunity of the agency (infrastructure, archives, telecommunications) and its staff, the availability of a multilingual school for staff children, the construction and availability of infrastructure, the protection of the agency's premises, exemptions of taxes and customs duties, access to the national health system, entry and stay permits, etc. All these aspects require negotiations between the agency and the host Member State, which in some cases have even lasted for years. From a legal point of view, the host agreement is an instrument of public international law, which can be concluded by the agency itself because of its legal personality. At the same time, it cannot be denied that it is also part of the EU legal order, as it implements provisions of primary and secondary law. Although it is concluded and amended in accordance with the rules of public international law (and the constitutional law of the seat State), it is impossible to interpret its provisions without taking into account the objectives of EU law. It can therefore be concluded that the host agreement is a necessary complement to ensure the proper functioning of any agency. The existence of a headquarters agreement ensures legal certainty in the host State, as the national authorities are sometimes not fully aware of the prerogatives of a EU agency on their territory. The possibility of being able to consult a legal document drafted in the official language of that Member State is an aspect of immeasurable value in administrative practice.

Conflict with the principles of conferral of powers and institutional balance

The existence of a large number of agencies suggests that their creation does not face obstacles that are difficult to overcome. This is precisely a major problem that needs to be discussed below. In so far as agencies are increasingly entrusted with powers, there is a risk that the EU institutions, which are expressly created by the founding treaties, may interpret this phenomenon as an implicit delegation of powers and, consequently, reject any liability for the infringement of the rights of individuals. Indeed, the possibility cannot be ruled out that the creation of agencies endowed with sovereign powers might blur the division of powers provided for in the treaties. Uncertainty as to the extent of the respective agencies' competences may even lead to an agency unduly exceeding its power to act (“ultra vires” activity) Lenaerts, K./Van Nuffel, P., European Union Law, 3rd edition, Oxford 2011, 17-021, p. 708.. The examples mentioned above suggest that the phenomenon of agencification could be incompatible with two core principles of EU law: conferral of powers and institutional balance.

The principle of conferral

The EU has only the competences conferred by the Treaties. In accordance with this principle, laid down in Article 5(2) TEU, the EU may act only within the limits of the competences conferred by the Member States in the Treaties to attain the objectives set out therein. Competences not attributed to the EU by the Treaties remain with the Member States. The Lisbon Treaty clarifies the division of competences between the EU and EU countries. These competences are divided into three main categories: exclusive competence; shared competences; and supporting competences. In principle, by not providing for the possibility to set up agencies other than those explicitly mentioned in the Treaties, it could be argued that only the institutions listed in Article 13 TEU can exercise the powers conferred on the EU.

On the other hand, it should be noted that there is no provision in the Treaties expressly prohibiting the conferral of powers on other entities, be they agencies or bodies, especially if these powers are only specific and if this is done voluntarily. As will be explained below, the creation of agencies does not occur in a legal vacuum, but recourse is made each time to a legal basis in the Treaties allowing the adoption of the corresponding founding regulation, following a legislative procedure for this purpose, which reflects as far as possible a consensus between the relevant institutions, i.e. the Council and the Parliament. Since the Commission is responsible for presenting legislative proposals, it has already happened that it and the Council, which is a co-legislator, have had divergent views on the choice of the appropriate legal basis. The fact that the Council has opted on certain occasions to amend the legislative proposal, by referring to a different legal basis, demonstrates how controversial this issue can be. Ideally, the Treaties should be amended in order to introduce a specific legal basis for the creation of agencies. This would help to ensure legal certainty and avoid litigation before the CJEU. However, there is currently no indication of political will for reform.

(a) The principle of institutional balance

According to Article 13(2) TEU, each EU institution is to act within the limits of the powers conferred on it by the Treaties and in accordance with the procedures, conditions and objectives set out therein. This provision is the expression of the principle of institutional balance, characteristic of the institutional structure of the EU, which implies that each of the institutions must exercise its powers without encroaching on those of the others Judgment of the CJEU of 13 November 2015 in Case C-73/14, Council/Commission, EU:C:2015:663, paragraph 61; judgment of 14 April 2015, Council/Commission, C-409/13, EU:C:2015:217, paragraph 64.. In view of this principle, it could be argued that, by taking on certain powers, agencies “usurp” the powers originally conferred on the institutions. In addition, it could be argued that by creating new entities other than the institutions, the democratic and legality control that the Treaties impose on the institutions is avoided. Agencification would therefore be an attack on the sophisticated institutional balance established by the Treaties.

However, this argument would ignore the fact that the agencies only have ad hoc powers, in highly specialized areas, without depriving the institutions of the possibility of exercising their original powers. In fact, agencies operate in a highly technical area, into which an institution would hardly venture, unless the treaties were amended. Thus, far from “usurping” powers, the agencies occupy new areas of competence on the basis of an express conferral, specified in the founding regulation. As regards the argument relating to the alleged lack of democratic control and legality referred to in the previous paragraph, it is important to mention that the agencies do not operate arbitrarily and without any control. On the contrary, as will be explained below, agencies are required to submit detailed reports of their activities to the main institutions as well as to the general public. There are also transparency obligations they must comply with, such as public access to documents. As regards the necessary review of legality, it must be borne in mind that the acts adopted by agencies having legal effects for individuals may be challenged by the latter before internal judicial bodies and the CJEU Lenaerts, K./Van Nuffel, P., European Union Law, 3rd edition, Oxford 2011, 17-022, p. 709.. It can therefore be rightly stated that the EU legislator has developed appropriate mechanisms to ensure that agencies do not avoid their democratic and legal accountability.

(b) The principle of subsidiarity

Another principle that plays an important role in setting up agencies is the principle of subsidiarity, as laid down in Article 5(3) TEU and Protocol (No 2) on the application of the principles of subsidiarity and proportionality. In areas which do not fall within the exclusive competence of the EU, the principle of subsidiarity aims to protect the decision-making and policy capacity of Member States and legitimizes EU action where the objectives of an action cannot be sufficiently achieved by the Member States, but can rather be better achieved at EU level “by reason of the scale or effects of the proposed action”. Thus, the purpose of including that principle in the EU T reaties is to bring the exercise of powers closer to the citizen, in accordance with the principle of proximity laid down in Article 10(3) TEU. As EU law provides for various forms of administration, it would be possible to claim that the creation of an agency is an unnecessary act of centralization. Indeed, as explained above, EU law can be implemented in a decentralized manner by the Member States, while the Commission and the CJEU are responsible for ensuring that Member States comply with their obligations.

On the other hand, it could be put forward against this argument that agencification does not necessarily have the effect of centralizing administration. As mentioned above, agencification does not deprive Member States of the right to apply and enforce EU rules themselves at national level. The administration remains significantly in the hands of the Member States, with agencies generally limited to coordination and performance assessment tasks in the achievement of the objectives set. It is precisely this task of coordination and evaluation that is one of the main reasons for the creation of agencies, since they have the technical expertise and impartiality necessary to verify that those objectives have been met. The creation of a supranational body ensures the efficiency of the administration, as it can put healthy pressure on Member States to ensure compliance with their obligations. The founding regulations generally justify in detail how the legislature has taken account of the principle of subsidiarity. The aim behind such justification is to comply with the requirements of Article 8 of Protocol No 2 to the TEU, according to which Member States (on the initiative of their national parliaments) may bring an action for annulment of a given legislative act before the CJEU, alleging an alleged breach of the principle of subsidiarity. T o date, the CJEU has been very cautious in its assessment of compliance with this principle.

2. The legal basis in the treaties

Since the first agencies were set up, the EU has made use of a number of legal bases that will be presented below. In fact, it is commonly referred to as “generations” of agencies, depending on the type of legal basis used for their establishment. Each legal basis has its own requirements and functions and is therefore not merely interchangeable. The choice of the appropriate legal basis is very important in EU law. In view of its status as a “Union of law”, as repeatedly recalled by the CJEU See judgment of 26 June 2012 in case C-335/09 P, Commission/Poland, EU:C:2012:385, paragraph 48 and of 29 June 2010, E and F, C-550/09, EU:C:2010:382, paragraph 44. The CJEU has emphasized that the EU “is a Union based on the rule of law whose institutions are subject to review of the conformity of its acts, in particular with the Treaty and with the general principles of law”., the choice of legal basis ensures that the EU legislator acts in accordance with the rule of law and respects the basic principles mentioned above, i.e. conferral, institutional balance and subsidiarity. Consequently, if it did not comply with this requirement, the legislator would exceed its powers, risking the annulment of the ultra vires act by the CJEU as a sanction. This could occur in the context of an action for annulment (Article 263 TFEU), a reference for a preliminary ruling to verify the validity of a legal act (Article 267 TFEU) or an action for inapplicability (Article277 TFEU) Lenaerts, K./Van Nuffel, P., European Union Law, 3rd edition, Oxford 2011, 17-022, p. 709.. In order to allow for an effective judicial review of the legislative activity, EU law provides that each legislative act must state the legal basis that has been applied and explain in its recitals the reasons, which led the legislator to adopt such an act.

(a) The flexibility clause in Article 352 TFEU

The first legal basis used by the EU for the purpose of setting up agencies was the so-called flexibility clause in Article 352 TFEU It is equivalent to Article 308 TEC and ex Article 235 EEC.. This provision authorizes the EU to adopt an act necessary to achieve the objectives assigned by the Treaties where the Treaties have not provided the necessary powers to achieve those objectives. Article 352 TFEU can serve as a legal basis only if the following conditions are met: the envisaged action is “necessary to achieve, within the framework of the policies defined by the Treaties (with the exception of the Common Foreign and Security Policy), one of the EU's objectives”; nothing in the Treaties provides for actions to achieve that “objective”; the planned action should not lead to the extension of EU competences beyond what is provided for in the Treaties.

This legal basis was widely used at the beginning of the integration process The evolution of the legal history of the Economic and Monetary Union and the use of Article 352 TFEU go hand in hand. Both the management of the first balance-of-payments support mechanisms and the establishment of the European Monetary Cooperation Fund (“EMCF”) and the European Monetary Unit were based on the flexibility clause. This provision could be applied in order to bring the Economic and Monetary Union to its following logical stage: a European Monetary Fund under the Treaties, through the incorporation of the current European Stability Mechanism (“ESM”) into EU law. Thus, the integration of the ESM into the EU framework could be achieved through a regulation based on Article 352 TFEU. In order to ensure a smooth continuation of activities, Member States would agree that the ESM capital is transferred to the European Monetary Fund through individual commitments or a simplified multilateral act. and this practice was also considered compatible with EU law by the case law of the CJEU See judgment of 27 November 2012 in case C-370/12, Pringle, EU:C:2012:756, where the CJEU did not explicitly rule out the possibility of establishing the ESM by using Article 352 TFEU as a legal basis. However, it did not need to comment on that, given the fact that it had been created on the basis of an international agreement originally outside the EU's founding treaties. It should be noted that the Treaties were subsequently amended by a simplified procedure to provide for the creation of the ESM.. However, this practice has the drawback of encouraging an overly extensive use due to the somewhat ambiguous wording of the legal basis. It is not too difficult to find in the Treaties an objective that would serve as a justification for setting up an agency. Perhaps this was not a real problem at an early stage. However, as the number of agencies increases, there is a risk of proliferation even undermining the role of the institutions. Furthermore, Article 352 TFEU is based on the “implied powers” theory, according to which it is assumed that an international organization must have the powers necessary to attain its objectives, even if its constituent agreement does not expressly confer such powers. While it is true that the “implied powers” theory originates in public international law See Reparation for injuries suffered in the service of the UN, Advisory Opinion of the International Court of Justice of 11 April 1949, [1949] ICJ Rep 174, ICGJ 232 (ICJ 1949), United Nations., it must be pointed out that such a presumption is difficult to reconcile with the principle of conferral, which is inherent in EU law. Moreover, the idea of allowing the legislature to “fill up” on an ad hoc basis a legal vacuum left unintentionally in the Treaties by means of an allocation of powers based on Article 352 TFEU reflects that principle in some way. We can thus conclude that, although the flexibility clause can, in principle, serve as a legal basis, it is not the most appropriate choice. This is perhaps the reason why this practice was abandoned over time, giving preference to other legal bases. The agencies established under Article 352 TFEU include Cedefop, EUROFOUND, ENISA, FRA and CPVO.

(b) The internal market harmonization clause in Article 114 TFEU

Another legal basis used for the purpose of setting up agencies was the internal market harmonization clause in Article 114 TFEU. That provision allows for the adoption of “measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market” Other integration systems such as the Eurasian Economic Union and the Andean Community of Nations also provide for the harmoni-zation of national legislation with a view to establishing an internal market (see Kuhn, W.M., “The Eurasian Economic Union (II) -- Institutions, Law and Policies for Economic Integration”, European Law Reporter, 2016, No 7, p. 268).. While it is true that this legal basis was very useful in its days, it poses a number of legal problems today because its application is limited to only one sector, the internal market. Although it was indispensable in the formation phase of the internal market, its relevance has now diminished after this objective was essentially achieved in 1993. This obviously does not rule out the possibility that Article 114 TFEU may continue to be used as a legal basis since the EU internal market continues to evolve in response to current requirements, for example by taking account of technological development and the need to protect consumers. However, in the absence of recourse to Article 114 TFEU if the agency does not operate in the field of the internal market, the legislator will have to rely on Article 352 TFEU, which is a subsidiary legal basis. Another problem is the restriction to “measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States”. To what extent the establishment of an agency itself must constitute an approximation of provisions or whether it is sufficient that its creation constitutes a measure that “facilitates” or “contributes” to that objective is still a matter of controversy. The case law of the CJEU seems to favor a rather broad interpretation of the scope of Article 114 TFEU, in recognition of the discretionary power of the legislator, by requiring only that the activity of the agency contributes to the approximation of laws with a view to ensuring the functioning of the internal market. The agencies established under Article 114 TFEU include ECHA, ACER, EBA, ESMA, EMA, EIOPA, EUIPO and ENISA.

(c) Sectoral provisions of the TFEU

More recently, the legislator has been using as a legal basis those provisions in the Treaties, which confer competences on the EU in certain areas. Although these provisions do not expressly provide for the establishment of agencies, they authorize the EU to adopt “measures” to achieve specific objectives. The

term “measure” is generally construed as meaning that the power conferred also allows the adoption of legislative acts, including regulations establishing agencies. As administrative entities, agencies are undoubtedly appropriate measures to address the problems encountered in the integration process. This practice can be considered established and endorsed by the case law of the CJEU. It is also the one which raises the least doubts as to its legality, since it is the one which seeks most to satisfy the requirement of pursuing a legitimate objective, as well as the requirement to rely on a competence specifically provided for in the Treaties. Indeed, the term “measure” is sufficiently broad to include the creation of agencies, particularly in the light of the wide discretion that the legislator enjoys in the choice of measures to achieve the objectives set out in the Treaties. Agencies that were set up under sectoral provisions include EEA, ECDC, EASA, FRONTEX, EASO and EFSA.

IV. Organizational structure

Because an agency is an autonomous entity, it cannot rely on the Commission or another institution for the purpose of defining its policy. Moreover, the founding regulations generally state that the work programs of the agencies should be compatible with the priorities defined by the Commission or the EU in general. As a result, each agency has a body that defines its policy. In addition, that body will also be responsible for taking the necessary administrative measures, thus enabling the agency to function. The overall organizational structure of the agencies will be briefly explained in what follows, although it should be mentioned that important differences may exist from one agency to another, as a result of the somewhat uncoordinated proliferation that has taken place in recent decades. Indeed, it was not until the adoption of the so-called “Common Approach” „Joint Statement of the European Parliament, the Council of the EU and the European Commission on decentralised agencies” (docu-ment available under the following link: https://europa.eu/european-union/sites/europaeu/files/docs/body/joint_statement_and_com- mon_approach_2012_en.pdf), in which the main EU institutions agreed on the common features that the new agencies should present, that a certain order in the agencification process was created. In principle, each agency has an organizational structure consisting of its Management Board and Executive Director. However, it may also provide for other bodies with consultative functions.

The Management Board

The organizational structure of the agencies provides for the creation of boards, which have two different types of functions: the definition of the agency's policy and the exercise of administrative functions. While in some agencies it is the same board that exercises these functions, others provide for a division of functions between two different types of boards. In order to take into account the role of the respective board, the most recently created founding regulations of agencies foresee that members will have to meet certain requirements, more specifically, they will need to have knowledge and experience in the field of activity of the agency. The names of such bodies may vary from one agency to another, even if the functions are similar. In order to facilitate understanding, the general term “Management Board” shall be used. According to the relevant provisions in the agencies' founding regulations or the rules of procedure of the boards, these bodies convene meetings of their members on a regular basis, at least once a year or when a certain percentage of their members so request. The purpose of these meetings is to discuss aspects related to the agency's activity, in particular as regards the strategy to be pursued, and to take the necessary decisions to ensure its functioning.

In general, each Management Board is composed of representatives of all Member States. However, there are a few exceptions, where there is a representation of the Commission, the Council and the Parliament respectively. The boards generally provide for representation of the Commission through at least one (up to six members) with voting rights. In some agencies, the Commission has only an observer status. In any event, the Commission has tried in vain to extend its influence on administrative boards by requiring equal representation with the Council. Indeed, the Commission's presence in the Management Board is indispensable in order not to deprive the agency of its supranational character. A representation of only the Member States would risk eliminating the distinction between the institutions of the EU and those of the Member States. The agency could become an intergovernmental entity through national authorities, which is irreconcilable with the idea of EU supranationality. Taking into account the experience and technical expertise of the Commission, it is therefore necessary to require a commensurate representation of the Commission.

In some agencies, Parliament is also represented or can appoint scientific personalities. Apart from exceptions where they are only granted the observer status, these representatives are generally full members of the Management Board. The Commission's legislative proposals did not initially provide for a representation of Parliament. However, the latter amended them in order to ensure their presence in the agencies. On the one hand, this presence has the advantage of allowing Parliament to assume its role of democratic scrutiny of the agencies' activities. On the other hand, involving Parliament in the agencies' activities risks mixing up its influence over the agencies' activities with its democratic scrutiny. Parliament already has effective means of ensuring that the agencies comply with the applicable rules and are accountable for their actions. In the future, it would be preferable for the Parliament to simply insist on preserving its traditional means of control rather than directly influencing the activities of the agencies, which is rather a matter for the executive.

The Management Boards of certain agencies allow for the representation of entities other than the EU institutions and Member States. The participation of third countries and international organizations in Management Boards has already been discussed in the context of the openness of the agencification phenomenon. In addition, certain agencies provide for the representation of non-voting interest groups, which are appointed according to specific procedures.

In the “Common Approach”, the institutions agreed that the Management Boards would be composed of one representative per Member State, two representatives of the Commission, one from the Parliament and, if appropriate, a limited number of interest groups. This agreement can be seen as a defeat for the Commission, who had insisted on a parity with the Council. It is, in turn, an important victory for the Parliament, which has a legitimate right to require representation on all boards of directors despite the aforementioned doubts about its specific role.

1. Executive Director

The Executive Director is the most important body in the agency after the Management Board. Like the latter, the Executive Director does not have a harmonized name but is often referred to in the terminology introduced by the founding regulation. He represents the agency externally and is responsible for its day-to-day administration. Its role is also to assist the Management Board in the preparation of the agency's essential documents. In order to perform his/her duties, the Executive Director should ideally have sound knowledge of public administration, management and even professional experience in the area in which the agency operates. However, it is interesting to draw attention to the fact that the founding regulations do not contain any specification as to the conditions which every candidate must satisfy in order to take up that post, so that, in practice, it is for the Management Board to choose the appropriate candidate.

The Executive Director is appointed by decision of the Management Board on the basis of a proposal from the European Commission. Although this is the regular procedure in the vast majority of agencies and is also in line with the “Common Approach”, there are important exceptions, with some agencies providing for an appointment by the Council, on the basis of a proposal from the Management Board, or a decision of the Management Board itself, on the basis of a list of candidates drawn up by a selection panel (or the Commission) and approved by the Council and the Parliament. It should be noted that, although only the founding regulations of CEPOL and EUROJUST explicitly mention the involvement of a selection panel, this is normally required by the EU civil service legislation. The differences in the appointment process that still exist from one agency to another are the result of an uncoordinated process in agencification,

which results from the struggle between the institutions for obtaining control and are therefore not justified on objective grounds. The most consistent approach would be for the Executive Director to be appointed only by the Management Board, to which the Executive Director is normally accountable. While it is true that the Commission has a certain power to propose a number of candidates for the post of Executive Director, the fact remains that the Parliament has been able to extend its influence. In fact, the founding regulations of the agencies most recently created foresee that candidates should appear before the Parliament and answer questions, following a procedure similar to the appointment of Members of the Commission This is a remarkable fact, as not all procedures for appointing senior EU leaders provide for a duty to appear before Parliament. It should be noted in this context that, under Article 255 TFEU, judges of the CJEU must appear only before “a panel composed of seven persons chosen from among former members of the CJEU and the GC, members of national supreme courts and lawyers of recognised competence, one of which shall be proposed by Parliament”. The appointment is thus based solely on the knowledge and experience of a candidate. Therefore, unlike the procedure foreseen in the US for appointing the members of the Supreme Court, the appointment of judges of the CJEU is not subject to the vote of a parliamentary assembly. However, Parliament has requested at more than one opportunity that the procedure be changed in order to allow it to play a more important role..

Some of the most recently created agencies' founding regulations emphasize the independence of the Executive Director of the institutions in their management of the agency. Of course, this does not mean that the Executive Director is not accountable for his/her actions. On the contrary, as indicated above, the Executive Director is accountable to the Management Board and may therefore be dismissed by the latter on the grounds of a breach of his duties, in accordance with the procedure laid down in the respective founding regulation. The regulation of such a procedure may be detailed or leave a certain margin of discretion, thus varying from one agency to another.

2. Advisory bodies

Depending on its specific role, the institutional structure of the agency may include a number of advisory bodies, which will enjoy relative independence despite their formal membership in the agency. Frontex' consultative bodies include the Data Protection Officer, the consultative forum and the Human Rights Officer. The advisory bodies may be the forum for bringing together international organizations, invited to participate in the work of the agency, if membership of the Management Board is not foreseen. Other agencies may provide for bodies composed of technical experts, specialized in the area in which the agency operates. Depending on their respective role, these advisory bodies may submit opinions, deal with requests from private individuals, as well as encourage the agency to act in a specific way.

V. Decision-making procedures and the adoption of other acts

The various bodies of the agency take decisions in their respective areas of competence. While the Management Board deals with strategic aspects, the Executive Director is responsible for the day-to-day operation of the agency, as well as for taking the measures necessary to ensure the implementation of the decisions of the Management Board where the founding regulation or the decisions of the Management Board themselves provide for such implementation. The Management Board may also delegate certain tasks of an administrative or implementation nature to the Executive Director. Decisions are taken in accordance with the respective procedures laid down in the founding regulations, governed in more detail by the rules of procedure, which the agency is responsible for adopting. While it is true that the Executive Director and the Management Board have different competences, it cannot be doubted that there will always be a certain thematic overlap. However, it should be noted that there is a hierarchical relationship between the two types of decisions. In so far as it ensures the implementation of decisions of the Management Board and acts on the basis of a delegation of powers, the Executive Director merely acts in accordance with the terms of reference given by the Management Board. The hierarchy of norms must therefore be taken into account when examining the legality of a decision. This implies that the Executive Director's implementing and delegation decisions must comply with the instructions given in the decisions of the Management Board. The decisions of the agency must in turn comply without exception with the provisions of the founding regulation, as well as with all relevant EU legislation, i.e. applicable by the agency.

In addition to the decisions in the strict sense, agencies may adopt administrative acts with binding effects on Member States or individuals, with the possibility of varying terminology from one agency to another. The question whether an administrative act adopted by the agency produces legal effects must be answered by an interpretation of the legal bases enabling the bodies of the agency to adopt those acts, account being taken of the objective to be achieved by that act. The answer is of the utmost importance, since it makes it possible to determine whether an administrative act may be the subject of legal review, a matter which will be discussed below. Another important category of administrative acts adopted by agencies is the “soft law” mentioned above, which includes all kinds of manuals, circulars, guidelines, etc. whose role is essentially to give some guidance to national and supranational bodies on how to apply and interpret the EU rules correctly. While the interpretative monopoly of the law lies with the CJEU, it should be pointed out that agencies, like the Commission, have a high level of technical knowledge, so that the importance of these soft law instruments should not be underestimated. Indeed, those instruments often fill up the loopholes left by secondary legislation, as well as giving guidance to the administration as to how best to make use of the margin of discretion that the EU legislator may have conferred on it Nowadays, the soft law instruments developed by both the Commission and the agencies must be regarded as indispensable in the EU administrative practice.

VI. Control measures on agencies

1. General aspects

The proliferation of agencies in so many areas of EU competence raises doubts as to the feasibility of genuinely controlling their administrative activity. This concern is understandable when comparing administration through agencies with other types of administration mentioned above. When Member States implement EU law, it will generally be up to the Commission and the CJEU to monitor compliance with their obligations. If EU law is applied by the Commission, institutions such as the CJEU, Parliament See European Parliamentary Research Service, “EU agencies, common approach and peer review -- Implementation assessment” (No-vember 2018). and the Court of Auditors will normally have a duty to verify the correct implementation. For agencies, this is much more complicated. In the absence of any provision in the Treaties which explicitly provides for the establishment of agencies, it is clear that there will be no provisions governing such important aspects as the control of their administrative activity. Aware of this problem, the legislator has had to introduce specific mechanisms to fill this gap in the EU legal order. The control mechanisms are of a variety of types and are applied by several institutions, as will be explained below. The aim is always the same, i.e. to ensure that agencies take responsibility for their actions by acting in a transparent manner and in accordance with the legal framework.

The requirements imposed by the chosen legal basis

The most elementary control mechanism is linked to the choice of the appropriate legal basis in order to create an agency. As stated at the outset, the legal basis determines the legislative procedure to be followed and thus the requirements to be met by the institutions involved in that procedure. If unanimity is required in the Council, as would be the case with the application of Article 352 TFEU as a legal basis, Member States may object to the establishment of the respective agency. That is also the case if the adoption of the founding regulation requires a majority of votes among the Member States meeting within the Council, as required by the legal basis of Article 114 TFEU. If the Parliament is co-legislator in this process, it may also oppose or require legislative amendments that reflect its interests. Obviously, once the agency has been set up, this control is lost, unless the founding regulation requires subsequent amendments, so that the legislative process should be re-launched. Since this is not so often the case, the institutions involved will have to make wise use of their influence in the legislative process.

Preparation, negotiation and adoption of the budget

Another important control mechanism is the possibility to allocate financial means to agencies through the adoption of the EU budget. The Council provides for the means deemed necessary, while it is for the Parliament to adopt the budget. Both Member States and Parliament can achieve the desired changes to the agency's activity by exerting political pressure. By virtue of its power of initiative, the Commission has the task to submit a budget proposal, suggesting to allocate financial resources to the activities it deems appropriate to achieve the objectives set.

The influence of the Commission on the activities of the agencies

Of all the EU institutions, it is the Commission that is likely to have the greatest influence on the activities of the agencies due to the fact that they are entrusted with an administrative activity. Moreover, while it is true that agencies are specialized entities, the Commission is the institution with policy development and implementation powers. It also has coordination, implementation and management functions, in accordance with Article 17(1) TEU. To illustrate an example, although FRONTEX is the agency responsible for protecting the EU's external borders, it is the Directorate-General for Justice and Home Affairs that develops a policy in this area and, after approval by the Council, ensures that FRONTEX operates within the framework of this policy. As “guardian of the treaties”, the Commission will intervene to ensure that the agency acts within its mandate and the respective EU policies. In addition, the Commission will be formally (or informally) consulted by the various services of the agency on aspects related to the legality of its activities, notwithstanding the institutional independence enjoyed by the agency. The Commission seems to be aware of this relationship of “semi-subordination” when considering the agencies openly as their “satellites”. The Commission will also normally require that its prerogatives be respected in certain areas, for example in the field of external relations. The Commission will therefore object to agencies acting independently when dealing with third countries. The development of administrative arrangements with these countries will generally require the authorization of the Commission before they can be concluded. In order to prevent an agency from trespassing its powers -- or of the EU itself -- at international level, the Commission starts from the premise that administrative arrangements concluded between agencies and third States do not constitute treaties of public international law. It will also deny its legally binding effect, reducing it to mere “expressions of intent”. However questionable this interpretation may be from a legal point of view, it makes much sense for the EU in political terms, since it avoids the risk of international liability towards third countries as the result of an uncoordinated activity by a large number of agencies.

Moreover, it should be noted that the influence that the Commission may exert on the internal decision-making process, that is to say in the Management Board, is not sufficient to be able to speak of a “control” of the agency's activity. As explained above, the Commission generally does not have more than a couple of representatives on that board, with its influence being reduced with each accession of new Member States to the EU. Although the Commission endeavors to highlight its technical knowledge and experience in the field, this should not lead to the conclusion that this will be sufficient to make its opinion prevail over the views of the other members of the Management Board. Much less the Commission will be able to exert a decisive influence on the day-to-day work of the agencies by being able to propose or reject candidates for the post of the Executive Director. The position of the Commission within the Management Board remains that of a minority.

Public relations and public access to internal documents

Agencies do not operate in anonymity, even if the Commission often benefits publicly from the success of their activities. Some agencies enjoy a certain popularity, depending on the scope assigned to them. As a result, agencies are often called upon to answer questions raised by the press or members of Parliament regarding the legality and appropriateness of their actions. Agencies shall take responsibility for their actions, explaining directly or by means of press releases the reasons that led them to take certain decisions. In addition, agencies must provide public access to their documents in accordance with the EU rules, which are generally declared applicable by virtue of the founding regulations. This concerns, in particular, Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission OJ L 145, 31.5.2001, p. 43-48. documents. Part of the administrative activity consists of processing requests for public access to internal documents, justifying refusal of access and, if necessary, defending this decision before the CJEU in the event that such a decision is challenged by an action for annulment See judgments of the GC of 27 November 2019 in case T-31/18, Izuzquiza and Semsrott/Frontex, EU:T:2019:815 and of the CJEU of

22 January 2020 in case C-175/18 P, PTC Therapeutics International/EMA, EU:C:2020:30.. These mechanisms ensure effective control of the activity of agencies by the public.

The responsibility of the Executive Director and the Chairperson of the Management Board

The agency is also accountable through its Executive Director, who assumes political responsibility for the agency's actions towards institutions such as the Commission and Parliament. Those institutions may request that the Executive Director or the Chairperson of the Management Board appear and answer questions put to them. If Parliament requests their availability, this invitation will usually come from the committee responsible for the matter.

The obligation to submit a work programme and an annual report

The main source of information enabling the institutions to exercise their power of scrutiny is the reports that agencies must submit on a regular basis, the work programme and the annual report being the most important. The two reports are, in principle, sides of the same medal. While the work programme explains the policy and objectives of the coming year, the annual report presents the activities of the previous year. With regard to the work programme, it is normally the founding regulations that impose the obligation to submit it. However, the agencies recognise this obligation even if the founding regulations do not explicitly prescribe it. Obviously, the work programme should be compatible with the EU policy in the respective field. The annual report enables the responsible institutions to verify whether the agency has achieved its objectives. Generally speaking, the founding regulations do not specify in much detail the requirements to be met by the reports in terms of content, thus giving the agencies a certain margin of discretion. In order to achieve a certain degree of harmonization, the “Common Approach” makes some suggestions, proposing that the Commission take the initiative and adopt measures to ensure consistency and comparability of these reports. In any event, the founding regulations determine the institutions to which such reports must be sent, including the Council, the Commission, the Parliament, the Court of Auditors, the Committee of the Regions and the Economic and Social Committee.

VII. The control of legality of the agencies' activities

The control measures set out in the previous section ensure first and foremost the democratic control over the agencies' activities and, to a lesser extent, the control of legality, i.e. a review of compatibility with EU law. As regards the second type of control, it should be noted that there are specific mechanisms to achieve this objective, which will be presented below.