by José Ricardo Sousa, member of CEDU
Over the last years, the European Union (EU) has dealt with a structural metamorphosis to face the new contemporary challenges, together with the will to continue the idea of Europe conceived by Jean Monnet, Konrad Adenauer or Altiero Spinelli. This situation can be seen pretty well on the economic area, where interactions between EU institutions and Member States (MS) have been rising in the last decades in order to accomplish the economic goals set for both parties and to protect and to ensure the EU single market.
The process of agencification established in the late 90’s of the previous century by Romano Prodi, former President of the EC, is a good example of Governance and Multi-Level Administration inside EU. The so-called “Prodi Reform” began as a response to the polemic involved with Bovine Spongiform Encephalopathy (BSE) disease that showed how inefficient EU’s role were in supervise all economic sections and guarantee the high-standard of security for all goods that were produced and sold to all EU citizens, due to the overload of workings. Moreover, the foreseen EU enlargement to the East was seen as another reasonable motive to reform all the European Commission (EC) workings. So, EC, as the EU institution responsible for safeguarding the principles and rules of the EU Treaties, has the duty to assess (together with DG Comp) the single European market and to evaluate cases that are incompatible with provisions of the Treaties, as well as other legislative acts emanating from it, as set out in Article 17(1) TEU. For that reason, EC felt the need to decentralise its competences and sub-delegate some of the powers to non-democratic bodies which carries out all tasks needed to accomplish the proposed objectives, such as regulatory power, inspective powers, inter alia.
This improvement could be seen in most economic areas where EU has shared competences with MS. For instance, one of the biggest examples of European Administrative law evolution could be seen in the aviation sector. The Joint Aviation Authorities (JAA) was the first aviation organisation composed by national Independent Regulation Authorities (IRA) in this specific area from all MS and non-MS which had the same purposes to follow EU harmonisation in the sector. Just like nowadays, the organisation aimed to harmonise regulations and procedures of EU airspace, increasing the level of technicality and specialty of regulatory acts and reducing the degree of interest of private agents who lobbied the corridors of the EC, as well as the degree of politicization of the regulations that had prevented European harmonization and integration. With regard to JAA’s decision-making, the organisation presented simple procedures and a primitive structure with no administration board or statutes.
However, this organisation did not fulfil some requirements to face the upcoming challenges with the enlargement of single market, such as the need to verify the correct application of the fundamental and guiding principles of the European single market, namely the principle of the freedom of establishment of the respective economic operators and the principle of freedom to provide services thereon in any EU territory. For the EC, the organization did not guarantee the proper role as a regulatory agent just like it was expected by itself, which led the EC to find a new solution.
The new solution found by EC was the creation of the European Aviation Safety Agency (EASA). Unlike JAA, EASA has its own administration board, budget and statutes, as enshrined in Regulation 1592/2002, posteriorly revoked by Regulation 216/2008. The regulations have progressively given more powers of intervention to EASA to operate in the European single market and to exercise its quasi-regulatory, quasi-executive and quasi-sanctioning powers under the economic operators which are covered by Article 4 of Regulation 216/2008. In fact, EASA has seen its regulatory, supervision and inspective powers constantly extending to further areas such as: airworthiness (Article 5); environmental protection requirements (Article 6); for the supervision of pilots (Article 7), for air operations (Article 8). Furthermore, the possibility of an economic operator appealing to EASA’s board of appeal is one of the important innovations brought by the European Commission in the draft of the Regulation 1592/2002, which was followed by the current Regulation. Thus, the agency is able to find a solution through dialogue with the injured party without the last one having the need to appeal to a European judicial body to solve the concrete case. Only after exhausted all the appeal options within EASA, the injured party can appeal to the first instance of the CJEU, as referred to CJEU in Case T-102/13, Heli Flight v. EASA judgement.
In sum, EASA is a good example of the enlargement of conferred powers to European agencies, working in some situations as an extended arm of European Commission. For what we have seen until now, this agencies are getting more regulatory and supervision powers over the years following (or tying to follow) the rhythm of the evolution of European Single Market. The main purpose of any agency or IRA is to ensure the conformity of the rules and regulations promulgated by the European Commission, as well as keeping autonomy on a technical level, endowed with legal, administrative and financial autonomy in the form of a Community body, with legal personality and capable of exercising the powers conferred upon it, acting like a neutral regulatory body inside European Competition network. However, the fact that European Commission has increased their influence in the decision-making and workings of European agencies over the years could be one detail to pay attention on the further years. In fact, the lack of democratic instruments, transparency in the free access to documents, accountability and their secrecy about some decisions could undermine their credibility.
Picture credits: Japan civil aviation… by BriYYZ.