The creation of European regulatory agencies and its limits: a comparative analysis of European delegation

Abstract

Agency creation at the European Union (EU) level differs from that at the national one. European regulatory agencies (ERAs) have limited formal powers and separation from other actors, resembling networks rather than stand-alone agencies. ERAs for economic regulation have been created later and in smaller numbers than for social regulation. Using a historical rational analysis, this paper argues that past delegations to other non-majoritarian institutions at the EU and national levels condition the creation of European agencies. The Commission has defended its existing role and powers, accepting ERAs when they aid its strategy to increase its own reach and ensuring that it has many controls over them. When member states have created independent regulatory agencies (IRAs), those IRAs have defended their autonomy and resisted strong ERAs. Formalized EU networks of IRAs have hindered the establishment of powerful ERAs and when created, ERAs have involved layering and conversion of those networks. Hence formal delegation to ERAs has been limited and uneven.

Keywords:

• Agency
• delegation
• governance
• regulation

ACKNOWLEDGEMENTS

The author greatly thanks Niamh Moloney, Berthold Rittberger and Arndt Wonka and the participants of the Mannheim workshop and three anonymous referees for comments on earlier drafts.

Notes

See Everson (1995), Majone (1997, 2000), Chiti (2000), Dehousse (1997, 2008), Kreher (1997), Geradin et al. (2005), Vos (2000), Keleman (2002, 2005), Trondal and Jeppesen (2008), Groenleer (2009), Wonka and Rittberger (2010), Christensen and Nielsen (2010); in addition there are studies of individual agencies.

Although the existence of IRAs and networks are linked, the two types of delegation are both analytically separate – for the former, the Commission is supervisor, whereas for the latter, it and national bodies are the principals – and also empirically so since the second form of delegation has generally preceded the third.

The classification used here differs slightly from that in Wonka and Rittberger (2010), after careful consideration of the central functions of agencies, since ERAs that decide whether supply is permitted on health and safety grounds rather than on competition ones and lack powers over how firms price and compete in supply are classed here as social regulators – such as the EMEA, ERA or CPVO.

Discussed below.

Regulation 713/2009 establishing an Agency for the Cooperation of Energy Regulators OJ 2009 211/1, especially articles 6–9.

Available at http://ec.europa.eu/energy/gas_electricity/acer/acer_en.htm (accessed 1 November 2010); Ofgem Annual Report 2009–10.

Meroni SpA v ECSC High Authority 9/56 ECR Spec ed 133 and a second case 10/56 ECR spec ed 157.

See for instance, the article by Claus-Dieter Ehlermann when head of DG Competition – Financial Times, 9 July 1993.

Financial Times, 16 September 2000; where financial IRAs opposed French plan for an ERA, Financial Times, 24 September 2009, 16 September 2009; The Economist, 1 March 2001; Moloney (2011: 4–5); on Britain's opposition see Lee (2005); FSA and Treasury (2007) which argued for the development of the existing network approach and continued flexibility for national regulators.

Regulation 1211/2009 establishing the BEREC and the Office OJ 2009 L337/1; it is supported by an Office that is given legal personality.

For example, see Articles 8 and 18 of Regulation 1095/2010 establishing a European Supervisory Authority (ESMA) OJ 2010 L331/84.

See Article 3 of the Regulation.

Source: Barbieri and Ongaro (2008).