Draft Interinstitutional Agreement on the operating framework for the European regulatory agencies
Date: 2005-02-25
Institutions: European Commission
Subjects: EU office or agency, competence of the institution, interinstitutional agreement, operation of the Institutions

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 25.02.2005 
COM(2005)59 final 

Draft 

INTERINSTITUTIONAL AGREEMENT 

on the operating framework for the European regulatory agencies 

(presented by the Commission) 

EN 

   EN 

 
 
 
  
EXPLANATORY MEMORANDUM 

1. 

CONTEXT AND OBJECTIVES 

The European agencies have been set up in successive waves in order to meet specific needs 
on a case-by-case basis. They are typified by their diversity. If these agencies are set up in an 
uncoordinated  manner,  without  a  common  framework  having  been  defined,  this  is  likely  to 
result in a situation which is rather untransparent, difficult for the public to understand, and, at 
all events, detrimental to legal certainty. 

In its White Paper on European Governance (1), the Commission proposed that, in accordance 
with  the  principles  of  good  governance  a  framework  should  be  established  setting  out  the 
conditions relating to the creation, operation and control of “regulatory” agencies (2), which 
help to improve the implementation and application of Community legislation. 

Coherence:  By  adopting  a  horizontal  approach,  the  aim  is  to  ensure  compliance  with  a 
minimum common core of principles and rules on the creation, operation and control of these 
agencies. Their involvement in exercising executive powers must be organised in a coherent 
and balanced way which takes account of the need to preserve the unity and integrity of this 
function at Community level. 

Effectiveness: The credibility of these agencies rests largely on their effectiveness. They must 
be organised in such a way that they can perform the tasks devolved on them effectively. The 
principle  of  effectiveness  essentially  involves  simplifying  the  decision-making  process, 
cutting costs and giving these agencies a certain degree of organisational, legal and financial 
autonomy. 

Accountability: The independence of these agencies goes hand in hand with an obligation to 
meet  their  responsibilities.  In  order  to  strengthen  the  legitimacy  of  Community  action,  it  is 
important  to  establish  and  delimit  the  responsibilities  of  the  institutions  and  agencies.  The 
decision to set up these agencies must be taken prudently on the basis of an impact assessment 
conducted by the Commission. This impact assessment must be as thorough and rigorous as 
possible. Moreover, the principle of accountability requires that a clear system of controls be 
put in place. 

Participation and openness: The agencies must also be organised internally in such a way as to 
guarantee  the  participation  of  interested  parties  and  a  high  level  of  transparency.  The  acts 
establishing  these  agencies  must  stipulate  that,  like  the  European  institutions,  they  will  be 
subject to the requirements of good administration. 

2. 

CONSULTATION OF THE OTHER INSTITUTIONS AND OTHER INTERESTED PARTIES 

In December 2002, the Commission adopted a Communication which, on the basis of these 
principles,  paves  the  way  for  a  future  operating  framework  for  the  European  regulatory 

(1) 
(2) 

COM(2001) 428, OJ C 287 of 12.10.2001, p. 1. 
A framework regulation has already been adopted for “executive” agencies which are responsible for 
management  tasks,  i.e.  helping  the  Commission  to  implement  financial  programmes  (Council 
Regulation (EC) No 58/2003 of 19.12.2002, OJ L 11 of 16.1.2003). 

EN 

2 

   EN 

 
                                                 
agencies (3). It was welcomed by the Parliament (4) and the Council (5). The directors of the 
existing agencies were also consulted. 

3. 

CHOICE OF LEGAL INSTRUMENT: INTERINSTITUTIONAL AGREEMENT 

The  Commission  has  proposed  an  interinstitutional  agreement  to  ensure  that  the  three 
institutions are involved from the outset in establishing the basic conditions to be met when 
acts are subsequently adopted to set up sectoral agencies. Under the case law of the Court of 
Justice,  it  will  be  possible  for  the  interinstitutional  agreement  to  be  binding  insofar  as  its 
content shows that the three institutions intend to enter into a commitment towards each other 
(6).The fact that this type of legal instrument has been chosen does not rule out the possibility 
of  more  detailed  arrangements  subsequently  being  concluded  as  part  of  a  framework 
regulation. 

4. 

SCOPE 

Because  of  the  diversity  of  the  tasks  and  the  structures  of  the  existing  agencies,  the 
Commission proposed in its Communication that an operating framework should initially be 
established  for  those  European  regulatory  agencies  which  are  set  up  in  future  under  the  EC 
Treaty. It would be difficult, if not impossible, to incorporate both the future agencies and the 
diverse  range  of  agencies  already  in  place  within  a  common  operating  framework  from  the 
outset. The risk would be that this would considerably slow down the adoption process and 
would  undermine  legal  certainty,  particularly  for  the  agencies  set  up  recently.  For  the  same 
reasons, the agreement is not meant to apply from the outset to agencies created outside the 
framework of the EC Treaty. 

The Council and the Parliament have given their support to the use of a selective time frame. 
The Parliament has pointed out that discussions should also be held concerning the existing 
agencies and the EU agencies and proposals put forward as to how they could be altered. 

The interinstitutional agreement therefore also stipulates that, as a second step, the institutions 
will  explore  under  what  arrangements  its  scope  could  be  extended  to  existing  European 
regulatory  agencies  and,  where  necessary,  to  other  agencies.  In  the  meantime,  there  is  no 
reason why any future revision of each basic act should not be guided by, or even incorporate, 
some of the principles, rules and procedures in the operating framework. 

5. 

LEGAL BASE 

Given  that  the  European  regulatory  agency  is  an  instrument  for  implementing  a  particular 
Community policy, its basic act must be built on the provision of the EC Treaty which forms 
the specific legal basis of the policy in question. This is the approach adopted with respect to 
the agencies set up most recently. 

(3) 

(4) 
(5) 
(6) 

Communication  from  the  Commission  of  11.12.02  on  the  operating  framework  for  the  European 
regulatory agencies (COM(2002)718). 
Resolution of 13.01.04, P5_TA(2004)0015. 
Conclusions of 28.06.04, Doc. 17046/04. 
Judgment of 19.03.96, Commission -v- Council, case C-25/94, ECR I-1469. 

EN 

3 

   EN 

 
                                                 
However, the agreement also makes provision for Article 308 of the EC Treaty to be used as a 
legal base in exceptional cases. 

6. 

SEATS OF THE AGENCIES 

The Council, while referring in its conclusions to the practical application of the agreement by 
all the Member States at the level of the Heads of State and Government, acknowledged that 
the agency’s seat should be chosen at the earliest opportunity. 

So far, almost all the decisions concerning the seats of the agencies have been taken en bloc, 
at  ten  year  intervals,  by  the  Heads  of  State  and  Government  at  the  occasion  of  European 
Council meetings. Negotiations of this kind on “packages” of issues have led to serious delays 
in the effective establishment of a number of agencies, which have been set up temporarily in 
Brussels  for  an  a  priori  indefinite  period.  This  approach  is  at  the  root  of  a  number  of 
administrative and practical problems which have arisen during the start-up phase: problems 
concerning  the  recruitment  of  staff,  additional  costs,  practical  problems  with  moving  to 
another location, difficulties of access, etc. 

Like the Parliament, the Commission also feels that the agency’s seat is a constituent element 
of the basic act and should therefore be included in it. 

Without  denying  the  Member  States  the  right  to  decide  the  agency’s  seat  at  the  highest 
political level, the Commission therefore proposes that this decision be taken in time so that it 
can be incorporated into the basic act. Failing that, the Commission proposes that a decision 
be taken within six months at the latest. 

7. 

DEFINITIONS AND TASKS 

A  number  of  different  factors  must  be  taken  into  account  in  order  to  establish  a  working 
definition of regulatory agencies: 

7.1 

THE “REGULATORY” CONCEPT 

A distinction must be made between “regulatory” activities and the adoption of legal rules or 
binding  legal  norms  which  are  applicable  across  the  board.  Regulatory  activities  do  not 
necessary  involve  the  adoption  of  legal  acts.  They  may  also  involve  measures  of  a  more 
incentive  nature,  such  as  co-regulation,  self-regulation,  recommendations,  referral  to  the 
scientific  authority,  networking  and  pooling  good  practice,  evaluating  the  application  and 
implementation  of  rules,  etc.  It  therefore  follows  that  a  European  “regulatory”  agency  does 
not necessarily have the power to enact binding legal norms. 

7.2 

TASKS DEVOLVED ON THE AGENCIES 

In keeping with the regulatory concept defined above, these agencies may be assigned one or 
more of the following tasks: 

a. 

adopting individual decisions which are legally binding on third parties; 

EN 

4 

   EN 

 
b. 

c. 

providing  direct  assistance  to  the  Commission  and,  where  necessary,  to  the 
Member States in the interests of the Community, in the form of technical or 
scientific advice and/or inspection reports; 

creating  a  network  of  national  competent  authorities  and  organising 
cooperation  between  them  in  the  interests  of  the  Community  with  a  view  to 
gathering, exchanging and comparing information and good practice. 

Each  European  regulatory  agency  will  also  be  responsible  for  gathering,  analysing  and 
forwarding  objective,  reliable  and  easy-to-understand  information  concerning  its  area  of 
activity. 

7.3 

EXECUTIVE RESPONSIBILITIES 

By  accomplishing  these  tasks,  the  agencies  will  take  an  active  part  in  exercising  executive 
powers at Community level: 

The  agencies  which  adopt  individual  decisions  will  be  given  the  power  to  implement  laws. 
However, this power will be limited to applying the rules of secondary legislation to specific 
cases, in accordance with the institutional system and the case law of the Court of Justice (7).  

The  other  tasks  allocated  to  the  agencies  must  allow  them  to  provide  the  Commission,  in 
particular,  with  the  experience  and  expertise  it  needs  so  that  it  can  fully  meet  its 
responsibilities as the Community executive. 

7.4 

Structural autonomy 

The autonomy of European regulatory agencies is the key to their effectiveness and credibility 
in the long term. It must allow them to take account of all the information concerning their 
environment while freeing themselves as far as possible from external influence. Particularly 
with  regard  to  the  technical  and  scientific  assessments  they  must  make,  it  is  important  that 
they  be  given  a  significant  degree  of  autonomy  in  their  dealings  not  only  with  the  EU 
institutions but also with the Member States and the operators themselves. 

7.5 

Conclusion 

A European regulatory agency may therefore be defined as an independent legal entity created 
by  the  legislator  in  order  to  help  regulate  a  particular  sector  at  European  level  and  help 
implement  a  particular  Community  policy.  By  performing  its  tasks,  it  helps  to  improve  the 
way in which the rules are implemented and applied throughout the EU. It thus plays an active 
role in exercising executive powers at Community level. 

8. 

AUTONOMY AND CONTROLS 

The provisions of the interinstitutional agreement are based on a delicate balance between the 
need for autonomy and the need for controls. 

(7) 

Judgment  of  13.06.58,  in  case  9/58,  Meroni,  ECR  1958,  p.  11;  judgment  of  14.05.81,  in  case  98/80, 
Romano, ECR 1981, p. 1241. 

EN 

5 

   EN 

 
                                                 
8.1 

Autonomy 

The  need  for  autonomy  (see  point  7.4)  takes  several  forms:  granting  of  legal  personality, 
budgetary  autonomy,  collective  responsibility  and  own  powers  of  the  administrative  board 
(hereinafter referred to as the "AB"), the independence of the director, of the members of the 
scientific committees and of the boards of appeal, etc. 

8.2 

Evaluations and controls 

The  autonomy  of  these  agencies  goes  hand  in  hand  with  an  obligation  to  meet  their 
responsibilities.  These  agencies  which  exercise  autonomous  responsibility  in  the  executive 
sphere are therefore directly accountable to the institutions, the Member States and European 
citizens. Thus the principle of accountability demands that these agencies are subject not only 
to ex ante and ex post evaluations but also to clear control mechanisms. 

Evaluations 

The  Commission  will  justify  any  proposal  to  set  up  one  of  these  agencies  on  the  basis  of  a 
rigorous impact assessment. All possible alternatives must first be explored: the Commission 
could take responsibility for the activities envisaged, the tasks of an existing agency could be 
extended,  an  office  or  executive  agency  could  be  set  up  and/or  individual  tasks  could  be 
subcontracted. 

Once  the  agency  has  been  set  up,  both  it  and  the  Commission  will  carry  out  regular 
evaluations  of  its  activities  and  operations.  On  this  basis,  the  Commission  may  propose 
revising or, where appropriate, repealing the basic act. 

Controls 

Budgetary  control,  internal  audits,  annual  reports  by  the  Court  of  Auditors,  the  annual 
discharge  for  the  execution  of  the  Community  budget  and  the  investigations  conducted  by 
OLAF  will  make  it  possible  to  ensure,  in  particular,  that  the  resources  allocated  to  the 
agencies are put to proper use. 

Administrative control will ensure that a number of procedural safeguards are put in place so 
that account is taken of the interests of interested parties and the quality of output. 

Political control will be exercised both by the legislative authority and by the Commission. 

Judicial  control  will  be  exercised  by  the  Court  of  Justice  (after  any  internal  remedies  have 
been exhausted — see point 9.4). 

9. 

STRUCTURE  

The structure of the agencies must allow them not only to perform the tasks devolved on them 
effectively but also to respect the delicate balance between autonomy and control. 

9.1 

Administrative board 

The  tasks  of  the  AB  will  be  those  which  are  traditionally  assigned  to  the  programming  and 
monitoring body. 

EN 

6 

   EN 

 
It  emerged  from  the  discussions  with  the  Parliament  and  Council  on  the  basis  of  the 
Communication  that  there  could  not  be  a  single  formula  for  the  composition  of  the  ABs. 
However, it is imperative that the principles of good governance are applied: 

1. 

2. 

3. 

The principles of accountability and coherence demand that the composition of 
the AB reflects the agency's position with regard to the distribution of powers 
between the executives at Community and national levels. 

The principle of effectiveness and cost reduction calls for an AB with a limited 
number of members. 

The  principles  of  participation  and  openness  require  the  involvement  of 
interested parties. 

Parity of executives 

The  agency’s  involvement  in  exercising  executive  powers  at  Community  level  calls  for  the 
equal representation of the two branches of the Community executive within the AB. The aim 
of equal representation is to struck a proper balance between pursuing Community objectives 
and taking account of national interests. 

Representation of the Member States 

The tasks devolved on the agency do not, in principle, mean that all the Member States should 
be represented on the AB. However, this may be justified if the agency, in the interests of the 
Community, is also involved in the exercise of executive powers by the Member States. The 
agency will thus enable the Member States to fulfil the obligations arising from Community 
law in accordance with Article 10 of the EC Treaty 

In  this  case,  the  Council  will  designate  a  representative  from  each  Member  State.  Each  of 
whom  will  have  one  vote.  In  order  to  maintain  parity  of  the  executives  within  the  AB,  the 
institutions agree to grant an equal number of votes in total to the members designated by the 
Council and to those designated by the Commission. 

Parliament  

On  the  other  hand,  it  is  not  envisaged  that  members  designated  by  the  Parliament  should 
participate  in  the  AB  because  this  would  cast  doubt  on  the  Parliament’s  ability  to  perform 
external controls objectively, particular in its capacity as the discharge authority. 

Participation of interested parties 

In order to guarantee a high level of transparency, the interested parties may be authorised to 
participate as members, but without the right to vote, in deliberations of the AB. 

9.2 

Executive board 

In order to enhance the agency's effectiveness, an executive board with a limited number of 
members may be created in cases where the size of the AB does not allow it to perform the 
tasks  devolved  on  it  effectively.  In  that  case,  the  delegation  of  tasks  to  the  executive  board 
will be strictly defined in the basic act. 

EN 

7 

   EN 

 
9.3 

Director 

In  order  to  ensure  the  effectiveness  and  independence  of  the  agency  in  its  day-to-day-
management  and  in  its  activities,  the  director  will  assume  full  responsibility  for  the 
operational tasks assigned to the agency and will be the agency’s legal representative. 

As  already  mentioned,  the  composition  of  the  AB  will  reflect  the  agency's  position  with 
regard to the distribution of powers between the Community and national executives. In this 
connection, provision may be made for a single procedure for appointing the director, with the 
AB appointing the director on the basis of a list of candidates proposed by the Commission. 

Before being appointed, the candidate selected by the AB may be asked to attend a hearing 
before the competent committee of the Parliament. 

9.4  Other bodies 

If  the  agency  is  to  perform  the  tasks  devolved  on  it  effectively,  other  bodies,  such  as  a 
coordinating  body  or  bodies,  scientific  committee(s)  and/or  committee(s)  of  experts  and 
board(s) of appeal, may need to be set up. 

EN 

8 

   EN 

 
Draft 

INTERINSTITUTIONAL AGREEMENT 

on the operating framework for the European regulatory agencies 

THE  EUROPEAN  PARLIAMENT,  THE  COUNCIL  OF  THE  EUROPEAN  UNION  AND 
THE COMMISSION OF THE EUROPEAN COMMUNITIES 

Having regard to the Treaty establishing the European Community, 

Bearing in mind the Commission White Paper of 25 July 2001 on European Governance (8) 
and  the  Communication  from  the  Commission  of  11  December  2002  on  the  operating 
framework for the European Regulatory Agencies (9), 

Having  taken  note  of  the  European  Parliament’s  resolution  of  13  January  2004  (10)  and  the 
Council’s conclusions of 28 June 2004 (11), 

Whereas: 

(1) 

In  accordance  with  the  White  Paper  on  European  Governance,  the  European 
regulatory  agencies  help  to  implement  and  apply  Community  law.  Their  creation, 
operation and control are therefore of major political and institutional importance. 

(2)  Without a common framework, the proliferation of designations, tasks, structures and 
control  arrangements  for  these  agencies  has  resulted  in  a  situation  which  is  rather 
untransparent,  difficult  to  understand  and  detrimental  to  legal  certainty.  Greater 
transparency  and  coherence  are  therefore  needed  in  order  to  prevent  the  legislative 
authority  from  setting  up  agencies  which  are 
thereby 
undermining the unity of the executive function. 

increasingly  diverse, 

(3) 

(4) 

(8) 
(9) 
(10) 
(11) 

As  a  first  step,  the  operating  framework  should  apply  to  future  initiatives  to  set  up 
European  regulatory  agencies  under  the  EC  Treaty  and  should  promote  their 
coherence.  As  a  second  step,  the  institutions  will  undertake  to  explore  under  what 
arrangements  the  operating  framework  could  be  extended  to  European  regulatory 
agencies  set  up  beforehand  under  the  EC  Treaty  and,  where  necessary,  to  other 
agencies. 

The  operating  framework  must  comply  with  the  principles  of  good  governance 
proposed in the White Paper: openness, participation, accountability, effectiveness and 
coherence. The objectives of openness and participation call for the application of the 

COM(2001) 428, OJ C 287 of 12.10.2001, p. 1. 
COM(2002) 718. 
Doc. P5_TA(2004)0015. 
Doc. 17046/04. 

EN 

9 

   EN 

 
 
                                                 
conditions referred to in Article 255 of the EC Treaty for public access to documents 
held  by  these  agencies  and  the  representation  of  interested  parties  within  them.  The 
objective of effectiveness makes it is necessary, in particular, to simplify the decision-
making processes, reduce costs and give these agencies autonomy of action. With such 
autonomy  goes  the  obligation  for  them  to  exercise  clearly  defined  responsibilities, 
while  respecting  the  unity  of  the  executive  function.  The  objective  of  accountability 
therefore calls for a simple and effective system of controls. Coherence depends on a 
system  in  which  the  responsibilities  between  institutions  and  agencies,  on  the  one 
hand, and between the agencies themselves, on the other, are clearly separated in order 
to guarantee an integrated approach.  

(5) 

(6) 

Any proposal for the creation of a European regulatory agency must be the subject of a 
rigorous  impact  assessment  which  not  only  applies  the  principles  of  subsidiarity  and 
proportionality  but  also  includes  an  ex  ante  evaluation  which  is  as  thorough  as 
possible. 

It is important to note that the present agreement lays down a minimum common core 
of principles, rules and procedures to be adhered to in the legislative act setting up a 
European  regulatory  agency, without prejudice to what might have  to  be added on a 
case-by-case  basis,  depending  on  the  objectives,  responsibilities  and  specific  tasks 
assigned to each agency, 

HAVE ADOPTED THIS AGREEMENT: 

1. 

PURPOSE 

The  purpose  of  this  agreement  is  to  establish  a  horizontal  framework  for  the  creation, 
structure, operation, evaluation and control of European regulatory agencies. 

The  European  Parliament,  the  Council  of  the  European  Union  and  the  Commission  of  the 
European  Communities  agree  to  respect  the  principles,  rules  and  procedures  set  out  in  this 
agreement when adopting legislative acts to set up European regulatory agencies (hereinafter 
referred to as “basic acts”). 

2. 

SCOPE 

The three institutions agree that the present agreement will apply to the European regulatory 
agencies proposed after it enters into force. 

The  institutions  agree  that  the  present  agreement  is  aimed  at  all  the  European  regulatory 
agencies which will be set up under the EC Treaty. 

The three institutions undertake to explore, as soon as possible after the entry into force of the 
present agreement, under what arrangements the scope of this agreement could be extended to 
European regulatory agencies set up beforehand under the EC Treaty and, where necessary, to 
other agencies, without prejudice to the gradual adaptation of the latter agencies in accordance 
with the revision procedure provided for in the basic acts. 

EN 

10 

   EN 

 
3. 

DEFINITION  

For the purpose of the present agreement, the term "European regulatory agency" (hereinafter 
referred  to  as  "agency")  shall  mean  any  autonomous  legal  entity  set  up  by  the  legislative 
authority in order to help regulate a particular sector at European level and help implement a 
Community policy. 

The agency shall be invested with a public service role. It shall help to improve the way in 
which Community legislation is implemented and applied throughout the European Union. 

This definition shall not include the so-called “executive” agencies set up by the Commission 
to  carry  out,  under  its  control  and  responsibility,  certain  tasks  relating  exclusively  to  the 
management of Community programmes. The executive agencies are the subject of Council 
Regulation (EC) No 58/2003 of 19 December 2002 (12), which lays down their statute. 

4. 

TASKS 

An agency may be entrusted with one or more of the following tasks: 

a) 

b) 

c) 

applying Community standards to specific cases. To this end, the agency shall 
be given the power to adopt individual decisions which are legally binding on 
third parties; 

providing  direct  assistance  to  the  Commission  and,  where  necessary,  to  the 
Member States in the interests of the Community, in the form of technical or 
scientific opinions and/or inspection reports; 

creating  a  network  of  national  competent  authorities  and  organising 
cooperation  between  them  in  the  interests  of  the  Community  with  a  view  to 
gathering, exchanging and comparing information and good practice. 

Each  agency  shall  also  be  responsible  for  gathering,  analysing  and  forwarding  objective, 
reliable  and  easy-to-understand  information  concerning  its  specific  area  of  activity.  The 
nature of this information and its recipients shall be specified in the basic act. 

5. 

EXECUTIVE RESPONSIBILITIES 

By  accomplishing  these  tasks,  the  agency  shall  take  an  active  part  in  exercising  executive 
powers at Community level. 

(1) 

For  the  tasks  provided  for  in  point  4(a),  the  agency  shall  exercise  direct  executive 
responsibility within the scope of the powers conferred on it by secondary legislation 
and in accordance with the provisions of the EC Treaty. 

In particular, when carrying out these tasks, agencies may not: 

a) 

adopt general regulatory measures; 

(12) 

OJ L 11 of 16.1.2003, p. 1. 

EN 

11 

   EN 

 
 
 
                                                 
b) 

c) 

have decision-making powers conferred on them in areas in which they would 
be  required  to  arbitrate  in  conflicts  between  public  interests  or  exercise 
political discretion; 
have responsibilities entrusted to them with respect to which the EC Treaty has 
conferred direct decision-making powers on the Commission. 

Any  powers  delegated  by  the  legislative  authority  must  be  strictly  defined  and 
subject to rigorous controls. 

(2) 

For  the  tasks  provided  for  in  points  4(b)  and  (c),  the  agencies  shall  provide  the 
Commission,  in  particular,  with  the  expertise  it  needs  in  order  to  meet  its 
responsibilities as the Community executive. 

6. 

LEGAL STATUS 

The  agency  shall  have  legal  personality.  In  each  Member  State,  it  shall  exercise  the  widest 
possible  legal  powers  accorded  to  legal  persons  under  national  legislation.  In  particular,  it 
may  acquire  or  dispose  of  immovable  or  movable  property  and  be  a  party  to  legal 
proceedings. It shall be represented by its director for this purpose. 

I. 

CREATION 

7. 

IMPACT ASSESSMENT 

The  Commission  undertakes  to  justify  any  proposal  to  set  up  an  agency  on  the  basis  of  an 
impact assessment, which will not only apply the principles of subsidiarity and proportionality 
but  also  include  an  ex  ante  evaluation  which  is  as  thorough  as  possible.  This  impact 
assessment shall take several factors into account, including the following: 

a) 

b) 
c) 

d) 

e) 
f) 
g) 

h) 

i) 
j) 

the  problem  which  must  be  resolved  and  the  need  which  must  be  met  in  the 
short or long term; 
the added value of Community action; 
alternatives  to  the  creation  of  a  European  regulatory  agency,  such  as 
responsibility  being  taken  by  the  Commission  for  the  activities  envisaged, 
extending  the  tasks  of  an  existing  agency,  setting  up  an  office  or  executive 
agency, and/or subcontracting individual tasks; 
the  objectives  to  be  met  at  general,  specific  and  operational  levels  and  the 
indicators necessary for evaluating them; 
any inadvertent repercussions and mutual concessions to be considered; 
the tasks to be allocated; 
any  benefits  in  terms  of  expertise,  visibility,  transparency,  flexibility  and 
timeliness, coherence, credibility and effectiveness of public action; 
the costs generated by control, coordination and the impact on human resources 
and other administrative expenditure; 
the lessons learned from previous similar exercises; 
the system of monitoring and periodic evaluation to be established. 

The  Commission  shall  draw  the  conclusions  from  its  impact  assessment  in  the  explanatory 
memorandum to its proposal. 

EN 

12 

   EN 

 
The  European  Parliament  and  the  Council  undertake  to  have  evaluations  carried  out  before 
adopting any substantial amendment to the Commission’s proposal. 

8. 

LEGAL BASE 

The three institutions agree that the basic act shall be based on the provision of the EC Treaty 
which forms the legal basis of the policy envisaged. 

The institutions agree that Article 308 of the EC Treaty will serve as a legal base only in cases 
where no other provisions of the EC Treaty allow Community competence to be exercised. 

9. 

OBJECTIVES AND MANDATE 

The three institutions shall ensure that the objectives and mandate of the agency are clear and 
precise and are in keeping with the general policy guidelines of the European Union and the 
strategic objectives of the Commission. 

10. 

SEAT 

The  three  institutions  acknowledge  that  the  seat  is  one  of  the  constituent  elements  of  the 
agency. In the interests of effectiveness and transparency, the seat should be known when the 
basic act is adopted. The three institutions agree that a provision concerning the seat will be 
included in the act. If the seat is not known when the basic act is adopted, a decision in this 
regard must be taken within six months at the latest. 

II. 

STRUCTURE AND OPERATION 

It  is  particularly  important  that  the  involvement  of  the  institutions  in  the  structure  and 
operation of the agency reflects their role in the institutional system of the European Union. 

STRUCTURE 

11. 

ADMINISTRATIVE BOARD 

11.1.  Tasks of the administrative board 

The administrative board shall ensure that the agency performs the tasks entrusted to it under 
the basic act. It shall be the agency’s planning and monitoring body. In particular, it shall be 
responsible for: 

a) 

b) 

appointing and, where necessary, dismissing the director of the agency and the 
members  of  certain  bodies  within  the  agency,  in  accordance  with  the 
procedures laid down in points 13(2) and 14; 
exercising disciplinary authority over the director; 

EN 

13 

   EN 

 
c) 

d) 

e) 

f) 

g) 

h) 

i) 

adopting  the  agency’s  annual  work  programme  on  the  basis  of  a  draft 
submitted by the director and after the Commission has delivered an opinion, 
in accordance with the conditions laid down in point 20; 
drawing up an annual estimate of expenditure and revenue for the agency and 
sending it to the Commission; 
adopting  the  definitive  budget  of  the  agency  and  the  list  of  posts  following 
completion of the annual budget procedure, in accordance with the conditions 
laid down in point 28(2); 
adopting the agency’s annual activity report, in accordance with the conditions 
laid down in point 21, and sending it to the institutions and the Member States; 
adopting the agency’s rules of procedure on the basis of a draft submitted by 
the director and after the Commission has delivered an opinion; 
adopting  the  financial  rules  applicable  to  the  agency  on  the  basis  of  a  draft 
submitted  by  the  director  after  the  Commission  has  delivered  an  opinion,  in 
accordance with the conditions laid down in point 28(1); 
adopting  the  procedures  for  applying  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  documents  (13),  in 
accordance with the conditions laid down in point 16(6). 

11.2.  Composition and designation of the administrative board 

(1) 

The three institutions agree that there cannot be a single formula for the composition 
of the administrative board.   

(2) 

(3) 

The  three  institutions  undertake,  however,  to  limit  the  size  of  the  administrative 
board  in  such  a  way  as  to  promote  highly  effective  decision-making  and  minimise 
operating costs. 

The institutions acknowledge, moreover, that the agency’s involvement in exercising 
executive  powers  at  Community  level  calls  for  the  equal  representation  of  the  two 
branches  of  the  Community  executive  within  the  administrative  board.  The 
Commission and the Council should therefore designate an equal and limited number 
of members within the administrative board. 

The tasks devolved on the agency shall not mean that each Member State should be 
given a seat on the administrative board, unless the agency also plays a part, in the 
interests of the Community, in the Member States exercising executive powers with 
respect  to  the  policy  envisaged.  In  such  cases,  the  agency  shall  allow  the  Member 
States  to  ensure  that  the  obligations  arising  from  the  EC  Treaty  or  from  secondary 
legislation are fulfilled, in accordance with Article 10 of the EC Treaty. 

In  this  case,  the  Council  shall  designate  a  representative  from  each  Member  State. 
Each of these representatives shall have one vote. In order to maintain parity of the 
executives  within  the  administrative  board,  the  institutions  agree  to  grant  an  equal 
number  of  votes  in  total  to  the  members  designated  by  the  Council  and  to  those 
designated by the Commission. 

(13) 

OJ L 145 of 31.05.2001, p. 43. 

EN 

14 

   EN 

 
 
 
 
                                                 
(4) 

(5) 

(6) 

In the interests of transparency, the institutions agree that the Commission will also 
designate  representatives  of  interested  parties  as  members  of  the  administrative 
board. These representatives shall sit on the board without having a right to vote. The 
sectors concerned shall be clearly identified in the basic act. 

All the members of the administrative board shall be appointed on the basis of their 
experience  in  the  sector  concerned.  The  Commission  and  the  Council  shall  ensure 
that  men  and  women  are  represented  equally  on  the  administrative  board.  The 
members of the board shall be appointed for a five-year term, renewable once. 

The  institutions  shall  ensure  that  the  composition  of  the  administrative  board  is 
reviewed periodically in light of how the agency is operating, its objectives and the 
development of the powers and tasks attributed to it, in accordance with the review 
procedure provided for in point 27(2). 

12. 

EXECUTIVE BOARD 

Where  the  size  of  the  administrative  board  is  such  that  it  cannot  effectively  fulfil  the  tasks 
devolved on it, an executive board may be set up. In this case, the administrative board shall 
meet only once a year, without prejudice to a special supplementary meeting. 

The executive board shall be responsible for certain tasks associated with the preparation and 
follow-up  of  meetings  of  the  administrative  board,  without  prejudice  to  the  tasks  of  the 
director referred to in point 13(1). 

The executive board shall be composed of an equal number of representatives of the Council 
and  of  the  Commission.  The  representatives  of  the  interested  parties  designated  by  the 
Commission  shall  also  sit  on  the  board  without  the  right  to  vote.  The  size  of  the  executive 
board shall under no circumstances exceed eight members. 

13. 

DIRECTOR 

In  order  to  ensure  the  independence  of  the  agency  in  its  day-to-day  management  and 
activities, the director must  assume  full  responsibility for the operational tasks conferred on 
the agency. 

13.1.  Tasks of the director 

The director’s main responsibilities are: 

a) 

b) 
c) 

d) 

preparing  the  annual  work  programme,  the  draft  estimate  of  expenditure  and 
revenue for the agency, its rules of procedure and those of the administrative 
board, its financial rules and the meetings of the administrative board; 
taking part, without the right to vote, in meetings of the administrative board; 
implementing the agency’s annual work programme and responding to requests 
for assistance from the Commission; 
performing the duties of authorising officer, in accordance with Articles 33 to 
42  of  Commission  Regulation  (EC,  Euratom)  No  2343/2002  of  23  December 
2002  on  the  framework  Financial  Regulation  for  the  bodies  referred  to  in 
Article  185  of  Council  Regulation  (EC,  Euratom)  No  1605/2002  of  25  June 

EN 

15 

   EN 

 
e) 
f) 

2002  on  the  Financial  Regulation  applicable  to  the  general  budget  of  the 
European Communities (14); 
implementing the agency’s budget; 
putting in place an effective monitoring system to allow the regular evaluations 
referred to in point 27(1) to be carried out and, on this basis, preparing a draft 
annual report of the agency’s activities; 
presenting this report to the European Parliament; 

g) 
h)  managing  all  staff-related  matters,  and  in  particular  exercising  the  powers 

i) 

j) 

k) 

provided for in point 23(2); 
defining  the  agency’s  organisational  structure  and  submitting  it  to  the 
administrative board for approval; 
taking  any  other  action  necessary  to  ensuring  that  the  agency  operates  in 
accordance with its basic act; 
representing the agency before both the European Parliament and the Council, 
in accordance with the conditions laid down in point 29(1). 

13.2.  Appointment and dismissal of the director 

(1) 

(2) 

The director shall be appointed by the administrative board on the basis of a list of 
candidates  proposed  by  the  Commission.  Before  being  appointed,  the  candidate 
selected by the administrative board may be asked to make a declaration before the 
competent  committee(s)  of  the  European  Parliament  and  answer  questions  from 
its(their) members.  

The director shall be appointed on the basis of merit, administrative and management 
skills  and  expertise  and  experience  in  the  field  concerned.  The  director  shall  be 
appointed in principle for a five-year term. At the proposal of the Commission and 
following an evaluation, the director’s tenure may be extended once for a period not 
exceeding the duration of his first term of office. 

In  its  evaluation,  the  Commission  shall  take  account  of  the  following  points  in 
particular: 

a) 

b) 

the results obtained during the first term of office and the way in which they 
were obtained; 
the objectives and requirements of the agency over the next few years. 

(3) 

The administrative board may remove the director from his duties before his term of 
office has expired, on the basis of a proposal from the Commission. 

14. 

OTHER BODIES 

14.1.  Coordinating bodies between national competent authorities 

The  agencies  responsible  for  coordinating  and  creating  a  network  of  national  competent 
authorities  (task  referred  to  in  point  4(c))  must  be  provided  with  one  or  more  coordination 
bodies composed of representatives of these entities. 

(14) 

OJ L 357 of 31.12.2002, p. 72. 

EN 

16 

   EN 

 
                                                 
14.2. 

Scientific committees and/or committees of experts 

The  agencies  which  provide  technical  and  scientific  advice  to  the  Commission  and,  where 
necessary, to the Member States (task referred to in point 4(b)) must be provided with one or 
more scientific committees and/or committees of experts. 

The  members  of  the  scientific  committees  must  be  independent  scientists  appointed  by  the 
administrative  board  on  the  basis  of  an  open  invitation  to  tender.  The  members  of  the 
committees of experts shall be appointed by the administrative board on the basis of a clear 
and transparent procedure laid down in the basic act. 

14.3.  Boards of appeal 

The agencies which adopt individual decisions which could give rise to complaints from third 
parties  (task  referred  to  in  point  4(a))  must  be  provided  with  one  or  more  boards  of  appeal 
whose  role  will  be  to  check  that  the  agency  has  applied  the  implementing  rules  correctly, 
within the scope of the tasks devolved on it and the responsibilities assigned to it. 

The  members  of  the  boards  of  appeal  shall  be  appointed  by  the  administrative  board  for  a 
period of five years on the basis of a list of candidates proposed by the Commission. 

OPERATION 

15. 

PUBLIC INTERESTS AND INDEPENDENCE 

The  members  of  the  administrative  board,  the  director,  the  members  of  the  coordinating 
bodies between the competent national authorities, the members of the scientific committees 
and of the boards of appeal shall undertake to act in the public interest. 

The director, the members of the scientific committees and of the boards of appeal shall also 
undertake  to  act  independently  of  any  external  influence.  To  this  end,  they  shall  make  a 
written declaration of commitment and a written declaration of interests every year. 

16. 

(1) 

TRANSPARENCY 

The  agency  shall  ensure  that  its  activities  are  conducted  with  a  high  level  of 
transparency and, in particular, that they comply with the following provisions. 

(2) 

It shall make public without delay: 

a) 
b) 

its own rules of procedure and those of the administrative board; 
its annual activity report. 

(3) 

(4) 

the  director,  authorise 
The  administrative  board  may,  at 
representatives  of  the  interested  parties,  in  appropriate  cases,  to  attend  meetings  of 
the agency’s bodies in the capacity of observers. 

the  proposal  of 

Without  prejudice  to  paragraph  6,  the  agency  shall  not  divulge  to  third  parties 
confidential  information  it  has  received  for  which  confidential  treatment  has  been 

EN 

17 

   EN 

 
requested and is justified. 

The  members  of  the  administrative  board,  the  director,  the  members  of  the 
coordinating  body  between  the  national  competent  authorities,  the  members  of  the 
scientific  committees  and  of  the  boards  of  appeal  shall  be  subject  to  the 
confidentiality requirement referred to in Article 287 of the EC Treaty. 

(5) 

The  information  gathered  by  the  agency  in  accordance  with  its  basic  act  shall  be 
subject  to  Regulation  (EC)  No  45/2001  of  the  European  Parliament  and  of  the 
Council  of  18  December  2000  on  the  protection  of  individuals  with  regard  to  the 
processing of personal data by the Community institutions and bodies and on the free 
movement of such data (15). 

(6) 

Regulation  (EC)  No  1049/2001  shall  apply  to  the  documents  held  by  the  agency. 

The  administrative  board  shall  adopt  the  practical  arrangements  for  applying 
Regulation (EC) No 1049/2001 no later than six months after the agency has been set 
up. 

17. 

LANGUAGE RULES 

The administrative board shall establish the internal language rules for the agency. 

The provisions of Regulation No 1 of 15 April 1958 determining the languages to be used by 
the European Atomic Energy Community (16) shall apply to the external language rules. 

Translation  work  required  for  the  operation  of  the  agency  shall  be  carried  out  by  the 
Translation Centre for the Bodies of the European Union. 

18. 

OBLIGATIONS REGARDING GOOD ADMINISTRATION 

The basic act must guarantee that the agency upholds the principles and rules of good public 
administration,  such  as  the  right  of  the  operators  concerned  to  be  heard  and  consulted,  the 
obligation to justify any acts, language rules, access to documents, the protection of personal 
data and of business confidentiality, rules on sound financial management, action to combat 
fraud and the protection of the Communities’ financial interests. 

19. 

REVENUES OF THE AGENCY 

The agency may be financed through: 

a) 

b) 

a  subsidy  from  the  general  budget  of  the  European  Communities  (hereinafter 
referred to as “Community subsidy”), and/or 

payment and fees for services provided to operators. The basic act shall specify 
the services concerned.  

(15) 
(16) 

OJ L 8 of 12.01.2001, p. 1. 
OJ 17 of 06.10.1958, p. 385. 

EN 

18 

   EN 

 
 
 
 
                                                 
In certain cases in which the agency assists the Member States directly, a contribution from 
them may also be considered. Similarly, the basic act may make provision for a contribution 
from  non-Community  countries  taking  part  in  the  agency’s  work,  in  accordance  with  the 
conditions laid down in point 24. These contributions shall supplement the revenue referred to 
in points (a) and/or (b). 

The term “self-financed” agency shall be understood to mean any agency not in receipt of a 
Community subsidy. 

20. 

(1) 

ANNUAL WORK PROGRAMME 

The annual work programme must comply with the objectives, mandate and tasks of 
the agency as defined in the basic act. 

The institutions recommend that the presentation of the annual work programme be 
based on the methodology developed by the Commission as part of Activity-Based 
Management (ABM). 

(2) 

The  annual  work  programme  shall  be  adopted  by  the  administrative  board  on  the 
basis of a draft submitted by the director and after the Commission has delivered an 
opinion. 

The institutions agree that the legal scope of the Commission’s opinion on the annual 
work  programme  must  reflect  the  agency’s  contribution  to  exercising  executive 
responsibility. 

With respect to the agencies which assist the Commission directly, the Commission 
must  be  able  to  ascertain  that  the  annual  work  programme  is  consistent  with  its 
executive responsibility. Where the Commission expresses its disagreement with the 
annual work programme, the administrative board shall re-examine and adopt it, with 
amendments where necessary, by an enhanced majority to be determined in the basic 
act. 

21. 

ANNUAL ACTIVITY REPORT 

The  annual  activity  report  shall  describe  the  way  in  which  the  agency  has  implemented  its 
annual work programme. 

The report shall outline the activities conducted by the agency and evaluate the results with 
respect to the objectives and timetable set, the risks associated with the activities carried out, 
the use of resources and the general operation of the agency. 

The report shall be prepared by the director of the agency and adopted by the administrative 
board. 

EN 

19 

   EN 

 
 
 
 
 
 
22. 

PRIVILEGES AND IMMUNITIES 

The Protocol on Privileges and Immunities of the European Communities of 8 April 1965 (17) 
shall apply to the agency’s staff. 

23. 

(1) 

STAFF 

The  Staff  Regulations  of  officials  of  the  European  Communities,  the  Conditions  of 
employment  of  other  servants  of  the  European  Communities  and  the  rules  adopted 
jointly  by  the  European  Community  institutions  for  the  purpose  of  applying  these 
staff regulations and conditions of employment shall apply to the staff of the agency. 
The  administrative  board,  in  agreement  with  the  Commission,  shall  adopt  the 
necessary implementing measures, in accordance with the arrangements provided for 
in Article 110 of the Staff Regulations of officials of the European Communities and 
of  the  Conditions  of  employment  of  other  servants  of  the  European  Communities. 
The administrative board may adopt provisions to allow national experts from other 
Member States to be employed on secondment at the agency. 

(2) 

The agency shall exercise, with regard to its staff, the powers which are devolved on 
the appointing authority. 

24. 

PARTICIPATION OF THIRD COUNTRIES 

The  agency  shall  be  open  to  the  participation  of  third  countries  which  have  concluded 
agreements with the European Community which provide for the adoption and application by 
these  countries  of  Community  law  in  the  area  covered  by  the  basic  act.  Under  these 
agreements, arrangements shall be made specifying, in particular, the nature and the manner 
in  which  these  countries  will  participate  in  the  agency’s  work,  including  provisions  on 
participation in certain internal bodies, financial contributions and employment of staff. These 
agreements  may  not,  however,  make  provision  for  these  countries  to  be  represented  on  the 
administrative board with the right to vote and must, at all events, be in accordance with the 
Staff  Regulations  of  officials  of  the  European  Communities  and  the  Conditions  of 
employment of other servants of the European Communities. 

25. 

COOPERATION WITH OTHER AGENCIES 

Under the working agreements concluded with other agencies, the agency may cooperate with 
them  in  the  areas  governed  by  the  basic  act,  in  order  to  avoid  any  duplication  of  work  and 
create synergies. 

26. 

(1) 

(17) 

INTERNATIONAL ACTIVITIES 

Where the tasks conferred on the agency call for it to operate at international level, 
the basic act may make provision (with respect to all or certain tasks) for the agency 

Protocol  annexed  to  the  Treaties  establishing  a  Single  Council  and  a  Single  Commission  of  the 
European Communities, OJ 152 of 13.07.1967, p. 13. 

EN 

20 

   EN 

 
                                                 
to  cooperate  with  the  competent  authorities  of  non-Community  countries  and  with 
international  organisations  which  have  similar  tasks,  on  the  basis  of  working 
arrangements concluded with the aforementioned authorities and organisations. 

(2) 

These working arrangements must comply with Community law and shall be adopted 
by the administrative board on the basis of a draft submitted by the director and after 
the  Commission  has  delivered  an  opinion.  Where  the  Commission  expresses  its 
disagreement with these arrangements, the administrative board shall re-examine and 
adopt  them,  with  amendments  where  necessary,  by  an  enhanced  majority  to  be 
determined in the basic act. 

III. 

EVALUATIONS AND CONTROLS 

27. 

EVALUATIONS AND REVISION 

27.1.  Evaluation by the agency  

In accordance  with  Article  25(4)  of  Financial Regulation (EC, Euratom) No 2343/2002, the 
agency shall regularly carry out ex ante and ex post evaluations of its programmes or activities 
when these necessitate significant expenditure. The administrative board shall be notified of 
the results of these evaluations. 

The agency shall take all appropriate steps to remedy any problems which may come to light. 

27.2.  Evaluation by the Commission and revision 

The  Commission  undertakes  to  carry  out  periodic  evaluations  of  the  implementation  of  the 
basic act, of the results obtained by the agency and of its working methods, in line with the 
objectives, mandate and tasks defined in the basic act and the indicators established by the ex 
ante evaluation and set out in the agency's annual work programme. 

Following this evaluation, the Commission shall present, where necessary, a proposal for the 
revision of the provisions of the basic act. If the Commission feels that the very existence of 
the agency is no longer justified with regard to the objectives assigned to it, it may propose 
that the act in question is repealed. 

The European Parliament and the Council shall use the Commission’s proposal as a basis for 
examining whether the basic act should be amended or repealed. 

28. 

BUDGET  CONTROLS,  FINANCIAL  CONTROLS,  AUDITS  AND  ACTION  TO  COMBAT 
FRAUD 

28.1. 

Financial rules 

Each agency must adopt its financial rules. 

If the agency is in receipt of a Community subsidy, Article 185(1) of Council Regulation (EC, 
Euratom)  No  1605/2002  of  25  June  2002  on  the  Financial  Regulation  applicable  to  the 

EN 

21 

   EN 

 
general  budget  of  the  European  Communities  (18),  shall  apply.  The  agency’s  financial  rules 
must, in this case, comply with Financial Regulation (EC, Euratom) No 2343/2002. They may 
not  depart  from  this  Regulation  unless  their  specific  operating  requirements  so  demand  and 
the Commission has given its prior consent. 

If  the  agency  is  self-financed,  its  financial  rules  shall  be  based  on  the  aforementioned 
Financial Regulations, while respecting the specific nature of the agency. 

28.2.  Budget 

In the case of agencies which are in receipt of a Community subsidy, a list of posts for staff 
covered by the Staff Regulations shall be drawn up each year by the budgetary authority as 
part  of  the  budgetary  process,  pursuant  to  Article  46(3)(d)  of  Financial  Regulation  (EC, 
Euratom) No 1605/2002. The budgetary authority shall also authorise appropriations for the 
subsidy to be granted to the agency. 

In the case of each agency, the administrative board shall adopt the definitive budget and the 
list of staff every year. 

28.3.  Accounting rules 

By virtue of Article 185(4) of Financial Regulation (EC, Euratom) No 1605/2002, the agency 
shall  apply  the  accounting  rules  adopted  by  the  Commission’s  accounting  officer,  in 
accordance  with  the  procedure  set  out  in  Article  133  of  the  said  Regulation,  so  that  its 
accounts can be consolidated with those of the Commission. 

28.4.  Audits 

By  virtue  of  Article  185(3)  of  Financial  Regulation  (EC,  Euratom)  No  1605/2002,  the 
Commission's internal auditor shall exercise the same powers over the agency in receipt of a 
Community subsidy as he does in respect of the Commission. 

28.5.  External audit and discharge 

In  accordance  with  Article  248  of  the  EC  Treaty,  the  Court  of  Auditors  shall  examine  the 
accounts of all agencies in receipt of a Community subsidy. 

By virtue of Article 185(2) of Financial Regulation (EC, Euratom) No 1605/2002, discharge 
for  the  implementation  of  the  agency's  budgets  shall  be  given  each  year  by  the  European 
Parliament on the recommendation of the Council. 

If  the  agency  is  self-financed,  discharge  shall  be  given  to  the  director  by  the  agency’s 
administrative board. The administrative board shall then inform the European Parliament, the 
Council, the Commission and the Court of Auditors of its decision giving discharge. 

The  director  shall  take  all  appropriate  steps  to  act  on  the  observations  accompanying  the 
decision giving discharge. 

(18) 

OJ L 248 of 16.09.2002, p.1. 

EN 

22 

   EN 

 
                                                 
28.6.  Action to combat fraud and protect the Communities’ financial interests 

With  a  view  to  combating  fraud,  corruption  and  other  illegal  acts,  Regulation  (EC)  No 
1073/1999  of  the  European  Parliament  and  of  the  Council  of  25  May  1999  concerning 
investigations  conducted  by  the  European  Anti-Fraud  Office  (OLAF)  (19)  shall  apply  to  the 
agency in its entirety. 

The  basic  act  shall  stipulate  that,  upon  its  establishment,  the  agency  will  accede  to  the 
Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council 
of  the  European  Union  and  the  Commission  of  the  European  Communities  concerning 
internal  investigations  by  the  European  Anti-fraud  Office  (OLAF)  (20).  The  administrative 
board shall formalise this accession and adopt the necessary measures to help OLAF carry out 
internal investigations. 

29. 

POLITICAL CONTROLS 

29.1.  European Parliament and Council 

Without  prejudice  to  the  controls  referred  to  above  and,  in  particular,  the  budgetary  and 
discharge  procedures,  the  European  Parliament  or  the  Council  may  ask  at  any  time,  and,  in 
particular,  upon  publication  of  the  agency’s  annual  activity  report,  for  a  hearing  with  the 
director on a subject relating to the agency's activities. 

29.2.  Commission 

The Commission shall exercise control using its prerogatives: 

(1) 

In accordance with point 27(2), the Commission shall exercise its power of initiative 
by proposing, where necessary, that the basic act be revised or repealed.   

By  virtue  of  point  11(1)(d),  the  Commission  shall  also  propose  to  the  budgetary 
authority each year the amount of the subsidy for the agency and the number of staff 
it considers the agency needs, on the basis of the estimate of expenditure and revenue 
drawn up by the administrative board. 

(2) 

The Commission shall exercise its executive responsibility: 

a) 
b) 

c) 

d) 

through its representatives on the administrative board; 
by drawing up a list of candidates for appointing the director and the members 
of the boards of appeal, in accordance with points 13(2)(1) and 14(3); 
by proposing to extend the mandate of the director depending on his evaluation 
in accordance with point 13(2)(2); 
by  delivering  opinions  on  the  annual  work  programme  in  accordance  with 
point 20(2), on the rules of procedure in accordance with point 11(1)(g) and on 
any  working  arrangements  concluded  with  the  competent  authorities  of  non-
Community  countries  and/or  international  organisations  with  similar  tasks,  in 
accordance with point 26(2). 

(19) 
(20) 

OJ L 136 of 31.05.1999, p. 1. 
OJ L 136 of 31.05.1999, p. 15. 

EN 

23 

   EN 

 
 
                                                 
30. 

ADMINISTRATIVE CONTROLS 

In accordance with Article 43 of the Charter of Fundamental Rights of the European Union, 
the  institutions  agree  that  the  agency  will  be  subject  to  the  administrative  control  of  the 
European Ombudsman, pursuant to the conditions set out in Article 195 of the EC Treaty. 

31. 

JUDICIAL CONTROLS 

Actions may be brought before the Court of Justice for the annulment of acts carried out by an 
agency which are legally binding on third parties, for failure to act and for damages caused by 
any agency in the course of its activities. 

Actions for the annulment of acts adopted in connection with the tasks laid down in point 4(a) 
may be brought before the Court of Justice only after all the appeal procedures within these 
agencies, provided for in point 14(3), have been exhausted. 

IV. 

ENTRY INTO FORCE, IMPLEMENTATION AND MONITORING OF THE 

AGREEMENT 

32. 

ENTRY INTO FORCE 

The  present  agreement  shall  enter  into  force  on  the  day  following  its  publication  in  the 
Official Journal of the European Union. 

Upon  its  entry  into  force,  it  shall  apply  to  all  proposals  to  set  up  a  European  regulatory 
agency. 

33. 

IMPLEMENTATION AND MONITORING 

The  three  institutions  agree  to  take  all  the  necessary  steps  to  ensure  coordination  and  due 
regard of the present agreement by their respective departments. 

The implementation of the present agreement shall be monitored by the High Level Technical 
Group for Interinstitutional Cooperation. 

For the European Parliament 

For the Council 

For the Commission 

The President 

The President 

The President 

EN 

24 

   EN