EU agencies, common approach and parliamentary scrutiny.
Date: 2018-12-18
Institutions: Directorate-General for Parliamentary Research Services
Subjects: EU relations, European Commission, European Parliament, European agency, budgetary power, interinstitutional agreement, legislative procedure, operation of the Institutions, powers of parliament, transparency in decision-making

EU Agencies, 
Common 
Approach and 
Parliamentary 
Scrutiny 
European 
Implementation 
Assessment 

STUDY 

EPRS | European Parliamentary Research Service 

Editor: Ron Korver 
Ex-Post Evaluation Unit 
PE 627.131 – November 2018 

EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EU Agencies, 
Common Approach 
and Parliamentary 
Scrutiny 

Study 

Decentralised agencies were set up on a case-by-case basis over the years, to respond to 
emerging  individual  policy  needs.  Currently  there  are  36  of  them  and  they  have  been 
operating under very diverse conditions. In 2012, the European Parliament, the Council of 
the  European  Union  and  the  European  Commission  sought  to  rectify  this  by  adopting  a 
‘Joint Statement’ and a comprehensive set of guiding principles – a ‘Common Approach’ – 
to make the agencies more coherent, effective and accountable. 

In the light of an expected revision of these guiding principles, the European Parliament’s 
Committee on Constitutional Affairs (AFCO) will produce an implementation report on the 
functioning of decentralised European agencies. The letter to the Conference of Committee 
Chairs (CCC) was sent on 11 April and the Conference of Presidents endorsed the request 
on 31 May 2018. In this framework, the Ex-Post Evaluation Unit (EVAL) provides expertise 
on the implementation of the agreed guidelines in the form of a European implementation 
assessment (EIA). 

This EIA was drawn up by Professor Ellen Vos of Maastricht University, at the request of the 
Ex-post Evaluation Unit of EPRS. It provides an overview of the different decentralised EU 
agencies according to a number of criteria; including their functions, legal bases, sources of 
financing,  respective  roles  of  Parliament,  Council,  Commission  and  Member  States, 
stakeholder  involvement  and  transparency.  In  particular,  it  examines  how  parliamentary 
scrutiny over decentralised agencies is undertaken and suggests possible improvements to 
those mechanisms, in order to reach a more coherent, efficient and transparent institutional 
set-up for parliamentary scrutiny of agencies’ activities. 

EPRS | European Parliamentary Research Service 

 
 
 
 
AUTHOR 

This study has been written by Professor Ellen Vos of the University of Maastricht at the request of the Ex-post 
Evaluation Unit of the Directorate for Impact Assessment and European Added Value, within the Directorate-
General for Parliamentary Research Services (EPRS) of the Secretariat of the European Parliament.  

ADMINISTRATOR RESPONSIBLE 

Ron Korver, Ex-post Evaluation Unit, EPRS 

To contact the publisher, please e-mail EPRS-ExPostEvaluation@ep.europa.eu  

LINGUISTIC VERSIONS 

Original: EN 

Manuscript completed in November 2018.  

DISCLAIMER AND COPYRIGHT 

This  document  is  prepared  for,  and  addressed  to,  the  Members  and  staff  of  the  European  Parliament  as 
background  material  to  assist  them  in  their  parliamentary  work.  The  content  of  the  document  is  the  sole 
responsibility of its author(s) and any opinions expressed herein should not be taken to represent an official 
position of the Parliament. 

Reproduction  and  translation  for  non-commercial  purposes  are  authorised,  provided  the  source  is 
acknowledged and the European Parliament is given prior notice and sent a copy. 

Brussels © European Union, 2018. 

PE 627.131 
ISBN 978-92-846-3384-5 
doi:10.2861/656418 
QA-06-18-234-EN-N 

eprs@ep.europa.eu  
http://www.eprs.ep.parl.union.eu (intranet) 
http://www.europarl.europa.eu/thinktank (internet) 
http://epthinktank.eu (blog) 

 
 
 
 
 
 
 
EPRS | European Parliamentary Research Service 

Executive summary 

Rationales and characterisation of EU agencies in the EU’s institutional landscape 

  Agencification  of  EU  executive  governance  has  become  a  fundamental  feature  of  the  EU’s 
institutional structure. Today the total number of EU decentralised agencies amounts to 36 (for 
a complete list, see the table of abbreviations). In addition, one proposal for a new agency - the 
European Labour Authority - is pending as its founding act is still under discussion. They are 
part of a process of functional decentralisation within the EU executive, with agencies being 
seated all over the EU. They assist in the implementation of EU law and policy, provide scientific 
advice for both legislation and implementation, collect information, provide specific services 
and  fulfil  central  roles  in  the  coordination  of  national  authorities.  They  may  adopt  legally 
binding and non-binding acts. 

  These agencies can broadly be defined as bodies governed by European public law that are 
institutionally separate from the EU institutions, have their own legal personality and a certain 
degree of administrative and financial autonomy and have clearly specified tasks.  

  The rise and operation of agencies within the EU institutional structure fit well in the academic 
thinking  on  the  nature  of  the  EU  executive.  EU  agencies  as  ‘in-betweeners’  amidst  EU 
institutions  and  Member  States  are  part  and  parcel  of  the  EU  executive  and  strengthen  its 
composite character. EU agencies rely to a large extent on networks, both inside and outside 
their formal institutional structure, with national authorities, experts and/or stakeholders.  
  Resort to EU agencies is attractive as they can deal with complex technical and scientific issues 
by  providing  expertise,  leaving  the  Commission  to  concentrate  on  its  core  tasks  and  policy 
priorities.  Yet,  EU  agencies  give  also  raise  to  concern,  in  particular  in  relation  to  their 
constitutional  position  and  legitimacy;  their  increasing  role  at  the  global  level;  their 
hierarchical  way  of  knowledge  production,  their  functional  operation  and  effectiveness  in 
furthering European integration.  A particular point of attention is that EU agencies may be 
empowered to adopt ‘not very’ discretionary measures.  

Joint Statement and Common Approach of 2012 

  The  Common  Approach  is  a  non-binding  document  adopted  by  the  European  Parliament, 
Council  and  Commission.  It  attempts  to  adopt  a  broader  vision  on  EU  agencies  than  the 
fragmented  approach  followed  before  and  to  stake  stock  of  the  coherence,  effectiveness, 
accountability and transparency of these agencies and improve their operation.  

  The Common Approach deals with the establishment and institutional position of agencies; 
the governing structure of agencies; operational questions, namely administrative support to 
agencies, data protection, international relations and communication activities; agencies’ work 
programmes;  human  resources  policies  as  well  as  sources  of  financing  and  budgetary 
management; the relationship between agencies and other EU institutions and the relations 
with stakeholders.  

  Whilst the Common Approach has certainly helped to structure and rethink EU agencies in the 
EU’s institutional landscape, analysis of the founding regulations adopted after the adoption 
of the Common Approach, reveals that the Common Approach currently is not always followed 
in practice. 

Categorisation of EU agencies 

  EU agencies can be categorised according to a functional, numerical and legal taxonomy. 
  From a functional perspective, EU decentralized agencies can be classified according to the 
five  main  tasks  conferred  upon  agencies:  (1)  expertise,  (2)  information  and  cooperation,  (3) 
provision  of  services  (registration  and  certification),  (4)  facilitation  and  support,  and  (5) 
supervision, inspection, and enforcement. 

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EU Agencies, Common Approach and Parliamentary Scrutiny 

  From a numerical perspective, agencies are different and vary in size (in staff and consequently 

in budget) enormously. 

  From  a  legal  perspective,  agencies  can  be  distinguished  according  to  their  legal  basis,  the 
nature of their powers, the instruments that they may adopt and the autonomy in decision-
making. 

Legal Basis 

  Presently, there is no general legal basis to create EU agencies. The current prevailing view in 
legal  literature  and  case  law  of  the  European  Court  of  Justice  is  that  EU  agencies  may  be 
created on the relevant Treaty article that provides the legal basis in a specific policy area. The 
Common Approach is silent on this issue. 

Sources of Financing 

  Most agencies have their own budget. Currently, 11 agencies are entirely financed by the EU 
budget,  whilst  four  agencies  are  completely  self-financed.  The  other  21  agencies  are  partly 
dependent on EU subsidies. 

  The  Common  Approach  stipulates  that  in  the  latter  cases  fees  should  cover  the  cost  of  the 

service provided.  

Constitutionalisation and constitutional neglect 

  The Lisbon Treaty has formally recognised agencification of the EU executive by introducing 
EU agencies into the Treaties. Agencies are so put on par with the EU institutions in a variety of 
provisions  in  the  Treaties,  inter  alia  related  to  internal  security,  complaints  on  instances  of 
maladministration submitted to the Ombudsman, audits, fraud and citizenship. Agencies are 
moreover  required  to  hold  an open,  efficient  and independent  administration.  Importantly, 
the Treaty has formalised jurisdiction of the Court over agency acts in Article 263 TFEU. In this 
manner, the Court may review the legality of agency acts ‘intended to produce legal effects 
vis-à-vis third parties’ and their failure to act, while it may also interpret the legality of agency 
acts in preliminary rulings. 
It is remarkable though that the drafters of the Lisbon Treaty neglected agencies in provisions 
where one would have expected them most; the system of delegation laid down by the Treaty 
neglects to position agencies as bodies to whom powers can be delegated in Articles 290 and 
291 TFEU. With its pragmatic approach in ESMA, the Court remedies the constitutional gap in 
EU executive rulemaking and recognises agencies as bearers of executive powers.  

Delegation of Powers 

  The  Meroni  doctrine,  which  arose  from  cases  C-9/56  and  C-10/56  (Meroni  v  High  Authority 
[1957/1958] ECR 133), relates to the extent to which EU institutions may delegate their tasks to 
regulatory agencies. The Court of Justice confirmed in its ESMA ruling that Meroni is still good 
law: viz., the delegation of powers to EU agencies is in fact limited by Meroni, specifying that 
this case law only allows delegation of precisely delineated executive powers to EU agencies.  
  Yet, in ESMA the Court de facto relaxed the Meroni conditions: it did not rule out entirely the 
possibility to delegate discretionary powers. The Court first appeared to be sensitive to the fact 
that, contrary to the bodies in Meroni that were governed by private law, ESMA was a ‘European 
Union entity, created by the EU legislature’. Subsequently, it limited ESMA’s discretion rather 
than excluding it. The Court moreover considered it essential that the powers delegated to 
ESMA by the EU legislature were ‘circumscribed by various conditions and criteria which limit 
ESMA’s discretion’.  

  The ESMA ruling can therefore be seen as adapting the Meroni doctrine to the 21st century and 
the Lisbon amendments to a constitutional framework of the Treaties: the Court established 
Meroni 2.0. If delegation complies with the legal guarantees set by the amended Treaties, the 

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EPRS | European Parliamentary Research Service 

Court sees no objections to have delineated but ‘somewhat’ discretionary powers conferred 
upon EU agencies. Of crucial importance hereby is that such delegation takes place in relation 
to  agencies  that  are  set  up  by  the  EU  legislature  and  that  judicial  review  of  acts  of  these 
agencies is guaranteed. 
It  must  be  considered  though  that  the  exercise  of  fairly  discretionary  powers  may  entail 
important political, economic or social choices to be made by agencies, which would require 
adequate control and accountability mechanisms. 

Relationship with EU institutions and Member States 

  EU agencies are often not merely operating at ‘arm’s-length’ from the Commission, Parliament 
or  the  Member  States  but  the  latter  are  frequently  involved  in  the  institutional  design  and 
operation of agencies. EU agencies have been expressly designed to be dependent on various 
institutions, mainly the European Commission, and to act as part of networks relying heavily 
on their national counterparts. This demonstrates the delicate nature of the relationship of EU 
agencies with EU institutions and the Member States. 

  Hence, the hybrid character of EU agencies is expressed in their organisational structure as well 
as  in  their  multiple  tasks.  The  relation  of  EU  agencies  with  the  EU  institutions  and  Member 
States is one of independence and control. 

  The Common Approach provides for Member State representatives to be on the Management 
Boards of agencies. Legal practice is in line with this provision. Member States representation 
on  agency  management  boards  is  in  line  with  the  conceptual  understanding  of  the  EU 
executive  as  an  integrated  administration  and  is  an  expression  of  the  composite  or  shared 
character of the EU executive. 

  Yet, agency independence from political and national influence is an extremely sensitive issue. 
This issue is particularly pertinent in relation to the supervisory agencies in the financial sector. 
Legal provisions therefore put strong focus on the independence of members of their Boards 
of  Supervisors,  Management  Boards,  Chairperson  and  Executive  Directors.  The  Common 
Approach is therefore not suitable for these financial supervisory agencies.  

Relationship with stakeholders 

  The majority of EU decentralised agencies is required to establish and maintain contact with 
relevant  stakeholders,  both  at  Union  and  national  level.  This  is  in  line  with  the  Common 
Approach, which requires that stakeholder relations should be in accordance with the agency’s 
mandate,  its  tasks  in  international  relations,  the  EU’s  policies  and  priorities  and  the 
Commission’s actions. 

  The Common Approach stipulates that when stakeholders are not part of the Management 
Board, they should participate in other internal bodies and/or advisory or working groups, ‘if 
appropriate’. In the legal practice two formats of stakeholder participation can be observed: 1) 
stakeholder  representation 
in  the  agency’s  Management  Board  and  2)  stakeholders 
represented in stakeholder boards, groups or networks. 

  Difficult to achieve is the issue of agency independence from commercially driven interests. 
Crucial  hereby  is  the  problem  of  the  ‘revolving doors’  where  board,  committee  and/or  staff 
members  of  agencies  leave  their  position  for  a  job  in  industry.  Clearly,  independence  from 
market interests requires elaborate rules on conflicts of interest for all people who work with 
and for EU agencies. 

Parliamentary Scrutiny 

  Parliamentary control over EU agencies takes place in various forms, both formally, by means 
of  budgetary  discharge,  involvement  in  the  appointment  of  the  Executive  Director,  annual 
reports, and membership of Management Boards as well as informally through the linking up 
of an MEP to an agency.  

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EU Agencies, Common Approach and Parliamentary Scrutiny 

  The Common Approach allows, where appropriate, the European Parliament to designate one 
member on the Management Board. The legal reality shows a number of different models of 
agencies’ involvement in the Management Boards. A quite diffuse picture emerges with the 
European  Parliament  appointing  representatives,  designates,  members,  or  experts.  Most 
agencies do not have parliamentary involvement in the Management Boards.    

  Examination of the appointment procedures of Executive Directors in the founding regulations 
reveals a broad variety, mounting to no less than twelve appointment procedures. In practice 
the  founding  regulations  are  more  favourable  towards  parliamentary  involvement  in  the 
appointment procedure that the Common Approach provides.  

  Agencies are subjected to budgetary discharge by the European parliament. In these cases, the 
European parliament does not shy away from using the discharge procedure to control also 
for example agencies’ independence from commercial interests. The three fully-self-financed 
agencies,  EUIPO,  SRB  and  CPVO  are  not  subjected  to  discharge  by  the  Parliament.  In  these 
agencies, the discharge is conducted by internal bodies. The Common Approach proposes that 
these agencies should submit an annual report to the European Parliament, the Council and 
the Commission with regard to the execution of their budget and take recommendations into 
account.  For  now  no  true  procedure  for  this  has  been  established.  Therefore  ensuring 
democratic accountability for fully self-financed agencies therefore remains challenging. 
  Multi-annual  and  annual  work  programmes  are  a  means  to  ensure  ex  ante  control  over 
agencies.  The  Common  Approach  prescribes  that  the  Commission  should  be  consulted  on 
both  documents  whilst  the  European  Parliament  is  consulted  on  multi-annual  work 
programme  and  informed  of  the  annual  work  programme.  Practice  shows  a  variety  of 
parliamentary involvement.   

  The Common Approach provides for the submission of a Single Annual report to the European 
Parliament, the Court of Auditors, the Council and the Commission. In this document, agencies 
should  report  on  the  implementation  of  the  work  programmes  as  well  as  budget  and  staff 
plans and findings and follow-up measures of audits. The founding regulations of all agencies 
analysed comply with this provision. 

Compliance Founding Regulations with Common Approach 

  Out of the 36 founding acts examined, 16 were adopted prior to the Common Approach and 
can hence not be expected to comply with the guidelines established therein in relation to the 
issues  scrutinised.  Yet,  for  the  majority  of  founding  acts,  compliance  could  have  been 
expected. 

  The  analysis  reveals,  however,  that  there  is  no  significant  difference  in  compliance  rates  of 
founding acts adopted (or amended) before and after the Common Approach. This suggests 
that the Common Approach has not significantly changed the institutional design choices by 
the  European  legislator;  partly  because  it  merely  codifies  existing  practice,  but  partly  also 
because it has not been followed in the adoption or amendment of founding acts.  

  Compliance  is  generally  high  for  the  budgetary  procedures  and  the  submission  of  annual 
reports. The picture is more mixed for the appointment of the executive director as well as the 
composition of management boards. Above all agencies in political sensitive fields (Eurojust, 
Europol,  European  Supervisory  Agencies)  deviate  from  the  Common  Approach.  The  lowest 
rate of compliance has been identified with regards to agencies’ work programmes. Here, the 
required consultation of the European Parliament for multi-annual work programmes is often 
not foreseen. 

  The  reasons  for  these  variations  lie  in  the  heterogeneity  of  agencies  tasks  and  political 

necessities as well as in path dependencies in the revision of existing agencies. 

Recommendations 

It should be considered whether it is worthwhile to continue with the Common Approach in 
the current non-binding format. As there is a need for more coherence and consistency, it is 

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EPRS | European Parliamentary Research Service 

advisable to set general provisions and procedures whilst recognising the heterogeneity of EU 
agencies, e.g. establishing provisions that apply for groups or clusters of agencies. This could 
be achieved by means of an Interinstitutional Agreement. 

  Hereby  the  position  of  EU  agencies  in  the  EU’s  institutional  structure  combined  with 

appropriate accountability mechanisms must be carefully reflected upon.  

The following recommendations can be made in relation to improvement of the provisions that are 
currently laid down in the Common Approach: 

There is a need: 

to define the meaning and remit of agencies; 
to prevent (accusations of) conflicts of interest as a result of EP representatives or designates 
taking part in formal decision making in Management Boards and EP Members at the same 
time being the discharge authority; EP involvement in Management Boards should therefore 
preferably be in the capacity of observer; 
to define the European Parliament’s role in the multi annual and annual work programmes and 
to design a coherent model of parliamentary scrutiny, more generally; 
to  improve  the  appointment  procedure  of  Executive  Directors  laid  down  in  the  Common 
Approach  and  follow  the  more  progressive  practice  of  the  Interinstitutional  Agreement 
between  the  Commission  and  the  Parliament  by  means  of  which  candidates  for  agency 
directors are heard before the European Parliament; 
to streamline the various models of stakeholder participation for agencies taking into account 
the nature and mandate  of the agencies and the relevant policy areas; 
to (re)structure accountability mechanisms so as to avoid overload and take into account that 
agencies operate at times also on behalf of Member States so as to formulate accountability 
accordingly; 
to formulate rules on conflicts of interests; taking into account the diversity of agencies and 
acknowledging that a ‘one-size-fits all’ model is not desirable in this respect; 
to  put  fully  self-financed  agencies,  as  EU  public  bodies,  under  budgetary  control  and  to 
consider whether (part of) their gain should not flow back to the EU budget. 

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EU Agencies, Common Approach and Parliamentary Scrutiny 

Table of contents 

Executive summary  _____________________________________________________________  5 

1. Introduction  ________________________________________________________________ 17 

2. The rise of EU agencies in the EU’s institutional landscape  ___________________________ 19 

2.1. Agencification of EU executive governance _____________________________________ 19 

2.2. Rationales for EU agencies  __________________________________________________ 20 

2.3. Conceptualisation of EU agencies  ____________________________________________ 21 

3. The Joint Statement and Common Approach of 2012 _______________________________ 24 

3.1. The need for an institutional framework  _______________________________________ 24 

3.2. Non-binding basic framework: overview _______________________________________ 25 

3.3. Establishment and closing of agencies _________________________________________ 26 

3.4. Organisational Structure ____________________________________________________ 26 

3.5. Mechanisms to ensure accountability  _________________________________________ 28 

4. Categorisation of EU agencies __________________________________________________ 33 

4.1. Functional Taxonomy  ______________________________________________________ 33 

4.2. Numerical Taxonomy  ______________________________________________________ 34 

4.3. Legal Taxonomy  __________________________________________________________ 34 

5. Legal basis __________________________________________________________________ 36 

6. Sources of financing __________________________________________________________ 38 

7. Constitutionalisation and constitutional neglect ___________________________________ 39 

7.1. Constitutionalisation of agencification _________________________________________ 39 

7.2. Constitutional neglect in Articles 290 and 291 TFEU ______________________________ 40 

8. Delegation of powers _________________________________________________________ 43 

8.1. Meroni case law ___________________________________________________________ 43 

8.2. ‘Mellowing Meroni’: ESMA case_______________________________________________ 44 

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8.3. Post-ESMA: Meroni 2.0______________________________________________________ 45 

9. Relationship with EU institutions and Member States  _______________________________ 48 

9.1. EU agencies in-between EU institutions and Member States  _______________________ 48 

9.2. Independence as a relative concept ___________________________________________ 49 

9.3. EU Agencies under Control __________________________________________________ 50 

9.4. Independence from political and national influence ______________________________ 53 

10. Relationship with stakeholders ________________________________________________ 54 

10.1. Legal obligation to connect  ________________________________________________ 54 

10.2. Independence from commercially driven interests ______________________________ 54 

11. Parliamentary Scrutiny _______________________________________________________ 57 

11.1. Composition of the Management Board  ______________________________________ 57 

11.2. Appointment of the Executive Director _______________________________________ 59 

11.3. Work Programmes ________________________________________________________ 62 

11.4. Annual Report  ___________________________________________________________ 63 

11.5. Budget _________________________________________________________________ 64 

11.6. Informal Mechanisms of Parliamentary Scrutiny ________________________________ 65 

12. Relevance of the Common Approach in Founding Acts of EU Agencies ________________ 67 

13. Concluding Remarks and Recommendations _____________________________________ 70 

14. Annexes  __________________________________________________________________ 74 

Annex 1: Functions ____________________________________________________________ 74 

Annex 2: Legal bases  __________________________________________________________ 76 

Annex 3: Sources of Financing ___________________________________________________ 78 

Annex 4: Role of the Commission  ________________________________________________ 80 

Annex 5: Role of the European Parliament _________________________________________ 82 

Annex 6: Role of the Council  ____________________________________________________ 87 

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EU Agencies, Common Approach and Parliamentary Scrutiny 

Annex 7: Role of the Member States vis-à-vis Agencies _______________________________ 89 

Annex 8: Stakeholders _________________________________________________________ 91 

Annex 9: Transparency _________________________________________________________ 96 

Annex 10: Management Boards – Composition and Appointing Authority ______________ 100 

REFERENCES ________________________________________________________________ 104 

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Table of figures 

Figure 1: Organisational Structure of EU Agencies.  ___________________________________ 28 

Figure 2: Work Programmes. _____________________________________________________ 30 

Figure 3: Audits. _______________________________________________________________ 31 

Figure 4: Compliance with the Common Approach.  __________________________________ 67 

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EU Agencies, Common Approach and Parliamentary Scrutiny 

Table of tables 

Table 1: EP Involvement in Management Boards. _____________________________________ 59 

Table 2: Appointment of the Executive Director. _____________________________________ 61 

Table 3: Annual and Multi-Annual work programmes. _________________________________ 63 

Table 4: EP Committee and EU Agencies. ___________________________________________ 66 

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Abbreviations of EU decentralised Agencies 

Abbreviation  Name 

ACER 

APPF 

BEREC 

CdT 

Agency for the Cooperation of Energy Regulators 

Authority for European Political Parties and European Political Foundations 

Office of the Body of European Regulators for Electronic Communications 

Translation Centre for the Bodies of the European Union 

Cedefop 

European Centre for the Development of Vocational Training 

CEPOL 

European Union Agency for Law Enforcement Training 

CPVO 

EASA 

EASO 

EBA 

ECDC 

ECHA 

EDPB 

EEA 

EFCA 

EFSA 

EIGE 

Community Plant Variety Office 

European Aviation Safety Agency 

European Asylum Support Office 

European Banking Authority 

European Centre for Disease Prevention and Control 

European Chemicals Agency 

European Data Protection Board 

European Environment Agency 

European Fisheries Control Agency 

European Food Safety Authority 

European Institute for Gender Equality 

EIOPA 

European Insurance and Occupational Pensions Authority 

ELA 

EMA 

European Labour Authority (founding act still under negotiation) 

European Medicines Agency 

EMCDDA 

European Monitoring Centre for Drugs and Drug Addiction 

EMSA 

ENISA 

EPPO 

ERA 

ESMA 

ETF 

EUIPO 

European Maritime Safety Agency 

European Union Agency for Network and Information Security 

European Public Prosecutor’ Office 

European Union Agency for Railways 

European Securities and Markets Authority 

European Training Foundation 

European Union Intellectual Property Office 

EU-LISA 

European Agency for the Operational Management 

EU-OSHA 

European Agency for Safety and Health at Work 

Eurofound 

European Foundation for the Improvement of Living and Working Conditions 

Eurojust 

European Union Agency for Law Enforcement Cooperation 

European Union agency for Fundamental Rights 

Eurojust 

Europol 

FRA 

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EU Agencies, Common Approach and Parliamentary Scrutiny 

Abbreviation  Name 

FRONTEX 

European Boarder and Coast Guard 

GSA 

SRB 

European GNSS Agency 

Single Resolution Board 

Further Abbreviations 

Abbreviation  Word 

CJEU 

CoA 

COM 

ECB 

ED 

EP 

Court of Justice of the European Union 

Court of Auditors 

European Commission 

European Central Bank 

Executive Director 

European Parliament 

ESRB 

European Systemic Risk Board 

EU 

MB 

MS 

TEU 

TFEU 

European Union 

Management Board 

Member State 

Treaty on European Union 

Treaty on the Functioning of the European Union 

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1. Introduction 

EU agencies are vital components of the EU’s institutional structure. They carry out a mixture of tasks, 
varying from provision of information to decision making in various policy fields, such as food and 
air  safety,  medicines,  environment,  telecommunications,  disease  prevention,  border  control, 
trademarks  and  banking.  They  are  part  of  a  process  of  functional  decentralisation  within  the  EU 
executive,  with  agencies  being  seated  all  over  the  EU.  These  agencies  rely  to  a  large  extent  on 
networks,  both  inside  and  outside  their  formal  institutional  structure,  with  national  authorities, 
experts and/or stakeholders.1  

The trend of ‘agencification’, where new entities (agencies) are created in the public sector, or where 
existing agencies are given more autonomy to carry out specific tasks,2 is an old phenomenon within 
national  executives  in  Europe.3  The  ‘agency  fever’4  at  the  EU  level  is  more  recent.  Today 
agencification is characteristic of the EU executive5 within a system of integrated administrations 
characterised by intense cooperation between the various executive levels.6  

In  the  last  decades,  the  number  and  importance  of  so-called  decentralised  agencies  have  only 
increased. These agencies can broadly be defined as bodies governed by European public law that 
are institutionally separate from the EU institutions, have their own legal personality and a certain 
degree  of  administrative  and  financial  autonomy  and  have  clearly  specified  tasks.7  Accordingly, 
other  independent  bodies  of  the  EU  that  are  created  by  the  Treaty  itself,  such  as  the  European 
Investment Bank, fall outside the scope of this study.8   

These  agencies  have  been  particularly  resorted  to  in  responding  to  crises,  such  as  the  ‘mad  cow’ 
(Bovine Spongiform Encephalopathy - BSE) crisis and the oil tanker Erika crisis. The financial crisis led 
to  the  creation  of  another  three  supervisory  authorities:  the  European  Securities  and  Markets 
Authority  (ESMA),  the  European  Banking  Authority  (EBA)  and  the  European  Insurance  and 
Occupational  Pensions  Authority  (EIOPA)  and  another  agency,  the  Single  Resolution  Board  (SRB). 
And,  in  relation  to  the  current  refugee  crisis,  the  EU  transformed  the  European  Agency  for  the 
Management  of  Operational  Cooperation  at  the  External  Borders  (Frontex)  into  another,  more 

1 E. Vos, ‘European agencies and the composite EU executive’ in M. Everson, C. Monda and E. Vos (eds.), European agencies 

in between Institutions and Member States (Alphen a/d Rijn: Wolters Kluwer, 2014), p. 11-47. 

2 B. Jacobsson and G. Sundstro�m, Governing State Agencies Transformations in the Swedish Administrative Model, Scores 

rapportserie 2007:5, p. 5. 

3 M. Egeberg and J. Trondal, Agencification of the European Union administration: Connecting the dots, TARN working paper 

no 1/2016, p. 1. 

4 Ibid. 
5 D. Curtin, Executive Power of the European Union. Law, Practices and the Living Constitution (Oxford: Oxford University Press, 

2009). 

6 See H.C.H. Hofmann, ‘Mapping the European Administrative Space’, West European Politics 31 (2008): 671. 
7 This excludes the three agencies set up in the field of Common Foreign and Security Policy, the executive agencies and 

other agency-like bodies.   

8 Before the European Central Bank gained the official status of an EU institution (as introduced by the Lisbon Treaty), it 
was discussed in literature whether the European Central Bank should not be considered an as independent agency, 
see e.g., ‘Executive Agencies within the EC: The European Central Bank – A Model?’, editorial comment to Common 
Market Law Review 33 (1996): 623–631. 

17 

 
 
                                                             
EU Agencies, Common Approach and Parliamentary Scrutiny 

powerful agency: the European Border and Coast Guard or the new Frontex.9 In this crisis, the role of 
the European Police Office (Europol) has also gained importance.10  

This  study  will  examine  the  current  state-of-the-art  of  EU  decentralised  agencies  in  particular  in 
relation  to  the  numbers  of  existing  and  proposed  agencies,  their  legal  basis,  function,  source  of 
financing, their relationship with the Institutions and stakeholders and well as their transparency and 
accountability. To this end, the founding regulations of EU agencies, case law and literature will be 
analysed whilst to some extent the activities of agencies in practice is taken account of. The founding 
regulations of 36 decentralised EU-agencies as well as the proposal for the new European Labour 
Authority (ELA)11 will be analysed. It will examine in how far the Common Approach is followed by 
the EU institutions in the more recently created, refurbished and proposed EU agencies. It will also 
analyse  to  which  extent  delegation  of  powers  to  agencies  conforms  to  the  prevailing  Meroni 
doctrine12 as interpreted by the European Court of Justice in the ESMA or Short Selling case.13 It will 
pay  particular  attention  to  parliamentary  scrutiny  of  agencies’  activities.  It  will  suggest  where 
possible  improvements  for  a  more  coherent,  efficient  and  transparent  set  up  for  parliamentary 
scrutiny. 

9 See critically: S. Carrera and L. den Hertog, A European Border and Coast Guard: What’s in a name? CEPS paper, No. 88 / 

March 2016. 

10 Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency 
for  Law  Enforcement  Cooperation  (Europol)  and  replacing  and  repealing  Council  Decisions  2009/371/JHA, 
2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA. 

11 COM(2018)131. All statements with regard to this agency are based on the Commission’s proposal and do not include 

any possible amendments by the legislator. 

12 ECJ, Case 9/56, Meroni & Co., Industrie Metallurgiche, SpA v High Authority of the European Coal and Steel Community 

[1958] ECR 0011. 

13  Chamon,  Merijn.  2010.  “Eu  Agencies:  Does  the  Meroni  Doctrine  Make  Sense?” Maastricht  Journal  of  European  and 

Comparative Law 17 (3): 281–305. 

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2. The rise of EU agencies in the EU’s institutional landscape 

2.1. Agencification of EU executive governance  

Although  the  creation  of  the  first  two  European  agencies  (the  European  Foundation  for  the 
Improvement  of  Living  and  Working  Conditions  –  EUROFOUND  and  the  European  Centre  for  the 
Development of Vocational Training – CEDEFOP), dates back to the 1970s, it was not until the early 
1990s that agencification of the EU executive took off. In the early 1990s the European Environment 
Agency (EEA) and the European Medicines Agency (EMEA - now EMA) were set up to coordinate and 
gather  information  on  the  environment  (EEA)14  and  to  provide  the  EU  institutions  with  the  ‘best 
possible’  scientific  advice  (EMA).15  Since  then  many  agencies  have  been  created  in  the  EU’s 
institutional. At the beginning of the 2000s European agencies became very popular as they were 
seen  as  an  appropriate  solution  for  problems  of  lack  of  trust  in,  and  credibility  of,  the  EU  and  its 
regulation16 to combat a series of scandals, e.g., relating to food and maritime pollution.17  

Hence, unsurprisingly, today we find a host of EU agencies in the EU’s institutional structure with the 
total number of agencies amounting to 36. In addition, the proposal for the entirely new European 
Labour  Authority  (ELA)  is  still  pending  at  the  time  of  writing.18  The  European  Parliament  has, 
moreover, asked the Commission to consider the establishment of a European Agency for Robotics 
and  Artificial  Intelligence.19  As  the  Commission  has  not  made  any  such  proposal  by  the  time  of 
writing, this will not be taken into account for the purpose of this study. 

The  current  overall  budget  for  these  agencies  is  more  than  two  billion  Euros  per  year  and  they 
employ more than 9,000 staff members.20 They assist in the implementation of EU law and policy, 

14 Council Regulation (EEC) 1210/90 [1990] OJ L120/1, as amended by Council Regulation (EC) 933/1999 of 29 April 1999 on 
the establishment of the European Environment Agency and the European environment information and observation 
network [1999] OJ L117/1. 

15 See the new Regulation (EC) 726/2004 of 31 March 2004 laying down Community procedures for the authorisation and 
supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency [2004] 
OJ L136/1. 

16 The importance of establishing agencies within the institutional setting of the EU was indeed underlined in 1999 by the 
Committee of Independent Experts, established after the Cresson affaire, that held that it was difficult to find in the 
Commission  persons  who  had  ‘even  the  slightest  sense  of  responsibility’,  and  recommended  delegation  and 
decentralisation of day-to-day executive tasks to such bodies. See the Committee of Independent Experts in its First 
Report on ‘Allegations Regarding Fraud, Mismanagement and Nepotism in the European Commission’ of 15 March 
1999, para. 9.4.25, available at: < http://www.europarl.europa.eu/experts/pdf/reporten.pdf >. 

17 The literature on European agencies is by now abundant. Publications include: M. Busuioc, European Agencies. Law and 
practices  of  accountability,  OUP,  2013;  E.  Chiti,  ‘An  Important  Part  of  the  EU’s  Institutional  Machinery:  Features, 
Problems and Perspectives of European Agencies’, Common Market Law Review 46, no. 5 (2009): 1395–1442; E. Chiti, 
‘European Agencies’ Rulemaking: Powers, Procedures and Assessment’, European Law Journal 19, no. 1 (2013): 93–110; 
M.  Busuioc,  M.  Groenleer  &  J.  Trondal  (eds.),  The  Agency  Phenomenon  in  the  European  Union.  Emergence, 
Institutionalisation  and  Everyday  Decision-making  (Manchester:  Manchester  University  Press,  2012);  M.  Everson,  C. 
Monda and E. Vos (eds.), European Agencies in between Institutions and Member States (Alphen a/d Rijn: Wolters Kluwer, 
2014), p. 3; M. Chamon, EU Agencies, legal and Political Limits to the Transformation of the EU administration (Oxford: 
OUP, 2016). Scholten, M. The Political Accountability of EU and US Independent Regulatory Agencies, Brill, Nijhoff Studies 
in European Union Law; Scholten M. & Luchtman M. (eds) Law Enforcement by EU Authorities. Political and judicial 
accountability in shared enforcement, Edward Elgar.  

18  Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  establishing  a  European  Labour  Authority, 

COM/2018/131 final. This study will examine ELA on the basis of this proposal.  

19 European Parliament, European Parliament resolution of 16 February 2017 with recommendations to the Commission on Civil 
at: 

Law 
http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P8-TA-2017-0051&language=EN&ring=A8-
2017-0005. 

(2015/2103(INL)). 

Available 

Robotics 

Rules 

on 

20 TARN Policy Brief, no. 1/2018, and Merijn Chamon, 2016, p. 46. 

19 

 
 
                                                             
EU Agencies, Common Approach and Parliamentary Scrutiny 

fulfil  central  roles  in  the  coordination  of  national  authorities,  provide  scientific  advice  for  both 
legislation and implementation, collect information and provide specific services. They may adopt 
legally  binding  and  non-binding  acts.  They  increasingly  operate  in  emergency  situations21  and 
actively contribute or are even responsible for setting standards within and even outside the EU.22 

2.2. Rationales for EU agencies   

Some scholars have explained the popularity of EU agencies in terms of what political scientists call 
‘the  rational-choice  approaches’,  or  in  particular  the  principal-agent  approach.23  Following  the 
American model, the idea is that sectoral regulation often requires a degree of technical complexity 
that can and should not be dealt with by an organisation headed by politicians.24 Agencies instead 
can  deal  with  complex  technical  and  scientific  issues  by  providing  expertise.  The  creation  of  EU 
agencies has thus allowed the European Commission greater room to concentrate on its core-tasks 
and policy priorities,25 as more specific and technical administrative tasks were delegated to these 
agencies.   

Literature has moreover emphasised that agencies introduce more, and more flexible, administrative 
capacity  and  efficiency  and  facilitate,  coordinate  and  strengthen  cooperation  between  national 
authorities.  The  creation  of  agencies  herewith  responded  to  the  need  for  more  uniformity  in  the 
implementation of EU policies where the harmonisation model appeared to be less attractive while 
upholding the EU’s system of decentralised implementation.26  

Scholars have also pointed to what Egeberg and Trondal call ‘contingent events’27 in order to help 
explain  institutional  change  and  the  creation  of  agencies.  The  creation  of  agencies,  and/or  the 
strengthening of agencies has been very appealing in responding to crises, such as the BSE crisis, oil 
tanker Erika crisis, financial crisis and very recently the migration or refugee crisis. The attractiveness 
of agencification after the occurrence of certain crises is surely also closely linked to the desire to 
rationalise the relevant policy area and reinforce the science-based approach to decision-making in 
these areas.  

Moreover, the creation of agencies may also be the outcome of the interplay of strategic and political 
interests in a power game between the institutions and Member States.28 Hereby Member States’ 
desire to gain prestige for having an agency seated in their territory has indubitably played a role.29 

21 See e.g. ESMA and Article 28 of Regulation No 236/2012 on short selling and certain aspects of credit default swaps, OJ 

2012, L86/1. 

22 H.C.H. Hofmann, ‘European regulatory Union? The role of agencies and standards’, in: P. Koutrakos and J. Snell (eds.), 

Research handbook on the EU’s internal market, ( Cheltenham: Edward Elgar publishing), 2017, 460-479. 

23 M. Egeberg and J. Trondal, Agencification of the European Union administration: Connecting the dots, TARN working paper 

no 1/2016, p. 4. 

24 G. Majone, ‘The Rise of the Regulatory State in Europe’, West European Politics 17, no. 3 (1994): 77–101. 
25 G. Majone, Regulating Europe (London: Routledge, 1996). 
26  R.  Dehousse,  ‘Regulation  by  Networks  in  the  European  Community:  The  Role  of  European  Agencies’,  Journal  of 

European Public Policy 4, no. 2 (1997): 246–261. 

27 M. Egeberg and J. Trondal, Agencification of the European Union administration: Connecting the dots, TARN working paper 

no 1/2016, p. 4. 

28  See  e.g.  R.  Dehousse,  ‘Delegation  of  Powers  in  the  European  Union:  The  Need  for  a  Multi-principals  Model’,  West 
European Politics 4 (2008): 789–805; M. Groenleer, The Autonomy of European Union Agencies: A Comparative 
Study of Institutional Development (Delft: Eburon, 2009). 

29 Exemplary of this is the fight for the seat of the European Food Safety Authority. See the quote in footnote 35 of E. Vos, 
‘European agencies and the composite EU executive’ in M. Everson, C. Monda and E. Vos (eds.), European agencies in 
between Institutions and Member States (Alphen a/d Rijn: Wolters Kluwer, 2014).  

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Agencification  of  EU  executive  governance30  may  also  be  regarded  as  a  political  compromise  in 
situations  with  clear  functional  needs  for  more  regulatory  capacity  at  the  EU  level  but  in  which 
Member States were reluctant to transfer more powers to the European Commission.31 The recent 
strengthening of Frontex32 and Europol33 and the proposal for reform of EASO34 in the refugee or 
migration crisis are illustrative hereof.  

2.3. Conceptualisation of EU agencies  

Egeberg and Trondal have summarised the existing literature on the agencification of EU executive 
governance  into  three  broad  conceptual  images:  an  intergovernmental,  transnational  and 
supranational image. The intergovernmental image regards EU agencies as set up to implement or 
monitor the implementation of policies agreed upon by Member States. The transnational image 
presupposes that EU agencies are ‘loosely coupled’ to national and EU institutions and view agencies 
as  regulator  networks.  A  supranational  image  sees  EU  agencies  as  integral  elements  of  the  EU 
administration, more specifically the Commission. According to Egeberg and Trondal, these images 
highlight ‘overlapping, supplementary, co-existing and enduring governance dynamics within and 
among  EU  agencies’  and  these  three  images  are  likely  to  co-exist  and  the  various  elements  may 
change over time and per agency. As a matter of fact, they state that studies on EU agencies reflect 
all three images.35 

What  is  clear  from  this  analysis  is  that  agencies  have  induced  a  shift  from  a  model  of  indirect 
administration, where EU policies were implemented by Member States and not by EU bodies to a 
more direct administration, whereby implementation is carried out at the EU level, by inter alia EU 
agencies.36 They find more elements indicating an ongoing trend towards supranationalisation of 
executive power in the EU.37 EU agencies may be argued to have contributed to the centralisation 
of EU administration, but not at the expense of the Commission’s executive power, as they largely 
perform  functions  that  the  Commission  cannot  perform  itself  because  of  the  lack  of  expertise. 
Importantly,  as  Keleman  argues,  tasks  have  been  assumed  at  the  EU  level  by  means  of  agencies, 
which otherwise would not have been possible at the EU level because of the political resistance 
against the Commission.38 Busuioc and Groenleer argue that agencies have been established within 

30  See  in  general  on  this:  The  Academic  Research  Network  on  EU  Agencies  and  Institutional  innovation,  TARN, 

http://tarn.maastrichtuniversity.nl. 

31 D. R. Keleman, ‘The Politics of ‘Eurocratic’ Structure and the New European Agencies’, West European Politics, 25, no. 4 

(2002): 93–118, at p. 95. 

32  Regulation (EU) 2016/1624 of the European Parliament and of the Council on the European Border and Coast Guard and 
amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 
863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 
2005/267/EC, (2016) OJ L251/1.  

33  Regulation  (EU)  2016/794  of  the  European  Parliament  and  of  the  Council  on  the  European  Union  Agency  for  Law 
Enforcement  Cooperation  (Europol)  and  replacing  and  repealing  Council  Decisions  2009/371/JHA,  2009/934/JHA, 
2009/935/JHA, 2009/936/JHA and 2009/968/JHA, (2016) OJ L 135/53. 

34 Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Asylum and 

repealing Regulation (EU) No 439/2010, COM (2016) 271 final. 

35 M. Egeberg and J. Trondal, Agencification of the European Union administration: Connecting the dots, TARN working paper 

no 1/2016, p. 2–3. 

36 M. Egeberg and J. Trondal, Agencification of the European Union administration: Connecting the dots, TARN working paper 
no 1/2016, p. 8; M. Keading and E. Versluis, ‘EU Agencies as a Solution to Pan-European Implementation Problems’, in: 
M. Everson, C. Monda and E. Vos (eds.), European Agencies in Between Institutions and Member States (Alphen a/d Rijn: 
Wolters Kluwer, 2014), p. 73–86. 

37 M. Egeberg and J. Trondal, Agencification of the European Union administration: Connecting the dots, TARN working paper 

no 1/2016, p. 9. 

38 D. R. Keleman, ‘The Politics of ‘Eurocratic’ Structure and the New European Agencies’, West European Politics, 25, no. 4 

(2002): 93–118, p. 112. 

21 

 
 
                                                             
EU Agencies, Common Approach and Parliamentary Scrutiny 

the  Union  because  it  was deemed  to  not  be  politically appropriate  to  entrust certain  tasks  to  the 
European Commission as the latter would be too bureaucratic, too politicised and composed of only 
generalists.39 A lack of political faith in the Commission which arises by virtue of its own politicised, 
generalist or bureaucratic nature, and its vulnerability to Member State interests in the context of 
comitology, have greatly facilitated the rise of agencies within the EU structure.40 The conferral of 
powers upon  ESMA  to intervene  in  emergency  situations in  the  national financial markets  seems 
indicative of this. 

The  trend  towards  direct  administration  and  supranationalisation  is  confirmed  by  findings  of  EU 
agencies operating on the basis of networks. EFSA, for example, has been designed to operate with 
national counterparts and/or stakeholders and manoeuvre as a kind of primus inter pares with the 
national  authorities,  instead  of  being  hierarchically  placed  above  the  national  authorities.  This 
agency has therefore been conceptualised as the apex of an interdependent network with various 
national  authorities  and  other  actors  in  a  ‘multi-level  procedural  labyrinth’41  or  even  a  ‘super-
agency’.42  

The  fact  that  EU  agencies  contribute  to  a  reinforcement  of  EU  executive  power  and  lead  to  a 
pluralisation of  the  EU executive43 is,  however,  not  in itself  conclusive  in determining  the  precise 
location of agencies in the political-administrative setting and the characterisation of agencies. As 
Egeberg and Trondal have stated: ‘the jury is still partly out’, although they conclude on the basis of 
the existing data, that these agencies lean more towards the Commission than to any other potential 
master.44  

Insights  from  the  legal  literature  connect  EU  agencies  more  to  the  composite  or  shared 
administration of the EU. Agencies are, as Curtin observed, ‘betwixt and between’ and in Everson’s 
words,  ‘hierarchy  beaters’.45  This  makes  EU  agencies  ‘interesting  hybrids’.46  The  hybridity  of  EU 
agencies  is  expressed,  both  institutionally,  in  their  relation  with  and  their  dependence on  the  EU 
in  their  multiple  tasks.47  Hence 
institutions  and  the  Member  States  and  substantively, 
representatives of both Member States and the EU institutions sit in their steering boards and some 
of their other bodies. In view of the ‘double-hattedness’ of the members of these boards, serving 
both national and European authorities,48 potential tension, competition and/or conflicts between 

39  M.  Busuioc  and  M.  Groenleer,  ‘The  Theory  and  Practice  of  EU  Agency  Autonomy  and  Accountability:  Early  Day 
Expectations, Today’s Realities and Future Perspectives’, in M. Everson, C. Monda and E. Vos (eds.), European Agencies 
in Between Institutions and Member States (Alphen a/d Rijn: Wolters Kluwer, 2014), p. 179. 

40 M. Everson, C. Monda and E. Vos, ‘What is the Future of European Agencies?’, in M. Everson, C. Monda and E. Vos (eds.), 

European Agencies in Between Institutions and Member States (Alphen a/d Rijn: Wolters Kluwer, 2014), p. 235. 

41 See P. Dąbrowska, ‘EU Governance of GMOs: Political Struggles and Experimentalist Solutions?’, in C.F. Sabel & J. Zeitlin 
(eds.), Experimentalist Governance in the European Union: Towards a New Architecture, (Oxford: Oxford University Press, 
2010), 177–215. 

42 See E. Vos & F. Wendler, ‘Food Safety Regulation at the EU Level’, in E. Vos & F. Wendler (eds.), Food Safety Regulation 

in Europe. A Comparative Institutional Analysis, (Antwerp-Oxford: Intersentia, 2006), 65–138. 

43 H.C.H. Hofmann & A. Morini, ‘Constitutional Aspects of the Pluralisation of the EU Executive through “Agencification”’, 

European Law Review 37, no. 4 (2012): 419. 

44 M. Egeberg and J. Trondal, Agencification of the European Union administration: Connecting the dots, TARN working paper 

no 1/2016, p. 10 and 11. 

45 M. Everson, ‘Independent Agencies: Hierarchy Beaters?’, European Law Journal 1, no. 2 (1995): 180–204. 
46 See M. Everson, ‘Agencies: The ‘Dark Hour’ of the Executive?, in H.C.H. Hofmann & A. Türk (eds.), Legal Challenges in 

EU Administrative Law. Towards an Integrated Administration, (Cheltenham: Edward Elgar, 2009), 131. 

47 See in relation to Frontex, J.J. Rijpma, ‘Hybrid Agencification in the Area of Freedom, Security and Justice and its Inherent 
Tensions:  The  Case  of  Frontex’, in  M.  Busuioc,  M.  Groenleer  &  J.  Trondal  (eds.),  The  Agency  Phenomenon  in  the 
European  Union:  Emergence,  Institutionalisation  and  Everyday  Decision-making,  (Manchester:  Manchester 
University Press, 2012), at 90. 

48  See  M.  Egeberg  &  J.  Trondal,  ‘EU-level  Agencies:  New  Executive  Centre  Formation  or  Vehicles for  National  Control?’, 

Journal of European Public Policy 18, no. 6 (2011): 883–884. 

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EPRS | European Parliamentary Research Service 

national  and  European  interests  seems  to  be  inherent  to  the  composite  character  of  the  EU 
executive. The hybrid character of agencies is furthermore apparent when taking account of the fact 
that agencies not only assist the EU institutions but also Member States.49 For example, EASA even 
acts  as  ‘the  authorised  representation  of  EU  Member  States’  when  making  arrangements  at  the 
global level. It also makes working arrangements with various third countries, such as Australia and 
Brazil  or  international  organisations,  including  the  Interstate  Aviation  Committee.50  As  such,  this 
adds another dimension to the double-hattedness of agencies.51 The ‘borrowing’ of EU agencies by 
Member States to implement EU law, as permitted by EU law, seems not to be problematic,52 but is 
adding to the complexity of their accountability.  

The  latter  is  a  general  problem  that  is  inherent  to  the  hybrid  character  of  EU  agencies.  The 
characterisation  of  EU  agencies  as  ‘in-betweeners’,  between  the  EU  institutions,  particularly  the 
Commission, and the Member States, would seem appropriate as it indicates the close connection 
of the EU agencies to their masters: on the one hand, the institutions and the Commission and on 
the other, the Member States.53  

This  characterisation  shows  at  the  same  time  the  intricate  position  of  EU  agencies  in  the 
constitutional framework. This together with the current trend, approved by the Court of Justice to 
empower EU agencies with (modest) discretionary powers, underlines the need to rethink control 
and accountability of EU agencies and their legitimacy more generally (see Sections 9-12). 

49  See  M.  Chamon,  ‘The  Influence  of  “Regulatory  Agencies”  on  Pluralisms  in  European  Administrative  Law’,  Review  of 
European Administrative Law 5, no. 2 (2012): 61–91, at 76–80. See inter alia, Art. 17(e) of Regulation 216/2008. See 
A. Ott, E. Vos and F. Coman Kund, ‘European Agencies on the Global Scene: EU and International Law Perspectives’, in 
M. Everson, C. Monda and E. Vos (eds.), European Agencies in Between Institutions and Member States (Alphen a/d Rijn: 
Wolters Kluwer, 2014), 87–122. 

50  See  working  arrangement  on  the  airworthiness  between  EASA  and  the 

Interstate  Aviation  Committee, 
in 
similar  wording 
<https://www.easa.europa.eu/system/files/dfu/intl_appro_IAC_EASA.pdf>,.  A 
arrangements with Australia, Brazil, Japan, Singapore and Taipei. See for more examples, Ott, Vos and Coman Kund, A. 
Ott, E. Vos and F. Coman Kund, ‘European Agencies on the Global Scene: EU and International Law Perspectives’, in M. 
Everson, C.  Monda  and  E.  Vos  (eds.),  European Agencies in Between Institutions and Member States  (Alphen  a/d  Rijn: 
Wolters Kluwer, 2014), 87–122. 

is  used 

51  See  M.  Egeberg  &  J.  Trondal,  ‘EU-level  Agencies:  New  Executive  Centre  Formation  or  Vehicles  for  National  Control?’, 

Journal of European Public Policy 18, no. 6 (2011): p. 883. 

52 In view of the Court’s liberal attitude towards the ‘borrowing’ of EU institutions by Member States when implementing 
an international agreement outside the EU legal framework, see B. De Witte & T. Beukers, ‘Case C-370/12, Thomas 
Pringle v. Government of Ireland, Ireland, The Attorney General, Judgment of the Court of Justice (Full Court) of 
27 November 2012’, Common Market Law Review 50, no. 3 (2013): 805–848. 

53 See M. Everson, C. Monda and E. Vos (eds.), European agencies in between Institutions and Member States (Alphen a/d Rijn: 

Wolters Kluwer, 2014). 

23 

 
 
                                                             
EU Agencies, Common Approach and Parliamentary Scrutiny 

3.  The Joint Statement and Common Approach of 2012 

3.1. The need for an institutional framework 

Until 2000, the EU institutions had not taken any particular vision or strategy on the creation and 
design  of  agencies,  thus  leaving  both  functional  and  political  interests  to  be  determined  at  the 
micro-level of the founding regulations of agencies.54 At the beginning of 2000, however, it became 
clear that a more general strategy on agencies was necessary. In the aftermath of the critical report 
of  the  Committee  of 
Independent  Experts  relating  to  allegations  about  fraud,  financial 
mismanagement  and  nepotism  in  the  European  Commission  that  led  to  the  fall  of  the  Santer 
Commission55 and the various crises mentioned above,56 the European Commission was faced with 
the  urgent  need  for  a  more  open  government,  increased  accountability  and  new  forms  of 
partnerships between the different levels of European governance. The Commission’s answer came 
in the form of a White paper on European Governance of 200157 in which it envisaged agencies as 
playing a role in the broader context of the exercise of the executive function and definition of the 
responsibilities  of  the  institutions.  It  viewed  agencies  as  being  of  great  importance  within  the 
context  of  the  guiding  principles  for  administrative  governance:  less  direct  management,  better 
control of delivery and greater cost-effectiveness.58The delegation of a number of tasks and powers 
to  agencies  which  were  non-majoritarian59  bodies  was  herewith  developed  as  a  new  mode  of 
governance.60  

After this formal endorsement of agencies, we can observe in the 2000s a third wave of creation with 
at  least  20  new  agencies  reflecting  the  EU’s  seemingly  unending  appetite  for  agencies.61  The 
Commission  reckoned  at  that  moment  that  an  overall  framework  was  necessary  to  establish 
common  provisions  on  the  role  and  position  of  agencies  in  the  EU’s  institutional  structure,  in 
accordance with the principles of good governance.62 In 2005, the Commission presented a draft for 

54 See D. Curtin and R. Dehousse, ‘EU Agencies: Tipping the Balance?’, in M. Busuioc, M. Groenleer & J. Trondal (eds.) The 
Agency Phenomenon in the European Union. Emergence, Institutionalisation and Everyday Decision-making (Manchester: 
Manchester University Press, 2012), 194. 

55 Committee of Independent Experts, First Report on Allegations regarding Fraud, Mismanagement and nepotism in the 

European Commission, 15 March 1999. 

56 Such as the BSE crisis, see E. Vos, ‘EU Food Safety Regulation in the Aftermath of the BSE Crisis’, Journal of Consumer 

Policy vol. 23, issue 3 (2000): 227–255. 

57 Commission (EC), ‘European Governance – A White Paper (White Paper) COM (2001) 428 final, 27 July 2001, 24. 
58 See Commission (EC), ‘Reforming the Commission – Part I and II (Action Plan – White Paper) COM(2000) 200 final, 1 March 
2000; Commission (EC), ‘Shaping the new Europe’ (Communication) COM(2000) 154 final, 21 March 2000; Commission 
(EC), ‘European Governance: Better Lawmaking’ (Communication) COM(2002) 275 final, 5 June 2002 and Commission 
(EC),  ‘Building  our  Common  Future  –  Policy  challenges  and  Budgetary  means  of  the  Enlarged  Union  2007–2013 
(Communication) COM(2004) 101 final/2, 26 February 2004, Annex 1. 

59 See G. Majone, ‘The New European Agencies: Regulation by Information’, Journal of European Public Policy 4, no. 2 
(1997): 262–275. See in general G. Majone, Regulating  Europe  (London: Routledge, 1996). A. Sweet Stone and M. 
Tatcher define non-majoritarian institutions, as ‘those governmental entities that (a) possess and exercise some grant 
of  specialised  public  authority,  separate  from  that  of  other  institutions,  but  (b)  are  neither  directly  elected  by  the 
people, nor directly managed by elected officials’, A. Sweet Stone and M. Tatcher, Theory and Practice of Delegation to 
74. 
Faculty 
Institutions 
Non-Majoritarian 
http://digitalcommons.law.yale.edu/fss_papers/74, p. 2.   

Scholarship 

(2002). 

Series. 

Paper 

60 See D. Curtin and R. Dehousse, ‘EU Agencies: Tipping the Balance?’, in M. Busuioc, M. Groenleer & J. Trondal (eds.) The 
Agency Phenomenon in the European Union. Emergence, Institutionalisation and Everyday Decision-making (Manchester: 
Manchester University Press, 2012), at 195. 

61 See M. Egeberg, M. Martens & J. Trondal, Building Executive Power at the European Level: Some Preliminary Findings on the 

Role of EU Agencies, ARENA Working Paper No. 10, June 2009, 9. 

62 COM (2001) 428 final. 

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an interinstitutional agreement on European regulatory agencies.63 The European Parliament and 
especially  the  Council  however  did  not  see  the  need  for  such  a  general  framework.  The  draft 
interinstitutional agreement was therefore rejected by eleven Member States in the Council and was 
not adopted.64 The three Institutions decided instead to set up an inter-institutional working group 
consisting of representatives of the Commission, Council and the European Parliament. After lengthy 
discussions,  the  Commission,  Council  and  Parliament  agreed  finally  in  2012  on  various  common 
issues of design, powers, operation and governance of EU agencies65 and adopted a non-binding 
Common Approach to EU agencies.66  

3.2. Non-binding basic framework: overview 

In the Joint Statement, the three institutions set out why they deem decentralised agencies to be 
highly important for the functioning of the Union. They explain that the Common Approach was 
drawn  up  with  a  view  to  taking  stock  of  the  ‘coherence,  effectiveness,  accountability  and 
transparency of these agencies’ and, after confirming that it is of non-binding nature, pledge to take 
it into account in future decisions ‘following a case by case analysis’.   

The Common Approach subsequently lays down a basic framework and a number of fundamental 
principles  that  are  to  be  taken  into  account  both  by  the  legislator  when  it  creates  and  evaluates 
agencies  and  by  the  agency  itself.  The  underlying  aim  was  to  assess  ‘the  existing  situation, 
specifically the coherence, effectiveness, accountability and transparency of these agencies, and [to 
find]  common  ground  on  how  to  improve  their  work’.67  The  Joint  Statement  underlines  that  the 
Common Approach sees only to ‘decentralised agencies’ and does not relate to agencies operating 
in the field of foreign and security policy nor to executive agencies.68 It fails nevertheless to give a 
definition of decentralised agencies. 

The document comprises 66 paragraphs divided in five main chapters and several sub-chapters. The 
first chapter (paragraphs 1-9) deals with the establishment and institutional position of agencies. It 
deals with the establishment, evaluation and dissolution of agencies as well as with considerations 
of headquarters and the role of the host Member State.  

Internal matters of agencies are addressed in Chapters II, III and IV. The first one of these (paragraphs 
10-22) concerns the governing structure of agencies and lays down the composition and functioning 
of  Management  Boards,  of  Executive  Directors  and  of  other  internal  bodies  such  as  Scientific 
Committees and Boards of Appeal. Chapter III (paragraphs 23-26) deals with operational questions, 
international  relations  and 
namely  administrative  support  to  agencies,  data  protection, 
communication  activities.  Under  the  title  ‘Programming  of  activities  and  resources’,  Chapter  IV 
(paragraphs 27-45)  sets out the requirements for work programmes, human resources policies as 
well  as  sources  of  financing  and  budgetary  management.  Finally,  Chapter  V  (paragraphs  46-66) 
concerns  the  relationship  between  agencies  and  other  EU  institutions.  It  sets  out  reporting 
requirements,  provisions  on  the  internal  and  external  audits,  the  discharge  procedure,  an  alert/ 

63 European Commission, Draft Interinstitutional Agreement on the operating framework for the European regulatory agencies, 

COM(2005)59.  

64  Council  of  the  European  Union,  Outcome  of  proceedings  in  the  Working  Party  on  General  Affairs  on  27  May  2005,  ST-

9738/05-INIT. Retrieved from http://data.consilium.europa.eu/doc/document/ST-9738-2005-INIT/en/pdf. 

65 See E. Vos, 'European Agencies and the Composite EU Executive', in M. Everson, C. Monda, & E. Vos (Eds.), European 
agencies in between institutions and Member States (pp. 87-122). (European Monographs; No. 85). Alphen aan den 
Rijn: Kluwer Law International. 

66 See COM (2008) 135. 
67 Joint Statement, second paragraph. 
68 Joint Statement, fourth paragraph. 

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EU Agencies, Common Approach and Parliamentary Scrutiny 

warning system, the evaluation of agencies, transparency and relations with stakeholders as well as 
cooperation with OLAF on matters of fraud.  

The Common Approach was further implemented by the Commission in its ‘Roadmap on the follow-
up  to  the  Common  Approach  on  EU  decentralised  agencies’,  published  five  months  after  the 
adoption of the approach. Based on the policy aims agreed by the three institutions, the Commission 
identified 90 concrete actions to be undertaken in most cases by itself or by agencies. Whilst some 
of them refer to steps to be taken ‘whenever needed’,69 others concern guidance documents to be 
developed by the Commission in order to refine and further develop the requirements.70 In order to 
understand the precise framework for decentralised agencies resulting from the Common approach 
it is therefore necessary to take into account not only the original document but, where conducive, 
also the additional documents developed by the Commission.  

3.3. Establishment and closing of agencies 

The Common Approach seeks to streamline the establishment of agencies and achieve consistency 
between  various  founding  regulations.  It  suggests  a  common  naming  formula  using  the  terms 
‘European  Union  agency  for…’  in  order  to  provide  for  transparency.71  Interestingly,  the  recently 
proposed labour agency is called the European Labour Authority and hence does not conform to 
this provision in the new Approach.72 In addition, an impact assessment has to be carried out by the 
Commission  prior  to  the  decision  to  create  an  agency.  Once  this  decision  has  been  taken,  the 
founding regulation should be based on standard provisions, to be developed by the Commission.73 
Already during this phase, it should also be decided where the agency is to be located.74 To this end, 
the  Commission  announced  to  present  guidelines,  first,  regarding  the  criteria  to  determine  the 
choice  of  a  location  and,  second,  standard  provisions  for  headquarters  agreements.75  In  the  first 
phase  after  its  establishment,  the  so-called  ‘start-up  phase’  can,  according  to  the  Common 
Approach,  take  ‘management  measures’  for  the  agency.76  To  formalise  these  procedures,  it  has 
developed a start-up kit.77  

3.4. Organisational Structure 

With regards to the governance of agencies, the Common Approach lays down fundamental rules 
for  the  organisational  structure  of  decentralised  agencies.  The  question  as  to  whether  Member 
States  should  be  represented  on  the  Management Boards  of  agencies  was  for many  years  a  stern 
point of controversy between the institutions. On this matter the Council favoured a large(r)-sized 
board with all Member States being represented and the Commission a small board. It was one of 
the main reasons, together with the instrument (viz. interinstitutional agreement) to be used, that 
had  prevented  an  agreement  being  reached  on  a  common  framework  on  agencies  between  the 
Council and the Commission. The diverging opinions on the composition of the Management Boards 

69 See for example Roadmap Action 1: „Prepare an objective impact assessment“. 
70 See for example Roadmap Action 7: “Develop guidelines with standard provisions for headquarter agreements on the 

basis of existing best practices.” 

71 Common Approach, para 1. 
72 Vos, E., The proposed European Labour Authority: Profile and Governance, Briefing requested by the EMPL committee of 
from: 

the 
http://www.europarl.europa.eu/RegData/etudes/BRIE/2018/619005/IPOL_BRI(2018)619005_EN.pdf 

Parliament. 

European 

Retrieved 

73 Common Approach, para 2 and Roadmap Action 2. 
74 Paras 6-9. 
75 Roadmap Actions 3 and 7.  
76 Common Approach, para 3. 
77 Roadmap Action 10; 2015 Progress Report on the implementation of the Common approach, p. 3. 

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between  the  Commission  and  the  Council  seem  to  find  their  roots  in  different  views  on  the  EU 
executive  and  the  operation  of  agencies  in  it,  as  well  who  bears  responsibility  for  acts  of  the 
Management  Boards  (see  section  11.1)  in  addition  to  an  issue  of  size  and  efficiency.  Hereby  the 
Council has firmly held that in areas where Member States retain large responsibilities, all Member 
States  must  be  on  the  boards  of  agencies.  In  the  Common  Approach  the  Commission  has  finally 
given in and accepted the large-sized Management Boards with all Member States represented, two 
Commission  representatives  and,  where  appropriate,  one  member  designated  by  the  European 
Parliament  and  a  fairly  limited  number of  stakeholders’  representatives.78  The institutions  hereby 
agreed to introduce a two-level governance structure ‘when this promises more efficiency’, and to 
create a small executive board in addition to the Management Board.79 

The  Commission’s  2005  draft  inter-institutional  agreement  had  not  foreseen  a  representative 
appointed by the European Parliament, with the aim of maintaining the EP’s role as independent 
instance of control. Although the EP was generally in favour of the Commission’s initiative, it strongly 
criticised this point and demanded to be represented in the Management Board.80 As the Common 
Approach stands now, this is at least possible ‘where appropriate’.81 In addition, an Executive Board 
may be created to monitor the agency more closely. In principle, the Appointing Authority is vested 
in the Management Board, but may be delegated to the Director.82 Decisions shall be taken by an 
absolute majority except for cases of appointment and dismissal, for which a two-thirds majority is 
required. 

The  Director serves  as  the  legal  representative of  the  agency  and  is  responsible for its day-to-day 
management.83 The Common Approach stipulates that, ‘to respect the autonomy of the agencies’, 
the director is appointed by the Management Board based on a list drafted by the Commission.84 
The procedure for dismissal shall ‘mirror’ that of appointment.85 As a consequence, the director is 
mainly  accountable  to  the  Management  Board,  whilst  he  or  she86  is  responsible  to  the  European 
Parliament and Council only with regards to financial management.87 In practice, however, and as 
enshrined in the founding acts of some agencies, the appointment is often preceded by a hearing in 
the relevant EP-committee and the adoption of a non-binding opinion by the European Parliament. 
To enhance accountability, the Common Approach suggests to make agency directors more clearly 
accountable for performance. It call therefore to establish tailored performance indicators that allow 
for  effective  assessment  of  the  results  achieved  in  terms  of  objectives.88  The  Commission  has 
subsequently  drafted  Guidelines on  Key  Performance  Indicators  to  assess  the  results  achieved  by 
directors.89 

78 See the Common Approach, para. 10. 
79 Idem. 
80  Atanassov,  N.,  Accountability  of  EU  Regulatory  Agencies,  European  Parliamentary  Research  Service.  Retrieved  from: 

https://epthinktank.eu/2015/03/03/accountability-of-eu-regulatory-agencies/. 

81 Common Approach, para 10. 
82 Common Approach, para 12. 
83 Common Approach, para 14. 
84 Common Approach, para 16. 
85 Common Approach, para 19. 
86 K. Siderius and M. Scholten note in their research that 6 out of 33 agencies they investigated are headed by a woman. 

See TARN Blog, Appointment of EU agency directors, forthcoming.  

87 Common Approach, para 15. 
88 Common Approach para 15. 
89 Common Approach, para 15; Roadmap Action 89; European Commission, Guidelines on Key Performance Indicators (KPI) 
2015, 

for 
decentralized 
https://ec.europa.eu/transparency/regdoc/rep/10102/2015/EN/10102-2015-62-EN-F1-1.PDF. 

(SWD(2015)62 

agencies 

directors 

final), 

EU 

of 

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EU Agencies, Common Approach and Parliamentary Scrutiny 

Finally,  with  regards  to  scientific  committees,  the  Common  Approach  merely  sets  out  that  a 
coordinated  approach  should  be  developed,  selection  procedures  should  be  subject  to  regular 
review  and  independence  should  be  ensured.90  The  requirements  regarding  the  organisational 
structure  were  followed  up  by  the  Commission  by  means  of  ‘Guidelines  on  the  prevention  and 
management of conflicts of interest in EU decentralised agencies’.91 As regards boards of appeal that 
are  established  as  part  of  agencies  that  have  binding  decision-making  powers,  the  Common 
Approach equally stresses the importance of the impartiality and independence of their members 
and  calls  upon  the  agencies  to  refine  the  selection  procedures  and  to  exchange  best  practices.92 
Moreover, various other questions remain unanswered such as the precise jurisdiction of the Boards, 
the payment of a fee when challenging an agency decision to the Board. 

The Common Approach stresses also the importance of the contributions of Member States to the 
work of the agencies’ internal bodies. It therefore recommends that Member States regularly review 
the adequacy of resources/staff that they assign for this purpose and take appropriate measures to 
remedy  possible  weaknesses.  It  moreover  considers  the  information  flows  between  the  national 
authorities in relation to agencies’ activities of high importance; as examples hereof it mentions the 
appointment  of  national  contact  points,  that  should  in  principle  be  the  national  representative 
sitting in the Management Board.93 

Figure 1: Organisational Structure of EU Agencies. 

3.5. Mechanisms to ensure accountability 

In addition to the organisational structure that mainly sets out rules for appointment and dismissal, 
the Common Approach lays down two further categories of rules. First, it imposes obligations on the 
agency  itself  with  regards  to,  for  example,  communications  and  data  protection  (A).  Second,  it 

90 See Common Approach, para 20 for scientific committees. 
91 European Commission, Guidelines on the prevention and management of conflicts of interest in EU decentralized agencies, 
https://europa.eu/european-union/sites/europaeu/files/docs/body/2013-12-

2013, 
10_guidelines_on_conflict_of_interests_en.pdf. 

92 Common Approach, para 21. 
93 Common approach, para 22. 

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regulates the relationship between agencies on the one hand and EU institutions on the other to 
facilitate sufficient scrutiny while ensuring accountability (B). 

A. Obligations for EU agencies 
The  Common  Approach  imposes  a  number  of  obligations  on  agencies.  It  obliges  them,  first,  to 
ensure  a  high  level  of  protection  for  EU  classified  information.  Yet,  these  rules  should  avoid  an 
interference with Parliament’s  access  rights  to  agency  documents.  Relevant provisions  should  be 
contained  in  founding  acts.94  In  addition,  the  Commission  has  established  a  network  of  agency 
representatives responsible for the treatment of such data in order to facilitate an exchange of best 
practice.95  

Second, the Common Approach entitles agencies to maintain communication activities in as much 
as  they  have  no  negative  effect  on  their  core  tasks.96  Their  communication  strategies  should  be 
coordinated  with  the  Commission.  The  latter  has  also  in  this  case  developed  guidelines  for 
communication in cooperation with agencies.97  

Finally, agencies are expected to ensure adequate planning and programming. They have to indicate 
their staff needs by means of Staff Policy Plans.98 This procedure has meanwhile been streamlined 
by the Commission with other planning and programming activities. To this end, the Commission 
has published a template to be used by agencies.99 In addition, the Common Approach urges to limit 
surpluses in agencies’ budgets and calls for a system of activity-based budgeting (ABB) and activity-
based management (ABM). The Commission has, again, followed up on both proposals.100 

In addition, the Common Approach obliges agencies to ensure transparency. This is to be achieved 
by maintaining multilingual websites to provide information, including on financial matters.101 The 
Commission  has  complemented  this  general  requirement  with  a  Communication  Handbook  for 
agencies.102 Moreover, agencies have to ensure consistency with their mandate in relationships with 
stakeholders and coordination with other EU institutions and bodies.103 

In order to facilitate agency’s work in an efficient way, the Common Approach furthermore considers 
various options to provide administrative support. The options set out include the improvement of 
the  services  provided  by  the  Commission,  mergers  of  smaller  agencies  or  service-sharing  among 

94 Common Approach, para 24; Roadmap Action 36-37. 
95 European Commission, Progress report on the implementation of the Common Approach on EU decentralised agencies, 2015. 

p.5. 

96 Common Approach, para 26. 
97  Roadmap  Action  21;  European  Commission,  Communication  Handbook 
https://europa.eu/european-union/sites/europaeu/files/docs/body/2013-12-
10_communication_handbook_en.pdf. 

for 

the  EU  Agencies,  2015, 

98 Common Approach, para 34. 
99  European  Commission,  Communication  from  the  Commission  on  the  guidelines  for  programming  document  for 
decentralised  agencies  and  the  template  for  the  Consolidated  Annual  Activity  Report  for  decentralised  agencies 
(C(2014)9641 final), 2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9641-EN-F1-1.PDF. 
100 Regarding surpluses of partially self-financed agencies: Roadmap Action 72; European Commission, Analytical paper on 
for  partially  self-financed  agencies,  2013, 

the  possibility 
https://europa.eu/european-union/sites/europaeu/files/docs/body/2013-12-
10_analytical_paper_reserve_fund_en.pdf. 
Regarding  ABB  and  ABM:  Roadmap  Action  76;  European  Commission,  Performance  budgeting  and  decentralized 
agencies  –  Guidelines,  2013,  https://europa.eu/european-union/sites/europaeu/files/docs/body/2013-12-
10_guidelines_performance-budgeting_en.pdf. 

to  create  a 

ring-fenced 

reserve 

limited 

fund 

101 Common Approach, para 64. 
102  European  Commission,  Communication  Handbook  for  the  EU  Agencies,  2013,  https://europa.eu/european-

union/sites/europaeu/files/docs/body/2013-12-10_communication_handbook_en.pdf. 

103 Common Approach, para 65. 

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EU Agencies, Common Approach and Parliamentary Scrutiny 

agencies.104  In  its  2015  progress  report  on  the  implementation  of  the  Common  Approach,  the 
Commission wrote that it planned to adopt a guidance document on the charge-back of services 
provided to other EU bodies. Whilst a similar document already exists for the provision of services 
among Commission Directorates General and services, it has not yet been adopted for other Union 
bodies.105 The EU Agencies Network has by its own initiative already established a shared support 
service located in Brussels. The aim is to provide ‘administrative, operational and secretarial support 
to the Network’.106 

B. Procedures ensuring control 
The Common Approach also addresses the relationships between agencies and EU institutions. On 
the  one  hand,  these  are  meant  to  ensure  that  EU  institutions,  as  principals  of  the  agencies,  have 
sufficient influence and can hold the latter to account. On the other hand, however, the very raison 
d’être of agencies would be undermined if they were not sufficiently independent of institutions (see 
in more detail Section 9). Therefore, the Common Approach entails various procedures to ensure ex-
ante and ex-post control and, where necessary, sanctioning mechanisms.107 

Figure 2: Work Programmes. 

Ex-ante control is facilitated by means of the annual and multi-annual work programmes. For both 
annual and multi-annual programmes, agencies have to consult the Commission for formal advice. 
The  European  Parliament  only  has  to  be  consulted  for  multi-annual  work  programmes.  Yet,  the 
Common Approach acknowledges, that, in practice, directors of European agencies at least present 
their respective agencies’ annual work programme to the competent committee of the European 
Parliament.  This  practice, the  Common  Approach  holds,  should  be maintained.  Agencies  and  the 
Commission should moreover develop key performance indicators.108 

104 Common Approach, para 23; Roadmap Action 12. 
105  European  Commission,  Progress  Report  on  the  implementation  of  the  Common  Approach  on  decentralised  EU 

agencies, p. 4. 

106 European Agencies Network (EUAN), 2018-2019 Work Programme. Network of EU Agencies under the chairmanship of 
Frontex and ECDC, p. 8. Retrieved from https://euagencies.eu/sites/default/files/euan_wp_2018_19_final_.pdf. 

107 Common approach, paras 27-32. 
108 European Commission, Commission Staff Working Document: Guidelines on key performance indicators (KPI) for 

directors of EU decentralized agencies, SWD(2015)62 final. Retrieved from 
https://ec.europa.eu/transparency/regdoc/rep/10102/2015/EN/10102-2015-62-EN-F1-1.PDF.  

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EPRS | European Parliamentary Research Service 

Linked to this but set out distinctly in the Common Approach is the issue of agencies’ international 
activities. Agencies can, in principle, also cooperate with non-EU Member States, where relevant for 
the  carrying  out  of  their  mandate  and  tasks.  To  make  sure  that  agencies  operate  within  their 
mandate, they have to develop a strategy on this matter and include this in their annual or multi-
annual work programmes, which is subject to approval by the Management Board.109 In order to 
respect the institutional balance in EU external relations, and to make sure that agencies are not seen 
as representing the EU position, agencies’ international activities are subject to ex-ante consultation 
by the Commission. To the extent that the strategy is included in the multi-annual work programme 
and that the EP is consulted on this in line with the Common Approach, there is possibly a second 
instance of control. In order to ensure consistency and avoid transgressions of agencies’ mandates, 
agencies are required to cooperate closely with the Commission and relevant EU Delegations. 

The ex-post control of agencies is assured in three different ways under the Common Approach. First, 
agencies have to submit one single annual report covering issues such as the implementation of the 
work programme, resource planning and audit findings.110 As set out in the Common Approach, the 
Commission  has  adopted  in  cooperation  with  the  agencies  a  template  for  these  reports.111  This 
report is drafted by the Director and subsequently assessed by the Management Board. Both the 
report  and  its  assessment  by  the  Management  Board  will  be  submitted  by  the  director  to  the 
Commission, the European Parliament, the Court of Auditors and the Council.112  

Figure 3: Audits. 

Second, agencies have to undergo an audit and discharge procedure. Audits are undertaken both 
by  the  Internal  Audit  Service  (IAS)  of  the  European  Commission  and  by  the  European  Court  of 
Auditors (or a third party appointed by the Court of Auditors).113 The agency has subsequently to 
report on the outcome of the audit and the measures taken to comply with the recommendations 
to  the  Commission.114  The  Common  Approach  also  stipulates  that  agencies  should  have  the 
possibility to set up internal audit services to complement the work of the IAS.  

109 Common Approach, para 25; Roadmap Action 17. 
110 Common Approach, para 47. 
111 Common Approach, para 48; Roadmap Action 31; European Commission, Communication from the Commission on the 
guidance  for  programming  document  for  decentralised  agencies  and  the  template  for  the  Consolidated  Annual 
Activity 
2014, 
(C(2014)9641 
https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9641-EN-F1-1.PDF. 

decentralised 

agencies 

Report 

final), 

for 

112 Common Approach, para 49. 
113 Common Approach, paras 50-55. 
114 Common Approach, para 56. 

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EU Agencies, Common Approach and Parliamentary Scrutiny 

The  European  Parliament,  taking  full  account  of  recommendations  by  the  Council,  will  give 
discharge to the director.115 This equips the European Parliament with its most notable powers to 
hold  agencies  to  account.  Although  the  discharge  is  in  principle  limited  to  ‘accountability  and 
regulatory  compliance  rather  than  [to]  performance  per  se’,116  the  EP  has  used  the  discharge 
procedure as a means of exerting pressure on agency directors as it is the only possible sanctioning 
mechanism at hand for the EP.117 This becomes particularly problematic with regards to fully self-
financed agencies for which no discharge is currently taking place. The Common Approach therefore 
urges to explore ‘possibilities for securing democratic accountability for fully self-financed agencies 
(i.e. financed by their clients)’. The document continues by proposing a procedure under which these 
agencies would submit an annual report on their budget to the EP, the Council and the Commission 
and  receive  recommendations  from  the  former  two  institutions.118  Yet,  the  Commission  did  not 
follow up on this point of the Common Approach in its Roadmap. 

The  final  mechanism  for  ex-post  accountability  is  the  evaluation  of  agencies.  Agencies  shall  be 
evaluated every five years with a view to assessing whether to continue their mandate. Every ten 
years,  the  sunset-  or  review  clause  is  to  be  applied.119  The  evaluations  are  conducted  by  the 
Commission which has to inform the Parliament and Council of the evaluations.120 In addition, ex 
ante evaluation is possible for activities with significant budgetary implications or upon request by 
the Management Board or Executive Board.121 In order to make this process more transparent, the 
Commission plans to adopt a handbook on agency evaluations.122 

In addition to these regular ex-ante and ex-post accountability mechanisms, the Common Approach 
provides for an alert-/warning system.123 If the Commission has doubts about a decision which the 
Management Board is about to take, for instance regarding its compatibility with the mandate or EU 
law and policy as such, it can formally raise a question to the latter. Should the Management Board 
‘set  aside’  this  request,  the  Commission  informs  the  European  Parliament  and  Council  and  the 
agency  is  asked  not  to  implement  the  decision  as  long  as  negotiations  are  still  ongoing.  This 
approach again puts the Commission in a central position of scrutinizing the agency. In its Roadmap, 
the Commission clarifies in the ‘comments’-section that a ‘coordinated approach [is] to be discussed 
with the European Parliament and the Council.124 The relevance of this system for accountability will 
be discussed in more detail in section 11. 

115 Common Approach, para 57. 
116 Common Approach, paragraph 15. 
117 See section 11. 
118 Common Approach, para 58. 
119 Common Approach, para 60. 
120 Common Approach, para 63. 
121 Common Approach, para 61. 
122 European Commission, Progress Report on the implementation of the Common Approach on EU decentralised agencies, 

2015, p. 5.  

123 Common Approach, para 59. 
124 Roadmap Action 41. 

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4. Categorisation of EU agencies 

Since  the  beginning  of  the  2000s,  the  European  Commission  has  distinguished  EU  agencies  into 
regulatory  agencies,  operating  in  specific  policy  areas  and  executive  agencies,  assisting  in  the 
management of EU programmes.125 The use of the word ‘regulatory’ was however severely criticized 
by academics and the European Parliament for being inconsistent and rather deceiving as regards 
the  nature  of  the  agencies.126  Faced  with  this  critique  the  EU  modified  its  classification  and 
rebaptised ‘regulatory agencies’ into ‘decentralized agencies’.127 The term ‘decentralized agencies’ 
is certainly more appropriate as it indicates more clearly the level at which the agencies are operating 
in the executive, as well as the geographical spread of agencies over the EU. Yet, this distinction does 
not clarify what agencies exactly are and do. The academic literature has therefore come up with 
several classifications of agencies, varying from functional to instrumental typologies. We argue that, 
depending  on  the  purpose  of  analysis,  it  is  useful  to  distinguish  agencies  according  to:  (a)  their 
functions, (b) their sheer size, (c) their legal basis, (d) the nature of their powers and the instruments 
that they can adopt, and (e) the way in which they can exercise their powers autonomously. Taken 
together  agencies  can  roughly  be  classified  according  to  a  functional  (a)  numerical  (b)  and  legal 
taxonomy (c-e).  

4.1. Functional Taxonomy 

From a functional perspective, agencies can be classified according to the six main tasks conferred 
upon agencies: (1) expertise, (2) information and cooperation, (3) provision of services (registration 
and certification), (4) facilitation and support, (5) supervision, inspection, and enforcement, and (6) 
execution of EU programmes. The provision of expertise and the delivery of scientific opinions are 
typical  of  agencies  such  as  EFSA  and  EMA.  The  gathering  of  information  and  the  creation  of 
information networks is typical for agencies such as EEA and EMDDC, while the provision of a specific 
service, namely the registration of trade marks or plant variety, is the main task of EUIPO and CPVC. 
Facilitation and giving support to national authorities in their investigations and prosecutions and 
other  operational  tasks  are  carried  out  by  Eurojust.  Supervision  is  the  key  mandate  of  the  three 
supervisory authorities in the financial sector: EBA, ESMA and EIOPA. All agencies may serve the EU 
institutions and in some cases also the Member States.128 EU decentralised agencies carry out the 
first five main tasks. The agencies that are mandated to carry out the sixth task are currently termed 
executive agencies.129 They are very different from the other five types of agencies in that they are 
set up by the European Commission and are entrusted with purely managerial tasks and hence assist 
the Commission in implementing the EU’s financial support programmes. They are set up for a fixed 

125 See e.g., COM(2002) 718 and COM(2005) 59 final. 
126 See J.J. Rijpma, ‘Hybrid Agencification in the Area of Freedom, Security and Justice and its Inherent Tensions: The Case 
of Frontex’, in The Agency Phenomenon in the European Union: Emergence, Institutionalisation and Everyday Decision-
making,  eds.  M.  Busuioc,  M.  Groenleer  &  J.  Trondal  (Manchester:  Manchester  University  Press,  2012),  85;  E.  Vos, 
‘Independence, Accountability and Transparency of European Regulatory Agencies’, in Regulation through Agencies: A 
New Paradigm of European Governance, eds. D. Geradin, R. Munoz & N. Petit (Cheltenham UK/Northampton MA, USA: 
Edward Elgar, 2005), 120–137. The term decentralized was explicitly proposed by the European Parliament in its 2009 
Resolution on financial management and control of agencies, 23/04/2009, P6 TA (2009)074, para. 6. 

127 In 2008 the Commission still referred to these agencies as regulatory agencies (Communication on European agencies 
– The way forward COM (2008)  135 fin. As of the common approach of 2012 the EU institutions started to use the 
terminology  decentralised agencies.  

128 See Annex 7. 
129 The governance structure of the European Agency for Reconstruction was set up as a regulatory agency in 2000 to deal 
with the management of the EU assistance programmes in Serbia and Montenegro and the FYR of Macedonia (Council 
Regulation 2667/2000, OJ 2003, L 11. It was closed down in 2008. Nowadays, following Regulation 58/2003, such an 
agency would be set up as an executive agency.   

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EU Agencies, Common Approach and Parliamentary Scrutiny 

period and are strictly supervised by the Commission.130 The execution of specific EU programmes 
is the mandate of, for example, EAHC and EACEA.  

It is noteworthy that increasingly a plurality of functions is conferred upon agencies, which makes it 
difficult  to  distinguish  clearly  the  above-mentioned  types.  Examples  of  this  mixed,  or  ‘plural-
functional’ type, are ECHA and EASA that are tasked with the delivery of both expertise and services 
(issuance of environmental certificates, registration of chemicals), as well as  inspection tasks (EASA). 

4.2. Numerical Taxonomy 

From a numerical perspective, agencies are different and vary in size (in staff and consequently in 
budget) enormously. The smallest agency is EIGE that employs approximately 50 persons, with an 
annual budget of approximately EUR 7,7 million.131 The biggest agency is the EUIPO employing 939 
persons, having an annual budget of around EUR 401 million, entirely self-financed.132 

4.3. Legal Taxonomy 

From a legal perspective we can distinguish agencies in various manners, taking account of legal 
basis, nature of powers, and instruments and autonomy in decision-making. As regards their legal 
basis,  we  can  distinguish  agencies  that  have  been  created  by  a  Commission  act,  a  Council  joint 
action, a Council act or a European Parliament and Council act. The three agencies that operate in 
the field of foreign security and defence policy, European Defence Agency (EDA), European Union 
Institute for Security Studies (EUISS) and European Union Satellite Centre (SatCen), are all established 
by  a  Council  joint  action. These  agencies  have  a  different organisational  structure  than  the other 
agencies  as,  for  example,  in  the  case  of  EDA  the  defence  ministers  participate  in  the  agency’s 
administrative board. These agencies are therefore excluded from our analysis. Agencies created by 
the  Commission  are  meant  to  purely  assist  the  Commission  in  the  implementation  of  EU 
programmes and are called executive agencies, as we referred to above. The legal basis of agencies 
will be further elaborated in section 5.  

According to the nature of their powers and the instruments they have at their disposal, agencies can 
be  divided  into  agencies  with  and  without  decision-making  powers  to  adopt  binding  legal 
instruments. Only a few agencies have been allotted formal and binding decision-making powers, 
although  it  is  noteworthy  that  increasingly  binding  decision-making  powers  are  being  conferred 
upon  agencies.  Agencies  may  thus  adopt  final  and  binding  decisions  on  the  registration  of 
trademarks and chemicals, that individual actors can challenge before the General Court of the EU. 
At present, EUIPO, CPVO, EASA, ECHA, EMA, ESMA, EBA, and EIOPA have powers to adopt binding 
decisions.  All  other  agencies  adopt  a  variety  of  informal  documents,  such  as  recommendations, 
opinions,  standards,  guidelines,  guidance  documents,  scientific  reports,  a  code  of  conduct,  an 
annual report, a work plan, and a strategic plan. In addition, they are also active at the global level, 
concluding informal agreements and memoranda of understanding with national or international 
organizations with a similar mandate. Although most agencies have powers of an advisory nature, it 
may be clear that the scientific opinions given for example, by EMA or EFSA carry significant weight 
in  Commission  decision  making.133  EASA  is  very  close  to  adopting  quasi-binding  rules,  as  it  is 

130 Council Regulation (EC) No. 58/2003 (OJ L11, 16 January 2003). 
131 EIGE: 2017 Annual Report (https://eige.europa.eu/sites/default/files/documents/20182925_mhad18001enn_pdf.pdf). 
132  EUIPO,  Annual  Report  2017.  Annex  1:  Management  of  Resources  and  Assurance.  Retrieved 

from: 

(https://euipo.europa.eu/tunnel-
web/secure/webdav/guest/document_library/contentPdfs/about_euipo/annual_report/ar_2017_annex_01_en.pdf). 
133 See P. Craig, EU Administrative Law (Oxford: Oxford University Press, 2006), 155; M.B.A. Van Asselt & E. Vos, ‘Wrestling 
with Uncertain Risks: EU Regulation of GMOs and the Uncertainty Paradox’, Journal of Risk Research 11, no. 1–2 (2008): 
281–300. 

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empowered to adopt technical guidelines in relation to certification specifications while it prepares 
technical rules from which the Commission cannot deviate without EASA’s prior consent.134 EBA is 
also playing a crucial role in the setting of regulatory technical standards. Whereas the Commission 
is delegated the task to adopt such regulatory standards, in practice it is the EBA that drafts them 
and the European Commission will merely endorse these draft standards.135 Moreover case law of 
the  Court indicates  that  other  acts  of  agencies  may  intend  to  produce  legal effects  vis-à-vis  third 
parties, which consequently may be reviewed by the Court,136 as is now also formally recognized by 
Article  263  TFEU.137  The  possibility  to  delegate  powers  to  EU  agencies  will  be  addressed  in  more 
detail in section 8. 

As regards the autonomy to adopt specific acts, agencies may be divided into three categories, viz. 
(1)  agencies  that  need  prior  approval  for  the  conclusion  of  an  act,  (2)  agencies  that  need  prior 
consultation with the Commission and (3) agencies that can autonomously adopt acts. This typology 
has proved particularly useful in assessing whether - in the exercise of their external relation tasks - 
agencies  have  been  delegated  decision-making  powers  and  whether  this  upsets  the  institutional 
balance of powers.138 

134 Art. 17(2b) of Regulation (EC) 216/2008 of the European Parliament and of the Council on common rules in the field of 
civil  aviation  and  establishing  a  European  Aviation  Safety  Agency,  and  repealing  Council  Directive  91/670/EEC, 
Regulation (EC) 1592/2002 and Directive 2004/ 36/EC, OJ 2008, L79/1. 

135 Art. 10 Regulation 1093/2010, as lastly amended by European Parliament and Council Directive (EU), OJ 2015, 

L 337/35. 

136 Case T-411/06, Sogelma v. EAR [2008] ECR II-2771, paras 42 and 43. 
137 See E. Vos, 'European Agencies and the Composite EU Executive', in M. Everson, C. Monda, & E. Vos (Eds.), European 
agencies in between institutions and Member States (pp. 87-122). (European Monographs; No. 85). Alphen aan den 
Rijn: Kluwer Law International. 

138 A. Ott, E. Vos and F. Coman Kund, ‘European Agencies on the Global Scene: EU and International Law Perspectives’, in 
M. Everson, C. Monda and E. Vos (eds.), European Agencies in Between Institutions and Member States (Alphen a/d Rijn: 
Wolters Kluwer, 2014), 87–122. 

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EU Agencies, Common Approach and Parliamentary Scrutiny 

5. Legal basis  

In  line  with  the  principle  of  conferral  of  powers,139  the  EU’s  competences  are  not  unlimited.  This 
principle  requires  the  EU  to  only  adopt  decisions  in  relation  to  subject-matters  and  policy  areas 
where powers have been conferred upon the EU, making the legal basis requirement essential for 
each EU decision to be adopted, ensuring that the EU does not act outside its powers. In relation to 
EU agencies, it means that the creation of agencies needs to have a legal basis that is suitable for 
those purposes, whilst also powers conferred upon these agencies by the EU legislator are limited. 
What is the correct legal basis on which EU agencies can be created has been the subject of legal 
contestation for some time. 

At the end of the 1990s during the negotiations prior to the Nice Treaty, Member States had issued 
several proposal to insert an explicit legal basis for the creation of EU agencies in the Treaty. Yet, the 
Commission did not get along with these proposals140 as it feared the insertion of a legal basis for 
the creation of agencies would risk creating conflicting centres of power.141 

Hence, today there is no explicit legal basis to create agencies in the Treaties. Until the end of the 
1990s the dominant legal thinking was that, EU agencies could only be created on the basis of Article 
235 EEC/308 EC (now Article 352 TFEU).142 In the 2000s however, this opinion changed in both legal 
doctrine and institutional practice upholding the view that EU agencies could be adopted on the 
basis  of  the  provisions  in  relation  to  sectoral  policy  areas,  such  as  the  legal  basis  in  the  field  of 
environment, transport and the internal market.  

However, especially the institutional practice of creating agencies on the basis of the internal market 
legal basis has not been uncontroversial. It was opposed by the UK, leading to various legal disputes 
before the Court. In these cases, the UK was not so much concerned with the creation of agencies as 
such but rather with the substantive EU measures or the specific powers conferred upon the agency. 
The UK authorities thus argued that those measures were adopted on the incorrect legal basis, as it 
would have been able to block decision-making where the flexibility clause would have been used 
as this Article provided for a unanimity vote in the Council.  

The  UK,  for  example,  challenged  the  creation  of  the  European  Union  Agency  for  Network  and 
Information Security (ENISA) under Article 114 TFEU claiming that the latter article, providing for the 
power to harmonise national laws, would not allow for the adoption of a measure aimed at setting 
up an EU agency and conferring tasks upon such a body.143 The Court rejected the UK’s arguments. 
The Court held that the EU legislature may establish an agency that is ‘responsible for contributing 
to the implementation of a process of harmonisation in situations where, in order to facilitate the 
uniform  implementation  and  application  of  acts  based  on  that  provision,  the  adoption  of  non-
binding  supporting  and  framework  measures  seems  appropriate’.144  It  emphasised  nevertheless 
that ‘the tasks conferred on such an agency must be closely linked to the subject-matter of the acts 

139 Articles 4 and 5 TEU. 
140 See E. Vos, 'European Agencies and the Composite EU Executive', in M. Everson, C. Monda, & E. Vos (Eds.), European 
agencies in between institutions and Member States (pp. 87-122). (European Monographs; No. 85). Alphen aan den 
Rijn: Kluwer Law International. 
141  Speech  by  R.  Prodi  before 

the  European  Parliament,  3  October  2002,  SPEECH/00/352, 

see 

<http://europa.eu/rapid/press-release_SPEECH-00-352_en.htm?locale=EN>. 

142 E.g. as regards the legal basis of the creation of a centralised authorisation system for medicines and the creation of an 
agency, that the Commission proposed to base on former Article 100a COM (90) 283 final – SYN 309 to 312. The Council 
did not agree and ultimately the regulation was adopted on the former 235 EEC; Council Regulation (EEC) No 2309/93 
OJ 1993 L 214/1.  

143 Case C-217/04, United Kingdom v European Parliament and Council [2006] ECLI:EU:C:2006:279. 
144 Idem, para 44. 

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approximating  the  laws,  regulations  and  administrative  provisions  of  the  Member  States’.145  This 
ruling  thus  confirms  the  broad  ambit of  harmonisation measures  that  can  be adopted under  the 
internal market legal basis, including the creation of EU agencies.  

The wide sphere of harmonisation measures was subsequently endorsed by the Court in ESMA, or 
Short Selling. In this case, the UK argued that the internal market legal basis, i.e. Article 114 TFEU, did 
not  allow  to  confer  upon  ESMA  far-reaching  enforcement  and  intervention  powers.  The  Court, 
however, unlike Advocate General Jääskinen,146 disagreed. It confirmed the broad interpretation of 
Article 114 TFEU, to also include such powers. At the same time, it reiterated its ruling in ENISA that 
the EU legislature may deem it necessary to provide for the establishment of ‘an EU body responsible 
for contributing to the implementation of a process of harmonisation’.147 On the basis of this case 
law, EU agencies can therefore be established under Article 114 TFEU as long as they contribute to 
the implementation of ‘a process of harmonisation’. In view of the Court’s lenient case law, in many 
cases Article 114 TFEU will therefore offer the correct legal basis for the creation of EU agencies. 

We may therefore conclude that the current dominant legal thinking and case law is that EU agencies 
may be established on the relevant Treaty article that provides the legal basis in a specific policy area 
(see Annex 2). The Common Approach is silent on this issue. 

145 Idem, para 45.  
146 According to Advocate General Jääskinen, the correct legal basis of this regulation should have been Article 352 TFEU. 

See Opinion AG Jääskinen in Case C-270/12, para 54. 

147 Case C-270/12, UK v. Council and European Parliament [2014] ECLI:EU:C:2014:18, para 104. 

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EU Agencies, Common Approach and Parliamentary Scrutiny 

6. Sources of financing 

Most decentralised agencies have their own budget148 in order to ensure full independence from 
the budgetary authority (see Annex 3). Yet, they differ with regards to the question as to how this 
budget is composed. In the case of eleven agencies, the budget comes entirely from the Union’s 
budget.149 The Common Approach stipulates that in those cases, any surplus should be recovered 
by reducing the EU-contribution.150  

In the vast majority of cases, agencies have at least one other source of financing in addition to the 
Union’s budget. Based on this, four different models can be identified. First, for twelve agencies, this 
additional source consists of fees or payments for services.151 These can, for instance, be fees paid 
by  a  company  for  the  authorisation  of  new  medicines,  which  is  the  case  for  EMA.  The  founding 
regulation  of  EMA  stipulates  at  the  same  time  that  the  budget  of  the  agency  consists  of  a 
contribution  of  the  EU  and  the  fees  paid  by  undertakings  for  obtaining  and  maintaining  Union 
marketing authorisations and for other services provided by the Agency.152 Over the years however, 
the  EU  contribution  paid  to  EMA  is  in  continuous  decline.153    The  Common  Approach  views  that 
these fees should cover the cost of the service provided.154 Second, two agencies155 and the newly 
proposed ELA, receive voluntary contributions by Member States as source of financing in addition 
to the contribution from the Union budget. Moreover, eight agencies receive both fees or payments 
and voluntary contributions by Member States as additional sources of financing in addition to the 
EU subsidy.156 

Finally, four agencies are fully self-financed.157 For these agencies, the Common Approach merely 
mentions that “fees should be set at a realistic level” so as to avoid that surpluses are accumulated.158 

148 Exceptions: APPF and EDPB. In these cases, no discharge is foreseen in the founding acts. 
149 These fully financed agencies are: APPF, Cedefop, CEPOL, EDPB, EIOPA, ENISA, Eurofound, Eurojust, Europol, FRA, GSA. 
150 Common Approach, para 37. 
151 These agencies are: EBA, EEA, EFCA, EFSA, EMA, EMCDDA, EMSA, EPPO, ERA, ESMA, ETF, EU-OSHA. 
152 Article 67 (3), Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down 
Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and 
establishing a European Medicines Agency. OJ L 136.  

153 The EU subsidy to EMA amounts to approximately 10 % of the EMA budget. EMA annual report 2017, p. 98. 
154 Common Approach, para 39. 
155 These agencies are: BEREC and EU-LISA. 
156 These agencies are: ACER, EASA, EASO, ECDC, ECHA, EIGE, ELA, FRONTEX. 
157 These agencies are: CdT, CPVO, EUIPO, SRB. 
158 Common Approach, para 38. 

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7. Constitutionalisation and constitutional neglect 

7.1. Constitutionalisation of agencification  

Importantly,  the  Lisbon  Treaty  has  formally  recognised  agencification  of  the  EU  executive  by 
introducing  EU  agencies  formally  into  the  Treaties.159  Importantly,  this  Treaty  has  formalised 
jurisdiction  of  the  Court  over  agency  acts  in  Article  263  TFEU.160  The  Court  may  thus  review  the 
legality of agency acts ‘intended to produce legal effects vis-à-vis third parties’ and their failure to 
act, while it may also interpret agency acts in preliminary rulings.161 With this provision, the Lisbon 
Treaty codified a longstanding unconstitutional practice162 in which the Court had already accepted 
jurisdiction in conflicts over rejections of applications for a European trademark by the former OHIM, 
now EUIPO.163 Although the provision does not confer the possibility for agencies to challenge acts 
of EU institutions, the limited constitutional legitimation of agencies is to be welcomed in ensuring 
more legal certainty in judicial review of agency acts.164  

Agencies are furthermore put on par with the EU Institutions in a variety of provisions in the Treaties, 
that  is  in  relation  to  internal  security,165  financial  measures  and  independence  of  the  European 
Central  Bank,166  complaints  on  instances  of  maladministration  submitted  to  the  Ombudsman,167 
audits,168  fraud,169  and  citizenship.170  Importantly,  agencies,  in  the  same  way  as  the  institutions, 
must abide by the principle of transparency (including access to documents),171 the requirement of 
personal data protection172 and the respect for the constitutional right of citizens to write questions 

159 See E. Vos, 'European Agencies and the Composite EU Executive', in M. Everson, C. Monda, & E. Vos (Eds.), European 
agencies in between institutions and Member States (pp. 87-122). (European Monographs; No. 85). Alphen aan den 
Rijn: Kluwer Law International. 

160 Now in Article 263 TFEU. See case law of the CJEU, e.g. Case T-411/06, Sogelma v EAR [2008] ECLI:EU:T:2008:419, paras 

42 and 43. 

161  Art.  263  TFEU  moreover  permits  that  the  founding  regulation  of  agencies  lay  down  specific  conditions  and 
arrangements concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies 
intended to produce legal effects in relation to them. The relevant Articles are: failure to act: Art. 265 TFEU, preliminary 
rulings: Art. 267 TFEU and plea of illegality: Art. 277 TFEU. 

162 See the Court of Auditors in its opinion no. 8/2001 on the Commission’s proposal to lay down the statute for executive 

agencies, OJ 2001, C 345/1.  

163 Whilst having no constitutional basis for this, the founding regulation of the European trademark regulation provided 
for the possibility to have decisions of EUIPO’s (formerly OHIM’s) board of appeal reviewed by the Court, see Article 65 
of Regulation 207/2009 on the Community trademark, OJ 2009 L 78/1. Moreover, in 1995, the Court of First Instance 
(CFI) expressly accepted jurisdiction to judge decisions of the OHIM and amended its Rules of Procedure to this end. 
In view of the anticipated workload, especially stemming from litigation relating to these decisions, the Council has 
additionally allowed the CFI to render judgment by a single judge. See Council Decision 1999/291/EC, ECSC, Euratom, 
OJ 1999, L 114/52. 

164 See already the Court’s rulings in Case T-411/06, Sogelma v EAR [2008] ECLI:EU:T:2008:419, paras 42 and 43 and Case 
T-70/05 Evropaiki Dynamiki v. EMSA, ECLI:EU:T:2010:55. See J. Saurer, ‘Transition to a New regime of Judcial Review of 
EU agencies’, European Journal of Risk Regulation 1 (2010): 325; A. Alemanno and S. Mahieu, ‘The European Food Safety 
Authority  before  European  Courts.  Some  reflections  on  the  judicial  review  of  EFSA  scientific  opinions  and 
administrative acts’, European Food and Feed Law 5 (2008): 320–333. 

165 Article 71 TFEU. 
166 Articles 123(1), 124, 127(4), 130, 282(3) TFEU. 
167 Article 228(1) TFEU. 
168 Article 287(1) and (3) TFEU. 
169 Article 352(1) and (4) TFEU. 
170 Article 9 TEU. 
171 Article 15(1) and (3) TFEU. 
172 Article 16(2) TFEU. 

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EU Agencies, Common Approach and Parliamentary Scrutiny 

and  have  answers in  their own language.173 They  too are  required  to  hold  an  open,  efficient  and 
independent administration.174  

The constitutionalisation of the operation and decision-making procedures of agencies strengthens 
agencies as part of the EU executive and clarifies that agencies too are subjected to the constitutional 
values  of  transparency,  openness  and  participation.  In  view  of  the  criticism  on  agencies’ 
transparency,  inter  alia  in  relation  to  the  conflicts  of  interest  declarations,175  the  recognition  of 
constitutional  values  in  relation  to  EU  agencies  is  of  high  importance.  Yet,  it  is  also  true  that 
constitutionalisation  will  not  solve  the  incoherencies  that  exist  in  practice  where  founding 
regulations stipulate transparency and participation in agency activities and decision making only in 
a very general way. Here shortcomings continue to exist about the role of participation, consultation 
and  transparency  in  relation  to  binding  and  non-binding  agency  decisions176  requiring  a  more 
general approach on these issues, for example by means of an EU administrative act.177  

7.2. Constitutional neglect in Articles 290 and 291 TFEU  

Before extensively discussing the possibility of delegation of powers to EU agencies (see section 8), 
it  is  crucial  to  first  highlight  the  constitutional  gap  that  exist  in  the  EU  treaties  following  Lisbon. 
Whilst  Lisbon  recognised EU  agencies  as  part of  the  EU institutional  structure,  the drafters  of  the 
Lisbon  Treaty  neglected  agencies  in  provisions  where  one  would  have  expected  them  most;  the 
system  of  delegation  laid  down  by  the  Treaty  neglects  to  position  agencies  as  bodies  to  whom 
powers  can  be  delegated  in  Articles  290  and  291  TFEU.178  The  disregard  of  agencies  is  quite 
extraordinary in view of the composite character of the EU executive and is more remarkable now 
that agencies do appear in the Treaties elsewhere, as pointed to above. This constitutional neglect 
should mostly likely be explained in terms of the Commission’s own unitary view on the EU executive 
in its White Paper on European Governance.179 Although in the same White Paper the Commission 
proposed to increasingly resort to agencies,180 it blatantly focussed on the Community method and 
the institutional triangle of the Council, Parliament and the Commission, which led it to suggest that 
the impact of comitology on its decision-making be diminished and to replace comitology with the 
adoption  of  delegated  acts  with  a  direct  ex-post181  control  mechanism  on  the  exercise  of  the 
Commission’s  powers.  It  is  precisely  this  thinking  that  has  been  codified  in  Articles  290  and  291 
TFEU.182 

173 Article 24 TFEU. 
174 Article 298 TFEU. 
175 See inter alia, the European Court of Auditors, Management of conflicts of interests of selected EU agencies, Special report 

No. 15/2012.  

176 E. Chiti, ‘European Agencies’ Rulemaking: Powers, Procedures and Assessment’, European Law Journal 19, no. 1 (2013): 

93–110, at 104–108. 

177 See D. Curtin, H. Hofmann & J. Mendes, ‘Constitutionalising EU Executive Rule-making Procedures: A Research Agenda’, 

178 

European Law Journal Vol. 19, No. 1, (2013): 1–21. 
E. 
ahead', 
the  move: 
http://www.sieps.se/globalassets/publikationer/2018/sieps-2018_1-web.pdf?. 

'EU  Agencies 

Challenges 

Vos, 

on 

SIEPS, 

2018. 

Retrieved 

from: 

179  The  view  was  explicitly  stated  in  the  Commission’s  White  Paper  on  European  Governance  where  the  Commission 
presented itself ‘as the lone hero of European policy-making and implementation’. See Vos 2014 in book. See F.W. 
Scharpf, European Governance: Common Concerns vs. The Challenges of Diversity, New York Jean Monnet Working Paper 
6/01, 2001, 8. 

180 See above, section 3.1. 
181 I.e. after the adoption and before the entry into force of the Commission act.  
182 

E. 
ahead', 
http://www.sieps.se/globalassets/publikationer/2018/sieps-2018_1-web.pdf?. 

'EU  Agencies 

the  move: 

Challenges 

Vos, 

on 

SIEPS, 

2018. 

Retrieved 

from: 

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In the hierarchy of norms introduced by the Lisbon Treaty, no attention is paid to the fact that today 
agencies  form  part  of  the  EU  executive  and  may  adopt  binding  decision-making  powers.  For 
example, binding legal acts on the registration or refusal of a European trademark adopted by EUIPO 
are clearly acts of an executive nature and comparable with Commission decisions on the approval 
or  refusal  of  an  EU-wide  approval  of  a  novel  food.  However,  while  the  latter  decisions  are 
implementing decisions in the sense of Article 291 TFEU based on comitology, EUIPO’s acts clearly 
do not fall under this category. This highlights the uncomfortable and even unconstitutional position 
of agencies as actors operating in the shadow of hierarchy that can adopt binding executive acts 
that would ultimately be at odds with the principle of conferral of powers in accordance with Article 
5 (2) TEU. The Treaty, however, does recognise that agencies can adopt binding acts. In Article 263 
and 277 TFEU the Court has explicit jurisdiction for agency acts that ‘intend to produce legal effect 
vis-à-vis third parties.’183 

Seen in this context, the claim put forward by the UK in ESMA, also referred to as Short-selling, that 
the delegation of powers to ESMA was incompatible with Articles 290 and 291 TFEU, made very good 
sense. In this case, the Court was explicitly asked to judge whether Articles 290 and 291 TFEU were 
intended to establish a single framework under which certain delegated and executive powers may 
be attributed solely to the Commission or whether other systems for the delegation of such powers 
to Union agencies may be contemplated by the EU legislature.184 In its judgment, the Court affirmed 
the latter and found no difficulty in circumventing the carefully crafted hierarchy of norms in these 
Treaty  provisions.  The  Court  hereby  deduced  from  the  inclusion  of  agencies  in  other  Treaty 
provisions that the possibility to confer powers upon such bodies exists; ‘a number of provisions in 
the TFEU none the less presuppose that such a possibility exists’.185 Crucial for the Court was also the 
fact that the amended judicial review provisions also apply to agencies. It hereby explicitly referred 
to the practice of the EU legislature to delegate decision-making powers to agencies such as ECHA, 
EUIPO,  CVPO  and  EASA.  In  relation  to  ESMA,  the  Court  underlined  that  the  conferral  of  certain 
decision-making powers on ESMA in ‘an area which requires the deployment of specific technical 
and professional expertise’186 does not ‘correspond to any of the situations defined in Articles 290 
TFEU  and  291 TFEU’.187  The Court  views  that  this  does  not  undermine  the  rules on delegation of 
powers laid down in Articles 290 and 291 TFEU.188  

With its pragmatic approach in ESMA, the Court upholds the delegation of decision-making powers 
to EU agencies and bridges the ‘constitutional gap in EU executive rulemaking’.189 It remedies the 
evidently uncomfortable and unconstitutional position of agencies as bearers of executive powers. 
The  Court  admittedly  argues  that  the  mentioning  of  agencies  in  other  Treaty  provisions 
‘presupposes’ that the possibility to delegate powers to agencies exists, having particular regard to 
the amended judicial review provisions:190 if agencies can adopt acts that can be judicially reviewed 
and if Member States’ courts can even ask the Court to interpret agency acts, it must be possible to 
confer the powers to adopt such decisions to agencies. The Court herewith gives a constitutional 
mandate to confer powers upon agencies despite the constitutional neglect. The Court could not 

183 

Vos, 

ahead', 
E. 
http://www.sieps.se/globalassets/publikationer/2018/sieps-2018_1-web.pdf?. 

'EU  Agencies 

the  move: 

Challenges 

on 

SIEPS, 

2018. 

Retrieved 

from: 

184 Case C-270/12, UK v. Council and European Parliament [2014] ECLI:EU:C:2014:18, para 78. 
185 Idem, para 79.  
186 Idem, para 82.  
187 Idem, para 83. 
188 Idem, para 86. 
189  H.  Marjosola,  ‘Bridging  the  constitutional  gap  in  EU  executive  rulemaking:  the  Court  of  Justice  approves  legislative 
conferral  of  intervention  powers  to  the  European  Securities  and  Markets  Authority’,  European  Constitutional  Law 
Review 10 no. 3 (2014): 500–527. 

190 Ibid., p. 527. 

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have been clearer in confirming that the intention of the Lisbon Treaty to introduce an all-embracing 
hierarchy and categorisation of norms is a genuine failure also in relation to agency acts, in addition 
to its complicated division into delegated and implementing acts.191 

191 See Vos, E. I. L., & Everson, E. (2016). European Agencies: What about the institutional balance? In S. Blockmans, & A. 

Lazowski (Eds.), Research handbook EU institutional law (pp. 139-155). Cheltenham: Edward Elgar Publishing. 

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8. Delegation of powers  

The most extensively discussed legal question in relation to EU agencies in the legal literature and 
to a lesser extent in practice, is which powers may be delegated to EU agencies. Whilst the Lisbon 
Treaty for the first time introduced the notion of delegation in Article 290 TFEU, it does not define 
delegation. It moreover is silent of the possibility to delegate powers to agencies, the nature of these 
powers  and  the  acts  of  agencies.  Legal  quarrelling  about  the  kind  of  powers  that  agencies  may 
exercise  (discretionary  or  merely  executive,  binding  or  advisory)  emphasises  the  importance  of 
examining the nature of powers that are delegated to EU agencies. A vital point of departure for this 
discussion is the review of the leading case law from the Court of Justice of the European Union on 
this subject matter: Meroni and ESMA.192 

8.1. Meroni case law 

Until  the  Court’s  judgment  in  ESMA,  legal  thinking  within  the  EU  institutions  and  literature  was 
dominated by the ‘anti-delegation’, or better ‘limited-delegation’ or Meroni doctrine. This doctrine 
allowed for  delegation of very  limited  powers  to  EU  agencies  based  on  the Meroni  rulings of  the 
Court in the 1950s.193 In Meroni, the Court was asked to rule upon the delegation of powers from the 
Commission to an organisation established on the basis of Belgian private law. In these cases, the 
Court rejected the transfer of sovereign powers to subordinate authorities outside the EU institutions 
and ruled that only ‘clearly defined executive powers’ could be delegated, the exercise of which was 
to remain at all times subject to Commission supervision.  

Although the Meroni judgments related to the ECSC, their applicability to the EU Treaty has been 
generally accepted194 and was confirmed by the CJEU in its case law in the 2000s.195 The Meroni case 
law would suggest that the following conditions apply to the admissibility of transferring sovereign 
powers to subordinate authorities outside the EU institutions: 

the delegating authority cannot delegate broader powers than it enjoys itself; 

  only strictly executive powers may be delegated; 
  discretionary powers may not be delegated; 

the exercise of delegated powers cannot be exempt from the conditions to which they would 
have been subject had they been directly exercised by the delegating authority, in particular 
the obligation to state reasons for decisions taken, and judicial control of decisions; 
the  powers delegated  remain  subject  to  conditions  determined  by  the delegating  authority 
and subject to its continuing supervision.  

Ultimately, these conditions would come down to requiring that the institutional balance will not be 
distorted. The Court’s understanding of democratic legitimacy implies that it must be possible to 
eventually trace the powers of any rule-making body to the authority of a democratically-elected 
parliament.196 In Meroni, the Court considered that the institutional balance would be distorted if 
discretionary powers were delegated to bodies other than those established by the Treaty. This also 
explains  the  Court’s  underlying  concern  about  the distinction  between  ‘clearly  defined  executive 

192 Case C-270/12, UK v. Council and European Parliament [2014] ECLI:EU:C:2014:18. 
193 Cases 9/56 and 10/56 Meroni v. High Authority [1957–1958] ECLI:EU:C:1958:7.  
194 See, e.g. K. Lenaerts, ‘Regulating the Regulatory Process: “Delegation of Powers” in the European Community’, European 

Law Review 18, no. 1 (1993): at 41. 

195 Joined Cases C-154/04 and C-155/04, Alliance for Natural Health and Others [2005] ECLI:EU:C:2005:449, para 90. 
196  See  C.  Joerges,  H.  Schepel  &  E.  Vos,  The  Law’s  Problems  with  the  Involvement  of  Non-governmental  Actors  in  Europe’s 

Legislative Processes: The Case of Standardisation, EUI Working Paper, Law 99/9 (Florence 1999). 

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EU Agencies, Common Approach and Parliamentary Scrutiny 

powers’ and ‘discretionary powers’ and the concern about the prohibition to delegate the latter to 
bodies other than the institutions.197  

This thinking has dominated legal literature and practice for many years. In 2002, however, Majone 
observed  a  struggle  between  various  Directorate  Generals  (DG)  in  the  Commission  whereby  the 
policy DGs increasingly acknowledged the need to confer more powers on agencies in view of the 
growing complexity of the EU’s tasks, and the Commission’s Legal Service anxiously attempted to 
stick to a strict interpretation of the Meroni doctrine.  198 It is thus perhaps not surprising that the 
legislative reality shows a much more indulgent attitude towards the delegation of powers.199 The 
far-reaching enforcement and intervention powers conferred upon the three supervisory authorities 
serve as examples.200 It is the latter kind of powers conferred upon ESMA that the UK authorities 
decided to challenge in 2012.201  

8.2. ‘Mellowing Meroni’:202 ESMA case 

Hence, after more than 50 years of discussion in the legal literature, the Court was finally called upon 
to answer the question whether the Meroni case law, judged in a different time of thinking about the 
functions  of  administration  and  in  a  different  situation  that  was  about  delegation  of  powers 
conferred upon the Commission by the Treaty to a body established under Belgian private law, still 
made ‘good law’. In ESMA, the UK sought the annulment of Article 28 of Regulation 236/2012 that 
conferred upon ESMA the power to issue legally binding measures (prohibit or impose conditions) 
in relation to short selling against financial institutions of the Member States in the event of a threat 
to the orderly functioning and integrity of financial markets or to the stability of the whole or part of 
the financial system in the EU.203 In addition to other pleas, the UK authorities held that this power 
entailed a wide discretionary power and therefore infringed the principles established in relation to 
delegation of powers in the Meroni case law. The Court rejected this and all other claims held by the 
UK. The Court confirmed that the delegation of powers is in fact limited by Meroni, specifying that 
this case law only allows delegation of precisely delinated executive powers to EU agencies. In other 
words: Meroni is indeed still good law.204  

The  Court  was  nevertheless  visibly  torn  between  the  need  to  confirm  the  stricter  Meroni 
requirements set in the 1950s and the recognition that ESMA does need to carry out the intervention 
tasks  conferred  upon  it.  The  Court  therefore  ‘mellows’  Meroni:205  it  did  not  rule  out  entirely  the 
possibility  to  delegate  discretionary  powers,  but  instead  focussed  on  the  possibility  to  limit  the 

197 E. Vos, 'European Agencies and the Composite EU Executive', in M. Everson, C. Monda, & E. Vos (Eds.), European agencies 
in between institutions and Member States (pp. 87-122). (European Monographs; No. 85). Alphen aan den Rijn: Kluwer 
Law International. 

198 G. Majone, ‘Delegation of Regulatory Powers in a Mixed Polity’, European Law Journal 3, no. 3 (2002): 329. 
199 Vos, E., ‘European agencies and the composite EU executive’ in M. Everson, C. Monda and E. Vos (eds.), European agencies 

in between Institutions and Member States (Alphen a/d Rijn: Wolters Kluwer, 2014).  

200 See A. Ottow, ‘The New European Supervisory Architecture of the Financial Markets’, in Everson, C. Monda and E. Vos 
(eds.), European Agencies in Between Institutions and Member States (Alphen a/d Rijn: Wolters Kluwer, 2014), 123-143. 
See for a discussion of rulemaking powers of agencies, E. Chiti, ‘European Agencies’ Rulemaking: Powers, Procedures 
and Assessment’, European Law Journal 19, no. 1 (2013), at 93–110. 

201 Case 270/12, UK v. Council and European Parliament [2014] ECLI:EU:C:2014:18. 
202 See J. Pelkmans and M. Simoncini, Mellowing Meroni: How ESMA can help build the single market, CEPS commentary, 18 

February 2014. 

203 European Parliament and Council Regulation (236/2012 on short selling and certain aspects of credit default swaps, OJ 

2012 L86/1. 

204 K. Lenaerts, ‘EMU and the EU’s constitutional framework’, E.L. Rev. 39, no. 6 (2014): 753-769, at 760. 
205 See J. Pelkmans and M. Simoncini, Mellowing Meroni: How ESMA can help build the single market, CEPS commentary, 18 

February 2014. 

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discretion  of  agencies.206 The  Court  first  appeared  to be  sensitive  to  the fact  that,  contrary  to  the 
bodies in Meroni that were governed by private law, ESMA was a ‘European Union entity, created by 
the  EU  legislature’.207  Subsequently,  it  limited  ESMA’s  discretion  rather  than  excluding  it.208  The 
Court  moreover  considered  it  essential  that  the  powers  delegated  to  ESMA by  the  EU  legislature 
were ‘circumscribed by various conditions and criteria which limit ESMA’s discretion’.209 This meant 
that ultimately, ‘ESMA is not vested with ‘a very large measure of discretion’’.210 The Court found, 
therefore,  that  delegation  of  the  intervention  powers  to  the  ESMA  was  accorded  with  the 
stipulations  established  under  Meroni,  in  particular  with  the  demand  for  enhanced  protection  of 
individual rights which it had established in its Romano211 ruling.212  

Interestingly, the Court’s statement that the possibility to delegate intervention powers to ESMA in 
exceptional circumstances did ‘not correspond to any of the situations defined in Articles 290 and 
291 TFEU’, is incorrect as it ignores the fact that in other fields, such as foodstuffs, the EU legislature 
confers similar powers upon the Commission to adopt an act in emergency situations, based on the 
advice of an agency and after consultation with a comitology committee.213  

8.3. Post-ESMA: Meroni 2.0 

The ESMA ruling can therefore be seen as adapting the Meroni doctrine to the 21st century and the 
Lisbon amendments to a constitutional framework of the Treaties: the Court established Meroni 2.0. 
If  delegation  complies  with  the  legal  guarantees  set  by  the  amended Treaties,  the  Court  sees  no 
objections to have delineated but ‘somewhat’ discretionary powers conferred upon EU agencies. Of 
crucial importance hereby is that such delegation takes place in relation to agencies that are set up 
by the EU legislature and not bodies governed by (Belgian) private law, as was the case in Meroni and 
that judicial review of acts of these agencies is guaranteed. 

Whereas Meroni has generally been considered as a ruling that hinders agency operation, ESMA can 
now be viewed as a case that supports further development of agencies. The de facto relaxation of 
the  Meroni  conditions214  is  so  matched  by  an  implied,  but  important,  modification  to  the  exact 
character of the principle of institutional balance. Although the Court does not expressly refer to the 
institutional balance principle in its judgment, it implicitly relies on it when referring to the recent 
Treaty  reforms,  identifying  agencies  as  bodies of  the  Union  whose  acts  will be  subject  to  judicial 
review  proceedings  (Articles  263  and  277  TFEU).215  The  Court  herewith  appears  to  emphasise  an 
interpretation of the institutional balance that stresses the importance of protection for the interests 

206 

Vos, 

E. 
ahead', 
http://www.sieps.se/globalassets/publikationer/2018/sieps-2018_1-web.pdf?. 

'EU  Agencies 

the  move: 

Challenges 

on 

SIEPS, 

2018. 

Retrieved 

from: 

207 Case 270/12, UK v. Council and European Parliament [2014] ECLI:EU:C:2014:18, para 43. 
208 Idem, e.g. paras 45 and 50. 
209 Idem, para 45. 
210 Idem, para 54. 
211 Case 98/80, Guiseppe Romano v. Institut national d’assurance maladie-invalidité [1981] ECR 1259.  
212 See M. Everson and E. Vos, ‘European Agencies: What About the Institutional Balance?’, in A. Łazowski and S. Blockmans, 

Research Handbook on Institutional Law of the EU (Cheltenham: Edward Elgar publishing, 2016), 139–155. 

213 See, for example, Article 53 of Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 
2002  laying  down  the  general  principles  and  requirements  of  food  law,  establishing  the  European  Food  Safety 
Authority and laying down procedures in matters of food safety. OJ 2002, L031/1, (consolidated version). 

214  H.  Marjosola,  ‘Bridging  the  constitutional  gap  in  EU  executive  rulemaking:  the  Court  of  Justice  approves  legislative 
conferral  of  intervention  powers  to  the  European  Securities  and  Markets  Authority’,  European  Constitutional  Law 
Review 10 no. 3 (2014): 500–527. This relaxation is also referred to as ‘Meroni-light’, see M. Chamon, ‘The empowerment 
of agencies under the Meroni doctrine and article 114 TFEU: comment on United Kingdon v. Parliament and Council 
(Short-selling) and the proposed Single Resolution Mechanism’, European Law Review 39, no. 3 (2014): 394. 

215 Case 270/12, UK v. Council and European Parliament [2014] ECLI:EU:C:2014:18, paras 65 and 66.  

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EU Agencies, Common Approach and Parliamentary Scrutiny 

of the individual within the EU. ESMA thus entails an important adaptation of the principle of the 
institutional  balance  to  ‘the  new  realities  of  European  governance’,216  and  gives  agencies  an 
autonomous character whilst at the same time, it attempts to constitutionally demarcate the mode 
of their operation.217  

Hence the Court in ESMA both protects and confines the Meroni doctrine to EU agencies operating 
beyond  the  modes  of  delegation  described  in  Articles  290  and  291  TFEU.  This  new  Meroni  2.0  is 
certainly  to  be  welcomed  in  functional  regulatory  terms.  Yet  the  Court’s  willingness  to  allow  the 
delegation of intervention powers to ESMA and its fresh interpretation of Meroni is at the same time 
problematic. 218 

For the Court quite light-heartedly discusses the nature of the powers that are delegated to ESMA. 
Whilst  considering  that  ESMA’s  powers  were  not  very  discretionary,  the  Court  ignores  that  the 
exercise of the powers delegated may entail important political, economic or social choices to be 
made  by  ESMA.219  However,  such  a  view  based  on  the  non-majoritarian  model  of  independent 
technocratic agencies clearly fails to take into account the value laden nature of many regulatory 
issues. It is illusionary to think that the managerial and scientific tasks conferred upon agencies in 
these  fields  are  merely  technical  and  do  not  embrace  political  issues.  The  need  for  a  ‘political 
administration’  and  the  demand  to  ‘reintroduce  politics  into  the  apolitical  sphere  of  economic 
regulation’ has indeed been recognised in the literature.220  

It is noteworthy that the Court does not take account of the case law of the General Court reviewing 
decisions  by  the  CPVO  and  ECHA.221  In  Schräder,  Mr.  Schräder  challenged  a  rejection  of  his 
application for a Community plant variety right by the CVPO. Here the General Court held that where 
an EU authority is required to make ‘complex assessments, it enjoys a wide measure of discretion, 
the exercise of which is subject to limited review’.222 The General Court confirmed its limited review 
over agency decisions in Rütgers, in which a decision by ECHA to include a substance in the list of 
substances of very high concern was challenged. In relation to the applicant’s plea that ECHA had 
breached the proportionality principle, the Court held that ECHA has broad discretion in a sphere 
which  involves  ‘political,  economic  and  social  choices  on  its  part’  and  in  which  it  is  required  to 
undertake complex assessments.223 In such cases, the General Court views ‘the legality of a measure 
adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard 
to the objective which the legislature is seeking to pursue’.224 These and other cases thus seem to 

216 M. Everson, C. Monda and E. Vos, ‘What is the Future of European Agencies?’, in M. Everson, C. Monda and E. Vos (eds.), 

European Agencies in Between Institutions and Member States (Alphen a/d Rijn: Wolters Kluwer, 2014), p. 235. 

217E. 

Vos, 

'EU 

Agencies 

on 

the  move: 

Challenges 

ahead', 

SIEPS, 

2018. 

Retrieved 

from: 

http://www.sieps.se/globalassets/publikationer/2018/sieps-2018_1-web.pdf?. 

218 

Vos, 

E. 
ahead', 
http://www.sieps.se/globalassets/publikationer/2018/sieps-2018_1-web.pdf?. 

'EU  Agencies 

the  move: 

Challenges 

on 

SIEPS, 

2018. 

Retrieved 

from: 

219 See P. Schammo, ‘The European Securities and markets Authority: Lifting the Veil on the Allocation of Powers’, (2011), 

48 CMLR, 1879-1887. 

220 M. Everson, ‘Good Governance and European Agencies: The Balance’, in D. Geradin, N. Petit & R. Munoz (eds.) Regulation 
through Agencies in the EU: A New Paradigm for European Governance, (Cheltenham, Edward Elgar, 2005), 156. 
221 See M. Chamon, ‘The empowerment of agencies under the Meroni doctrine and article 114 TFEU: comment on United 
Kingdon  v.  Parliament  and  Council  (Short-selling)  and  the  proposed  Single  Resolution  Mechanism’,  European  Law 
Review 39, no. 3 (2014), p. 395–396. 

222 Case T-187/06, Schräder v CPVO [2008] ECLI:EU:T:2008:511, para 59.  
223 Case T-96/10, Rütgers Germany GmbH v. ECHA [2013], ECLI:EU:T:2013:109, para 134 confirmed by the CJEU in C-290/13 P. 

Case ECLI:EU:C:2014:2174 

224 Idem. 

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already  sanction  the  transfer  of  discretionary  powers  to  agencies.225  In  Schräder  and  Rütgers  the 
Court  recognises  that  the  tasks  conferred  upon  these  agencies  are  beyond  a  mere  technical 
assessment and may involve political, economic or social choices.  

Here, two issues deserve particular attention. First, it seems difficult to reconcile the Court’s limitation 
of  agency  powers  and  formal  insistence  on  clearly  delineated  powers  in  ESMA  with  this  kind  of 
reasoning  of  the  General  Court,  should  it  be  transposed  to  possible  future  challenges  of  ESMA 
decisions. Second, the formal recognition of agencies as entities that may balance various interests 
and that only limited judicial control will be carried out in relation to their exercise of these powers, 
raises concerns about the adequacy of the current accountability mechanisms.226 

Therefore,  it  may  ultimately  be  crucial  to  consider  that  EU  agencies,  being  part  of  the  EU’s 
institutional framework as set forth in Article 13 (1) TEU, that operate in the EU setting and granted 
with  a  particular  function,  may  fall  under  the  scope  of  application  of  the  fundamental  principles 
governing the existence and exercise the power laid down in Article 13(2) TEU.227 

225 Case T-187/06 was upheld by the Court in C-38/09, [2010] ECLI:EU:C:2010:196. See also C-281/10 P, PepsiCo v. Grupo 
Promer Mon Graphic SA [2011] ECLI:EU:C:2011:679, where the Court admitted that ‘the General Court may afford OHIM 
some latitude, in particular where OHIM is called upon to perform highly technical assessments, and restrict itself, in 
terms of the scope of its review of the Board of Appeal’s decisions in industrial design matters, to an examination of 
manifest  errors  of  assessment’  (para  67).  This  wording  was  repeated  in  Joined  cases  C-101,  102/11  P  Neuman and 
Galdeano  v.  José  Manuel  Baena  Grupo  SA  [2012]  ECLI:EU:C:2012:641  (para  41).  In  case  C-534/10  P,  Brookfield  New 
Zealand v CVPO and Schniga GmbH [2012] ECLI:EU:C:2012:813, the Court emphasised the broad discretion of the CVPO 
in the carrying out of its functions (para 50). In case T-145/08 Atlas Transport v [2011] ECLI:EU:T:2011:213, the General 
Court viewed that the discretion of the Board of Appeal to suspend proceedings or not to, is a broad discretion and 
confirmed  that  in  such  cases  of  broad  discretion  the  Court  carries  out  only  a  limited  review  (paras  69–70).  See 
Hoffmann, footnote 51  in H.C.H. Hofmann, ‘European regulatory Union? The role of agencies and standards’, in: P. 
Koutrakos and J. Snell (eds.), Research handbook on the EU’s internal market, ( Cheltenham: Edward Elgar publishing), 
2017, 460-479. 

226E. 

Vos, 

'EU 

Agencies 

on 

the  move: 

Challenges 

ahead', 

SIEPS, 

2018. 

Retrieved 

from: 

http://www.sieps.se/globalassets/publikationer/2018/sieps-2018_1-web.pdf?. 

227 C. Hillion (2018), Conferral, Cooperation and Balance in the Institutional Framework of EU External Action. In: Cremona 

M. (Ed.) Structural Principles in EU External Relations Law. Oxford: Hart Publishing. 117-174; p. 173. 

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EU Agencies, Common Approach and Parliamentary Scrutiny 

9. Relationship with EU institutions and Member States 

9.1. EU  agencies  in-between  EU  institutions  and  Member 
States 

During the 1990s and early 2000s, agencies were considered to boost the EU’s legitimacy by means 
of the expertise that agencies embraced, as well as the way in which such expertise was rendered: it 
was  more  visible  and  open  to  public  participation,  particularly  by  comparison  to  the  opaque 
(scientific) committee system, whilst agencies’ expertise would be independent from political and 
industry  interference.  The  appeal  of  agencies  lies  precisely  in  the  fact  that  agencies  can  perform 
technical  tasks  independently  of  the  EU  institutions.  EU  agencies  therefore  needed  to  be 
independent, at ‘arm’s length’ of the European Commission and other institutions. For the European 
Commission, the independence of the technical and/or scientific assessments of agencies was ‘in 
fact, their real raison d’être’.228 It viewed that their main advantage was that they would act on purely 
technical  evaluations  of  very  high  quality  and  were  not  influenced  by  political  or  contingent 
considerations. 229 

In principle, therefore, a combination of technical regulatory efficacy and political independence, 
ensured by means of institutional-legal accountability has acted as a legitimising power for these 
agencies. Unsurprisingly agencies were in these times hailed as a solution to the many problems the 
EU was facing. 

However,  as  Madalina  Busuioc  and  Martijn  Groenleer  point  out,  today,  the  mushrooming  of  EU 
agencies − with 36 agencies currently in operation−, led them to often be perceived as a problem 
instead of solutions, subject to improvement themselves.230 Their non-majoritarian character, and 
perceived 
independence  have  given  rise  to  growing  anxiety  about  agencies  becoming 
‘uncontrollable centres of arbitrary power’.231  

EU agencies have therefore, unlike their more independent American counterparts, and seemingly 
contradictorily,  been  expressly  designed  to  be  dependent  on  various  institutions,  mainly  the 
European  Commission,  and  to  act  as  part  of  networks  relying  heavily  on  their  national 
counterparts.232 This shows the delicate nature of the relationship of EU agencies with EU institutions 
and the Member States. As indicated above233 agencies’ hybrid character is clearly expressed in their 
organisational  structure  as  well  as  in  their  multiple  tasks.  The  proliferation  of  agencies  in  the  EU 
landscape  reveals  therefore  the  need  for  mechanisms  to  keep  agencies  under  control  and  make 

228 Communication from the Commission, ‘The Operating Framework for the European Regulatory Agencies’, COM (2002) 

718, 11 December 2002, at 5. 

229 Communication from the Commission, ‘The Operating Framework for the European Regulatory Agencies’, COM (2002) 

718, 11 December 2002, at 5. 

230  M.  Busuioc  and  M.  Groenleer,  ‘The  Theory  and  Practice  of  EU  Agency  Autonomy  and  Accountability:  Early  Day 
Expectations, Today’s Realities and Future Perspectives’, in M. Everson, C. Monda and E. Vos (eds.), European Agencies 
in Between Institutions and Member States (Alphen a/d Rijn: Wolters Kluwer, 2014), p. 175. 

231  Referring  to  M.  Everson,  ‘Agencies:  The  ‘Dark  Hour’  of  the  Executive?,  in  H.C.H.  Hofmann  &  A.  Türk  (eds.),  Legal 
Challenges in EU Administrative Law. Towards an Integrated Administration, (Cheltenham: Edward Elgar, 2009), 
p.190. 

232  See  D.  Geradin,  ‘The  Development  of  European  Regulatory  Agencies:  Lessons  from  the  American  Experience’,  in  D. 
Geradin,  N.  Petit  &  R.  Munoz  (eds.)  Regulation  through  Agencies  in  the  EU:  A  New  Paradigm  for  European 
Governance (Cheltenham, Edward Elgar, 2005), 215–245. 

233 Section 2.3. 

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them  accountable.234  The  relation  of  EU  agencies  with  the  EU  institutions  and  Member  States  is 
therefore one of independence and control.  

9.2. Independence as a relative concept 

Madalina  Busuioc  and  Jeroen  Groenleer  have  suggested  to  use  the  term  autonomy  instead  of 
independence, in view of agencies’ link with the EU institutions and need for control.235 The use of 
the term autonomy is indeed very appropriate as it allows for a subtle assessment of the agencies’ 
position vis-à-vis other parties and their accountability. Yet, the notion of independence is also used 
to  indicate  impartiality  and  is  referred  to  in  the  legal  language  of  the  Treaties,  the  founding 
regulations and the case law of the Court of Justice.236 It is therefore appropriate to speak both in 
terms of independence and autonomy.237 

Independence  is  not  generally  defined  in  EU  law.  The  EU  treaties  both  refer  to  independence  in 
relation  to  the  functioning  of  various  institutions  and  Member  States.238  Importantly,  the  Lisbon 
Treaty has introduced the notion of independence in relation to the EU administration. Article 298 
TFEU stipulates that in the carrying out of their missions, the institutions, bodies, offices and agencies 
of the Union shall have the support of an open, efficient and independent European administration. 
Independence can therefore be viewed as one of the key principles of good administration as laid 
down  in  the  Charter  on  Fundamental  Rights.239  The  concept  of  independence  is  refined  in  the 
various  codes  of  the  institutions.  Most  prominently  it  features  in  the  European  Code  of  Good 
Administrative Behaviour that was developed by the European Ombudsman and formally endorsed 
by the European Parliament in September 2001.240 The Code stipulates that an EU official ‘shall be 
impartial  and independent.  The official  shall  abstain  from  any  arbitrary  action  adversely  affecting 
members of the public, as well as from any preferential treatment on any grounds whatsoever’. It 
moreover  defines  that  ‘the  conduct  of  the  official  shall  never  be  guided  by  personal,  family,  or 

234 See already Commission, ‘European Governance: A White Paper’, COM (2001) 428 final, 25 July 2001, at 24. 
235  M.  Busuioc  and  M.  Groenleer,  ‘The  Theory  and  Practice  of  EU  Agency  Autonomy  and  Accountability:  Early  Day 
Expectations, Today’s Realities and Future Perspectives’, in M. Everson, C. Monda and E. Vos (eds.), European Agencies 
in Between Institutions and Member States (Alphen a/d Rijn: Wolters Kluwer, 2014). 

236  The  European  Parliament’s  proposed  Law  of  EU  Administrative  Procedure  of  2013  placed  independence  under  the 
umbrella  of  the  principle  of  impartiality.  It  stipulated  that  ‘the  Union’s  administration  shall  be  impartial  and 
independent.  It  shall  abstain  from  any  arbitrary  action  adversely  affecting  persons,  and  from  any  preferential 
treatment on any grounds. The Union’s administration shall always act in the Union’s interest and for the public good. 
No action shall be guided by any personal (including financial), family or national interest or by political pressure. The 
Union’s  administration  shall  guarantee  a  fair  balance  between  different  types  of  citizens’  interests  (business, 
consumers and other)’. See European Parliament Resolution of 15 January 2013, P7_TA-PROV (2013)0004). After the 
Commission had questioned in 2016 the added value of the proposed act, the European Parliament proposed in 2016 
a  new  initiative,  namely  a  Regulation  of  the  European  Parliament  and  of  the  Council for  an  open,  efficient  and 
independent European Union administration. In this proposal it does not further specify independence but instead 
speaks  about  conflicts  of  interest  and  the  duty  of  the  Union  Institution  or  agency  to  carefully  and  impartially 
investigate a case. See European Parliament resolution of 9 June 2016 for an open, efficient and independent European 
Union administration (2016/2610(RSP)). 

237 E. Vos, ‘EU agencies and Independence’, in: D. Ritleng (ed.), Independence and legitimacy in the institutional system of the 

EU (Oxford: Oxford University Press, 2016), pp. 206–228. 

238 Article 17(3) TEU, for example, stipulates that the members of the Commission shall neither seek nor take instructions 
from  any  government  or  other  institution,  body,  office,  or  entity  and  that  they  shall  refrain  from  any  actions 
incompatible with their duties or the performance of their tasks. Similar wording is used in the treaties for the members 
of the Court, Advocates-General, and the European Central Bank. For the European Central Bank, the Treaty adds the 
requirement  for  EU  institutions  and  agencies  and  the  Member  States’  governments  to  respect  this  principle  and 
proscribes attempts to influence the members of the decision-making bodies of the European Central Bank or the 
national central banks in the performance of their tasks, see Art. 130 TFEU. 

239 Art. 41 of the Charter. 
240 European Parliament Resolution of 6 September 2001, OJ 2002 C 72 E/331. 

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national interest or by political pressure. The official shall not take part in a decision in which he or 
she,  or  any  close  member  of  his  or  her  family,  has  a  financial  interest’.241  The  European 
Commission242 and the Council243 however have their own Codes of Good Administrative Behaviour 
that are less elaborate on this point.244  

In the literature, independence has been argued to generally refer to independence from political 
influence and industry or market interests. In the EU context, the reference to independence from 
national interests is often explicitly added.245 Independence is currently not a general concept or 
principle  and  very  much  depends  on  the  specific  wording  of  the  relevant  legislation.246 
Independence can therefore be argued to be a relative concept as it is necessary to specify in relation 
to whom or what and at what level such independence must exist.247  

The literature commonly distinguishes between formal, de iure or legal independence, related to the 
independence that an organisation has according to the law, and informal or de facto independence, 
related  to  the  independence  that  an  organisation  has  according  to  practice.248  In  relation  to  the 
European  Central  Bank,  some  have  further  divided  formal  independence  into  personal  and 
organisational independence, the former referring to the organisation of the personal independence 
of bankers vis-à-vis political leaders and the latter referring to the operational independence of the 
banks vis-à-vis governments.249 Others have divided formal independence into institutional, staffing, 
financial, and functional independence.250 This analysis will adhere to the latter distinction as it gives, 
in  my  view,  a  better  understanding  of,  and  insight  into,  the  most  relevant  issues  with  regard  to 
agencies and highlights their complexities.  

9.3. EU Agencies under Control 

Analysis of the formal, de iure independence of EU agencies in relation to their institutional design, 
staffing,  finances  and  functions  discloses  a  diffused  picture:  agencies’  independence  very  much 
depends on the specific context in which they operate and legal requirements placed on agencies.251 

241 Art. 8 of the Code of Good Administrative Behaviour. The European Parliament asked the Ombudsman to apply this 

code in cases of alleged maladministration. 

242 As adopted on 13 September 2000, see Commission, ‘Code of Good Administrative Behaviour: Relations with the Public’, 

available at <http://ec.europa.eu/transparency/code/_docs/code_en.pdf>. 

243 Council Decision of 25 June 2001, OJ 2001 C 189/1. 
244 The Commission’s Code does not include family interest whilst the Council’s Code is much more vague and does not 
refer to independence as such. It merely states that ‘members of staff shall in all circumstances act in the interests of 
the  European  Union  and  of  the  Council  and  shall  not  allow  themselves  to  be  influenced  by  personal  or  national 
considerations nor by political pressure or express personal legal opinions’. 

245 Geradin and Petit, The Development of Agencies at EU and National Levels: Conceptual Analysis and Proposals for Reform, 

Jean Monnet Working Paper 01/04 (2004), at 49–50. 

246  See  A.T.  Ottow  &  S.A.C.M.  Lavrijssen,  ‘Independent  Supervisory  Authorities:  A  Fragile  Concept’,  Legal  Issues  of 
Economic  Integration  39,  no.  4  (2012):  419–446,  with  reference  to  the  Court’s  case  law  on  independence  of  data 
protection supervisors. 

247 Opinion AG Mazák in Case C-518/07, European Commission v. Germany [2010] ECLI:EU:C:2010:125, at para. 16. 
248 C. Hanretty, P. Larouche and A. Reindle, Independence, Accountability and Perceived Quality of Regulators: A CERRE Study 
at 

(2012), 
<http://www.cerre.eu/sites/cerre/files/120306_IndependenceAccountabilityPerceivedQualityofNRAs.pdf> at 23. 
249 P. Magnette, ‘Towards “Accountable Independence”? Parliamentary Controls of the European Central Bank and the Rise 

available 

of a New Democratic Model’, European Law Journal 6 (2000): 326. 

250  See  A.T.  Ottow  &  S.A.C.M.  Lavrijssen,  ‘Independent  Supervisory  Authorities:  A  Fragile  Concept’,  Legal  Issues  of 
Economic Integration 39, no. 4 (2012): 419–446; Makhasvili and Stephenson, ‘Differentiating Agency Independence: 
Perceptions from Inside the European Medicines Agency’, Journal of Contemporary European Research 9 (2013): 4. 
251 See for a detailed study: E. Vos, ‘EU agencies and Independence’, in: D. Ritleng (ed.), Independence and legitimacy in the 

institutional system of the EU (Oxford: Oxford University Press, 2016), pp. 206–228. 

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Hence, often the institutional design of agencies and the legal requirements imposed upon them 
demand that agencies’ principals, namely the Parliament, Council, Commission, and Member States 
are  included  and  form  an  integral  part  of  the  agencies.  The  membership  of  Member  States’ 
Management Boards can be considered as an expression of a ‘Member State-oriented’ institutional 
balance of powers principle, having due regard for the powers of both the EU institutions and the 
Member States.252 Fundamentally, having all Member States represented on agency boards is in line 
with the conceptual understanding of the EU executive as an integrated administration and is an 
expression of the composite253 or shared character of the EU executive. 

The  design  of  agencies  includes  hence  an  intriguing  mix  of  control  (ex  ante  and  ongoing)  and 
accountability (ex post).254 Ex-ante control is determined by the legal boundaries set in the founding 
regulations of agencies, as already indicated above, such as the scope of action, powers, finances 
and the determination and position of the agencies’ principals as well as the general principles that 
apply to or are declared applicable to agencies. Most prominently involved in the ex-ante control 
are therefore the European Parliament and the Council as legislators. Ongoing control refers to the 
direct control by the principals in order to steer or influence the actions of the agencies. In this way, 
the autonomy of agencies is reduced and made more dependent of the controlling principals.255  

Examples  hereof  are  the  European  Parliament’s  initiatives  to  link  up  a  Member  of  European 
Parliament  to  a  European  agency  to  be  able  to  follow  this  agency  better,256  the  Parliament’s 
appointment of a representative or a designate as a member of the agency’s Management Board, 
the  position  of  Member  States  as  representatives  in  the  Management  Board  or  as  competent 
authorities in other advisory organs of the agencies and more powerful, the above discussed alert or 
warning mechanism given to the Commission for actions of agencies’ Management Boards. It is most 
evident  in  the  exercise  of  their  external  relations  where  some  agencies  are  obliged  to  ask  for 
approval from the Council or Commission prior to the conclusion of international cooperation acts 
(e.g., Europol and EASA) or consult with the Commission (e.g., Frontex). 257 Looking at the agencies’ 
autonomy  to  adopt  specific  acts  is  particularly  relevant  for  the  assessment  of  whether  in  the 
exercise of their external relation tasks agencies have been delegated decision-making powers and 

252 See for an elaboration of this concept, E. Vos, Institutional Frameworks of Community Health and Safety Regulation, 

Committees, Agencies and Private Bodies (Oxford: Hart Publishing, 1999), Chapter 2.5. 

253  See  L. Besselink,  A Composite European Constitution,  Groningen,  Europa  Law  Publishing,  2007  and  G.  Della Cananea, 

L’Unione Europea. Un ordinamento composito, Bari-Roma, 2003. 

254 Hereby control is to be understood broadly including accountability. See E. Vos, ‘Independence, Accountability and 
Transparency  of  European  Regulatory  Agencies’,  in  D.  Geradin,  N.  Petit  &  R.  Munoz  (eds.)  Regulation  through 
Agencies  in  the  EU:  A  New  Paradigm  for  European  Governance  (Cheltenham: Edward Elgar, 2005), 120–137. 
Control in this context denotes a situation where a principal has power over the delegate and covers a wide range of 
instruments employed by the principal to direct, steer and influence behaviour and decision making of the agent or 
delegate. See  Busuioc with reference to P.G. Rubecksen, K. Verhoest & M. MacCarthaigh, ‘Autonomy and Regulation 
of States Agencies: Reinforcement, Indifference or Compensation?’, Public Organization Review 8, no. 2 (2008): 155–
174 

255 M. Busuioc, The Accountability of European Agencies. Legal Provisions and Ongoing Practices, (Delft: Eburon, 

2010), at 35–37. 

256 See F. Jacobs, ‘EU agencies and the European Parliament’, in: in M. Everson, C. Monda and E. Vos (eds.), European Agencies 

in Between Institutions and Member States (Alphen a/d Rijn: Wolters Kluwer, 2014), 201–228. 

257 A. Ott, E. Vos and F. Coman Kund, ‘European Agencies on the Global Scene: EU and International Law Perspectives’, in 
M. Everson, C. Monda and E. Vos (eds.), European Agencies in Between Institutions and Member States (Alphen a/d Rijn: 
Wolters Kluwer, 2014), 87–122. 

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whether  this  upsets  the  institutional  balance  of  powers.258  In  how  far  the  Council  and  the 
Commission really make use of these powers in practice is still a matter for research.259 

Ex-post  control  describes  accountability  that  carries  out  a  retrospective  process  of  information, 
discussion  and  evaluation  of  agencies’  actions.  It  expressly  precludes  direct  intervention  and 
herewith  ongoing  control.  We  observe  five  types  of  accountability:  managerial  accountability 
whereby  in  particular  the  supervisory  roles  that  Management  Boards  play  is  key;  political 
accountability  that  refers  to  the  role  of  the  European  Parliament  and  the  Council;  administrative 
accountability, whereby the European Ombudsman plays an important role in supervising general 
rules on transparency and access to documents;260 financial accountability which concerns the role 
of  the  Commission’s  financial  controller,  the  Council  and  the  European  Parliament  as  budgetary 
authorities, the latter of which is also responsible for the annual budgetary discharge and the Court 
of Auditors; and judicial accountability, that regards the possibility at last foreseen in Article 263 TFEU 
to challenge agency acts that have legal effect vis-à-vis third parties before the General Court.  

The intricate relationship between agencies and institutions is particularly evident in the so-called 
‘alert  or  warning  mechanism’  laid  down  in  the  Common  Approach,  mentioned  above.261  This 
mechanism can be triggered by the Commission in relation to decisions by Management Boards of 
agencies. It would severely encroach upon the independent decision-making by these boards and 
increase  control  and  accountability  by  the  EU  institutions.  This  mechanism  is  likely  to  be 
incompatible with the particular independence requirements placed on the various organs of the 
supervisory authorities EBA, ESMA and EIOPA. It is not clear whether this mechanism has ever been 
used in practice.  

The same intricacy can be observed in relation to the financial independence of agencies. Whilst all 
agencies have their own budget, they all, with the exception of the EUIPO and CVPO, are to a great 
or lesser extent dependent on subsidies from the EU. Agencies such as the EMA that operate in the 
realm of public interest, often have an explicit provision in their founding regulations to ensure that 
they at least partly depend on the EU subsidy, designed to loosen their ties with industry and avoid 
capture by industry. This dependence allows for all sorts of controls, of which most importantly is 
the awarding of the EU subsidy and budgetary discharge by the Parliament. As set forth below, the 
European Parliament does not shy away from using the discharge procedure, not only to control 
cases  of  mismanagement in  the  budgets  of  the  agencies  but  also  to  control  the  functioning  and 
governance  of  agencies,  most  notably  in  relation  to  their  transparency  and  conflicts  of  interests. 
Problematic however is the control over fully self-financed agencies such as EUIPO. Below we will 
discuss  in  more  detail  the  particular  powers  of  scrutiny  of  the  European  Parliament.  Further,  the 
Court of Auditors’ control on the agencies’ budgets is broader than purely financial control alone.262 
These mechanisms are hence used as instruments of control.  

This analysis corroborates that the legal concept of independence is not absolute but relative and 
that  there  are  various  degrees  of  independence,  just  as  we  can  speak  in  terms  of  degrees  of 
autonomy. In terms of institutional design, finances and operational activities agencies have been 

258A. Ott, E. Vos and F. Coman Kund, ‘European Agencies on the Global Scene: EU and International Law Perspectives’, in 
M. Everson, C. Monda and E. Vos (eds.), European Agencies in Between Institutions and Member States (Alphen a/d Rijn: 
Wolters Kluwer, 2014), 87–122. 

259  See  F.  Coman  Kund  The international dimension of  the EU agencies Charting a legal-institutional ‘twilight zone’,  TARN 

Working paper 5/2017. 

260 Special report from the European Ombudsman to the European Parliament following the own initiative inquiry into 
public access to documents, OJ 1998 C44/9. The Lisbon Treaty has formalised this type of control, now laid down in 
Art. 288 TFEU. 

261 Section 3. 
262 In 2012 it dedicated for example a special report to its investigation of the management of conflicts of interests in four 

agencies: the EFSA, EMA, ECHA, and EASA. Special Report no. 15/2012. 

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intricately connected to their principals. EU agencies are often not merely operating at ‘arm’s-length’ 
from the Commission, Parliament or the Member States but the latter are frequently involved in the 
institutional design and operation of agencies: EU agencies are ‘in-betweeners’.263 This would require 
rethinking control and accountability mechanisms on agencies and underlines the need to develop 
a set of general principles that govern EU agencies, whilst taking into account their heterogeneity.264 

9.4. Independence from political and national influence 

The foregoing analysis highlights that agency independence from political and national influence is 
an extremely sensitive issue. This issue is particularly pertinent in relation to the supervisory agencies 
in  the  financial  sector.  In  these  agencies,  members  of  the  supervisory  boards  and  Management 
Boards  are  not  representatives  of  Member  States  but  heads  and  representatives  of  the  national 
authorities competent regarding the supervision of credit institutions. Legal provisions therefore put 
strong focus on the independence of members of their Boards of Supervisors, Management Boards, 
Chairperson and Executive Directors.265 They stipulate clear requirements of acting ‘independently 
and  objectively  in  the  sole  interest  of  the  Union  as  a  whole  and  shall  neither  seek  nor  take 
instructions from the Union institutions or bodies, from any government of a Member State or from 
any other public or private body’.266  

As such, therefore, the Common Approach on EU agencies is not suitable for these agencies. The 
strong focus on independence of the organs of these agencies must be understood in light of the 
supervisory tasks of these agencies, and the particular position of their counterparts in the national 
settings that are independent from other government structures. Yet, at the same time, (national) 
supervisory authorities too are not completely independent of the political arena. In particular, the 
dédoublement fonctionnel of the board members serving two masters indicates that independence 
is in practice a very fragile concept and underscores the relativity of the concept of independence.267  

This  underlines  the  inadequacy  of  the  current  accountability mechanisms of these  agencies.  This 
would  require  to  rethink  control  and  accountability  mechanisms  on  agencies  and  underlines  the 
need to develop a set of general principles that govern EU agencies, whilst taking into account their 
heterogeneity.268  

263  Everson,  M.  &  Vos,  E.,  ‘European  Agencies:  What  About  the  Institutional  Balance?’,  in  A.  Łazowski  and  S. 
Blockmans, Research Handbook on Institutional Law of the EU (Cheltenham: Edward Elgar publishing, 2016), 
139–155.  

264 See TARN policy brief, no. 1. 
265 See Arts 42 (Board of Supervisors), 46 (Management Board), 49 (chairperson) and 52 (director) of the funding regulations 
of  the  supervisory  authorities  (Regulation  1093/2010,  Regulation  1094/2010,  Regulation  1095/2010).  An 
independence requirement is also laid down in EFSA’s founding regulation (article 37). 

266  See  Arts  42  (Board  of  Supervisors),  46  (Management  Board),  49  (Chairperson),  and  52  (Director)  of  the  Founding 
Regulations of the Supervisory Authorities (Regulation 1093/2010 of the European Parliament and of the Council, EBA, 
OJ 2010 L 331/12; Regulation 1094/2010 of the European Parliament and of the Council, EIOPA, OJ 2010 L 331/48; and 
Regulation 1095/2010 of the European Parliament and of the Council, ESMA, OJ 2010 L 331/84).  

267 A.T. Ottow & S.A.C.M. Lavrijssen, ‘Independent Supervisory Authorities: A Fragile Concept’, Legal Issues of Economic 

Integration 39, no. 4 (2012): 419–446. 

268 See TARN policy brief, no. 1. 

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10. Relationship with stakeholders 

10.1. Legal obligation to connect 

The majority of EU decentralised agencies is required to establish and maintain contact with relevant 
stakeholders,269 both at Union and national level. This is in line with the Common Approach, which 
requires that stakeholder relations should be in accordance with the agency’s mandate, its tasks in 
international relations, the EU’s policies and priorities and the Commission’s actions.270  The Common 
Approach  stipulate  that  when  stakeholders  are  not  part  of  the  Management  Board,  they  should 
participate in other internal bodies and/or advisory or working groups, ‘if appropriate’.271 In the legal 
practice two formats of stakeholder participation can indeed be observed. First, some founding acts 
require that stakeholders be represented in the agency’s Management Board. This applies to seven 
out of the 36 founding acts. These stakeholders are then designated by the Council (EMA, EU-OSHA, 
Cedefop, Eurofound), by the Commission (ERA, EMSA) or by the European Parliament (ECHA). 

Second,  twenty  agencies  are  required  to  establish  additional  boards,  groups  or  networks  to 
cooperate  with  stakeholders.  In  some  agencies,  these  boards  have  regular  meetings  and  clearly 
defined  advisory  functions.  The  founding  act  of  ECHA  provides  for  an  accreditation  system  of 
stakeholders who may inter alia join meetings as observers. Various agencies have specific groups or 
fora to involve stakeholders. In some cases, these are created by the founding regulation (EBA, ESMA, 
EIOPA),  whereas  others  are  created  by  the  agency  itself  (EFSA,  EASA).  Finally,  ERA  is  required  to 
establish  a  network  of  representative  bodies.  Besides  these  institutionalised  forms of  stakeholder 
involvement, some agencies are merely required to take into account the views of stakeholders on 
evaluation reports.272 In the case of EMA, stakeholders are, exceptionally, represented not only in the 
Management Board but also in a scientific committee within the agency. 

For most agencies, these requirements are alternative: they either have to include stakeholders in 
the Management Board or involve them in another form. Yet, there are also some agencies to which 
both mechanisms apply.273 In ten cases, there is no legal obligation at all to establish contacts with 
stakeholders.274  

Whilst  the  manner  by  which  stakeholders  are  involved  in  the  activities  of  agencies  surely  needs 
flexibility in view of the heterogeneity of the mandates of the agencies, it is suggested to streamline 
the various models of stakeholder participation for agencies that have similar mandates.  

10.2. Independence from commercially driven interests 

An issue that is less controversial than independence from political and national interests discussed 
above  (section  9),  but  no  less  difficult  to  achieve  is  the  issue  of  agency  independence  from 
commercially driven interests. Literature and practice agree that EU agencies should be independent 
of the market parties so as to avoid capture.275 Particular reference is made to the membership of 
the technical and scientific organs of agencies that are to adopt the opinions of agencies on technical 
or scientific matters as well as the staff of EU agencies. Yet, market independence in relation to EU 

269 For the purpose of this study and in line with the founding regulations of EU agencies, stakeholders are considered as 

representatives of organisations or interest groups.  

270 Common Approach, para 65. 
271 Common Approach, para 65. 
272 BEREC, EASA. 
273 ECHA, EMA, ERA, EU-OSHA, Europol, FRONTEX.  
274 ACER, APPF, CdT, CEPOL, CPVO, EDPB, EPPO, Eurofound, GSA, SRB. 
275 Ibid. 

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agencies appears to be particularly troublesome to achieve. It is evident in practice where scientists 
of good repute who could serve on staff committees of agencies often are or have been involved in 
industry or national affairs.276  

Various  practices  of  ‘revolving  doors’  and  cases  of  conflict  of  interest  of  members  on  EFSA’s 
Management Board were rigorously condemned by the European Ombudsman277 and the European 
Parliament. The latter refused to give a budgetary discharge to agencies like EMA and EFSA in view 
of problems of independence of their experts and staff.278 This kind of independence is not explicitly 
mentioned in the Codes of Conduct or the Principle of Impartiality as proposed by the Parliament.279 
The Common Approach on European agencies views that ‘the independence of the scientific experts 
should  be  fully  ensured,  inter  alia  by  promoting  the  highest  standards,  setting  sound  selection 
criteria and promoting best practices’.280  

Staff  members  of  agencies  are  moreover  bound  by  the  Staff  regulations  of  the  EU  civil  servants 
regarding  conflicts  of  interest.  This  means  for  example  that  staff  members  of  the  agencies  must 
declare  any  personal  interest  that  might  impair  their  independence  and  that  they  must  seek 
approval for engaging in external activities. In addition, they continue to be bound by the duties of 
integrity and discretion after leaving office with respect to acceptance of certain jobs or benefits and 
must notify any employment entered into two years after leaving the service.281  

Yet, in practice agencies appear not to implement these provisions strictly. The European Court of 
Auditors held so in 2012 that the four agencies it investigated (i.e. EFSA, EMA, ECHA and EASA) did 
not adequately manage the conflict of interest situations, whereby it remarked that EFSA and EMA 
had developed the most advanced policies and procedures for managing these conflicts and that 
EASA did not have any.282 As there is no general EU framework on conflicts of interest, the Court 
suggested  the  EU  legislator  to  reflect  on  developing  such  a  framework.  The  Common  Approach 
recognises the need to develop a coherent policy on preventing and managing conflict of interests 
concerning agencies’ Executive Director and the members of the Management Boards (whether or 
not they sit in personal capacity) and scientific committees. The Commission published ‘Guidelines 

276  See  in  more  detail:  E.  Vos,  ‘EU  agencies  and  Independence’,  in:  D.  Ritleng  (ed.),  Independence  and  legitimacy  in  the 

institutional system of the EU (Oxford: Oxford University Press, 2016), pp. 206–228. 

277  In  a  specific  case  of  a  head  of  unit  leaving  EFSA  to  take  on  a  position  in  a  biotechnology  company,  the  European 
Ombudsman  reproached  EFSA  as  it  had  failed  to  fulfil  the  procedural  obligations  emanating  from  these  rules. 
Moreover,  he  ruled  that  EFSA’s  failure  to  carry  out  as  thorough  an  assessment  of  the  alleged  potential  conflict  of 
interest  of  its  former  staff  member  as  it  could  and  ought  to  have  carried  out,  constituted  maladministration.  He 
recommended  that  EFSA  should  strengthen  its  rules  and  procedures  with  regard  to  negotiations  by  serving  staff 
members concerning future jobs of the ‘revolving doors’ type. European Ombudsman, Case 0775/2010/ANA, Draft 
recommendation on 07 Dec 2011 - Decision on 23 May 2013. 

278  See  Report  on  discharge  in  respect  of  the  implementation  of  the  budget  of  the  European  Union  Agencies  for  the 
financial year 2010: performance, financial management and control of European Union Agencies, 2011/2232(DEC), 
Committee on Budgetary ControlA7-0103/2012. 

279  The  EP  has 

repeatedly 

to  make  a  proposal 
(2012/2024(INL), 2016/2610(RSP), 2017/2011(INI)). According to the European Parliament, the Commission was not in 
favour of proposing such a law. At the moment, the Commission has however undertaken no further action on this. 

the  Commission 

resolutions 

in  order 

to  ask 

issued 

Source: http://www.europarl.europa.eu/legislative-train/theme-union-of-democratic-change/file-eu-administrative-

procedure 

280 Common Approach, para 20.  
281 See Articles 11a, 12b, 13 and 16 of the Staff regulations.  
282 The EASA came out worst in the score report, but significant shortcomings were identified at EMA and EFSA as well. See 
Court  of  Auditors,  in  its  report  on  management  of  conflicts  of  interest  in  selected  EU  agencies,  Special  report  no. 
15/2012. 

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EU Agencies, Common Approach and Parliamentary Scrutiny 

on  the  prevention  and  management  of  conflicts  of  interest  in  EU  decentralised  agencies’  in 
December 2013.283  

It is therefore vital to have a framework on how to deal with conflicts of interest for agencies with 
similar  mandates.  Yet  hereby  attention must  be  paid  to  the  various  types of agencies  taking into 
account the various policy areas. Here it is important to acknowledge that a ‘one-size-fits all’ model 
seems difficult, if not undesirable, to achieve. 

283  European  Commission,  Guidelines  on  the  prevention  and  management  of  conflicts  of  interest  in  Eu  decentralised 
from:  https://europa.eu/european-union/sites/europaeu/files/docs/body/2013-12-

agencies,  2013.  Retrieved 
10_guidelines_on_conflict_of_interests_en.pdf 

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11. Parliamentary Scrutiny 

In  section  9,  the  relationship of  agencies  with  the  EU institutions was  examined.  This  section will 
investigate the parliamentary scrutiny in more detail. As set forth above, parliamentary control over 
EU  agencies  takes  place  in  various  forms,  both  formally,  by  means  of  budgetary  discharge, 
involvement  in  the  appointment  of  the  Executive  Director,  annual  reports,  and  membership  of 
Management Boards as well as informally through the linking up of an MEP to an agency. To outline 
the overall landscape of parliamentary scrutiny of agencies, it is necessary to examine all founding 
regulations in the light of the aims set out in the Common Approach. Only elven of these founding 
regulations are based on founding regulations adopted after the Common Approach, some of them 
being recasts of previously existing agencies.284 A further ten founding acts were at least amended 
post July 2012.285 The main categories analysed are the composition of the Management Board, the 
procedure for appointment of the Executive Director, the information of the institutions of the multi-
annual  and  annual  work  programmes  as  well  as  of  the  annual  reports,  and  finally  the  financial 
oversight.286 

11.1. Composition of the Management Board 

The Management Board is the central organ to steer and manage the agency. As set forth above 
(section 3), the Common Approach provides that it should be composed of one representative per 
Member  State  as  well  as  two  Commission  representatives.  Where  appropriate,  there  may  be 
additional members designated by the European Parliament and representatives of stakeholders.287 
It is not specified, which circumstances would be regarded as ‘appropriate’ in this matter. 

Yet,  there  are  ten  cases  in  which  the  EP  may  in  fact  appoint  a  limited  number  of  designates  or 
representatives to the Management Boards of agencies (see Table 1). In the case of EFSA, whilst the 
European Parliament may not directly appoint members, it is consulted by the Council on the basis 
of a list of proposals drawn up by the Commission. In this case as well as in the case of ACER, there is 
a slight deviation from the Common Approach in that not each Member State individually appoints 
its representative, but the Council as a whole selects the members.  

Nevertheless,  the  vast  majority  of  cases  comply  with  the  Common  Approach  in  that  the 
Management Board consist exclusively of representatives of the Commission and Member States, 
without any involvement of the European Parliament (see Annex 10). EIGE, EPPO and Eurojust are 
exceptional in this regard. The Management Board of EIGE is comprised of 18 members appointed 
by the Council instead of Member State representatives, as well as Commission representatives. The 
Management  Board  of  ACER  includes  five  members  appointed  by  the  Council  in  addition  to  two 
members  appointed  by  the  Commission  and  two  appointed  by  the  European  Parliament.  Also 
instead of one representative per Member State, the board of EFSA 14 independent members who 
have a background in consumer organisations or interest in the food chain. 

Whilst  normally  all  boards  include  representatives  of  the  Commission,  these  are  absent  from  the 
Management Boards of the EPPO and Eurojust, (in both cases called ‘College’), in which only Member 
States are represented. In the case of the EPPO, members are even appointed by the Council, with a 

284 Agencies whose founding acts post-date the Common Approach are: CEPOL (2015), APPF (2014), EASA (2018), EDPB 

(2016), ENISA (2013), ERA (2016), EPPO (2017), Europol (2016), Frontex (2016), OHIM (2017), SRB (2014). 

285 Agencies whose founding acts were adopted after July 2012 are: ACER (2013), EBA (2015), EFCA (2016), EFSA (2014), 

EIOPA (2014), EMA (2012), EMSA (2016), ESMA (2014), GSA (2014), eu-LISA (2017). 

286  APPF  and  EDPB  are  not  included  in  this  general  analysis  but  referred  to  in  the  last  part  of  this  Chapter  since  they 

significantly deviate from all other agencies. 

287 Common Approach, paragraph 10. 

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EU Agencies, Common Approach and Parliamentary Scrutiny 

veto right for the sending Member State in each case.288 Another exception is the Single Resolution 
Board. In this case, the Board consist of representatives of Member States as well as a chair and four 
members appointed by the Council. The European Parliament has no role in this appointment.  

In the case of the three European Supervisory Authorities EBA, EIOPA and ESMA, the organ called 
‘Management Board’ rather corresponds to what the Common Approach names Executive Board. 
The  board  containing  all  representatives,  not  of  Member  States  but  of  the  national  supervisory 
authorities, is  the  Board  of  Supervisors  consisting of  a  Chairperson,  heads  of national  supervisory 
authorities, and one representative each of the Commission, the ECB, the ESRB and the other two 
Supervisory Authorities. 

In a total of twelve boards, additional members are included. In the boards of EMA, EMSA, ECHA, ERA, 
EU-OSHA, Cedefop and Eurofound stakeholders are present which are appointed by the Council, the 
European  Parliament  or  the  European  Commission.  The  boards  of  ECHA,  EMCDDA,  ETF,  EEA  and 
EFSA include independent experts are present. Except for the more complex system of EFSA set out 
above,  these  experts  are  designated  by  the  European  Parliament.  In  a  recent  proposal,  the 
Commission  has  suggested  to  align  the  composition  of  EFSA’s  Management  Board  with  the 
Common Approach. Pursuant to this proposed amendment, it would consist of one representative 
per Member State (nominated by the MS but appointed by the Council), two representatives of the 
Commission,  one  member  appointed  by  the  EP  and  four  stakeholders  (from  a  consumer 
organisation, an environmental NGO, a farmers’ organisation and an industry organisation) who are 
proposed by the Commission and appointed by the Council in consultation with the EP.289 

One could critically ask whether the European Parliament, as the main institution to which agencies 
need  to  account,  should  be  able  to  appoint  a  designate  (in  some  regulations  still  mentioned  as 
‘representative’290)  as  this  seems  to  blur  their  controlling  function.  The  European  Parliament  has 
been divided in its wish to designate a representative on the Management Board; with some viewing 
that this would clash with the Parliaments supervisory role and others considering this a good idea 
for  purposes  of  information  provision  and  feedback,  especially  also  in  view  of  the  large  sizes  of 
Management  Boards  and  in  cases  of  shared  competence.291  Instead  of  membership  of  such 
designates,  one  could  think  of  the  European  Parliament  having  an  observer  in  the  Management 
Board, so that the control function (more information and more awareness of what the agency is 
doing) will be served best.292 

288  Article  16(2),  Council  Regulation  (EU)  2017/1939  of  12  October  2017  implementing  enhanced  cooperation  on  the 

establishment of the European Public Prosecutor’s Office (‘the EPPO’). OJ L 283. 

289  See:  Art.  25  of  Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  on  the  transparency  and 
sustainability  of  the  EU  risk  assessment  in  the  food  chain  amending  Regulation  (EC)  No  178/2002,  Directive 
2001/18/EC, Regulation (EC) No 1829/2003, Regulation (EC) No 1831/2003, Regulation (EC) No 2065/2003, Regulation 
(EC) No 1935/2004, Regulation (EC) No 1331/2008, Regulation (EC) No 1107/2009and Regulation (EU) No 2015/2283.  
290 Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community 
procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing 
a European Medicines Agency, OJ L 136. 

291 F. Jacobs, ‘EU Agencies and the European Parliament’, in M. Everson, C. Monda and E. Vos, EU agencies inbetween the 

institutions and Member States, Kluwer law International 2014, pp. 221-222. 

292 E. Vos, 'European Agencies and the Composite EU Executive', in M. Everson, C. Monda, & E. Vos (Eds.), European agencies 
in between institutions and Member States (pp. 87-122). (European Monographs; No. 85). Alphen aan den Rijn: Kluwer 
Law International. 

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EPRS | European Parliamentary Research Service 

EP Involvement 

Representatives 

Designates 

Qualified 

Unqualified 

EMA, EUIPO, GSA 

ECHA*+,  EEA*,  EFSA*, 
EMCDDA*, ETF* 

ACER, ECDC 

* the EP appoints experts. 
+ the EP appoints stakeholders. 

Table 1: EP Involvement in Management Boards.  

No EP involvement 

APPF, BEREC, CdT, Cedefop, 
CEPOL, CPVO, EASA, EASO, 
EBA, ECDC, ECHA, EDPB, 
EEA, EFCA, EIGE, EIOPA, ELA, 
EMSA, ENISA, EPPO, ERA, 
ESMA, EU-LISA, EU-OSHA, 
Eurofound, Eurojust, 
Europol, FRA, FRONTEX, SRB 

11.2. Appointment of the Executive Director 

The procedure for appointment of the Executive Director is the area in which the legal practice in 
the  founding  regulations  deviates  most  strongly  from  the  Common  Approach  in  favour  of 
parliamentary scrutiny. Pursuant to the Common Approach, the appointment procedure is meant to 
be simple and apolitical. The director should be appointed by the Management Board on the basis 
of  a  list  of  potential  candidates  drawn  up  by  the  Commission  and  resulting  from  a  transparent 
selection procedure.293 In addition, a Framework Agreement between the European Parliament and 
the  Commission  specifies  that  the  ‘nominees  for  the  post  of  Executive  Director  of  regulatory 
agencies should come to parliamentary committee hearings.’294 This is, however, not reflected in the 
Common Approach. 

Examination of the appointment procedures of the Directors in the founding regulations reveals a 
broad  variety,  mounting  to  no  less  than  12  appointment  procedures.295  In  relation  to  the 
involvement  of  the  European  Parliament,  there  exist  eight  main  models  depending  on  the 
appointing authority on the one hand and the degree of influence of the European Parliament on 
the other. These are summarised in Table 2. 

In  the  first  category,  the  European  Parliament  is  most  influential.  These  are  cases  in  which  the 
selected  candidate  shall  be  invited  to  give  a  statement  and  answer  questions  in  the  European 
Parliament  or  its  competent  committee.  To  be  sure,  this  does  not  give  any  ‘real  powers’  of 
parliamentary scrutiny. Even if the competent committee were to object the selected candidate, it 
would have no legal right to ask for his or her replacement. Yet, the hearings can be regarded as a 
political tool, relying on the visibility of the hearings and the overall relationship between the agency 
and the EP. In some cases, the Management Board even has to explain how it took the EP’s opinion 
into account or why it deviated from its opinion.296 

293 Common Approach, para 16. 
294 Framework Agreement on relations between the European Parliament and the Commission, paragraph 32,OJ L 304/47, 

20/11/2010. 

295 See K. Siderius and M. Scholten, Appointment of EU agency directors, TARN Blog, forthcoming. 
296 See the founding act of Frontex, Article 69, Regulation (EU) 2016/1624 of the European Parliament and of the Council 
of  14  September  2016  on  the  European  Border  and  Coast  Guard  and  amending  Regulation  (EU)  2016/399  of  the 
European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and 
of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC. OJ L 251. 

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EU Agencies, Common Approach and Parliamentary Scrutiny 

The EP is most powerful in the cases of EBA, EIOPA and ESMA as the European Parliament has to 
‘confirm’ the candidate. In these agencies it is not up to the Management Board, but to the Board of 
Supervisors,  which  is  comparable  to  the  Management  Board  in  other  agencies,  to  appoint  the 
Executive Director. In addition, the Board of Supervisors also selects its own chair, who is “a full-time 
independent professional.”297 Moreover, a Management Board exists as well, but this is in essence a 
mere selection of Supervisors who are then given additional responsibilities for the management of 
the  agency  (this  Board  can  be  compared  with  the  Executive  Board  proposed  in  the  Common 
Approach). In the appointment of the Executive Director, the Supervisory Board therefore depends 
on the ‘confirmation’ by Parliament. This vague terminology in all likelihood implies that a hearing 
in the Parliament is also mandatory in these cases and that the European Parliament’s opinion has 
practical relevance. If it refuses confirmation, the candidates cannot be appointed.298 

For agencies in the second category, founding acts are less explicit on how much power should be 
given to the EP. They set out that the candidate selected by the Management Board on the basis of 
the list of proposals drawn up by the Commission may be invited to the EP to make a statement and 
answer questions. This seems to suggest that there is some degree of discretion for the EP, albeit not 
for the candidate him- or herself. 

Third, there are seven agencies whose founding regulations closely follow the procedure which is 
literally  set  out  in  the  Common  Approach.  In  these  cases,  the  Management  Board  appoints  the 
director on the basis of the list proposed by the Commission whilst the European Parliament is not 
involved.  In  the  eighth  agency  in  this  category,  the  EPPO,  the  appointment  is  also  made  by  the 
Management Board with no role to play for the European Parliament. However, the proposal comes 
from the European Chief Prosecutor in lieu of the Commission. 

The  final  categories  differ  significantly  from  the  Common  Approach.  In  the  case  of  the  Single 
Resolution Board, the role of Executive Director corresponds to that of ‘Chair of the Board’. Whilst a 
hearing is not explicitly mentioned in the founding regulation, it states that the European Parliament 
has to give its approval before the Council can appoint the candidate, hence potentially implying a 
hearing. This deviation is surprising because the founding act of the SRB was adopted in 2014 and 
thus after the Common Approach. 

In the case of Cedefop and Eurofound, the appointment is made by the Commission without any 
involvement of the European Parliament. However, both founding regulations were adopted in 1975 
and have last been amended before the Common Approach, which appears to explain the deviation. 
A similar explanation is also likely in the case of CPVO. The director of this agency is appointed by 
the Council, again with no role for the EP to play. 

The situation is more curious for the mandates of Europol and EUIPO. For both mandates, there has 
been a recent recast. Nonetheless, appointment is made by the Council on the basis of a proposal by 
the  Management  Board  and  the  European  Parliament  may  invite  the  candidate  for  a  hearing. 
Although  the  mandates  were  adopted  in  2016  (Europol)  and  2017  (EUIPO),  the  reason  for  this 
deviation is probably path dependency. For Europol, the Commission had foreseen in its proposal 
that the appointment procedure be streamlined with that of other agencies (i.e. the Management 
Board  appoints  based  on  the  Commission  list  and  the  EP  may  invite  the  candidate).299  Yet,  the 

297  Article  48(1),  Regulation  (EU)  No  1093/2010  of  the  European  Parliament  and  of  the  Council  of  24  November  2010 
establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and 
repealing Commission Decision 2009/78/EC. OJ L 331/12. 

298  For  example,  hearings  were  conducted  for  the  re-appointment  of  the  Executive  Directors  of  EBA  and  ESMA.  See: 
European Parliament, Committee on Economic and Monetary Affairs, Minutes of the Meeting of 17 November 2015, 
ECON_PV(2015)1117, 
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-
571.746+01+DOC+PDF+V0//EN&language=EN. 
299 Commission Proposal COM 2013(173) final, Article 56. 

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EPRS | European Parliamentary Research Service 

legislator  did  not  follow  this  proposal  and  instead  returned  to  the  procedure  of  the  previous 
founding act.300 

In the case of EUIPO, the Commission did not even make such a proposal in the proposal for a recast 
regulation.301 This is probably due to the fact, that it had included this idea in a 2013 proposal for a 
regulation amending EUIPO’s previous founding act.302 Again the legislator had not followed this 
change and returned to the ‘old’ system.303 Yet, in both cases, parliamentary scrutiny is ensured in 
that the European Parliament may invite the candidates, hence again going beyond the Common 
Approach. 

The above demonstrates deviations from the Common Approach in two directions. First, whilst the 
Commission is aware of the necessity to adjust existing legislation in the course of a revision, the 
legislator seems reluctant to change existing organisational structures of agencies. Second, in some 
respects,  legal  practice  is  more  favourable  with  regard  to  parliamentary  scrutiny  than  what  is 
foreseen  in  the  Common  Approach.  The  document  does  not  mention  informal  hearings  of 
designated  Executive  Directors  in  the  EP.  Yet,  this  is  an  emerging  trend  in  most  newly  adopted 
founding acts. 

Executive Director 

EP  confirmation 
needed 

Candidate  shall  be 
invited to EP.304 

Candidate  may  be 
invited to EP. 

involvement 

No 
of the EP. 

The 
Management 
Board appoints on the 
basis of a list proposed 
by the Commission. 

BEREC,  EASA,  EASO, 
ECDC,  ECHA,  EFSA, 
EIGE,  EMA,  EMCDDA, 
FRA, 
ETF, 
ENISA, 
FRONTEX, eu-LISA 

ACER, 
GSA, 

EMSA, 

ERA, 

CDT,  CEPOL,  EEA, 
EFCA, 
EU-
ELA, 
EPPO,305 
OSHA, 
Eurojust, 

The 
Supervisors appoints. 

Board 

of 

EBA, EIOPA, ESMA 

The Council appoints. 

SRB 

Europol, EUIPO 

CPVO 

The 
appoints. 

Commission 

Cedefop, 
Eurofound 

Table 2: Appointment of the Executive Director. 

In  some  founding  regulations  of  agencies,  parliamentary  scrutiny  of  the  director  is  even  further 
strengthened. For a total of 16 agencies, the European Parliament can invite the Director and ask 

300 Council Decision (EC) No 2009/371/JHA establishing the European Police Office (Europol) (OJ L 212/37), Article 36(1); 
now Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union 
Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 
2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA (OJ L 135/53), Article 54.  

301 Commission Proposal COM 2016(702), Article 158. 
302 Commission Proposal COM 2013 (016)final, Article 129(2). 
303 Regulation Article 129(2), Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 
2015 amending Council Regulation (EC) No 207/2009 on the Community trade mark and Commission Regulation (EC) 
No  2868/95  implementing  Council  Regulation  (EC)  No  40/94  on  the  Community  trade  mark,  and  repealing 
Commission Regulation (EC) No 2869/95 on the fees payable to the Office for Harmonization in the Internal Market 
(Trade Marks and Designs). OJ L 341/21. 

304 In cases where the Board of supervisors appoints, instead of using the standard phrasing, the regulation mentions that 

the Board shall make its appointment upon „confirmation“ by the EP. 

305 In case of the EPPO, the proposal is not made by the Commission, but by the European Chief Prosecutor. 

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EU Agencies, Common Approach and Parliamentary Scrutiny 

questions  about  the  agency.306  In  addition,  in  the  case  of  Europol,  it  is  the  Joint  Parliamentary 
Scrutiny Group that can invite the Director at any time.307 For EASA, the new mandate provides an 
evaluation hearing in the EP halfway through the Executive Director’s term of office.308 Again, this 
does not grant the European Parliament any particular ‘real powers’. Moreover, formally the director 
is accountable only to the Management Board. However, this procedure nonetheless provides the 
EP with a possibility to hold the Executive Director accountable for the management of the agency.  

It is clear that the Common Approach has not been able to rationalise the appointment procedures 
of the Director. The existing variety in appointment procedures of the director should therefore be 
tackled.309  As  regards  the  involvement  of  the  European  Parliament,  no  less  than  eight  different 
models have been observed. In view that it will not inflict on the agencies’ autonomy to involve the 
European  Parliament,  but  on  the  contrary,  involvement  of  the  European  Parliament  will  enhance 
agencies’  accountability  and  legitimacy  more  generally.  To  this  end,  one  model  of  how  the 
Parliament should be involved needs to be developed.   

11.3. Work Programmes 

The adoption and transmission of work programmes is a way to ensure ex-ante control of agencies. 
The Common Approach therefore states that agencies should adopt both annual and multi-annual 
strategic programmes.310 Furthermore, the Commission should be consulted on both documents. 
The  European  Parliament  only  needs  to  be  consulted  on  the  multiannual  work  programme  and 
should be informed of the annual programme.311 Yet, this consultation is not binding. In practice, 
five different models of parliamentary involvement could be detected in the founding acts of the 
agencies examined. These are summarised in Table 3.  

First, the most far-reaching involvement of the EP exists in those cases where the EP is consulted on 
the agency’s multi-annual programme and informed about its annual programme. This corresponds 
to  the  requirements  set  out  in  the  Common  Approach.  Yet,  of  all  agencies  examined,  only  eight 
agencies  fall  into  this  category.  In  most  of  these  cases,  the  mandates  have  only  recently  been 
adopted or amended after the adoption of the Common Approach.312  

Second,  in  six  agencies  the  EP  is  merely  informed  both  of  the  annual  and  multiannual  work 
programmes. The mandates of five of these agencies were adopted prior to the Common Approach. 
In the cases of EBA, EIOPA and ESMA, the founding acts were amended subsequently, yet the issue 
of  multi-annual  or  annual  work  programmes  was  not  touched  upon.313  A  surprising  case  in  this 

306 ACER,CEPOL, EASA, EASO, ECHA, EFSA, EIGE, ELA, EMCDDA, EMSA, ERA, ETF, FRA, FRONTEX, GSA, IT Agency. 
307 Article 51, Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European 
Union  Agency  for  Law  Enforcement  Cooperation  (Europol)  and  replacing  and  repealing  Council  Decisions 
2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA. OJ L 135/53. 

308 Article 103(3), Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common 
rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations 
(EC)  No  2111/2005,  (EC)  No  1008/2008,  (EU)  No  996/2010,  (EU)  No  376/2014  and  Directives  2014/30/EU  and 
2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 
216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91. 

309K. 

Siderius 

and 

M. 

Scholten, 

Appointment 

of 

EU 

agency 

directors, 

TARN 

Blog, 

https://eutarn.blogactiv.eu/2018/10/11/appointment-of-eu-agency-directors/. 

310 Common Approach, para 28. 
311 Common Approach, para 29. 
312 The mandates were adopted in 2018 (EASA), 2017 (OHIM), 2016 (ERA, Europol, FRONTEX), 2015 (CEPOL), 2010 (GSA, NB: 
Article 8a concerning work programmes was amended by regulation 512/2014). The only exception is the FRA whose 
mandate was already adopted in 2007. 

313 The most recent amendments took place in 2014 for ESMA (Reg. 2014/51) and EIOPA (Reg. 2014/51) and in 2015 for EBA 

(Reg. 2015/2366). 

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category is the proposal of the ELA which was published by the Commission in 2018 and yet does 
not fully comply with the Common Approach. In this, the European Parliament is only informed of 
both the annual and multi-annual programme instead of being consulted on the latter as foreseen 
in the Common Approach. 

In the case of ENISA and Eurofound, no mention is made of the European Parliament’s involvement 
in  a  possible  multiannual  work  programme.  Yet,  it  is  consulted  on  the  annual  programme.  The 
situation  is  similar  for  another  seven  agencies  in  the  case  of  which  the  EP  is,  however,  not  even 
consulted but only informed of the annual programme. 

For  the  largest  category  of  agencies  in  this  comparison,  the  EP  is  informed  of  the  annual  work 
programme whereas no mention is made of (EP involvement in) a multi-annual work programme. 
This is the case for nine agencies. 

Finally, there are two categories of agencies, in whose work programmes the European Parliament 
does not play any role at all. In some cases, it is simply not mentioned that the work programmes 
shall be submitted to the Parliament. In the case of the CPVO and Eurojust, the requirement to lay 
down a work programme is not mentioned in the founding regulations at all. However, it should be 
noted that the mandates of these agencies were largely adopted before the Common Approach. The 
only exception in this regard is the EPPO. 

Annual programme 

EP informed 

(involvement) 

No 
multi-annual 
programme 

Multi-annual 
programme 

Multi-annual 
programme 

EP informed 

EP consulted 

ACER,  BEREC,  EASO, 
EFCA,  EFSA,  EMA, 
EMSA, eu-LISA, SRB 

EBA,  ECHA,  EIOPA, 
ELA, EMCDDA, ESMA 

CEPOL,  EASA,  ERA, 
FRA, 
Europol, 
FRONTEX, 
GSA, 
OHIM, 

Annual programme 

EP consulted 

ENISA, Eurofound 

No EP involvement: CDT, Cedefop, ECDC, EEA, EIGE, EU-OSHA, EPPO, ETF 

No provision on work programme: CPVO, Eurojust 

Table 3: Annual and Multi-Annual work programmes. 

Clearly  the  variety  parliamentary  involvement  in  relation  to  the  work  programmes  should  be 
addressed.  There  seems  to  be  no  valid  reason  to  differentiate  between  the  involvement 
(consultation and/or information) of the Parliament in annual and multi-annual work programmes. 
One model should be applied. 

11.4. Annual Report 

Mirroring the work programmes, agencies also have to submit a report about their activities. The 
Common  Approach  provides  for  the  submission  of  a  Single  Annual  report  to  the  European 
Parliament, the Court of Auditors, the Council and the Commission.314 The Common Approach also 
foresees  that  the  political practice  of  agencies  directors  presenting  their  reports  to  the  European 
Parliament should be continued. In this document, agencies should report on the implementation 

314 Common Approach, para 49. 

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of the work programmes as well as budget and staff plans and findings and follow-up measures of 
audits.315 This is in fact foreseen in the mandates of all agencies analysed. 

In the founding acts of four agencies, additional requirements are made. The Executive Directors of 
BEREC  and  EASO  are  required  to  present  the  annual  reports  of  their  agencies  to  the  European 
Parliament or its competent committee. In the case of CEPOL and EPPO an additional requirement is 
made that annual reports should also be transmitted to national parliaments.316 

11.5. Budget 

In principle, the procedure is the same for most agencies. For budgetary planning, estimates of the 
budget  are  drawn  up  by  the  agencies  and  transmitted  to  the  European  Parliament  and  Council, 
commonly  referred  to  as  ‘budgetary  authority  in  this  context’,  which  then  decide  on  the 
appropriations.  

For  the  evaluation  of  the  budget  implementation,  the  report  on  budgetary  and  financial 
management as well as the final accounts for the financial year to be evaluated is first transmitted to 
the European Parliament. The founding acts further provide that the Executive Director shall submit 
all  information  to  the  European  Parliament  which  is  necessary  for  the  proper  functioning  of  the 
discharge  procedure.  Finally,  the  European  Parliament,  upon  recommendation  from  the  Council, 
grants the discharge to the agency or its director.  

The exceptions to this are three fully-self-financed agencies, namely EUIPO, SRB and CPVO. In these 
cases, the discharge is conducted by internal bodies. This is problematic because, as the Common 
Approach states, ‘they are Union bodies in charge of implementing EU policies but not subject to a 
discharge within the meaning of the TFUE.’317 The Common Approach therefore states that solutions 
to this should be explored and proposes that these agencies should submit an annual report to the 
European Parliament, the Council and the Commission with regard to the execution of their budget 
and  take  recommendations  into  account.318 For  two agencies  the  EU-legislator  has  now  required 
EUIPO and SRB to transmit their accounts to the European Parliament, the Commission and the Court 
of Auditors.  

In  the  2012  Financial  Regulation319  which  was  adopted  only  three  months  after  the  Common 
Approach, the legislator would have had the possibility to implement the proposal set out in the 
Common  Approach.  Article  208(1)  of  this  Regulation  delegates  to  the  Commission  the  power  to 
adopt a Framework Financial Regulation for ‘bodies set up under the TFEU and Euratom Treaty’, but 
limits this to those bodies that ‘receive contributions charged to the budget’, hence excluding fully 
self-financed agencies. The European Parliament had proposed in its amendments to delete this last 
part  of  the  sentence,  hence  broadening  the  scope  of  the  Commission  Delegated  Regulation  to 
include self-financed agencies.320 Yet, this was discarded during the legislative process.  Neither did 
the Commission follow up on this point of the Common Approach in its Roadmap. By contrast, the 

315 Common Approach, para 47. 
316 CEPOL: Regulation 2015/2219, Article 9(1)(c); EPPO: Regulation 2017/1939, Article 7(1). 
317 Common Approach, para 58. 
318 Common Approach, para 58. 
319 Regulation 2012/966 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable 

to the general budget of the Union and repealing Council Regulation 1605/2002, OJ L 298/1. 

320 Amendment 241, European Parliament amendments adopted on 26 October 2011 to the proposal for a regulation of 
the European Parliament and of the Council on the financial rules applicable to the annual budget of the Union (COM 
(2010)0815 
(COD)), 
http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2011-0465. 

C7-0016/2011 

2010/0395 

– 

– 

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European Parliament did show awareness of this difficulty by organising a workshop.321 Yet, this was 
not followed up  by other initiatives.  This  situation  has  remained  unchanged in  the  most  recently 
adopted Financial Regulation.322 Therefore ensuring democratic accountability for fully self-financed 
agencies therefore remains challenging. 

The Court of Auditors also plays a central role in the budgetary oversight of agencies. It is in principle 
responsible for examining the accounts of all agencies.323 In most cases, it receives both the agency’s 
provisional  accounts  and  the  report  on  budgetary  and  financial  management.  It  then  states  its 
observations on the provisional accounts, which are considered by the Executive Director in drawing 
up  the  agency’s  final  accounts.  Finally,  this  latter  document  is  again  forwarded  to  the  Court  of 
Auditors together with a response by the Executive Director to the Court of Auditor’s observations. 
In addition, the Common Approach states the possibility for the Court of Auditors to involve private 
sector auditors ‘to remedy [its] lack of resources’.324 Yet the Court of Auditors remains responsible 
for the external audit. 

11.6. Informal Mechanisms of Parliamentary Scrutiny 

In addition to the formal mechanisms of control discussed in this section, the European Parliament 
has developed a number of informal ways to ensure parliamentary scrutiny of agencies. These largely 
rely  on  personal  contacts  between  committees  (or  their  rapporteurs  or  chairs)  and  agency 
representatives. Since these mechanisms are not laid down in legally binding documents, they are 
largely voluntary in nature and difficult to enforce. Yet, it should be kept in mind that, ultimately, 
agencies are dependent on the European Parliament for their budgets. 

Depending on their respective policy areas, a number of EP committees have established contacts 
with EU agencies. Jacobs revealed that these contacts are maintained by means of delegation visits 
to  agencies,  contact  persons  in  committees,  hearings,  requests  for  information  and  negotiations 
about the budget.325 In addition, Busuioc found that also written questions and own initiative reports 
are commonly used by the EP as an instrument of holding agencies to account.326 

However, following up on agencies’ activities in addition to the committee’s normal tasks is a time 
consuming  exercise.  Moreover,  the  contacts  to  agencies  are  unevenly  divided  over  European 
parliamentary  committees.  Ten  committees  are  not  linked  to  decentralised  agencies  at  all.327  By 
contrast, the AGRI-, FEMM-, JURI- and PECH-committee have one agency each to maintain contacts 
with. The TRAN-committee is linked to three agencies, the ECON-, EMPL- and ITRE-committees to 
five  agencies  each,  the  ENVI-committee  to  five  and  the  LIBE-committee  is  even  responsible  for 
eleven agencies.  

321 Workshop on Oversight and Resources of Partially and Fully self-financed agencies, organised by the Policy Department 

on Budgetary Affairs for the Committee on Budgets and the Committee on Budgetary Control, 4th May 2017. 

322 See Article 70, Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on 
the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 
1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU), No 1316/2013, (EU) No 223/2014, (EU), No 
283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom No 966/2012). OJ L 193/1. 

323 Article 287(1) TFEU. 
324 Common Approach, para 54. 
325 F. Jacobs, ‘EU Agencies and the European Parliament’ in M. Everson, C. Monda and E. Vos (eds.), European agencies in 

between Institutions and Member States (Alphen a/d Rijn: Wolters Kluwer, 2014), p. 201-228. 

326 M. Busuioc, European Agencies: Law and Practices of Accountability, 2013. Oxford: Oxford University Press, p. 114-155. 
327 AFET, DROI, SEDE, DEVE, INTA, IMCO, REGI, CULT, AFCO and PETI. 

NB: The Security and Defence Subcommittee (SEDE) is in contact with three agencies in the field of foreign affairs: the 
European Defence Agency, the European Union Institute for Security Studies and the European Union Satellite Centre. 
However, these fall outside the scope of this study. 

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EP Committee 

Agencies 

Committee on Agriculture and Rural Development (AGRI)  CPVO 

Committee on Economic and Monetary Affairs (ECON) 

EBA, EIOPA, ESMA, SRB 

Committee on Employment and Social Affairs (EMPL) 

Cedefop, ETF, EU-OSHA, Eurofound 

Committee  on  Environment,  Public  Health  and  Food 
Safety (ENVI) 

ECDC, ECHA, EEA, EFSA, EMA 

Committee  on  Women’s  Rights  and  Gender  Equality 
(FEMM) 

EIGE 

Committee on Industry, Research and Energy (ITRE) 

ACER, BEREC, ENISA, GSA 

Committee on Legal Affairs (JURI) 

EUIPO 

Committee  on  Civil  Liberties,  Justice  and  Home  Affairs 
(LIBE) 

CEPOL,  EASO,  EDPB,  EMCDDA,  ENISA,  EPPO,  EU-LISA, 
Eurojust, Europol, FRA, FRONTEX 

Committee on Fisheries (PECH) 

EFCA 

Committee on Transport and Tourism (TRAN) 

EASA, EMSA, ERA 

Table 4: EP Committees and EU Agencies. 

Busuioc found that these links between agencies and specialised committees are reinforced by the 
Budget Committee. Budgets for agencies are only released if the specialised committee has given a 
positive assessment of the agency’s performance.328 By means of this requirement, she argues, the 
‘Committee on Budgets has ‘armed’ the specialized committees’.329 The latter can use this procedure 
to exert pressure on agencies to cooperate with them. However, whilst this mechanism might be 
useful for the vast majority of agencies, it cannot solve the problem of the supervision of exclusively 
self-financed  agencies.  In  these  cases,  no  budget  has  to  be  released  and,  as  a  consequence,  this 
cannot be used as a  means to exert pressure on agencies. 

Yet, according to Jacobs, such pressure on agencies might not even be necessary. He argues that 
agencies do not necessarily have to be forced to establish contacts with the European Parliament, 
but  increasingly  seek  this  contact  themselves.330  He  argues  that  this  proactive  role  of  agencies  is 
intended  to  ‘increase  their  own  margin  of  manoeuvre’  by  avoiding  that  they  are  under  the  sole 
control by the Commission. Thus, the interest in closer collaboration might be reciprocal. This would 
facilitate parliamentary scrutiny despite the limited formal powers of the European Parliament in this 
regard. 

328 M. Busuioc, European Agencies: Law and Practices of Accountability, 2013. Oxford: Oxford University Press, p. 114-155. 
329 M. Busuioc, European Agencies: Law and Practices of Accountability, 2013. Oxford: Oxford University Press, p. 136. 
330 F. Jacobs, ‘EU Agencies and the European Parliament’ in M. Everson, C. Monda and E. Vos (eds.), European agencies in 

between Institutions and Member States (Alphen a/d Rijn: Wolters Kluwer, 2014), p. 201-228. 

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12. Relevance of the Common Approach in Founding Acts of 
EU Agencies 

The above analysis displays a rather mixed image of compliance with the Common Approach by the 
founding acts of EU Agencies. The overall compliance is represented by the yellow line in Figure 1. 
As can be seen, for the budgetary procedure and annual reports, the compliance rate is relatively 
high. This might be due to the fact that these procedures hardly involve political decisions and can 
be adapted to any agency, regardless of its field of activity. The only notable exceptions are the two 
fully self-financed agencies EUIPO and CPVO. Whilst the Common Approach has acknowledged this 
problem, no further action has been taken to ensure budgetary control.  

The  composition  of  the  Management  Board  and  Appointment  of  the  Executive  Director  seem  to 
depend strongly on the tasks of the agency. Deviations notably occur in more politicised fields, such 
as  the  financial  sector  or  Europol  and  Eurojust.  Compliance  is  most  problematic  for  work 
programmes.  Whilst  most  founding  acts  do  foresee  the  adoption  of  work  programmes,  the 
requirement that the EP should be consulted on multi-annual work programmes is usually not met. 

As  stated  before,  not  all  founding  acts  were  adopted  after  the  Common  Approach.  This makes  it 
possible to examine the extent to which the adoption of the Common Approach had an impact on 
the way in which EU decentralised agencies’ mandates are structured. If the Common Approach was 
influential,  compliance  rates  for  newly  adopted  or  recently  revised  founding  regulations  should 
show  higher  compliance  rates  than  the  rate  for  acts  adopted  or  amended  before  the  Common 
Approach. This comparison is displayed in Figure 4.  

Compliance with the Common Approach

Composition
MB

100%

80%

60%

40%

20%

0%

Budget

Appointment
ED

acts adopted and/or
amended post CA
all acts

acts adopted and
amended pre CA

Annual
Reports

Work
Programmes

Figure 4: Compliance with the Common Approach. 
For acts either adopted or amended after the Common Approach (blue line), there are hardly any 
differences  to  the  overall  picture.  Whilst  compliance  is  slightly  higher  for  the  adoption  of  work 
programmes, it is even lower for the appointment of the Executive Director. For acts adopted and 
amended  prior  to  the  Common  Approach  it  is  only  the  work  programme  that  shows  significant 
deviations in that compliance is lower. 

It is noteworthy that two recently adopted mandates deviate entirely from this approach. First, the 
Authority  for  European  political  parties  and  political  foundations  (APPF)  legally  counts  as  an  EU 

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EU Agencies, Common Approach and Parliamentary Scrutiny 

agency, given that it has legal personality and full independence.331 However, neither does it have 
its own premises,332 nor does it comprise any staff members other than its Director.333 The latter is 
appointed by the European Parliament, the Council and the Commission.334 The regulation does not 
mention any procedures comparable to those foreseen for other agencies. 

Second,  the  General  Data  Protection  regulation  established  the  European  Data  Protection  Board 
(EDPB),  consisting of  the head of each  national  data  protection  authority  and  the  European  Data 
Protection Supervisor.335 The board’s legal representative is its chair, elected by the board.336 Again, 
the most fundamental procedures foreseen in other founding regulations are not in place for this 
body. Nonetheless it is formally independent and has legal personality.337 To be sure, these are very 
small agencies with a very limited range of tasks. Yet, such exceptions for small agencies were, in 
principle, not foreseen in the Common Approach. 

The  question  as  to  why  deviations  from  the  Common  Approach  occur  although  it  is  based  on  a 
common  accord  among  the  European  Parliament,  the  Commission  and  the  Council  is  difficult  to 
answer in a general manner for all agencies. As demonstrated above, one reason might be practical 
considerations.  Negotiations  of  mandates  are  sometimes  guided  not  by  what  is  foreseen  in  the 
Common Approach but by what practical requirements necessitate. This is evident above all for the 
so-called European Supervisory Authorities. Leino found that in these cases, deviation were often 
explained by reference to the specific requirements of financial regulation.338  

Another  reason  might  lie  in  political  interests  and  path  dependencies.  Once  established,  the 
management structure of an agency is not easily changed given the potential loss of power involved 
for some actors. A case in point is the revision of the founding acts of EUIPO and Europol in which 
the Commission proposed changes in order to align the mandates to the Common Approach, but 
had  to  face  opposition  by  the  legislator.  In  a  number  of  proposals,  which  are  still  pending,  this 
tension between path dependencies or political interests on the one hand and the desire to comply 
with the Common Approach on the other becomes evident. Whilst small aspects like a consolidated 
annual  report  or  a  headquarters  agreement,  are  streamlined  with  the  Common  Approach,  full 
compliance  is  not  always ensured.  In  three  cases,  the  Commission  explained  that  some  elements 
were  excluded  from  the  review  ‘pending  further  evaluation’.339  The  more  fundamental  problem 
underlying these complications is, however, the circumstance that the Common Approach ‘it is not 

331 Articles 6(1) and (2), Regulation (EU, Euratom), No 114/2014 of the European Parliament and of the Council of 22 October 

2014 on the statute and funding of European political parties and European political foundations. OJ L 317. 

332 It is physically located within the European Parliament. See Article 6(4), Regulation (EU, Euratom), No 114/2014 of the 
European Parliament and of the Council of 22 October 2014 on the statute and funding of European political parties 
and European political foundations. OJ L 317. 

333  It  uses  staff  from  other  EU  institutions.  See  Article  6(5)  Regulation  (EU,  Euratom),  No  114/2014  of  the  European 
Parliament  and  of  the  Council  of  22  October  2014  on  the  statute  and  funding  of  European  political  parties  and 
European political foundations. OJ L 317. 

334 Article 6(3), Regulation (EU, Euratom), No 114/2014 of the European Parliament and of the Council of 22 October 2014 

on the statute and funding of European political parties and European political foundations. OJ L 317. 

335 Article 68(3), Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection 
of  natural  persons  with  regard  to  the  processing  of  personal  data  and  on  the  free  movement  of  such  data,  and 
repealing Directive 95/46/EC (General Data Protection Regulation). OJ L 119.  

336 Articles 73 and 68(2), Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the 
protection of natural persons with regard to the processing of personal data and on the free movement of such data, 
and repealing Directive 95/46/EC (General Data Protection Regulation). OJ L 119. 

337 Articles 69 and 68(1), Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the 
protection of natural persons with regard to the processing of personal data and on the free movement of such data, 
and repealing Directive 95/46/EC (General Data Protection Regulation). OJ L 119. 

338 Leino, Päivi. "Accountability dilemmas of regulating financial markets through the European Supervisory Agencies". 
In Research Handbook on EU Administrative Law, (Cheltenham, UK: Edward Elgar Publishing, 2017), p. 213-214. 

339 COM(2016)528, COM(2016)532 and COM(2016)531. 

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the  fruit  of  a  genuine  common  understanding  shared  between  the  institutions’,  as  stated  by 
Chamon.340 

340 Merijn Chamon (2016), EU Agencies: Legal and Political Limits to the Transformation of the EU Administration. Oxford: 

Oxford University Press, p. 52-101. 

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13. Concluding Remarks and Recommendations 

EU decentralised agencies are well-established components of the EU’s institutional landscape. The 
role and position of these agencies within the EU executive fit well in the academic legal thinking on 
the  nature  of  the  EU  executive,  reinforcing  its  composite  character.  Whilst  EU  agencies  were 
introduced as instruments to further integration and responses to crises, today they give also raise 
to concern, in particular in relation to their constitutional position and legitimacy; their increasing 
role at the global level; their hierarchical way of knowledge production, their functional operation 
and effectiveness in furthering European integration.  A few points need to be stressed: 

  The  notable  absence  of  agencies  in  the  system  of  Articles  290-291  TFEU  raises  concerns  in 
relation to the position of agencies in the EU executive. The recognition by the European Court 
of Justice of the possibility that agencies can be delegated binding decision-making powers 
can only be a temporary solution and Treaty change would be needed. 

  Agencies’ tasks may go beyond a mere technical assessment and involve political, economic or 
social choices. The traditional depoliticised agency model seems thus in the EU to convert into 
a  model  of  ‘politicised  depoliticisation341  whereby  increasingly  agencies  are  empowered  to 
adopt ‘not very’ discretionary measures.  

  This  would  require  to  rethink  control  and  accountability  mechanisms  on  agencies  and 
underlines  the  need  to  develop  a  set  of  general  principles  that  govern  EU  agencies,  whilst 
taking into account their heterogeneity.342  

  The  Common  Approach  already  sets  forth  a  few  provisions,  trying  to  adopt  a  somewhat 
broader vision on EU agencies than the fragmented approach followed before and to improve 
the coherence, effectiveness, accountability and transparency of these agencies.  

  The  Common  Approach  has  helped  to  reflect  on  the  position  of  EU  agencies  in  the  EU’s 
institutional landscape. Yet, the findings of the analysis reveal that the Common Approach has 
not  significantly  changed  the  institutional  design  choices  by  the  European  legislator;  partly 
because  it  merely  codifies  existing  practice,  but  partly  also  because  it  has  not  always  been 
followed in the adoption or amendment of founding acts.  
It should be considered whether it is worthwhile to continue with the Common Approach in its 
non-binding  format.  Whilst  the  heterogeneity  of  agencies  requires  a  flexible  approach,  the 
differentiated  picture  that  emerges  as  regards  for  example  the  procedure of appointing  the 
Executive Director is not justified by compelling reasons relating to the mandates of agencies.  
As there is a need for more coherence and consistency, it is advisable to set general provisions 
and  procedures  whilst  recognising  the  heterogeneity  of  EU  agencies,  e.g.  establishing 
provisions that apply for groups or clusters of agencies. This could be achieved by means of an 
Interinstitutional agreement. 

  Hereby  the  position  of  EU  agencies  in  the  EU’s  institutional  structure  combined  with 

appropriate accountability mechanisms must be carefully reflected upon.  

A few points in relation to the Common Approach require further attention:  

  The practice displays a rather mixed image of compliance with the Common Approach by the 
founding acts of EU Agencies. Whilst the Commission seems to be aware of the necessity to 
adjust existing legislation in the course of a revision, the other institutions seem to have been 
more  reluctant.  The  political  declaration  enshrined  in  the  Common  Approach  thus  at  times 
conflicts with legal realities in which path dependencies may play a central role. 

341 Everson, M., Monda, C. & Vos, E., ‘What is the Future of European Agencies?’, in M. Everson, C. Monda and E. Vos (eds.), 

European Agencies in Between Institutions and Member States (Alphen a/d Rijn: Wolters Kluwer, 2014), p. 236. 

342 See TARN policy brief, no. 1. 

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  The Common Approach fails to give a definition of decentralised agencies and is silent on the 

legal basis for the creation of agencies.  

  The Common Approach suggests a common naming formula using the terms ‘European Union 
agency for…’ in order to provide for transparency. Yet, in practice this is not always adhered to. 
Interestingly, the recently proposed labour agency is called the European Labour Authority and 
hence does not conform to this provision in the new Approach. An other example forms the 
recent  amendment  of  the  trade  mark  regulation  where  the  name  OHIM  was  changed  into 
EUIPO, not referring to the name agency. 

  The Common Approach settles at last that representatives of the Member States should be on 
the  Management  Boards  of  agencies.  Yet,  in  practice,  the  composition  of  the  Management 
Board and Appointment of the Executive Director seem to depend strongly on the tasks of the 
agency.  Deviations  were  identified  above  all  in  politically  sensitive  fields,  such  as  Eurojust, 
Europol and in the case of European Supervisory Authorities.  
In the current practice the Executive Director is mainly accountable to the Management Board, 
whilst he or she is responsible to the European Parliament and Council only with regards to 
financial management. To enhance accountability, the Common Approach suggests to make 
Executive  Directors  more  clearly  accountable  for  performance.  It  calls  therefore  to  establish 
tailored performance indicators that allow for effective assessment of the results achieved in 
terms of objectives. The Commission has subsequently drafted Guidelines on Key Performance 
Indicators  to  assess  the  results  achieved  by  directors.  It is  not  clear whether  and  how  this is 
implemented in practice.  
It  is  clear  that  the  Common  Approach  has  not  been  able  to  streamline  the  appointment 
procedures for the Executive Director. The existing variety in appointment procedures of the 
Director does not seem to be justified in terms of functions. It would be important to have one 
standard procedure for the appointment of all agency Directors.  
Independence  from  commercial  interests  is  underlined  by  the  Common  Approach,  and 
elaborated in practice by most agencies. Whilst it is important to recognise that a ‘one-size-fits-
all’ model to deal with conflicts of interest for agencies is not desirable, it is crucial to have a 
framework on  conflict  of interests  for  agencies  with  similar  mandates  taking account  of  the 
different policy areas.  
Independence from political and national interests is a sensitive and complex issue. In practice, 
agencies are designed to be dependent on both EU institutions and Member States; agencies 
are  ‘in-betweeners’.  The  requirement  of  the  Common  Approach  that  Member  States  are 
represented on agencies’ management boards does not hold for the agencies in the financial 
sector.  The  supervisory  and  management  boards  of  these  agencies  are  heads  and 
representatives  of  national  supervisory  authorities.  This  underlines  the  inadequacy  of  the 
current mechanisms on accountability of these agencies.  

  The Common Approach provides that agencies should adopt both annual and multi-annual 
strategic programmes. It provides different roles for the Commission and the Parliament in the 
drafting of such programmes. The Commission should be consulted on both documents and 
issue  a  formal  advice  on  both  documents.  The  European  Parliament  however  needs  to  be 
consulted only on  the multiannual  work  programme  and  should  be informed  of  the  annual 
work programme. This issue needs to be addressed (see below). 

  For  the  budgetary  procedure  and  annual  reports,  the  compliance  rate  to  the  Common 
Approach is relatively high. This might be due to the fact that these procedures hardly involve 
political decisions and can be adapted to any agency, regardless of its field of activity. The only 
notable  exceptions  are  the  four  fully  self-financed  agencies.  The  Common  Approach  has 
acknowledged this problem, no further action has been taken to ensure budgetary control by 
the  European  Parliament.  Currently  two  agencies  (EUIPO  and  SRB)  are  merely  required  to 
transmit their accounts to the European Parliament, the Commission and the Court of Auditors.  
  Like its predecessor, also the new Framework Financial Regulation does not apply to ‘bodies 
set up under the TFEU and Euratom Treaty’ that ‘receive contributions charged to the budget’, 

71 

 
 
 
 
 
 
EU Agencies, Common Approach and Parliamentary Scrutiny 

hence excluding fully self-financed agencies. Therefore ensuring democratic accountability for 
fully self-financed agencies therefore remains challenging and should be addressed.  
It may be wondered whether fully self-financed agencies, as EU public bodies, should not be 
required to propose (part of) their gain to the EU budget. 

  The  Common  Approach  underlines  the  importance  for  agencies  to  connect  with  their 
stakeholders  in  accordance  with  their  mandate,  EU  policy,  institutional  division  of  tasks  in 
international  relation  and  Commission’s  actions.  Practice  shows  a  differentiated  picture  of 
various, often institutionalised, forms of stakeholder involvement. Such a variety of models is 
in  line  with  the  Common  Approach’s  differentiated  approach.  It  would  however  be 
recommendable  to  streamline  the  various  models  of  stakeholder  participation  for  agencies 
that have similar mandates. It may be considered to extend the legal obligation to ‘connect’ 
with stakeholder to all agencies. 

  The  Common  Approach  does  not  provide  a  coherent  view  on  control  and  accountability 
mechanisms in relation to the agencies. It is desirable to rethink the current means of control 
and establish a general view on how agencies should be made accountable. 

As regards parliamentary scrutiny of agencies the following can be observed:  

  The Common Approach stipulates that the European Parliament may designate one member 
on the Management Board of an agency, where appropriate (without prejudice to the relevant 
arrangements for existing agencies). Practice shows that the vast majority of agencies do not 
make use of this opportunity. This is a positive development as such membership could conflict 
with the European Parliament’s function of control. Instead of membership of designates, the 
European Parliament could appoint an observer in the Management Board, so that the control 
function (more information and more awareness what the Management Board is doing) will be 
served best.  

  The procedure for appointment of the Executive Director is the area in which the legal practice 
in the founding regulations deviates most strongly from the Common Approach in favour of 
parliamentary  scrutiny.  Pursuant  to  the  Common  Approach,  the  appointment  procedure  is 
meant to be simple and apolitical. The director should be appointed by the Management Board 
on the basis of a list of potential candidates drawn up by the Commission and resulting from a 
transparent  selection  procedure.343  In  addition,  a  Framework  Agreement  between  the 
European Parliament and the Commission specifies that the ‘nominees for the post of Executive 
Director of regulatory agencies should come to parliamentary committee hearings.’ 

  Study of the agencies’ founding acts reveals a broad variety of involvement of the European 
Parliament  in  the  appointment  of  the  Executive  Director;  with  no  less  than  eight  different 
models being observed. It will not inflict on the agencies’ autonomy to involve the European 
Parliament. On the contrary, involvement of the European Parliament will enhance agencies’ 
accountability and legitimacy more generally. The procedure for appointment of the Executive 
Director  is  the  area  in  which  the  legal  practice  in  the  founding  regulations  deviates  most 
strongly  from  the  Common  Approach  in  favour  of  parliamentary  scrutiny.  To  this  end,  one 
standard model of how the Parliament should be involved needs to be developed.  

  There is great variety in parliamentary involvement in relation to the work programmes. The 
Common  Approach  states  that  the  European  Parliament  should  be  consulted  only  on  the 
multiannual work programme and informed of the annual work programme. Consultation of 
the Parliament, so the Common Approach views, is an exchange of views and the outcome is 
not binding on the agency. In relation to the annual work programme, the Common Approach 
recommends  to  continue  the  actual  practice  of  the  agency’s  Director  presenting  it  to  the 
relevant  EP  committee.    The  practice  of  the  founding  acts  of  the  agencies  reveals  various 
in  drafting  annual  and  multi-annual  strategic 
models  of  parliamentary 

involvement 

343 Common Approach, para 16. 

72 

 
 
                                                             
EPRS | European Parliamentary Research Service 

programmes.  Whilst  most  founding  acts  do  foresee  the  adoption  of  work  programmes,  the 
requirement that the EP is consulted on multi-annual work programmes is generally not met. 
There  seems  to  be  no  valid  reason  however  to  differentiate  between  the  involvement 
(consultation  and/or  information)  of  the  Parliament  in  annual  and  multi-annual  work 
programmes and to develop one model of parliamentary involvement.   

  The EP has used the discharge procedure as a means of exerting pressure on agency directors; 
not only in regard financial matters but also in relation to problems of independence of staff or 
experts  working  for  the  agencies.  This  has  appeared  to  be in  practice  an  effective  means of 
control and has pushed agencies to become more independence from commercial interests 
and be more transparent. 

  Yet, such control instrument does not exist with regards to fully self-financed agencies. As these 
agencies however are EU public bodies, they should be submitted to budgetary control too; a 
perhaps a revised discharge procedure. The Common Approach suggests a procedure under 
which these agencies would submit an annual report on their budget to the Commission, the 
EP and the Council and receive recommendations from the latter two institutions. 
Informal mechanisms of control by the European Parliament could be strengthened. Agencies 
are  currently  divided  over  the  various  parliamentary  committees  according  to  the  various 
policy  areas  in  which  they  operate.  This  results  however  in  an  unbalanced  division  of  the 
agencies  over  the  committees,  whilst  some  agencies  perhaps  do  not  receive  the  needed 
attention.  

73 

 
 
 
EU Agencies, Common Approach and Parliamentary Scrutiny 

Legally binding acts? 

14. Annexes 

Annex 1: Functions 

Name 

ACER 

APPF 

BEREC 

CdT 

Function 

Supervision 

Registration 

Cooperation 

Operational activities 

Cedefop 

Information 

CEPOL 

CPVO 

EASA 

EASO 

EBA 

ECDC 

ECHA 

EDPB 

EEA 

EFCA 

EFSA 

EIGE 

EIOPA 

ELA 

EMA 

Information 

Certification 

Certification + Scientific/technical expertise 

Information + Cooperation + operational activities + 
scientific/technical expertise 

Supervision  

Information + Cooperation 

Scientific/technical expertise + Registration 

Supervision 

Information + Scientific/technical expertise 

Operational activities + Cooperation + inspection  

Scientific/technical expertise 

Information + Cooperation 

Supervision + cooperation 

Information + inspection + cooperation 

Scientific/technical expertise  

EMCDDA 

Information 

EMSA 

ENISA 

EPPO 

ERA 

ESMA 

ETF 

EUIPO 

Cooperation + Supervision 

Information 

Operational activities 

Cooperation + Supervision 

Supervision 

Information + Cooperation 

Registration 

EU-LISA 

Operational activities 

EU-OSHA 

Information + Cooperation 

Eurofound 

Information 

Eurojust 

Cooperation+ Operational activities 

Yes 

Yes 

No 

No 

No 

No 

Yes 

Yes 

No 

Yes 

No 

Yes 

No 

No 

No 

No 

No 

Yes 

No 

No 

No 

No 

No 

Yes 

Yes 

Yes 

No 

Yes 

No 

No 

No 

Yes 

74 

 
EPRS | European Parliamentary Research Service 

Function 

Legally binding acts? 

Name 

Europol 

FRA 

Cooperation + Operational activities  

Information 

No 

No 

No 

No 

Yes 

FRONTEX 

Operational activities  

GSA 

SRB 

Information 

Supervision 

75 

 
 
 
 
EU Agencies, Common Approach and Parliamentary Scrutiny 

Annex 2: Legal bases 

Name 

Founding Regulation 

Legal basis 

Comments 

Proposal pending to amend 
legal basis to 194(2) TFEU 

Proposal pending to amend 
legal basis to 166(4), 165(4) and 
149 TFEU 

Proposal pending to amend 
legal basis to 78(1) and (2) 
TFEU 

ACER 

Reg 713/2009 

114 TFEU 

APPF 

BEREC 

CdT 

Reg 1141/2014 

224 and 294 TFEU 

Reg 1211/2009 

114 TFEU 

Council Reg 2965/94 

352(1) TFEU 

Cedefop 

Council Reg 337/75 

352(1) TFEU 

CEPOL 

Reg 2015/2219 

87(2)(b) TFEU 

CPVO 

EASA 

Council Reg 2100/94 

352(1) TFEU 

Reg 2018/1139 

100 TFEU 

EASO 

Reg 439/2010 

74, 78(1)(2) TFEU 

EBA 

ECDC 

ECHA 

EDPB 

EEA 

EFCA 

EFSA 

EIGE 

EIOPA 

EMA 

Reg 1093/2010 

Reg 851/2004 

Reg 1907/2006 

Reg 2016/679 

Reg 401/2009 

114 TFEU 

168 TFEU 

114 TFEU 

16 TFEU 

192 TFEU 

Council Reg 768/2005 

43 TFEU 

Reg 178/2002 

43, 114, 207, 168(4)(b) TFEU 

Reg 1922/2006 

19(2), 157(3) TFEU 

Reg 1094/2010 

114 TFEU 

Reg 726/2004 

114, 168(4)(c) TFEU 

EMCDDA 

Reg 1920/2006 

168 TFEU 

EMSA 

ENISA 

EPPO 

ERA 

ESMA 

ETF 

Reg 1406/2002 

100(2) TFEU 

Reg 526/2013 

Reg 2017/1939 

Reg 2016/796 

Reg 1095/2010 

Reg 1339/2008 

114 TFEU 

86 TFEU 

91 TFEU 

114 TFEU 

166 TFEU 

eu-LISA 

Reg 1077/2011 

74, 77(2)(a) and (b), 78(2)(e), 
79(2)(c), 82(1)(d), 85(1), 
87(2)(a), 88(2) TFEU 

EU-OSHA 

Council Reg 2062/94 

352(1) TFEU 

EUIPO 

Reg 2017/1001 

118(1) TFEU 

Proposal pending to amend 
legal basis to 153(2)(a) TFEU 

76 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EPRS | European Parliamentary Research Service 

Name 

Founding Regulation 

Legal basis 

Comments 

Eurofound 

Council Reg 1365/75 

352(1) TFEU 

Eurojust 

Council Decision 
2002/187 

82, 83, 85 TFEU 

Europol 

Reg 2016/794 

88 TFEU 

FRA 

Council Reg 168/2007 

352(1) TFEU 

Proposal pending to amend 
legal basis to 153(2) TFEU 

Proposal pending to amend 
legal basis to 85 TFEU 

FRONTEX 

Reg 2016/1624 

77(2)(b), 77(2)(d), 79 TFEU 

GSA 

SRB 

Reg 912/2010 

188 TFEU 

Reg 806/2014 

114 and 294 TFEU 

Proposal pending to amend 
legal basis to 189(2) TFEU 

77 

 
 
 
 
 
 
 
 
EU Agencies, Common Approach and Parliamentary Scrutiny 

Annex 3: Sources of Financing 

Name 

ACER 

APPF 

BEREC 

CdT 

Cedefop 

CEPOL 

CPVO 

EASA 

EASO 

EBA 

ECDC 

ECHA 

EDPB 

EEA 

EFCA 

EFSA 

EIGE 

EIOPA 

ELA 

EMA 

EMCDDA 

EMSA 

ENISA 

EPPO 

EU Budget  

Voluntary 
contributions MS 

Fees/Payment 
services 

for 

Other 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

Legacies, donations or 
grants 

Contributions by 
participating third 
countries 

Contributions from 
associate countries 

Obligatory 
contributions from MS 
public authorities 

Contributions from third 
countries  

Contributions from third 
countries  

Obligatory 
contributions from MS 
public authorities 

Contributions from 
participating third 
countries 

Financial contributions 
from third countries 

Financial contributions 
from third countries 

Financial contributions 
from third countries 

78 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EPRS | European Parliamentary Research Service 

Name 

EU Budget  

Voluntary 
contributions MS 

Fees/Payment 
services 

for 

Other 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

ERA 

ESMA 

ETF 

EUIPO 

EU-LISA 

EU-OSHA 

Eurofound 

Eurojust 

Europol 

FRA 

FRONTEX 

GSA 

SRB 

X 

X 

X 

X 

X 

X 

X 

X 

X 

Contributions by 
participating third 
countries 

Obligatory contribution 
by MS public authorities 

Contribution from 
countries associated 
with Schengen acquis 
and Eurodac measures 

Contribution from 
countries associated 
with the Schengen 
acquis 

Contributions by MS 
institutions, loans, 
returns on investments 

79 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EU Agencies, Common Approach and Parliamentary Scrutiny 

Annex 4: Role of the Commission 

Representation 
Management Board 

1 rep, non voting 

Nomination power 

Political supervision 

MB + Director + Board 
of Appeal 

Consulted on adoption 
of annual framework 

ACER 

APPF 

BEREC 

CdT 

Cedefop 

CEPOL 

CPVO 

EASA 

EASO 

EBA 

ECDC 

ECHA 

EDPB 

EEA 

EFCA 

EFSA 

EIGE 

EIOPA 

ELA 

EMA 

EMCDDA 

/ 

1 rep 

2 reps 

/ 

1 rep 

1 rep 

1 rep 

2 reps 

6 reps 

1 rep 

1 rep 

/ 

2 reps 

2 reps 

2 reps 

Appoints Director with 
EP and Council 

/ 

Proposes Director 

/ 

/ 

/ 

Director 

/ 

Agrees on adoption of 
annual framework 

Consulted on adoption 
of annual framework 

Proposes President 

/ 

Proposes Executive 
Director 

2 reps 

Finds candidates for ED 

1 rep, non voting 

/ 

3 reps 

6 reps 

Proposes candidates 
Director 

Proposes candidates ED 

1 rep, non-voting 

/ 

Proposes ED 

Proposes candidates ED 

Gives opinion before 
adoption of annual 
framework 

Gives opinion before 
adoption of annual 
framework 

/ 

/ 

/ 

/ 

/ 

Gives opinion before 
adoption of annual 
framework 

Proposes candidates MB 
+ proposes candidates 
ED 

Consulted on adoption 
of annual framework 

Proposes candidates 
Director 

Consulted on adoption 
of annual framework 

/ 

/ 

Proposes candidates ED 

Gives opinion before 
adoption of annual 
framework 

Proposes candidates ED 

/ 

Proposes Director 

Gives opinion before 
adoption of annual 
framework 

80 

 
 
 
 
EPRS | European Parliamentary Research Service 

Representation 
Management Board 

EMSA 

4 reps 

Nomination power 

Political supervision 

Nominates 4 non-voting 
reps Admin. Board + 
proposes candidates ED 

Gives opinion before 
adoption of annual 
framework 

ENISA 

2 reps in MB, 1 rep in 
Executive Board 

/ 

EPPO 

/ 

Gives opinion before 
adoption of annual 
framework 

/ 

Gives opinion before 
adoption of annual 
framework 

Proposes members 
selection panel for 
European Chief 
Prosecutor 

Appoints stakeholders 
in MB + nominates 
Board of Appeal + 
proposes Director 

ERA 

ESMA 

ETF 

EU-OSHA 

EUIPO 

Eurofound 

2 reps 

2 reps 

3 reps 

1 non-voting rep in MB 
and Executive Board 

/ 

/ 

3 rep in Governing 
Board 

Proposes candidates 
Director 

Consulted on adoption 
of annual framework 

Eu-LISA 

2 reps 

Proposes candidates ED 

3 reps in Governing 
Board 

Proposes Director 

Gives opinion before 
adoption of annual 
framework 

Consulted on adoption 
of annual framework 

/ 

Appoints Director 

Agrees on adoption of 
annual framework 

Part of selection board 
Admin. Director 

/ 

Eurojust 

/ 

Europol 

1 rep 

/ 

FRA 

2 reps 

Proposes candidates 
Director 

FRONTEX 

2 reps 

Proposes candidates ED 

Gives opinion before 
adoption of annual 
framework 

Gives opinion before 
adoption of annual 
framework 

Gives opinion before 
adoption of annual 
framework 

Gives opinion before 
adoption of annual 
framework 

5 reps in Admin. Board 

Proposes candidates ED 

1 rep, non-voting 

Proposes candidates 
Chair 

/ 

GSA 

SRB 

81 

 
 
 
 
 
EU Agencies, Common Approach and Parliamentary Scrutiny 

Annex 5: Role of the European Parliament 

Agency 

Management Board 

Executive Director 

Work Programme 

Annual Report 

Oversight budget 

2 members appointed 
by EP 

candidate may be invited (also for 
extension of term of office) 

annual WP submitted to EP 

ACER 

APPF 

BEREC 

CDT 

Cedefop 

CEPOL 

CPVO 

 / 

 / 

 / 

 / 

 / 

 / 

EASA (new 

 / 

EASO 

EBA 

ECDC 

ECHA 

 / 

 / 

2 members appointed 
by EP 

2 members appointed 
by EP 

 / 

no information on WP 

candidate shall be invited; EP 
informed of extension of term of 
office 

 / 

 / 

 / 

 / 

candidate shall be invited; 
may be invited for extension of 
term of office 

candidate shall be invited, MB 
must inform EP ofits decision; 
for extension: shall be invited 

confirmation by EP 

annual WP submitted to EP 

no EP involvement 

no EP involvement 

EP consulted on multi-annual WP 
annual WP submitted to EP 

no information on WP 

EP consulted on multi-annual WP 
annual WP submitted to EP 

annual WP submitted to EP 

annual and multi-annual WP submitted 
to EP 

candidate shall be invited 

EP not involved 

candidate shall be invited 

annual and multi-annual WP submitted 
to EP 

x 

/ 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

discharge procedure 

budget from EP 

discharge procedure 

discharge procedure 

discharge procedure 

discharge procedure 

no discharge by EP 

discharge procedure 

discharge procedure 

discharge procedure 

discharge procedure 

discharge procedure 

82 

 
 
Agency 

Management Board 

Executive Director 

Work Programme 

Annual Report 

Oversight budget 

EDPB 

 / 

EEA 

2 members appointed 
by EP 

EFCA 

 / 

 / 

 / 

 / 

no information on WP 

no EP involvement 

annual WP submitted to EP 

EFSA 

EIGE 

EIOPA 

ELA 

EMA 

EP adopts opinion for 
appointment of 
members by Council 

 / 

 / 

 / 

2 members appointed 
by EP; 2 members 
appointed by Council 
in consultation with EP 

candidate shall be invited 

annual WP submitted to EP 

candidate shall be invited 

no EP involvement 

confirmation by EP 

 / 

annual and multi-annual WP submitted 
to EP 

annual and multi-annual WP submitted 
to EP 

candidate shall be invited 

annual WP submitted to EP 

EMCDDA 

2 members appointed 
by EP 

candidate shall be invited 

annuall and multi-annual WP submitted 
to EP 

 / 

 / 

 / 

 / 

 / 

EMSA 

ENISA 

EPPO 

ERA 

ESMA 

83 

candidate may be invited (also for 
extension of term of office) 

annual WP submitted to EP 

candidate shall be invited; 
may be invited for extension of 
term of office 

EP consulted on annual WP, no multi-
annual WP 

 / 

no EP involvement 

candidate may be invited (also for 
extension of term of office) 

EP consulted on multi-annual WP 
annual WP submitted to EP 

confirmation by EP 

annual and multi-annual WP submitted 
to EP 

/ 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

no information 

discharge procedure 

discharge procedure 

discharge procedure 

discharge procedure 

discharge procedure 

discharge procedure 

discharge procedure 

discharge procedure 

discharge procedure 

discharge procedure 

discharge procedure 

discharge procedure 

discharge procedure 

 
Agency 

Management Board 

Executive Director 

Work Programme 

Annual Report 

Oversight budget 

EU Agencies, Common Approach and Parliamentary Scrutiny 

ETF 

3 members appointed 
by EP 

candidate shall be invited; 
may be invited for extension of 
term of office 

no information on WP 

eu-LISA 

EU-OSHA 

Eurofound 

Eurojust 

 / 

 / 

 / 

 / 

Europol 

 / 

FRA 

 / 

FRONTEX 

 / 

candidate shall be invited (also for 
extension of term of office) 

annual WP submitted to EP 

 / 

 / 

 / 

candidate may be invited (also for 
extension of term of office); 
EP informed of removal from 
office 

candidate will be asked to address 
EP; 
may be invited for extension of 
term of office 

candidate shall be invited, EP 
gives opinion, if deviation MB has 
to explain its decision to EP 

no EP involvement 

EP consulted on annual WP, no multi-
annual WP 

no information on WP 

EP consulted on multi-annual WP 
annual WP submitted to EP 

EP consulted on multi-annual WP 
annual WP submitted to EP 

EP consulted on multi-annual WP 
annual WP submitted to EP 

GSA 

OHIM 

1 member appointed 
by EP 

candidate may be invited (also for 
extension of term of office) 

EP consulted on multi-annual WP 
annual WP submitted to EP 

one member 
appointed by EP 

candidate may be invited 

EP consulted on multi-annual WP 
annual WP submitted to EP 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

discharge procedure 

discharge procedure 

discharge procedure 

discharge procedure 

discharge procedure 

discharge procedure 

discharge procedure 

discharge procedure 

discharge procedure 

no discharge by EP;  
EP receives biannual 
reports and annual 
accounts 

84 

 
 
Agency 

Management Board 

Executive Director 

Work Programme 

Annual Report 

Oversight budget 

SRB 

 / 

EP is informed of appointment; 
approval by EP necessary to 
remove ED from office 

annual WP submitted to EP 

x 

no discharge by EP 

85 

 
 
 
EU Agencies, Common Approach and Parliamentary Scrutiny 

Annex 6: Role of the Council 

Name 

ACER 

APPF 

BEREC 

CdT 

Cedefop 

Legislator 

Nomination power 

Political supervision 

EP + Council 

5 reps Admin. Board 

Invite ED to report on 
tasks 

EP + Council 

EP + Council 

Council 

Council 

Appoints Director with 
EP and Com 

/ 

/ 

1 rep per MS in MB 

/ 

/ 

/ 

Approves Rules of 
Procedure 

Approves annual work 
programme 

CEPOL 

EP + Council 

/ 

CPVO 

EASA 

EASO 

EBA 

ECDC 

ECHA 

EDPB 

EEA 

EFCA 

EFSA 

EIGE 

EIOPA 

ELA 

EMA 

EMCDDA 

EMSA 

ENISA 

EPPO 

Council 

President 

/ 

EP + Council 

EP + Council 

EP + Council 

EP + Council 

EP + Council 

EP + Council 

EP + Council 

Council 

EP + Council 

EP + Council 

EP + Council 

EP + Council 

EP+ Council 

EP + Council 

EP + Council 

EP + Council 

EP + Council 

/ 

/ 

/ 

/ 

1 rep per MS in MB 

/ 

/ 

/ 

4 reps of organisations 
in MB + 10 reps in 
individual capacity 

1 rep per MS in MB 

/ 

/ 

4 stakeholder reps in 
MB  

/ 

/ 

/ 

Invite ED to report on 
tasks 

Invite ED to report on 
tasks 

/ 

/ 

/ 

/ 

/ 

/ 

/ 

/ 

/ 

Invite ED to report on 
tasks 

/ 

/ 

/ 

Adopt establishment 
plan agency 

Appoints the European 
Chief Prosecutor with 
the EP + appoints 

/ 

87 

 
 
EPRS | European Parliamentary Research Service 

Name 

Legislator 

Nomination power 

Political supervision 

European Prosecutor of 
each MS 

ERA 

ESMA 

ETF 

EP + Council 

EP + Council 

EP + Council 

Eu-LISA 

EP + Council 

/ 

/ 

/ 

/ 

EU-OSHA 

Council 

1 rep per MS in Gov. 
Board 

EP + Council 

Appoints ED 

EUIPO 

Eurofound 

Eurojust 

Council 

Council 

1 rep per MS in MB 

/ 

/ 

Europol 

EP + Council 

FRA 

FRONTEX 

GSA 

Council 

1 rep 

EP + Council 

EP + Council 

/ 

/ 

SRB 

EP + Council 

Appoints Chair 

Invite ED to report on 
tasks 

/ 

Hear the ED on any 
related topic  

Invite ED to report on 
tasks 

/ 

/ 

/ 

Approves rules of 
procedure  

Receives report on 
future activities + 
approves rules of 
procedures 

Approves multi-annual 
framework 

/ 

/ 

The Chair may be heard 
by the Council, at the 
Council's request, on 
the performance of the 
resolution tasks by the 
Board. 

88 

 
 
 
 
 
Annex 7: Role of the Member States vis-à-vis Agencies 

Member States 

Member States in MB 

/ 

/ 

/ 

/ 

/ 

/ 

MS can request training and other 
activities concerning the application of 
railway safety and interoperability 
legislation 

/ 

/  

/ 

The MS can request a scientific opinion 
on matters falling within its mission.  

+ MS are part of the Advisory Forum  

A MS Committee is responsible for 
resolving potential divergences of 
opinions on draft decisions proposed 
by the Agency. 

The MS competent authorities are 
involved in the coordination of the 
substance evaluation process.  

/ 

/ 

The MS can request contractual 
services relating to control and 
inspection in Community and/or 
international waters. 

/ 

/ 

One member of each MS 

One member of each MS 

One member of each MS 

One member of each MS 

One member of each MS 

One member of each MS 

One member of each MS 

One member of each MS 

/ 

One member per MS 

One member per MS 

/ 

One member of each MS 

One member of each MS 

The MS can request scientific opinions 
on any question within EFSA’s mission.  

/ 

+ MS are part of the Stakeholder Forum 

/ 

/ 

MS can request the coordination of 
concerted or joint inspections. 

MS can request a scientific opinion on 
any scientific matter concerning the 
evaluation of medicinal products for 
human use.  

Eighteen representatives proposed by 
ach MS concerned 

/ 

One member of each MS 

One member of each MS 

Name 

ACER 

APPF 

BEREC 

CdT 

Cedefop 

CEPOL 

CPVO 

ERA 

EASA 

EASO 

EBA 

ECDC 

ECHA 

EDPB 

EEA 

EFCA 

EFSA 

EIGE 

EIOPA 

ELA 

EMA 

89 

 
 
EPRS | European Parliamentary Research Service 

Name 

Member States 

Member States in MB 

EMCDDA 

EMSA 

ENISA 

EPPO 

ESMA 

ETF 

Eu-LISA 

EU-OSHA 

EUIPO 

Eurofound 

Eurojust 

Europol 

FRA 

FRONTEX 

GSA 

SRB 

MS are part of the European 
Information Network on Drug and Drug 
Addiction.  

/ 

/ 

MS nominate candidates for the 
position of European Prosecutor.  

/ 

/ 

/ 

/ 

MS can request assistance in the 
coordination of investigations and 
prosecutions. 

/ 

/ 

/ 

MS shall cooperate with the GSA on all 
matters related to security 
accreditation. 

One member of each MS 

One member of each MS 

One member of each MS 

One member of each MS 

/ 

One member of each MS 

One member of each MS 

One member of each MS 

One member of each MS 

One member of each MS 

One member of each MS 

One member of each MS 

One member of each MS 

One member of each MS 

One member of each MS 

/ 

One member of each MS 

90 

 
 
 
 
 
 
 
 
Annex 8: Stakeholders 

Name 

Founding Act 

Specific provisions on Stakeholders 

Stakeholders in the MB 

ACER 

APPF 

Reg 713/2009 

/ 

Reg 1141/2014 

Article 25  

Stakeholders’ views are taken into 
account for the Commission’s 
evaluation report.  

/ 

/ 

/ 

/ 

Article 62 
Stakeholders’ views are taken into 
account for the independent 
external evaluation of the 
implementation of the Regulation.  

Article 51 
Stakeholders maintain a close 
dialogue with the Agency, and are 
involved in the Consultative Forum 
for the exchange of information.  

Article 37 
Stakeholders are in the Banking 
Stakeholder Group and are 
consulted in matters concerning 
regulatory technical standards and 
their implementation. It may also 
submit opinions and advice to the 
Authority.  

Article 18 
Stakeholders are in the Advisory 
Forum, which shall support the 
director in ensuring the scientific 
excellence and independence of 
activities and opinions of the 
Centre, and exchange information.  

BEREC 

Reg 1211/2009 

CdT 

Council Reg 
2965/94 

Cedefop 

Council Reg 
337/75 

CEPOL 

Reg 2015/2219 

CPVO 

Council Reg 
2100/94 

EASA 

Reg 2018/1139 

EASO 

Reg 439/2010 

EBA 

Reg 1093/2010 

ECDC 

Reg 851/2004 

91 

/ 

/ 

/ 

Article 4 
One representative of the 
employees’ organisations 
from each MS + one rep of 
employers’ organisations 
from each MS 

/ 

/ 

/ 

/ 

/ 

/ 

 
 
 
EPRS | European Parliamentary Research Service 

ECHA 

Reg 1907/2006 

Article 76 
Stakeholders are in the Forum for 
Exchange of Information on 
Enforcement, which coordinates a 
network of MS authorities, and 
which supports the coordination 
and harmonization of ECHA’s tasks.   

EDPB 

Reg 2016/679 

EEA 

Reg 401/2009 

/ 

/ 

Article 79 
Three individuals from 
interested parties without 
voting rights 

/ 

Article 8 
Two scientific personalities 
particularly qualified in the 
field of environmental 
protection 

EFCA 

Council Reg 
768/2005 

Article 31 
Stakeholders are in the Advisory 
Board which will advise the 
Executive Director at his request.  

/ 

EFSA 

Reg 178/2002 

EIGE 

Reg 1922/2006 

EIOPA 

Reg 1094/2010 

Article 27 
Stakeholders are in the Advisory 
Forum, which shall advise the 
Executive Director in the 
performance of his duties under this 
Regulation, as well as constitute a 
mechanism for exchange of 
information and ensure close 
cooperation between the Authority 
and the competent bodies in the 
Member States.  

Article 11 
Stakeholders are in the Experts' 
Forum, which shall support the 
Director in ensuring the excellence 
and independence of activities of 
the Institute, constitute a 
mechanism for an exchange of 
information, and ensure close 
cooperation between the Institute 
and competent bodies in the 
Member States.  

Article 37 
Stakeholders are in the Stakeholder 
Group, which shall be consulted on 
actions concerning regulatory 
technical standards and 
implementing technical standards, 
and guidelines and 
recommendations. It may also 
submit opinions and advice to the 

Article 25 
Four of the members shall 
have their background in 
organisations representing 
consumers and other 
interests in the food chain.  

/ 

/ 

92 

 
 
ELA 

/ 

Authority on any issue related to the 
tasks of the Authority. 

Article 24 
Stakeholders are in the Stakeholder 
Group which has advisory functions, 
and may submit opinions and 
advice to the Authority. 

/ 

EMA 

Reg 726/2004 

Article 78 
Stakeholders are in contact with the 
Agency, which may include the 
participation as observers in the 
Agency’s work.  

EMCDDA 

Reg 1920/2006 

/ 

EMSA 

Reg 1406/2002 

/ 

Article 65 
Two representatives of 
patients’ organizations, one 
representative of 
veterinarians’ 
organisations. 

Article 9 
Two independent experts 
particularly knowledgeable 
in the field of drugs 

Article 11 
Four professionals from the 
sectors most concerned, 
without the right to vote 

ENISA 

Reg 526/2013 

Article 12 
Stakeholders are in a Permanent 
Stakeholders’ Group, which shall 
advise the Agency in respect of the 
performance of its activities.  

EPPO 

Reg 2017/1939 

/ 

/ 

/ 

Article 38 
Stakeholders are in a network of 
representative bodies from the 
railway sector acting at Union level. 
Its tasks are the exchange of 
information, the promotion of good 
practices, and the provision of data. 
It may also comment on draft 
opinions.  

Article 47 
The MS shall include, 
without a right to vote, 
representing at European 
level, the following 
stakeholders: railway 
undertakings; infrastructure 
managers; the railway 
industry; trade-union 
organisations; passengers’ 
and freight customers 

Article 37 
Stakeholders are part of a 
Stakeholder Group, which shall be 
consulted on actions concerning 
regulatory technical standards and 
implementing technical standards 
and guidelines and 
recommendations. It may also 
submit opinions and advice to the 
Authority on any issue related to the 
tasks of the Authority. 

/ 

ERA 

Reg 2016/796 

ESMA 

Reg 1095/2010 

93 

 
EPRS | European Parliamentary Research Service 

ETF 

Reg 1339/2008 

/ 

Article 7 
Three non-voting experts 

Eu-LISA 

Reg 1077/2011 

Article 19 
Stakeholders are in the Advisory 
Group, which shall provide the 
Management Board with expertise 
relating to large-scale IT systems 
and, in particular, in the context of 
the preparation of the annual work 
program and the annual activity 
report. 

/ 

EU-OSHA 

Council Reg 
2062/94 

/ 

Article 8 
One member representing 
the employers’ 
organisations from each MS 
+ one member 
representing the 
employees’ organisations 
from each MS 

EUIPO 

Reg 2017/1001 

/ 

/ 

Eurofound 

Council Reg 
1365/75 

/ 

Eurojust 

Council Decision 
2002/187 

/ 

Article 6 
One member representing 
the employers’ 
organisations from each MS 
+ one member 
representing the 
employees’ organisations 
from each MS 

Article 2 
Eurojust shall have one 
national member seconded 
by each MS in accordance 
with its legal system, who is 
a prosecutor, judge or 
police officer of equivalent 
competence 

Europol 

Reg 2016/794 

Article 45 
Stakeholders are in the Cooperation 
Board, which discusses general 
policy and strategy on data 
protection. It may also issue 
opinions, guidelines, 
recommendations and best 
practices.  

/ 

FRA 

Council Reg 
168/2007 

Article 10 
Stakeholders are in the 
Fundamental Rights Platform, which 
shall constitute a mechanism for the 
exchange of information and 

Article 12 
One independent person 
appointed by each MS, 
having high level 
responsibilities in an 

94 

 
 
pooling of knowledge, as well as to 
give feedback on the Agency’s 
reports.  

independent national 
human rights institution + 
one independent person 
appointed by the Council 
of Europe 

FRONTEX 

Reg 2016/1624 

Article 70 
Stakeholders are in the consultative 
forum, which assists the executive 
director and the management 
board with independent advice in 
fundamental rights matters and on 
fundamental rights strategy 

GSA 

SRB 

Reg 912/2010 

Reg 806/2014 

/ 

/ 

/ 

/ 

/ 

95 

 
 
 
 
EPRS | European Parliamentary Research Service 

 Annex 9: Transparency 

Name 

Founding Act 

Transparency 

Article 10 
The Agency shall consult extensively and at an early stage with 
stakeholders, in an open and transparent manner. It shall ensure 
that the public and any interested parties are given objective, 
reliable and easily accessible information. 

All documents and minutes of consultation meetings conducted 
during the development of framework guidelines shall be made 
public.  

Before adopting framework guidelines or proposing amendments 
to network codes, the Agency shall indicate how the observations 
received during the consultation have been taken into account 
and shall provide reasons where those observations have not been 
followed.  

The Agency shall make public on its own website, at least the 
agenda, the background documents and, where appropriate, the 
minutes of the meetings of the Administrative Board, of the Board 
of Regulators and of the Board of Appeal. 

Article 32 
The EP shall publish on its website all relevant information and 
documents regarding European political parties and foundations, 
as well as rejected applications, including all information relating 
to financing, donations, and all support provided to them by the 
EP. 

Article 18 
BEREC and the Office shall carry out their activities with a high level 
of transparency, including objective, reliable and easily accessible 
information. 

ACER 

Reg 713/2009 

APPF 

Reg 1141/2014 

BEREC 

Reg 1211/2009 

CdT 

Cedefop 

Council 
2965/94 

Council 
337/75 

Reg 

Reg 

/ 

/ 

CEPOL 

Reg 2015/2219 

Article 28 
Access to documents rules apply to documents held by CEPOL. 
(Reg 1049/2001) 

CPVO 

Council 
2100/94 

Reg 

/ 

EASA 

Reg 2018/1139 

EASO 

Reg 439/2010 

Article 58 
Access to documents rules shall apply to documents held by the 
Agency. The Agency shall ensure that the public and any 
interested party are rapidly given objective, reliable and easily 
understandable information  

Article 42 
Access to documents rules shall apply to documents held by the 
Agency. (Reg 1049/2001) 

96 

 
 
EBA 

Reg 1093/2010 

ECDC 

Reg 851/2004 

ECHA 

Reg 1907/2006 

Article 72 
Access to documents rules shall apply to documents held by the 
Agency. (Reg 1049/2001) 

Article 20 
Access to documents rules shall apply to documents held by the 
Agency. (Reg 1049/2001) 

Article 109 
To ensure transparency, the Management Board shall, adopt rules 
to ensure the availability to the public of regulatory, scientific or 
technical information concerning the safety of substances on their 
own, in preparations or in articles which is not of a confidential 
nature.  

EDPB 

Reg 2016/679 

/ 

EEA 

Reg 401/2009 

EFCA 

Council 
768/2005 

Reg 

EFSA 

Reg 178/2002 

EIGE 

Reg 1922/2006 

EIOPA 

Reg 1094/2010 

ELA 

/ 

EMA 

Reg 726/2004 

97 

Article 6 
Access to documents rules shall apply to documents held by the 
Agency. (Reg 1049/2001) 

Article 32 
Access to documents rules shall apply to documents held by the 
Agency. (Reg 1049/2001) The Agency may also communicate on its 
own initiative in the fields within its mission. It shall ensure in 
particular that the public and any interested party are rapidly given 
objective, reliable and easily understandable information with 
regard to its work.  

Article 38 
The Authority shall ensure that it carries out its activities with a 
high level of transparency. It shall in particular make public without 
delay the agendas and minutes of the Scientific Committees and 
Panels, their opinions, including minority opinions, as well as the 
information on which they are based, the declarations of interest, 
the results of its studies, its annual report and requests for scientific 
opinions which have been refused. In addition, the MB shall hold 
its meetings in public. 

Access to documents rules shall apply to documents held by the 
Agency (Reg 1049/2001) 

Article 7 
Access to documents rules shall apply to documents held by the 
Agency. (Reg 1049/2001) 

Article 72 
Access to documents rules shall apply to documents held by the 
Agency. (Reg 1049/2001) 

Article 37 
Access to documents rules shall apply to documents held by the 
Agency (Reg 1049/2001). The Authority may also engage in 
communication activities on its own initiative within its field of 
competence.  

Article 80 

To ensure an appropriate level of transparency, the MB shall adopt 
rules to ensure the availability to the public of regulatory, scientific 
or technical information concerning the authorisation or 
supervision of medicinal products which is not of a confidential 
nature.  

 
EPRS | European Parliamentary Research Service 

The internal rules and procedures of the Agency, its committees 
and its working groups shall be made available to the public at the 
Agency and on the Internet.  

The Agency shall also make public members of the Committees 
and the members of the coordination group, together with their 
professional qualifications and with the declarations of interests, 
agendas and minutes from each meeting of the Committees, 
information relating to the authorization (process), and 
conclusions of assessments, recommendations, opinions, 
approvals and decisions taken by the Committees and by the 
coordination group, the national competent authorities and the 
Commission.  

Article 7 
Access to documents rules shall apply to documents held by the 
Agency. (Reg 1049/2001) 

Article 4 
Access to documents rules shall apply to documents held by the 
Agency (Reg 1049/2001). The Agency may communicate on its 
own initiative in the fields within its mission. It shall ensure in 
particular that the public and any interested party are rapidly given 
objective, reliable and easily understandable information with 
regard to its work.  

Article 15 
Members of the MB, the ED and MS officials shall make a 
declaration of commitments and interests. The Agency shall ensure 
that the public and any interested parties are given appropriate, 
objective, reliable and easily accessible information, in particular 
with regard to the results of its work. The Management Board, 
acting on a proposal from the Executive Director, may authorise 
interested parties to observe the proceedings of some of the 
Agency’s activities.  

Article 109 
Access to documents rules shall apply to documents held by the 
Agency. (Reg 1049/2001) 

Article 77 
Access to documents rules shall apply to documents held by the 
Agency (Reg 1049/2001). The Agency shall also publish its 
recommendations, opinions, studies, reports and outcomes of 
impact assessments on its website. It shall also make public the 
declarations of interests of the members of the Agency's 
management and administrative structure listed in Article 46. The 
Management Board shall adopt measures to ensure that the 
Agency provides efficient, user-friendly and easily accessible 
information on its website about railway interoperability and 
safety processes and about other relevant railway documents.  

Article 72 
Access to documents rules shall apply to documents held by the 
Agency. (Reg 1049/2001) 

Article 4 
Access to documents rules shall apply to documents held by the 
Agency (Reg 1049/2001). The Foundation shall make public the 

98 

EMCDDA 

Reg 1920/2006 

EMSA 

Reg 1406/2002 

ENISA 

Reg 526/2013 

EPPO 

Reg 2017/1939 

ERA 

Reg 2016/796 

ESMA 

Reg 1095/2010 

ETF 

Reg 1339/2008 

 
 
rules of procedure of the Foundation and its Governing Board, and 
its annual activities. It may authorise representatives of interested 
parties to attend meetings of the Foundation’s bodies in the 
capacity of observers.  

Article 26 
Access to documents rules shall apply to documents held by the 
Agency. (Reg 1049/2001) 

Eu-LISA 

Reg 1077/2011 

EU-OSHA 

Council 
2062/94 

Reg 

/ 

EUIPO 

Reg 2017/1001 

Article 113 
Access to documents rules shall apply to documents held by the 
Agency (Reg 1049/2001). The Office’s decisions shall be made 
available online. The Office may also provide online access to 
judgments of national and Union courts related to its tasks in order 
to raise public awareness of intellectual property matters and 
promote convergence of practices.  

Eurofound 

Council 
1365/75 

Reg 

/ 

Eurojust 

Council  Decision 
2002/187 

Article 39 
Access to documents rules shall apply to documents held by the 
Agency. (Reg 1049/2001) 

Europol 

Reg 2016/794 

Article 65 
Access to documents rules shall apply to documents held by the 
Agency (Reg 1049/2001). Europol shall publish on its website a list 
of the Management Board members and summaries of the 
outcome of the meetings of the Management Board.  

FRA 

Council 
168/2007 

Reg 

Article 17 
Access to documents rules shall apply to documents held by the 
Agency (Reg 1049/2001) 

FRONTEX 

Reg 2016/1624 

Article 74 
Access to documents rules shall apply to documents held by the 
Agency (Reg 1049/2001). The Agency shall communicate on 
matters falling within the scope of its tasks on its own initiative. It 
shall make public relevant information including the annual 
activity report and ensure that the public and any interested party 
are rapidly given objective, comprehensive, reliable and easily 
understandable information with regard to its work. It shall do so 
without revealing operational information which, if made public, 
would jeopardise attainment of the objective of operations.  

Reg 912/2010 

Article 21 
Access to documents rules shall apply to documents held by the 
Agency. (Reg 1049/2001) 

Reg 806/2014 

/ 

GSA 

SRB 

99 

 
 
 
 
 
 
EPRS | European Parliamentary Research Service 

Annex 10: Management Boards – Composition and Appointing 
Authority 

Agency 

Composition 

Appointing Authority 

2 members appointed by COM 

Commission 

ACER 

2 members appointed by EP (no MEP) 

5 members appointed by Council 

APPF 

- 

BEREC 

1 representative per MS (from independent NRA) 

1 representative Commission 

1 representative of agencies listed 

1 representative per MS 

CDT 

2 representatives Commission 

EP 

Council 

- 

MS 

Commission 

Agencies 

MS 

Commission 

1 representative each of bodies that have agreements with 
CDT 

bodies 

1 representative per MS 

Cedefop 

1 representative employers’ organisation per MS 

1 representative employees’ organisation per MS 

Council 

Council 

Council 

Commission 

MS 

Commission 

MS 

Commission 

MS 

Commission 

MS 

Commission 

Chairperson 

2 representatives Commission 

1 representative per MS 

1 representative Commission 

1 representative per MS 

1 representative Commission 

1 representative per MS 

2 representatives Commission 

1 representative per MS 

2 representatives Commission 

Chairperson 

CEPOL 

CPVO 

EASA 

EASO 

EBA 

head of each national supervisory authority 

Supervisory authority 

1 Commission representative 

1 representative of ECB 

Commission 

ECB 

100 

 
 
ECHA 

EDPB 

EEA 

EFCA 

EFSA 

EIGE 

1 representative of ESRB 

1 representative each of other 2 ESAs 

1 designated by each MS 

ECDC 

2 designated by EP 

 3 representing Commission 

MS representatives 

6 COM representatives 

3 individual from interested parties 

2 independent persons 

head of supervisory authority of each  

MS 

EDPS 

1 representative of Commission 

1representative per MS 

2 representatives Commission 

ESRB 

ESAs 

MS 

EP 

Commission 

MS 

Commission 

EP 

EP 

MS 

EDPS 

Commission 

MS 

Commission 

1 representative other participating countries 

Other countries 

2 scientific personalities 

1 representative per MS 

EP 

MS 

6 representatives Commission 

Commission 

14  members  (4  shall  have  background  in  consumer 
organizations or interests in foodchain) 

Council (in consultation with EP) 

1 Commission representative 

Commission 

18 representatives 

Council (proposal by MS) 

1 representative Commission 

Chairperson 

Commission 

Chairperson 

head of national supervisory authorities 

National supervisory authorities 

EIOPA 

1 representative Commission 

Commission 

1 representative ESRB 

1 representative each of other 2 ESAs 

ELA 

1 representative per MS 

ESRB 

ESAs 

MS 

101 

 
 
 
 
EPRS | European Parliamentary Research Service 

2 representatives Commission 

1 representative per MS 

2 Commission representatives 

2 EP representatives 

EMA 

Commission 

MS 

Commission 

EP 

2 representatives patients’ organisations 

Council (consult EP) 

1 representative doctors’ organisation 

Council (consult EP) 

1 representative veterinarians’ organisation 

Council (consult EP) 

1 representative per MS 

2 representatives Commission 

EMCDDA 

2 experts in drugs 

MS 

Commission 

EP 

1 representative of each country that has an agreement 

countries 

1 representative per MS 

EMSA 

4 representatives Commission 

4 professionals 

1 representative per MS 

2 representatives Commission 

European Chief Prosecutor 

1 European Prosecutor per MS 

1 representative per MS 

ENISA 

EPPO 

ERA 

MS 

Commission 

Commission 

MS 

Commission 

Council 

Council 

MS 

2 representatives Commission 

Commission 

1  representative  each  of:  railway  undertakings, 
infrastructure managers, railway industry, trade-union 
org., passengers, freight customers 

Chairperson 

Commission 

Chairperson 

head of national supervisory authorities 

National supervisory authorities 

ESMA 

1 representative Commission 

Commission 

1 representative ESRB 

1 representative each of other ESAs 

ETF 

1 representative per MS 

ESRB 

ESAs 

MS 

3 representatives Commission 

Commission 

102 

 
 
3 experts 

1 representative per MS 

EP 

MS 

EUIPO 

2 representatives Commission 

Commission 

EU-LISA 

EU-OSHA 

1 representative EP 

1 representative per MS 

EP 

MS 

2 representatives Commission 

Commission 

1 representative per MS 

1 representative employers’ organisation per MS 

1 representative employees’ organisation per MS 

Council 

Council 

Council 

3 representatives Commission 

Commission 

1 per MS 

Eurofound 

1 representative employers’ organisation per MS 

1 representative employee’s organisation per MS 

Council 

Council 

Council 

3 representatives Commission 

Commission 

Eurojust 

1 prosecutor/ judge/ police officer per MS 

Europol 

1 representative per MS 

1 representative Commission 

1 independent person per MS 

MS 

MS 

Commission 

MS 

FRA 

1 independent person by Council of Europe 

Council of Europe  

2 representatives Commission 

1 representative per MS 

FRONTEX 

2 representatives Commission 

Commission 

MS 

Commission 

1 representative per other state participating 

Participating states 

MS 

Commission 

EP 

Commission proposes, EP approves, 
Council appoints 

1 representative per MS 

GSA 

4 representatives of Commission 

1 representative EP 

Chair 

4 fulltime members 

SRB 

103 

 
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Decentralised  agencies  were  set  up  on  a  case-by-case 
basis over the years, to respond to emerging individual 
policy needs. They have been operating in very diverse 
conditions.  In  2012,  the  European  Parliament,  the 
Council  and  the  Commission  sought  to  rectify  this  by 
adopting a Joint Statement and a comprehensive set of 
guiding  principles  –  a  ‘Common  Approach’  –  to  make 
the agencies more coherent, effective and accountable.  

This study has been prepared in the light of an expected 
revision  of  these  guiding  principles,  and  provides  an 
analysis  of  the  different  decentralised  EU  agencies 
according to a number of criteria.  

It  examines  in  particular  if  and  how  parliamentary 
scrutiny over decentralised agencies is undertaken, and 
makes recommendations for reaching a more coherent, 
efficient  and  transparent 
for 
parliamentary scrutiny of the activities of decentralised 
agencies 

institutional  set-up 

This is a publication of the Ex-Post Evaluation Unit 
EPRS | European Parliamentary Research Service 

This document is prepared for, and addressed to, the Members and staff of the European 
Parliament as background material to assist them in their parliamentary work. The content of 
the document is the sole responsibility of its author(s) and any opinions expressed herein should 
not be taken to represent an official position of the Parliament. 

ISBN 978-92-846-3384-5 
doi:10.2861/656418 
QA-06-18-234-EN-N