Autonomous public bodies in the European legal sphere

Stéphanie De Somer looks at the influence of EU law on the creation of independent regulatory authorities and the interaction of this trend with national constitutions.

EU law is transforming national administrative organization, provoking important questions of democratic legitimacy

Much has been written already about the impact of EU law on national administrative law. We know, for instance, that the general principles of administrative law recognized by the Member States’ legal systems have been and are still being redefined under the influence of EU primary and secondary law. Much less documented, however, is the way in which EU law influences national administrative organization.

An increasing number of EU legislative documents oblige or strongly encourage Member States to entrust the implementation of substantive rules of EU law to administrative bodies that enjoy a certain (often substantial) degree of political autonomy. Independent regulatory bodies and data protection authorities are the most important examples of this trend. To many lawyers, this type of influence by EU law is counter-intuitive: the EU legislature has traditionally left decisions on national administrative organization to the Member States themselves. This is now changing and the question arises why this is the case and to what extent this interference is legitimate.

Typical for the national regulatory or supervisory bodies that are created pursuant to EU legislation is that they enjoy broad discretionary powers. These bodies reveal that even government tasks that are obviously ‘technical’ in nature or that require substantial scientific or experience-based knowledge should not be labelled as ‘apolitical’ too easily. This argument is often put forward with regard to the missions entrusted to independent regulatory bodies. These bodies are, however, increasingly obliged to take into account a number of different objectives and considerations and to make policy trade-offs.

EU obligations to establish independent national regulatory or supervisory bodies are inspired by considerations of credibility, comprising more general values such as integrity, quality and trustworthiness. Ensuring that expertise (either technical or experience-based) plays a decisive role in the decision-making process and avoiding conflicts of interest are components of this wider goal of ‘credibility’. For economic regulation more specifically, ‘time consistency’ has been put forward as an imperative goal and as the major benefit of political independence by political economists and others. This argument still knows wide acclamation in academic literature and its value seems quite uncontested. At the same time, there are both theoretical and empirical arguments for arguing that the value attached to time consistency may be overrated. If that is so, an important reason for the EU to demand such high degrees of independence from national regulatory authorities loses its significance and the legitimacy of such obligations becomes questionable.

The independent supervisory authorities whose creation and empowerment is currently mandatory under EU law have moreover given rise to tensions with national constitutional law. Central to these tensions are concerns about democratic accountability. The combination of a far-reaching degree of political autonomy with large discretionary powers is particularly hard to reconcile with many national European Constitutions.

For the future, it seems advisable for the EU legislature to take into account fundamental principles governing administrative organization common to the constitutional traditions of European democracies when enacting legislation that directly affects Member States’ systems of administrative organization. Similarly to what has been argued and accepted for fundamental rights and freedoms, the EU should accept these principles, which are constitutional in nature, as general and predominant principles, constituting an integral part of the EU administrative legal order. Pursuant to article 6 TEU, ‘[f]undamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law’. Before this provision featured in the Treaty, the EU legislature and the ECJ qualified fundamental (human) rights as general principles of EU law already. The question arises why the same should not be true for other common European fundamental principles with constitutional value.

As far as national supervisory bodies are concerned, efforts should be made to explore the potential of balanced solutions for political supervision and accountability of national regulatory and supervisory bodies. A series of in-depth interviews with Belgian and Dutch autonomous public bodies reveals that there are ways to protect the role of experts in these bodies, while at the same time allowing for political input. Such configurations unite or merge multiple forms of legitimacy. More specifically, tailored and balanced forms of political input should aim to establish a form of equal partnership between experts in supervisory bodies and political principals. Since the ultimate decision should be both technically and politically desirable, dialogue between experts and politicians, in which both sides are invited to empathize with each other’s viewpoints and to accept the reasonableness of each other’s concerns, should be a central concern.

This requires tailored solutions on a case-by-case basis. It may not always be easy to find a proper balance between the input of experts on the one hand and elected politicians on the other hand. Acknowledging this inherent complexity in the institutional design of supervisory bodies, however, is preferable to the more one-sided solutions that have often been put forward in the past and that have been adopted by the EU legislature.

Stéphanie De Somer, Postdoctoral Researcher, FWO Flanders, University of Antwerp, Belgium and academic advisor (Of Counsel) for law firm Van Olmen & Wynant, Brussels, Belgium

Autonomous Public Bodies and the Law by Stéphanie De Somer is out now.

Read chapter one free on Elgaronline.