The Jean Monnet Program


c) Appointment procedures



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c) Appointment procedures

Greater responsibility, an additional guarantee of a limit on the autonomy of agencies, can be stimulated by the procedures for appointing and dismissing agencies’ executive boards. This is another means of linking them to all the Institutions and to civil society in such a way as to make them more legitimate and representative, thus maintaining the institutional balance within the Community.

In the present situation, despite the fact that the existence of an administrative board is a common and central element of all agencies, composition and voting rights vary and reflect the degree of autonomy and control that the legislative power wishes to delegate to each particular agency. Member States are always represented, but in some cases they are balanced by representatives of the social partners, in others by independent experts appointed by the European Parliament. The Commission is also always represented, but with quite different degrees of influence and control, ranging from powerful positions with several members and permanent seats to representation without a vote.

The above illustrates the extreme diversity of these bodies and the range of available solutions for achieving the right mix of conditions so that their tasks can be performed more effectively. This is a positive and flexible aspect, which should be retained. In the case of regulatory agencies, this diversity should even be increased, but reshaped: increased, in order to involve all interested parties, and reshaped in order to provide a better reflection of the position of the agencies within the Community's institutional balance. Greater diversity does not of course mean administrative boards that are overpopulated, cumbersome and inefficient. An average of twenty people at most (which is already a lot) should be the rule, even after the next enlargements. To achieve this, new rules for appointing members need to be drawn up. A plausible procedure would involve the Commission and Parliament choosing from a list submitted by the Council, containing three times the number of names as posts to be filled. The Court of Justice (and/or Court of First Instance) would be able to appoint one member, when the agency concerned would also have a quasi‑judicial function. The Economic and Social Committee (ESC) would appoint representatives of the economic and social interests concerned, when appropriate, and the same would apply to the Committee of the Regions, if the agency's activities affected important regional concerns. Only the Commission, as the executive, would automatically be represented in all cases by appointees of its choice. In all these procedures, there should be an attempt to achieve maximum representation of the Member States, without each of them having the right to a seat.

It should also be a possible to dismiss the agencies' managers before the end of their contract (three years, renewable twice), but only for serious misconduct in the performance of their duties. The decision would be the responsibility of the President of the Commission, subject to review by the Court.
We have thus described a network of multiple relationships between the agencies and all the powers acting at Community level. In practice, the operation of this structure guarantees and limits the autonomy of the agencies, these limits being basically political in nature.187 With specific regulatory, executive and quasi‑judicial functions delegated by the legislature, and connected to all the powers that primarily perform these functions, agencies constitute a condensed form of governance, uniting in a given field the extreme diversity and segmentation from which contemporary societies suffer. Their actions are therefore more effective than central executive action, while at the same time, regulated and monitored.

Within the European Community agencies are likely better to reflect and respect the balance between the institutions and better to take account of citizens' interests, thus partly closing the democratic gap in the EU.

These political limits on the relative autonomy of the agencies are also the ex ante conditions for their accountability, in that they provide in advance the means of ensuring that they operate as closely as possible in accordance with the wishes of the delegating authorities and the expectations of the citizens. However, these preconditions are not sufficient in themselves. Once created, the agencies, like any social entity, acquire a dynamic of their own, which can have undesirable results both for the Institutions that created them and for the individuals they are intended to serve. Hence the need for ex post control, a subject to which we will now turn.




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