The Jean Monnet Program

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c) Procedural control

These two means by which agencies are controlled quasi‑directly by the established powers (legislative and executive) have been criticised by US writers: first, because the cost of these systems is not negligible; second, because the result is not absolutely guaranteed; and third, because the necessary data is essentially obtained from the agencies themselves, which very often flood the supervisory bodies with extensive documentation that is not always very clear, and which, worse still, may manipulate the information in order to influence the final decisions.200 Critics usually suggest that a more effective means of control is ensured by procedural requirements set in advance, that the agencies must respect both in rulemaking and in adjudication decisions. Clear and binding procedures are also likely to counterbalance the information lag of the controlling bodies.
US administrative law has taken the initiative in this respect too. The Administrative Procedure Act (APA) adopted in 1946 represents a statutory recognition of existing judicial precedents and lays down a uniform framework for fair conduct of agency activities and minimum standards of openness and transparency.
The main points of the APA can be summarised as follows: no new policy or change of existing policy without public notification of content and reasons; obligation to obtain comments from all interested parties; direct participation by interested parties in decision‑making, or, if this is not possible, publication of all the constituent elements of each case; explicit account taken of all relevant comments made, and obligation to give reasons for decisions concerning them.201
It follows that the agencies cannot present their work as a fait accompli, but must actively seek to obtain all valid data, that the entire decision‑making process is conducted openly, providing a number of opportunities to public and private actors to make their voices heard and to call for changes in policy, and lastly that the entire process has a major civic effect on all of society.202
Starting from these very high standards, the APA has, over half a century of application, undergone changes and extensions that have helped to give it greater impact and which illustrate the pragmatic US approach based on a desire always to adapt law to experience and not to introduce even new elements into old law that is unsuitable for them.203

Among the descendants of the APA are the Freedom of Information Act (FOIA), adopted in 1966 and amended in 1974, 1976, 1986 and 1996, which grants citizens extensive access to all agency documents and files except in ten specific cases, listed exhaustively (public disclosure requirements),204 the Government in the Sunshine Act (GITSA), adopted in 1976, which applies some transparency aspects of the FOIA to the operation of government, and the Federal Advisory Committee Act (FACA), adopted in 1972 and amended in 1976, which lays down further requirements for open sessions of the various committees operating within the agencies.205

In addition to these acts, there are others, which lay down procedural requirements for taking account of specific factors in the regulatory activity of agencies. The most important examples are the National Environment Policy Act (NEPA), which requires an environmental impact assessment, and the Regulatory Flexibility Act (RFA), adopted in 1980, which requires all agencies to take account of the consequences that their regulatory proposals may have for small businesses.206
All these procedural requirements are open to judicial review, which can lead to the measure concerned being cancelled for omission of an essential procedural requirement or to a right to appropriate compensation being granted, or both.
Control via binding procedures has a number of advantages: it helps the agencies to stick to their remit, against which their actions are constantly being measured by public authorities and individuals. The APA, as amended and interpreted by the Courts, establishes several provisions for third-party participation (the so-called fire alarm oversight) that plays a conciliatory role in the relations between the agencies and their principals that in the EU are the Council, the Parliament and the Commission.207 Consequently, the costs inherent in direct supervision tend to fall, as do legal costs, since the procedures prevent potential litigation. They also have two major indirect effects: by involving interested professional groups and the administration in the decision‑making process they both ensure synergy in setting and checking the agenda for regulatory action, thus increasing its legitimacy, and allowing consensual changes of direction without brutal amendments of the status quo ante (autopilot effect).208 At the same time, they even help to make the sometimes very vague remits of some agencies more specific.

Last but not least, the procedural requirements often help to identify and to put the basic question of the conflict of values between the effects of various regulatory processes. Balancing interests in such cases is a highly political task that cannot be delegated to any agency.

Community law already has legislative instruments formalising certain essential procedural requirements.209 The importance of the legal basis requirement for the administrative procedure is recognised.210 While it is not necessary to determine all administrative procedures by legislative instrument, this is desirable for certain procedures of particular political and practical importance. The decision‑making processes of the agencies, with a view to their development in the EU, is an obvious example. A European APA is perfectly imaginable in the context of existing provisions of the Treaty and of secondary legislation. The Commission must propose a regulation on the basis of Article 308 on the administrative procedures to be followed in the regulatory process, that the Council and Parliament will confirm by co‑decision.211

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