5 Operating framework for European agencies
| (26408)
7032/05
COM(05) 59
| Draft Interinstitutional Agreement on the operating framework for the European regulatory agencies
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| Legal base | — |
| Document originated | 25 February 2005
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| Deposited in Parliament | 9 March 2005
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 22 March 2005
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| Previous Committee Report | None; but see (24175) 5091/03: HC 63-xii (2002-03), para 8 (12 February 2003)
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| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information requested
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Background
5.1 The Community has a large number of agencies with regulatory,
technical or advisory functions.[10]
Most of them have been set up under the EC Treaty; others have
been created under the EU or Euratom Treaties.
5.2 The regulations which set up the existing agencies
did not follow a consistent pattern in defining the agencies'
powers, management and operations. In 2002, a Commission Communication
advocated the introduction of a common framework for all new agencies
set up under the EC Treaty. We reported on the Communication in
February 2003.[11] Last
year, the Communication was welcomed by both the European Parliament
and the Council.
The document
5.3 The Commission proposes that the common framework
should be defined in an "Interinstitutional Agreement"
between the Council, the European Parliament and the Commission.
There is no Treaty base for such agreements, but there is European
Court of Justice case law to the effect that they are binding
in so far as the contents show that the three institutions intend
to enter into a commitment to each other.[12]
5.4 The Commission proposes that:
- the framework should apply
to legislation to set up new agencies under the EC Treaty; and
- as soon as possible after the Agreement comes
into effect, the three institutions should consider whether the
framework could be extended to existing agencies, whether set
up under the EC Treaty or other Treaties.
5.5 The draft Agreement defines the "regulatory
agencies" to which it would apply as autonomous legal entities
which:
- apply Community standards to
specific cases, taking decisions which are legally binding on
those to whom they relate;
- provide the Commission and Member States with
technical opinions and inspection reports;
- create networks of national competent authorities
in order to exchange and compare information and good practice;
and
- are not "executive agencies" (that
is, agencies set up by the Commission to carry out tasks which
relate exclusively to the management of a Community programme).
5.6 The draft Agreement would require the Commission
to conduct an impact assessment before making a proposal for the
creation of a new agency. The assessment would have to apply the
principles of subsidiarity and proportionality to the proposal
and cover such questions as the added value of the proposed agency,
alternatives such as extending the remit of an existing agency,
and the costs and risks of the proposal.
5.7 The draft Agreement provides that the location
of a new agency should be decided when the legislation creating
the agency is adopted or within six months of its adoption.
5.8 Every new agency would have an Administrative
Board with responsibilities for a common list of functions, such
as the appointment of the Director, deciding the agency's annual
estimates, approving the work programme and financial rules and
adopting the annual report.
5.9 The draft Agreement says that the composition
of the Administrative Boards would need to vary depending on the
functions of the particular agency, but:
- the Council and the Commission
should have an equal number of representatives on Boards;
- in certain cases, each Member State would be
represented by a Board member designated by the Council;
- the Commission should appoint non-voting members
to represent "interested parties";
- there should be an equal number of men and women
on the Board; and
- members should serve for five years, renewable
for a further five.
5.10 If the number of members of the Administrative
Board was such that the Board could not effectively perform all
its functions, an Executive Board might be created to discharge
functions delegated to it. An Executive Board could not have more
than eight members. They would be appointed (in equal number)
by the Council and the Commission; the representatives of the
"interested parties" on the Administrative Board would
be non-voting members of the Executive Board.
5.11 Each agency should have a Director, with a list
of common functions. The Director would be appointed by the Administrative
Board from among candidates proposed by the Commission.
5.12 The draft Agreement also includes provision
for agencies to be open ("transparent") in the conduct
of their activities; for budgetary control and audit; for staff
conditions of employment (including the application to them of
the Protocol on the privileges and immunities of the European
Communities);[13] participation
of third countries; and international activities.
5.13 The agency would be required to conduct regular
evaluations of its own activities; and the Commission would be
required to conduct wider evaluations, which could culminate in
proposals for amendments to the agency's functions or the abolition
of the agency.
The Government's view
5.14 The Minister for Europe (Mr Denis MacShane)
tells us that the draft Interinstitutional Agreement reflects
four themes: the need for agencies to be coherent; for them to
be effective; for them to be accountable; and for the participation
of interested parties and a high level of transparency. The Government
is considering its negotiating position on the proposal.
Conclusion
5.15 Clearly, all proposals for new EU agencies
should be subjected to rigorous analysis, and the legislation
to establish any agency should contain appropriate provisions
on the constitution, finances, functions, operations and periodic
evaluation of the agency. We can, therefore, see the merit of
having a checklist for the Commission, Council and European Parliament
to take into account when devising or examining proposals for
agencies. It is less apparent, however, why provision on such
matters need be written into a binding agreement between the three
institutions, with the consequent risk of imposing unnecessary
or undesirable rigidity and bureaucracy.
5.16 We understand that negotiations on the document
have not yet begun and that the Government has not yet decided
its negotiating position. We invite the Minister to take account
of our reservations about the proposal for a binding agreement
rather than a checklist. We also ask him to keep us regularly
informed of the progress of the negotiations and to tell us the
Government's views on the proposal as they develop. Meanwhile,
we shall keep the document under scrutiny.
10 For example, the European Food Safety Authority,
the Euratom Supply Agency, the European Agency for Safety and
Health at Work, Europol, and the European Marine Safety Agency. Back
11
See headnote. Back
12
Case C-25/94, Commission v Council, ECR I-1469. Back
13
OJ No. L 152 of 13.7. 1967, p.13. Back
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