House of Lords - European Union - Minutes of Evidence

Select Committee on European Union Minutes of Evidence

Memorandum by Professor Dr Monica G W den Boer

1. BACKGROUND

In 2003, the Department of Public Administration and Organisation Science at the VU Amsterdam initiated the research programme "Dynamics of Governance".

The research programme undertakes multidisciplinary research on dynamics of governance of organisations primarily in the public sector. The core aim is to contribute to the development of scientific knowledge about governance, integrity and security, which is also meant to lead to improvements in governance and its foundation in society.

Against this background, written evidence is put forward as set out in this document.

2. GOVERNANCE AS PART OF AN EU ARCHITECTURE OF INTERNAL SECURITY

The guidelines given by the European Council of 16-17 June 2005 on Justice and Home Affairs (JHA) cooperation[1] and the Council of 1-2 June 2006 which call for an EU architecture of internal security[2] underpin the importance of the call for evidence circulated by the House of Lords Select Committee on the European Union on 20 March 2008.

It is apparent that the initiative from the House of Lords supports the concept of active citizenship, engaging citizens in decision-making processes (bottom-up) in order to allow them to participate in the planning and delivery of public services, as a mechanism to improve product and service achievements.

From the founding instruments of the respective authorities it becomes clear that the purpose of these stakeholders in the JHA domain can be compartmentalised into the following, shared, core business service and product delivery functions: strategic, operational, support (in general) and policy advice.

Considering this perspective of shared functions and taking into account the coordinating entities in place (referred to in the current and future legal frameworks of EU cooperation regarding Freedom, Security and Justice) the question arises how these authorities are managed or, in other words, governed at EU level.

The core question therefore is: What is the status of governance in the JHA domain nearly three years after the above mentioned political guidelines?

In order to assess the current situation it is necessary to look at the past and to identify current developments from a broad perspective.

An important attempt to define governance in the EU was the communication from the Commission of the EC: "European Governance—A White Paper" in 2001.[3] According to this document, governance means: "rules, processes and behaviour that affect the way in which powers are exercised at European level, particularly as regards openness, participation, accountability, effectiveness and coherence."

Following this description of governance, there are five principles that denominate governance: Openness, participation, accountability, effectiveness and coherence.

In the years following the initiative from the Commission in 2001, documented evidence on the implementation and further development of governance in the EU is difficult to trace.

The European Parliament (EP) has recently demonstrated—in the context of the parliamentary discussions on the discharge of the yearly budget of EU community financed agencies—a clear interest to gauge the status of governance developments. The Committee on Budgetary Control of the EP commissioned a study on best practice in governance of agencies which was released in January 2008. The report[4] comes to the conclusion that there are in general three governance dimensions: Institutional design and the set-up of agencies, the day-to-day management and steering of the agencies and finally agency accountability combined with transparency.

Eventually, the study provides the assessment (with a particular focus on EU Member States) that "governance frameworks are under constant change—but only rarely are these changes and adjustments (or even the initial creation) of agency governance frameworks at the core interests of the actors involved |"

Deriving from this assessment, the report makes recommendations on the way forward in each of the three governance dimensions: clearly defined functions and governance structure, planning, evaluation and performance measurement.

Following these developments, the Commission, at the beginning of March 2008, issued a communication in which it is suggested "to re-launch a debate on the role of agencies and their place in the governance of the EU. A consistent political handling of the approach to agencies would promote the transparency and effectiveness of an important part of the EU's institutional machinery".[5]

Furthermore, the Commission states that "as all public bodies of the EU, all agencies must be organised in the right way to respect basic principles of accountability and sound financial management". The Commission suggests an overall set of six elements for a future common approach to the governance of the concerned agencies at EU level, to be delivered by the Commission by the end of 2009 and has proposed to not to suggest new regulatory agencies until the work of the evaluation is completed.[6]

The European Court of Auditors (ECA), responsible for carrying out the audit of the EU finances as an external entity[7], has now planned to prepare a special report on the application of sound financial management of EU agencies and bodies in 2008. It can be expected that this exercise will address aspects of performance measurement as well as business and budget planning.

In conclusion, it remains to be seen how the recent communication from the Commission, the activities of the ECA and the discourse in the EP Committee on Budgetary Control will shape governance at EU level, for instance with the EP putting forward interrelated requirements for discharging budgets of EU Community financed agencies.

The recent developments underline in any case that governance at EU level needs to be developed further. A preliminary analysis of public information available leads to the supposition (to be confirmed by research) that a follow-up or implementation to the request of the Council made in June 2006 has not been documented and reported back to the Council. Thus, there is reason to assume that an overall governance architecture at EU level is not yet put in place to ensure consistent policy implementation.

One example for this assumption can be identified in the "Development of an EU strategy towards the Western Balkan region"[8] which was endorsed by the JHA Council of 12 October 2005. The Council in this strategy confirmed that SECI should have a sound legal basis[9] with EU support and an operational cooperation agreement between SECI and Europol in the mid term (2-4 years).[10] When looking at the agenda of the meeting of the Article 36 Committee (CATS) of 2-3 April 2008[11] and the draft Council Conclusions tabled for discussion[12], it is noteworthy that the draft Council Conclusions discussed in CATS in April 2008 contain objectives which were already formulated and endorsed by the JHA Council of 12 October 2005.

It can be expected that the issue of governance will be a core concern for Member States when considering the Lisbon Treaty ratification and its subsequent implementation.

3. THE WAY FORWARD

There is a need for a concerted approach between all stakeholders, including academia, to continue developing and implementing a governance architecture in the JHA field, especially with the Lisbon Treaty in sight.

The Department of Public Administration at the VU University Amsterdam is about to commission further research with Europol into this area in order to validate the assumptions at hand (as also outlined in this document) and to contribute to the discourse with concrete proposals.

30 April 2008

1 "The European Council invites the Council to step up coordination both amongst these various actors and between them and the competent authorities of the Member States"-Council Secretariat file n°: CONCL2 REV1 10255/1/05 Back

2 "Architecture of Internal Security", Council Secretariat file n°: JAI 271 REV1 9596/1/06 Back

3 Commission of the European Communities (2001), "European Governance-A White Paper", Commission publication file n°: 428 final Back

4 European Parliament, Directorate General Internal Policies of the Union, Policy Department on Budgetary Affairs (2008), "Best practice in governance of agencies-A comparative study in view of identifying best practice for governing agencies carrying out activities on behalf of the European Union" Back

5 Commission of the European Communities (2008), "Communication from the Commission to the European Parliament and the Council-European agencies-The way forward", Commission publication file n°: 135 final, page 2 Back

6 Ibid, pages 7-8, 10: "The tasks of regulatory agencies", "The structure and working of agencies", "Accountability and regulatory agencies' relationship with the other institutions", "Better regulation and the work of the agencies", "The process for establishing and ending regulatory agencies", "Communication strategy" Back

7 European Court of Auditors-ECA (2008), "Work Programme 2008", page 8 of the main document and page 5 of the annex, www.eca.europa.eu Back

8 "Development of an EU strategy towards the Western Balkan region", Council Secretariat file n°: EUROPOL 25 11087/05 Back

9 Ibid, page 8: "the SECI Regional Centre should be assisted to reach international legal personality and data protection instruments (legal and logistical) to allow for adequate handling of law enforcement information and intelligence". Back

10 Ibid, page 8: "By means of an operational cooperation agreement, an operative link between Europol as the central EU law enforcement authority of all EU Member States and the SECI Centre is created, encompassing all third states in the Eastern European region." Back

11 "Provisional agenda-Article 36 Committee", Council Secretariat file n°: OJ CATS 3 REV1 7847/1/08 Back