Shared Tasks, but Separated Controls. How to build a system of control for EU shared administration?

Based on: ‘Shared Tasks, but Separated Controls: Building the System of Control for Shared Administration in an EU Multi-Jurisdictional Setting’, EJRR, 2019.

In my first blog post for this blog page, I signaled a rapid proliferation of EU enforcement authorities (EEAs). These EEAs are an example of a growing administration of shared tasks – regulatory and enforcement – in the EU. The establishment of these complex, multi-level governance structures and decision-making procedures is necessary to address “wicked problems” (think, for instance, about the need to protect environment), which require cooperation of and involvement of various stakeholders. Establishing these complex structures and procedures requires in turn sophisticated systems of controls over public power to safeguard the rule of law. How to build such a system? My main argument is that it is through a framework in which a number of elements need to be connected. These elements include:

  • relevant concepts of control (accountability, protection of fundamental rights, etc);
  • types of controls (political, judicial, etc) that these concepts may represent;
  • analytical prisms that they may create (institutional, decision-driven and rights-driven); and
  • systems of controls belonging to different jurisdictions/legal orders in the EU (EU-national and national-national).

Connecting different concepts could enrich the analytical frameworks that individual concepts have been using. A useful connection is, for instance, an addition of the elements of the principle of effective judicial protection to one of the leading accountability frameworks, that of Bovens (see Scholten and Luchtman 2017). Before the information, discussion and sanctioning (the three stages distinguished by Bovens) can happen between public authorities and courts, it is essential to establish if there is any access to the court in the first place (one of the elements of the principle). Other useful connections could be explored in the future between the various concepts used in the study of the rule of law by ensuring the control over the executive branch (accountability, the protection of fundamental rights, the principle of judicial protection, liability and transparency; the list may not be exhaustive). The concepts of judicial deference and independence should also be noted, as they influence the ‘quantity and quality’ of controlling mechanisms, so that both the ideal of the rule of law and the need for effective operation of the executive can be maintained.

Connecting different types of controls is useful to mitigate for the limits of individual types of controls. Different actions (and inactions) can require different types and degrees of controls over the public power. For instance, in the rule of law system, a legally-binding decision by a supervisor (fine, decision to inspect, etc) towards a company requires a possibility of a judicial check. However, the judicial check could be at times limited due to, for instance, the need to secure independence of the supervisor or judicial deference. The limits of the judicial check could be mitigated by establishing additional types of controls for the issues that the courts do not check by, for instance, political forums, Ombudsman and various societal stakeholders ex ante (e.g. enhancing participating during the decision-making process) and ex post (e.g. via reporting).

Connecting analytical prisms helps to acquire a more comprehensive picture on the system of controls of an institution or decision-making process. Based on the studied literature, I have tentatively distinguished three prisms which scholars of different disciplines have used when investigating controls over the executive branch. These are: an institution-driven prism (to what extent have relevant institutions been accountable and via what accountability mechanisms?); a decision-driven prism (to what extent is there a political, judicial, other check upon a specific (preliminary) decision/action?) and a rights-driven prism (to what extent is legal protection of the affected parties ensured?). They all focus on a particular – institutional or process-related – aspect, which may give a limited view on the question of to what extent control over the executive for shared tasks is ensured. That a public authority in the EU may have various accountability obligations towards relevant controlling institutions of its jurisdiction does not necessarily mean that its specific decisions or actions resulting from a shared task exercised with other EU and/or national authorities are under control. That is why combining the focus of different prisms, which could be interconnected with specific concepts, is useful.

Connecting systems of controls of different jurisdictions/legal orders is essential to prevent challenges in control in the multi-jurisdictional legal order of the EU. Based on the reviewed literature, I have identified various challenges to controls in the EU like different powers of audit institutions and different standards of judicial review for the same/shared tasks or actions. These could prevent effective controls if individual systems of controls are not aligned to mitigate ​the negative consequences of the existing differences.

To sum up, future research and legislative design of controls over public power in the EU need to be guided by the principle of connecting, aligning and making interplay between relevant concepts, institutions, procedures and scopes of different types of control belonging to the many jurisdictions, whose actors are involved in the executing of (shared) tasks in the EU. Connecting the disciplines that study these issues is a necessary prerequisite to this endeavour.

Author: Miroslava Scholten

Miroslava Scholten is an Associate Professor of EU law at Utrecht University and a member of the Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE). The author would like to acknowledge the financial support of the Dutch Council for Scientific Research (NWO) under the “veni scheme” for writing this blog post.

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