Theorising the Legitimacy of EU Regulatory Agencies

by Natalia Kohtamäki (Author)
©2019 Monographs 430 Pages


The main objective of the book is to answer the question of the proper theoretical justification for the regulatory agencies which are an important component of the EU institutional structure.
They are independent bodies appointed by the European Commission in various specialised fields of the EU market, such as food safety, pharmaceuticals or financial supervision, in which the Commission itself – due to the complexity of the sector-specific regulation – is not able to prepare expertise alone. The agencies are therefore expert institutions, which form administrative support to the EU authorities and the member states. Despite the fact that the agencies are already an irremovable element of the EU decision-making and rulemaking processes there are still justified doubts about their legitimacy. The book offers an in-depth analysis of the current theoretical concepts surrounding the questions of empowerment, rightfulness and legitimacy of EU agencies’ activities.
"The monograph is a very interesting read. The author is a very competent fashion deals with the objectives of her research and delivers a solid book. She persuasively touches on a plethora of pertinent legal and theoretical issues associated with EU agencies and their legitimacy. Bearing in mind the current discourse in this respect this book is very timely."
Professor Adam Łazowski, School of Law, University of Westminster

Table Of Contents

  • Cover
  • Title Page
  • Copyright Page
  • Acknowledgements
  • About the author
  • About the book
  • Citability of the eBook
  • Contents
  • List of Abbreviations
  • Introduction
  • Part I The Evolution of EU Regulatory Agencies
  • 1 Regulatory Agencies in the Administrative System of the European Union
  • 1. The Origins
  • a) Understanding the Term “Regulatory Agency”
  • aa) The Phenomenon of Regulation in the Context of “Agencification”
  • Defining “Regulation”
  • The “New Public Management” Concept and the Regulatory Agencies
  • bb) EU Regulatory Agencies
  • b) EU Regulatory Agencies in a Historical Perspective
  • aa) Institutional Placement
  • The Four-Level Model of the EU Organisational Structure
  • EU Regulatory Agencies as a Result of the Decentralised Integration
  • Regulatory Agencies versus Other Bodies in the EU Institutional Structure
  • bb) Development over Time
  • The Beginnings
  • The “White Paper” of 25 July 2001
  • Searching for an Inter-Institutional Agreement
  • The “Common Approach” of 19 July 2012
  • c) Motives for the Creation of Regulatory Agencies within the EU Institutional Structure
  • aa) Functionality
  • bb) Institutional Isomorphism
  • cc) Political Reasons
  • 2. The Profile of EU Regulatory Agencies
  • a) The Legal Basis for Their Establishment
  • aa) The Need of an Adequate Legal Basis
  • bb) Residual Competence Clause of Article 352 TFEU
  • cc) Validity of Article 114 TFEU as a Legal Basis
  • Developing the Harmonisation Model under Article 114 TFEU
  • The ENISA Case
  • The ESMA Case
  • Longstanding Practice as an Answer to the Weak Legal Basis
  • b) Tasks
  • aa) Classifying EU Regulatory Agencies
  • bb) Critical Assessment
  • c) Organisational Structure
  • aa) The Board
  • The Board Composition
  • The Board Decision Making
  • The Influence of the European Commission
  • bb) The Director
  • cc) Other Bodies
  • 2 The Transformation of the Classic EU Regulatory Agency Model
  • 1. The Specific Character of Selected Agencies
  • 2. The European Food Safety Authority – EFSA
  • a) Creation and Design
  • b) Structure and Tasks
  • c) Legitimacy
  • 3. The European Chemicals Agency – ECHA
  • a) Creation and Design
  • b) Structure
  • c) Tasks within the REACH System
  • d) Legitimacy
  • 4. The European Border and Coast Guard Agency – Frontex
  • a) Creation
  • b) Structure
  • c) Tasks
  • aa) Background
  • bb) Integrated Border Management
  • cc) Supportive Tasks
  • d) Legitimacy
  • 5. The European Banking Authority – EBA
  • a) Creation
  • b) Structure
  • c) Tasks
  • aa) Regulatory Powers
  • bb) Coordinating Powers
  • cc) Decision-Making Powers
  • d) Legitimacy
  • 3 Regulatory Agencies and the Principle of Institutional Balance in the European Union
  • 1. The Principle of Institutional Balance in the European Union
  • a) The Absence of the Traditional Tripartite Separation of Powers
  • b) Judicial Activism of the European Court of Justice
  • c) The Treaty Provisions
  • d) Fitting the EU Regulatory Agencies into the Institutional Balance
  • 2. The Meroni Non-Delegation Doctrine
  • a) Delegation of Competencies
  • aa) Understanding the Term “Delegation”
  • bb) Delegation of Powers to Administrative Bodies
  • b) Case Law
  • aa) Meroni Case
  • bb) “Free Discretion” in EU Regulatory Agencies’ Decision Making
  • c) Assessment of the Meroni Non-Delegation Doctrine
  • 3. Reinterpretation of the Concept of Delegating Powers to Regulatory Agencies
  • a) The Short Selling Case
  • aa) The ESMA Intervention Powers
  • bb) The ESMA Ruling
  • b) Regulatory Agencies as a Permanent Component of the European Executive Order
  • Part II Conceptualising the Legitimacy of EU Regulatory Agencies
  • 4 The Cognitive and Explanatory Aspects
  • 1. Defining Legitimacy
  • a) Examining the Term’s Etymology
  • b) Max Weber’s Theory
  • c) Legitimising Public Administration
  • d) Legitimacy within the International Frames
  • 2. Theorising Legitimacy
  • a) The Role of Theoretical Explanations
  • b) Difficulties in Formulating a Mature Legitimacy Theory
  • 3. Legitimacy versus Autonomy
  • a) Defining the Terms “Autonomy” and “Independence”
  • b) Understanding the Autonomous Position of EU Regulatory Agencies
  • c) Classifying the Autonomy of EU Regulatory Agencies
  • d) The Autonomy of EU Regulatory Agencies as an Important Legitimising Feature
  • 4. Legitimacy versus Accountability
  • a) Controlling Independent EU Regulatory Agencies as a Legitimising Mechanism
  • b) Distinguishing between the Terms “Accountability” and “Control”
  • c) Internal and External Accountability of EU Regulatory Agencies
  • 5 Traditional Concepts of Legitimising the Activities of EU Regulatory Agencies
  • 1. Searching for Democratic Legitimacy in the EU Institutional System
  • a) Legitimacy of International Organisations
  • b) Theorising Legitimacy of EU Institutions by Fritz Scharpf
  • c) Interpreting the Theoretical Concept of Fritz Scharpf
  • 2. Democratic Deficit
  • a) Article 10 TEU as a Legal Basis for EU Representative Democracy
  • b) Democracy within the EU Institutional Structures
  • 3. Theories of Legitimacy Based on Representation
  • a) The German Concepts of Democratic Legitimacy
  • b) Regulatory Legitimacy as a Modification of Representation-Based Legitimacy
  • c) Functional Representation
  • d) Searching for Representation-Based Legitimacy in the Context of EU Regulatory Agencies
  • 6 Alternative Concepts of Legitimacy for the Activities of EU Regulatory Agencies
  • 1. Social and Axiological Legitimacy
  • a) Legitimacy Resulting from Recognition
  • b) The Role of Common Ideas and Values
  • c) Shaping Justification for a Specific Institutional System in the Example of EU Regulatory Agencies
  • 2. Technocratic Legitimacy
  • a) Placing the Concept of Technocratic Legitimacy into Existing Theoretical Classifications
  • b) Understanding the Term “Technocracy”
  • c) Technocratic EU Regulatory Agencies
  • 3. Legitimising Mechanisms
  • a) Efficacy
  • b) Inclusiveness
  • c) Transparency
  • 4. Normative Legitimacy
  • Part III Empirical Implications of Theoretical Models
  • 7 Input-Oriented Legitimacy of EU Regulatory Agencies as Public Institutions
  • 1. Democratic Governance and EU Regulatory Agencies
  • 2. Legitimising Mechanisms in Practice
  • a) Authorisation
  • aa) Institutional Dimension
  • bb) Instrumental Dimension
  • Authorisation of EU Regulatory Agencies
  • Informational and Advisory Powers
  • Coordinating Powers
  • b) Safeguards
  • c) Accountability to the European Parliament
  • d) Accountability to the Member States
  • 8 EU Regulatory Agencies’ Legitimacy in Transition: Output versus Throughput
  • 1. Searching for the Legitimate Bureaucracy
  • a) Procedural Justice within the Technocratic Structures
  • b) Technocracy versus Democracy
  • 2. Legitimising Technocracy through Technocratic Control
  • a) Accountability to the European Commission
  • b) The Scope of the European Commission’s Supervision over EU Regulatory Agencies
  • 3. Administrative Culture as a Form of the “Throughput” Legitimacy
  • Closing Remarks
  • Bibliography
  • Index


For years, EU regulatory agencies aroused little emotion among practitioners and scholars in the field of European governance. Although the first bodies of this kind emerged back in the mid-1970s, they truly took hold in the landscape of European institutions in the 1990s. At first, they simply played an informational and advisory role. After the year 2000, however, a significant change occurred in the way that they were perceived. The publication of the “White Paper on European Governance” of 25 July 2001 marked the transformation of the European Commission’s strategy for regulatory agencies. Since then they have become a useful instrument for streamlining regulatory processes and strengthening the position of the Commission, which stands at the forefront of expanding the apparatus of the European administration.

The number of agencies has been steadily rising since the early 2000s. Before 2000, there were approximately ten of them; now there are more than thirty. It is even difficult to put an exact number on them due to varying classifications found in the literature that concerns them, and the use of changing criteria, which include or exclude particular bodies from the assemblage that can be tagged under the name “EU regulatory agencies”. According to European nomenclature, these agencies are also called decentralised agencies1. Firstly, this is meant to reflect the split of competencies in various sectors of the internal market: from issues related to e.g. food safety, trade in medicines and chemicals, to issues related to air and rail transport, quality of professional life, environmental protection and financial supervision. Secondly, the adjective “decentralised” refers to the geographical dispersion of agencies, which have their seats in the different member states. The seats of these bodies are the subject of intensive negotiations between the member states, which want to host as many institutions of this kind as possible, mainly due to the prestige involved and the growing importance of these agencies. That is because they have gained wider and wider powers, thus becoming a permanent feature of the EU legislative and decision-making system.

Agencies that have been established in recent years, such as the European Supervisory Authorities, operating in the area of financial supervision, can be considered a new type of institution compared to the existing bodies. This is ←21 | 22→due to their greatly broadened catalogue of competencies in comparison with the already existing EU regulatory agencies, and, admittedly, they undoubtedly reflect a significant deepening of the integration process. EU regulatory agencies of this new type are gradually beginning to resemble national agencies or ministries, primarily when one considers the direct influence that they can exert on natural and legal persons in the member states.

However, the expanding powers of regulatory agencies raise much controversy. On the one hand, the advisability of establishing costly expert bodies, whose activities may not always provide tangible results, has been questioned2 and, on the other hand, doubts of a legal nature have emerged over the status of regulatory agencies in the European governance system, their growing institutional autonomy and their vague level of democratic legitimacy. A particularly controversial matter concerns the issues that arise when regulatory agencies are established, as well as those involved with holding them accountable for the actions they undertake. These are not regulated in primary law. These agencies have been created under varying Treaty norms, often through a “compulsory” search for a provision that can be used, and they mostly operate on the basis of their founding regulations, i.e. acts of secondary law.

Despite the growing interest in the topic of EU regulatory agencies in the past twenty years, their legal position and actual activities still remain in a hazy sphere of ambiguity. The demand for the professional opinions that agencies provide in major sectors of the market appears to be an effective justification for any legal deficiencies. And yet precisely on account of the agencies’ involvement in decision-making and regulatory processes in various areas, such as air and rail transport safety, trade in chemicals and medicines, food safety, or financial supervision, the powers of these institutions are undergoing thorough analysis.

In order for expert support to meet the expectations placed on it by EU institutions and individual member states, it is important to guarantee regulatory agencies broad autonomy of action. This autonomy is safeguarded through different mechanisms that ensure that agencies have a relatively wide scope of organisational and functional independence. Such guarantees, which determine the rules of procedure for drafting various expert documents influencing ←22 | 23→the shape and the implementation of sector-specific legal acts, are specified in the founding regulations establishing particular agencies. These guarantees raise diverse doubts in the context of these sorts of technocratic expert bodies “breaking away” from democratic control. This generates the following questions, which the Author attempts to answer in the context of legitimisation theories:

(1) Is it possible to apply the classic understanding of democratic legitimacy to regulatory agencies, or should we rather search for other methods of legitimising the activities of such bodies?

(2) What is their place in the European regulatory space?

(3) What is their role in the processes shaping the European executive order?

(4) How autonomous can agencies remain in reference to the European Union’s institutions?

(5) What does the issue of their accountability before the European Commission, the European Parliament and the Council look like?

(6) Does the involvement of regulatory agencies in shaping politically determined solutions for many sectors of the internal market deepen the democratic deficit mentioned in the context of how the European Union functions?

There are several reasons for the rise in the number of regulatory agencies in recent years. One of the most important ones is a change in the approach of EU authorities, primarily the European Commission, in relation to the status and tasks of these institutions. As it is nowadays crucial to prepare legal solutions on various, often very detailed, matters which require expertise, the European Commission, in order to maintain its position of a “credible regulator”, needs to have expert backup ready to provide it with specialised support when necessary. The intensification of the European legislative process has not only been a result of deepening European integration, but also reflects the overall trends of “tightening the regulatory spiral” at the national level as well. At a time of new hazards and crises threatening the economic stability of different sectors, certain member states have made efforts to create so-called safety networks, which include institutional and normative mechanisms for preventing crises and ensuring effective crisis management. Among such mechanisms, an important role is played by regulatory agencies, which have emerged, not only in most administrative systems of Western countries, but also at the EU-wide level. This has been part of the process of “agencification” of the administrative space – a process that has taken place over the last few decades.

EU regulatory agencies have become an important feature of the multilevel security network, acting in many cases as platforms for coordinating the activities of the individual member states at the European level. Over the years, in ←23 | 24→parallel with the integration processes, various forums have been developed to support the joint activities of national authorities. As mutual contacts continued to intensify within the internal market, loose committees and commissions bringing together the national officials were no longer enough. The EU bureaucratic apparatus got to a phase when it needed continuous support from established institutions for an indefinite period of time in order to draw up increasingly complicated legal acts in individual sectors. The committees or other consultative bodies that preceded the agencies may be considered the first step in the process of the rapidly developing institutionalisation of cooperation between the member states.

Therefore, the emergence of agencies also stemmed from the actual demand for independent expert institutions, which, particularly in the case of bodies created after 2000, were supposed to fill the “regulation gap”. The rivalry between EU institutions has also been important. The Commission, initially wary of regulatory agencies, in the twenty-first century came to see them as useful allies in the strengthening of its own position.

As the process of creating such bodies has intensified, the interest in them has grown as well. In the past twenty years, the agencies have become one of the most popular research topics, both among lawyers and political scientists. The background and legal basis for their establishment, competencies, autonomy, control mechanisms, and also their place in the EU institutional system have all been subject to analysis. There are so many publications that one can get lost in a thicket of analyses that are often very specialised and usually incomprehensible to a layman. The vastness of the literature dedicated to EU agencies is best evidenced by the fact that articles are written about publications that already exist in this field3. The spectrum of issues discussed is quite broad: from very specific matters related to the functioning of selected agencies, to more general issues with agencies treated as part of multilevel European governance mechanisms.

Interestingly, as recently as in the 1990s, regulatory agencies were shrouded in mystery and did not evoke much interest among researchers. One of the few examples of interest in these topics was the 1997 special issue of the Journal of European Public Policy edited by Alexander Kreher and Yves Mény. Recent years have seen a real explosion of various publications dedicated to agencies, primarily ←24 | 25→in English and to a lesser extent also in other languages, mainly German. These are usually works by lawyers or political scientists. Those that particularly deserve attention include studies by Matthias Ruffert, Michelle Everson, Ellen Vos, Deirdre Curtin, Renaud Dehousse, Madalina Busuioc, Merijn Chamon, Martijn Groenleer, Andreas Orator, Thomas Groß, Miroslava Scholten, Herwig C.H. Hofmann, Damien Geradin, Johannes Saurer, Mark Thatcher, Jarle Trondal and Morten Egeberg. These lawyers and political scientists do not exhaust the long list of European authors dealing with the agency system.

Works by lawyers concern various aspects of how regulatory agencies function: from panoramic presentations of all agencies to analyses of the problems associated with control mechanisms applied to agencies, the legal responsibility of these bodies compared with similar mechanisms applied for U.S. regulatory agencies, or the role of their expert advice in the European regulatory and decision-making process. Political science studies, in turn, focus on the role of agencies in the evolution of the European governance system. Analyses combining the legal and political science perspectives can be seen quite frequently, both in collective works and authorial monographs. The main reason for this practice is the complexity of these issues, which should be understood in an interdisciplinary manner by employing research methods from legal and administrative sciences, the theory of politics, management, and even philosophy as well as the theory of law.


ISBN (Hardcover)
Publication date
2019 (April)
Democratic legitimacy Technocratic legitimacy Legitimate bureaucracy Public administration Regulatory state EU composite administration
Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2019. 429 pp., 1 table

Biographical notes

Natalia Kohtamäki (Author)

Natalia Kohtamäki is Assistant Professor at the Institute of International Law, European Union and International Relations, Faculty of Law and Administration, Cardinal Stefan Wyszyński University in Warsaw. She obtained her doctoral degree in 2011 under the supervision of Professor Matthias Ruffert within the Ph.D. Programme "Global Financial Markets" at the University of Jena. She is a graduate of law and international relations at the University of Warsaw as well as of post-graduate studies in comparative law at the University of Bonn (LL.M.).


Title: Theorising the Legitimacy of EU Regulatory Agencies
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431 pages