The empirical assessment of agency accountability: a regime approach and an application to the German Bundesnetzagentur
| Author | Yannis Papadopoulos,Jan Biela |
| Date | 01 June 2014 |
| DOI | 10.1177/0020852313514526 |
| Published date | 01 June 2014 |
| Subject Matter | Special Issue Articles |
International
Review of
Administrative
Article
Sciences
International Review of
Administrative Sciences
2014, Vol. 80(2) 362–381
The empirical assessment of
! The Author(s) 2014
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DOI: 10.1177/0020852313514526
approach and an application to
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the German Bundesnetzagentur
Jan Biela
University of Lausanne, Switzerland
Yannis Papadopoulos
University of Lausanne, Switzerland
Abstract
Regulation has in many cases been delegated to independent agencies, which has led to
the question of how democratic accountability of these agencies is ensured. There
are few empirical approaches to agency accountability. We offer such an approach,
resting upon three propositions. First, we scrutinize agency accountability both
de jure (accountability is ensured by formal rights of accountability ‘fora’ to receive
information and impose consequences) and de facto (the capability of fora to use
these rights depends on resources and decision costs that affect the credibility of
their sanctioning capacity). Second, accountability must be evaluated separately at
political, operational and managerial levels. And third, at each level accountability is
enacted by a system of several (partially) interdependent fora, forming together an
accountability regime. The proposed framework is applied to the case of the German
Bundesnetzagentur’s accountability regime, which shows its suitability for empirical
purposes.
Points for practitioners
Regulatory agencies are often considered as independent, yet accountable. This article
provides a realistic framework for the study of accountability ‘regimes’ in which they are
embedded. It emphasizes the need to identify the various actors (accountability fora) to
which agencies are formally accountable (parliamentary committees, auditing bodies,
courts, and so on) and to consider possible relationships between them. It argues
that formal accountability ‘on paper’, as defined in official documents, does not fully
account for de facto accountability, which depends on the resources possessed by the
Corresponding author:
Jan Biela, Institut d’etudes politiques et internationales (IEPI), University of Lausanne, Baˆtiment Geopolis,
CH-1015 Lausanne, Switzerland.
Email: jan.biela@unil.ch
Biela and Papadopoulos
363
fora (mainly information-processing and decision-making capacities) and the credibility
of their sanctioning capacities. The article applies this framework to the German
Bundesnetzagentur.
Keywords
accountability, costs, credibility, effectiveness, resources
Introduction
Recent decades have seen a tendency towards economic liberalization, and con-
nected to that a shift in state action towards regulation by expert bodies and private
actors (He´ritier and Lehmkuhl, 2011a: 49). In this context, the task of regulation
has been increasingly delegated to independent agencies. While the rationale for
such a shift has been investigated quite extensively (Gilardi, 2005), the impact of
the new regulatory structures on democratic accountability has been under-
investigated (Christensen and Lægreid, 2011: 140). In fact, theoretical argumenta-
tion has pointed to the challenges for democratic accountability that may arise
from the establishment of these new actors. Surprisingly, concrete studies of the
topic are rare. This is mainly down to the often vague usage of the notion of
accountability and the resulting difficulties in adequately assessing accountability
empirically (Bovens, 2010).
The present article proposes such an empirical approach to agency accountabil-
ity. It rests upon two formative elements of accountability – information exchange
and consequences.1 We add then the capability of accountability ‘fora’ (Bovens,
2007, 2010) to process the gathered information and the credibility of a forum’s
sanctioning threat to capture the de facto effectiveness of these legal elements.
Second, we distinguish between three aspects of an agency’s conduct that are
monitored by other actors – political, operational and managerial accountability.
For each level of agency action, the accountability mechanisms are evaluated sep-
arately. As a last point, we take into account the multitude of accountability rela-
tionships an agency possibly faces – its accountability regime.
This approach provides a framework to compare different accountability
regimes, regardless of the particular institutions acting as accountability fora,
and allows for detecting eventual weaknesses of the accountability of an agency
much more accurately than existing approaches. To demonstrate its application we
use the approach to scrutinize the accountability regime of the German
Bundesnetzagentur. The objective of this case study is twofold: first, it exemplifies
the ability of our approach to draw a more complete picture of agency account-
ability, which might differ substantially from existing approaches; and second, it
gives a practical example of how the approach can be used for a structured, focused
comparison of accountability regimes over time, agencies or countries.
The article is structured as follows. In the first section, the rise of regulatory
agencies and the resulting challenges for democratic accountability are outlined.
364
International Review of Administrative Sciences 80(2)
This is followed by a review of existing conceptualizations of accountability. We
then present our approach and elaborate on three core features for our analysis: the
determinants of accountability effectiveness; the levels of agency action; and the
accountability regime. Finally, we provide an illustration of this approach by
applying it to the German regulator Bundesnetzagentur.
The rise of regulatory agencies and democratic accountability
In the last several decades, the regulation of liberalized economic sectors became an
increasingly important task (Jordana and Levi-Faur, 2004; Majone, 1997). Hence,
along with shifts in state tasks, the actors in charge of regulatory functions changed
too. The high prioritization of efficiency and impartiality, as well as the new orienta-
tion of state activity, were major driving forces behind a shift of political
power away from government towards independent central banks, courts,
the European Commission, international organizations such as the OECD,
WHO or WTO (Vibert, 2007), and to international networks, industrial self-
regulation or independent regulatory authorities (IRAs) (He´ritier and Lehmkuhl,
2011b: 51).
While the reasons for establishment of IRAs have been well scrutinized, the
impact of IRAs and other new forms of governance on democratic quality has
been investigated much less (but see Christensen and Lægreid, 2011; Føllesdal,
2011; Papadopoulos, 2003, 2010). IRAs enjoy substantially more discretion (at
least in principle) than ordinary bureaucracy (Gilardi, 2008); and, as regular
non-elected bodies, they stand outside the ‘democratic circuit’ (Schmidt, 2006). It
is their ‘non-majoritarian’ (Majone, 2001) character that arouses questions about
their legitimacy (Majone, 1999; Van Kersbergen and Van Waarden, 2004) and
accountability (Flinders, 2001; Mulgan, 2003; Pollitt, 2003). While it has been
argued that adequate forms of accountability could remedy these problems
(He´ritier and Lehmkuhl, 2011b; Majone, 1994; Schillemans, 2011), the complex
interplay between autonomy of agencies, on the one hand, and adequate account-
ability measures, on the other, has hardly been systematically investigated so far
(Laegreid and Verhoest, 2011).
We are aware of three groups of empirical approaches to agency accountability.
The first group, inspired by work on central bank accountability (Briault et al.,
1995; Eijffinger et al., 2000; Laurens et al., 2009) and Gilardi’s (2008) adaptation of
central bank independence indicators to agencies, generates additive indices from
the analysis of legal documents (Hanretty et al., 2012; Koop, 2009; Masciandaro,
2007). It thus sticks to an analysis of accountability arrangements established
by law. The second approach, promoted mainly by affiliates of the COBRA net-
work,2 relies on survey data and measures the subjective perceptions of account-
ability developed by agency members (Verhoest et al., 2010; Verschuere et al.,
2006). The last strand of literature, stemming mainly from the Utrecht School
of Governance, has used a detailed heuristic (Bovens, 2007) to evaluate agency
accountability
in
the
Netherlands
(Schillemans,
2008,
2011;
Schillemans
Biela and Papadopoulos
365
and Bovens, 2009) and the European Union (Busuioc, 2009), mainly on the basis of
expert interviews.
An alternative approach to agency accountability
These approaches have important shortcomings. The indices developed in the first
strand tend to use paradigmatic cases (for example, the traditionally strong role of
the agency head in the British case) to develop their items. They focus on specific
institutions, without checking for other bodies that might have strong roles with
regard to accountability. Moreover, they are rather quantitatively oriented and
concentrate on de jure factors of accountability. The second strand of literature
focuses on the perception of accountability rather than on its existence. The
approach of the third strand has proven useful for empirical research and has
been adapted to different contexts,...
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