What price to pay? The trade-off between independence and influence in European regulation

DOI10.1177/0952076719886744
Publication Date01 Jul 2021
AuthorEva Ruffing
SubjectSpecial Issue Articles
Special Issue: Agencies
What price to pay?
The trade-off between
independence and
influence in European
regulation
Eva Ruffing
University of Hannover, Germany
Abstract
This article asks whether the strengthened, institutionalised role that some European
agencies play in delegated decision-making endangers their actual independence. In
some particular sensitive policy domains, such as pharmaceuticals security, financial
markets and energy, European agencies exist which are formal agenda-setters in dele-
gated decision-making, meaning that the European Commission can either accept or
reject their proposals but is hardly allowed to change them. These procedures were
established to guarantee particularly expert-based decision-making. However, the arti-
cle argues that under these conditions, the Commission will be eager to interfere with
the agencies’ proposal preparation to ensure that the proposal is in line with its posi-
tion, thereby weakening the de facto independence of agencies. Such procedures come,
therefore, with unexpected effects in practice. However, the article demonstrates that
these effects vary with organisational resources on the agencies’ and the Commission’
side and the expected constraining effects of the decisions taken.
Keywords
Agenda-setting, independence, influence, regulation
Corresponding author:
Eva Ruffing, University of Bergen, P.O. 7802, 5020 Bergen, Norway.
Email: eva.ruffing@uib.no
Public Policy and Administration
2021, Vol. 36(3) 281–303
!The Author(s) 2020
Article reuse guidelines:
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DOI: 10.1177/0952076719886744
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Introduction
The question, which role agencies play in regulatory decision-making, is one that
has been researched on the national as well as on the European level for quite a
while (e.g.; Bach et al., 2015; Littoz-Monnet, 2014; Verschuere, 2009). Usually,
agencies gain inf‌luence in decision-making if they are able to provide the govern-
ment on national levels or the Commission on the European level with indispens-
able expertise in policy preparation, thereby persuading the actors or the core
executive to follow their advice. In the last years, we see, however, the development
of a new path of inf‌luence on the European level, one that has only been rarely
walked along before: In the f‌ield of f‌inancial services and energy the Commission is
now bound to the recommendations of newly created agencies in decision-making
procedures below ordinary legislation (such as non-legislative measures according
to Art. 290 of the Treaty on the Functioning of the European Union (TFEU),
comitology procedures, etc.). In these procedures, the Commission can – according
to the formal rules – either accept or reject but hardly change the proposals. This is
an exceptionally strong form of institutionalised commitment to agency advice,
and on the EU level only known from the f‌ield of pharmaceuticals regulation
where the European Medicines Agency (EMA) is responsible for risk assessment.
The institutionalisation of such strong forms of commitment to agency advice has
also been a response to crises: in the f‌ield of pharmaceuticals to avoid the recur-
rence of fatal incidences such as the thalidomide crisis, leading to the malformation
of babies whose mothers took thalidomide during pregnancy (Krapohl, 2008), in
the f‌inancial sector as a learning out of the f‌inancial crisis starting in 2007
(Busuioc, 2013) and in the energy sector as one of the last f‌ields where the
Commission was not able to establish a common market until the early 2000s
(Eberlein, 2008). The procedure could, therefore, be a model for future agency
reforms in particular sensitive or crisis prone policy domains.
Theoretically speaking, the European agencies in the f‌ields of energy, f‌inancial
services and pharmaceuticals are now formal agenda-setters in the terminology of
Pollack (1997). Pollack def‌ines a formal agenda-setter as an entity with the ability
to set a decision-maker’s ‘formal or procedural agenda by placing before it provi-
sions that it can more easily adopt than amend, thus structuring the choices [of this
actor]’ (Pollack, 1997: 121). This article asks whether the strengthened, institution-
alised role these European agencies play in delegated decision-making endangers
their actual independence. The main theoretical argument of this article is that in
such procedures European agencies face a trade-off between de facto independence
and inf‌luence, two dimensions of agency autonomy. Binding the Commission to an
agency proposal will arguably make the agency more inf‌luential in policy-making.
At the same time, the Commission is left with a take it or leave it offer by the
agency, inducing it to interfere with the agency’s proposal preparation process to
ensure that the agency proposal is in line with its preferences, thereby diminishing
the agency’s independence. This diminishing is of particular severity as indepen-
dence is often seen as one of the main characteristics of agencies for ensuring sound
282 Public Policy and Administration 36(3)

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