Op-Ed: "EU Decentralised Agencies Engagement with European Non-Member States"
Marko Milenković
December 11, 2023

EU decentralised agencies have become an essential feature of the EU governance, working on implementation of the Union law and providing a necessary expertise in regulatory process across the Union competences. They remain largely in constitutional terra incognita opening a numerous legal challenges as contributions to this Symposium attest. No other institutions or bodies of the Union have become so important for the regulatory governance in the EU, while providing opportunity for (almost full) participation of non-Member States. As agencies roles increased over time, so did external engagements and as it was argued 'in order to do so, the agencies enter into more or less binding arrangements of a sometimes not entirely well- established legal nature'. There is an increasing interest in the scholarship on the participation of third countries in EU agencies and sectoral bodies. This Op-Ed concentrates on the engagement with, and participation in, European non- EU Member States with the EU decentralised agencies and the potential they have as channels for Europeanisation and acquis transfer, especially for the EU candidate countries.

Categories of third European countries engaging with the EU decentralised agencies and legal basis for their engagement

We can distinguish between different categories of European countries that already have or are stepping up their engagement with the EU agencies. Firstly, members of European Free Trade Agreement (EFTA), three of which are parties to the European Economic Area –Norway, Iceland and Lichtenstein, together with the fourth EFTA member Switzerland. These represent a group of highly developed European nations intentionally choosing not to become EU Member States, but still profoundly integrated with the EU and aligned with its acquis. EEA countries have most comprehensive relations with the EU agencies. After leaving the EU, the post-Brexit United Kingdom is now no longer a part of EU agencies it used to be. In words of Kaeding, the country has 'moved from a decisive and respected EU decision maker during 47 years of full EU membership in all EU agencies to one of many rule takers with the status of "just another third country"'. Following is the group of European countries that were offered prospects of the EU membership – candidates and potential candidates. These include decade long prospective candidate Turkey as well as Western Balkan States. Engagement of the EU agencies with the Eastern Neighbourhood countries got a completely different tone as of 2022 after Ukraine and Moldova became candidate countries as well as Georgia a potential candidate, moving them from regular association partnership closer to status of candidate countries.

The legal basis for third country membership in agencies as well as participation in agencies' activities and programmes is multifold. Participation is regularly governed by the establishing acts of the respective agencies. A number of founding regulations of the EU agencies contains the standardised provision: 'agency shall be open to the participation of third countries which have concluded agreements with the EU which provide for the adoption and application by these countries of Community law in the area covered by the basic act. Under these agreements, arrangements shall be made specifying, in particular, the nature and the manner in which these countries will participate in the agency's work, including provisions on participation in certain internal bodies, financial contributions and employment of staff.' For countries with highest degree of involvement it is based on the EEA Agreement and decisions of the EEA Joint Committee. Furthermore, participation of individual EFTA States in several other EU agencies is provided by the bilateral agreements with the EU. Such is also the case with Turkish membership in the European Environmental Agency (EEA) and European Monitoring Centre for Drugs and Drug Addiction (EMCDDA). The engagement of candidate countries with the EU decentralised agencies is based on the 1997 Luxembourg Council presidency conclusions stipulating that agencies in which applicant countries will be able to participate will be determined on a case-by-case basis. This has led to the engagement of all potential candidates with various EU agencies, which helped them over the past 25 years to better acquaint with the acquis as they are preparing for prospective membership.

Types of engagement between EU agencies and third countries

There are various examples of third country participation and/or engagement with EU agencies. Motivations of the EU and third countries for these involvements are also multifold. As Chamon, Hofmann and Vos have argued, the activities of agencies on the international stage 'involves a variety of actions that are closely linked with their mandate and powers in their respective founding regulations', that range from training, sharing know-how and capacity-building activities, to the development of common procedures, to exchange of information and joint operations in setting standards. Lavenex has outlined two main rationales for engagement of agencies with third countries: a foreign policy rationale and a sector specific interdependence logic. The first one assumes agencies acting more politically and supporting EU foreign policy agenda and promoting EU values. The second is more in service of sectoral cooperation in various regulatory areas. As Shyrokykh and Rimkutė note, 'third countries' involvement in the operations of EU agencies is often perceived as a technocratic form of integration into the EU, a sort of de facto technocratic membership'. Based on Rimkutė and Shyrokykh it is possible to distinguish between special bilateral agreements and ad hoc arrangements between agencies and candidates. Many times there are both, as our examination of engagement with Turkey and Western Balkans attest.

Countries of EFTA EEA are as outlined by Bekkedal 'the only non-EU States that have been allowed, on a regular basis, to participate in the work of EU agencies governing the internal market.' They are now engaged with 19 decentralised agencies as members or observers. Membership of these countries does enable them to participate in management boards and other bodies of the agencies, brings the obligation to contribute to the budget of the agencies, but doesn't entail voting rights reserved for representatives of EU member states, making this type of membership almost full. Similarly, Turkish membership in the environmental agency and EMCDDA also does not entail voting rights. However, this type of engagement does bring European non-members closer to participating in EU governance. As outlined by the European Commission 20 years ago when the first prospects of the membership were offered to the Balkans: 'The EEA countries have demonstrated, participation in Community programmes can also be of benefit to countries that are likely to remain associated countries for a long time or indefinitely…it encourages the exchange of useful experience, especially helpful in cases where a pan-European approach is called for… A similar approach should be taken to the countries of the Western Balkans.' In our previous work, out of 34 decentralised agencies analysed for the 1999-2021 period, we have found some type of engagement with five candidate countries, often on ad hoc basis but sometimes more stable and structured, for 23 agencies.

Ways forward – EU agencies as channels of Europeanisation and acquis transfer in absence of the EU membership?

European Union is currently in an important moment as it simultaneously reconsiders its governance and enlargement. This process might shape its governing structures for decades to come. It is most likely that important part of that future will be EU agencies. Even though they have been around for more than 30 years, agencies still remain both theoretical and practical challenge in the EU constitutional landscape. Their engagement with and participation of third countries in their work presents both a challenge and opportunity. Decentralised agencies are 'more autonomous than core EU bodies' offering potentially 'more leeway to craft flexible integration arrangements.' The process of EU enlargement has been relatively slow and hampered by numerous factors both on the EU side and among the prospective members. With new candidates (Ukraine and Moldova) the process of enlargement might get new impetus, however it is also gaining greater complexity. As agencies are pivotal for the governance of the EU and its regulatory outreach to partner countries, the question arises whether structured and formalised participation of candidate candidates in EU agencies present a meaningful and sustainable alternative to EU membership in the decade(s) ahead? The answer to this question should definitely be positive, with candidate countries getting more structured opportunities for comprehensive participation and membership in the agencies.

This Op-Ed first appeared as part of Symposium on EU Agencies published by EU Law Live.

Marko Milenković is a Jean Monnet Fellow at the European University Institute – Robert Schuman Center. He is a Senior research fellow at the Institute of Social Sciences in Belgrade and Affiliated research fellow at the Center for Constitutional Studies and Democratic Development at Johns Hopkins School of Advanced International Studies in Bologna.

SUGGESTED CITATION: Milenković. M; "EU Decentralised Agencies Engagement with European Non-Member States", EU Law Live, 03/11/2023, https://eulawlive.com/op-ed-eu-decentralised-agencies-engagement-with-european-non-member-states-by-marko-milenkovic/