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6 The DPAs as a New Branch of Government: Non-­majoritarian Expert Bodies, Different But Similar to EU Agencies

6 The DPAs as a New Branch of Government: Non-­majoritarian Expert Bodies, Different But Similar to EU Agencies

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342



7  Understanding the Role of Independent, Effective and Accountable DPAs: New…



distinction is in line with the argument that the term independence, applied to EU

agencies, is confusing or even misleading and that it would be better to state that

agencies operate – to a certain extent – in an autonomous manner.95 Although the

difference between independence and autonomy may be semantic it is useful for

understanding of the difference between DPAs and EU agencies. This is the reason

why this chapter in some places uses the term autonomous in relation to EU agencies. It does not mean that in our view the term independence would not be justified

in relation to agencies.96



7.6.2  T

 he Example of Electronic Communications: Two Main

Differences Between the Regulatory Authorities

and DPAs

Autonomous or independent authorities exist also in other domains related to the

internet and communications, both at the EU level and at the national level, with a

cooperation mechanism between the authorities.97 A relevant example is the area of

electronic communications, where national regulatory authorities play a central

role,98 with the Body of European Regulators for Electronic Communications

(BEREC)99 fulfilling a mainly consultative role.100

These national regulatory authorities (NRAs) have intervention powers against

telecommunications operators with significant market power.101 The authorities

have to be independent, but the requirements for independence differ significantly

from independence requirements applicable to the DPAs. The focus is on the inde-



95



 Busuioc & Groenleer in: Everson, Michelle, Cosimo Monda, and Ellen Vos (eds), 2014, EU

Agencies in between Institutions and Member States, Kluwer Law International 2014.

96

 Other authors, such as Ottow, qualify agencies as independent, A. Ottow, Market & Competition

Authorities, Good Agency Principles, Oxford University Press, 2015.

97

 An example that will not be further explored here is the European Union Agency for Network

and Information Security (ENISA), currently based on Regulation (EU) No 526/2013 of the

European Parliament and of the Council of 21 May 2013, repealing Regulation (EC) No 460/2004,

OJ L 165/41.

98

 Under Article 8 of Directive 2002/21/EC of the European Parliament and of the Council of 7

March 2002 on a common regulatory framework for electronic communications networks and

services (Framework Directive)

99

 Further read on BEREC: Zinzani in: Everson, Michelle, Cosimo Monda, and Ellen Vos (eds),

2014, EU Agencies in between Institutions and Member States, Kluwer Law International 2014,

Chap. 7.

100

 Article 3 of Regulation (EC) No 1211/2009 of the European Parliament and of the Council of 25

November 2009 establishing the Body of European Regulators for Electronic Communications

(BEREC) and the Office, OJ L (2009), 337/1.

101

 Article 16(2) of Directive 2002/21/EC of the European Parliament and of the Council of 7

March 2002 on a common regulatory framework for electronic communications networks and

services (Framework Directive), OJ L 108, 24.4.2002, and provisions referred to in that article.



7.6  The DPAs as a New Branch of Government: Non-majoritarian Expert Bodies,…



343



pendence of the parties on the market they supervise,102 with a view to ensuring the

impartiality and transparency of the decisions of the regulatory authorities.103 This

is a functional autonomy. Moreover, the NRAs “should be in possession of all the

necessary resources in terms of staffing, expertise and financial means, for the performance of their tasks”.104

However, the independence or autonomy from the political arena – Lavrijssen

and Ottow call this political independence105 – is less evident. These authors refer to

practices within the OECD, where authorities should on the one hand be free to act

without intervention from the executive, but on the other hand are bound by general

government policy.106 A certain level of political autonomy is required in the area of

electronic communications, ensuring that it is the regulatory authorities and not the

governments that balance the objectives of the relevant instruments of EU law.107

However, this does not preclude the national legislature from acting as a regulatory

authority, provided it meets the requirements of competence, independence, impartiality and transparency, and its decisions are subject to appeal.108

There are two main differences between the regulatory authorities in the electronic communications sector and the DPAs. First, the regulatory authorities in the

electronic communications sector are supposed to respect general government policies, which includes guidance by the Commission laid down in instruments of soft

law, such as recommendations and opinions, which under Article 288 TFEU do not

have binding force.109 By contrast, the DPAs do not have to respect this type of guidance, since that would not be in line with the independence of “any direct or indirect

external influence on the supervisory authority”.110

102



 Article 3(2) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March

2002 on a common regulatory framework for electronic communications networks and services

(Framework Directive), OJ L 108, 24.4.2002

103

 Article 3(3) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March

2002 on a common regulatory framework for electronic communications networks and services

(Framework Directive), OJ L 108, 24.4.2002, as interpreted by the Court of Justice in Case

C-424/07, Commission v Germany, EU:C:2009:749, at 54.

104

 Case C-389/08, Base and Others, EU:C:2010:584, at 28.

105

 Saskia Lavrijssen and Annetje Ottow, “Independent Supervisory Authorities: A Fragile

Concept”, Legal Issues of Economic Integration, 39, no. 4, 419–446, 2012, at 428.

106

 See also L. Hancher, P. Larouche and S. Lavrijssen, “Principles of Good Market Governance”,

Tijdschrift voor Economie en Management, Vol. XLIX, 2, 339–374, 2004, at 344.

107

 Saskia Lavrijssen and Annetje Ottow, “Independent Supervisory Authorities: A Fragile

Concept”, Legal Issues of Economic Integration, 39, no. 4, 419–446, 2012 at 432, referring to Case

C-424/07, Commission v Germany, EU:C:2009:749.

108

 Case C-389/08, Base and Others, EU:C:2010:584, at 30.

109

 Paul Craig and Grainne de Burca, EU Law, Text, Cases and Material (Fifth Edition), Oxford

University Press, 2011, at 107.

110

 Case C-518/07, Commission v Germany, EU:C:2010:125, at 19. It is in this context remarkable

that the Commission initially wished to address the consequences of the ruling in Schrems “with

clear guidance for national data protection authorities on how to deal with data transfer requests to

the U.S., in the light of the ruling”, statement of First Vice-President Timmermans, http://europa.

eu/rapid/press-release_STATEMENT-15-5782_en.htm



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7  Understanding the Role of Independent, Effective and Accountable DPAs: New…



Second, the requirements of what constitutes institutional independence are less

strict. Article 3(2) of Framework Directive 2002/21111 mentions legal distinctions

and structural separations from other government entities, but these distinctions and

separations must be made with entities that have – possibly – conflicting policy

goals, for instance in a situation where a Member State has some ownership or control over a market party. As said, it is not even excluded that the national legislature

acts as a regulatory authority. This is not comparable to the case law on DPAs where

the Court of Justice of the European Union is strict in respect of any institutional

interrelationship,112 as will be explained in Sect. 9 below.

By the way, electronic communications is not the only area linked to the subject

of this book where tasks are allotted to autonomous agencies. Another example is

the area of consumer law, where national authorities are active and there exists a

cooperation mechanism of national authorities responsible for the enforcement of

consumer protection laws.113



7.6.3  D

 PAs: Two Main Similarities with Other Non-­

majoritarian Expert Bodies

Despite these differences DPAs display similarities with other non-majoritarian

expert bodies, such as agencies at the European as well as at the national level. The

roles of the DPAs fit within a more general trend of assigning certain public tasks to

bodies composed of experts, and are in substance quite similar.114

Non-majoritarian115 expert bodies – the word expertocracy116 is used – play an

important role in modern governance. Vibert describes this phenomenon as the rise

of the unelected.117 In the EU context these unelected public bodies are usually indi111

 Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a

common regulatory framework for electronic communications networks and services (Framework

Directive).

112

 See mainly Case C-614/10, Commission v Austria, EU:C:2012:631.

113

 Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October

2004 on cooperation between national authorities responsible for the enforcement of consumer

protection laws (the Regulation on consumer protection cooperation), OJ L 364/1.

114

 E.g., by comparing the roles of DPAs mentioned in Sect. 7.4 with the roles of agencies, as listed

by A. Ottow, Market & Competition Authorities, Good Agency Principles, Oxford University

Press 2015, at 26.

115

 See: Giandomenico Majone, “Europe’s ‘Democratic Deficit’: The Question of Standards”,

European Law Journal, Vol. 4, No.1, March 1998.

116

 : E.g., in the annotation to Case C-518/07, Commission v Germany, on the independence of data

protection authorities by Jiří Zemánek, CMLR 49 (2012), 1755–1768, at 1756.

117

 F. Vibert, The Rise of the Unelected, Democracy and the New Separation of Powers, Cambridge

University Press. His book and its title served as inspiration for this chapter. For the purposes of

the chapter we assume that the main institutions of the EU (European Parliament, Council and

Commission) do not qualify as unelected.



7.6  The DPAs as a New Branch of Government: Non-majoritarian Expert Bodies,…



345



cated as agencies,118 and the trend is sometimes called ‘agencification’.119 Also the

term regulatory agencies can be mentioned,120 reflecting a trend in the European

Union to give agencies more regulatory tasks. This is the trend in the financial sector

in reaction to the financial crisis,121 but the trend also extends to other areas.122 In the

EU context the number of EU agencies has grown exponentially over recent years.

Currently over 40 agencies exist.123 The most important similarity between DPAs

and EU agencies is that they are both non-majoritarian expert bodies exercising

public tasks.

A second similarity between DPAs and EU agencies is that they both operate as

expert bodies in between the EU and national level. The DPAs are mostly national

authorities operating within the general framework of EU law, deriving their position from both primary and secondary EU law, whereas the EU agencies are

European bodies, but with a strong link to the national level.

These two similarities justify discussing the EU agencies in connection with

DPAs. Of course, it would also make sense to include national regulatory agencies

in the discussion, since in many instances they also operate as expert bodies in

between the EU and national levels.124 The focus on EU agencies is justified by the

perspective of this book, which is EU law.

In short, although DPAs – as follows from the case law of the Court of Justice on

the independence of DPAs125 – should be clearly distinguished from EU agencies, a

reflection on the EU agencies is relevant, if only because of the similarities. It is for

these reasons that we include a general theory on expert bodies, a theory that in the

EU context was developed mainly in relation to EU agencies.



118



 http://europa.eu/about-eu/agencies/index_en.htm

 Opinion of AG Jääskinen in Case C-270/12, United Kingdom of Great Britain and Northern

Ireland v European Parliament and Council,, at 19. See also A. Ottow, Market & Competition

Authorities, Good Agency Principles, Oxford University Press, 2015, at 21.

120

 Although this term was criticised for not adequately representing the task of the agencies, E. Vos

in Everson, Michelle, Cosimo Monda, and Ellen Vos (eds), 2014, EU Agencies in between

Institutions and Member States, Kluwer Law International 2014, at 19 + references in footnote 45

of Chap. 2.

121

 See Case C-270/12, United Kingdom of Great Britain and Northern Ireland v European

Parliament and Council, EU:C:2014:18 (on ESMA), and note Carl Fredrik Bergström, CMLR 52

(2015), pp. 219–242.

122

 E.g., the Aviation Safety Agency, mentioned by Shapiro, Independent agencies, in:, Paul Craig

and Grainne de Burca (eds), The evolution of EU Law (Second Edition), Oxford University Press,

2011, at 112.

123

 Source: http://europa.eu/about-eu/agencies/index_en.htm

124

 The national regulatory authorities in the area of electronic communications are the obvious

example.

125

 See Sect. 9 below.

119



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7  Understanding the Role of Independent, Effective and Accountable DPAs: New…



7.7  G

 eneral Theory on Expert Bodies: The Rise

of the Unelected

Expert bodies with regulatory or supervisory tasks are a phenomenon that first

appeared in Europe after the Second World War, with the first independent competition authorities.126 However, these bodies had already existed for a longer period in the

United States. The Interstate Commerce Commission, established in 1887 and becoming independent in 1889, is seen as the first independent authority.127 The Federal

Trade Commission, that plays an important role in the enforcement of privacy and data

protection, was created in 1914.128 This is remarkable, because in the United States the

separation of powers between the executive, the legislative and the judiciary branch is

stronger than in many other western democracies, although in the United States, too,

functions are shared between the branches of government and checks and balances

between the branches are a constitutional principle.129 Experiences in the United States

enable a better understanding of the constitutional position of bodies of experts.130

Currently, in a significant number of areas public tasks are exercised by unelected

bodies of experts. This tendency is normally justified by the notion that those bodies

have the expertise needed to act in complex areas of government action, taking into

account facts and estimates in an effective way. They are better equipped than

elected bodies for certain tasks, also because of the distance from the political discourse. Cost-effectiveness also plays a role.131 The Court of Justice of the European

Union justified giving public tasks to unelected bodies for reasons of expertise in

United Kingdom of Great Britain and Northern Ireland v European Parliament and

Council132 in relation to the financial stability of the Union. The Court accepted that

powers of intervention were given to unelected bodies, precisely because of their

professional expertise and their cooperative working methods. Commentators argue

that faith in the power of technical expertise is an important source of legitimation

of unelected bodies of experts.133

126



 Schütz mentions the UK and Germany as the first European countries establishing these authorities. Philip Schütz; (2012): Comparing formal independence of data protection authorities in

selected EU Member States, Conference Paper, ECPR Standing Group on Regulation &

Governance (Biennial Conference) <4, 2012, Exeter, at 4.

127

 The Political Accountability of EU Agencies: Learning from the US Experience, (dissertation

Maastricht, 2014), at 180–182.

128

 http://www.ftc.gov/about-ftc/our-history

129

 M. Scholten, The Political Accountability of EU Agencies: Learning from the US Experience,

(dissertation Maastricht, 2014), at 170.

130

 Further read: M. Scholten The Political Accountability of EU Agencies: Learning from the US

Experience, (dissertation Maastricht, 2014), at Chap. 3.

131

 Communication from the Commission of 25 July 2001 “European governance - A white paper”,

COM (2001) 428 final, OJ C 287, at C 287/20.

132

 Case C-270/12, United Kingdom of Great Britain and Northern Ireland v European Parliament

and Council, EU:C:2014:18, at 85.

133

 Schütz, with a reference to G. Majone, Philip Schütz; (2012): Comparing formal independence

of data protection authorities in selected EU Member States, Conference Paper, ECPR Standing

Group on Regulation & Governance (Biennial Conference) <4, 2012, Exeter, at 5.



7.7  General Theory on Expert Bodies: The Rise of the Unelected



347



The contribution of expert bodies is providing citizens and companies with a

predictable and stable environment where their rights or interests are protected in an

adequate way. These bodies should also counterbalance the declining trust of citizens in the competence of government to effectively govern our complex societies,

with the developing information society as a good example. This declining trust also

has to do with the functioning of our democracies where – as Schütz argues – an

important incentive for politicians is success in the next elections, so that they are

not willing to commit to long-term solutions.134 Shapiro formulates a paradox: new

governmental bureaucracies are created – independent, unelected and endowed with

specific tasks – as the result of the withdrawal of public trust in government

bureaucracies.135

This does not mean that the rise of unelected expert bodies is unproblematic. The

most obvious challenge – how to ensure democratic accountability – will be discussed below.136 However, there is more to it. If various independent public bodies

come up with contradictory solutions to similar social issues,137 this will not enhance

trust in government. Trust will also not grow because of the elitist nature of governing through independent bodies,138 leaving decision-making to experts without scrutiny by elected parliaments. It must also be ensured that leaving decision-making to

unelected expert bodies avoids the risk that these bodies act in a non-controllable

and arbitrary manner.139



7.7.1  Are Expert Bodies a New Branch of Government?

Expert bodies are public authorities outside the classic hierarchical administration

and more or less independent of the government. Although constitutional theory is

based on the presumptions of a separation of powers and on the level of the European

Union on the presumption of a closed system of institutional balance, there is a

trend of giving tasks to unelected expert bodies. The recognition of these bodies is



134



 Schütz, equally with a reference to G. Majone, Philip Schütz; (2012): Comparing formal independence of data protection authorities in selected EU Member States, Conference Paper, ECPR

Standing Group on Regulation & Governance (Biennial Conference) <4, 2012, Exeter, at 5.

135

 Shapiro, Independent agencies, in: Paul Craig and Grainne de Burca (eds), The evolution of EU

Law (Second Edition), Oxford University Press, 2011, at 113.

136

 In Sects. 7.13 and 7.14.

137

 As Shapiro formulates, where government speaks with many independent voices; Shapiro,

Independent agencies, in: Paul Craig and Grainne de Burca (eds), The evolution of EU Law

(Second Edition), Oxford University Press, 2011, at 117.

138

 Vibert calls this “institutionalised elitism”, F. Vibert, The Rise of the Unelected, Democracy and

the New Separation of Powers, Cambridge University Press, at 3.

139

 As stated by M. Busuioc and M. Groenleer, in Everson, Michelle, Cosimo Monda, and Ellen Vos

(eds), 2014, EU Agencies in between Institutions and Member States, Kluwer Law International

2014, at 175.



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