Some Consequences of a Brexit for EU Decentralised Agencies
Merijn Chamon (Maastricht University)
This blogpost expands on two of the consequences that a Brexit may have or has already had for the EU’s Decentralised Agencies.
While the UK’s withdrawal from the EU has not been carried through yet, the UK’s notification of its intent to withdraw from the EU (pursuant to Article 50(2) TEU has already resulted in very concrete and irreversible consequences. The main one is that the two EU agencies that were located on UK territory, i.e. the European Medicines Agency (EMA) and the European Banking Authority (EBA), had to be relocated to one of the remaining EU Member States. It goes without saying that in terms of continuity and the need to attract highly qualified expertise on which the functioning of these agencies relies, such a forced move is far from ideal. At the same time, something good may also have resulted from the forced relocation. The EMA and EBA being rather high profile and important agencies, the prize of hosting them was coveted by a lot (in fact almost all) of the remaining Member States. In the past the decision on which Member States could host a newly established agency was the subject of political haggling between the Member States (often even at the level of the European Council). In the tug-of-war for these bodies, it never really was a priority to pick a location that could ensure an optimal functioning of the agency concerned. Examples of this abound. For instance, in 2004 the choice fell on Heraklion to host the European Union Agency for Network and Information Security (ENISA) even if at the time no broadband internet infrastructure was present there. The choice in 2004 for Valenciennes to host the European Railway Agency (ERA) is another typical case.
Given what was at stake with the relocation of the EMA and EBA, the European Council in its meeting on 22 June 2017 defined the procedure through which the relocation decision would be taken. For the first time interested Member States were required to formally submit public offers which were assessed by the Commission based on pre-defined criteria. While the Commission did not rank the offers, its assessment was made public. Following this assessment, the Council decided on the new host city through secret ballot. This procedure therefore rationalized the process of deciding on agency locations and also imbued the process with greater transparency. While the European Council had noted this “process is specific to the current situation and does not constitute a precedent for location of agencies in the future,” Tovo rightly remarked that it would be difficult to go back to business as usual. And indeed, despite the European Council’s disclaimer, the choice in 2019 for Bratislava as the seat for the new European Labour Authority followed the same procedure.
While improvements to the procedure may still be made, it cannot be denied that in this respect the looming Brexit has resulted in a greater measure of good governance at EU level.
UK participation in EU agencies as a third country
A second issue worth highlighting is that following a Brexit, the UK will likely continue to apply a lot of the Union acquis. If so there would again be an objective need for the UK to continue to participate in a number of EU agencies as recognized by PM May when she suggested a ‘three baskets’ approach in her 2018 Mansion House speech. So how can a third state be involved on a structural basis in an EU agency? Current agency practice shows there are two main options, but they would either be unattractive for the UK or result in cumbersome procedures.
The first option for a third country is to conclude a specific international agreement with the EU. This means that the UK would have to conclude an agreement for each single EU agency in which it would want to participate. The agreements would set out the modalities of the UK’s participation and a budgetary contribution to be made by the UK. This option would allow the UK to pick and choose but the procedure is very cumbersome which is also why today very few such agreements with third states have been concluded.
The fast-track way would be for the UK to remain in the European Economic Area (EEA) the members of which are allowed to participate in more agencies than regular third countries. Unlike the latter, the EEA countries do not have to conclude a separate agreement each time, since their participation is made possible by a decision of the EEA Joint Committee amending the EEA Agreement. Again here however, EEA states have to pay a financial contribution and the UK would have to accept free movement without being able to pick and choose anymore .
In so far as necessary this again illustrates the nonsensical nature of a Brexit. While O’Gorman in a previous post suggested that the UK could ‘take back control’ from the EU and at the same time maintain or re-join the European Environmental Agency since the latter does not have enforcement powers, this in fact seems doubtful. Even participation in that agency is premised on the idea that the third country concerned applies the relevant EU law as if it were an EU Member State (there otherwise not being a point in joining the agency). And apart from having to pay for the privilege of participating in an EU agency the UK would not be accorded voting rights in the decision-making bodies of the agencies. Effectively then no control is taken back unless the UK completely detaches itself from the EU agencies in which case (as noted by Guégen) it will have to spend a fortune replicating the work that EU agencies are already doing. Perhaps the UK government could quantify this cost and put it on the side of a big red bus?
Merijn Chamon is Assistant Professor of EU Law at Maastricht University