Jean Monnet Center at NYU School of Law


3. Some reflections on the scope of public administration in the European Union

Given the unique (albeit still largely undefined) nature of the EU, there is more to the story of the evolution of public administration or public tasks at that level than a simple parallel with national administrations, also in terms of their "unboundedness" or otherwise. Given the unique configuration of the EU as a multi-level governance polity, it was never just simply a matter of a central administration with some decentralised tasks (at the national level). Rather, there was from the very beginning a complex interweaving of the tasks of the (central) (direct) administration, the Commission, with the tasks of the (central) (indirect) administrations of all the Member States, sometimes as an elaborate partnership arrangement, sometimes as a straight-forward hierarchial arrangement. At the same time there is a pressing need for the EU as a whole to learn to develop new systems of governance as part of an ongoing process of structural re-organization (Metcalfe,2000). The difficulty lies precisely in the fact that there is no ready-made model to imitate.

The contours of certain more specific trends can nonetheless be discerned at least in outline form in the overall EU public administration landscape. I would in any event mention the following examples. First, the power which "experts" acquired within the centralised power-structure of the Commission via the instigation and exponential growth of the comitology procedures is an example of the erosion of administrative boundaries and has been richly documented in recent years (see, Joerges and Vos). Second, an increasing number of (sensitive) tasks of public administration are arguably carried out by a growing number of independent bodies such as Europol, pro-Eurojust, etc., and there are clear moves to move towards regulatory (and operational) as well as more classical information-gathering agencies also in this field ( see, Curtin and Dekker). Third, there is a marked growth in position and tasks and influence of informal committees with no legal basis (eg, Chief of Police tasks, also other examples in CFSP and external relations: Curtin and Dekker) . Fourth, the General Secretariat of the Council exercises powers comparable to a public administration over certain policy areas and such tasks have gradually grown in importance and significance since the Treaty of Maastricht (see, Curtin and Dekker). To say that the latter are simply "inter-governmental" in nature and effect is in my view to close ones eyes to the reality of an increasingly inter-twined and complex fabric of public administration at the level of the EU.

Finally, on the national side of public administration this too has become much more variegated both as a result of the "hiving-off" of functions to (quasi-) private sector parties and as a result of increasing trends towards decentralisation and regionalisation at the national levels of administration. The latter trend in particular has forced the Commission to recognise that when it talks both in terms of "indirect administration" at the national level and in terms of a more inclusive and participatory approach to policy-making, it needs to take account of the flurry of regional and local actors which de-centralisation processes have spawned in the past decade or more (among the "new actors of Europe" according to the WP Governance Team, June 2001). Indeed some of its ideas developed in this specific context bear witness to a degree of originality and innovation not present in much of the rest of the WP (see, for example, the interesting proposals to enter into "contracts" with national and regional actors as a more flexible means of ensuring implementation of EU policies , WP, pp.13-14 ).

It emerges however on the whole from this general (and necessarily sketchy) overview of the background landscape to the more detailed topic of "governance" in EU structures and processes and rules it seems that the Commission in its WP is stunningly selective and self-referential in the manner in which it chooses which elements from a complex and fragmented landscape to engage with despite having the pretension to cover the topic in its generality (ie to have an overview of the scope of the governance process in all its complexity) at the level of the EU. Instead of a vision of public administration and governance as it has developed over the years, in all its detail and its fragmentation, it chooses instead to focus exclusively on classical aspects of the decision-making and implementation process as it relates to its own tasks and functions as originally conceived and honed in the foundational years of the EC ("the Community-method"). From this perspective certain selections are made, such as, a dismissive treatment of the role which "committees" (comitology) play in the decision-making and implementation process (for example, WP, p.31) without any recognition (or discussion) of the potentially positive aspect of this facet of the process (Joerges, 2000) and ways in which it could be further amended in order to ensure that the paraded principles of good governance are further embedded in the rather procrustean bed in practice. On the other hand, the advent and development of regulatory agencies is hailed as a putatively useful solution, again without much substantive discussion (WP, pp. 23-14). It is beyond the scope of this contribution to discuss either of these issues in substance other than to remark on the self-referential nature of these (important) aspects of the decision-making process viewed exclusively through the spectacles of the Commission's own role in the decision-making process.

The fact that the Commission does not at any stage make the slightest reference to the growing governance structures in the field of policing and criminal law (the so-called "third pillar") , in which it is now actively involved, is remarkable. The only explanation I can give is that of the entire philosophy which underpins the WP itself in its final form, namely that for political reasons consolidation and re-trenchment of its classic institutional position are of the order of the day despite clear evidence of the fact that the whole question of governance at the level of the EU can only be begun to be understood by placing it in a context of "structural pluralism"(Giddens) . The Commission therefore deliberately chooses to ignore completely a difficult and rapidly evolving part of governance in the EU, namely its new functions and tasks in the field of criminal and policing law in particular (so-called third pillar), its tasks (and those of other institutions) in regard to the myriad bodies, working parties, organs and networks in and around these areas and the serious lack of co-ordination among them as well as the exponential growth in data-bases, some based in the Commission, some not, and the growing number of proposals to link that data outside of any broader control framework of good governance or anything else (see, in general, Peers). The wizard is seemingly so spell-bound with admiration of his own reflection that much of interest and significance taking place in the immediate environment is missed.




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