By Marko Milenkovic
Decentralised agencies are now indispensable feature of executive governance in the European Union. There is hardly an area of EU engagement without an agency involved in delivering some of the Union’s activities. EU Agencies are constantly stepping up their external engagement and this role is attracting an increasing interest. However, a mostly neglected feature of the agencies by academia is the growing involvement of third countries in EU agencies. Their various engagements enable for a range of third countries to be involved in EU regulatory process in different ways. These engagements are potentially becoming an important cooperation tool for a post-Brexit United Kingdom as well as Western Balkan countries and Turkey amid prolonged enlargement fatigue end uncertain membership prospects. It remains to be seen how much it can be used as one of membership substitute mechanisms within differentiated integration approach.
There are different types of involvement of third countries across decentralised agencies of the EU. Formally these range from the (full) membership, to (external) partners, to observers, and finally to cooperation with (potential) candidate countries. The legal basis for third country membership in agencies and participation in agencies’ activities and programmes, is found in the EEA and EFTA treaties, individual treaties between the EU and the third countries (such as Turkish membership in European Environmental Agency), establishing acts of the respective agencies and Council conclusions. Countries of the European Economic Area (EEA) – Liechtenstein, Iceland and Norway as well as Switzerland as part of EFTA are now engaged with 17 decentralised agencies as members or observers, even though not all have the same status or engagement with particular agencies. The legal basis is found in the EEA agreement and the EEA/ EFTA States participation in the EU agencies is enabled through decisions of the EEA Joint Committee. Additionally, there are bilateral agreements with the EU in place to facilitate the participation of individual EFTA States in several other EU agencies. The participation of Turkey and the Western Balkan countries 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 resulted in all (potential) candidates’ engagement with a range of EU agencies. On the other hand, for various Eastern Neighbourhood Partnership (ENP) countries there has been an opportunity created to collaborate with a number of EU agencies in a variety of forms serving as a valuable tool for the acquis transfer. This is especially important given the fact that no membership perspective was given to ENP countries so far.
All in all, it is possible to recognise four categories of European countries interested/benefiting from involvement with the EU agencies: 1. members of the European Economic Area/European Free Trade Agreement, 2. countries of the Western Balkan plus Turkey which are all potential candidates to join the European Union or already have candidate status, 3. Eastern Neighbourhood Partnership countries, and potentially 4. post -Brexit United Kingdom. In this last case, the UK engagement will either have to be negotiated under the article 50 agreement or through individual agreements for each of the agencies.
Participation in agencies, networks and EU programmes is an important feature of the differentiated integration approach especially for the candidate countries in Western Balkans. The flexible nature of cooperation through agencies is a valuable asset given their long and uncertain road to membership. This may indeed turn out to be one of important substitutes to membership in decade(s) ahead. Therefore, the participation of third countries in EU Agencies should also be considered in efforts to stricter regulate their operation and in further constitutionalisation of the EU Agencies.
Marko Milenkovic is a research fellow at the Institute of Social Sciences in Belgrade, Serbia and post-doctoral fellow at the Johns Hopkins University, School of Advanced International Studies Center for Constitutional Studies and Democratic Development (CCSDD) in Bologna, Italy.