By Annalisa Volpato and Kathryn Wright
The withdrawal of the UK from the EU has become an inescapable reality on both sides of the Channel. As we enter the transition period, it has become strikingly clear that, although the terms of the future relationship between the EU and the UK are still under negotiation, the new scenario will bring unprecedented consequences for all the actors involved. EU agencies are certainly among the entities whose governance and functioning will be affected by the changed position of the UK vis-à-vis the EU legal system.
During the transition period, the role of UK authorities within EU agencies is already severely limited. Although until 31st December 2020 the UK is still bound by EU law, including the acts of EU agencies, and it is obliged to contribute to their budget, the Withdrawal Agreement excludes it from an active role in the adoption of EU measures to protect the ‘decision-making autonomy’ of the Union and its legal order. Thus, the UK representatives and experts cannot take part in the decision-making of EU agencies’ internal bodies, unless ‘(a) the discussion concerns individual acts to be addressed during the transition period to the UK or to natural or legal persons residing or established in the UK; (b) the presence of the UK is necessary and in the interest of the Union, in particular for the effective implementation of Union law during the transition period.’ This participation, however, does not entail voting rights for UK representatives or experts. Moreover, the UK authorities cannot act as ‘as leading authorities for risk assessments, examinations, approvals or authorisations at the level of the Union or at the level of Member States acting jointly’, especially the ones carried out within CPVO, EMA, ECHA, EFSA and EMSA (see Annex VII). At the moment, the position of the UK appears thus to be particularly uncomfortable, tied in the role of ‘rule-taker’ without being a ‘rule-maker’.
After the transition period, in the absence of specific agreements ensuring the participation of the UK in the activities of EU agencies, the UK will be considered a third country, losing its membership within those agencies. Due to the heterogeneity of EU agencies’ functions and governance structures, which were only partially streamlined after the Common Approach, the precise consequences will be different and their relevance will vary for each agency. In an analytical attempt to classify the repercussions for EU agencies, however, three dimensions can be already identified: institutional, organisational and substantive.
Firstly, Brexit will have institutional consequences for EU agencies, affecting the composition of their main internal bodies and the scope of the networks they manage. Indeed, due to the intergovernmental character of their structure, the composition of EU agencies’ governance bodies is generally based on the principle of national representation, with representatives of the Member States seating in Management Boards and, where existing, Advisory Forums, Boards of Appeal and Executive Boards. In certain cases, such as for the European Medicines Agency (EMA), UK representatives left their seat also in the Scientific Panels of the agencies. As a consequence, they will no longer be rapporteur or co-rapporteur of dossiers for the authorisation of regulated products. Moreover, given the ‘networking’ character of many agencies, these networks will be deprived of one of their nodes. Thus, for instance, the UK’s Medicines and Healthcare products Regulatory Agency (MHRA) will no longer be involved in the European medicines regulatory network and its coordination groups.
Secondly, Brexit will have organizational consequences for the functioning of EU agencies, which must not be underestimated. Most evidently, it has entailed the relocation of the agencies based in the British territory: EMA and the European Banking Authority (EBA). Interestingly, the procedure through which this decision was adopted appears to have set a precedent whose effects go beyond this exceptional circumstance, ‘proceduralising’ a choice – the one concerning the seat of EU agencies – which was previously left to political bargaining. Moreover, most EU agencies will clearly need to implement some practical adjustments concerning, for instance, staff employment, procurements and grants, public access to documents, protection of personal data, data collection and IT systems. But the most difficult challenge in the future of EU agencies may be the loss of expertise that the disengagement of UK experts will bring.
In this respect, it is interesting to compare the measures adopted in relation to EMA and the European Food Safety Authority (EFSA). While the Scientific Committees of EMA are appointed by the Member States, the founding regulation of EFSA established that its scientific panels be composed of ‘independent scientific experts’. A certain dependence on a small number of Member States, among them the UK, has been noted. In fact, 12.5% of scientific panel experts came from the UK in the period 2009-2018 – for certain panels the percentage rising even to 23.81%. For EFSA, Brexit therefore means a significant loss of expertise within its panels. As the founding regulation of EFSA was undergoing a legislative reform to improve transparency and sustainability of risk assessment in the food chain, Brexit also induced a reconsideration of the selection process towards Member States’ greater involvement in nominating Scientific Panel experts. In light of this, it will be interesting to see whether further legislative interventions will be necessary for other agencies, or if organizational measures to ensure their preparedness and the continuity of their operations will be sufficient.
Thirdly, linked to the institutional dimension and strongly dependent on the outcome of the future negotiations, Brexit will clearly have substantive consequences in the different policy areas, which will impact on the implementation and enforcement activities carried out by EU agencies. The future relationship with the UK may determine the establishment of specific procedures in different policy areas, for instance for the authorization of regulated products originating from the UK, or the recognition of measures adopted by British authorities. In the long term, moreover, the absence of UK representatives and experts from the tables of EU agencies may affect the policy choices and decision-making ‘style’ of EU agencies, potentially changing the functioning of some of these administrative bodies as we know it. This aspect will certainly deserve further scholarly attention in the future.
In broader perspective, as underlined by Majone, also in the context of EU agencies, Brexit presents to the EU the choice between a ‘static adaptation’, limited to adjusting the functioning of the existing structures to the new scenario, or a ‘dynamic’ one, which entails a re-conceptualisation of the role and structure of the EU project. Beyond this, it raises the EU’s external differentiation, and the potential for EU agencies to become catalysts of ‘functional integration’ to respond to regulatory challenges on both sides of the Channel.
Annalisa Volpato is Assistant Professor for European Administrative Law at Maastricht University.
Kathryn Wright is Senior Lecturer in Law at the University of York.