The Accountability Gap in EU law

Mind the Gap

Marios Costa

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138939318
• eBook ISBN: 9781317381075
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Almost two decades ago, the fall of the Santer Commission against a background of allegations of maladministration and nepotism had the effect of placing accountability on the political agenda of the EU institutions. More recently, the non-ratification of the Constitutional Treaty, the difficulties of the ratification of the Lisbon Treaty and the current financial crisis have increased the calls for accountability in the EU.

This book investigates whether any progress towards more accountability and transparency has been made in the post-Lisbon era by taking a holistic approach to the subject. Marios Costa argues that currently the EU institutions and the Member States are not in a position to hold the so-called independent agencies as well as the various committees and expert groups accountable. Despite recent progress, the EU still needs to put forward an acceptable constitutional framework which will truly secure accountability at the EU level of governance.

1 Introduction and preliminary remarks

European Union accountability

This book examines the accountability regime of the EU from a constitutional perspective. In this context, the need for accountability is augmented by the ‘democratic deficit’: members of the EU institutions, offices, bodies and agencies – with the notable exception of the European Parliament (EP) – are not elected directly by the people and can be removed from their positions only in the most extreme circumstances. While accountability within the EU context is a principle of innovative governance, the question that needs to be answered here is whether the EU is accountable.

Assessing the current state of accountability within the EU, along with examining alternatives on how to mitigate any potential deficit(s), presupposes a clear understanding of the meaning of accountability. This chapter, therefore, examines the various contributions that have been made in relation to the meaning of accountability. The aim is to provide a common understanding and/or definition. This exercise in definition is not as straightforward as it seems and is in fact more problematical than might at first be supposed. Hence, an explanation is given in order to understand what is, and what is not, meant by the concept of accountability, while attempting to build the appropriate foundation which will be used as an essential tool for the analysis in the following chapters. The chapter begins by explaining the meaning or rather the non-meaning of the term. Second, it analyses the reasons why more accountability is being called for in the EU. Finally, the chapter examines the requirements of accountability with particular reference to the present level of accountability and transparency in the EU.

Defining accountability: explanation of the term

Accountability is an important yet elusive concept that has different meanings, and its characteristics differ depending upon the context. It is a broad concept that reflects a variety of understandings rather than a single paradigm¹ and, in fact, in the literature there seem to be as many definitions of accountability as there are scholars.² From a legal point of view, there is no core statutory definition. Consequently, anyone studying accountability will soon discover that this is a term that no one can be against; this is because it can mean different things to different people, and as such, the meaning of accountability can change to cover a variety of processes and purposes. The relevant literature identifies distinct types of accountability such as legal, democratic, financial, political, administrative and electoral.³ Also, commentators suggest that accountability can be internal, external, horizontal or vertical, formal or informal.⁴ Overall, the emphasis herein is on the origins as well as the core meaning of accountability.

Accountability is a term frequently used in EU documents: ‘we live in the age of accountability, wherever one looks there is a discussion and debate over accountability’;⁵ the word ‘crops up everywhere, performing all manner of analytical and rhetorical tasks and carrying most of the burdens of democratic ‘governance’.⁶ The importance of accountability is highlighted in relation to almost every issue, from the provision of public services⁷ and criminal justice⁸ to transnational governance regimes.⁹ Indeed, accountability is now considered to be an essential feature, if not the most important feature, of any system of governance in which the exercise of public power has been extended beyond the boundaries of the nation state, because of the desire to ensure the legitimacy of such modes of governance. The reason for this is the existence of ‘a common assumption that accountability is an autonomous and neutral feature of any governing system, national or transnational’.¹⁰

In the context of the EU, the need for accountability is augmented by the obvious ‘democratic deficit’, as it has been argued that the EU suffers from serious accountability deficits:¹¹ as already stated above, members of the EU institutions, offices, bodies and agencies are not elected by the people¹² and can be thrown out only in the most extreme circumstances. While accountability within the EU context is often characterised as the principle for an era of innovative governance, a common statement by many commentators is that the EU is not accountable enough and that accountability deficits are said to exist and are even growing, compromising the legitimacy of the EU.¹³ EU institutions, bodies, offices and agencies are perceived to not be subjected to adequate accountability processes, and this threatens the EU’s legitimacy. The obvious solution to this is to create mechanisms for accountability that hold decision-makers to account and thus contribute to the robustness of the EU governance system. Others of course may very well disagree with this statement. Indeed, there is this argument that the debate about the EU’s democratic deficit is exaggerated due to the fact that the general public is not very concerned about the activities of the EU and, second, because of the fact that even if the EU had not been invented, the Member States themselves would have engaged in international agreements which by definition would be less transparent and less accountable rather than the current state of play in the EU.¹⁴ On the other hand, these arguments are not very persuasive if one takes into account the core meaning of accountability, which requires that the public knows how it is governed.¹⁵ At the same time, there is a strong need for the public to find out about how public money is spent and to receive assurances that it has been well spent.¹⁶ All of this sounds quite straightforward. The executive of any public organisation has in its possession the taxpayers’ money; it has the right and the obligation to use it wisely. It must be held accountable for doing so, otherwise it must face the consequences.¹⁷

But where did accountability come from?

Historically, accountab...

Table of contents

• Cover Page
• Endorsement
• The Accountability Gap in EU Law
• Routledge Research in Constitutional Law
• Title
• Copyright
• Contents
• List of abbreviations
• Table of cases
• Table of European Union documents
• Acknowledgments
• Introduction
• 1 Introduction and preliminary remarks: European Union Accountability
• 2 Accountability within the Commission
• 3 The Access to Documents Regime in the EU
• 4 Accountability of the EU Decentralised Agencie
• 5 The Invisible Hand of the EU Committee-Based System: The Case of Delegated and Implementing Acts
• 6 Accountability Through Locus Standi and The Role of the Court of Justice
• Appendix I
• Appendix II
• Appendix III
• Bibliography
• Index