Opening Pandora’s Box? Joint Sovereignty and the Rise of EU Agencies with Operational Tasks

• Author: Christian Freudlsperger,Adina Maricut-Akbik,Marta Migliorati
• DOI: http://doi.org/10.1177/00104140211066223
• Published date: 01 October 2022
• Date: 01 October 2022
• Subject Matter: Articles

Article

Comparative Political Studies

2022, Vol. 55(12) 1983–2014

© The Author(s) 2022

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DOI: 10.1177/00104140211066223

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Opening Pandora’s Box?

Joint Sovereignty and

the Rise of EU Agencies

with Operational Tasks

Christian Freudlsperger

1,2

, Adina Maricut-Akbik

1,3

,

and Marta Migliorati

1,4



Abstract

This article problematises the proliferation of European Union (EU) agencies

with operational tasks as a new phenomenon capturing the exercise of joint

sovereignty in European integration. While joint decision-making has been a

feature of EU politics for decades, joint sovereignty is a broader category that

additionally involves the creation of EU bodies able to intervene ‘on the

ground’alongside national public actors. We argue that the choice for joint

sovereignty opens a Pandora’s box of implementation deficiencies which

undermine the ability of both national and supranational actors to conduct

operational activities effectively. We subsequently identify two frequent

dysfunctions in policy implementation and connect them to ambiguity and

conflict at the decision-making stage. Empirically, we illustrate the systemic

link between decision-making and implementation problems in the functioning

of two agencies with operational tasks active in the fields of border man-

agement (Frontex) and police cooperation (Europol).

1

Hertie School, Berlin, Germany

2

ETH Zurich, Zurich, Switzerland

3

Leiden University, Leiden, Netherlands

4

European University Institute, Fiesole, Italy

Corresponding Author:

Adina Maricut-Akbik, Assistant Professor of European Politics, Institute of Political Science,

Leiden University, Wijnhaven Campus, Turfmarkt 99 2511 DP The Hague, Leiden 2300 RA, The

Netherlands.

Email: a.akbik@fsw.leidenuniv.nl

Keywords

sovereignty, multi-level governance, European Union, policy implementation,

agencification

Introduction

In modern governance, ‘agencification’is a phenomenon describing the

transfer of government powers from classic ministerial departments to new

bodies delegated with specialised tasks and various degrees of autonomy

(Trondal, 2014). In the European Union (EU), agencies proliferated in the

1990s in many policy areas (Levi-Faur, 2011). At the outset, EU agencies

fulfilled mainly (semi-)regulatory functions such as providing information and

expertise-based rules in the single market (Egeberg & Trondal, 2017;Majone,

1994). However, the last two decades have also witnessed a strengthening of

EU agencies with operational tasks in fields like border management (the

European Border and Coast Guard Agency, known as Frontex), asylum (the

European Asylum Support Office, EASO), police cooperation (Europol), or

civil and criminal justice (Eurojust and the European Public Prosecutor’s

Office). The development is significant for two reasons. First, agencies with

operational tasks go beyond the EU’s classical ‘regulatory state’model be-

cause they require supranational capacity-building in terms of money, per-

sonnel and coercive ability (Bremer et al., 2020;Genschel & Jachtenfuchs,

2016). Second, operational tasks presuppose the physical presence of EU

officials on member states’territories in order to limit, enhance, or even

replace the actions of national public authorities. While EU institutions had

already been involved in policy enforcement vis-`

a-vis private actors

(Scholten, 2017), operational tasks are substantively different because they

target the activities of public actors.

In this article, we conceptualise this new empirical trend as the exercise of

‘joint sovereignty’in the EU. We focus, in particular, on the domestic

sovereignty of member states (Krasner, 1999;Thomson, 1995) and its two

main components: decision-making authority (the sole right to make rules in a

given territory) and coercive capacity

1

(the sole capability to physically

enforce said rules through a centralised bureaucratic apparatus). Borrowing

from the new intergovernmentalism, we first show the proliferation of EU

agencies since the Maastricht Treaty as a process of ‘integration without

supranationalism’which created ‘de novo bodies’(Bickerton et al., 2015)

under joint national and supranational authority. Then, we examine the case of

operational agencies as a specific institutional form through which national

and supranational actors share not only decision-making authority but also the

capacity to enforce rules ‘on the ground’in different policy areas. When

operational agencies participate in activities like law enforcement, border

1984 Comparative Political Studies 55(12)

management, or inspections of national infrastructure, member states come to

exercise sovereignty jointly with them and thus no longer hold the monopoly

of coercive capacities on their territories. Given its emphasis on physical

policy enforcement, the resulting joint sovereignty model is broader than

shared authority in multi-level governance (Hooghe & Marks, 2001) and goes

beyond notions of ‘pooled sovereignty’in decision-making (Moravcsik,

1998). Beyond the EU, similar arrangements can be found in other ‘com-

ing-together’polities (Kelemen, 2014;Stepan, 1999) practicing cooperative

or executive federalism, such as the United States, Switzerland or Germany

(Bolleyer & Thorlakson, 2012;B¨

orzel, 2005).

Second, we tackle the connection between the conditions that facilitate the

emergence of joint sovereignty in the EU and the ability of the resulting

system to implement its own decisions effectively. Borrowing a metaphor

from Scholten (2017, p. 1360), we argue that joint sovereignty opens a

‘Pandora’s box’of implementation deficiencies when the same conditions that

allow the establishment of joint coercive capacities undermine the ability of

the system as a whole to enforce policies effectively. In order to establish new

institutions or to adopt policies under the joint sovereignty model, member

states typically strike compromises with a high level of ambiguity (Matland,

1995) or based on ‘incomplete contracts’(Jones et al., 2016;Pollack, 2003,p.

22). This pushes policy conflict further down the line to the implementation

stage. Consequently, the same conditions that pave the way for the emergence

of joint sovereignty create vertical conflicts over the ill-defined exercise of

joint coercive capacities in policy implementation. Which actor on which level

of authority is, for instance, responsible for registering, processing and im-

plementing the decision of an asylum application? The EU’s systematic re-

liance on hybrid governance structures equips both national and supranational

actors with the ability to enforce policies on the ground, which generates

specificdeficiencies. Using an adapted version of Matland’s (1995)

ambiguity–conflict model in policy implementation, we identify responsi-

bility-shifting and obstruction as the most likely dysfunctions of joint sov-

ereignty in the EU. Empirically, we illustrate the deficiencies with two

emblematic examples borrowed from the activities of Frontex (responsible for

border management) and Europol (tasked with coordinating police

cooperation).

Our contribution to the literature is fourfold. First, we analyse the EU

agencification phenomenon in a new light. While acknowledging the role of

all agencies in the construction of an EU administrative space, that is the

‘institutionalisation of common administrative capacity’(Trondal & Peters,

2013, p. 296), we understand the expansion of operational agencies in par-

ticular as a new feature of EU governance, that is, the exercise of joint

sovereignty. Second, we investigate tenets of the new intergovernmentalism

(Bickerton et al., 2015) and the core state powers literature (Genschel &

Freudlsperger et al. 1985