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
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
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