Paper/Speech Details of Conference Program for the 27th NISPAcee Annual Conference Program Overview Panel: The Rule of Law & Public Administration Author(s) Dawid Szescilo University of Warsaw Warsaw Poland Title Independence of Regulatory Authorities under EU Law: Failed Attempt to Create Fourth Branch of Government? File Paper files are available only for conference participants, please login first. Presenter Dawid Szescilo Abstract The classical Montesquieu's concept of tripartite division of powers is a cornerstone of the European administrative and legal tradition. However, it is clear that some important public institutions remain outside all three branches of power, e.g. ombudsman institutions or supreme audit bodies. The expansion of regulatory state added new type of institution that does not fit well into classical model, i.e. independent regulatory authorities (IRAs). They are distinguished by their special functions (supervising some markets, protecting competition and consumers) and extended – in comparison to all other agencies – scope of autonomy. The concept of IRAs was an important element of the US administrative tradition, but in Europe, prior to agencification era, central banks remained the only prominent example of institution falling under this category. The expansion of IRAs in the 80s and 90s in Western Europe and subsequently post-socialist countries of Central and Eastern Europe, was not only part of broad agencification trend. It had its own specific background. First of all, IRAs accompanied the transformation from positive state towards regulatory state. Last decades of the XXth century in many countries brought the wave of liberalization and privatization of markets previously monopolized by state-owned entities. Government bureaucracy withdrew from the role of the service provider and shifted to the position of organizer and regulator of the competitive markets populated now predominantly by private providers. Performing this new mission required specific organizational architecture. Assigning regulatory functions to the specialized administrative bodies providing high level of sectoral expertise was necessary, but not sufficient step. State as a regulator needed also credibility and trust from the regulated markets (especially from potential investors) by ensuring that regulatory decisions are not only made by experts, but they are also insulated from political influence. This was particularly important on the markets, where state-owned enterprises remained as competitors of private companies. The concept of IRAs became the ultimate response to those needs. It offered combination of necessary expertise with independence of regulators from direct influence of the political decision-makers. Independent regulators, as bodies neither directly elected by the people, nor directly managed by elected officials aimed at providing the markets with certainty and clarity about objectivity and integrity of regulatory actions. However, labelling any government agency as independent, even in the legislation, has itself limited normative value. It does not determine any specific attributes of independence and does not guarantee that regulatory decisions are free from political influences. For this purpose, there is a need to elaborate comprehensive governance and accountability regime, where the required degree of independence is secured. As the expansion of IRAs in Europe is a process largely driven by the EU law, where the independence of regulatory authorities is set as a requirement in several areas, this paper aims at analyzing the EU concept of independent regulatory authorities. The main research question is whether the EU legislation provides consistent and comprehensive model of the IRAs’ independence. Subsequently, I consider whether the scope of independence required by the EU law for those bodies allows us to conclude that IRAs regulated by the EU law no longer can be perceived as a part of executive branch. This paper relies on doctrinal legal analysis accompanied with literature review on the concept of IRAs.
