Analytical Fiche Nr 5. Composition and designation of the Management Board 1

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1 Analytical Fiche Nr 5 Composition and designation of the Management Board 1 1) State of play de jure and in practice There is no one single model concerning the composition and designation of members of agencies' Management Boards, as these aspects are defined differently by individual constituent acts 2. In fact, Management Boards can include representatives from EU Member States, European Commission, European Parliament, EU candidate countries, noneu countries, other agencies and/or institutions as well as individuals. of Member States/Members appointed by the Council Thirty agencies have representatives from all Member States in their Management Board. For twenty seven of these agencies it is the national authorities themselves which appoint their representatives. Instead, in three cases 3 the Management Board includes members representing all Member States who are formally appointed by the Council 4. The Management Board of three agencies 5 includes members who, either do not represent the Member States or represent some of them on a rotating basis, and are appointed by the Council 6 : The Management Board of ACER has 5 members appointed by the Council. Members of the Management Board of ACER shall undertake to act independently and objectively in the public interest, without seeking or taking any political instructions. The Management Board of EFSA has 14 members appointed by the Council in consultation with the European Parliament from a list drawn up by the Commission. EFSA has an independent Management Board whose members are appointed to act in the public interest and do not represent any government, organisation or sector. Four of the members shall have their background in organisations representing consumers and other interests in the food chain, even though they act in their own capacity. The Management Board of EIGE has 18 representatives appointed by the Council for a threeyear term of office. For each term of office, the members appointed by the Council shall represent eighteen Member States in the order of the rotating Presidencies, one member being nominated by each Member State concerned. 1 This body, depending on the constituent acts, is also called Administrative Board, Governing Board, Administrative Council, Management Committee or the College. 2 See annex 3 CEDEFOP, EUOSHA, EUROFOUND 4 These three Management Boards also include representatives of employees' and employers' organisations, appointed by the Council. 5 ACER, EFSA, EIGE 6 However, these three agencies have other bodies in which all Member States are represented: EFSA s Advisory Forum, EIGE s Expert s Forum and ACER s Board of Regulators. 1

2 The Management Board of EMA has two representatives of patients' organisations and one representative each of doctors' and veterinarians' organisations, appointed by the Council after consultation of the European Parliament. The Management Board of ENISA has three members, without voting, representing information and communication technologies industry, consumer groups, and academic experts in network and information security, who are appointed by the Council following a proposal from the Commission. of the Commission All but the former third pillar agencies have European Commission representatives as members of the Management Board. Their number varies from 1 to 6. In the case of four agencies 7, the Commission's representatives are without voting. In the case of former 3 rd pillar agencies CEPOL, EUROJUST and EUROPOL the Commission has representatives, who attend the meetings of the Management Board as observers 8. of the European Parliament/Experts appointed by the European Parliament Twenty six agencies do not have any representative of the European Parliament in their Management Board. The Management Boards of seven agencies include two members appointed by the Parliament. In six of these agencies the members have voting 9, while in the case of ETF there are three nonvoting experts appointed by the Parliament. of noneu countries Nine agencies have representatives, mostly without voting, from noneu countries. 10 Other representatives The Boards of the following individual agencies include particular types of members: CDT: 7 representatives of agencies as foreseen in the founding regulation (EEA, ETF, EMCDDA, EMA, EUOSHA, OHIM, EUROPOL), and 1 representative from each of the EU institutions and bodies as well as from regulatory agencies which concluded agreements with the Centre for collaboration on a voluntary basis 11 ; 7 1 st pillar agencies: CPVO, OHIM; 2 nd pillar agencies: ISS, EUSC 8 According to the new Council Decision establishing the European Police Office, to be applicable as of 1 January 2010, the Commission will be represented in the Management Board by one full member. 9 ACER, ECHA, ECDC, EEA, EMCDDA, EMA 10 EASA 4 members without voting from: Iceland, Norway, Liechtenstein and Switzerland; ECDC 3 representatives without voting from: Norway, Iceland and Lichtenstein; EEA 5 members without voting from: Turkey, Iceland, Norway, Liechtenstein and Switzerland; EMCDDA 1 representative without voting from Norway; EMA 3 observers: Iceland, Norway and Liechtenstein; EMSA 2 members without voting from: Iceland and Norway; ERA 2 representatives without voting from Norway, Iceland; ETF 3 observers from partner countries: Croatia, FYROM and Turkey; FRONTEX 1 member, with limited voting, of each country which is associated with implementation, application and development with the Schengen acquis; GSA third country representatives where appropriate (arrangements specifying rules of this participation are to be agreed). 11 Council of the EU, Court of Justice, European Court of Auditors, Committee of Regions, EIB, ECB, European Ombudsman, EIT, Fusion for Energy, CEDEFOP, CEPOL, CFCA, CPVO, EASA, ECHA, EDA, EFSA, EMSA, ENISA, ERA, EUROFOUND, EUROJUST, EUCS, FRA, FRONTEX, GSA. 2

3 CEDEFOP: 2 coordinators appointed as representatives of employees' and employers' organisations; they are representatives of their respective organisation at European level (ETUC for employees and Business Europe for employers) and attend the Management Board's meetings without voting ; EUOSHA: 2 coordinators appointed as representatives of employees' and employers' organisations; they are representatives of their respective organisation at European level and attend the Management Board's meetings without voting ; EUROFOUND: 2 coordinators appointed as representatives of employees' and employers' organisations; they are representatives of their respective organisation at European level and attend the Management Board's meetings without voting ; ECHA: 3 individuals from interested parties without voting, appointed by the Commission; EMSA: 4 representatives from the industry field without voting, appointed by the Commission; ERA: 6 members and their alternates representing at European level railway undertakings, infrastructure managers, railway industry, worker unions, passengers and freight customers, without voting, appointed by the Commission from a shortlist of 4 names submitted by their respective European organizations; FRA: 1 independent person appointed by the Council of Europe; EDA: the Chairman of the EU Military Committee and the National Armament Director of the EU Presidency, or their representative, without voting ; CEPOL: representatives of the General Secretariat of the EU Council and EUROPOL without voting. Term of office of boards' members In 8 cases, the term of office of boards' members is 3 years, ; in 7 cases, the term of office is 4 years, once; in 7 cases, the term of office is 5 years, ; in one case, the term of office is 5 years, non ; in one case, EIGE, the term of office is 3 years 12 ; finally, in 11 cases, there are no specific provisions concerning the term of office of boards members. 13 Alternate members In 15 cases, agencies' founding regulations foresee the appointment of alternate members 14. In five cases where the appointment is not mandatory, alternate members were nominated. 15 Observers Thirteen agencies have observers in their Management Board The EIGE founding regulation does not specify whether the mandate is or not. 13 For more details, see annex 14 ACER, CDT, CFCA, CPVO, EASA, ECDC, EIGE, EMA, EMSA, ERA, EUOSHA, EUROFOUND, FRA, FRONTEX, OHIM 15 EAR, EEA, EMCDDA, ETF, EUROJUST 3

4 In twentyfour agencies the Director participates in the Management Board's meetings without voting. 17 The Management Boards of EASA, ECDC and EFSA can invite, on case by case basis, any person whose opinion may be of interest to attend their meetings as an observer. The DirectorGeneral of the Military Staff and the Chairman of the Military Committee may attend Management Board's meetings of two agencies 18. 2) Critical analysis of the issue at hand Differences in the composition of the Management Boards Balance of powers Agencies' constituent acts define in different ways the composition of agencies' Management Boards. In particular, analysis of the current situation shows that the presence of members appointed by the Parliament and of Commission representatives is quite uneven, and that the weight of the Commission in terms of votes varies greatly 19. In addition, the Commission representation on the Management Board does not always reflect the particular responsibility that the Commission holds in implementing EU legislation 20. Moreover, the composition of agencies' boards does not always give adequate weight to the representation of EU interest. No overall explanation can be found for such phenomenon, as different compositions of the boards are not justified by corresponding differences in terms of agencies' activities and boards' tasks. 21 The same goes for the duration of the term of office of boards' members and for the denomination of boards, which vary from one agency to another. Experience shows that members of the board appointed by EU institutions contributed to build a structured and fruitful relationship between the various actors involved and helped agencies to work in line with EU policies and priorities CEDEFOP Iceland and 3 observers from Norway; CFCA the Advisory Board, which is composed of representatives of the Regional Advisory Councils; EAR EIB; EASA 7 observers from: Albania, Bosnia and Herzegovina, Croatia, FYROM, Montenegro, Serbia, UN Mission in Kosovo, and 4 observers from EASA's Advisory Council; ECHA 2 observers from: Norway and Iceland; EMCDDA 6 observers from: Scientific Committee, UNODC, Council of Europe, WHO, Turkey and Reitox National Focal Points (spokesperson); EMA 3 observers from: Norway, Iceland and Liechtenstein; EU OSHA 2 observers from EUROFOUND; EUROFOUND 3 observers from EFTA representing interests of "Government", "Employers" and "Employees" respectively; ETF 1 observer each from Croatia, FYROM and Turkey; GSA 2 observers from: SecretaryGeneral/High Representative and European Space Agency (ESA); OHIM the Benelux Office for Intellectual Property (OBPI), the World Intellectual Property Organization (WIPO), 5 observers representing users' organizations (Marques, International Trademark Association INTA, European Communities Trade Mark Association ECTA, European Brands Association AIM and BusinessEurope), EUOSHA and 1 observer representing EFTA countries; CEPOL 3 observers from: European Commission, General Secretariat of the Council and EUROPOL. 17 ACER, BEREC Office, CEDEFOP, CFCA, CPVO, EASA, ECHA, ECDC, EEA, EFSA, EIGE, EMCDDA, EMSA, ENISA, ERA, EUROFOUND, FRA, FRONTEX, GSA, OHIM, ISS, EUSC, EDA, CEPOL 18 ISS, EUSC 19 In some cases, the Commission has no voting. 20 A case in point is the GNSS Supervisory Authority in which the Commission is currently represented with one vote among 28 on the Management Board, although it carries sole responsibility for the implementation of the GNSS Programmes. 21 The fact that the Commission is a mere observer on the Board of Eurojust and CEPOL can be explained by the mainly intergovernmental nature of this policy area; to be noted that in the "new" Europol, the Commission has one voting right. 22 The experience of the agencies: a contribution to the debate on the future of the agency model "Learning with the past, building the future", Agencies' Contribution to Interinstitutional Debate, p. 5 4

5 Size of the Management Boards The vast majority of agencies have large Management Boards, which generally include around thirty members and in some cases a much higher number 23. The main reason for this is the representation of all Member States in the board of all agencies but three. While it is true that representatives of Member States have often provided for a valuable tool of cooperation between agencies, EU institutions and national competent authorities, this widespread arrangement has also raised the question whether the presence of representatives of all Member States is always justified, especially in those cases where Member States are not among the stakeholders. 24 Furthermore, experience shows that the degree of actual involvement of Member States' representatives differs from one case to another. On the other hand, participation of all Member States in the Agency Management Board may be of critical importance for agencies dealing with issues that remain to a large degree within Member States' responsibilities. Another reason behind large boards is that in some cases the board includes also a high number of users or stakeholders (see also Fiche 30). The capacity of such big bodies to actually fulfil effectively and efficiently their role and responsibilities, as assigned to them in the founding regulation, is questioned and concerns are raised that the powers of the Director are not properly counterbalanced by the Management Board (see also Fiche 6). 25 In addition, large boards also mean a high cost to be borne by the agency for reimbursing travel expenses of board members 26. Alternative governance arrangements In three recently created agencies (EFSA, EIGE, ACER), the Management Board is relatively smaller and it includes members who, either do not represent the Member States, since according to the constituent act members of the board have to act in the public interest, 27 or represent some Member States on a rotating basis. 28 In these three cases, however, the founding regulations foresee the creation of advisory bodies, which are bigger in size and in which all Member States are represented. In other cases 29 the big size of the Management Board is compensated by the existence of a smaller Executive Board or Bureau, more closely involved in the running of the agency. Such an arrangement provides for more effective governance compared to the cases where the existence of a bigsized board is not accompanied by a smaller support body (see fiche 6). Representation of target groups In a significant number of agencies the composition of the Management Board does not reflect the target groups, in particular stakeholders and direct users, the needs of which the 23 EUROFOUND, EUOSHA, CEDEFOP, CDT. 24 Evaluation 2009, Volume I, point 4.1.2, p. 1213, Volume II, point 2.3.2, p. 63. For instance in the cases of Malta having a voice in ERA s board and no railways, Hungary and the Czech Republic as members of the European Maritime Safety Agency as landlocked countries, without any vessels under their national flags. 25 Rapport d'information sur l'évaluation de l'activité des agences européennes, Denis Badré, Sénat, Commission des affaires européennes et de la commission des finances, 7 octobre 2009, point I.A.3c. For more details, see fiche 6 26 In the case of former second pillar agencies, however, board members travel costs are not reimbursed. 27 EFSA, ACER 28 EIGE 29 CEDEFOP, EEA, EMCDDA, EUOSHA, EUROFOUND, FRA, FRONTEX, 5

6 agencies address. However, stakeholders and users cannot be put on equal footing with the Member States and the Commission, as they do not bear any budgetary or legal responsibility for an agency. In addition, they are often involved in the work of an agency as participants of various working groups (see also Fiche 30). 30 Remuneration of board members To date, board members are not remunerated by agencies, but by their administration (or body) of origin. Agencies cover only the travel costs, although it has to be noted that in this area the practices of the agencies vary and do not always cover the actual costs incurred. There can also be discrepancies according to the institutions of origin of boards' members, leading de facto to the creation of different "categories" of board members. The question of remuneration of board members has recently been put to FRA by a body of origin (a University) that asked to be compensated for the time spent by its representative in his position of Chairperson of the board. Participation in an agency's management board is part of the person's job description once he/she was chosen and appointed for the position. With this in mind, it would seem appropriate that, in principle, the question of compensation of the institution employing the Chairperson is to be regulated between the Member State nominating him/her and that institution. However, it should be reflected whether it could be acceptable that an agency compensates the institution which employs the Chairperson of a board, in case this institution is not part of a national administration, e.g. a University (like in the case of FRA), an NGO etc. In a broader perspective, it should be underlined that appointing members to the management board of an agency should be seen as a means to build a structured and fruitful relationship between the various actors involved, in particular the agency, the Member States and the Union's institutions. 30 Evaluation 2009, Volume II, point 2.3.2, p. 50, 63, Volume I, point 4.1.2, p

7 ANNEX TO ANALYTICAL FICHE N 5 Agencies (Former 1 st pillar) ACER Agency for Operational Management of SIS II, VIS and EURODAC 31 Commission 2 representatives European Parliament 2 members appointed by EP Members of the Management Board Member States 2 representatives 27 representatives Term of office Other Observers 4 years, once 4 years, once BEREC Office 1 representative 27 representatives No specific provisions CDT 2 representatives 27 representatives 31 As drafted in the Commission proposal from June 2009, no Regulation approved yet 3 years, 5 members appointed by the Council; 1 member from each country which is associated with implementation, application and development with Schengen acquis and EURODAC related measures; 7 representative of agencies and offices: EEA, EMCDDA, EMA, EUOSHA, ETF, OHIM, EUROPOL; 1 representative each 7

8 CEDEFOP 3 representatives 27 representatives appointed by the Council CFCA 6 representatives 27 representatives 3 years, 5 years, from the institutions, bodies and regulatory agencies which have their own translation services but have concluded agreements with CDT for collaboration on a voluntary basis 27 representatives of both employees and employers organisations appointed by the Council; 2 coordinators; Iceland; 3 observers from Norway the Advisory Board CPVO 1 representative 27 representatives 3 years, EAR 2 representatives 27 representatives No specific provisions EASA 1 representative 27 representatives 5 years, 4 members without voting from: Iceland, Norway, Liechtenstein and Switzerland; EIB 7 observers from: Albania, Bosnia and Herzegovina, Croatia, FYROM, Montenegro, Serbia and UN 8

9 EASO 2 representatives 27 representatives ECDC ECHA EEA 3 representatives 3 representatives 2 representatives 2 members designated by EP 2 independent persons appointed by EP 2 scientific personalities designated by EP 27 representatives 27 representatives EFSA 1 representative 3 years 4 years, extendable 4 years, once 27 representatives No specific provisions 4 years, once 1 nonvoting member from UNHCR; 3 individuals from interested parties, without voting, appointed by EC; 5 members without voting from: Turkey and EFTA countries Other participants according to Article 6 of the Rules of procedure) 14 members appointed by the Council to act in the public interest and do not represent any government, organisation and sector; Mission in Kosovo 3 observers from: Iceland, Norway and Liechtenstein 2 observers from: Norway and Iceland 9

10 EIGE 1 representative EMCDDA EMA 2 representatives 2 representatives 2 independent experts designated by EP 2 members appointed by EP 18 representatives appointed by the Council 27 representatives No specific provisions 27 representatives EMSA 4 representatives 27 representatives 3 years 3 years, 5 years, once ENISA 3 representatives 27 representatives No specific provisions 1 representative without voting from Norway; 2 representatives of patients' organisations; 1 representative of doctors' organisations; 1 representative of veterinarians' organisations. All appointed by the Council 4 professionals from the industry field, nominated by EC, without the right to vote; 3 representatives, appointed by the Council, representing following groups: 1) information and 6 observers from: Scientific Committee, UNODC, Council of Europe, WHO, Turkey and REITOX 3 observers from: Norway, Iceland and Liechtenstein 2 observers from: Iceland and Norway 10

11 ERA 4 representatives 27 representatives EUOSHA 3 representatives EUROFOUND 3 representatives 27 representatives appointed by the Council 27 representatives appointed by the Council 5 years, once 3 years, 3 years, communication technologies industry, 2) consumer groups, 3) academic experts in network and information security; 6 members, appointed by EC, representing: 1) railway undertakings, 2) infrastructure managers, 3) railway industry, 4) worker unions, 5) passengers, 6) freight customers; 2 representatives without voting from: Norway and Iceland; 27 representatives of both employees and employers organisations appointed by the Council 27 representatives of both employees and employers organisations appointed by the Council; 2 observers from EUROFOUND 2 coordinators; 3 observers from ETFA countries representing interests of government, employees and 11

12 FRA 2 representatives ETF 3 representatives 3 nonvoting experts appointed by EP FRONTEX 2 representatives 27 independent persons appointed by each MS 27 representatives 25 representatives plus representatives form Iceland, Norway and Switzerland with limited voting GSA 1 representative 27 representatives 5 years, non 5 years, once 4 years, extendable once 5 years, once OHIM 1 representative 27 representatives No specific provisions 1 independent person appointed by the Council of Europe; 1 member from each country which is associated with implementation, application and development with Schengen acquis; Third countries representatives when appropriate; employers 3 observers from: Croatia, FYROM and Turkey observers from UK and IE the SG/HR; European Space Agency (ESA) Benelux Office for Intellectual Property; the World Intellectual Property 12

13 Agencies (Former 2 nd pillar) Commission European Parliament Member States EDA 1 representative 27 representatives No specific provisions EUSC 1 representative 27 representatives No specific provisions ISS 1 representative 27 representatives No specific provisions Agencies (Former 3 rd pillar) CEPOL Commission European Parliament Member States 27 representatives No specific provisions Organization; 5 observers representing user organizations; EUOSHA; 1 observer representing EFTA countries Term of office Other Observers Chairman of the EUMC, the National Armament Director of the EU Presidency, and Term of office Other Observers Representative of the Commission; of the General Secretariat of the 13

14 Council of the EU; of EUROPOL EUROJUST 27 representatives At least 4 years, Representative of the Commission EUROPOL 27 representatives No specific provisions Representative of the Commission 14

15 15