Speak Up Energy

In order to preserve the independence of the Agency, the following amendments would be highly beneficial:- The introduction of stronger requirement of expertise and independence
As far as expertise is concerned, according to para.11.2 sub 5 of the DIA, “All the members of the administrative board shall be appointed on the basis of their experience in the sector concerned”. Unfortunately, the proposed ACER regulation does not meet such a clear – and crucial – requirement. As for independence, it could be strengthen, for instance, by expanding the term of members’ office from 5 to 7 years, and by preventing the renewal.

– The consideration of a different composition formula
As already mentioned, the DIA foresees a general formula of “equal representation of the two branches of the Community executive within the administrative board” (art. 11.2.2). Yet, the incipit of the same provision openly states that “The three institutions agree that there cannot be a single formula for the composition of the administrative board”. Accordingly, legislative discretion is particularly broad in this respect. It is also worth noting that none of the existing European agencies’ management boards are appointed according to the proposed ACER formula. The institutional practice is, thus, silent on its assumed merits. Some of the already experienced formulas could perhaps be adjusted to the energy agency: this is probably the case of the European Food Safety Authority (EFSA).

According to article 25, reg. 178/2002, the EFSA administrative board is “composed of 14 members appointed by the Council in consultation with the European Parliament from a list drawn up by the Commission […], plus a representative of the Commission. Four of the members shall have their background in organisations representing consumers and other interests in the food chain. […] The members of the Board shall be appointed in such a way as to secure the highest standards of competence, a broad range of relevant expertise and, consistent with these, the broadest possible geographic distribution within the Union”. Whatever the opinion with respect to the already experienced options, the broad legislative discretion on the issue allows the Commission to explore further innovative solutions, that hopefully would better satisfy the sector-specific needs.

– Questioning the need itself of a Administrative Board.
This is the most demanding – and perhaps beneficial – amendment to consider. A strong political stance would be required to support it, since the stifling of the Administrative Board would affect the general organizational scheme defined by the DIA. The argument runs as follows. The Administrative Board performs, within a European agency, essentially two kinds of tasks: planning and monitoring. In the case of ACER, both these functions could be presumably assigned to other internal bodies. As for the planning function, the Director, on the advice of the Board of regulators, would be probably the best suited to carry out tasks such as the adoption of the agency’s annual work programme. As for the monitoring activities, an ad hoc audit unit could perform the pertinent tasks, under the supervision of the Director. A much more careful assessment, of course, would be required in order to show that the Administartive Board is redundant. The relevant point, however, is that the suppression of this board would confer on ACER a lighter and, at the same time, more independent structure. In short, a strong option in favour of bureaucratic streamline and enhanced agency independence should call into question the necessity itself of an Administrative Board.

Does a would-be thin and independent regulatory agency really need to superimpose a hybrid administrative-political board to a framework where an administrative body (the director with its staff) and a high-level politically independent body (the regulators board) are already available?

From EU Energy Policy Blog

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