Brexit and the ways forward for the UK and EU agencies

By Lisette Mustert, Béla Strauss, Miroslava Scholten and Matthew Wood

Brexit raises the question of which way forward for the UK in its relationship with the EU and with EU agencies. For future research and legislative design, this in turn raises a more fundamental question of when which type of agreement between a third country and EU agencies is appropriate, in light of  factors such as salience and the interests on both sides. Having analysed all EU agencies’ founding acts, we show in this post that there are three types of formal relationships that exist at this moment between EU agencies and other countries: full membership, observership and cooperation. We argue that the type of this relationship would vary for the UK depending on the score of ‘Brexit salience’, a concept that we introduce. The higher the ‘Brexit salience’ rating is, the more formal the arrangement – full membership or observer – the UK (and the EU) would need to have with an EU agency. According to our scores, this would concern the European Medicines Agency (EMA) and the European Aviation Safety Agency (EASA). In the case of EU agencies that score low on our salience rating, the UK (and the EU) would want to opt for a relatively limited form of cooperation with EU agencies. This would be the case for Cepol, EIGE, ACER, Frontex and CPVO. Surprisingly, the seemingly highly salient agency in the public debate – the European Border and Coast Guard Agency (also known as Frontex) – scores the joint lowest rating. How is this possible, when for the UK immigration is so important during the Brexit vote? It is because, first, our Brexit salience measures do not focus on what is salient in general for the British or European public. Rather, we are concerned with practical matters of policy implementation. As a matter of policy, Frontex has a clear and well-resourced opposite agency – the UK Border Agency – and its operation does not affect a discrete and well-defined policy area.

EU agencies and third countries: three types of formal relationships

Having studied founding acts of all EU agencies, we have seen three types of formal relationships that exist between EU agencies and third countries:

• Full membership: the essential feature here is that the third country has a place in the agencies’ main organ – like a management board. Therefore, the third country has the same rights and privileges as EU member states in the agency, except the right to vote (Lavenex 2015). The agencies that currently have at least one third country member are EASA, ERA, EEA, EFSA, EMCDDA, EMSA, Frontex, EIOPA, GNSS. The EFTA states are almost exclusively the ones that cooperate in this manner with the agencies, although in two instances (EEA and EMCDDA) Turkey is also a member. Frontex is the only agency where the EFTA states have some voting rights, so it might be seen as the most intense participation of third countries in any of the agencies. The reason the EFTA states have this special position in the Frontex management board is that participation in Frontex was negotiated in special separate agreements.
• Observership: the term ‘observership’ is used very frequently, but never defined. The term obviously suggests a less intense form of participation than membership, a form of collaboration where the third state is simply there to passively take in the events that unfold in the EU agency. This makes it hard to distinguish membership from observership, especially because third country ‘full members’ generally also lack a vote, which otherwise could serve as the distinguishing feature between the two. In many instances, EFTA states are, if not members to an EU agency, at least observers. However, unlike the membership model which is almost exclusively applicable to EFTA states, the observer status is more widely available, in particular to (potential) candidate countries for accession to the EU such as Macedonia, Bosnia and Herzegovina, Albania and Serbia. Currently, there is at least one third country observer participant in EASA, ENISA, EBA, Cedefop, EMA, Eurofound, EASO, EU-OSHA, ECDC, ECHA, FRA, EFSA. Only EFTA and (potential) acceding states are observers to the EU agencies. 
• Cooperation: EU agencies increasingly make use of this option by adopting working arrangements or memoranda of understanding with third countries. The basic regulations of the EU agencies frequently mention the need for cooperation with third countries. The following agencies have these provisions: EFCA, EASA, ERA, EBA, ESMA, GNSS, Europol, Eurojust, Cepol, SatCen, EMA, EASO, EU-OSHA, ECDC, EEA, EFSA, EMCDDA, EDA, EIOPA and Frontex.   

Brexit salience concept

Brexit salience can be defined as the extent to which Brexit may affect EU agencies’ internal workings, how important their role may be in ensuring maintenance of regulatory standards, and how closely they are connected to key areas of the UK economy. To conceptualise and analyse the extent to which Brexit-specific arrangements may be required between EU and UK regulatory agencies so as to enable a smooth form of regulatory alignment after Brexit, we propose to analyse EU agencies with respect to their ‘Brexit salience’ across three aspects:

1. Connections internally with British staff: this is the extent to which, after Brexit, EU agencies may internally face some instability in their labour force. EU agencies are staffed by members chosen both to represent a range of member states, but also, crucially for our purposes, to bring relevant and specific expertise in the relevant regulatory field. While overall the UK seems to contribute relatively few staff to EU institutions compared with France or Germany, some agencies rely heavily on British staff and expertise. The EMA, for example, has voiced worries about how ‘our activities will be impacted [by Brexit] and we need to plan for this now to avoid the creation of gaps in knowledge and expertise’.
2. UK agencies’ capacity to maintain regulatory standards: this is the extent to which the UK has similar regulatory capacity to the EU level to maintain regulatory standards. If this is the case, then EU agencies are likely to be less salient as the regulatory environment is likely to stay largely similar, so long as the UK maintains standards on, for example, environmental pollution. However, where the UK does not have regulatory capacity in the form of well-resourced agencies capable of implementing regulatory, information sharing and communication activities that regulatory agencies undertake, EU agencies are more likely to be salient in continued collaborative efforts to maintain regulatory standards.
3. Economic interconnectedness: lastly, and from the perspective of the UK, EU agencies are more likely to be significant where the UK has significant economic interests tied to the economic sphere those agencies have jurisdiction over. Areas in which the UK economy is especially embedded in global supply chains – for example in financial services – are most likely to elicit interest from UK policymakers with regard to cooperation with agencies in those areas.

This tripartite framework for assessing Brexit Salience in EU agencies covers the salience of Brexit for agencies (their internal workings and employment of UK nationals as staff), salience for the EU (ensuring the UK has the requisite capacity to maintain similar regulatory standards) and salience for the UK (the extent to which agencies cover the regulatory areas that it is concerned with). Brexit salience is a multidimensional concept and not all elements of it will always pull in one direction. 

The score board below includes initial salience rating developed inductively scoring ‘low’ (1), ‘medium’ (2) and ‘high’ (3) for each of the agencies for each of the three aspects described above and then adding the scores together to produce an overall ‘rating’ out of 9. The ratings are preliminary and will be further developed through double coding and comparison before final publication.

Preliminary brexit salience score board

About the authors:

This blog post is a result of a research project and academic paper (forthcoming) exercised by Lisette Mustert and Béla Strauss, two legal Research Master students at Utrecht University, under supervision of Miroslava Scholten, Rob Widdershovenand Matthew Wood.