The Public Legitimacy of European Union Agencies

European Union agencies are important institutions in the EU regulatory state. These institutions are non-majoritarian: They operate at an arm’s length from elected officials. A core question is how such institutions can be legitimized, given their removal from electoral politics. In this paper, we delineate three archetypal foundations for legitimacy found in the normative literature. We then analyze the media coverage of three EU agencies in salient policy fields: Border control, environment and financial regulation. We ask: Under what conditions, if at all, are different legitimacy foundations accepted or rejected in public discourse? From a normative angle, analysts have pointed to a potential for domination if the unelected experts in EU agencies gain power at the expense of democratically elected politicians. On the empirical side, analysts have also focused on legitimacy. Recently, EU agencies have increasingly been analyzed in the framework of (bureaucratic) reputation theory. Here, EU agencies are understood as organizations that manage their reputation in order to legitimize their existence vis-à-vis a range of political principals. In the reputation management literature, “legitimacy is … a product of successful reputation management by selectively responding to various reputational threats” (Rimkutė 2018, 3). This empirical research agenda has enhanced our understanding of many aspects of EU agencies. However, as we will argue, it gets legitimacy backwards. Legitimacy is, in essence, a normative concept, albeit with an empirical component. To define legitimacy as a product of successful reputation management is, therefore, too reductive. We argue instead that legitimacy is a broader concept that encompasses, but is not synonymous with, successful responses to reputational threats. The normative literature, on the other hand, often falls in the opposite trap. It derives ideal-typical criteria of legitimacy, sometimes without sufficiently engaging with empirical facts and scope conditions. Yet a normative understanding of the concept legitimacy hinges on what the public would accept. This is unavoidably an empirical question. There is, in other words, a disconnect between prevailing empirical and normative approaches to legitimacy. This paper aims to amend this disconnect. We challenge the reputational literature by arguing that legitimacy should not only be a matter of successful reputation management but link up to a reasonable first-order normative principle. In an attempt to get closer to such a principle, we empirically analyze the legitimation process through public discourse. We make the case that legitimation through public discourse is a crucial stepping stone for the legitimacy of non-majoritarian institutions. The paper takes a two-stage mixed-methods approach. We quantitatively map how three dimensions of legitimation vary over time and between agencies. We then qualitatively analyze how and under which conditions the legitimacy discourse about the three agencies differ. This paper makes three main contributions: We complement the reputational literature by analysing legitimation directly. Empirically, we provide an analysis of an understudied aspect of EU agencies: their media coverage. Normatively, we provide a first step away from ideal categories and towards an empirically grounded analysis of the legitimacy of non-majoritarian institutions.