Naming, Blaming Claiming and EU Agencies: Dispute Resolution in the Agencification of European Administration

In 1980 Felstiner, Abel and Sarat introduced their famous model of ‘dispute pyramid’ which outlines the three steps individuals take prior to litigation before court. The first step is naming, which consists in the individual recognizing that a problem is a legal problem. The second is blaming, which consists in the individual being able to assign the responsibility for their problem to the action or inaction of another party. The third step is claiming, in which individuals voice the grievance to the entity believed to be responsible and ask for some remedy or action to address the harm. Drawing on empirical materials, this paper applies the dispute pyramid model to analyze how the three steps are impacted in procedures jointly managed by national authorities and EU agencies involved in migration — namely, the European Union Agency for Asylum (EUAA) and Frontex. The individual interacting with the two agencies is confronted with considerable obstacles to access justice given by the unclear allocation of tasks between agencies and national authorities, the opaque normative force of the two agencies’ acts, as well as the inadequate complaint mechanisms provided in the two agencies’ regulations. After identifying these challenges, the paper explores potential solutions by looking at the organizational structures of other EU agencies. In particular, the paper will explore the hypothesis of establishing Boards of Appeals (BoAs) for Frontex and the EUAA modeled after the BoAs in place for the Agency for the Cooperation of Energy Regulators (ACER) and the European Union Agency for Railways (ERA). The BoAs of these agencies have been in fact entitled to adjudicate -inter alia- the respective agency’s failure to adopt a measure, thus providing a model potentially apt to address some of the problems emerging from the joint management of migration.