Measuring EU agency autonomy via legal challenges

Assessing agency autonomy is central to understanding the balance between delegated authority and political control, impacting legitimacy and policy implementation. Studying the external face of EU agencies’ actual autonomy can shed light on how governance structures evolve in multi-level systems and how they affect integration. However, measures of de facto rather than formal independence make it difficult to assess autonomy on a comparative basis. We argue that the degree of external opposition to agency decisions, as indicated by the extent to which the latter are legally challenged, indicate agency’s actual autonomy vis-à-vis its environment beyond the analysis of formal independence. Agency autonomy can be understood formally, as authority and constraints defined in EU legislation, and actually, as legitimacy built over time. Actual or de facto autonomy has internal aspects—identity and mission shaping preferences—and external aspects, where broad support and perceived appropriateness reduce opposition and enhance influence among stakeholders and principals (see e.g. Carpenter, 2001; Groenleer, 2014). While research has examined external support or opposition by surveying stakeholders on the reputation of EU agencies (Overman et al., 2020), this approach taps into general perceptions rather than assessing whether the agency can take steps based on its own organizational interests that differ from the preferences of addressees and principals. Measuring the reception at individual-level agency behaviour would have allowed for a more precise understanding of what the agency can do unopposed. Legal studies add to this by analysing case law to understand the legal constraints to agency autonomy. Court rulings provide information about how to interpret the legal framework within which EU agencies operate. Several EU agencies are now authorised to adopt binding decisions, subject to judicial review (Scholten, 2023). This means that the addressee of an EU agency decision may legally challenge such a decision. The challenge can be taken first to an agency-specific board of appeal (Chamon et al., 2022). If unsuccessful there, a case can be brought to the General Court. Legal research provide insight on the implications of rulings for what EU agencies are allowed to do (Scholten & Rijsbergen, 2014), but fail to analyse how the phenomenon of legal challenges – beyond the impact thereof on caselaw – might shed light on the external autonomy of EU agencies. Bridging public administration research and legal studies of EU agencies, we argue that the overall pattern of legal challenges can tell us a lot about the external opposition towards EU agency decisions, which ultimately can give us evidence on the actual autonomy of EU agencies. We elaborate a theoretical and methodological framework for analysing the external dimension of actual autonomy by studying legal challenges to EU agency decisions. We explore this in the context of legal challenges to decisions adopted by the Agency for the Cooperation of Energy Regulators (ACER). It faced several legal challenges by national agencies and grid operators, which allows us to identify more specific issue and country-specific patterns of contestation. In the next step, we compare across EU Agencies, allowing for a systematic assessment.