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Analytical Fiche Nr 5. Composition and designation of the Management Board 1

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Analytical Fiche Nr° 5

Composition and designation of the Management Board1

1) State of play de jure and in practice

There is no one single model concerning the composition and designation of members of agencies' Management Boards, as these aspects are defined differently by individual constituent acts2. In fact, Management Boards can include representatives from EU Member States, European Commission, European Parliament, EU candidate countries, non-EU countries, other agencies and/or institutions as well as individuals.

Representatives of Member States/Members appointed by the Council

Thirty agencies have representatives from all Member States in their Management Board. For twenty seven of these agencies it is the national authorities themselves which appoint their representatives. Instead, in three cases3 the Management Board includes members representing all Member States who are formally appointed by the Council4.

The Management Board of three agencies5 includes members who, either do not represent the Member States or represent some of them on a rotating basis, and are appointed by the Council6:

• The Management Board of ACER has 5 members appointed by the Council. Members of the Management Board of ACER shall undertake to act independently and objectively in the public interest, without seeking or taking any political instructions.

• The Management Board of EFSA has 14 members appointed by the Council in consultation with the European Parliament from a list drawn up by the Commission. EFSA has an independent Management Board whose members are appointed to act in the public interest and do not represent any government, organisation or sector. Four of the members shall have their background in organisations representing consumers and other interests in the food chain, even though they act in their own capacity.

• The Management Board of EIGE has 18 representatives appointed by the Council for a three-year term of office. For each term of office, the members appointed by the Council shall represent eighteen Member States in the order of the rotating Presidencies, one member being nominated by each Member State concerned.

1

This body, depending on the constituent acts, is also called Administrative Board, Governing Board, Administrative Council, Management Committee or the College.

2

See annex

3

CEDEFOP, EU-OSHA, EUROFOUND

4

These three Management Boards also include representatives of employees' and employers' organisations, appointed by the Council.

5

ACER, EFSA, EIGE

6

However, these three agencies have other bodies in which all Member States are represented: EFSA’s Advisory Forum, EIGE’s Expert’s Forum and ACER’s Board of Regulators.

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The Management Board of EMA has two representatives of patients' organisations and one representative each of doctors' and veterinarians' organisations, appointed by the Council after consultation of the European Parliament.

The Management Board of ENISA has three members, without voting rights, representing information and communication technologies industry, consumer groups, and academic experts in network and information security, who are appointed by the Council following a proposal from the Commission.

Representatives of the Commission

All but the former third pillar agencies have European Commission representatives as members of the Management Board. Their number varies from 1 to 6. In the case of four agencies7, the Commission's representatives are without voting rights.

In the case of former 3rd pillar agencies - CEPOL, EUROJUST and EUROPOL - the Commission has representatives, who attend the meetings of the Management Board as observers8.

Representatives of the European Parliament/Experts appointed by the European Parliament Twenty six agencies do not have any representative of the European Parliament in their Management Board. The Management Boards of seven agencies include two members appointed by the Parliament. In six of these agencies the members have voting rights9, while in the case of ETF there are three non-voting experts appointed by the Parliament.

Representatives of non-EU countries

Nine agencies have representatives, mostly without voting rights, from non-EU countries.10 Other representatives

The Boards of the following individual agencies include particular types of members:

• CDT: 7 representatives of agencies as foreseen in the founding regulation (EEA, ETF, EMCDDA, EMA, EU-OSHA, OHIM, EUROPOL), and 1 representative from each of the EU institutions and bodies as well as from regulatory agencies which concluded agreements with the Centre for collaboration on a voluntary basis11;

7

1st pillar agencies: CPVO, OHIM; 2nd pillar agencies: ISS, EUSC

8

According to the new Council Decision establishing the European Police Office, to be applicable as of 1 January 2010, the Commission will be represented in the Management Board by one full member.

9

ACER, ECHA, ECDC, EEA, EMCDDA, EMA

10

EASA - 4 members without voting rights from: Iceland, Norway, Liechtenstein and Switzerland; ECDC - 3 representatives without voting rights from: Norway, Iceland and Lichtenstein; EEA - 5 members without voting rights from: Turkey, Iceland, Norway, Liechtenstein and Switzerland; EMCDDA - 1 representative without voting rights from Norway; EMA - 3 observers: Iceland, Norway and Liechtenstein; EMSA - 2 members without voting rights from: Iceland and Norway; ERA - 2 representatives without voting rights from Norway, Iceland; ETF - 3 observers from partner countries: Croatia, FYROM and Turkey; FRONTEX - 1 member, with limited voting rights, of each country which is associated with implementation, application and development with the Schengen acquis; GSA - third country representatives where appropriate (arrangements specifying rules of this participation are to be agreed).

11

Council of the EU, Court of Justice, European Court of Auditors, Committee of Regions, EIB, ECB, European Ombudsman, EIT, Fusion for Energy, CEDEFOP, CEPOL, CFCA, CPVO, EASA, ECHA, EDA, EFSA, EMSA, ENISA, ERA, EUROFOUND, EUROJUST, EUCS, FRA, FRONTEX, GSA.

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• CEDEFOP: 2 coordinators appointed as representatives of employees' and employers' organisations; they are representatives of their respective organisation at European level (ETUC for employees and Business Europe for employers) and attend the Management Board's meetings without voting rights;

• EU-OSHA: 2 coordinators appointed as representatives of employees' and employers' organisations; they are representatives of their respective organisation at European level and attend the Management Board's meetings without voting rights; • EUROFOUND: 2 coordinators appointed as representatives of employees' and

employers' organisations; they are representatives of their respective organisation at European level and attend the Management Board's meetings without voting rights; • ECHA: 3 individuals from interested parties without voting rights, appointed by the

Commission;

• EMSA: 4 representatives from the industry field without voting rights, appointed by the Commission;

• ERA: 6 members and their alternates representing at European level railway undertakings, infrastructure managers, railway industry, worker unions, passengers and freight customers, without voting rights, appointed by the Commission from a shortlist of 4 names submitted by their respective European organizations;

• FRA: 1 independent person appointed by the Council of Europe;

• EDA: the Chairman of the EU Military Committee and the National Armament Director of the EU Presidency, or their representative, without voting rights;

• CEPOL: representatives of the General Secretariat of the EU Council and EUROPOL without voting rights.

Term of office of boards' members

In 8 cases, the term of office of boards' members is 3 years, renewable; in 7 cases, the term of office is 4 years, renewable once; in 7 cases, the term of office is 5 years, renewable; in one case, the term of office is 5 years, non renewable; in one case, EIGE, the term of office is 3 years12; finally, in 11 cases, there are no specific provisions concerning the term of office of boards members.13

Alternate members

In 15 cases, agencies' founding regulations foresee the appointment of alternate members14. In five cases where the appointment is not mandatory, alternate members were nominated.15 Observers

Thirteen agencies have observers in their Management Board.16

12

The EIGE founding regulation does not specify whether the mandate is renewable or not.

13

For more details, see annex

14

ACER, CDT, CFCA, CPVO, EASA, ECDC, EIGE, EMA, EMSA, ERA, EU-OSHA, EUROFOUND, FRA, FRONTEX, OHIM

15

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In twenty-four agencies the Director participates in the Management Board's meetings without voting rights.17

The Management Boards of EASA, ECDC and EFSA can invite, on case by case basis, any person whose opinion may be of interest to attend their meetings as an observer.

The Director-General of the Military Staff and the Chairman of the Military Committee may attend Management Board's meetings of two agencies18.

2) Critical analysis of the issue at hand

Differences in the composition of the Management Boards – Balance of powers

Agencies' constituent acts define in different ways the composition of agencies' Management Boards. In particular, analysis of the current situation shows that the presence of members appointed by the Parliament and of Commission representatives is quite uneven, and that the weight of the Commission in terms of votes varies greatly19. In addition, the Commission representation on the Management Board does not always reflect the particular responsibility that the Commission holds in implementing EU legislation20. Moreover, the composition of agencies' boards does not always give adequate weight to the representation of EU interest. No overall explanation can be found for such phenomenon, as different compositions of the boards are not justified by corresponding differences in terms of agencies' activities and boards' tasks.21 The same goes for the duration of the term of office of boards' members and for the denomination of boards, which vary from one agency to another.

Experience shows that members of the board appointed by EU institutions contributed to build a structured and fruitful relationship between the various actors involved and helped agencies to work in line with EU policies and priorities.22

16

CEDEFOP - 1 observer from Iceland and 3 observers from Norway; CFCA - 1 observer from the Advisory Board, which is composed of representatives of the Regional Advisory Councils; EAR - 1 observer from EIB; EASA - 7 observers from: Albania, Bosnia and Herzegovina, Croatia, FYROM, Montenegro, Serbia, UN Mission in Kosovo, and 4 observers from EASA's Advisory Council; ECHA - 2 observers from: Norway and Iceland; EMCDDA - 6 observers from: Scientific Committee, UNODC, Council of Europe, WHO, Turkey and Reitox National Focal Points (spokesperson); EMA - 3 observers from: Norway, Iceland and Liechtenstein; EU-OSHA - 2 observers from EUROFOUND; EUROFOUND - 3 observers from EFTA representing interests of "Government", "Employers" and "Employees" respectively; ETF - 1 observer each from Croatia, FYROM and Turkey; GSA - 2 observers from: Secretary-General/High Representative and European Space Agency (ESA); OHIM - 1 observer from the Benelux Office for Intellectual Property (OBPI), 1 observer from the World Intellectual Property Organization (WIPO), 5 observers representing users' organizations (Marques, International Trademark Association - INTA, European Communities Trade Mark Association - ECTA, European Brands Association - AIM and BusinessEurope), 1 observer from EU-OSHA and 1 observer representing EFTA countries; CEPOL - 3 observers from: European Commission, General Secretariat of the Council and EUROPOL.

17

ACER, BEREC Office, CEDEFOP, CFCA, CPVO, EASA, ECHA, ECDC, EEA, EFSA, EIGE, EMCDDA, EMSA, ENISA, ERA, EUROFOUND, FRA, FRONTEX, GSA, OHIM, ISS, EUSC, EDA, CEPOL

18

ISS, EUSC

19

In some cases, the Commission has no voting rights.

20

A case in point is the GNSS Supervisory Authority in which the Commission is currently represented with one vote among 28 on the Management Board, although it carries sole responsibility for the implementation of the GNSS Programmes.

21

The fact that the Commission is a mere observer on the Board of Eurojust and CEPOL can be explained by the mainly intergovernmental nature of this policy area; to be noted that in the "new" Europol, the Commission has one voting right.

22

The experience of the agencies: a contribution to the debate on the future of the agency model "Learning with the past, building the future", Agencies' Contribution to Inter-institutional Debate, p. 5

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Size of the Management Boards

The vast majority of agencies have large Management Boards, which generally include around thirty members and in some cases a much higher number23.

The main reason for this is the representation of all Member States in the board of all agencies but three. While it is true that representatives of Member States have often provided for a valuable tool of cooperation between agencies, EU institutions and national competent authorities, this widespread arrangement has also raised the question whether the presence of representatives of all Member States is always justified, especially in those cases where Member States are not among the stakeholders.24 Furthermore, experience shows that the degree of actual involvement of Member States' representatives differs from one case to another. On the other hand, participation of all Member States in the Agency Management Board may be of critical importance for agencies dealing with issues that remain to a large degree within Member States' responsibilities.

Another reason behind large boards is that in some cases the board includes also a high number of users or stakeholders (see also Fiche 30).

The capacity of such big bodies to actually fulfil effectively and efficiently their role and responsibilities, as assigned to them in the founding regulation, is questioned and concerns are raised that the powers of the Director are not properly counterbalanced by the Management Board (see also Fiche 6).25 In addition, large boards also mean a high cost to be borne by the agency for reimbursing travel expenses of board members26.

Alternative governance arrangements

In three recently created agencies (EFSA, EIGE, ACER), the Management Board is relatively smaller and it includes members who, either do not represent the Member States, since according to the constituent act members of the board have to act in the public interest,27 or represent some Member States on a rotating basis.28 In these three cases, however, the founding regulations foresee the creation of advisory bodies, which are bigger in size and in which all Member States are represented.

In other cases29 the big size of the Management Board is compensated by the existence of a smaller Executive Board or Bureau, more closely involved in the running of the agency. Such an arrangement provides for more effective governance compared to the cases where the existence of a big-sized board is not accompanied by a smaller support body (see fiche 6). Representation of target groups

In a significant number of agencies the composition of the Management Board does not reflect the target groups, in particular stakeholders and direct users, the needs of which the

23

EUROFOUND, EU-OSHA, CEDEFOP, CDT.

24

Evaluation 2009, Volume I, point 4.1.2, p. 12-13, Volume II, point 2.3.2, p. 63. For instance in the cases of Malta having a voice in ERA’s board and no railways, Hungary and the Czech Republic as members of the European Maritime Safety Agency as landlocked countries, without any vessels under their national flags.

25

Rapport d'information sur l'évaluation de l'activité des agences européennes, Denis Badré, Sénat, Commission des affaires européennes et de la commission des finances, 7 octobre 2009, point I.A.3c. For more details, see fiche 6

26

In the case of former second pillar agencies, however, board members’ travel costs are not reimbursed.

27

EFSA, ACER

28

EIGE

29

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agencies address. However, stakeholders and users cannot be put on equal footing with the Member States and the Commission, as they do not bear any budgetary or legal responsibility for an agency. In addition, they are often involved in the work of an agency as participants of various working groups (see also Fiche 30).30

Remuneration of board members

To date, board members are not remunerated by agencies, but by their administration (or body) of origin. Agencies cover only the travel costs, although it has to be noted that in this area the practices of the agencies vary and do not always cover the actual costs incurred. There can also be discrepancies according to the institutions of origin of boards' members, leading de facto to the creation of different "categories" of board members.

The question of remuneration of board members has recently been put to FRA by a body of origin (a University) that asked to be compensated for the time spent by its representative in his position of Chairperson of the board. Participation in an agency's management board is part of the person's job description once he/she was chosen and appointed for the position. With this in mind, it would seem appropriate that, in principle, the question of compensation of the institution employing the Chairperson is to be regulated between the Member State nominating him/her and that institution. However, it should be reflected whether it could be acceptable that an agency compensates the institution which employs the Chairperson of a board, in case this institution is not part of a national administration, e.g. a University (like in the case of FRA), an NGO etc.

In a broader perspective, it should be underlined that appointing members to the management board of an agency should be seen as a means to build a structured and fruitful relationship between the various actors involved, in particular the agency, the Member States and the Union's institutions.

30

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ANNEX TO ANALYTICAL FICHE N°5

Members of the Management Board Agencies (Former 1st pillar) Commission Representatives European Parliament Representatives Member States Representatives

Term of office Other Representatives Observers

ACER 2 representatives 2 members

appointed by EP -

4 years, renewable once

5 members appointed by the Council;

Director without voting rights

-

Agency for Operational Management of SIS II, VIS and EURODAC 31

2 representatives - 27 representatives 4 years,

renewable once

1 member from each country which is associated with implementation, application and development with Schengen acquis and EURODAC related measures;

Director without voting rights

-

BEREC Office 1 representative - 27 representatives No specific provisions

- -

CDT 2 representatives - 27 representatives

3 years, renewable

7 representative of agencies and offices: EEA, EMCDDA, EMA, EU-OSHA, ETF, OHIM, EUROPOL;

1 representative each

31

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from the institutions, bodies and regulatory agencies which have their own translation services but have concluded agreements with CDT for collaboration on a voluntary basis CEDEFOP 3 representatives - 27 representatives appointed by the Council 3 years, renewable 27 representatives of both employees and employers organisations appointed by the

Council;

Director without voting rights 2 coordinators; 1 observer from Iceland; 3 observers from Norway

CFCA 6 representatives - 27 representatives 5 years, renewable

Director without voting rights

1 observer from the Advisory Board

CPVO 1 representative - 27 representatives 3 years, renewable

Director without voting

rights -

EAR 2 representatives - 27 representatives No specific provisions - 1 observer from

EIB

EASA 1 representative - 27 representatives 5 years, renewable

4 members without voting rights from: Iceland, Norway, Liechtenstein and Switzerland;

Director without voting rights 7 observers from: Albania, Bosnia and Herzegovina, Croatia, FYROM, Montenegro, Serbia and UN

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Mission in Kosovo

EASO 2 representatives - 27 representatives 3 years renewable

1 non-voting member from UNHCR;

Director without voting rights - ECDC 3 representatives 2 members designated by EP 27 representatives 4 years, extendable

Director without voting rights 3 observers from: Iceland, Norway and Liechtenstein ECHA 3 representatives 2 independent persons appointed by EP 27 representatives 4 years, renewable once 3 individuals from interested parties, without voting rights, appointed by EC; Director without voting rights 2 observers from: Norway and Iceland EEA 2 representatives 2 scientific personalities designated by EP

27 representatives No specific provisions

5 members without voting rights from: Turkey and EFTA countries

Director without voting rights

Other participants according to Article 6 of the Rules of procedure)

-

EFSA 1 representative - - 4 years,

renewable once

14 members appointed by the Council to act in the public interest and do not represent any

government,

organisation and sector; Director without voting rights

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EIGE 1 representative - -18 representatives appointed by the Council 3 years - EMCDDA 2 representatives 2 independent experts designated by EP

27 representatives No specific provisions

1 representative without voting rights from Norway;

Director without voting rights 6 observers from: Scientific Committee, UNODC, Council of Europe, WHO, Turkey and REITOX

EMA 2 representatives 2 members

appointed by EP 27 representatives 3 years, renewable 2 representatives of patients' organisations; 1 representative of doctors' organisations; 1 representative of veterinarians' organisations. All appointed by the Council

3 observers from: Norway, Iceland and Liechtenstein

EMSA 4 representatives - 27 representatives 5 years, renewable once

4 professionals from the industry field, nominated by EC, without the right to vote;

Director without voting rights

2 observers from: Iceland and Norway

ENISA 3 representatives - 27 representatives No specific provisions

3 representatives, appointed by the Council, representing following groups: 1) information and -

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communication

technologies industry, 2) consumer groups, 3) academic experts in network and information security;

Director without voting rights

ERA 4 representatives - 27 representatives 5 years,

renewable once 6 members, appointed by EC, representing: 1) railway undertakings, 2) infrastructure managers, 3) railway industry, 4) worker unions, 5) passengers, 6) freight customers; 2 representatives without voting rights from: Norway and Iceland; Director without voting rights - EU-OSHA 3 representatives - 27 representatives appointed by the Council 3 years, renewable 27 representatives of both employees and employers organisations appointed by the Council

2 observers from EUROFOUND EUROFOUND 3 representatives - 27 representatives appointed by the Council 3 years, renewable 27 representatives of both employees and employers organisations appointed by the

Council;

Director without voting rights 2 coordinators; 3 observers from ETFA countries representing interests of government, employees and

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employers FRA 2 representatives - 27 independent persons appointed by each MS 5 years, non renewable 1 independent person appointed by the Council of Europe;

Director without voting rights - ETF 3 representatives 3 non-voting experts appointed by EP 27 representatives 5 years, renewable once - 3 observers from: Croatia, FYROM and Turkey FRONTEX 2 representatives - 25 representatives plus representatives form Iceland, Norway and Switzerland with limited voting rights 4 years, extendable once

1 member from each country which is associated with implementation, application and development with Schengen acquis; Director without voting rights

observers from UK and IE

GSA 1 representative - 27 representatives 5 years,

renewable once

Third countries representatives when appropriate;

Director without voting rights 1 observer from the SG/HR; 1 observer from European Space Agency (ESA)

OHIM 1 representative - 27 representatives No specific provisions Director without voting rights 1 observer from Benelux Office for Intellectual Property; 1 observer from the World Intellectual Property

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Organization; 5 observers representing user organizations; 1 observer from EU-OSHA; 1 observer representing EFTA countries Agencies (Former 2nd pillar) Commission Representatives European Parliament Representatives Member States

Representatives Term of office Other Representatives Observers

EDA 1 representative - 27 representatives No specific provisions

Chairman of the EUMC, the National Armament Director of the EU Presidency, and

Director without voting rights

-

EUSC 1 representative - 27 representatives No specific provisions Director without voting

rights -

ISS 1 representative - 27 representatives No specific provisions Director without voting

rights - Agencies (Former 3rd pillar) Commission Representatives European Parliament Representatives Member States

Representatives Term of office Other Representatives Observers

CEPOL

- - 27 representatives No specific provisions Director without voting

rights Representative of the Commission; Representatives of the General Secretariat of the

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Council of the EU;

Representatives of EUROPOL

EUROJUST - - 27 representatives At least 4 years,

renewable -

Representative of the Commission

EUROPOL - - 27 representatives No specific provisions - Representative of

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References

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