Decentralised Integration as
a New Model of Joint
Exercise of Community
Functions?
A Legal Analysis of European
Agencies
Edoardo Chiti
Professor, Università degli Studi di Lecce
Via per Monteroni (Centro Ecotekne)
73100 LECCE
ITALIA
edoardo.chiti@libero.it
Working Paper
No. 31, August 2002
Decentralised Integration as a New Model
of Joint Exercise of Community Functions?
A Legal Analysis of European Agencies
Edoardo Chiti
I. Purpose
According to the original scheme of the ‘Founding Fathers’, the relations
between supranational authorities and national administrations were to be
characterised by a strict separation of their respective spheres of
competence. This did in fact hold true, at least in the early stages of the
development of the Communities. Thus, former Art. 100 (now Art. 94) of
the EEC confines the power of the Communities to the “approximation of
laws”, while it leaves the implementation of Community policies and laws1
to the Member States. Moreover, the Treaties contain few references to
organisations or procedures whose institutional purpose is to provide a
link between Community and national bodies. Perhaps one can construct
former Art. 5 (now Art. 10) of the EEC as the source of an obligation for
mutual co-operation between Community and national authorities,
including as regards the implementation of Community law.
Over the years this framework has been so thoroughly modified
that it is not overstating the case to say that the recognition of
administrative collaboration as a legal reality has become one of the
distinguishing features of the administration of the integrated European
order2.
As a result, a relatively simple constitutional structure has been
rendered slowly but surely more complicated by an increasingly
articulated administrative system. This came about as the result of a series
of progressive adjustments and ad hoc changes stemming from the
completion of the internal market project. There was no clear and
systematic institutional design behind this transformation. The present
administrative system is characterised by the fact that the powers relating
Cf. K. Lenaerts, “Regulating the Regulatory Process: ‘Delegation of Powers’ in the European
Community,” European Law Review, 1993, 23 and following. Lenaerts describes this model in terms of
“executive federalism” (28).
2 Concerning which see the comprehensive work by J. Schwarze, European Administrative Law, London
and Bruxelles, Sweet & Maxwell and Office for Official Publications of the European Communities,
1992; and M.P. Chiti, Diritto amministrativo europeo, Milan, Giuffrè, 1999.
1
Decentralised Integration
2
to the Community public functions are conferred upon a number of
structurally separate authorities, whose nature is national, supranational
or, sometimes, a composite of the two. Such transformation makes it
increasingly essential to identify and analyse the whole set of legal
instruments that regulate interaction between the various elements of the
system, and assure the effective cohesion and integration of the various
entities. Moreover, an analysis of the models of administrative
collaboration can provide answers to the many questions pertaining to
positive law related to the process of administrative integration. Clear
examples are found in case law on the legitimacy of the practice of
‘comitology’ and in issues related to the identification of the applicable
sets of rules for administrative proceedings in which the joint intervention
of national and Community bodies is required. In addition to this, an
analysis of the modalities of administrative integration is relevant for a
more ambitious legal reconstruction. In particular, it sheds light on the
question of the relationships between public powers in a legally complex
and peculiar environment such as the European Community, which has
come to assume the form of permanent interaction and even merger of
what were originally two distinct legal systems.
This paper focuses on the relatively new, and most impressive and
original technique of administrative integration: the adoption of a number
of Community regulations each for specific sector, to be implemented not
just by a supranational administration (central or peripheral), but by a
plurality of national, supranational and sometimes mixed authorities, with
a special role assigned to a Community office set up by the same
legislation for a given sector, and granting it legal personality . These
bodies are as follows: the European Environmental Agency3; the
European Training Foundation4; the European Monitoring Centre for
Drugs and Drug Addiction5; the European Agency for the Evaluation of
Medicinal Products6; the Office for Harmonisation in the Internal
Market7; the European Agency for Safety and Health at Work8; the
Translation Centre for Bodies of the European Union9; the Community
Council Regulation 1210/90, O.J. 1990 L 120, as amended by Council Regulation 933/99, O.J. 1999 L
117.
4 Council Regulation 1360/90, O.J. 1990 L 131, as amended by Council Regulation 2063/94, O.J. 1994
L 216.
5 Council Regulation 302/93, O.J. 1993 L 36, as amended by Council Regulation 3294/94, O.J. 1994 L
341.
6 Council Regulation 2309/93, O.J. 1993 L 214; Council Directives 93/39-41, O.J. 1993 L 214; cf. also
Commission Regulation 1662/95, O.J. 1995 L 158; and Council Regulation 297/95, O.J. 1995 L 35, as
amended by Council Regulation 2743/98, O.J. 1998 L 345.
7 Council Regulation 40/94, O.J. 1994 L 11, as amended by Council Regulation 3288/94, O.J. 1994 L
349; cf. also Commission Regulation 2868/95, O.J. 1995 L 303, and Commission Regulation 216/96,
O.J. 1996 L 28.
8 Council Regulation 2062/94, O.J. 1994 L 216.
9 Council Regulation 2965/94, O.J. 1994 L 314, as amended by Council Regulation 2610/95.
3
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Edoardo Chiti
Plant Variety Office10; the European Monitoring Centre on Racism and
Xenophobia11; and the European Agency for Reconstruction12. To these
bodies must be added the European Foundation for the Improvement of
Living and Working Conditions13 and the European Centre for the
Development of Vocational Training14. While established at an earlier
date, their status was modified in the early 1990s15.
The purpose of this paper is to verify whether the various
regulations by sector ought not to be regarded as variants of an emergent
general model of joint exercise of certain Community functions. It will be
argued that such general model is still in the making, but it is in the
process of becoming consolidated, notwithstanding the variety of
approaches adopted by European legislators. Such a pattern is
characterised by specific, differentiated organisational and procedural
features, which will be illustrated in the paper. If this interpretation is
correct, the theoretical and practical implications of the new regulatory
structure will have to be evaluated.
The analysis will be articulated in four parts, as follows: Section II,
a concise summary of the theoretical background against which the
hypothesis has to be assessed; Section III, identification of the common
features of the regulations considered in this paper in order to ascertain
the unitary regulatory structure common to all, and to clarify their main
differences compared with the previous legal frameworks; Section IV, a
summary and discussion of the main aspects of the emerging model;
Section V, an assessment of the shortcomings and the potentialities of the
new legal pattern as a tool to guide the process of administrative
integration within the European context.
II. The Theoretical Background
Council Regulation 2100/94, O.J. 1994 L 227, as amended by Council Regulation 2506/95, O.J. 1995
L 258. Also see Commission Regulation 1238/95, O.J. 1995 L 121; Commission Regulation 1239/95,
O.J. 1995 L 121; and Commission Regulation 1768/95, O.J. 1995 L 173, as amended by Commission
Regulation 2605/98, O.J. 1998 L 328.
11 Council Regulation 1035/97, O.J. 1997 L 151.
12 Council Regulation 2666/00, O.J. 2000 L 306; also see Council Regulation 2667/00, G.U.C.E. 2000 L
306.
13 Council Regulation 1365/75, O.J. 1975 L 139, as amended by Council Regulation 1947/93, G.U.C.E.
1993 L 181; also see Council Regulation 1417/76, O.J. 1976 L 164, as amended by Council Regulation
1949/93, O.J. 1993 L 181.
14 Council Regulation 337/75, O.J. 1975 L 39, as amended by Council Regulation 1946/93, O.J. 1993 L
181, and by Council Regulation 1131/94, O.J. 1994 L 127; also see Council Regulation 1416/76, O.J.
1976 L 164, as amended by Council Regulation 1948/93, O.J. 1993 L 181.
15 On the original discipline of the two bodies established in 1975, cf. R.H. Lauwaars, “Auxiliary Organs
and Agencies in the E.E.C.,” Common Market Law Review», 1979, 365.
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Decentralised Integration
4
For all too long studies by legal scholars about the integrated European
system have failed to pay due attention to problems concerning the
interaction between national administrations among themselves and the
supranational public authorities in the exercise of Community functions.
This lack of attention can be certainly seen as an aspect of the
traditional underestimation of the importance of administrative profiles
for the establishment and functioning of the Community legal system.
Notwithstanding a number of promising intuitions in the early 1960s16,
European scholarly work in administrative law has shown a rather clear
reluctance to focus on the administrative implications of the integration
process17. Moreover, Community administrative law has long represented
an area “not only unexplored, but whose very existence was unknown”18,
even for scholars in contiguous fields of law. As for international law, in
spite of certain preliminary attempts to define the distinguishing legal
features of the new international entities, including from an administrative
standpoint19, the scope of the discussion has long remained limited to the
theme of the constitutional integration of the Community and national
legal systems. As for international administrative law scholarship20,
studies have focussed on explaining international actions taken by the
State, rather than the position taken by its offices vis-à-vis their
international counterparts. Thus, light has been shed only on some
specific questions in connection with the process of the administrative
‘complication’ of the international order, such as the international
For example, in Italian literature, cf. F. Benvenuti, “La C.E.C.A. ordinamento sovrano,” introduction
to Ordinamento della Comunità europea del carbone e dell’acciaio, Padova, 1961, vol. I, 3, where the
ECSC is described as a “sovereign, corporate and non-territorial State”, thus paving the way for an
administrative analysis of the supranational order.
17 However, with reference to more recent times, cf. J. Schwarze, European Administrative Law, London
and Bruxelles, Sweet & Maxwell and Office for Official Publications of the European Communities,
1992, originally published in German in 1988 as Europäisches Verwaltunsrecht; also see the pioneering
work of J. Rivero, “Vers un droit commun européen: nouvelles perspectives en droit administratif,” ed.
M. Cappelletti, New Perspectives for a Common Law of Europe, Leyden, 1978, 389.
18 See G.D. Falcon, “Dal diritto amministrativo nazionale al diritto amministrativo comunitario,” Rivista
italiana di diritto pubblico comunitario, 1991, 351 and following; the opinion expresed on p. 354 refers
to Italian scholarship in administrative law.
19 For example, cf. F. Jerusalen, Das Recht der Mountaunion, Berlin, 1954, 207, defining the EEC as an
internal administrative body; and, for a re-elaboration of this thesis, van Houtte, “La Ceca, Comunità
sovranazionale,” Comunità Internazionale, 1956, 391. Also, P. Reuter, La Communauté Européenne du
Charbon et de l’Acier. Un example d’administration économique internationale, Paris, 1953. In G.
Morelli, “Appunti sulla Comunità Europea del Carbone e dell’Acciaio,” Rivista di diritto internazionale,
1954, 3, the EEC is considered as a common body. For the theory viewing the EEC as an economic
condominium, cf. G. van Hecke, Les aspects juridiques du marché commun, Liège, 1958.
20 The notion of international administrative law is not known in all national legal traditions; in Italy
the concept was used for the first time by U. Borsi, “Carattere ed oggetto del diritto amministrativo
internazionale,” Rivista di diritto internazionale, 1912, 368; also, S. Gemma, Prime linee di un diritto
internazionale amministrativo, Florence, 1902; F. D’Alessio, “Il diritto amministrativo internazionale e
le sue fonti,” Rivista di diritto pubblico, 1913, 276; and A. Rapisardi Mirabelli, Diritto internazionale
amministrativo, Padova, 1939. The various positions were reexamined in the 1960s by G. Biscottini,
Diritto amministrativo internazionale, vol. I, Padova, 1964.
16
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Edoardo Chiti
relevance of State internal organisation and the competence of national
bodies to adopt international measures.
The elaboration of a theoretical framework for the relationships
between supranational and internal administrations as a way to exercise
Community functions is therefore the result of recent thought developed
within the context of a renewed attention to the administrative profiles of
the European legal system21.
A first round of studies considered the various hypotheses in which
the Community has not been granted powers of administrative execution.
One aspect in particular that emerged is the indirect exercise resulting
from the resort to national administrations in order to achieve Community
objectives. Yet, it ought to be admitted that such a scheme, commonly
known as indirect execution, is not based on a clear definition of the legal
relationship between the national and the Community authorities, owing
to the fact that it refers to an element – the indirect exercise of the
function – that is common to several legal institutions and therefore has a
limited explicatory capacity. In addition to this, it could be convincingly
argued that there is no formal relation at all between the national
administrations and the Community authorities. This is because the power
of direction exercised on the national administrations by Community
authorities manifests itself only in the course of the informal contacts
frequently held between the two levels of public bodies for the purpose of
avoiding a follow-up control by the Commission on the implementation of
Community law22.
The issue of the relations between the national and the Community
administrations was further explored in 1992, when research led law
scholars to argue that it was possible to identify two distinct legal
patterns in the exercise of Community functions23.
In the first pattern, the Community legislation by sector establishes
that certain national public bodies can avail themselves of powers
provided under national law, but only in the interest of achieving
Community objectives.
In contrast, the second pattern is based on shared administrative
competence, in the sense that a given Community function is formally
assigned by supranational legislation to both the Commission, which is
For example, cf. J. Jamar and W. Wessels, ed., Community Bureaucracy at the Crossroads –
L’administration communautaire à l’heure du choix, Bruges, 1985; S. Cassese, “Relations between
International Organizations and National Administrations,” XIX International Congress of
Administrative Sciences, Proceedings, Bruxelles, IISA, 1985, 161; S. Cassese (ed.), The European
Administration – L’administration Européenne, Brussels, IISA, 1987; C. Franchini, “Les problemes de
relations entre l’administration communautaire et les administrations nationales,” Rivista di diritto
europeo, 1990, 773; A. Massera, “Il ruolo dell'amministrazione alla luce dell'Atto unico europeo,” Rivista
trimestrale di diritto pubblico, 1991, 783.
22 J.V. Louis, L’ordinamento giuridico comunitario, Luxembourg, 2nd ed., 1983, 111-127.
23 Cf. C. Franchini, Amministrazione italiana e amministrazione comunitaria. La coamministrazione nei
settori di interesse comunitario, Padova, 2nd ed., 1993.
21
Decentralised Integration
6
responsible for decision-making, and the national administrations, which
are allotted the task of carrying out an action deemed indispensable for
achieving a Community goal. In order for such a pattern –felicitously
defined as “co-administration”24 -- to be present, a number of elements are
required. First of all, the administrative competence of the Community
function must be assigned to two distinct subjects acting jointly.
Secondly, this shared administrative competence must be for the purpose
of achieving a common Community goal. Thirdly, a formal provision must
assign the necessary tasks to a specific national body, which is thus
characterised by a mixed legal nature in that, although structurally part of
the organisation of a Member State, its powers are authorised by
Community legislation. Finally, it is necessary that the national and the
supranational bodies act in close co-operation, something which excludes
any possibility of independent action; in addition, the co-operation must
constitute a permanent organisational arrangement.
A decade after its first formulation, the theoretical relevance of the
“co-administration” model is still recognised and has even been further
extended, to the point that the entire gamut of forms of administrative
integration within the Community tends to be interpreted in terms of this
model25. However, several developments in positive law have caused the
multiplication of hypotheses theorising collaboration between the national
and the Community administrations, with a consequent complication in
terms of administrative differentiation in the supranational order.
Thus, it is no longer possible to avoid the question of whether the
rapid and intense evolution of Community law considered in this paper –
the so-called “agencification process” - actually provides new elements for
reflection on the issue of the relationship between the national and
supranational administrations. In other words, it is necessary to assess
whether the regulations establishing the so-called European agencies
ought still to be interpreted in terms of the co-administration model,
meant as the typical scheme of joint administrative action; or whether we
are instead faced with the development of new and autonomous patterns
of the joint exercise of Community functions.
III. A Unitary Regulatory Structure
Idem, p. 213. Also, cf. C. Franchini, “L’organizzazione,” ed. S. Cassese, Trattato di diritto
amministrativo, Milan, 2000, Diritto amministrativo generale, vol. I, 231, 306-309.
25 In particular, cf. S. Cassese, “Le basi costituzionali,” ed. S. Cassese, Trattato di diritto amministrativo,
op. cit., Diritto amministrativo generale, vol. I, 159, 176-177. Also, M.P. Chiti, Diritto amministrativo
europeo, Milan, 1999, chapters VIII, X; G. Greco, “Incidenza del diritto comunitario sugli atti
amministrativi italiani,” ed. G. Greco and M. P. Chiti, Trattato di diritto amministrativo europeo, Milan,
1997, General Section, 505.
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Edoardo Chiti
In order to address this question, it is first of all necessary to consider
whether a regulatory structure common to all the relevant regulations by
sector can be identified as underlying every single legislative framework.
This will make it possible to identify a core of principles, rules and
institutions common to each, which might be said to constitute the
distinguishing features of a unitary regulatory scheme26.
(A) From this standpoint, it should first be observed that in all cases the
provisions of Community law envisage a regulatory function characterised
by specific objectives, sectors, tasks and addressees27. The regulatory
structure, in other words, is not constructed as a set of legal institutions
independent from the features of the administrative action, but as a way to
exercise a specific function. This is in sharp contrast with the coadministration model, which does not require the exercise of a specific
activity, but simply the pursuit of a Community goal.
As for objectives, in some instances they can be identified as market
efficiency and the promotion of competition, while in others they are more
tied to socio-economic aims. Regarding the former, Community law
establishes a regulatory framework under which the interaction of
economic actors is intended to strengthen, not undermine, the basic
framework of a competitive market. Regarding the latter, public
intervention aims not so much at constructing the basic market
conditions, as at guaranteeing a number of specific social objectives that
not even a functioning market is likely to safeguard. This specifically
occurs when public authorities are called upon to control the activity of
economic operators for the purpose of ensuring that general objectives are
met pertaining to the quality of the lives of individuals, such as in the area
of public health or environmental protection.
The social nature that characterises the regulation of sectors where
Community law has set up bodies provided with legal status has been
highlighted in various studies. In attempting to define a feasible
theoretical notion of social regulation, these studies have identified its
specific objective as the solution of the “problèmes créés par des catégories
précises de défiance du marché telles que les externalités négatives et les
The line of reasoning elaborated in this section rests upon a great deal of empirical analysis which, due
to limitations of space, cannot be presented in this paper; yet, given the importance of empirical evidence
in research on the Community administration, and on European agencies in particular, it seems
appropriate to refer to E. Chiti, “The Emergence of a Community Administration: The Case of European
Agencies,” Common Market Law Review, 2000, 309, for an illustration of the results of a preliminary
investigation; and to E. Chiti, Le agenzie europee. Unità e decentramento nell’amministrazione
comunitaria, Padova, forthcoming, where a full account of the empirical evidence is provided.
27 This study therefore relies on the notion of “function” elaborated by S. Cassese and used to identify in
negative terms “the part of the activity going beyond organisation, procedures and acts”; and in positive
terms “the activity seen in its ‘macro’ aspects, in its global normative order, while the activity seen in its
‘micro’ terms consists of procedures and acts”[translation by the author]; cf. S. Cassese, Le basi del
diritto amministrativo, Milan, 6th ed., 129-133.
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Decentralised Integration
8
défiances en matière d’information”28. Having granted that, it must be
pointed out that the mentioned investigations tend to overlook that the
legal framework under consideration might have a purely economic
dimension, in addition to its social one. Moreover, such research tends to
assume an excessively broad definition of regulation, encompassing all
kinds of public interference in the economy (ranging from planning to
health to safety in the workplace)29, while the concept of regulation could
be more accurately used to indicate “all kinds of interference that are part
of the market, in the sense that they contribute to its formation
establishing an equilibrium that produces interests”30.
The distinction between social and economic regulation31 tends to
blur when one considers that forms of intervention designed to promote
competition, including because of their stable and permanent nature32,
tend to favour consumers. On the other hand, it should be noted that the
social objectives are not conceived as limits on or corrections of market
efficiency, but rather as the constitutive elements of the market. This is
based on the principle of harmonious, balanced and sustainable
development, which aims at permanently integrating the objectives of
environment, health, and consumer protection with the promotion of
economic competition. The two kinds of regulation tend to overlap,
G. Majone, La Communauté européenne: un Etat régulateur, Paris, 1996, 76 and following. Also, cf.
G. Majone, “The E.C. between Social Policy and Social Regulation,” European University Institute
Working Papers, SPS, 92/97; R. Dehousse, F.G. Snyder, C. Joerges and G. Majone, “Europe After 1992.
New Regulatory Strategies,” European University Institute Working Papers, Law, 92/31; R. Dehousse,
“Integration v. Regulation? Social Regulation in the European Community,” European University
Institute Working Papers, Law, 92/23; R. Dehousse, “Integration v. Regulation? On the Dynamics of
Regulation in the European Community,” Journal of Common Market Studies, 1992, 383; C. Joerges,
“The Market without the State? The ‘Economic Constitution’ of the European Community in the
Rebirth of the Regulatory Politics,” European Integration On-line Papers (http://wuwien.ac.at/eiop/texte), 1997, n. 19.
29 In fact, what is normally meant by ‘regulation’ in the studies mentioned is a “sustained and focused
control exercised by a public agency over activities that are socially valued”, as defined by P. Selznick,
“Focusing Organizational Research on Regulation,” ed. R.G. Noll, Regulatory Policy and the Social
Sciences, Berkeley and Los Angeles, 1985, 363; and R.G. Noll, “What Is Regulation?,” Social Science
Working Paper n. 324, Pasadena, 1980.
30 Cf. S. Cassese, “Regolazione e concorrenza,” ed. G. Tesauro and M.D’Alberti, Regolazione e
concorrenza, Bologna, 2000, 11, 12; B. Eberlein, “Regulating Public Utilities in Europe: Mapping the
Problem,” European University Institute Working Papers, RSC, 98/42; B. Eberlein, “L’Etat régulateur
en Europe,” Revue française de science politique, n. 2, 1999, 205.
31 The notions of economic and social regulation have been discussed, in particular, in the literature
devoted to public utilities; in addition to S. Cassese, “Regolazione e concorrenza,” op. cit., and B.
Eberlein, “Regulating Public Utilities in Europe: Mapping the Problem, op. cit., see A. Ogus, Regulation.
Legal Form and Economic Theory, Oxford, 1994; C. Graham, Regulating Public Utilities: A
Constitutional Approach, Oxford, 2000; G. Tesauro, “Conclusioni,” ed. G.Tesauro and M.D. D’Alberti,
Regolazione e concorrenza, op. cit., 245; G. Napolitano, Servizi pubblici e rapporti di utenza, Padova,
2001, chapter IX.
32 On the transitional or stable character of regulation, cf. S. Cassese, La nuova costituzione economica,
Bari, 2000, 2nd ed., 177; S.Cassese, “Regolazione e concorrenza,” op. cit., 24; C.D. Foster, Privatization,
Public Ownership and the Regulation of Natural Monopoly, Oxford, 1992, 186 and following; S.
Littlechild, Regulation of British Telecommunications’ Profitability, London, 1984.
28
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Edoardo Chiti
coexisting in a stable manner for the achievement of both economic and
social objectives.
The definition of the objectives of the function established by the
relevant Community legislation also allows the identification of the
sectors for intended application. These areas may be identified in reference
to both the market and the social integration thereof33. This last reference
is to those sectors that are legally relevant when developing and
implementing other public policies. An example of this is environmental
protection, which has been designed increasingly clearly over the years as
a tool for shaping the market in compliance with the principle of
sustainable development.
Such an articulation of the objectives and sectors of the function is
reflected by the differentiation of the tasks assigned to the competent
administrations.
These can first of all be traced back to a model of conditional
regulation34, meaning when Community law obliges individuals to abide
by specific standards of behaviour when exercising the right to engage in
economic undertakings by calling upon the relevant public authorities to
guarantee observance of the EC legal framework, a solution preferred to
seeking to directly balance the relevant private and public interests.
A different legal structure has been chosen insofar as the hypothesis
of intervention for the purpose of reaching objectives of a social nature.
Such structure is characterised by the ‘functionalisation’ of private action
in a public interest, according to the more traditional scheme of “finalised
regulation”. In this hypothesis, the administrations are not placed in a
neutral position with respect to the interaction of individuals, instead
being called upon to reconcile the relevant private and public interests.
This takes place only within a bilateral relationship of public and private
power, without producing any direct effect on relations between
individuals.
This expression is not usually used in analyses of the areas of administrative actions; however, cf. R. B.
Stewart, “Regulation, Innovation, and Administrative Law: A Conceptual Framework,” California Law
Review, 1981, 1259; on the application of the principle of a sustainable development in the Community
legal system, in particular cf. E. Kaufer, “The Regulation of New Product Development in the Drug
Industry,” ed. G. Majone, Deregulation or Re-regulation? Regulatory Reform in Europe and the United
States, London, 1990, 153; A.G. Toth, “A Legal Analysis of Subsidiarity,” ed. D. O’Keeffe and P.M.
Twomey, Legal Issues of the Maastricht Treaty, London, Wiley Chancery, 1994, 37, 42; P. Thieffry, “La
protection de l’environment, la liberté du commerce et la concurrence,” La Semaine Juridique, Cahiers de
droit de l’entreprise, special issue, 1994, 26; U. Collier, “Sustainability, Subsidiarity and Deregulation:
New Directions in EU Environmental Policy,” Environmental Politics, 1997, 1.
34 For a discussion of the concept of “conditional regulation”, cf. S. Cassese, La nuova costituzione
economica, op. cit., 29-30, 176-177; L. Torchia, “Gli interessi affidati alla cura delle autorità
indipendenti,” ed. S. Cassese and C. Franchini, I garanti delle regole, Bologna, 1996, 55; S. Cassese,
“Fondamento e natura dei poteri della Consob relativi all’informazione del mercato,” Sistema finanziario
e controlli: dall’impresa al mercato, Milan, 1986, 46; L.Torchia, Il controllo pubblico della finanza
privata, Padova, 1992, in particular 441 and following; G.Vesperini, La Consob e l’informazione del
mercato mobiliare. Contributo allo studio delle funzioni regolative, Padova, 1993, 237 and following.
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10
It must be observed that the public interest, both in the case of
conditional and finalised regulation, is the Community public interest,
since it is independent of possible peculiar situations that could arise in
national law, and since it is provided for by Community regulations and
achieved through Community administrative proceedings. This is so
notwithstanding the fact that internal and mixed administrations
participate during some of the procedural phases.
The general pattern now being illustrated may, however, be
implemented using many different methods. Thus, the tasks that are
ascribable to conditional regulation may actually consist of the power to
control in some cases, but other, more complex procedural solutions are
possible. Analogously, finalised regulation may establish procedure for
authorisation, but the same effect can also be achieved through soft law
measures.
Finally, on the basis of what has been observed thus far, it turns out
that the objects of the regulatory function are exclusively enterprises
active in the home market. It should be noted that, while in the cases of
finalised regulation intervention by the public powers is directly
addressed to the interested company, the measures of conditional
regulation relate to a broader regulation of inter-private relationships, so
that the objects of it may be parties to such relationships.
(B) In order to carry out the function examined, all the European
regulations under consideration here establish a complex legal structure.
Such structure is characterised by a combination of several elements in a
complete and original framework.
First of all, there is a Community law provision expressly allocating
the administrative competencies necessary to carry out the Community
function among a variety of different offices. All such offices are thus
competent simultaneously. In this way, the function is distributed on
various levels, according to a pattern characterised by a degree of
competition caused by the existence of different centres of authority
located in either the single Member States’ administrative systems or the
Community organisation, or with competence jointly assigned to the
Community and the Member States’ administrations.
It should be noted, however, that such an allocation of attributions
does not necessarily follow a single legal pattern. This allows different
degrees of polycentrism and differentiation in the administration
responsible for the implementation of the new Community regime. Thus,
the function can be distributed among a larger or smaller number of
offices, having different legal natures, exercising their function in various
ways and provided with various powers not always directly identified by
the Community legislation. Moreover, the legal patterns through which
the allocation of the tasks is accomplished do not necessarily consist of a
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precise definition of the attributions and of the scope of intervention of
any single competent administration. This is proven by the fact that
sometimes the legislation for a given sector provides only a general
description of the role of the various offices, based on their specialisation
and level of government.
It is precisely the plurality of patterns of allocation of the
competences among offices that makes it necessary to consider in greater
detail the other elements of the model. As a matter of fact, the variety of
organisational solutions makes it impossible to derive from the relevant
legislation a definition of the specific modalities through which a joint
exercise of the Community function is realised. This is so to the extent
that they depend on the nature and characteristics of the tools employed
to make the various subjects and their activities interdependent.
This does not imply, however, that the sharing of a competence
among several administrations is irrelevant for the present task of legal
reconstruction and interpretation.
To the contrary, it should be considered that, despite the variety of
possible schemes of functional distribution, the solution adopted by
Community law is determined by the goals to be achieved. In fact, the
choice to allocate the tasks among a plurality of national and Community
bodies is determined by the specific features of the activity regulated and
ideally aimed at ensuring its best and most appropriate exercise. It is
precisely the principle of an efficient accomplishment of the function that
predetermines the criterion on which the legislative intervention in the
sector ought to be based. In other words, the most efficient way of
accomplishing a given function predetermines the choice of the national
and Community competent authorities, the distribution of powers and
scope of intervention singly and as a whole.
Moreover, highlighting the exercise of the Community function in
terms of various distinct administrations puts us in a position to reject the
usual interpretation given by the European institutions themselves,
according to which the disciplines by sector under consideration are
primarily meant as a tool for the devolution of central tasks to
decentralised Community offices35. Clearly, such an interpretation does
not correspond to positive law, since it fails to take into account that the
establishment of Community offices provided with legal status takes place
within a wider organisational framework, characterized by the original
combination of decentralisation and the functional integration of a variety
of national, supranational and, in some cases, mixed offices. Besides, the
lack of such perspective flaws other common interpretations, including the
For example, see the White Paper on European governance, COM (2001) 428, as well as the
presentation of the “European agencies” on the official Web site of the European Union
(www.europa.eu.int/agencies.htm).
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Decentralised Integration
12
reading that presents the Community bodies as “regulatory agencies”36.
This thesis seems quite hard to accept, if one considers that the
Community body does not exercise the function autonomously, but rather
in combination with all the administrations which have been assigned by
Community legislation for a specific sector the attributes required to carry
out that function37.
(C) The assignment of the Community function to a plurality of subjects is
only one of the various elements of the legal structure necessary for the
accomplishment of the function itself.
As a matter of fact, in addition to the legislative provision which
expressly assigns the powers necessary to carry out the Community
function among a plurality of offices, it is also necessary for those offices
to be integrated in a unitary administration in functional and structural
terms. Put differently, the various competent administrations have to exist
legally as the components of a wider administration for any given sector.
Such administration by sector consists, on the one hand, of the totality of
the activities designed to achieve the objectives set by the Community
legislation, and, on the other hand, in the totality of the public authorities
responsible for the exercise of the function.
The unitary nature of the administrative system derives from two
distinct legal structures, which it would be more appropriate to examine
separately.
According to one possible model, the integration of the competent
offices is brought about as an articulation of the function in Community
procedural sequences, characterised by the participation of supranational,
mixed and internal offices. All of them are interconnected through a
network of organisational relationships of variable legal nature. In this
model, Community law is characterised by the combination of two distinct
elements: (1) the function is proceduralised, by establishing administrative
procedures that, even if regulated by European legislation by sector, are
based on the intervention, in various stages, not only of Community
administrations, but also of home and composite administrations; (2) on
the other hand, a number of organisational relationships are established
between the various authorities assigned the relevant tasks. These
relationships are necessary in order to ensure their complementarity and
functional integration.
However, Community law may also opt for a different legal
structure. Rather than distributing the activity among a plurality of
subjects, Community law at times establishes that the activity has to be
For example, the White Paper on European governance, op. cit., 25.
Though with different arguments, a distinction between US agencies and European agencies is drawn
by M. Shapiro, “Independent Agencies: US and EU,” European University Institute Jean Monnet Chair
Papers, RSC, 1996.
36
37
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Edoardo Chiti
carried out by a complex organisation38, sometimes defined as a “network”.
This is expressly designed, in functional terms, as the totality of the
activities required to accomplish the Community function. In structural
terms, it is defined in reference to the totality of the competent offices.
Within the framework of such complex administration, moreover, the
contextually established Community body is assigned the task of coordinating the different relevant offices, as well as of planning the
activities of all the subjects composing the complex organisation. It should
be noted, then, that in order to perform this co-ordination and planning
function, non-binding legal instruments are provided, aimed at achieving
in a non-coercive way expected standards of behaviour for the different
competent apparatuses.
Therefore, the unitary nature of the system does not derive from
the provision for administrative procedures and a complex set of
organisational relationships between the various responsible offices, but
from an explicit characterisation of the relevant discipline and from the
provisions assigning the Community body specific co-ordinating and
organisational tasks, to be accomplished through legally non-binding acts.
The peculiarity of such legal structure lies not so much in the
legally non-binding nature of the instruments conferred upon Community
bodies for a specific sector, which have nothing more than practical effects
on the activity of the offices they refer to, as in the fact that the use of
these instruments gives rise to a series of operative relationships which
allow the development of a real practice of functional complementarities
and interdependence.
Furthermore, the tools under examination bring into being a set of
conditions at once limiting and enabling the subjects involved in the
administrative action, for the purpose of making possible ‘a rational
communicative process’39, to the extent that the aim is to reach an
agreement on the interpretation of a specific situation or on the mutual
co-ordination of the respective plans of action.
It is on these grounds that it is possible to clarify the reasons for the
use of similar legal instruments. They might be needed due to the peculiar
nature of the activity concerned, characterised by the totality of the
interpretative processes arising among the offices assigned the task of
producing information, and eluding the cohesive force produced by
organisational and procedural tools for the purpose.
Or, using a different terminology, within such a complex organisation.
The reference is obviously to the work by J. Habermas, Theorie des kommunikativen Handelns,
Frankfurt am Main., Suhrkamp, 1981 (Italian translation, Teoria dell’agire comunicativo, ed. G.E.
Rusconi, Bologna, 1986); for a more recent treatment, cf. J. Habermas, Faktizität und Geltung. Beiträge
zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats, Frankfurt am Main, Suhrkamp,
1992 (Italian translation, Fatti e norme. Contributi a una teoria discorsiva del diritto e della democrazia,
ed. L. Ceppa, Milan, 1996), particularly chapters 1, 2.
38
39
Decentralised Integration
14
In addition to this, the complexity of these interpretative processes
accounts for the tendency to multiply the hypotheses in which the single
office initiates forms of voluntary co-operation. In other words, order and
stability in the complex administrative organisation are obtained not only
by means of the adoption by the European agency of the non-binding
measures provided under Community law itself, but also by means of the
development of a panoply of ‘soft-law’ instruments which are not
specifically contemplated by Community law and which are aimed at
integrating the measures adopted by the supranational body in order to
facilitate the effective co-ordination of the competent offices.
The two techniques outlined in the previous paragraphs are not
necessarily exclusive, in the sense that they can be used in order to
complement each other in the event that this is necessary due to the
peculiarity of the activity to be carried out, as exemplified by the new
regime for pharmaceutical products. On the one hand, this is structured
around the proceduralisation of the function and the establishment of a
series of organisational relationships among the administrations assigned
to accomplish the relevant tasks, and on the other hand, is based on
various
forms of ‘spontaneous’ co-operation involving those
administrations, resulting in a partial modification of the ‘design’
established by Community law.
Finally, what has been described thus far augments the previously
highlighted perplexities concerning the usual interpretations of the
disciplines by sector under examination. It tends to be assumed that what
is being considered is a case of the devolution of central tasks to
decentralised Community offices. As a matter of fact, not only do such
interpretations fail to consider the Community bodies in the context of a
more general organisational framework, characterised by the assignment
of a competence to a plurality of subjects, but they also ignore the
intricate network of relationships that come into existence involving that
office, the other supranational authorities and the Member States’
administrations. The architecture and dynamics of the network are left
out, even though they constitute one of the outstanding features of the
emerging legal model.
(D) Last but not least, the third element of the legal structure consists of
the establishment of a Community office endowed with legal status and
with legal tasks conferred upon it by the supranational legislation.
Such an office is, first of all, auxiliary to the establishing body, being
subject to the central Community administration. As a matter of fact,
accurate legal analysis reveals that some form of power of the Commission
over the body is established in all the regulations by sector, albeit in
varying degrees. This circumstance rules out the possibility of singling
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Edoardo Chiti
out any one specific form of expression of the power relationship, as it
takes different forms in each case.
The identification of such legal trait characterising the Community
body makes clear the inaccuracy of the statement that European agencies
fall under the category of independent authorities. This is argued quite
frequently in theories advanced by political scientists that regard the
Community as a “regulatory State”40.
This is crystal clear in cases where powers of the central
Community administration are exceptionally great. An example is found
in the agency for pharmaceutical products, whose official duties are
limited to advising the Commission. The latter is responsible for the
adoption of a provision concluding the various administrative procedures
pursuant to Community legislation by sector. However, even when the
powers of the Commission are not so great, the auxiliary body never
enjoys independent legal status vis-à-vis the central Community
administration in order to safeguard it against political or bureaucratic
interference, as would be the case with fully independent entities.
Besides, the decision to establish a body auxiliary to the
Commission is not so much to be attributed to a need to guarantee such
bodies a certain degree of independence from political, bureaucratic and
economic power, as to a desire to discipline the matter in decentralised
fashion.
The aim is not really to establish certain organisations capable of
acting independently of outside interests able to influence their final
decisions, as independent authorities are typically meant to do41. Rather,
the attribution of legal status to an office is intended to ensure the
performance of an activity which, for political or technical reasons, cannot
be directly carried out by the central administration, even though
decentralisation could be accomplished in different ways according to the
various hypotheses (for example, by means of a partial decentralisation or
a full devolution of decision-making powers to peripheral or non-central
Community offices).
For example, cf. R. Dehousse, F.G. Snyder, C. Joerges and G. Majone, Europe After 1992. New
Regulatory Strategies, op. cit. A more problematical treatment is found in M. Everson, “Independent
Agencies: Hierarchy Beaters,” European Law Journal, 1995, 180. In a normative perspective, but based
on the consideration of positive law, a model for the European independent agencies is organically
presented in G. Majone and M. Everson, “Institutional Reform: Independent Agencies, Oversight, Coordination and Procedural Control,” ed. O. de Schutter, N. Lebessis and J. Paterson, Governance in the
European Union, Luxembourg, 2001, 129, where existing European agencies are considered as offices
deriving from the US notion of agency, thus defined: “an agency is a part of government that is
generally independent in the exercise of its functions and that by law has authority to take a final and
binding action affecting the rights and obligations of individuals, particularly by the characteristic
procedure of rule-making and adjudication.”
41 In particular, cf. C. Franchini, “L’organizzazione,” ed. S. Cassese, Trattato di diritto amministrativo,
op. cit., Diritto amministrativo generale, vol. I, 231, 277; C. Franchini, “Le autorità amministrative
indipendenti,” Rivista trimestrale di diritto pubblico, 1988, 549; M. D’Alberti, “Autorità amministrative
indipendenti,” Enciclopedia giuridica, IV, ad vocem, Rome, 1996.
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Decentralised Integration
16
On top of that, the element of decentralisation does not complete
the functional features of the body under examination, this being an
organisation not only decentralised, but also intended to create and
manage a plurality of relationships involving the central Community
administration, the national governments and, in some cases, the
European Parliament.
The aim of co-operation among the different authorities is
determined by a specific legal pattern, based on the exploitation of the
organisational formula of representativeness. In this formula, certain
centres of reference representing interests identified by Community law
nominate the subjects composing the various internal offices of the
European agency, who in their turn represent to the Community
authority the interest expressed by the body in question. This does not
imply applying to said body the effects of the measures adopted by the
offices of the European agency.
Besides, representativeness can be applied in different ways in the
various hypotheses, either by stressing the profile of the composition of
the supranational and intergovernmental interests, or by attributing
greater relevance to Member States’ interests than to the supranational
interest.
In addition to this, the internal organisation of the body may also
vary from case to case. Although it is always necessary to provide for
collegiate bodies representing a multiplicity of interests and composed
through the procedures provided by the establishing legislation, the
establishment of collegiate bodies instrumental to allowing discussion
among experts on specific scientific matters is only an eventuality, since
such matters cannot be easily interpreted in terms of the protection of
national interests, owing to their exclusively technical nature.
Such a picture underscores the partiality of the scholarly
interpretations that consider the so-called European agencies as
essentially aimed at realising a technical or administrative decentralisation
of services, while underestimating the profile of administrative cooperation found within the Community body42.
But a similarly limited explicatory power is also found in
interpretations which, while stressing the integrative and co-operative
function of the bodies under examination, fail to recognise their specific
legal content. These interpretations simply acknowledge the emergence of
new forms of administrative co-operation in the European system,
viewing them as functionally similar to previously existing ones, and as
In particular, cf. L. Grard , “Les Transports dans le débat juridique sur les agences de regulation de la
Communauté européenne,” Mélanges en mémoire du Professeur Guy Isaac, forthcoming; and I. MullerQuoy, “L’apparition et le développement des agences de l’Union. Recherche sur les organismes
communautaires décentralisés,” Mélanges en mémoire du Professeur Guy Isaac, op. cit. Also see the
White Paper on European Governance, op. cit., in particular 25.
42
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Edoardo Chiti
differing from earlier forms only in their major completeness and
institutional stability43.
Actually, the legal profile of the organisation under examination is
characterised both by its status vis-à-vis the establishing body, which is
never legally guaranteed, and by its being organised according to the
formula of representativeness. To this corresponds a peculiar functional
character, since the Community body established by the Community
legislation by sector simultaneously produces a decentralisation of the
matter and an integration of distinct authorities, according to the
modalities and within the limits set by Community law.
This picture is consistent with the general framework laid down by
the European legislation, founded, as previously noted, upon (1) an
attempt to address the need for plurality deriving from the nature of the
function; (2) the necessity to identify in the supranational organisation the
subject of reference; (3) the opportunity, both political and organisational,
not to overburden the central Community administration with additional
tasks, according to a pattern which presupposes not only a shared
allocation of powers to supranational and Member States’ administrations,
but also a decentralised ordering of the matter and a functional and
structural integration of the various competent offices.
In fact, if the distinguishing feature of the resulting model is the
development of the hypothesis of decentralised integration for the
accomplishment of a specific Community function, the so-called European
agency is an essential element of that model, not only because its
institution excludes or circumscribes the powers of the Commission’s
active administration, but also because its structure is such as to allow a
form of integration and collaboration between distinct offices, even if only
in the specific sense outlined above.
In this perspective, in addition to the already mentioned
interpretations that single out only one of the aspects of the element, and
not always adequately highlighting its legal relevance, we can discount
references to other forms of administrative integration characterising the
European legal system, among which the institution of comitology
committees, which do not meet the requirements of decentralisation, and
are rather the expression of the joint competence of the Member States’
Cf. A. Kreher, “Agencies in the European Community – A Step Towards Administrative Integration
in Europe,” Journal of European Public Policy, 1997, 225; R. Dehousse, “Regulation by Network in the
European Community: the Role of European Agencies,” Journal of European Public Policy, 1997, 246; L.
Meltcalfe, “Etablissement de liens entre les différents niveaux de gouvernance: intégration européenne et
mondialisation,” Revue internationale de sciences administratives, 2000, 139. Integration is also
highlighted by G. Majone, “The New European Agencies: Regulation by Information,” Journal of
European Public Policy, 1997, 262, but exclusively in relation to the so-called “information agencies”
and as a factor for increasing their independence, so that the reference is, after all, functional to tracing
back the new European administrations to the category of independent authorities, as previously
pointed out.
43
Decentralised Integration
18
bureaucracy vis-à-vis the Commission in the process of the approval of
Community legislation for implementation.
IV. Decentralised Integration as a New Model of
Joint Exercise of Community Functions
The discussion thus far, it should be clear that the legal model
(‘decentralised integration’) fleshed out in this paper deserves to be
characterised as a new legal model of the joint exercise of supranational
functions. Its novelty is, of course, relative, as it borrows from previous
Community and national legal institutions and experiences.
The regulatory structure that emerges is first of all characterised by
the shared allocation of powers to the Community and to the Member
States’ administrations. This is the result of the conferral of administrative
competencies concerning the same Community function to a plurality of
offices, so that the Community function is distributed at two or more
levels, none of which able to handle it autonomously.
Secondly, as a consequence of the various tools for co-ordination
and co-operation prescribed by Community law, the competent offices
must be seen, from a legal standpoint, as parts of a broader administration
by sector. This broader administration can be identified both with the
whole set of activities aimed at reaching the objectives singled out by
Community law, as well as with the public authorities responsible for the
exercise of said function.
Thirdly, this regulatory structure presupposes the establishment of
a Community body granted specific powers under Community law and
informed by the organisational formula of representativeness. The
purpose of creating the body is at once to realise a decentralisation of the
matter and an integration of distinct authorities, according to the
modalities and within the limits provided by Community law.
Fourthly and finally, it should be noted that such a legal framework
is not used in order to ensure the achievement of any Community goal. It
is rather aimed at carrying out a specific regulatory administrative
function, with a view to satisfying economic and social purposes, in
relation to which the public authorities are conferred conditional
regulatory tasks and teleologically prescribed regulatory tasks.
Such structure is peculiar in two respects.
Firstly, this legal model is based on a specific pattern of exercise of
a particular regulatory function. The legal model, in other words, cannot
be used in order to carry out any kind of Community action, since it is
specifically designed with a view to the ‘regulatory model’ which
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Edoardo Chiti
constitutes a typical aspect of the discipline of economic activities within
the European Union.
Secondly, the regulatory structure under consideration is
characterised by its peculiar combination of decentralisation and
integration. As a matter of fact, the joint exercise of the Community
function in this case requires a structure which is at the same time
decentralised -- through the establishment of a supranational body which
excludes or restrains the administrative powers of the Commission -- and
integrated -- through the provision by Community law of organisational
and procedural tools for co-operation among the plurality of competent
public bodies.
Thus, the resulting model can be described neither as ensuring the
supremacy of the Community administration over national bodies, nor as
an instance of a permanent centralisation of the exercise of certain powers
by bodies or procedures with an associative nature. Rather, the joint
action results in a pattern of decentralised integration.
The identification of such connection between decentralisation and
integration provides an a posteriori justification for the new model of joint
exercise of Community functions. This is because such model is the result
of a political compromise between the Member States and the
Commission, rather than the outcome of an intentional institutional
design. Moreover, a variety of reasonable criticism can be made
concerning the overly-complex and dysfunctional choices intrinsic to the
model. And yet, the scheme of decentralised integration reveals, if only a
posteriori, the attempt to reach a sustainable balance between (1) the
necessity for ‘pluralisation’ deriving from the specific features of the
function; (2) the necessity to identify in the Community the subject of
reference; (3) the imperative, both organisational and political, not to
overburden the central Community administration.
At the theoretical level, the model of decentralised integration
provides new conceptual tools to interpret and explain the process of
administrative integration between the supranational and the national
public powers.
First of all, such model makes it possible to work out a taxonomy of
the various legal patterns of the exercise of Community functions. More
precisely, in light of the model of decentralised integration it is possible to
single out four such patterns.
In one possible pattern, usually known as indirect administration,
the Community has no power of administrative execution, with the
accomplishment of Community objectives set by the Treaty or by the
relevant secondary legislation being the province of the national
administrations.
In other instances, the Community centralised administration is
required to act directly, which is what is meant by direct execution.
Decentralised Integration
20
However, it is important to stress that this second pattern is not a
completely free of outside influence, since in practice we find increasingly
closer
co-operation between the Commission and the national
administrations.
Moreover, during the last 15 years, the traditional dichotomy
between the direct and indirect exercise of Community functions has been
blurred by the emergence of a number of forms of joint execution of
supranational laws and policies. Though differing in several respects, the
various solutions adopted by Community legislators may be classified
under two main legal patterns.
The first such pattern is the so-called co-administration model,
developed in the mid-1980s and frequently implemented within the
context of the common agricultural policy44; the second one, presented in
the present paper as decentralised integration, is a more recent and
increasingly more common model of the joint exercise of Community
functions45.
Despite its widespread use in Community legislation, the model of
decentralised integration is far from covering and explaining all the latest
forms of administrative integration within the European context.
Let us consider the example of the new food security regime46. At
first glance, the administrative system envisaged by the relevant Council
Regulation presents a number of clear similarities with the European
administration for pharmaceutical products and can be partly referred to
the decentralised integration scheme. In fact, many are the analogies with
that model: in particular, the Community administrative function is
distributed among a plurality of public authorities ; a European agency by
sector has been established; a number of tools for co-operation among the
various competent administrations are envisaged. However, other
elements make it difficult to satisfactorily include this regulatory structure
in the decentralised integration model. In particular, this system puts a
rather clear emphasis on the independence of the “technical”
administrations from the policy-makers, and this is so in two different
senses. First, the European agency is defined as a Community body
characterised by “independence, excellency and transparency”. Second, the
internal organisation of the European agency envisages the institution of
an advisory body made up of the national offices responsible for functions
analogous to those carried out by the European agency. This is a very
important point because, while in the decentralised regulatory structure
the Community legislation is neutral concerning the features of the
For a brief account of the distinguishing features of this model, see section II above.
Community legislators, in fact, show a rather clear inclination to adopt it in an increasing number of
sectors; moreover, the trend has been rather constant since 1990, when this regulatory framework made
its first appearance in Community legislation.
46 Council Regulation 178/02, O.J. 2002 L 31.
44
45
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Edoardo Chiti
national competent administrations, in this case Community legislators
have envisaged a complex system of independent authorities which can be
interpreted as limiting the administrative autonomy of the Member
States47.
The food security regime is but one of several cases that cannot be
interpreted in the light of decentralised integration. In general terms, the
problem raised by these recent developments in Community positive law
is whether it is possible to identify a third model of joint administrative
action in addition to the two models mentioned of co-administration and
decentralised integration: a model characterised by the integration of
various independent bodies. The existence of this third model of
independent integration, however, has not yet been convincingly proven,
as the existing literature on the issue has been limited to investigations of
certain sectors and founded on legal analyses and reconstructions which
are not always impeccable.
In addition to providing the basis for a taxonomy of the various
legal patterns of exercise of Community functions, the model of
decentralised integration is important for its analytical capacities.
By means of the model it is, in fact, possible to relate certain
organisational and procedural tools for administrative integration with
more general models of the exercise of Community functions. For
example, while the co-administration model normally relies on composite
or mixed administrative procedures (that is, administrative procedures not
only involving the participation of national and supranational
administrations, but also regulated partly by the Community legislation
and partly by the national legal regimes), decentralised integration
typically relies on Community procedures fully regulated by
supranational law in spite of their polycentric structure.
Finally, a third important aspect of the decentralised integration
model concerns its relevance for non-legal theoretical approaches to the
European integration process.
As a matter of fact, the new administrative reality as described in
this paper represents a challenge to traditional theories dealing with the
question of how to explain the process of integration in the EU. This is
obvious as far as intergovernmentalism is concerned, provided that the
new forms of administrative integration unambiguously show that the
States are not at all unitary actors pursuing their self-interest, and that
bilateral and political relations are complemented by a complex network
of partnerships48. Moreover, the multi-level character of decentralised
For an analysis of this regulatory scheme, cf. S. Cassese, “La nuova disciplina alimentare europea”, ed.
S. Cassese, Per un’autorità nazionale della sicurezza alimentare, Milan, 2002, 11.
48 For a clear and telling account of intergovernamentalism, cf. A. Moravcsik, The Choice for Europe,
London, 1998; and by the same author, “Taking Preferences Seriously: A Liberal Theory of
International Politics,” International Organisation, op. cit., 1997, 513.
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Decentralised Integration
22
integration adds a significant new layer of institutional complexity to the
neo-functionalist theories, thus confirming the intuition expressed in the
“new governance agenda” as to the need for redefining the simple
supranationalism that is embedded in neo-functionalist thought49.
Yet, what seems to be the most promising element of the
decentralised integration model vis-à-vis the European integration
process is its communicative potentiality. As stressed in section III, the
legal framework determines the existence of a set of conditions limiting
and, at the same time, enabling the subjects involved in an administrative
action. These conditions should permit ‘a rational communicative process’
to take root, being intended to facilitate the reaching of agreements on the
interpretation of a specific situation and/or the mutual co-ordination of
the various subjects’ plans of action. If this interpretation is correct, the
decentralised integration model could then be of some utility within the
context of the emerging lines of research directed at developing a new
theoretical frame of reference capable of understanding and interpreting
European integration. This is the case, in particular, with certain
innovative theories, such as the legitimation through deliberation theory,
according to which “integration also occurs through deliberation, or what
is commonly referred to as arguing. This type of integration is very
important, as stability depends on learning and alteration of preferences.
Deliberation, when properly conducted, ensures communicative processes
where the force of the better argument will sway people to harmonize
their action plans and transfer agreements into binding contracts, with the
aid of the legal structure in place”50. While a complete reflection on the
connection of the model to this theory exceeds the scope of this paper, the
line of research sketched is undeniably relevant and could open new
horizons in the study of European administrative law, as well as in the
exploration of the issue of democracy in the EU.
V. ‘Decentralised Integration’ as a Sound and
Feasible Institutional Arrangement?
Thus far, it has been argued that a new legal model of joint exercise of
supranational functions -- for the sake of convenience referred to as
‘decentralised integration’ -- has been emerging during the last decade. In
We are obviously referring to the variegated reflections on the EU as a system of multilevel
governance; for the definition of such a fragmented line of thought as the “new governance agenda,” cf.
S. Hix, “The Study of the European Union II: The ‘New Governance’ Agenda and its Rival,” Journal of
European Public Policy, 1998, 38.
50 This school of thought is exemplified by the inspired work edited by E. O. Eriksen and J. E. Fossm,
Democracy in the European Union. Integration through Deliberation?, London and New York, 2000.
The quotation is taken from p. xii of the introduction.
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addition, the theoretical relevance of the identification of such regulatory
pattern has been highlighted.
It is now necessary to assess whether this model really represents a
sound and feasible option for the administrative evolution of the
Community legal system. Actually, the model of decentralised integration
is not above criticism, and it may be considered weak and as having
merely conceptual relevance. The argument that will be developed in this
section is that, although it may not be the best possible administrative
institutional arrangement, the model of decentralised integration is
nevertheless a rather useful model, since it provides a positive and
pragmatic answer to a number of administrative questions arising at the
present stage of the maturing supranational legal system.
(A) Let us consider a first possible critique of decentralised integration,
concerning the perils of administrative pluralisation. As expressed earlier
in this paper, one of the essential elements of the decentralised integration
model is that the administrative competencies concerning any one
Community function are assigned to a plurality of offices, so that the
Community function is distributed on two or more levels, none of which
can fulfil it autonomously. This complexity of levels might be viewed as
highly problematic. Arguably, such a pluralisation of the function is not
always necessary and in some cases it could even produce certain
shortcomings in the exercise of the Community action. On certain
occasions, full centralisation (from the Member States’ administration to
the Community – central or decentralised – administration) might be
considered more advisable. How can we then be sure that the institutional
choice of distributing one function among a variety of national,
supranational and mixed bodies is always appropriate? Would it not be
more convenient to opt for a different regulatory structure which does not
necessarily imply the distribution of the function among a multiplicity of
distinct bodies?
It is undeniable that this critique highlights a true weakness of the
model. By definition, decentralised integration is very complex, in that it
presupposes joint action by many different administrations, while, at least
in principle, simpler institutional solutions could be identified.
Nevertheless, an empirical examination of the various sectors in
which Community legislators have decided to implement this model
demonstrates rather clearly that the pluralisation of the Community
administrative function is always instrumental either to the action to be
carried out or to certain specific features of the regulatory structure.
Let us consider, for example, the European trademark
administration. Here Community legislation has provided for the
participation of the national central administrations for industrial
property rights in the exercise of administrative actions in relation to the
Decentralised Integration
24
Community trademark. The choice derives neither from the nature of the
protected interests, which have an exclusively supranational nature, nor
from the exigency to ensure the full effectiveness of Community law.
Rather, it is an institutional arrangement which finds its justification in
the opportuneness of using the national administrations to handle specific
matters of local relevance, such as investigations into trademarks already
registered nationally. Moreover, the involvement of the national
administrations is related to the peculiar structure of the Community
discipline, which does not harmonise the national legal regimes, but coexists with them, making it possible for the individuals operating in a
single market to choose between two different legal regimes. Such choice
requires certain forms of connection between the national and the
supranational orders of administrations.
The European administration for pharmaceutical products is a more
problematic case. In this sector, in fact, several doubts may arise in
relation to the quite complicated overall organisational architecture. One
could contest, in particular, the criterion adopted in Community
legislation in the allocation of the tasks between the European agency and
the Commission (that is, between the decentralised and the central
administration). Actually, such criterion is not based on a division between
the scientific assessment and the political choice, since both authorities
express a purely scientific and technical judgement. Moreover, the
centralised authorisation procedure is assigned an excessively limited role,
while both the assigned role of the national governments and, more
generally, the extremely complex procedural architecture are open to
criticism. On the other hand, however, one should not underestimate the
peculiar features of the sector regulated by the Community legislation,
which requires, as a complement to authorisation activity, continuous and
effective control over the negative side effects of the authorised
pharmaceuticals. From this standpoint, the organisational architecture is
indeed complex, which is only augmented by the decision to base the
current regulatory framework on a series of reciprocal commitments
involving various subjects expressing different but complementary points
of view within an overall administrative system.
While other examples could be cited, the general point should
already be clear: the element of pluralisation (that is, the allocation of the
relevant tasks to a multiplicity of bodies) is a necessary feature of a
modern administrative framework for action. It is quite unrealistic to
imagine the typical Community administrative functions being effectively
performed without the involvement of a plurality of administrations
(Community, national and mixed). This does not mean, however, that all
such cases have been well thought out and structured. It is no easy task to
justify the extreme complexity found in some of the existing cases of
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Edoardo Chiti
decentralised integration, so that in the future it will be necessary to
design more effective forms of organisational architecture.
(B) A second critique of the decentralised integration model relates to the
effectiveness of the techniques envisaged by Community legislators for
assuring functional integration among the several competent offices.
The typology of the instruments for co-operation and co-ordination
used in fulfilling various regulations has already been singled out for
discussion. In particular, it has been argued that the unitary nature of the
administrative system by sector derives from two different legal
structures. The first is characterised by the establishment of a unitary
administrative system, with a Community agency assigned specific coordination and organisational tasks to be accomplished through legally
non-binding acts. The second legal framework is characterised by the
combination of two distinct elements: one, the proceduralisation of the
administrative function through the establishment of Community
administrative procedures based on the intervention, at various stages, of
internal and composite administrations, as well as Community
administrations; two, the setting up of a number of organisational
relationships between and among the various authorities responsible for
the relevant tasks.
In the perspective of public management and organisational theory,
doubts may arise about the effectiveness of this second type of instruments
for co-ordination. Such perplexities are reinforced by the circumstance
that these instruments are used in order to integrate administrative
systems that are really very complex (and certainly more complex than
the systems structured according to the first technique for achieving
integration). One may therefore wonder whether ‘flexible’ instruments –
essentially based on soft-law measures for co-ordination – are really
adequate to manage this complexity or whether instead they could
eventually lead to the collapse of the administrative system51.
A clear example of such risk is provided by EIONET (the European
administration for environmental information). EIONET is, in fact, a
network made up of more than 600 bodies performing different functions
(some of them responsible for the co-ordination of the national competent
administrations and for the management relations with the European
agency; others for gathering information in certain geographical areas or
with reference to certain specific issues, etc.). These bodies are also
identified in different ways: sometimes they are identified in Community
legislation; sometimes they are identified by an agreement that has to be
An attempt to combine legal analysis and reflection on public management, including with specific
attention to administrative networks, is made by A. George, P. Machado and J. Ziller, “Law and Public
Management: Network Management,” European University Institute Working Papers, 01/13 and
01/14.
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Decentralised Integration
26
negotiated by the European agency and the national governments.
Moreover, the polycentric nature of EIONET is intensified by the
provision requiring the performance of a number of duties involving cooperation with other external administrations (for example, EUROSTAT)
and with third-country administrations.
Can it truly be said that ‘flexible’ tools for co-ordination are
adequate for managing such complexity (or turbulence, to use the public
management terminology52)? Or would such an arrangement lead to the
paralysis of the administrative system?
The author’s position on this point is that these tools for
administrative integration are much more advanced than one might
suppose at first glance. This is so because, as stressed earlier, the use of
these tools gives rise to a series of operative relationships which allow the
development of a real practice of functional complementarity and
interdependence.
To elaborate on the point, consideration must be given to the
definitions and concepts commonly used in this type of administrative
system, such as, for example, the notion of drug addiction in REITOX
(the European administration for drugs and drug addiction), or the
definition of water pollution in EIONET. Notions of this kind are not
unitary and vary according to the office making reference to them. For
instance, the notion of pollution is not the same for an observer, a polluter,
an office using probabilistic patterns or empirical models, and so on.
Moreover, these notions are, by definition, continuously rewritten in the
information chain (because they are formalised, because they are put into
the context of other notions, and the like). How, then, is it possible to
arrive at a commonly accepted definition? One might say that this occurs
only if and when a series of operative relationships are established in order
to gather together in a unitary discourse the irreducible multiplicity of
concepts. For example, in the REITOX system the emergence of a single
notion of drug addiction depends on the possibility of grouping in a
unitary system the various relationships and interactions that take place at
the different levels and in the different processes: among the various
processes of description, articulation and classification; among the
different criteria used to assess the scientific validity of a notion; among
the relationships between observation, deduction, etc.
The same applies to the object of the administrative action. As such,
the object cannot be considered as the unifying factor of the
administrative system, because it fragments into a multiplicity of
elements. To cite but one example, the theme of environmental protection
can be used in a variety of theoretical models, of which the correction of
L. Meltcalfe, “Etablissement de liens entre les différents niveaux de gouvernance: intégration
européenne et mondialisation,” op. cit.
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Edoardo Chiti
the market and the maintenance of an ecological equilibrium between
living beings are only two of the most obvious instances. In addition to
this, the conception of environmental protection varies greatly according
to the perspective of the actor. EIONET brings together consumers;
private bodies, such as laboratories; public bodies, such as the public
offices responsible for crisis management or the public bodies responsible
for industry, and so on. Each of them unavoidably has a different
understanding of what is meant by environmental protection. How, then,
can this multiplicity of factors be composed and unified in a unitary
architecture? What the author would suggest is that the translation of
these factors into comprehensive empirical action can take place only if
and when a series of operative relationships are established, such as the
relationships between the various filters used in the information chain (in
the case of REITOX, for example, this would involve the questionnaire,
the scientific evaluation, the police action, the judicial inquiry, etc.).
Most notably, these relationships cannot be legally predefined.
They can be originated only in the practice of structural or procedural
forms of voluntary co-operation among the various components of the
administrative system.
The kind of administrative order and stability resulting from
recourse to this technique is therefore at once spontaneous and externally
determined. It is spontaneous because the relationships underlying it are
freely developed in the interactions between the various offices and cannot
be predefined by Community legislation. It is externally determined
because such relationships derive from the adoption by the European
agency of a series of non-binding measures as provided under the
establishing Community regulation. This is true in the case of EIONET,
with the various work projects undertaken by the EEA. Moreover, such
administrative order is not formal in nature; on the contrary, it is
empirical and may be continuously modified and readily adapted to
changing conditions.
This reconstruction should help clarify the reasons for the use of
similar legal instruments in existing Community regulations. It further
makes it possible to state that this technique for administrative
integration is not only an original concept, but also rather well-balanced
with respect to the features characterising these overly-complex
administrative systems. Actually, the peculiar nature of the activity
involved , which is characterised by the whole system of interpretative
processes arising among the various offices assigned the task of producing
information, eludes the cohesive function of the formal legal tools for
connection. The only way to achieve some degree of functional integration
among the various bodies and their actions is through such flexible tools
as those mentioned above.
Decentralised Integration
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(C) A third critique of decentralised integration concerns the
establishment of a Community office conferred with legal status and
assigned specific legal tasks by the supranational legislation.
As previously argued, the choice of establishing a body auxiliary to
the Commission is not so much related to the necessity of establishing a
body that is independent from political, bureaucratic and economic power,
as to the appropriateness of providing a decentralised discipline for the
matter.
If this interpretation is correct, one might wonder whether a
requirement of independence would not be more appropriate -- in other
words, whether an independent Community body would not be a better
institutional arrangement than a decentralised body, provided with
limited management autonomy but always auxiliary to the Community
central administration. In the words of Majone and Everson, “Where
administration is buried within or answers directly to governmental
departments, political goals may be easily adjusted, or subverted, without
any public debate”53. Accordingly, it is apparent that granting agencies
and similar bodies a degree of independence from the government can, in
fact, “enhance the credibility of regulatory commitments. Independent
regulators have strong incentives to pursue the statutory objectives
assigned to their agencies, even where the objectives are no longer
politically popular”54.
Clearly, this is a powerful critique of the model of decentralised
integration, which might appear to insufficiently insulate the policy-maker
from the administration. Nevertheless, it must be recognised that,
contrary to the argument made by Majone and Everson, the necessity of
independence from politics is not always fully demonstrated.
As a matter of fact, the above authors propose the establishment of
independent agencies as the most appropriate answer to a general
institutional problem of the Community. In particular, they argue that
independent agencies represent an appropriate response to the internal as
well as external threats to the credibility of EC regulation. Internal
threats arise from the “serious mismatch between the Community’s highly
complex and differentiated tasks, and the available administrative
instruments”55. External threats originate in the social, economic or
political context in which the system is embedded: among these threats,
strong emphasis is put on the risks inherent to the process of progressive
parliamentarisation of the Commission.
G. Majone and M. Everson, Institutional Reform: Independent Agencies, Oversight, Coordination and
Procedural Control, op. cit., 148.
54 Ibid., 166. Also, O. de Schutter, “Proceduralising European Law: Institutional Proposals,” ed. O. de
Schutter, N. Lebessis and J. Paterson, Governance in the European Union, op. cit., 189.
55 Ibid., 165-166.
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Some of these statements could obviously be the object of
considerable criticism. What is important to highlight, however, is that in
this approach the setting up of independent agencies is considered to be
the best possible solution to a general institutional problem of the
Community. Assuming this approach, the various spheres of Community
action are not differentiated and all receive equal treatment.
In the author’s view, it is not that the case made for independent
agencies is wrong in itself. There are obviously many instances when a
legal framework so-conceived could prove useful and even necessary. The
problem is that the establishment of independent agencies cannot be
presented as a universal solution to a general institutional problem,
because of its inevitable failure to differentiate among sectors and fields of
action which often do differ. A more flexible and analytical approach,
based on the consideration of the nature and of the features of the
administrative function to be carried out, would therefore be preferable. In
this perspective, one is led to identify cases where the establishment of
independent agencies could be seen as necessary (for example, as pertains
to guaranteeing food security ); cases where independence is not necessary
at all (for example, the Community trademark regime); and a number of
problematic cases that require further reflection (for example,
telecommunications).
Within this context, decentralised integration should not be
considered a weak or obsolete model. In several sectors where its utility
and effectiveness can be demonstrated, it could and it should be adopted in
Community legislation. The critical issue, then, becomes the choice of an
appropriate type of decentralisation, meaning one able to strike a
reasonable balance between the Commission’s role and that of its auxiliary
body, the European agency, which is not true for certain actual cases of
decentralised integration.
(D) Last but not least, it is necessary to briefly assess the legitimacy of the
decentralised integration model. In this respect, it must to be stated
clearly that while the current form of decentralised integration is deficient
in several respects, nevertheless, its legitimacy could (and should) be
increased by further developing certain elements already intrinsic to the
model, albeit in an unclear and insufficiently elaborated way.
Let us first consider the procedural regulation of the new legal
pattern.
It is common knowledge that, according to a fairly widespread
school of thought, proceduralisation offers a way to achieve a higher
degree of legitimacy for European administrations (in particular,
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30
comitology)56. More precisely, proceduralisation serves as an instrument
for regulating the interface between Community administrations and the
general public according to the principles of transparency, openness and
participation. Thus, the legitimacy of the post-legislative administrative
phase could be bolstered by a process-oriented approach where interested
citizens are given a say.
Assessed against this background, the model of decentralised
integration still cannot be considered fully satisfactory. In particular, the
various administrations by sector tend to be treated in different ways,
because of the differences in the procedural schemes of the various sectors,
ranging from full codification in law to the absence of law. Thus, at one
extreme we find the EC trademark administration, where a panoply of
procedural provisions regulates the exercise of administrative action and
the related litigation, leaving virtually no room for soft law. At the other
extreme, we find the environmental information system, where action is
devoid of procedural requirements. Clearly, the level of protection
afforded by procedural guarantees corresponds to the degree of their
codification: while the EC trademark administration guarantees extensive
legal protection to the applicant as well as to third parties, the
pharmaceutical framework is incomplete in many respects, while in its
actions EIONET simply ignores the position of the interested parties.
Here a reasonable conclusion is that the existing procedural
framework is, as such, unsatisfactory; however, certain advanced
regulations, such as those concerning biodiversity and Community
trademarks, could be conveniently used by Community legislators as a
source of inspiration for developing an adequate set of procedural
guarantees applicable to any instance of decentralised integration.
The so-called “procedural avenue”, however, is not the only possible
source of legitimacy for the decentralised integration model.
In fact, thought on network management has elaborated its own
solutions to the issue of the legitimacy of complex administrative systems.
It is deemed necessary to establish mutual trust among the various
subjects of the network, which can only be achieved through a pattern of
flexibility and efficiency. Law and legal instruments are excluded: selfcontrol is preferred to external control, whether administrative or judicial,
and the spontaneous development of codes of conduct in the interest of
fostering loyalty among the partners is encouraged. In this perspective,
the network could and should facilitate the development of behavioural
A school of thought exemplified by R. Dehousse, “European Governance in Search of Legitimacy: The
Need for a Process-based Approach,” ed. O. de Schutter, N. Lebessis and J. Paterson, Governance in the
European Union, op. cit., 169; also, cf. F. Bignami, “The Administrative State in a Constitutional System
of Checks and Balances: Lessons for EC Comitology from American Rulemaking,” Harvard Jean Monnet
Working Papers, 1999.
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standards and work practices that create shared expectations and enhance
the effectiveness of administrative action57.
Interestingly enough, this line of reasoning seems to find a rather
clear confirmation in the empirical functioning of the complex
administrative networks managed by the European agencies. As a matter
of fact, observation of the various systems indicates a tendency to
establish a number of relationships that may be considered examples of
mutual trust among the different administrative partners. This is
particularly true in cases where there is a clear lack of formalised rules of
administrative action and where the organisational environment is highly
turbulent.
In addition to the preceding, it seems appropriate to refer to a third
source of legitimacy, consisting of a set of different institutional
arrangements that are typical of the decentralised integration model.
Unlike the previous sources of legitimacy, such institutional instruments
do not refer either to output legitimacy or to processed-based legitimacy.
Rather, they refer to the way in which the relations among the actors are
arranged in a given administrative system.
In this perspective, three relevant elements should be taken into
account.
To begin with, the administrative systems set up within the context
of the decentralised integration model are based on the participation of the
Member States, in the form of the representatives of their central
administrations. This constitutes one of the various sources of legitimacy
in the Union as it presently stands: an indirect source, which derives from
the Union’s coming into being through an agreement by a number of
States, subsequently joined by others States58. In this perspective, it is
necessary to clarify that the Member States may participate in these
administrative systems in different ways: at times as single States (for
example, in administrative procedures where the possible involvement of
just one Member State is envisaged); at times as members of a collegiate
body (as with the comitology committees, which are sometimes members
of the administrative system); at times as parties to negotiations (in all
cases requiring administrative co-operation).
It has to be stressed that, despite its primary stress on trans-administrative tools rather than on tools
regulating the interface between public powers and individuals, the “mutual trust” line of reasoning
often leads to the identification of the same procedural principles as those proposed by the “procedural
avenue” (transparency, openness and the like). Thus, both schools of thought seem to converge in the
search for an alternative both to “input legitimacy” (government by the people) and to “output
legitimacy” (government for the people). Yet, the two schools still differ significantly: for instance, in
thinking on public management and organisation, the procedural principles are not envisaged as rules of
action prescribed by hard law, but rather the result of spontaneous negotiation among the competent
offices.
58 For an elaboration of this position, cf. S. Cassese S., “Is There Really a ‘Democratic Deficit’?,”
EUROPEOS, Institutional Reforms in the European Union. Memorandum for the Convention, Rome,
2002, 19, 26.
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32
Moreover, the Parliament itself participates in these administrative
systems through a number of representatives in the internal offices of the
European agencies. Despite possible doubts as to its effectiveness, such
participation represents an element of direct legitimation of the
decentralised integration model.
Finally, there is the legitimacy deriving from the competition of
regulatory systems encapsulated in several Community regulations. In
several instances, exemplified by European legislation on pharmaceuticals
and by Community trademark regulation, individuals are given the
opportunity to choose among a variety of national legal regimes, or
between the national and the supranational regime. Thanks to reciprocity,
in other words, they may compare different national legal regimes and
choose the most convenient one. This is a largely unnoticed way toward
the legitimation of Europe, perhaps because it pertains to certain sectors.
Nonetheless, it is interesting to note that a Europe-wide public arena is
created thereby, in which companies and consumers interact with public
authorities in a competitive way59.
VI. Conclusions
The main thesis of this paper is that an accurate legal reconstruction of
Community regulations establishing the so-called European agencies
reveals the emergence of a new legal model of joint exercise of
supranational functions. This model can be defined as decentralised
integration and is characterised by specific and differentiating
organisational and procedural features. Decentralised integration is
plainly distinct from other models of administrative integration in the
Union. In particular, it cannot be collapsed into the contiguous notion of
co-administration.
This conclusion is relevant in several different ways.
Firstly, it provides new conceptual tools for interpreting and
explaining the process of administrative integration between
supranational and national public authorities , in particular by specifying
the taxonomy of the patterns through which a Community function can be
carried out by two different authorities acting jointly. Thus, to the
traditional schemes of direct and indirect exercise of Community
administrative functions, the new models of co-administration and
decentralised integration can now be added. Yet, decentralised integration
should not be considered as a passe-partout for interpreting all recent
transformations in the Community administrative system. The regulatory
structure foreseen in the new telecommunications regime is just one of
59
Ibid., 28.
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several examples of administrative integration which cannot be reduced to
the decentralised integration model. In this regard, further empirical and
legal research is necessary in order to reconstruct in proper conceptual
terms the new administrative evolution of the supranational legal order.
Secondly, the new regulatory structure described in this paper
could prove useful in addressing some of the vexing legal issues that
inevitably arise in the context of complex administrative systems, such as,
for example, the scope and the limits of co-operation between the single
units, or the legal principles and rules applicable to the administrative
action of the Community system as a whole.
Finally, the decentralised integration model should be considered as
a sound and feasible option for the administrative evolution of the
Community legal system. As a matter of fact, while some criticism may be
advanced to demonstrate its practical weaknesses, the new regulatory
structure should be regarded, if not as the best possible administrative
institutional arrangement, at least as an acceptable and even suitable
model of administrative action, providing a positive response to several
administrative issues emerging at the current stage of the supranational
legal order.