EU Boundaries in the making: functionalist versus federalist

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Reference

EU Boundaries in the making: functionalist versus federalist

LAVENEX, Sandra, KRIŽIĆ, Ivo, VEUTHEY, Alexandre Maxime

Abstract

Current debates on the future of the European Union tend to privilege statist perspectives according to which geopolitical challenges and internal politicization either spur disintegration, or drive the EU towards more federalist, centralized and externally bounded features. Starting from the EU's multilevel and polycentric architecture, this article investigates how far such federalist dynamics reach out to task-specific, functionalist EU institutions, such as regulatory agencies. Enjoying a certain degree of autonomy from the EU's central, politically encompassing institutions, regulatory agencies have established close ties with third country regulators to tackle interdependence. Based on the comparative analysis of six regulatory agencies representing varying patterns of international interdependence, sectoral politicization and regulatory authority, we show that functionalist pressure for international cooperation indeed sustains fluid boundaries. However, EU central institutions such as the Commission and the Parliament have increasingly claimed control over agencies' external ramifications.

The result is enduring [...]

LAVENEX, Sandra, KRIŽIĆ, Ivo, VEUTHEY, Alexandre Maxime. EU Boundaries in the making:

functionalist versus federalist. Journal of European Public Policy , 2021, vol. 28, no. 3, p.

427-446

DOI : 10.1080/13501763.2021.1881586

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http://archive-ouverte.unige.ch/unige:152572

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EU Boundaries in the making: functionalist versus federalist

Sandra Lavenex, Ivo Križić & Alexandre Veuthey

To cite this article: Sandra Lavenex, Ivo Križić & Alexandre Veuthey (2021): EU Boundaries in the making: functionalist versus federalist, Journal of European Public Policy, DOI:

10.1080/13501763.2021.1881586

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EU Boundaries in the making: functionalist versus federalist

Sandra Lavenex, Ivo Križićand Alexandre Veuthey

Department of Political Science and International Relations, University of Geneva, Geneva, Switzerland

ABSTRACT

Current debates on the future of the European Union tend to privilege statist perspectives according to which geopolitical challenges and internal politicization either spur disintegration, or drive the EU towards more federalist, centralized and externally bounded features. Starting from the EU’s multilevel and polycentric architecture, this article investigates how far such federalist dynamics reach out to task-specific, functionalist EU institutions, such as regulatory agencies. Enjoying a certain degree of autonomy from the EU’s central, politically encompassing institutions, regulatory agencies have established close ties with third country regulators to tackle interdependence. Based on the comparative analysis of six regulatory agencies representing varying patterns of international interdependence, sectoral politicization and regulatory authority, we show that functionalist pressure for international cooperation indeed sustains fluid boundaries. However, EU central institutions such as the Commission and the Parliament have increasingly claimed control over agencies’ external ramifications. The result is enduring functionalist de-bordering, but federally controlled.

KEYWORDS Agencies; borders; boundaries; European integration; EU; multilevel governance

Introduction What if…

Instead of one Europe with recognized and contiguous boundaries, there would be many Europes. Instead of a Eurocracy accumulating organizationally distinct but politically coordinated tasks around a single center, there could be multiple regional institutions acting autonomously to solve common problems and produce diﬀerent public goods. (Schmitter,1996, p. 136)?

Surprisingly, Schmitter’s idea of a condominio, in which European integration would advance in a set of overlapping, non-mutually exclusive and task-

Supplemental data for this article can be accessed at https://doi.org/10.1080/13501763.2021.

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https://doi.org/10.1080/13501763.2021.1881586

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speciﬁc jurisdictions, is rather absent from current debates on the future of Europe. Heightened external challenges, the series of internal crises and the rise of Eurosceptic political parties question the basis for European integration. According to Liesbet Hooghe and Gary Marks, the EU has moved into a post-functionalist era. Integration is increasingly constrained by a political cleavage cutting along identitarian lines in which popular demands for (national) community prime over functional quests for cooperative solutions (Hooghe & Marks,2009). Drawing on Stein Rokkan’s analyses of nation building (1974) and Bartolini’s critique of the EU’s overstretch (2005), Frank Schim- melfennig suggests that politicization and an altered geopolitical context do not necessarily foster disintegration, but lead to the EU’s stronger external demarcation – labelled ‘external re-bordering’. The progressive closure, control and congruence of EU boundaries may generate a‘positive feedback process of political structuring and production’, similar to that which allowed the formation of the nation state (Schimmelfennig,2021, XX).

This statist analogy contrasts with conceptualizations of the EU as a complex multilevel and polyarchic system in which central, politically encompassing ‘federalist’ (Hooghe & Marks, 2003: ‘type I’) institutions such as the Commission, the Parliament and the Council coexist with task-speciﬁc, functionalist (‘type II’) bodies such as regulatory agencies.

While deepening its central decision-making bodies’ competences towards ‘core state powers’ (Genschel & Jachtenfuchs, 2013), the EU has also spurred delegation to regulatory agencies in ever more policy areas (Egeberg & Trondal,2017). As technocratic bodies concerned with the regulation of transboundary issues such as consumer safety, environmental protection or migration policy, EU agencies have classically exploited their leeway to enter into cooperation arrangements with third country regulators. Recent analyses disclose a complex web of EU agencies’ external relations not only towards the EEA/EFTA, the candidate or neighbourhood countries, but also further aﬁeld (Coman-Kund, 2018; Hofmann et al., 2019; Lavenex,2015).

‘Type II’institutions’task-speciﬁc focus, their horizontal architecture as

‘hubs’ of member state regulators and their relative independence from political institutions suggest greater resilience towards politicization and the concomitant pressure for external re-bordering. We therefore investigate whether EU agencies show a tendency towards external re-bordering, and what explains why certain agencies remain more open than others.

After introducing our analytical background we examine six EU agencies.

We draw on an original database documenting agencies’closure (number, scope and depth of cooperation arrangements with third countries);

control (extent to which they depend on authorization and instructions from EU central bodies in external relations); and congruence with

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overarching EU foreign policy, since their inception. Combining a functionalist approach with this special issue’s concern in the effects of politicization, we then examine whether agencies in sectors with heightened international interdependence and/or lower levels of politicization retain softer boundaries than agencies in more inbound and/or politicized sectors; and whether this differs for agencies that enjoy decision-making authority. Our choice of agencies reflects different constellations: four agencies operate in strongly internationalized sectors (EASA¹ – aviation safety, ECDC² – infectious diseases, ESMA³ – financial stability, FRONTEX⁴ – border security) and two depend less on international cooperation (ECHA⁵ – chemicals regulations and EDPB⁶–data protection). Three agencies operate in strongly politicized sectors (ESMA, FRONTEX and EDPB), and four agencies enjoy high decision- making authority (ECHA, ESMA, EASA, EDPB).

In sum, ourﬁndings yield a mixed picture. While increased politicization and authority induce central EU institutions to exert greater control over agencies’external relations, this does not result in wholesale external re-bordering. Instead, agencies remain open to extensive cooperation with third countries when interdependence is strong. Our study thus suggests a process of ‘controlled de-bordering’, where the persisting ﬂuidity of EU boundaries folllows Schmitter’s functionalist condominio logic, however with an increasing federalist-type control by EU central institutions.

Functionalist versus federalist bordering

From the mid-1990s, the EU has come to be seen as a complex multi-layered and multitier system in which power is shared across vertical and horizontal divisions (European Commission,2001; Hooghe & Marks,2003). Mirroring a broader trend towards the devolution of political competences in liberal democracies (Majone, 1996), the consolidation of supranational decision- making procedures in the EU has gone along with delegation to semi-independent regulatory agencies. Endowed with diﬀerent levels of authority to develop new rules, EU agencies promote integration through co-ordination of national regulators, disseminating data and information, providing training and best practices, and supporting the implementation of common policies.

Far from covering only technical matters, EU agencies promote cooperation also in areas of ‘core state power’ such as ﬁnance, common foreign and defence policy, migration or police matters (Egeberg & Trondal,2017).

This delegation to politically relatively independent task-specific authorities marks a particular mode of functionalist, technocratic (‘type II’) governance that is interlinked with but distinct from community-based, encompassing political governance (‘type I’) typical for nation states (Hooghe & Marks, 2003). As functionally oriented jurisdictions, these task- specific authorities have fluid boundaries: they are not ‘designed around

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particular communities’, but‘around particular policy problems’ with‘inter- secting memberships’ (Hooghe & Marks, 2003, p. 236). The ﬂuidity of borders is sustained by the organizationalﬂexibility of‘type II’jurisdictions.

Policy-making consists in the co-ordination of national regulations and‘soft law’rather than‘hard law’. This emphasis on co-ordination, consensus and mutual learning lowers the hurdles for the participation of public officials from different countries and reduces the pressure for congruence. The fact that EU agencies typically operate as hubs in a network of national experts implies that the government officials involved enjoy greater independence from their states’central administration and are less subject to bureaucratic chains of command (Eberlein & Newman, 2008, p. 32). While internally, these properties of‘Type II’governance relativize the importance of territorial boundaries, externally they allow member regulators to‘follow function’and develop ties that blur the distinction between insiders and outsiders (Lavenex,2014,2015).

Against this background, the political trend of re-bordering associated with the EU’s politicization may play differently at the level of task-specific institutions, and boundary transformation needs not always affect closure, control or congruence in the same fashion. The fact that the UK while leaving the EU had asked for prominent inclusion in EU regulatory agencies (UK, 2018) corroborates the distinctiveness and lasting relevance of this layer of integration. As Mitrany pointed out at the outset of the European project:‘A federal system is bound to be closed and exclusive; a functional system is naturally open, as changes in membership can be absorbed without doing violence to policy and administration’(Mitrany,1965, p. 141).

Hypotheses and research design

We examine whether EU regulatory agencies tend towards external re-bordering and under what conditions. External re-bordering occurs when EU agencies over time become more closed, more controlled and more congruent with overarching EU foreign policy relations. We determine‘closure’based on the number of third countries having entered into formal cooperation agreements with the agency; the scope of activities covered by these agreements and whether these are based on EU regulations only or allow for mutual recognition; and the depth of participation accorded to third country counterparts in the agency’s decision-making bodies. Cooperation based on EU rules is only one-directional openness and constitutes a sort of externalization of the EU boundary. In contrast, an agreement allowing for mutual recognition of regulations and/or providing for formal channels of inﬂuence by third countries permits openness in both directions. ‘Control’ includes whether the conclusion of agencies’external arrangements requires prior authorization from EU primary institutions; and whether the EU regulation establishing the

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agency provides detailed instructions for its external relations. Finally,‘congruence’denotes the correspondence between a polity’s diﬀerent boundaries, in our case between the EU’s foreign policy priorities (EEA/EFTA, candidate and ENP countries) and agencies’ external relations, both de jure (according to the agency’s regulation) and de facto (in practice). In the absence of closure, control and congruence, we speak of functionalist de-bordering.

On the explanatory side, we put forward several factors sustaining functionalist de-bordering or federalist (re-)bordering. We take our point of depar- ture in the literature about ‘type II governance’ according to which as function-speciﬁc, ‘apolitical’ administrative bodies EU agencies should be more remote from the political structuring dynamics aﬀecting the European integration process as a whole. From a functionalist perspective, the impetus for EU regulatory agencies to seek external partners is primarily a question of interdependence in the respective sector and the need for cross-border cooperation. The less the EU depends on third country cooperation in a given sector, the less the respective EU agency should seek the country’s cooperation in terms of access, scope and depth – that is, the more

‘closure’ we should expect. In contrast, dependence on third country cooperation should work in favour of external de-bordering.

Existing scholarship suggests that the EU is particularly powerful in single market regulation. Market size, strong regulatory capacity and preference for strict consumer protection rules have permitted EU actors to unilaterally design standards that affect exporters wanting to access the single market all over the world (Bradford,2012; Lavenex, 2014). In areas such as the regulation of chemical or data security (Bach & Newman, 2007), where the EU can rely on this so-called ‘Brussels effect’, dependence on third countries is low, as the EU can impose and enforce rules unilaterally. In policy areas where the realization of an EU agency’s regulatory objectives relies on the cooperation of third countries, in contrast, such as for aviation safety or migration control, we expect strong incentives for the maintenance of open boundaries. Ourfirst hypothesis therefore reads:

H1. The extent of an EU agency’s external bordering depends on the extent of its external dependence. The more the agency relies on third countries’ cooperation to fulﬁll its mandate, the stronger its external de-bordering.

The second hypothesis assesses the role ofpoliticizationdeﬁned as a‘process involving increasing salience, polarisation of opinion and the expansion of actors and audiences involved in EU issues’ (De Wilde et al., 2016, p. 3).

According to Schimmelfennig (2021) the EU is undergoing a process of politicization whereby internal cohesion requires external demarcation. Strong politicization is supposed to strengthen the position of actors who champion a downscaling of EU integration, i.e., internal and possibly external re-bordering. In such a context, pro-integration forces may support external re-

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bordering, either out of conviction or as a concession to the pro-re-bordering camp, in order to consolidate and preserve EUinternalde-bordering (Schim- melfennig,2021: XX). Yet politicization dynamics differ across policy sectors and pressure for external re-bordering should be stronger in politicized sectors like migration or financial stability than for classic regulatory issues and technical standards. At the same time, these sectors depend highly on cooperation with third countries in order to stem irregular migration or guar- antee financial stability in globalized markets. Since politicization also involves increasing expectations towards problem-solving it may thus have the contrary effect of intensifying the functionalist pressure for openness.

We expect politicization therefore to matter diﬀerently across the dimensions of bordering processes. Politicization’s pressure for eﬃcient solutions does not override functionalism’s drive for managing interdependence through cooperation–thus we do not expect agency‘closure’as a reaction to politicization. What should change however is how‘type I’institutions relate to agencies in politicized sectors. We expect heightened salience, polarization and the expansion of actors and audiences to spur political – or ‘type I’ actors’ involvement with the agency and in particular their desire to keep

‘control’of its external relations–by claiming authorization of external agreements and/or formalizing stricter instructions for the agency. In this case, we speak of‘controlled de-bordering’.

H2.Politicizationdoes not counteract the functionalist pressure for openness and incongruent boundaries, however it spurs EU central institutions’control over the agency’s external relations, thereby provoking controlled de- bordering.

Finally, we expect properties of the EU agency to matter. EU core institutions’ concern with an agency’s external boundaries should be greater the more an agency enjoys authority in a given sector. Authority means that the targets of institutions ‘recognize that these institutions can make competent judgments and binding decisions’(Zürnet al.,2012, p. 70). If an EU agency has high authority to make far-reaching decisions for member states and the EU as whole, EU ‘type I’ actors should be more concerned about the external activities of EU agencies, given the potential domestic repercussions of transgovernmental cooperation between regulators (Farrell & Newman,2015). We therefore expect that

H3. The more an EU agency enjoysauthorityin its respective sector, the more EU central institutions will seek control over its external relations, thereby provoking controlled de-bordering.

As mentioned in the introduction, we select six EU agencies based on their supposed variation in terms of interdependence, politicization and authority.

Table 1summarizes the case selection and theoretical expectations.

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Mapping the external boundaries of EU agencies

The analysis of EU agencies’boundaries in terms of closure, control and congruence showcases the diversity of external ties characterizing task-specific, sectoral governance. Three agencies stand out for theirfluid boundaries in terms of closure and congruence: EASA, ESMA and FRONTEX. Importantly, subsequent reforms of these agencies’founding regulations have not system- atically tightened their external boundaries. For the number and scope of external cooperation we observe sustained de-bordering: only the extent of control by the EU’s central institutions has intensified, especially for FRONTEX. In those fields where EU agencies rely less on third countries’ cooperation, such as data protection (EDPD) and chemicals (ECHA), degrees of external bordering are stronger. Surprisingly, this is also the case for the field of infectious diseases (ECDC)–although interdependence as manifested during the COVID-19 pandemic would suggest stronger external collabor- ations. In the following we discuss these cases in the light of our theoretical expectations. Ourfindings are summarized in form of spider diagrams and a table in the Online Appendix.

De-bordering, but‘controlled’: EASA, ESMA and FRONTEX

EASAwas founded in 2002 to set standards and certify aviation facilities to ensure high civil aviation safety for EU citizens.⁷ It has an inherent global dimension. In 2018, extra-EU passenger transport accounted for 37 per cent of EU-28 total air passenger transport, while intra-EU traﬃc reached 46 per cent.⁸ To ensure high-level civil aviation safety also in extra-EU ﬂights, EASA depends on third countries’cooperation. This functional requirement of cooperation is not politicized as passengers’safety is at stake.

According to our first hypothesis, EASA’s high external dependence for fulfilling its objectives should favour external de-bordering. Indeed, EASA has concluded 135 international agreements, 126 are working arrangements regulating specific technical matters (WA) and 5 bilateral agreements covering certification at large (BA), which make EASA one of‘the most internationalized’agencies (Lavenex, 2015, p. 847). EASA also welcomes four non-EU states (EFTA states) as members of the management board, without voting Table 1.Conjectures and case selection.

Dependence Politicization Authority Case selection Expected outcome

Low High High EDPB External (re)-bordering

Low Low High ECHA External (re)-bordering

High High Low

High

FRONTEX ESMA

External‘controlled’de-bordering

High Low High EASA External‘controlled’de-bordering

High Low Low ECDC External de-bordering

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rights, and has granted observer status to candidates and some ENP countries. The comprehensive BAs with the USA, Canada, Brazil, China and Japan aim at the mutual recognition of certificates, providing‘open boundaries’for mutual influence and cooperation (Hoekman & Sabel,2019). Issue- specific WAs focus on particular technicalities without mutual recognition of standards. Their scope however is quite wide as it reaches beyond information exchange and includes enforcement cooperation via implementation monitoring as well as on-site standardization inspections. Enforcement clauses are included in the WAs with all candidates as well as some ENP countries. There is more variation regarding other countries as enforcement cooperation is only included in WAs with leading destinations for EU passengers (Qatar, Singapore, USA, Canada, Australia and Monaco). This pattern illustrates the functionalist logic at hand in civil aviation as EASA concludes deeper agreements with essential partners in the sector than with associated or candidate neighbours (Lavenex,2015; Rimkutė& Shyrokykh,2019).

Functionalist pressure for external de-bordering is however compromised by EASA’s relatively high authority and the concurrent efforts by EU central bodies to maintain control over its external relations. To fulfil its mission, EASA has been equipped with the authority to take binding decisions and for certifying and approving products and organizations where it has exclusive competence. In addition, EASA is responsible for monitoring the implementation of relevant legislation and conducting standardization inspections.⁹ According to our third hypothesis, gains in authority should trigger greater control by EU central institutions. Reforms of EASA’s founding regulation corroborate this expectation. In the original regulation establishing EASA in 2002,¹⁰Commission approval was not required for the agency to cooperate with third countries. This requirement was introduced in 2008¹¹ and has been maintained in the latest version of the regulation.¹² Even though EASA relies on international cooperation to fulfil its objectives and encounters little politicization, its authority induces Commission control over its external relations. EASA hence represents a case of‘controlled’de-bordering.

Established in 2011,ESMAfocusses on the regulation and supervision of the EU’s capital markets with the objective of safeguarding EUfinancial stability and investor protection. In pursuing this mission, the agency has been working in a context of‘strong interdependence’, asfinancial market turbu- lences and policy errors easily spread across jurisdictions (Wymeersch,2010, p. 201). For decades, the EUfinancial system had been particularly exposed to the US, given that

some of the main derivatives dealers operating within the European markets, hedge funds managers marketing to European investors, and the major rating agencies providing credit ratings to European corporate and sovereign debts, were all domiciled in the US. (Pagliari,2013, p. 395)

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Before thefinancial crisis of 2008, isolated attempts to tighten EUfinancial regulation, for instance on the activities of hedge funds, met the resistance of the US and the UK (Quaglia,2017), which together have been by far the dominant powers in globalfinance (Fichtner, 2017). As a consequence, the EU in the 2000s heavily relied on the US and more broadly on the light- touch Anglo-Saxon model offinancial regulation, which was widely seen as successful and therefore not strongly politicized (Posner & Véron, 2010;

Quaglia,2015, p. 171).

In line with high interdependence and (comparatively) low politicization, functionalist de-bordering has characterized the work of ESMA’s predecessor, the Committee of European Securities Regulators (CESR). Established in 2001 as an independent advisory and cooperation body in the securitiesﬁeld,¹³ CESR was left with much leeway in terms of external activities (i.e., low control) and, according to its charter, sought to ‘foster dialogue and cooperation with authorities of non-EU countries’ (CESR, 2008). In this spirit, CESR concluded early on terms of reference with its economically most important counterpart, the US Securities and Exchange Commission (SEC), in view of discussing market risks and regulatory cooperation (Bianco, 2016, p. 180). As pointed out by its former chairman, CESR over the years also pursued‘supervisory dialogue’with its most relevant counterparts, including several US and the Swissﬁnancial market authorities, as well as‘regular contacts…organised within IOSCO’, the overarching International Organization of Securities Commissions (Wymeersch, 2010, p. 203). CESR’s external relations were thus largely independent of EU foreign policy associ- ations and followed a functionalist pattern, though with an overall modest number of formal agreements and dialogues.

The 2008 financial crisis significantly increased the politicization of EU financial regulation and gave an upper hand to continental European calls for a more ‘hands-on’ regulation of financial markets (Pagliari, 2013;

Quaglia,2015). Specifically, a coalition led by France and Germany sought to institute strict conditions for foreign-based market participants ‘to protect the EU from“imported”financial instability, partly by projecting EU rules abroad’ (Quaglia,2015, p. 180). US and UK policy-makers, supported by the highly networked transnationalfinancial industry, propagated more light-touch regulatory measures‘to facilitate third country access to the EU’ and maintain the competitiveness of the EU’s financial markets (Quaglia, 2015, p. 180; Quaglia,2017). This dilemma between financial stability and functionalist needs of openness was solved through a compromise regime where the Commission would make equivalence decisions regarding the access of foreignfinancial institutions to the EU market under third country rules, based on the fulfilment of not too stringent conditions (Quaglia, 2015, 2017). The new crisis-induced regime can thus be seen as a step toward maintaining controlled openness in order to benefit from the positive

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externalities ofﬁnancial boundary transactions and prevent negative externalities ofﬁnancial instability spill-overs.

Created in this context, ESMA was entrusted with ‘quasi rule-making powers’for developing Commission-endorsed technical standards (Deipen- brock, 2016, p. 21), as well as far-reaching supervisory competences over market participants, such as hedge funds, credit rating agencies and trade repositories, with implications for actors within and beyond EU borders (Bianco,2016). In line with our expectations, the context of financial crisis and politicization did not counteract the functionalist pressures for external openness of the new agency. ESMA was entitled to‘develop contacts and enter into administrative arrangements’with foreign counterparts, and followed an extensive functionalist course of 32 MoUs with important financial centres around the world, for instance the US, Japan, Canada, Aus- tralia and Singapore. Having no cooperation agreements with accession and neighbourhood countries, ESMA’s external relations’pattern is incongruent with the broader EU association frameworks and rather points toward functionalist external de-bordering. At the same time, and again following our expectations, with increased politicization ESMA’s external outreach has become more strongly‘controlled’through regulations adopted by the EU central bodies, for instance regarding credit rating agencies, alternative investment fund managers (hedge funds) and central counterparties. These legislative acts instruct ESMA to conclude cooperation agreements with supervisory authorities from foreign jurisdictions, whose regulatory frame- work has been declared equivalent by the European Commission (after advise from ESMA). Nearly all ESMA’s MoUs with foreign counterparts are linked to such equivalence decisions from the European Commission, especially regarding access rights for third country central counterparties and credit rating agencies. These ‘equivalence-related’ MoUs are primarily an instrument for maintaining openness as they facilitate understanding, dis- cussion and recognition of different regulatory and supervisory approaches, especially in relations with US regulators (e.g., Moloney, 2020, p. 46), even though they may also have the side effect of promoting EU rules in foreign jurisdictions with lowerex-ante regulatory capacity. In 2019, reforms of the sectoral and ESMA-specific regulations – pursued in the shadow of the highly politicized Brexit discussions – have tightened legal instructions regarding ESMA’s cooperation agreements and its related‘monitoring, supervisory and enforcement powers’in the context of the equivalence-based third country regime (Moloney, 2020, pp. 54–64). In sum, supranational control over ESMA’s external relations has increased over time in tandem with the expansion of the agency’s competences vis-à-vis third country actors as well as the increasing political salience of thefinancial sector (e.g., European Commission,2017). At the same time, the agency has continuously followed a

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functionalist logic of external openness, resulting in‘controlled external de- bordering’.

Established in 2004FRONTEXis the Agency for the Management of Oper- ational Cooperation at the External Borders. It was upgraded to the European Border and Coast Guard Agency (EBCGA) in reaction to the‘migration crisis’in 2016. Continuous politicization of migration has motivated a steep increase in the agency’s budget and competences. FRONTEX’s tasks have expanded from co-ordination and risk analysis to operational and enforcement capabili- ties including new mandates over return, readmission, migrant smuggling and traﬃcking, and, in 2019, the decision to grant FRONTEX an additional operating staﬀof 10,000 border guards by 2027.

Activities reached out to third countries of transit and origin of asylum seekers and migrants from the start. FRONTEX’s founding regulation of 2004 foresaw that ‘[f]or the purpose of fulﬁlling its mission and to the extent required for the accomplishment of its tasks, the Agency may cooperate with…the competent authorities of third countries’ (Art. 12).

Apart from the EEA/EFTA countries, which are quasi-members by way of their association to the Schengen and Dublin Agreements and participate in the management board, FRONTEX has signed working arrangements with all eastern neighbours, the Western Balkan countries, Cape Verde, Nigeria, Turkey as well as Canada and the USA. These agreements cover cooperation in risk analysis; training; research and development; joint operations (including in some cases, joint returns); and operational interoperabil- ity. This includes exchanges of information and best practices as well as third country border guards’ participation in border management activities; the secondment of personnel to Focal Point Oﬃces. According to its‘Single Pro- gramming Document 2016-19’FRONTEX is planning working arrangements with Brazil, Egypt, Kosovo, Libya, Mauritania, Morocco, Senegal and Tunisia.

A lighter form of information exchange exists within the Africa-FRONTEX Intelligence Community (AFIC) which includes 27 African countries, most of which do not have working arrangements.

Reforms of the FRONTEX Regulation have progressively widened its external mandate. In 2011, the agency obtained the possibility to exchange liaison oﬃcers and launch andﬁnance technical assistance projects in third countries –even in the absence of a working arrangement (Coman-Kund,2018, p. 163f).

The 2016 FRONTEX Regulation introduced the possibility to carry out actions on foreign territory, provided the third country concerned has concluded a

‘status agreement’ with the EU. So-far the EU has concluded status agreements with Albania, Montenegro and Serbia (all in 2019), those with Bosnia and Macedonia are pending ratiﬁcation. These agreements are remarkable as they grant FRONTEX the competence to enforce regulations on foreign territory, including use of force (Bossong,2019).

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The steep politicization of (irregular) migration in EU member states (Hutteret al.,2016) has motivated a gradual enhancement of FRONTEX’competences and greater control by EU central institutions. The 2011 FRONTEX Regulation introduced in Article 14(8) the requirement of prior opinion of the Commission and a duty to inform the European Parliament before con- cluding a working arrangement. In the 2016 Regulation, this requirement was transformed into a need for prior approval by the Commission. Also, the instructions for FRONTEX external relations became more detailed, and a duty to inform the European Parliament on all aspects of international cooperation with third countries was added. Finally, the fact that the most consequential type of cooperation agreement, the status agreements, are signed by the EU and not by FRONTEX underscores the link between the agency’s gain in authority and EU central institutions’claim for control.

In sum, FRONTEX has continuously intensiﬁed its external de-bordering by spanning a wide network of far-ranging cooperation agreements with third countries. As was stated for EASA and ESMA, FRONTEX’ external relations have however become increasingly controlled, documenting EU central institutions’ claim over regulatory agencies in politicized sectors. FRONTEX departs however from our other cases of (controlled) de-bordering in the sub- stance of its external links. With the exception of cooperation with north- Atlantic and EEA/EFTA countries, with whom the EU shares symmetric interdependence and comparative preferences on migration, FRONTEX’ web of migration control cooperation follows the migratory routes towards countries of transit and origin of unwanted immigration. While this focus makes FRONTEX’external relations appear congruent with EU foreign policy, they follow functionalist imperatives. A particularity of cooperation with candidate and ENP countries is that it externalizes one-sidedly EU rules and practices of border management (Lavenex & Schimmelfennig 2009). In this sense, FRONTEX’openness enhances the closure of EU territorial borders by extend- ing their functions beyond EU territory.

Bordering maintained: ECHA and EDPB

ECHA and EDPB stand for two agencies whose regulatory capacity does not directly depend on the cooperation of third countries, therefore we expect them to face less functionalist pressure for external de-bordering.

Established in 2006 to promote the safe use of chemicals, ECHA is the implementing agency for the EU Regulation on Registration, Evaluation, Authorization and Restriction of Chemicals (REACH). REACH introduced the

‘no data, no market’ principle, according to which foreign manufacturers (like domestic ones) are required to provide ECHA with information and proof of their products’ environmental and health-related soundness in order to access the EU market. At the time of ECHA’s inception, third

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country exporters to the EU had a strong market incentive to adopt the Union’s high chemical standards given the EU’s dominant position in the sector, illustrated by a 46 per cent share of world chemicals imports and 55.3 per cent of world exports in 2006 (CEFIC, 2008). This outstanding market power and preference for stringent (precautionary) regulation allowed the EU to set global rules for chemicals, as internationalﬁrms were eager to adopt and promote the high EU standards globally in order to opti- mize production and avoid competitive disadvantages in low-standard markets (Biedenkopf,2018; Bradford,2012). The EU’s dominant position has decreased over the past years but the EU is still one of the most important economies in the sector (see CEFIC, 2020, p. 21). This market power, com- bined with the EU’s ‘pioneering’ high standards policy (Biedenkopf, 2018) and ECHA’s strong evidence-based regulatory capacity (illustrated by a public database with information on 245.000 chemicals), have kept the agency largely independent from foreign jurisdictions when enforcing EU chemicals law on imported goods.

This low external dependence obviates the need for external de-bordering. The EEA/EFTA states’ observer status in ECHA’s management board is explained by their association to the EU’s chemicals regulation, and does not imply voting rights. The agency has also concluded in 2010/11 cooperation agreements with regulators in the US, Australia, Canada and Japan (plus an exchange of letters with Switzerland in 2017), which are important players in the chemicals sector. Yet, these agreements with the main market partners only foresee information exchange and sharing of best practices. The disclosure of more substantial information is contingent on ‘an agreement concluded between the Community and the third party’,¹⁴ which signals that EU central institutions keep control of such enhanced cooperation. Below this threshold, ECHA has offered some opportunities for non-EU public and private actors to engage in ECHA’s work as accredited stakeholders (Biedenkopf, 2018; Lavenex, 2015). Furthermore, ECHA offers technical assistance projects for (potential) EU candidate countries under the Instrument of Pre-Accession (IPA),¹⁵and provides capacity building to ENP members, but this cooperation is ad-hoc and does not imply an opening on the side of ECHA (Rimkutė& Shyrokykh,2019). ECHA’s external relations therefore show mixed congruence with some capacity-building oriented at EU foreign policy prerogatives, but also formalized cooperation with transatlantic and pacific partners. Overall, and in line with our expectations, ECHA’s low external dependence coincides with rather closed external boundaries and hardly control by EU central institutions, except for substantial exchange based on an EU agreement.

Our second agency facing low external dependence isEDPB. This board was introduced in the context of the 2016 General Data Protection Regulation (GDPR),¹⁶ repealing the 1995 Data Privacy Directive.¹⁷ The GDPR, and the

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legal changes it brought to the sector, received much public and scholarly attention (De Hert & Papakonstantinou,2012; Gutwirthet al.,2015). EDPB is composed‘of the head of one supervisory authority of each member state and of the European Data Protection Supervisor’,¹⁸and shall‘ensure the con- sistent application of the Regulation’.¹⁹This new body upgrades the former advisory group, the Article 29 Working Party, that was functioning under the 1995 Directive.²⁰

The GDPR’s principal objective is to ensure and reinforce EU citizens’data privacy. In the context of the data leaks scandals, data protection is facing a high level of politicization. At the same time, the EU enjoys strong independence in regulating this sector. Indeed, EU rules in data protection have developed into ‘the de facto international standard with more than thirty countries following the European approach’(Newman,2008, p. 104), and in most cases the EU is capable of detecting and enforcing compliance with its standards (Bach & Newman,2007).²¹In this respect, the GDPR has broad- ened the territorial scope of EU data protection compared to the 1995 Direc- tive (Voss,2017). The Regulation applies‘to all data collection and transfers on European citizens regardless of whether or not theﬁrm in charge of the data is physically present in the EU’ (Kalyanpur & Newman, 2019, p. 453).

As the EU’s main objective rests in protecting the data of its own citizens, this extraterritorial authority lowers its dependence on third countries. This low dependence coupled with high politicization should result in re-bordering. Our observations match this assumption. International cooperation comes in the form of unilateral adequacy decisions, which ensure that a third country provides an adequate level of data protection, measured against EU standards. The scope of data protection legislation is thus expanded to third countries via these decisions, taken by the Commission following an opinion of EDPB, which enable data transfers between third countries and the EU. What is more, the Court of Justice of the EU has repeat- edly exercised its jurisprudence over these decisions (see footnote 21). There- fore, international cooperation is limited, and consists in widening the territorial scope of EU rules rather than opening-up for joint actions. Only the EEA states have been admitted as members without voting rights in the Board. The Board has the right to grant observer status‘provided it is in its interest’²² to countries demonstrating ‘a substantial interest in the implementation of EU data protection legislation’.²³These clauses corroborate the relative‘closure’of EDPB. In sum, low external dependence in data privacy regulation goes in line with external bordering.

Disease control–external de-bordering postponed?

The external boundaries of theﬁve agencies discussed above corroborate our theoretical expectations. This is not the case for the ECDC.

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Established in 2005, ECDC is responsible for collecting and evaluating information on infectious diseases, coordinating related European networks and advising the European Commission and EU member states. Interdepen- dence is high: communicable diseases do not stop at borders and prevention and control cross-border sanitary risks require cooperation. Theﬁrst outbreak of the severe acute respiratory syndrome (SARS) in the early 2000s motivated ECDC’s establishment (Greer,2012), and the agency plays a key role in the current COVID-19 pandemic. While health crises are strongly politicized, they are rather rare events interrupting longer periods in which disease control policy unfolds at the margins of political attention. The sector thus has‘widely variable salience’(Greer,2012, p. 1010), and over most of its life- time ECDC worked in a context of low politicization. Furthermore, ECDC’s limited role of information provision and co-ordination implies a low level of authority, which should prevent member states and the Commission from seeking control over the agency. According to Greer (2012, p. 1081), the agency‘is so weak as to scarcely merit the title’.

The combination of high interdependence, low politicization and weak authority makes the agency predestined for extensive functionalist de-bordering.

Yet, the agency’s external relations fulﬁl this expectation only very imperfectly.

The founding regulation recognizes the need for international cooperation and encourages the agency to work with competent bodies in third countries. It also leaves wide discretion on the form of cooperation agreements and external relations more broadly. Against this background, ECDC has developed a thoroughly drafted International Relations Strategy (ECDC, 2014, p. 2018), in which‘interdependence’is explicitly put forward as a motive for becoming‘a close partner of the major centres for disease prevention and control across the globe’. In practice, however, ECDC has only concluded four light-touch MoUs in its early years with China (2007), the US (2007/8), Canada (2007) and Israel (2012). The agency has more intensively pursued cooperation with its other declared priority groups, especially pre-accession and ENP countries (ECDC,2018, p. 14). In sum, ECDC’s external relations focus on projecting EU rules rather than expanding cooperation in a functionalist logic.

This alignment with EU foreign policy frameworks partly follows ECDC’s founding regulation, according to which the agency‘shall be open to the participation of countries, which have concluded agreements with the Commu- nity by virtue of which they have adopted and apply legislation of equivalent eﬀect to Community legislation… ’(Article 30), a provision that implies de jure congruence with EU association frameworks. A further explanation for weak external engagement may lie in ECDC’s limited funding and staﬀ(Price- waterhouseCoopers2019:10). Yet, also given its repeated acknowledgement as strategic objective (ECDC, 2014, p. 2018), this neglect of international cooperation remains surprising, and may evolve in the context of the COVID-19 crisis.

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Conclusion

Do increasing politicization and intensifying internal and external challenges lead to a progressive hardening of the EU’s external boundaries to the outside world? This article has examined this question for the potentially least likely section of the EU’s multilevel and polyarchic architecture: regulatory agencies. From a functionalist perspective, we expect EU agencies’ task- speciﬁc and problem-solving orientation to sustain ﬂuid boundaries especially when interdependence with third country regulators is high.

However, agencies operating in politicized sectors and/or enjoying consider- able authority should face increasing control by EU central institutions – which is one of three indicators of boundary formation next to ‘closure’ and‘congruence’with other EU boundaries (Schimmelfennig,2021).

Our analysis of six EU agencies since their creation largely conﬁrms our expectations. The two agencies with low external dependence, ECHA (chemicals) and EDPB (data protection), have remained rather closed to foreign counterparts, they are congruent with EU foreign policy priorities and encounter little control from the Commission over their external relations.

Against our expectations, this also holds for ECDC (infectious diseases), yet this may evolve in the light of the current pandemic. The other agencies operating in highly interdependent policy areas –EASA (aviation safety), ESMA (ﬁnancial markets) and FRONTEX (migration)–have continuously expanded external engagement, following functionalist rather than foreign-policy prerogatives. The only boundary dimension in which we observe a tightening is control by supranational actors. While the EU has generally expanded over- sight over regulatory agencies (Hofmannet al.,2019), the absence of stronger control for ECHA and EDPB points at additional triggers such as politicization (FRONTEX), authority (EASA), or both (ESMA).

Importantly, openness towards third country participation does not mean absence of power relations. EASA or ESMA have developed exigent systems of equivalence or mutual recognition with peer regulators, allowing for a certain degree of mutual inﬂuence. In contrast, FRONTEX uses working arrangements and status agreements to project the EU’s system of border management beyond EU borders, thereby reinforcing territorial re-bordering vis-à-vis migrationﬂows.

To conclude, a fuller account calls for deeper analyses of external cooperation in practice, and for a larger set of agencies. This notwithstanding, in view of the current debates on the future of Europe, ourﬁndings show that even in the event of politicization, EU agencies maintain and even enhance their external relations. This points against a general trend towards tighter external bordering, and emphasizes the persistence of external diﬀerentiation.

In contrast to a pure functionalist logic, however, this does not occur autonomously, but under the increasing control of central‘federalist’institutions.

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Notes

1. European Union Aviation Safety Agency,https://www.easa.europa.eu/

2. European Centre for Disease Prevention and Control,https://www.ecdc.europa.

eu/en

3. European Securities and Markets Authority, https://www.esma.europa.eu/

market-analysis/ﬁnancial-stability

4. European Border Guard Agency,https://frontex.europa.eu/

5. European Chemicals Agency,https://echa.europa.eu/

6. European Data Protection Board,https://edpb.europa.eu/

7. https://www.easa.europa.eu/the-agency/the-agency 8. see Eurostat (avia_paoc)

9. EU 2018/1139 Art. 75.

10. EC 1592/2002 Art. 18.2 11. EC 216/2008 Art. 27.2 12. EU 2018/1139 Art. 90.2

13. Commission Decision 2001/527/EC 14. Regulation (EU)1907/2006, Art. 120

15. https://echa.europa.eu/about-us/partners-and-networks/international- cooperation/support-to-eu-external-relations-policies/activities-under-ipa/

2018-2019(accessed on 22 May 2020).

16. Regulation (EU) 2016/679 17. Directive 95/46/EC

18. Regulation (EU) 2016/679 Art. 68.3 19. Regulation (EU) 2016/679 Art. 70.1

20. EDPB is not, formally, an agency (Janciute,2020, p. 71) but represents a certain degree of‘agenciﬁcation’that deserves to be analysed (Lynskey,2017).

21. Enforcement diﬃculties have been reported mainly regarding US companies and in relation with US surveillance law (EUobserver,2020, September 4).

22. EDPB Rules of Procedure Art. 8 23. Ibid.

Acknowledgements

We would like to thank the participants of the‘Bordering Europe’workshop 2019 at the EUI, the external reviewers and Frank Schimmelfennig for valuable comments on previous versions of this article.

Disclosure statement

No potential conﬂict of interest was reported by the author(s).

Funding

Research funding by the H2020 Project‘EU Integration and Diﬀerentiation for Eﬀec- tiveness and Accountability’ (EU-IDEA) is gratefully acknowledged; H2020 Societal Challenges [EU IDEA - 822622].

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Notes on contributor

Sandra Lavenexis Professor of European and International Politics at the University of Geneva. Ivo Križić is postdoctoral research fellow at the Department of Political Science and International Relations, University of Geneva. Alexandre Veuthey is doc- toral researcher at the Global Studies Institute, University of Geneva.

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