Recasting the Common European Asylum? : on the problem-solving capacity and accountability of EASO and the proposed EUAA

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Recasting the Common European Asylum?

Name: Vincent Sprengers Student number: 11045620 Supervisor: Prof. J.H. Zeitlin Second reader: Dr. S.A. Bonjour Study: Political Science Specialization:

Public Policy and Governance Word count:

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Acknowledgements

Writing a thesis, or anything for that matter, has never been an easy task for me. I always try to reach my view on perfection, a goal which does not seem feasible. I indeed have no idea what this view ought to be, or when I have reached it, meaning that it sometimes feels as if I keep failing to achieve my ambitions. This perception has led to stress in the past, particularly during the last weeks of my bachelors’ thesis. It is safe to say that I was not thrilled about writing another thesis, this one being more intimating as I had twice as long to write more than double the pages. It, however, became a vastly different experience. Apart from a few expected hiccups, I have thoroughly enjoyed working on this document. I hence want to express my sincere gratitude to the following people in no particular order. The first is my supervisor Mr. Zeitlin, or Jonathan as we are supposed to call him. Jonathan has been my favorite teacher ever since I followed one of his courses on transnational governance. He is not just a walking encyclopedia on any governance-related issue and fast to respond to my emails, but also a very kind person. Without his ever-positive presence and genuine interest in my work, the writing process would never have been as easy. The second are my parents and big sister, Kees, Caroline, and Floor. As I still live with the former two, they were forced to hear my monologues on agencies and the functioning of European asylum policies, although this was often against their will. I further want to thank my mom for her healthy cooking, which is probably a blessing for a student. I should likewise mention my big sister’s rabbit Cristiano, who kept me company when my parents were on holiday. The third group is my friends, who I have not seen as much the last couple of months. Thank you for keeping up with my neurotic compulsions. I look forward to our holidays! The last are my six interviewees. Meeting these professionals in Brussels was both exciting and motivating. Thank you for your time and answers to both my initial questions and subsequent emails.

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List of Abbreviations

ACER Agency for the Cooperation of Energy Regulators

AFSJ Area of Freedom Security and Justice

AIP Asylum Intervention Pool

AST Asylum Support Teams

BEREC Body of European Regulators for Electronic Communications

CdT Translation Centre For the Bodies

CEAS Common European Asylum System

CEDEFOP European Centre for the Development of Vocational Training

CEPOL European Union Agency for Law Enforcement Training

CJEU Court of Justice of the European Union

COI Country of Origin Information

COREPER Committee of Permanent Representatives

CPVO Community Plant Variety Office

EAC European Asylum Curriculum

EASA European Union Aviation Safety Agency

EASO European Asylum Support Office

EBA European Banking Authority

EBCG European Border and Coast Guard

ECA European Court of Auditors

ECB European Central Bank

ECDC European Centre for Disease Prevention and Control

ECHA European Chemical Agency

ECRE European Council on Refugees and Exiles

EDA European Defense Agency

EEA European Environmental Agency

EFSA European Food Safety Authority

EFTA European Free Trade Association

EG Experimentalist Governance

EIGE European Institute for Gender Equality

EIOPA European Insurance and Occupational Pensions Authority

EMA European Medicine Agency

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EMSA European Maritime Safety Agency

ENISA European Union Agency for Network and Informational

Security

EPS Early Warning and Preparedness System

ERA European Union Agency for Railways

ESMA European Securities and Markets Authority

EUAA European Agency for Asylum

EUIPO European Union Intellectual Property Office

EU-LISA European Union Agency for the Operational Management of

Large-Scale IT Systems in the Area of Freedom, Security and Justice

EU-OSHA European Agency for Safety and Health at Work

EUSC European Union Satellite Centre

Eurofound European Foundation for the Improvement of Living and

Working Conditions

ETF European Training Foundation

FRA European Union Agency for Fundamental Rights

GDISC General Directors’ Immigration Services Conference

GSA Global Satellite Systems Agency

JHA Justice and Home Affairs

MMST Migration Management and Support Teams

SSM Single Supervisory Mechanism

TEU Treaty on European Union

TFEU Treaty on the Functioning of the European Union

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1. Introduction

The sudden increase of migratory flows in 2015 is what many have termed the European refugee crisis. During the summer and autumn of that year, approximately 700.000 asylum seekers attempted to cross European borders fleeing war-torn countries in desperate search for international protection (EASO 2016a: 9). The unprecedented pressure to assess the validity of so many asylum claims was, however, a burden asymmetrically shared between the administrations of the Member States. Dublin III, the recast Regulation of a 1990 Convention determining when a European state is responsible for the examination of irregular asylum applications, clearly stipulates that the first state of entry ought to be the one to assess these claims (EU Regulation 604/2013: Art. 13, para. 1). As the most popular route towards the European mainland is crossing the Mediterranean from either the Maghreb or Anatolia, this meant that the southern Member States had to carry the lion’s share of this burden (Trauner 2016: 314-315). In the case of Greece, the national asylum administration collapsed under the pressure, a system which the European Court of Human Rights had already deemed unsafe in 2011 (ECtHR Application 30696-09/2011: 88). Greece’s inability to process these applications was amply visible in the percentage of asylum seekers who actually applied for international protection in that country: a mere 1.5 percent (AIDA 2016a: 24). The other hundreds of thousands continued their journey inwards, leading many Member States to reinstate border controls or close their territory altogether, in turn, jeopardizing freedom of movement as one of the cornerstones of the European project (Treaty of Rome 1957: Art. 3, let. c).

Although the number of people seeking refuge was indeed substantial, it would be better to characterize this situation as a European policy crisis as opposed to a refugee crisis (Tsourdi 2016: 998). The arrival of third-country nationals continued to lag behind the intake of less prosperous states closer to the conflict zones, such as Turkey, Jordan, and Lebanon. About 85 percent of the displaced people stayed within the developing world and those actually making the crossing to Europe account for approximately 0.2 percent of the EU’s population (Lavenex 2018: 1196). The Commission likewise acknowledges the crisis discourse as one stemming from the inadequate implementation of European policies. In a desperate attempt to salvage the proper functioning of the Common European Asylum System (CEAS), it launched 41 infringement procedures against Member States in September of 2015 alone (European Commission Memo 5657/2015: 1). Asylum became the most controversial policy field in the already sensitive area of Justice and Home Affairs (JHA), responsible for

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the largest number of infringement procedures (Lavenex 2018: 1197). The result was a political stalemate and a lack of effective problem-solving capacity. While most southern Member States called for more solidarity and the sharing of the migratory burden, northern Member States believed these countries to be not unable but instead unwilling to fulfill their duty as agreed in the Dublin Regulation (Trauner 2016: 315). Only ad hoc crisis measures proposed under the Commission’s Agenda on Migration could partly curb the persistent governance gap. These included an emergency hotspot approach in frontline states using European agencies to facilitate the asylum procedure, millions in additional funding, and a relocation scheme resettling 160,000 asylum seekers towards less burdened national administrations (European Commission COM 240/2015: 5). The last measure was so controversial that four opposing countries had to be outvoted in the JHA Council, an organ known for its search for unanimous consent (Roos & Orsini 2015: 2).

Awareness of the fact that temporary measures are ultimately not a sustainable solution has led the Commission to propose reforms to all major legal acts in the field of asylum (see chapter 2.1). One such reform is recasting Regulation 439/2010 to establish a European Agency for Asylum (EUAA), a proposal which will revamp the currently active European Asylum Support Office (EASO). The latter organization became operational in early 2011 with the broad mandate of improving the implementation of the CEAS, strengthening practical cooperation between Member States, and providing support to those national administrations under disproportionate migratory pressure (EU Regulation 439/2010: Art. 1). As with most other European agencies, EASO lacks discretionary decision-making capacities to achieve these goals (Scholten 2014: 51-52). The mandate specifically excludes the organization from exercising direct or indirect powers in relation to individual decisions of national asylum authorities (EU Regulation 439/2010: recital 14). Such legal limitations invoke the precedence of flexible and new governance measures over hierarchical sanctioning, most prominently by gathering and coordinating the spread of information, training national officials, and supporting burdened asylum administrations (idem: 4-6). Yet EASO’s power has continued to grow in terms of finances, manpower, and even informal practices (Tsourdi 2016: 997, 1001). During the 2015 crisis, the agency was mandated to allow for the joint assessment of asylum claims in hotspot facilities, de facto replacing the Greek asylum administration without a clear legal framework (interviewee A). Within the EUAA proposal, the Commission envisions the codification of such decision-making practices and the introduction of a monitoring role, novel competencies accompanied by a

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steep increase in organizational resources (European Commission COM 271/2016: 5-6, 8-9). Since the proposal will further cement the agency’s role and provide for novel influential tools, we might wonder whether EASO has increased the problem-solving capacity of the CEAS and whether the conceived EUAA mandate can further increase these capacities.

Moreover, the proposed powers elevate the importance of a second subject: agency accountability. When the European co-legislative institutions delegate and create new forms of authority, sufficient accountability mechanisms become increasingly pertinent (Busuioc 2010: 38). In the event that the EUAA proposal is ratified, a thorough analysis of EASO’s accountability structure would be much needed. This could bring the discussion to a problematic dichotomy. Indeed, some scholars believe in a persistent trade-off between agency accountability and effectiveness (Busuioc 2009: 601; Ripoll Servent 2018: 84). Considering that most agencies are supposed to operate at arms-length from political pressure, strong accountability channels could hamper independence, their very raison d'être (Van Ooik 2005: 145). The importance of political insulation is likewise reiterated in the 2001

White Paper on European Governance: “they [the agency] should operate with a degree of independence” (European Commission COM 428/2001: 24), and legally enshrined within

EASO’s mandate: “in order to best fulfill its mandate, the Support Office should be

independent” (EU Regulation 439/2010: recital 8). It would still be problematic to discard the

importance of any accountability structure altogether. EASO annually receives millions of euros in Community funding and hence should not deviate too much from the preferences of its delegating authorities (Majone 2001: 103). The implied necessity to keep the organization “on tap” is further amplified by the fact that EASO is a JHA agency, unique in the sense of operating in policy areas where it could directly impinge on human rights (Carrera et al. 2013: 338). We might hence further wonder whether EASO can be reasonably held to account and whether there are sufficient accountability mechanisms for the use of the agencies’ novel powers.

Nevertheless, we know surprisingly little about the agencies operating in the area of JHA (Kaunert et al. 2013: 274). There is a widespread tendency to focus empirical inquiry on the influence of European main institutions, thereby downplaying the role of novel agencies. Even if these organizations are taken into account, scholars favor analyzing the impact of those agencies operating within the single European market (idem: 275). And when they instead opt for inquiry into JHA agencies, studies consistently focus on the practices of EASO’s sister agency Frontex: the European Border and Coast Guard (e.g. Busuioc 2010;

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Giannetto 2018a; Izabella 2015; Nikesh 2012; Pollack & Slominski 2009). This is not surprising if we take into account that Frontex has more staff, a larger budget, and has been active for almost twice as long as EASO. Besides, Frontex has been under continuous scrutiny by civil society and European institutions for its malpractices and violations of human rights, in particular with regards to the pushback of asylum seekers towards unsafe third countries (Giannetto 2018a: 6-7). Compared to its larger and more controversial sister agency, EASO has long been a relatively unfamiliar organization to the public and academia alike. The 2015 crisis and the subsequent EUAA proposal ought to change this by pushing the organization towards a more prominent position within scientific and policy discussions, both trends which have made EASO an increasingly important part of the JHA field (Horii 2018: 209).

Fortunately, there has been a recent shift away from the above-mentioned literature gap. Due to the work of Comte (2010), we understand the evolution of EASO’s original mandate and the importance of the conflicting preferences between the three co-legislative institutions. Ripoll Servent (2018) expands on this research agenda by assessing the conflicts during the early envision of the EUAA mandate, indicating that the Council has tend to water down controversial articles. She further assesses the dividing line between Members States deemed to be strong regulators and those perceived as relatively weak, arguing that the former group might capture EASO if the agency is not sufficiently independent from political pressure. Then there are three recent works on EASO’s operations during the crisis, where the emphasis lies on the aforementioned task of joint processing in Greek hotspots. Both Tsourdi (2016) and Horii (2018) indicate the problematic discrepancies between the organization’s de

jure mandate and de facto practices, the former scholar raising the question whether the

EUAA mandate can curb these ambiguities and the latter arguing for an increased role for European civil society. Carrera et al. (2013) add to this debate that EASO’s influential practices in Greece require strong accountability mechanisms, a system in which agency control should have precedence over political insulation. Such mechanisms are broadly assessed by Scholten (2014), whose PhD thesis examines the political accountability of all 35 European agencies. Finally, there are two official reports on the organization’s problem-solving capacities, issued before the 2015 crisis (European Commission SWD 122/2014; EY 2015).

This literature review hence indicates the continued presence of two gaps. The first is an assessment of EASO’s ability to effectively solve the main problems of the CEAS, an analysis that would take the recent migratory pressures and the EUAA proposal into account.

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The second is a more holistic approach towards accountability, one applying a broader framework and include the novel mechanisms as envisioned in the proposal. Against this backdrop, the study poses the following research questions:

1). To what extent can the EUAA proposal contribute to EASO’s ability to increase the

problem-solving capacity of the Common European Asylum System?

2). To what extent are there sufficient accountability mechanisms for the use of the agency’s

novel powers?

These research questions are further specified using the following six sub-questions:

1). Which policies are in place within the Common European Asylum System?

2). What are the main problems of the Common European Asylum System?

3). What contributions does EASO currently make to solving these problems?

4). What is the difference between EASO’s current and future mandate in terms of its capacity

to solve these problems?

5). To what accountability mechanisms is the organization currently subject?

6). What is the difference between EASO’s current and future mandate in terms of its

accountability mechanisms, and are these adequate for its expanded powers?

Before delving into the specifics, it is important to explain the structure of the research project. This thesis has nine chapters. The current chapter has introduced the scope of the study by elaborating on the subjects of inquiry, the scientific and social relevance, and the research question(s). Chapter 2 is devoted to the first sub-question and describes the history of the CEAS, the asylum acquis, and the current and future role of EASO within this system. Chapter 3 lays the theoretical groundwork for the empirical analysis complementary to the more descriptive foundation of chapter 2. It introduces and expands on the following concepts: problem-solving capacity, European agencies, governance, and accountability. Chapter 4 serves as the methodological justification, paying close attention to the research design of a qualitative within-case study and the usage of triangulation to collect the empirical data. Chapter 5 is the first of four empirical chapters and elaborates on the two main problems of the contemporary CEAS: the protection lottery and the disproportionate responsibilities plus lack of solidarity among the Member States. The subsequent chapters, 6 and 7, assess the

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contribution of the agency to solving these problems. While the former answers the third sub-question about EASO’s current role, the latter answers the fourth sub-sub-question and is more prognostic in its attempt to determine the capacity of the EUAA. Chapter 8 is the last empirical chapter and focusses on the issue of agency accountability. It is divided into two sections, one on EASO and one on the new mechanisms as proposed within the EUAA. The general conclusion, chapter 9, reviews the main findings of the thesis and suggests avenues for future research.

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2. The Common European Asylum System and EASO

The present chapter serves as a descriptive foundation for the empirical analyses, complementary to the theoretical work in the next chapter. It is divided into three sections. The first is an elaboration on the history of European cooperation within the field of asylum read as a reverse pyramid-like structure: it starts with a general description of important intergovernmental agreements and treaty reforms, before moving on to tangible results through five-year working programs and the ratification of legislative acts. The second section delves into the specifics of EASO, paying attention to the organization’s history, mandate, operational tasks, and governance structure. This format is mirrored in the third section focusing on the Commission’s 2016 EUAA proposal.

2.1. A History of the Common European Asylum System

European-wide cooperation on the issue of asylum started with rather loose intergovernmental agreements between the mid-1970s and early-1990s. Back then, this policy area was not just the sole competence of the then twelve Member States but also reserved to cooperative measures laying outside of the legal framework of the former European Community (EC). National immigration ministers strategically excluded both the Commission and the Parliament from these decision-making procedures, a notion problematized by the fact that most meetings happened outside of the direct scrutiny of national parliaments (Bunyan 1997: 9; Lavenex 2006: 329). The first of these agreements, which gave a major impetus to asylum cooperation, was the creation of the TREVI group in 1976. TREVI functioned as an ad hoc Council working group tasked with the exchange of information and the coordination of national measures against cross-border crime (Monar 2010: 237). Its early emphasis was mainly on security threats and terrorism, although information exchange on asylum became part of its tasks in 1986 (Bunyan 1997: 9-10). The inclusion of the latter issue was a direct function of the ratification of a second agreement: Schengen. Although Schengen became part of the acquis in 1997, it started as an intergovernmental agreement between five out of the six original Member States signed in 1985 (Schengen Agreement 1985: 19). Its goal of abolishing internal EC borders meant that increased cooperation on asylum matters was deemed necessary, crystallizing under the establishment of the Ad Hoc Group on Migration as part of the Single European Act and the Coordinators Group on the Free Movement of Persons as part of the TREVI framework (Lavenex 2018: 1201; Kaunert & Léonard 2012: 7). In 1989 the

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second group published the Palma Document, the blueprint of what would later become the CEAS. Title III of Palma argued for the need to determine “the State responsible for

examining the application for asylum” (Bunyan 1997: 13). This aim came to fruition with the

signing of the last intergovernmental agreement in Dublin in 1990, establishing which Member State was responsible for asylum claims lodged on the European territory (Dublin Convention 1997: Art. 1-3).

Such an ad hoc and intergovernmental decision-making style changed rapidly after the signing of each subsequent Treaty. Title VI Article K of the Maastricht Treaty identified asylum as part of the nine “matters of common interest” within the newly established area of JHA (Treaty of Maastricht 1992: Art. K.1, para. 1). All future European asylum policies were supposed to be in line with relevant international law, notably the Geneva Convention Relating to the Status of the Refugee (idem: Art. K.2, para. 1). The Treaty further Europeanized this policy field by including all future legislation within the legal framework of the newly created European Union, although the Member States did put asylum into the intergovernmental third pillar on JHA (Mazzucelli 2012: 147). This meant that the power of initiative was solely in the hands of the Council: national immigration ministers were supposed to “fully associate” the Commission and to “inform” the Parliament on their legislative proposals. Decisions needed the consent of all Member States and the European Court of Justice (CJEU) did not have any jurisdiction (Treaty of Maastricht 1992: Art. K.4, para. 1, 3). The signing of the Treaty of Amsterdam decreased the strict intergovernmental nature of these procedures, rebranding JHA as the Area of Freedom Security and Justice (AFSJ) (Treaty of Amsterdam 1997: Art. 73). After a transition period of five years, a timeframe in which the Council and Commission uniquely shared initiative powers, the latter would get sole competence over almost all parts of the aforementioned Article K (ibid.). The end of the five-year period further marked a shift away from unanimity towards qualified majority voting within the Council in the hope of establishing minimum asylum standards throughout the EU (idem: Art. 73k, para. 1-4). The CJEU gained some jurisdiction, although the Parliament remained at the periphery by only having weak consultative powers. These reforms further came at the hefty price of various opt-outs for Denmark, Ireland, and the United Kingdom, states with reservations about Europeanizing their competencies (Fletcher 2003: 554). The signing of the Lisbon Treaty in 2007 gave the last fundamental impetus to the field. Lisbon granted the CJEU full jurisdiction and gave the Parliament equal footing as co-legislator under the Ordinary Legislative Procedure (Treaty of Lisbon 2007: Art. 2, para. 2,

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let. c). Minimum standards were abandoned, thereby giving the Commission the powers to initiate measures on common asylum requirements (idem: Art. 63, para. 2). The Member States did not, however, set out an implementation deadline and granted the European Council the sole function of the overall strategic planner of new asylum policies (idem: Art. 61, let. a).

The importance of the latter institution is further observable in the adoption of five-year work programs at special European Council meetings, the material manifestation of each Treaty reform. It was indeed at the Tampere summit of 1999 where the heads of governments declared their intent to create a Common European Asylum System, the first time they coined this term and announced their willingness to move towards common as opposed to minimum asylum standards (Kaunert & Léonard 2012: 3). The summit hence concluded with the need to adopt minimum standards within five years aimed to be replaced by “a common [...]

procedure and a uniform status for those who are granted asylum” (European Council 1999:

Art. 15). The subsequent adoption of a five-year working program corresponded with the measures as set out in Title VI Article K of the Amsterdam Treaty. It was deemed as a broad success: the Council ratified all but one legislative act before the deadline of 2004 (Kaunert & Léonard 2012: 10). A positive zeitgeist was, however, quickly undercut after the adoption of the second work program concluded in The Hague in 2004. Although the summit called for a new implementation phase to enhance the convergence of the national administrations, there was a severe slowdown in the political output. Minimum standards had already proven burdensome to agree upon, meaning that the program’s deadline of 2010 had to be extended by two years (idem: 14). The program did reaffirm the goal of moving towards common asylum procedures and for the first time envisioned the creation of a new office “for all forms

of [asylum] cooperation between [the] Member States” (European Council 2004: Art. 1, para.

3). The role of the novel office, read EASO, was elaborated on in the third work program ratified during a special summit in Stockholm in 2009 (see chapter 2.2). This document once again mentioned the aim of common European asylum procedures and consolidated the need for migratory burden sharing between the Member States (European Council 2009: Art. 6, para. 2). It was also the last five-year work program. Instead of adopting another detailed document in 2014, the European Council opted for vague commitments under the Strategic

Guidelines for Legislative and Operational Planning (Léonard & Kaunert 2016: 143).

Approximately twenty years after the Member States first proclaimed their goal of creating a CEAS, asylum has become one of the most substantial legislative areas within JHA

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(Monar 2010: 26). In more concrete terms, the EU has adopted a multitude of legislative acts in two phases. The first phase attempted to create minimum standards and corresponded with the period 1999-2004 as envisioned in Tampere. Apart from the adoption of the controversial Asylum Procedure Directive in late 2005, which provides for standards to access of asylum, legal assistance, and detention rights, the following five legal documents were adopted well before the deadline (Council Directive 85/2005: recital 13, Art. 18; Kaunert & Léonard 2012: 10-11): (1) the Reception Conditions Directive, containing standards on the reception of asylum seekers while their claims are pending, notably the access to information, freedom of movement, the right to employment, and access to health care (Council Directive 9/2003: recital 11, Art. 7, Art. 11); (2) the Temporary Protection Directive, which creates a non-obligatory system of “community solidarity” to temporarily give refuge under a mass influx of asylum seekers (Council Directive 55/2001: recital 2, Art. 25); (3) the Asylum Qualification Directive, describing when a person is considered a refugee and the status associated with the category, uniquely including the persecution of non-state actors as a potential reason to grant protection (Council Directive 83/2004: Art. 1-6; Kaunert & Léonard 2012: 11-12); (4) the Dublin II Regulation, which replaced the 1990 Dublin Convention establishing the state responsible for an asylum application, the most important criteria being the state of entry (EU Council Regulation 343/2003: Art. 1-3; see chapter 5.2); and (5) the EURODAC Regulation, a fingerprinting database as a technical complement to Dublin (Council Regulation 2725/2000: Art. 1). Except for the Temporary Protection Directive, all these acts were amended in a second legislative phase between 2005 and 2013 to establish common as opposed to minimum asylum standards (Ripoll Servent & Trauner 2014: 1142-1143). The procedure now included the Parliament as novel co-legislator, which meant that the recasting exercise did not just further Europeanize the field but also contained a stronger emphasis on human rights (idem: 1153).

Nonetheless, the recasting exercise did not fully curb the presence of certain deficiencies within the CEAS, a function of the lengthy and contested nature of the legislative procedure (idem: 1150-1151; see chapter 5). Particularly the Dublin system has been resistant to extensive changes, although the 2013 alterations did include a new role for EASO as supervisor of the Early Warning and Preparedness System (EPS) and envisioned ad hoc support for national administrations under disproportionate pressure (EU Regulation 604/2013: recital 8, recital 22). Subsequent migratory pressures, as manifested throughout the EU during the 2015 crisis, led the Commission to propose a third phase of legislative

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initiatives to alter all but one of the aforementioned legislative acts. Two legislative packages initiated in mid-2016 were inter alia supposed to transform the acts from their current status as directives into regulations (European Commission COM 197/2016: 5-6). They would hence become directly binding upon all Member States and need not be transported into domestic law (TFEU 2009: Art. 288; see chapter 5.1). Unfortunately, the decision-making process is once again contested and slow. As of December of 2018, the Council was only able to agree upon five out of the seven original proposals (European Commission COM 798/2018: 17-18). The other two are respectively Dublin IV, the most important of all revisions, and the Asylum Procedure Regulation (interviewee E). Since some eastern Member States insist that the measures be adopted as one “package deal”, the ratification of the other five acts has reached a stalemate (ibid.; COREPER DOC 6600/2019: 8). The proposed deadline of May 2019 has not proved feasible, meaning that it will probably take until the installation of a new Commission before the co-legislators can reach an acceptable agreement (European Commission COM 798/2018: 21).

2.2. The Current Role of the European Asylum Support Office

Notwithstanding that EASO has only been operational since early 2011, the history of the organization is a bit longer. As the previous section mentioned, the creation of an asylum office was first envisioned during The Hague Council summit in 2004. The overarching goal of this special meeting was to adopt a new five-year working program to replace the Tampere conclusions of 1999 (European Council 2004: Art. 1). Europe’s asylum system had to move beyond the implemented minimum standards towards “a single procedure for the assessment

of applications for international protection” (idem: Art. 1, para. 3). Therefore, the endorsed

document argued for the need to establish a novel support office with “a view to facilitate

practical and collaborative cooperation” (ibid.). The tasks of such an agency were more

specifically described in the subsequent Stockholm program. Stockholm invited the asylum office, now officially called EASO, to reduce the disparities between the national administrations through the development of “a common educational platform for national

officials” (European Council 2009: Art. 6.2, para. 1). It further mentioned the commitment to

assist Member States under disproportionate pressure by “developing procedures that will

facilitate the secondment of [national asylum] officials” (idem: Art. 6.2, para. 2). In that same

year, the Council granted the Commission a green light to start writing an impact assessment on the feasibility an agency. This report believed the establishment of EASO to be the most

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feasible option for all Member States, quickly discarding the alternatives of preserving the status quo, strengthening the powers of the Commission, or creating a network of national administrations (European Commission SEC 153/2009: 53).

The summary of the official language used within the work programs indicates the strong emphasis on supporting Member States within EASO’s mandate. Indeed, mere months after the organization started operating from its new headquarters in Malta, the first Executive Director already coined its self-proclaimed motto: “support is our mission” (Tsourdi 2016: 999). Words like “support” or “cooperation” can be found on more everyday objects, such as the official website or organizational buildings, and are legally enshrined within the Treaty Articles from which the agency derives its mandate. More specifically, the preface of EU Regulation 439/2010 on the establishment of EASO mentions two such Articles: Article 74 on “measures to ensure administrative cooperation between the relevant departments of the

Member States” and Article 78 to “develop a common policy on asylum” (EU Regulation

439/2010: 11; TFEU 2009: Art. 74, Art. 78, para. 2). These goals are translated into three distinctive parts of the organization’s mandate: (1) strengthening the practical cooperation between the Member States; (2) providing support to those Member States under disproportionate migratory pressure; and (3) improving the implementation of the CEAS (idem: Art. 1). To reemphasize, the mandate specifically excludes the ability of “direct or

indirect powers in relation to the taking of decisions by Member States' asylum authorities on individual applications for international protection” (EU Regulation 439/2010: recital 14).

Moreover, EASO has no jurisdiction over Denmark as a result of the mentioned opt-in/opt-out structure of the Amsterdam Treaty. The other two opt-in/opt-opt-in/opt-out countries, the United Kingdom and Ireland, did decide to take part in the Regulation (idem: recital 21, recital 22).

Each of the mandate’s three parts is implemented through multiple operational tasks. Strengthening the practical cooperation between Member States is firstly achieved by the creation and the dissemination of Country of Origin (COI) reports (idem: Art. 4; see chapter 6.1). These are reports on third countries aimed at providing the national asylum administrations information on relevant topics related to the granting of protection for nationals from said country. Both EASO’s reports and those drafted by individual administrations are further supported through common methodologies: standard templates telling each Member State how they should address the issue of creating COI reports (idem: 5-6). This methodology is likewise used to guide administrations on difficult topics, such as assessing the situation of LGBT communities (EASO 2015a: 8). Strengthening practical

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cooperation is lastly achieved through the training of national asylum officials (Regulation 439/2010: Art. 6). These sessions are based on EASO’s training curriculum, a set of modules covering various topics (EASO 2018a: 5; see chapter 6.1). EASO implements its second goal of assisting pressured Member States through “emergency” and “special” support (see chapter 6.2). The former refers to assistance in crisis situations placing “exceptionally heavy and

urgent demands on [national] asylum systems” (EU Regulation 439/2010: Art. 8). The latter

is more broadly applicable to instances of “tailormade assistance”. Both types of missions are executed by mostly drawing upon staff from the Asylum Support Team (AST), a large pool of seconded officials from each Member State (EU Regulation 439/2010: Art. 10, let. c, Art. 15). The third part, improving the implementation of the CEAS, consist of two tasks (see chapter 6.1). The first is drafting the Annual Report on the Situation of Asylum in the EU+, a document containing the most recent information on European-wide asylum trends (EASO 2012a: 8-9). The second is administering the EPS as part of the Dublin III Regulation. This is an online data system with various indicators on the practical implementation of the CEAS, particularly focusing on the resilience of the national administrations (EU Regulation 604/2013: recital 22).

EASO has an elaborate governance structure to carry out all these operational tasks, supported through ever-expanding resources (see table 1). As with other European agencies, the two most important organs are the Executive Director and the Management Board (Scholten 2014: 42). The Executive Director functions as the legal representative and head of the organization, who is supposed to act independently from national governments or other bodies “in the performance of his duties” (EU Regulation 439/2010: Art. 31, para. 1). These duties consist of administering the day-to-day operations and the execution of the assigned tasks under the founding Regulation: carrying out the decisions adopted by the Management Board, establishing an annual work and activity program, implementing the former program, and creating operational plans for supportive missions at the request of a Member State (idem: Art. 31, para. 6). The Management Board appoints the Director after the Commission has drafted a list of suitable candidates from an open competition (idem: Art. 30). A unique aspect of the procedure vis-à-vis other European agencies is the fact that the Director has to appear before the Parliament, whose views have to be taken into account by the Management Board (ibid.; Comte 2010: 388-389). The latter organ functions as EASO’s main planning and monitoring body. Apart from appointing the Executive Director, the Management Board adopts the rules of procures and all important technical document (idem: Art. 29, para. 1). It

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meets at least twice a year and consists of twenty-nine members with voting rights: one representative from each Member State plus two nominated by the Commission. This organ further has six members with observer status: the UNHCR (United Nations High Commissioner for Refugees), the four EFTA countries (European Free Trade Association), and Denmark. All decisions are adopted by an absolute majority, unless stated otherwise (idem: Art. 25). A third important organ is the Consultative Forum, a plenary meeting with European civil society organization. The Forum is tasked with making suggestions on important operational documents, notably the annual work program and the annual asylum report (idem: Art. 51). It consists of more than 100 actors who meet at least once a year.

Table 1: EASO’s financial and human resources per year

Year Staff Funds in millions

2010 n/a 5.25 2011 42 8 2012 61 10 2013 77 12 2014 86 15.5 2015 94 15.9 2016 163 69.2 2017 227 86.8 2018 297 87 2019 390 96.7

Estimate based on authorized resources as stated in each annual work program.

Online access at: https://www.easo.europa.eu/about-us/governance-documents

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2.3. The Proposed Role of the European Agency for Asylum

The Commission’s proposal to revamp EASO into a EUAA was part of the first legislative package to reform the CEAS, initiated in May of 2016 together with the amended Dublin and Eurodac Regulations (European Commission IP 1620/2016: 1-3). This was mere months after the European Council had defined the strategic guideline of reforming all asylum policies, a signal which led the Commission to present its proposals in April of 2016 (European Commission COM 197/2016: 1-2). The legal basis of the EUAA originates from Article 78 of the TFEU (Treaty on the Functioning of the European Union) on the establishment of a CEAS in line with the principles of the 1951 Geneva Convention (TFEU 2009: Art. 78, para. 1). This implies that the Commission excluded Article 74 on administrative cooperation between the Member States, an integral part of EASO’s founding Regulation (Tsourdi 2016: 1026). The document likewise excludes Article 80 on the need to implement asylum policies based on the

“principle of solidarity and fair sharing of responsibility” (TFEU 2009: Art. 80). Tsourdi

(2016) identifies the exclusion of Article 80 as a deliberate decision, one signaling “a

cautious approach to this topic” (idem: 1026). Such an approach might have reaped its

benefits. In June of 2017, the Council published a press release indicating that it had reached a provisional political agreement with the Parliament (Council of the European Union 2017). COREPER endorsed the interinstitutional accord in December of the same year, although it was forced to exclude the text placed in square brackets as it referred to other CEAS reforms (COREPER DOC 15057/2017: 6-7). The lack of agreement on these other reforms is the main reason why the Council cannot adopt the EUAA proposal. As mentioned, all seven CEAS proposals have to be adopted as once large legislative package. Moreover, the Commission itself sparked new discussions after it initiated amendments to the EUAA in September of 2018 (CORREPER DOC 6600/2019: 7-8). Subsequent discussions led the Austrian Precedency to conclude in early 2019 that compromises would be difficult to reach as “all

possibilities [had] been exhausted at [the] technical level” (idem: 8).

What is the cause of these controversies, or phrased differently: what is new about the EUAA vis-à-vis EASO? In line with the previous section, we can connect the proposal’s envisioned roles to the organization’s three tasks: (1) strengthening practical cooperation between the Member States; (2) assisting national administrations under disproportionate pressure; and (3) improving the implementation of the CEAS. Regarding practical cooperation, the Commission mainly conceived changes to the informational role of EASO (see chapter 7.1). The first is the commitment of national administrations to collaborate,

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specified as “a duty to cooperate in good faith and an obligation to exchange information” (European Commission COM 271/2016: Art. 3, para. 1). The second is the development of a

“common analysis” of COI reports, a system where EASO’s reports have to be taken into

account by national asylum officials (idem: Art. 10, para. 2). Then there is the task of assisting pressured administrations. Here, the proposal provides for multiple alterations to the agency’s current role. The first is expanding the mandate of the AST, who are tasked with providing “special” and “emergency support”. In the new proposal, they can directly influence the decisions of national asylum administrations by facilitating “the examination of

applications” and providing “assistance to competent national authorities” (idem: Art. 16,

para. 3). Another change is the introduction of two new teams: Migration Management and Support Teams (MMST) and the Asylum Intervention Pool (AIP). Whereas the former specifically operates within the hotspot framework, the latter functions as a large pool of seconded national experts used to assist states in crisis situation (idem: Art. 20-22). Both teams have the role of registering third-country nationals and, importantly, the examination of individual applications (idem: Art. 21, para. 1). These changes go well beyond the current mandate of “no indirect powers” and are hence amongst the most controversial articles (interviewee E; Tsourdi 2016: 1028-1029). The third task of improving the implementation of the CEAS is mainly ensured through one novel and particularly contentious instrument: a monitoring exercise (interviewee E; see chapter 7.2). Such an exercise will be used to assess

“the asylum and reception systems in each Member State, or of all Member States on the basis of thematic or specific aspects” (European Commission COM 271/2016: Art. 14, para.

1). All Member States are to be monitored at least once every five years. If the exercise exposes deficiencies that “jeopardize the functioning of the CEAS,”, the Commission may eventually initiate a mandatory implementation act (idem: Art. 15, para. 1).

As to be expected with new operational tasks, the Commission envisioned multiple alterations to EASO’s governance structure. The first is a steep growth in organizational resources to enable the effective implementation of all the above-mentioned duties (idem: 5-6; see table 2). This increase refers to both the agency’s own resources in terms of finances and staff, and to the number of seconded national experts deployed to help national administrations. All Member States “shall” contribute to the enlargement of the AST’s, although they can refuse the deployment of their officials if “they are faced with an

exceptional situation substantially affecting the discharge of national tasks” (idem: Art. 17,

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situations” cannot be invoked if the experts are part of an AIP, those seconded officials who assist the Member States in crisis situations (idem: 10). The second, somewhat obvious, change is the elevated importance of the two prime political organs: the Management Board and the Executive Director. The former is further tasked with approving all novel documents, like the common analysis on COI reports and the conclusions of the monitoring exercise (idem: Art. 40-41). The latter drafts these documents, most notably the Operational Plan containing binding details on the deployment of EASO staff and seconded experts in the Member States (idem: Art. 46). Although likewise part of the Director’s current mandate (EU Regulation 439/2010: Art. 31), the mentioned expansion of the tasks during such supportive missions certainly make it worthwhile to mention. The last alteration concerns the functioning of the Consultative Forum. These annual meetings will no longer be chaired by the Executive Director (European Commission COM 271/2016: 11).

Table 2: Proposed EUAA financial and human resources per multi-annual working period

Period Staff Funds in millions

2019-2020 500 320.8

2021-2027 500 1250

Estimate based on the Commission’s 2018 amendments to the EUAA regulation. Online access at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2018:0633:FIN. Accessed on 20-04-2019.

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3. Theoretical Framework

The aim of the present chapter is to lay a theoretical foundation for the subsequent empirical chapters. It mainly clarifies certain theoretical terms introduced in chapter 1: problem-solving capacity, European agencies, flexible or new governance, and accountability. There are five sections. The first elaborates on the term problem-solving capacity and connects the theory to recent scholarly works on the functioning of the CEAS. The next part describes why the European co-legislative institutions would want to delegate powers to an asylum agency, in turn assessing what kind of organizational structure we would expect from EASO. The third section uses prior works on the political and legal constraints of the European agencification process to capture EASO’s distinctive organizational structure. It subsequently conceptualizes both the agency’s current and future mandate as part of the larger European regulatory space. The fourth section likewise assesses institutional design choices but does this from the vastly different new governance angle. The last part describes accountability mechanisms to search for ways to hold European agencies to proper account.

3.1. Problem-Solving Capacity and a Lack Thereof in the CEAS

“The problem-solving capacity of the European Union is severely constrained by the institutionalized need to avoid policy choices that would give rise to politically salient

conflicts.” (Scharpf 2006: 14)

In 1997, a mere five years after the Treaty of Maastricht introduced asylum within the intergovernmental JHA pillar, German political scientist Fritz Scharpf warned about the negative repercussions of such processes (Scharpf 1997: 520). In his view of systems of multi-level governance, the EU’s capacity to effectively solve a given problem would be highly impeded if the policy area consisted of two elements: unsurmountable differences with regards to the preferences of the Member States and an intergovernmental approach to decision-making (Scharpf 2001: 14). These two factors would lead to a political stalemate and a lack of problem-solving capacity, an issue greatly exacerbated by the fact that national administrations were becoming increasingly dependent on adequate European policies (Scharpf 2006: 16). The present section elaborates on Scharpf’s original argument and connects it to recent scholarly works on the CEAS, assessing why there has been a governance gap in this policy area.

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The first factor interfering with the EU’s capacity to solve a problem is different and potentially incompatible preferences between the Member States (Scharpf 2001: 3). Such disagreements were long avoided by the focus on market-creating policies, in which the search for Pareto-efficiency meant that each state was relatively better off than the status quo of no common regulations. Even when one Member State would seem to lose in the short term, these instances of negative integration were still met with broad support from the public and national administrations alike (Majone 2006: 622-623). Since market creation was long the bulk of the European regulatory output, preferences did not diverge as much or were at least not so politically salient as to ensure persistent stalemates within the Council (Scharpf 2001: 10-11). The implied permissive consensus for supranational policy making has, however, seemingly collapsed under the pressures of the Europeanization of new policy fields after the ratification of the Treaties of Maastricht and Amsterdam (Genschel & Jachtenfuchs 2018: 182-183). Here, the preceding regulatory agenda was altered to include more redistributive forms of positive integration, policies which result in clear winners and losers and therefore require stronger channels of legitimization (Hix 2005: 215-217; Schimmelfennig et al. 2015: 772). The consent of democratically elected national governments became increasingly pertinent and uncertain, augmented by the fact that the enlargement rounds doubled the number of participating Member States (Scharpf 2006: 16). Subsequent political agreements have proven hardest to reach in the new Europeanized fields, which are not just redistributive, but also highly politicized in nature. If the area touches upon core powers historically associated with state sovereignty, like military and border control, the polarization of opinions on either a national or European level makes it particularly burdensome to reach acceptable compromises (Genschel & Jachtenfuchs 2018: 178). Perceived failure on these salient issues might win or lose governments the next national election and any state ought to claim some victories for such policies, implying that it is hard to deviate from one’s original bargaining position (Scharpf 2006: 11).

Divergent preferences on these highly politicized issues are further exacerbated by an institutional logic, the second dimension of Scharpf’s theory (Scharpf 1997: 532). Depending on the institutional mode in which European legislation is produced, we can convincingly hypothesize when it will be easiest to formulate policies in light of persistent conflicts. Generally speaking, as the power of the supranational Commission plus the CJEU decreases and as the influence of the intergovernmental European Council and the Council of the EU increases, the capacity to overcome political deadlocks becomes increasingly challenging

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(Scharpf 2001: 13). Under such circumstances, national governments will have considerable powers to block the Commission’s initiatives or, alternatively, completely exclude the institution from the legislative process (idem: 7-9). This brings the theoretical discussion to a troublesome dilemma. Indeed, in precisely those areas where conflicting preferences and politicization is more likely to occur, the Member States have been wary about Europeanizing their decision-making competences. Here, a strong role for intergovernmental bargaining was long ensured in the Maastricht Treaty, although this has been partly reduced in the subsequent Treaties of Amsterdam and Lisbon (Laursen 2012: 276, 279; see chapter 2.1). Even in these cases, however, a strong role for intergovernmentalism is often established through de facto unanimity rules within Council voting procedures (Trauner & Ripoll Servent 2016: 1424). These informal practices lead to considerable differences between the official institutional logic and actual procedures, meaning that any account of EU governance should move beyond a sole description of formal rules and likewise assess de facto practices. It further suggests that in precisely those areas where supranational decision-making could subdue political conflicts, a reverse procedure is dominant. The result is the synthesis of Scharpf’s argument: a persistent lack of problem-solving capacity, a condition which significantly reduces the legitimacy of the contemporary European political order (Scharpf 2006: 5).

Although Scharpf included neither JHA nor asylum in his original typology (Scharpf 1997: 532), his theory is in line with recent works on the CEAS and in particular the 2015 crisis. While multiple scholars describe the redistributive workings of relocating asylum seekers as amongst the most politicized European policies (e.g. Börzel 2016; Börzel & Risse 2018; Ferreira 2010; Genschel & Jachtenfuchs 2018; Rittberger et al. 2017), others believe the preferences of most Member States to be incompatible with one another (e.g. Aus 2008; Lavenex 2018). Some states indeed herald asylum as “the next European project” and others argue that solely the state ought to be the one deciding “who we let in” (Lavenex 2018: 1195-1196). Moreover, Trauner (2016) indicates that the southern Member States have long called for fairer mechanisms of migratory burden sharing, whereas the northern Member States have deflected these pleas arguing that the former group should instead increase their own administrative capacity as opposed to relying on the “benevolence” of stronger regulators (idem: 312, 315; Thielemann & Armstrong 2012: 160). A third coalition is the European transit countries, such as the Višegrad group, who see no reason to put much effort into the field as they are not a popular destination for most asylum seekers (Der Heijer et al. 2016: 608-610; Zaun 2018: 53-54). This dividing line is compounded by two institutional

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characteristics of the decision-making procedures. First, the JHA Council’s de facto norm of unanimity means that any proposal needs the full consent of all participating states (Slominski & Trauner 2018: 103; Trauner 2016: 320). As mentioned, the Council deviated from this norm when they adopted the emergency relocation schemes to resettle asylum seekers towards less burdened administrations (Council of the European Union Decision 1523/2015: 1-2; Council of the European Union Decision 1601/2015: 1-2). The negative repercussions were unequivocal: those states which voted against the scheme simply refused to participate. Even invoking infringement procedures and a referral to the CJEU did not imply that the three “culprits” Hungary, Poland, and the Czech Republic, did as the Council had told them to (European Commission IP 5002/2017: 1). Second, the importance of intergovernmental bargaining is legally enshrined into Article 80 of the TFEU, reading: “the European Council

shall define the strategic guidelines for legislative and operational planning within the

[AFSJ]” (TFEU 2009: Art. 80).

The consequential lack of problem-solving capacity would not be an issue if the Member States could fill the ensuing governance gap by enacting national legislation. The third element of Scharpf’s theory, however, is that national administrations have become dependent on the capacity of the EU to formulate working policies. Phrased differently, the spillovers of successful integration in one area have led to interdependencies and the need to formulate common solutions in another (Scharpf 2006: 16). The implication is that although conflict and intergovernmental procedures reduce the probability of European rule making, national governments are likewise incapable to handle the issues on their own. And even when the European institutions surmount the ensuing political deadlocks, most formulated policies become rigid and suboptimal compromises (Falkner 2013: 3). The workings of the Dublin regime is a good case in point. It seems far removed from the preferences of the frontline Member States and has significantly reduced the discretionary leeway of these administrations, but has been almost impossible to alter (Thielemann & Armstrong 2013: 160; Trauner & Ripoll Servent 2014: 1428-1429; see chapter 5.2). Nonetheless, European states are dependent on such common asylum rules. As mentioned, a direct spillover of the Schengen agreement and its goal of creating an area where citizens could move freely was a perceived need to harmonize asylum rules (Velluti 2007: 60). Otherwise, asylum seekers could cross the now opened internal borders and lodge their claims in multiple countries, abusing the system and burdening national authorities (Thielemann & Armstrong 2013: 151). The civil war in Yugoslavia and subsequent migratory flows further indicated that purely

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domestic measures could not be deemed effective anymore. Most were simple zero-sum “beggar thy neighbor” strategies in the hope of reducing the total number of asylum applications (Ripoll Servent 2018: 88). We are thence left with the problematic situation in which the EU seems unable and the Member States incapable to reduce a governance gap. The next section introduces the potential contribution of EASO as the European asylum agency.

3.2. The Logic of Delegation and Expected Agency Structure

Although EASO’s recent operations in the CEAS make the organization a relatively new European agency, the process of delegation is by no means a new phenomenon. Most scholars would characterize EASO as part of the fourth wave of European agencification, the first wave occurring in the mid-1970s with the creation of CEDEFOP and Eurofound, organizations operating in the area of vocational training and working conditions (Scholten & Rijsbergen 2014: 1230). What is more novel is the sheer number of agencies operating in an increasingly broad array of European policy fields, EASO itself being a good case in point. Nearly all of the Union’s 35 agencies were established after the early 1990s and most notably following the turn of the millennium, leading Kelemen & Tarrant (2011) to define the contemporary European regulatory space as a “Eurocracy” (idem: 923). Despite or because of their recent popularity, these organizations have vastly different shapes and sizes and EU law still lacks a clear definition of what the term agency entails (Tsourdi 2016: 1000). By adopting a necessary and sufficient strategy, we can define European agencies as institutions containing the following three characteristics: (1) they should be permanent bodies under European public law; (2) they should be established through secondary law; and (3) they should be financially independent and endowed with their own legal personality (idem: 1000-1001; Chamon 2016: 14; Goertz 2006: 36). This section describes why the European co-legislators would want to cede their powers and assesses the expected agency structure of EASO.

In classic principal-agent theories of governance, the process of delegation refers to the transfer of powers or decision-making competencies from a principal towards an agent (Dehousse 2016a: 59). Such inter-organizational relations are defined in hierarchical terms. The principal should exercise control over the agent, hence is tasked with defining clear contractual boundaries to the agent’s conduct in the attempt to reduce “political drift” (idem:

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61). American scholars historically dominated the literature on these P-A structures, using the model as an analytical device to describe the transfer of power from the democratically elected Congress towards non-majoritarian agencies (Dehousse 2008: 790). Although certainly helpful as a point of departure, this simplistic American model does not fit with two particularities of the European multi-level governance system. First, there is not one single actor delegating powers, but a multitude of principals: the three co-legislative institutions of the Commission, the Council, and the Parliament (idem: 794). Second, the transfer of certain competencies does not constitute delegation in the strict sense of the word, because European agencies have obtained powers which neither national administrations nor European institutions had previously exercised. For example, prior to the establishment of EASO, there was no organization tasked with training national asylum officials, although the organization GDISC did perform such tasks on a limited ad hoc basis (interviewee B; Comte 2010: 399-400). These two arguments sharply increase the complexity of the European delegation process vis-à-vis the American model, which raises the question of why the co-legislative institutions would want to initiate this process.

More generally, there is a longstanding debate discussing for what reasons any principal would want to cede powers to insulated bodies (Dehousse 2016a: 59-60). Would not a voluntary decrease of such capacities go against a central premise of rationalist institutional theory: organizations attempt to maximize their influence? In the eyes of Giandomenico Majone, there are nonetheless four benefits to delegation. The first is reducing the bounded rationality of politicians. Most elected officials “have neither the expertise to design policies [...] nor the capacity to adapt them” (Majone 1999: 4). This is in stark contrast to the regulatory capacity of agencies, organizations with specialized staff expected to obtain more legislative proficiency (Busuioc 2010: 15). Although Majone describes this as a plausible explanation, he further argues that most politicians are quite knowledgeable and capable of either drafting their own legislation or hiring external consultants, the latter strategy being less demanding vis-à-vis delegation (Majone 1999: 3-4). This is why he proposes the second benefit of reducing decision-making costs. Even if politicians can draft highly technical proposals, it might be costly to revise them in light of newly acquired information. The agency could curb such issues by achieving a level of expertise on a single subject which no legislator could ever attain without severely limiting the ability to formulate alternative policies (idem: 4). Such a rationale is much applicable to the Commission, an organization whose relatively small staff might be burdened by administrative overloads (Sabel & Zeitlin

Recasting the Common European Asylum? : on the problem-solving capacity and accountability of EASO and the proposed EUAA