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Relaxing ministerial control and judicial review of government agencies is not a new phenomenon. On the German national level, independence typically occurs in two different guises. First, by depriving the superior ministry of the ability to control and determine the agencies’ decisions. Second, by shielding the agencies’ decisions from judicial review. Some impulses for the independence of agencies originate on the European level – they have been stipulated through EU secondary law in the area of regulatory issues (e. g. telecommunication and energy) and data protection for some time already, while in financial supervision independence has only recently been implemented. In the recent past, the EU primary law requirement of an independent European Central Bank (ECB) launched heated debates on the democratic implications of independence.
This article adopts a functional perspective by determining the adequacy of independence as a matter of the function to be performed by the agency. In this vein, judicial restraint must be accepted where asymmetries in knowledge and expertise materialize to the extent that judicial control would be unable to review agency decisions accurately. The comprehensibility or reproducibility of an agency’s decision are crucial in determining the judicial ability to review. More broadly, the role of legislation, ministries and courts in controlling or reviewing agency decisions depends on the functional characteristics performed by the agency. The functional idiosyncrasies in regulatory issues (i. e. simulation of competition in natural monopolies) and monetary policy (ensuring the functioning of the transmission mechanism) are multidimensional, contingent, hard to operationalize, and leave significant discretion to the relevant agencies. The ensuing disparities in knowledge and expertise stretch the competences of the judiciary and thus justify judicial restraint by limiting review to evident mistakes. By contrast, in the area of competition law (addressing anti-competitive conduct), there is no such functional asymmetry between the competition authorities (under German rules) and the courts.
Regarding intra-executive independence, in the sense that ministries are deprived of control over the agency, the functional perspective is concerned with the different rationalities at work in ministries and agencies, respectively. While ministries primarily pursue political and strategic goals, agencies act within the logic of substance-oriented implementation. Independency intends to fend off undesirable political interventions through minis-terial control (regulation, competition law, monetary policy) or seeks to avoid adverse nationalism by entering into harmful inter-Member-State competition (financial supervision), thereby justifying an EU-based independent agency.
However, the constitutional law foundation for such functional determination of the agency’s independence remains ambivalent. Depending on the area concerned, fundamental rights can require the agency’s independence in order to protect individuals’ rights. By the same token, agency decisions affecting fundamental rights can make parliamentary approval through political control (by the ministry) or judicial control (through courts) indispensable. The ambivalence can be illustrated by the example of monetary policy: while the Federal Constitutional Court (FCC) had acknowledged, in its early Maastricht judgment, the role of the ECB’s independence for the protection of individual rights, the ECB’s recent expansive monetary policy stance has led the FCC to question the independence and request tight judicial review of monetary policy decisions. Finally, consideration is given to the concept of output legitimacy as a justification for the independency of an agency. However, this concept can hardly compensate missing input legitimacy, where agencies act within a polytelic, discretionary and multidimensional mandate.
