Disaggregation via 'governmental independence' : EU law as a trigger for domestic administrative authorities and the disaggregation of the member states' executive

Abstract

The thesis addresses a recent development in EU administrative law at the interface between the principle of primacy of EU law and the competence of the Member States to enforce EU law. EU law obliges Member States in a growing number of directives or regulations to equip their administrative authorities with independence from the government (‘governmental inde-pendence’). On the basis of two recent decisions of the European Court of Justice concerning the independence of national data protection authorities the legal meaning of governmental independence will be elaborated. This thesis argues that there is a broader approach in EU law triggering the establishment of domestic independent administrative authorities. However, obliging Member States to decouple domestic authorities from the national government is not without consequences. In order to determine these consequences the reception of EU inde-pendence requirements in France and Germany is examined in-depth for which telecommuni-cations, data protection and statistics serve as the fields of reference. In the following, this thesis focuses on the effect within the executive of the Member States and claims that Mem-ber States lose their autonomy regarding the setting up of their internal administrative organi-sation while self-confident administrative authorities appear on the national level challenging governmental decisions: the disaggregating effect. In contrast to other analyses, this thesis provides arguments that this development is not directed to technocratic models of govern-ance, but to a more effective application and enforcement of EU law which exceeds field-specific approaches to independent institutions. Furthermore, the competence of the EU to oblige Member States to create independent domestic administrative authorities is neither constrained by the respect of the national identity (Article 4 (2) TEU) nor by the principle of institutional autonomy. However, granting independence to domestic independent administra-tive authorities combined with a re-integration to the European Commission infringes the principle of a decentralised administrative structure as laid down in Article 291 (1) TFEU.