Historical Development of Boards of Appeal of EU Agencies

Agencification phenomenon in the EU has led to concerns about controls over EU agencies’ actions. As the quantity and ‘quality’, i.e., strength of de jure powers, of EU agencies have grown in the last decades, so does the system of control over agencies show its development. The controls over all EU agencies with the de jure decision-making powers as well as the European Central Bank within the Single Supervisory Mechanism have been supported with the establishment of Boards of Appeal, which count 9 entities. Like with the agencification phenomenon however, the establishment and characteristics of the Boards vary greatly from agency to agency without clear indications as to why the differences (should) exist and what exact role and how much discretion (should) be given to the Boards. As this unclarities put the legitimacy of the system of controls of EU agencies under pressure, an attempt to build a common system of review of agency action by the Boards seems desirable. To contribute to this ultimate goal of our study, this chapter offers a historical overview of agencification and review of agency action in the EU, rationales behind the creation of agencies’ appeal bodies and an attempt of classification of different boards to enhance comprehension and development of a common system of review of agency action. For learning purposes, we look at the system of administrative review in the US. We base our analysis on relevant secondary legislation, such as agencies’ founding acts, rules of procedure, case-law in the EU and in the US and relevant academic literature.