Accountability vs. Independence: Proving the Negative Correlation

Forthcoming in Maastricht Journal of European and Comparative Law

8 Pages Posted: 16 Dec 2013  

Miroslava Scholten

Utrecht University School of Law (the Netherlands)

Date Written: December 16, 2013

Abstract

Independence and accountability…accountability and independence…these have become two ‘usual suspects’ when talking about independent regulatory agencies (IRAs), the classic question being whether IRAs can be accountable, if they enjoy independence. While in recent years it has been more often argued that these notions are mutually complementary, this article proves the negative correlation between accountability and independence. It shows that the more independence there is, the less accountability channels and accountability instruments are left, and the other way around. It does so by bringing conceptual clarity into the concept of independence showing that independence, and more specifically its three elements (institutional, personal and financial), is the means to protect functional discretion, i.e., a possibility to make substantive and/or procedural choices. While functional discretion and accountability can and should co-exist, independence and accountability can exist only at each other’s costs.

Keywords: Independence, Accountability, Discretion, Independent Regulatory Agencies, US, EU

Suggested Citation

Scholten, Miroslava, Accountability vs. Independence: Proving the Negative Correlation (December 16, 2013). Forthcoming in Maastricht Journal of European and Comparative Law. Available at SSRN: https://ssrn.com/abstract=2368164

Miroslava Scholten (Contact Author)

Utrecht University School of Law (the Netherlands) ( email )

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