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DOI: 10.13140/RG.2.1.3806.9605 ·Available from: Slobodan Tomic, Jul 23, 2015
Agency Transparency and Accountability:
Comparative Analysis of Five Regulated Sectors in
Serbia and Macedonia
e RRPP promotes social science research in the Western Balkans (Albania,
Bosnia and Herzegovina, Kosovo*, Macedonia, Montenegro and Serbia).
Social science research aids in the understanding of the specic reform needs
of countries in the region and in identifying the long-term implications
of policy choices. Researchers receive support through research grants,
methodological and thematic trainings as well as opportunities for regional
and international networking and mentoring. e RRPP is coordinated
and operated by the Interfaculty Institute for Central and Eastern Europe
(IICEE) at the University of Fribourg (Switzerland). e programme is fully
funded by the Swiss Agency for Development and Cooperation (SDC),
Federal Department of Foreign Aairs.
e views expressed in this publication are those of the authors and do not
necessarily represent opinions of the SDC and the University of Fribourg.
* is designation is without prejudice to positions on status, and is in line with
UNSCR 1244/1999 and the International Court of Justice Opinion on the Kosovo
declaration of independence.
Agency Transparency and Accountability:
Comparative Analysis of Five Regulated Sectors in
Serbia and Macedonia
Authors:
Slobodan Tomic
Slagjana Taseva
Ivana Popovic
Aleksandar Jovancic
Zorica Vojinovic
Belgrade, 2015
IMPRESSUM
Agency Transparency and Accountability: Comparative Analysis
of Five Regulated Sectors in Serbia and Macedonia
Authors:
Slobodan Tomic (Belgrade Institute for Public Policy)
Slagjana Taseva (Transparency International Macedonia)
Ivana Popovic (Belgrade Institute for Public Policy)
Aleksandar Jovancic (Belgrade Institute for Public Policy)
Zorica Vojinovic (Belgrade Institute for Public Policy)
Published by:
Belgrade Institute for Public Policy
Proofreading:
Marija Zurnic
Cover and layout:
Koncepta, Belgrade
Printed by:
La Mantini, Belgrade
Print run:
100
ISBN
978-86-919023-0-8
Belgrade, 2015
CIP
7
Content
Executive Summary
Part I
1. Introduction
2. Accountability and transparency
3. Transition states
4. Research questions and objectives
5. Policy signicance
6. Conceptualising transparency regime
7. eorising determinants of transparency regime
8. Methodology
Part II
9. Case studies
Part III
10. Comparative analysis
Part IV
11. From transparency to accountability
12. Conclusion
Recommendations
Bibliography
Appendix
8
13
16
18
21
23
25
28
37
47
93
109
111
114
119
128
Acknowledgments
is publication represents the outcome of a year-long project named
“Are Regulatory Agencies in Serbia and Macedonia Transparent and
Accountable?”. e project was carried out by the Belgrade Institute for
Public Policy and Transparency International Macedonia between July
2014 and July 2015. Over the course of the project duration, we organised
several conferences - two were held in Belgrade, in December 2014 and
May 2015, and one conference was organised in Skopje in March 2014.
We would like to thank the conference participants for their invaluable
contribution. We also acknowledge the contribution of the agency
representatives who found the time to answer our interview questions
and subsequent surveys concerning their agencies’ work. Our gratitude
also extends to our mentoring institution Centre for Analysis of Risk and
Regulation (CARR) of the London School of Economics and Political
Science (LSE) for their precious support during the project, particularly
for the conference organised in June 2015, where we presented our work
and received precious feedback. Professor Martin Lodge, Director of
CARR, provided us with insightful guidance, encouragement and advice
throughout this project. Last but not least, we would like to express
our gratitude to the Regional Research Promotion Programme in the
Western Balkans (RRPP) for providing funding for this project. Special
thanks go to Mihajlo Djukic, the RRPP Local Coordinator for Serbia,
for his immensely helpful assistance. All errors remain ours.
Project leader,
Slobodan Tomic,
Programme Director of Belgrade Institute for Public Policy
8 9
Executive Summary
Why is transparency of independent agencies important?
1. Independent agencies, both regulatory and controlling ones, play
a crucial role in strengthening the rule of law and supporting free
market economy. In Serbia and Macedonia, independent agencies are
a relatively new type of institutions, whose proliferation is associated
with the start of transition and the subsequent EU accession process
in these countries.
2. Unlike traditional executive agencies which operate within the
ministerial hierarchy, the independent agencies are not being subject to
the direct control of the government/ministry. Instead, the main means
of control are resting with the parliament and they usually include only
limited possibilities, such as considering an agency’s annual reports.
3. As independent agencies are not subject to hierarchical control of
the ministry or government, and due to the fact that the agencies are
not elected by citizens, a question arises as to how the independent
agencies’ accountability can be ensured.
4. Transparency is seen as a major means for advancing accountability
of independent agencies (who are non-majoritarian agencies). By
means of transparency, the agencies are able to exercise the horizontal
type of accountability, in addition to the vertical type. e “vertical
accountability” was predominant in the past and directed toward the
ministry or government, while the “horizontal accountability” is directed
toward the stakeholders, such as regulated businesses, NGOs and
watchdogs, media, citizens and so forth. Even though the stakeholders
do not have power of sanctioning the independent agencies, these actors
gain greater possibilities through increased agencies’ transparency to
contribute to better agency enforcement or to constrain their potentially
detrimental activities.
5. Besides, by means of increased transparency, the independent agencies
enhance their legitimacy, credibility and reputation among a wide array
of audiences – from politicians through stakeholders to citizens.
What the study examined and what the ndings are?
6. e study analysed the levels of transparency of ten agencies from
Serbia and Macedonia, operating in ve major regulated sectors.
Six agencies from the sample are of the regulatory type, working in
telecommunications, energy and the media sector; two agencies, those
dealing with market competition, are of the controlling type. e
remaining two agencies, from the environmental protection sector in
both countries, do not constitute independent agencies as such, because
they operate within the ministerial hierarchy. ey are, still, included in
this study, due to the rising prominence of the environmental protection
sector and because their inclusion brings certain benets in light of the
comparative methodology used in the study.
7. e analysis focuses on the content of the agencies’ ocial websites,
which is their main channel of communication and, hence, a platform
for the pursuit of transparency. e main research question was: How
many elements of transparency, out of ve in total which are constituent
to the modern systems of control, are publicly communicated by the
agencies? e ve elements of transparency include: (i) transparency
of decision-making process and decisions; (ii) transparency of rules;
(iii) transparency of regulatees’ conduct; (iv) transparency of regulators’
control; (v) transparency of received feedback. e number of elements
present on an agency’s website denes the extensiveness of the agency’s
transparency.
10 11
8. e ndings reveal that the examined agencies have exhibited
considerable variations in transparency levels. While some agencies,
like the media regulators, communicated almost all ve elements on their
websites, others made only two or three transparency elements public.
For instance, the energy regulators focused mainly on communicating
their rules and procedural details, decisions and, to a certain extent, the
information about the regualtees’ behavior in their operation of business.
9. A number of explanations were tested in order to establish the
determinants of the observed levels of transparency. ese explanations
pertain to national level (party competition), sector-level (degree of
liberalisation, information costs) and agency-level determinants (age,
resources, media exposure, de-jure independence, de-jure transparency).
To a certain extent, similarities do exist within each country and within
particular sectors. However, no “pure” and distinct cross-national or
cross-sectoral patterns could be observed. Out of all determinants, the
de-jure transparency – what an agency is legally required to publish
– shows the highest correlation with the observed levels of enforced
transparency.
10. In exercising transparency, the agencies have followed what the
legislation required them to publish. However, they have communicated
little of the other non-binding elements of transparency and, thus,
did not help advance their horizontal accountability. Having these
elements publicly released is, even though not obligatory, yet as equally
important as the mandatory ones, because they facilitate the exchange of
information between the agencies, on the one hand, and the stakeholders
and the public, on the other.
Recommendations
11. For the agencies: To pay more attention to the horizontal
accountability, which may be advanced through communicating more
elements of transparency on their websites than the legislation requires.
Recent developments concerning the work of independent agencies
have shown that, for more optimal results to be achieved, independent
agencies need to go beyond the legal-administrative understanding of
their obligations. Providing information in the way explicitly required
by the law, while perfectly legal, is insucient for achieving desirable
levels of accountability. As already stated, the possibilities for vertical
control of independent agencies are limited; therefore, the agencies need
to make an eort to provide relevant information to the interested parties
in order to enhance their horizontal control. As a nal result, this would
benet both the regulatory outcomes as well as the agency’s legitimacy.
12. For agencies’ political “principals” (government, ministries,
parliament): Since de-jure transparency turned out to be the best predictor
of the factual agency transparency, considerations need to be made as
regard broadening the set of elements the agencies must communicate
publicly. By spelling out more elements of transparency as obligatory
for agencies to communicate via their websites, the legislation would be
supposed to increase the overall levels of agency transparency. Yet, since
preparing and releasing a broader set of data can be more resource- and
time-consuming, the legislators should consider increasing the agency’s
resources as well.
Regardless of the legislative requirements, the principals should
additionally encourage the agencies to go beyond their formally prescribed
responsibilities. If the need for such practices is regularly communicated
and advocated from the political level, they would have greater chances
of being implemented. Political institutions should, therefore, insist that
accountability, especially in a context where no hierarchical control exists,
is not exhausted through submissions of annual reports. It needs to be
realised horizontally as well, through extensive provision of information
to the wider public.
13. For the media: To devote more attention to the work of independent
agencies, as these get place in the media mainly in the wake of high-prole
scandals. It should be noted that agencies’ work encompasses much more
than single decisions that trigger public outrage or erce political battles.
12 13
In order to engage the public opinion that is more critical and capable
of contributing to and controlling the agencies’ work, the media need to
follow the agencies’ work in a prompt, thorough and a more extensive
manner. Such reporting would include the details pertaining to as
many elements of transparency as possible. Although the level of media
exposure does not seem to shape the degree of agencies’ transparency,
better quality of media coverage on agencies’ work may, nevertheless,
contribute to creating a better informed public.
14. For external evaluators (e.g. EU): Independent agencies, in general,
are regarded as being detached from the political institutions. e present
analysis shows certain dierences between the agencies’ transparency
in Serbia and Macedonia, but the within-country similarities are not as
strong as to make up clearly distinct national patterns. e similarities,
still, suggest that the various levels of partisan competition observed
in the case studies may have been, to some extent, the drivers of the
dierent levels of transparency in the two countries. In other words,
the partisan life and hence the institutions occupied by political parties,
may have exerted some – either direct or indirect – inuence on the
agencies’ work. e question then arises as to what degree the agencies
are de-facto independent. External evaluators might want to focus their
future evaluations and reports on this aspect of the regulatory reform in
Serbia and Macedonia, by analysing the agencies’ transparency and also
by including the stakeholders as relevant sources of evaluation. True,
majority of the external evaluators, in their previous reports, commented
the work of main regulators’ in the region and their transparency.
However, the focus of such documents was only on major decisions and
scandals, whereby a wide range of the relevant issues has been neglected.
Part I
1. Introduction
Over the course of the last couple of decades, independent agencies
have become prominent actors in shaping the practice of governance
around the world. ese agencies have assumed the roles once performed
by government, ministries, or bodies hierarchically subordinated to
them, such as delivery of public services, regulation of newly liberalised
sectors and performing controlling tasks over other parts of the
administration. eir work, thus, has had important implications for
the political, economic, and social life.
Depending on the reform trajectory undertaken (Pollitt and Bouckaert,
2004), some transition countries have been more and others less keen
“agenciers”. Yet, to a lesser or greater degree, almost all democratic
countries around the world embraced agencication in the last couple
of decades. For instance, the United Kingdom had about 600 such
agencies amassed in 2004, United States more than a thousand agencies,1
Sweden over 100, and there had been about 60 of them in Ireland (Vibert,
2007: 18). Independent regulatory agencies (IRAs) - a class of independent
agencies that have gained prominence following the rise of the so called
regulatory state (Majone, 1994) from the 1980s onwards - spread rapidly
as well. In Western Europe, only from 1980 to 2002 the number of IRAs
went from 15 up to about 90 (Gilardi, 2008: 113). Moreover, in 1977
there were only two IRAs in two major regulated sectors - electricity
and telecommunications, while in 1999 their number amounted to
about 80 (Levi-Faur, 2004), with many more today. For only two decades
independent regulators, as an institutional model, had gone a long way
from being an exception to representing a regularity in democratic
societies.
1 Note that the agencication in the United States had two major waves, one before
WWII and the other following WWII (Vibert, 2007: 17-18).
14 15
Independent agencies, as the adjective “independent” alludes to, are
organisationally separated from the government and ministries. Based
on the legislative arrangement, independent agencies are designed to
enjoy autonomy concerning their personnel, organisational, nancial,
and policy decisions and are not subject to permanent hierarchical
oversight by the executive, i.e. government and ministry. Independent
agencies are now subject to limited control;instead of traditional
hierarchical oversight there are now only “minimal”ex-ante and ex-post
means of control.
Compared to the traditional modes of governance, the setup behind
independent agencies arguably leads to several advantages. Credible
commitment, greater eciency, lesser politicisation or blame-taking
(atcher and Stone Sweet, 2002: 4), have all been cited as the qualities
that independent agencies are expected to bring about. ese qualities
can all be linked to lesser susceptibility to political attentions, especially
to lesser vulnerability to the vagaries of political-business cycle.
Credible commitment is important for ensuring policy stability (Gilardi,
2005; atcher and Stone Sweet, 2002). While political institutions,
such as ministries, may change the terms of operation within a specic
sector - due to electoral calculations - even when this decision is
detrimental and unsustainable in the long-run, independent agencies
are assumed to be driven by professional considerations, which make
them less exposed to political calculations. As non-elected actors, who
do not need to win the popular support, independent agencies are
expected to be better-placed to decide on the future course of a policy,
based mainly on expertise and professional considerations (Majone,
1997: 153-154). is is particularly important in the eld of regulation
where major investments, many of which feature high “sunk cots”, can
be severely damaged if the rules of the game get slightly changed (Coen
and atcher, 2005). To sustain the ability of planning with a view to
longer horizons, independent regulatory agencies have been suggested
as an optimal solution which would prevent tempering of political actors
with regulatory policies.
Independent agencies are argued to be more likely to develop expertise,
which then leads to more optimal policy outcomes (atcher and Stone
Sweet, 2002: 4). is assumption is based on the fact that agencies may
fully focus on their own eld of work, devoid of daily politics, distractions
and multiple pressures that occur in a political environment. For example,
an ombudsman’s oce can direct all its resources and attention to
examining whether various bodies within the public administration
observe citizens’ human rights; a telecommunications regulator has all
preconditions to focus on developing expertise in the elds of
telecommunications and internet technologies, without daily pressures
to engage in political battles that may be lucrative in political terms. In
that sense, independent agencies are argued to be able to yield more
ecient policies.
Independent agencies, particularly regulatory ones, can serve as blame-
taking actors who make less popular, but optimal decisions (Rose-
Ackerman, 2010: 179). Oce-seeking politicians may be reluctant to
adopt measures that are not supported by the majority of citizens, even
though they may believe that those measures represent the best choice.
A case in point is the price of electricity. No electorate prefers rises in
electricity prices, yet sometimes they must be made. If an energy
regulator has competence over this question, then politicians may deect
the blame to the regulator arguing that there is nothing the government
can do because of the constellation of jurisdictions.
Despite the advantages, some of which we summarised above, the model
of independent agency has not escaped criticism though. Institutional
capture, by vested interests and powerful business groups, has been one
source of concern relating the work of agencies. Fears could be heard
that agencies, as bodies unaccountable to the citizens in sense of direct
16 17
electability, can easily dri into policies that suit a narrow circle of
people whose interests do not concur with the public interest (Laont
and Tirole, 1991). Another concern points to so called bureaucratic
dri (Lodge, 2004: 126), a situation in which the agent (i.e. the regulator)
dris from the principal’s (parliament, government) intended policy
and enforces what had not been part of the initial “contract” which set
the terms of the delegation of powers. On a more general level, “the rise
of the unelected” (Vibert, 2007) has led to concerns about democratic
decit and lack of legitimacy.
2. Accountability and transparency
Accountability of independent agencies has been mentioned as a key
concern in the literature (Scott, 2000). e challenge lies in ensuring
agencies’ accountability whilst they operate “at arm’s length” from the
government (Majone, 1994). Questions have been raised as regards
how to ensure that those agencies are working in the public interest
and how to prevent, or ameliorate, capture by vested interests. Since the
government has no control leverage over these agencies – relying instead
on limited means of ex-ante control (McCubbins et al., 1989: 434) - what
other mechanisms can be employed to enhance the accountability of
independent agencies?
Advancing the so called “horizontal accountability” is seen as an
alternative way of controlling independent agencies. As O’Donell puts
(1998), institutions may not only be controllable by hierarchically
superior instances (which amounts to “vertical accountability”), but
they can also be subjected to “horizontal controls” by the groups that do
not command formal political authority over the agency. ose groups
include citizen organisations, business associations, institutions at the
same hierarchical “level” as the agency, media, watchdogs and the wider
public. Such controls, of course, do not rely on sanctions and stringent
measures that can be taken against an agency (Schillemans, 2008: 177).
However, they can enhance or undermine the agency’s legitimacy, they
can question or boost its credibility, thus posing certain obstacles to
the agency’s detrimental conduct. In that sense, in the absence of strict
hierarchical tools of control and the lack of possibilities for the exercise
of vertical accountability thereof, advancing the horizontal accountability
is an alternative that may enhance agency accountability.
Transparency is regarded as a key mechanism through which the
horizontal accountably gets advanced (Scott, 2000). Transparency can
be dened as including both assessability of and accessibility to one’s
work (Lodge, 2004: 129) and refers to the provision of information about
one’s work to the wider audience. For horizontal accountability to be
eective, we need information about an agency’s conduct in order to
be able to make judgements concerning its performance. “One of the
key ideas regarding transparency is that the more light that is shone on
particular aspects of decision-making, the less space there will be for
corruption”(in Baldwin et al., 2011: 340).
Delineating accountability from transparency is not without its
diculties. Even though accountability can be characterised as a broader
phenomenon than transparency, the two terms have oen been used
interchangeably. is suggests that accountability and transparency are
oen understood as interdependent, even overlapping concepts with
similar impact (see, for example, Scott, 2000; Lodge and Stirton, 2001;
Lodge, 2004). ey may even be called the ipsides of the same coin. On
a general level, transparency can be seen as a key mechanism for pursuing
accountability, though the accountability is by no means exhausted solely
by the exercise of transparency. Agencies can be subject to various codes
of conduct and external evaluations – conducted either by political
institutions such as parliament and government, or professional ones,
such as auditors, or even broader by citizen assessments - which all makes
up additional means of accountability. Yet, transparency does represent
the cornerstone of accountability and is typically a precondition for
18 19
deployment of other forms of accountability. erefore, transparency can
add to the prospects of a successful exercise of horizontal accountability
through empowerment of citizens, regulatees, watchdogs, media, external
evaluators and other actors, who can take action based on the available
information about a regulator’s particular action.
3. Transition states
Countries in transition, such as those from the region of Central
and Eastern Europe (CEE), have undergone an extensive and rapid
process of agencication. Main reason for that is that establishing
independent agencies is stipulated by the acquis communautaire as one
of the conditions for progressing in the EU accession process when it
comes to dealing with certain prominent domains (Van iel, 2011: 21;
Nemec et al., 2011: 146). ose transition states proved in the 2000s
to be even more zealous “agenciers” than some pioneers of the New
Public Management reforms which are based on agencifciation as a
major process in restructuring the public sector (Van iel, 2011: 16).
It is important to mention that this rapid and extensive spread of
independent agencies across the CEE region had been compounded
by contextual peculiarities. e process of agencication unfolded
concomitantly with major socio-political transformation processes, such
as democratisation, institution-building, strengthening of the rule of
law and so forth (Musa and Kopric, 2011: 34). Since the transformation
processes in CEE were characterised by high-speed reforms, the time
and possibilities for careful planning of institutional reforms had been
very limited. Moreover, reduced funding and depleted state capacities
for nancial and material support oen burdened the agencies’ workin
developing countries (see, for example, McAllister’s study of two Brazilian
environmental regulators; 2010). e reforms took place in a context
characterised by the legacy of increased politicisation and centralisation
(Goetz and Meyer-Sahling, 2008: 12-24), in an environment of greater
party control over the economic and societal resources (Grzymala-Busse,
2007; O’Dwyer, 2004) and with de-facto narrower distance between
the agencies and government, particularly in smaller states (see, for
example Kopric et al., 2012). Based on that, it is not surprising that the
concern about accountability of independent agencies has been one of
the pressing issues relating to the governance in the transition region
of CEE.
e region of South-East Europe (SEE) shares many commonalities
with CEE due to similar legacies and challenges (individual countries’
specics should not be disregarded, though). e challenges associated
with the work of independent agencies (Kopric et al., 2012) are part of
these commonalities. In that sense, examining the work of independent
agencies, and especially their transparency and accountability regimes,
merits particular professional and scholarly attention.
In this study, we focus on Serbia and Macedonia as two representatives
of the Western Balkan region. Serbia and Macedonia are so called new
democracies. Both aspire to join the EU and, in that respect, they can be
named as “belated Europeanisers”.2 Currently, Serbia and Macedonia are
undergoing a so called second transition and are facing many challenges
related to the rule of law and other aspects of institutional reforms.
Enhancing the work of independent agencies and also improving the
regulation seems to be among the priorities for both countries in the
period to come.
As it was the case in CEE, Europeanisation appears to be the key driver
behind the creation of the majority of the independent agencies and
2 Macedonia was granted the EU candidate status in 2005 and Serbia in 2012.
20 21
IRAs in the Western Balkans (Kopric et al., 2012) including Serbia and
Macedonia. European Commission’s Progress Reports about Serbia and
Macedonia repeatedly stipulate that the establishment of independent
(regulatory) agencies, as well as support of their independence and
promotion of their ndings, are among the requirements for the countries’
progress in the EU accession process (see European Commission, 2014a).
While the legislative part of the reforms has been more or less successful
- in terms of having independent agencies and regulators set up across
a variety of sectors - the practice of their enforcement, however, has
showed many weaknesses. e most prominent obstacles include: rstly,
a highly politicised environment which pays little regard for the role
and position of independent agencies and secondly, a chronic under-
resourcing of the agencies.
At the same time, the widespread perception of independent agencies
is highly negative in the region. ey are oen portrayed in public
discourse as proigate and redundant institutions (similarly to what has
been the case in Croatia; see Musa and Kopric, 2011: 47)3, serving the
interests of political elites and the big businesses, rather than making a
positive contribution in the interest of citizens. Little is, actually, known
about the work of the independent agencies in Serbia and Macedonia,
reason being the lack of public debates and the low degree of visibility
of the majority of independent agencies in the two countries. Certain
questions inevitably arise: Is this due to the lack of interest of the media,
who predominantly inuence citizens’ opinion and interests? Or, is
3 e following few newspaper articles, from Serbian daily Politika, well illustrate
this sort of widely shared attitude:
www.politika.rs/rubrike/Ekonomija/Drzava-jos-okleva-sa-ukidanjem-agencija.
lt.html
www.politika.rs/rubrike/Ekonomija/Namnozili-agencije-a-kriva-nam-Evropska-
unija.lt.html
www.politika.rs/rubrike/Ekonomija/Agencije-ukinute-budzeti-preziveli.lt.html
it again the lack of initiative by the agencies themselves to reach the
wider public?4
Given the general experience from the OECD world concerning the
accountability of independent agencies and the lack of it, with the
aforementioned compounding specics of transition states in mind,
another question can be asked: Have the agencies in Serbia and
Macedonia been accountable? More specically, what are the models of
transparency enforcement of independent agencies in the two countries?
is publication aims to contribute to the study of enforcement of agency
transparency, as a key component of accountability enforcement, in
less developed regions. e issue is approached through an analysis of
the models and determinants of transparency observed in ten Serbian
and Macedonian agencies.
4. Research questions and objectives
In this study, we look into the transparency of ten Serbian and
Macedonian agencies in ve regulated sectors. e analysed agencies
include regulatory ones, controlling agencies and those that are not
independent, i.e. which are not at arm’s length from the government
or ministry.5 e research will be guided and centred by the following
research questions:
4 e representatives of the agencies in Serbia and Macedonia, who attended the rst
round-table within this project held on 20 December 2014 in Belgrade, unanimously
concluded that the media showed no interest in their activities. ey also added
that, apart from major scandals, no other topic related to their work could possibly
generate public discussion.
5 Note that independent agencies can be classied into several groups. For example,
one such classication is on: (1) service providers; (2) risk assessors; (3) boundary
watchers; (4) inquisitors; and (5) umpires and whistle-blowers (Vibert, 2007: 20).
We make a distinction between independent agencies without regulatory powers
and independent regulatory agencies (IRAs). We include in the sample two agencies
that are not independent, that is they operate under direct ministerial hierarchy;
those are Agencies for Environmental Protection in both countries.
22 23
• How transparent the ten agencies are?
• What explains the given levels of transparency?
In order to answer these questions, we rst seek to gauge the level of
the agencies’ transparency by using a framework pointing to several
important aspects of transparency and accountability (Lodge and Stirton,
2001; Lodge, 2004). ereaer, we will seek to pinpoint the determinants
of the observed transparency levels across the ten agencies.
e publication oers both conceptual and empirical contribution.
Conceptually, the study applies a previously developed framework
for mapping doctrines of transparency and accountability, with one
important extension. Rather than looking at transparency doctrines,
which are determined not only by the conduct of the regulator but also
by the regulatees and citizens, we examine the level of transparency. In
other words, we look at how extensive the transparency of an analysed
agency has been rather than what sorts of style (or elsewhere named
as transparency doctrine) has been pursued in practice.
On the empirical side, the study explores and identies the types of
transparency regimes of the analysed agencies. Moreover, the study tests
whether certain factors - inuencing institutional behaviour - can be
considered as determinants of the observed regimes of transparency. We
contrast agency-level to sector- and country-level factors when seeking
to pinpoint the drivers behind the dierent transparency regimes.
5. Policy signicance
In addition to its contribution to scholarly literature, this study has
policy signicance as well. Independent agencies, including regulators
as one of their sub-types, have been overlooked in both public and
scholarly debates in the South East Europe (SEE) region. Apart from
the negative narrative portraying the independent agencies as proigate
party “subsidiaries”, little reection has been made so far, by experts and
general public, on previous experiences or challenges and opportunities
the agencies have been dealing with. It is not surprising, therefore, that
policy recommendations or agency and regulatory studies have been
scarce in the region so far. While not surprising, this fact is certainly not
encouraging for the prospects of good governance in the SEE region,
given the important role that the regulatory and other independent
agencies need to play in market reforms and in the overall societal
transformation processes.
In this regard, our study seeks to contribute to the opening of the
agenda concerning independent agencies and regulators in Serbia and
Macedonia - one of many agendas that can foster an informed and
evidence-based debate on this issue. By means of this study and through
the concomitant activities within the project “Are Regulatory Agencies
in Serbia and Macedonia Accountable and Transparent?” we seek to
encourage research and debate about the independent and regulatory
agencies in Serbia and Macedonia. e issue of transparency, which
is the focus of this paper and one of the pressing issues in the two
countries, is only one of many aspects that future research, professional
and public debates might be interested in addressing. Based on our
knowledge of the regulatory literature, fresh approach and new ideas
would be welcome on the topics of independent agencies’ resources,
adoption of best comparative practices, key trends and policy transfer
from the developing world to not yet fully-edged democracies, as well
24 25
as regulatory impact assessment, the challenges posed by the rapid
technological, societal, and environmental changes, and many other
questions.
Most of the institution-related research on the SEE region has focused
either on the central political institutions, such as government, ministries,
parliament, or on political parties as major entities that serve as
recruitment centres for lling up the formal institutional positions.
However, there is more to governance than the policy making and
implementation from the central political level. In fact, it is the rest of
the institutions that make or should make a key contribution to the
functioning of transition democracies. As a remark to the widespread
belief that performance of a government, as a central executive body,
crucially aects the transition outcomes, we remind that the delivery
of policies as well as policy outcomes are contingent upon the work of
the civil service and administration as well. It is important to add that,
even though non-majoritarian institutions are not crucial players in
enacting legislation and setting the course of policy development at
the highest level, they are indispensable actors in eective delivery of
public services.
e outcomes of this study include policy recommendations, which
are based on ndings about the current transparency levels and which
also make use of the ndings about the determinants of the given
levels of transparency. e recommendations aim at a wide variety of
stakeholders, including:
• the agencies – the examined ones in particular, but also more
than a hundred of other agencies - which are not included in
this study due to the limited timeframe and span of the project;
they can all benet from the conclusions and recommendations;
•
agencies’ “principals” – include parliamentarians in the rst
place, as they are currently the only ones who hold formal -
though limited - controlling leverage over the agencies. But the
study also aims at the government and ministries, who set the
pace of the legislative agenda and who are generally seen as the
de-facto principals of the agencies;
•
policy entrepreneurs – non-governmental organisations,
watchdogs, whistle-blowers, or active citizens; their role of
intermediaries between the institutions and the general public
is indispensable in communicating the spotted deciencies and
opportunities in the work of agencies;
• external evaluators - such as the European Union or other
regional and international initiatives who analyse the
governance processes in Serbia and Macedonia.
6. Conceptualising transparency regime
ough being extensively discussed both in practice and literature,
transparency has rarely been operationalised. Studies point to an
extensive list of issues concerning the phenomenon of transparency
such as its role, its challenges and potential eects (Hood, 2006; Meijer,
2013), elucidating the link between transparency and the broader
question of governance and citizenship (Lodge and Stirton, 2001).
Signicantly fewer accounts, though, have suggested how to measure
agency transparency in practice (but see, Koop, 2014).
Traditional accounts of transparency, associated with legal-administrative
perspective, placed an emphasis on the decision-making and procedural
details (Lodge 2004: 128). According to this approach, an agency’s
transparency can be measured by assessing to what extent the details
on the agency’s decision-making, rules and procedures are made public.
26 27
More recent accounts, however, criticise this approach for being dated
and incapable of capturing the crucial aspects of modern regulatory
regimes. Lodge (2004), for example, argues that transparency systems
should be treated as general systems of control consisting of the following
elements: (i) standard setting; (ii) information-gathering; and (iii)
behaviour modication (as set out by Hood, 1983: 3-4). Based on that,
adequate concepts of transparency should include elements pertaining
to each of these dimensions of control and, in particular, the following
ve elements (Lodge 2004: 128):
•
transparency of the decision-making process: Are decisions
made known to the public?
• transparency of the rules: Are the rules of the game clear and
spelled out by the regulator?
•
transparency of the regulated entities: Can the public get
information about the regulatees’ conduct?
• transparency of the regulator’s conduct: Can the public nd
out more about the work of the regulator herself?
• transparency of the feedback: Does the public have access to
the content of the regulatees’ or other stakeholders’ feedback to
the regulator’s decisions?
e last three elements, which are added to the list, by no means make
reference to a trivial matter. On the contrary, they point to the processes
that have profound implications for the policy outcomes, rights, duties
and the pay-os of parties involved in and aected by the agencies’
enforcement. How the regulatees behave, what the regulator6 does in
6 Please, note that occasionally we use the term “regulator” rather than an “independent
agency”, when the point can be made for independent agencies regardless of whether
they are regulatory or not. e reason for referring to “regulators” or “regulatory
policies” in this case is that we draw on other authors’ work focused on regulation.
its day-to-day practice, and what the feedback is by those aected or
interested in the regulatory policy, all these elements may shape the
policy process itself, may shi its direction and consequently lead to
dierent results. erefore, being fully informed on these additional
three elements is as equally, if not more, important as being aware of
the rst two elements, which are decision-making and rules/procedures
related ones. We, therefore, nd this ve-pronged framework a suitable
heuristic device for analysing the Serbian and Macedonian agencies’
transparency.
As mentioned above, we are interested in the transparency levels of
the analysed agencies, while the doctrines underlying the transparency
regimes are not the focus of our study. Transparency doctrines are
shaped by the agencies themselves, but also by the regulatees, customers,
citizens and other actors. In that sense, we will not look into the tools
that have been integral to the application of the ve elements of agency
transparency in practice. While relevant, this question goes beyond the
scope of this study. We are interested, instead, in nding out whether
the agencies have communicated all ve elements to the wider audience.
One may assume that all ve components are by default present in an
agency’s transparency pattern; however, there is no empirical evidence
supporting such a claim. Given the challenges and the hindering factors
set out above, there is a reason to believe that especially outside the
OECD world – in developing countries and new democracies - agencies
exhibit abridged forms of transparency. We name as “abridged forms”
those transparency regimes that feature fewer than the ve elements
which comprise the conceptual framework we draw from. For example,
an abridged transparency regime can feature a combination of the rst,
second, and h element, rather than having some of the “fuller” modes
of transparency consisting of all ve, or four out of the ve elements
from the spectrum.
28 29
erefore, our rst question – To what extent are the agencies transparent?
– can be rephrased in the following way: Do the agencies’ transparency
patterns include all ve elements or some “limited” forms of transparency
can be found in practice?
Aer we measure the levels of transparency of the ten agencies, we will
proceed to the examination of their determinants.
7. eorising Determinants of Transparency Regime
e accounts of institutional behaviour which we draw from the
comparative regulation and agency literature can be divided into
agency-level, sector-level, and country-level explanations. e remainder
discusses these factors and sets out the hypotheses on how the factors
may impact agency transparency.
Agency-level explanations
Agency-level determinants, which represent independent variables in
this analysis and can potentially explain the observed levels of agency
transparency, include: age, resources, media exposure, formal (de-jure)
independence, and de-jure transparency. Now we will consider all of
them individually.
Age
From early works in regulation and public administration literature
(Bernstein, 1955; Downs, 1967) to later studies of organisational
behaviour (Quinn and Cameron, 1983; Levitt and March, 1988), age
has been speculated as a determinant of organisational enforcement.
More recently, Koop (2014: 570) hypothesised that nascent agencies
do have a need to legitimise themselves by providing abundant data
related to their work, while older agencies no longer need this sort of
practice because their credibility and legitimacy have already been
established. Following this logic, one may assume that older agencies
tend to be less transparent.7
H1: Older agencies tend to be less extensive in their
transparency.
Resources
Insucient resources may constrain an agency’s enforcement capacities,
particularly across the non-OECD world, as showed in McAllister’s
analysis of Brazilian environmental agencies (McAllister, 2010). No
doubt that conducting inspections and handling legal matters can be
demanding. But, is the exercise of transparency via website, as a distinct
aspect of agency enforcement, equally resource-consuming? One of the
arguments heard during the project eldwork was:
“[…] to be honest, if we have already dedicated one IT guy
to put everything up online - it takes his time and eort but
not ours, therefore more transparency doesn’t mean more
money spent by us, it is rather a part of his regular work,
say on an everyday basis, instead of once or twice a week”
and “maintaining a website is not running inspections –
it doesn’t stretch resources that much” (an anonymous
regulator’s Board member).
On the other hand, a member of a regulatory agency RATEL in
Serbia explains to what extent the updating a website with various
sorts of materials can be resource-intensive:
“We have hundreds of decisions on a monthly basis, from
telecom operators to the use of radio-frequencies by small
7 Although this assumption did not get empirical support in the given study on
Dutch agencies, we nonetheless take it as a working hypothesis.
30 31
boats and radio-stations… it needs to be scanned, sorted,
tagged and uploaded… we’re talking about thousands of
papers on a monthly basis… that’s quite a work”8.
Hence:
H2: More resources - more extensive transparency.
Number of permanently employed sta will be taken as a proxy for
an agency’s resources.
Media exposure
Regulators have been shown to be more transparent while being put
under the spotlight by the principals. rough greater transparency the
regulators seek to boost their credibility and, thus, respond to legislative
threats (Koop, 2014). We include this logic as well, except that we use
the term “media exposure” rather than “politicians’ watch”9:
H3: Greater media scrutiny leads to more extensive
transparency.
Appendix III spells out the way of measuring media scrutiny of the
ten agencies.
Formal (de-jure) independence
e way an agency behaves and the results it achieves can be dependent
on the agency’s formal (de-jure) independence (Gilardi 2002, 2009).
e independence is dened by the agency’s appointment and sacking
procedures, by its organisational and nancial autonomy and the
8 Dr Dejan Suput (General Aairs Department, RATEL), conference “Transparency
in Regulated Sectors” (20 May 2015, Belgrade, Serbia).
9 Koop (2014: 571) nds a high correlation between the number of media reports
and the frequency of politicians’ mentioning of an agency in Parliament.
exclusivity of its competencies (Gilardi 2002: 881-883). One can
argue that greater independence entails a greater need/expectation
for justication of the undertaken actions, which then leads to greater
(more extensive) transparency:
H4: e higher the de-jure independence, the more
extensive the transparency.
We measure de-jure independence of the analysed agencies with the
“Gilardi index” (2002). For full details about the index components and
how they work out in our sample, please see Appendix II.
De-jure transparency
De-jure transparency can be dened as legally stipulated obligations of
an agency to publish certain materials on the website. In this study, we
use another concept - de-facto transparency – to describe the activities
related to what agencies disclose in their practice, regardless of the fact
whether this content is obligatory or not. As the agencies can publish
more data than they are explicitly required, de-facto transparency is
therefore a broader concept than de-jure transparency.
e dierence between de-jure and de-facto transparency can be
compared to the dierences between vertical and horizontal accountability
(O’Donell, 1998). Vertical accountability, as mentioned, refers to control
of agencies exercised by hierarchically superior institutions, which is
typically parliament or government. On the other hand, a precondition
for the enforcement of the horizontal accountability - pursued by
groups not holding formal authority over the agencies - is the existence
of information based on which the interested parties can (re)act. For
the horizontal accountability to be exercised, the actors – such as
citizens, media, watchdogs, and other groups – need to have specic data
regarding the agency’s work. Such data oen go beyond the information
that the agencies communicate publicly as part of their legal obligations.
32 33
To measure the de-jure transparency of the ten agencies, we looked at the
legal provisions dening what kind of information must be published on
the websites. e coding was undertaken against the same framework
as de-facto transparency. e table below summarises the patterns:
Table 1: De-jure transparency of the agencies.10
“*” – given element is present only to some extent (partially).
Agency De-jure transparency extensiveness
RATEL (S) 1*, 2, 3*, 5*
AEC (M) 1, 2, 3, 5*
CfPC (S) 1, 2, 3*
CfPC (M) 1, 2, 3*
REM (S) 1*, 2, 3*, 4, 5*
AVMS (M) 1,2,3,4,5*
EA (S) 1,2, 3*
ERC (M) 1,2,3*
Source: Relevant legislation. For full list of the data the agencies must publish,
according to the legislation, see Appendix V. For the coding details, see Appendix IV.
As can be seen, there are variations in de-jure transparency across the
agencies. Some agencies (e.g. EA, CfPC) are required to communicate
only the rst two elements (decisions and rules related details), as
well certain but not full details about the third element, whereas other
agencies are bound by more extensive requirements going beyond the
rst two elements of transparency.
In this study, we generate a hypothesis regarding the impact of de-jure
transparency on de-facto transparency. e hypothesis (H5) assumes that
the vertical accountability, rather than the horizontal one predominates in
10 e two agencies dealing with environmental protection are excluded from the
table becasue the legislation dening their position does not impose any requirements
regarding transparency which would be enforced precisle by these agencies.
institutional settings of tradition countries, such as Serbia and Macedonia.
is means that the agencies report to hierarchically superior instances
and publish primarily those information that are stipulated by the law.
However, their communication is reduced when it comes to additional
data, which goes beyond the legal requirements. is is, however, the
data that would empower the stakeholders and, consequently, advance
the horizontal accountability:
H5: e de-facto transparency of the agencies displays
similar patterns to their de-jure transparency.
Sector-level explanations
ere are two sector-level determinates that will be tested in respect to
the IRAs transparency regimes: information costs and liberalisation.
Information costs
Information costs refer “to the level of information or expertise required
to understand an issue” (Reiss, 2009: 116). us, the more professional
knowledge is required for understanding of an issue (Reiss, 2009: 116),
the higher the costs of dissemination of information related to the
given issue will be. While certain details related to the market, such as
market operators, services, major developments and issues, can be easily
understood by the broader public, this is less of a case in other sectors.
Furthermore, citizens are in some instances likely to be overwhelmed
by abundant or highly technocratic information.11
11 Providing information on fuse boxes in the electricity sector is a case in point.
e choice between telecom operators would be the opposite example, with low
information costs. We thank Martin Lodge for providing us with these clarications.
34 35
In the event of high information costs, one can expect the regulator to
omit the elements that would contain full details, because the release of
such information may be appraised as not worth the resources. In other
words, the value of releasing the data decreases as the information cost
increases, which can be translated into a hypothesis:
H6: High information costs lead to a lower degree of
transparency extensiveness.
e domains of media and market competition can be considered as
bearing low information costs. Despite the needed expertise for decision-
making, ultimate decisions can be communicated to the wider public
without major risks of information-complexity or information-overload.
Issues from the elds of telecoms and energy, while being characterised
by highly technical details, can still be easily communicated (in a majority
of cases). Due to this inherent “technical” nature, on one hand, and the
ability to frame most of the pressing concerns into a citizen-friendly
language, on the other hand, telecoms and energy are characterised as
“medium information cost” sectors. Finally, environmental protection
seems to be bearing high information costs, highly technical and not
so graspable data.
Liberalisation
Degree of sector liberalisation may have implications for agencies’
conduct. Agencies are seen not only as protectors of the public interest,
but also as facilitators of a better business environment. In that sense,
a larger number of actors in the market can lead to more demands for
transparency:
H7: Greater liberalisation of the sector implies more
extensive agency’s transparency.
Country-level explanation
Party competition
Transition democracies are usually characterised by high levels of party
patronage, draining of state resources and party control over the social
and economic domains (Grzymala-Busse, 2007; O’Dwyer, 2004). In
those cases when political parties have shown to be in control over the
civil service, there is reason to believe that they also tend to inuence
the agencies by violating the arm’s length distance assumption. Aer all,
struggle for control over the decisions of regulators and other agencies
is nothing else than struggle for control of vast resources that circulate
and can be reaped in as lucrative sectors as energy, telecommunications,
and others.
If economic competition is taken as a potential determinant of the
regulators’/agencies’ conduct, there is no reason to dismiss political
competition as a factor either. We are examining two relatively small
countries in terms of population – Serbia about 7 million population
and Macedonia about 2 million population.12 ese countries have
predominant concentration of economic, administrative and political
powers in their capital cities, as Belgrade and Skopje make up one
third of the overall population and are home to the major political and
administrative institutions. It has been noticed that some small states in
the region, due to their size, have bigger likelihood of facing institutional
capture or political inuence over their agencies (Kopric et al., 2012: 34).
Moreover, the penetration of parties into the economic realm is deep
and political patronage networks extensive in such countries (Pesic,
2012). Under these circumstances and in addition to their normal
12 World Bank gures accessed via Google, from: www.google.co.uk/?gfe_
rd=cr&ei=nsJxVa-nD9CLoQeHkYDAAg#q=serbia+population and www.google.
co.uk/?gfe_rd=cr&ei=nsJxVa-nD9CLoQeHkYDAAg#q=macedonia+population
36 37
activities, political parties tend to assume the role of main economic
players with interests deeply rooted in particular economic sectors.
eir competition, therefore, is expected to produce similar eects as
the competition involving “genuine” economic actors.
Grzymala-Busse (2007) and O’Dwyer (2004) agree that the intensity
of party competition crucially determines the extent of patronage.
However, their assumptions dier concerning the direction of this
impact. Grymzalla-Busse (2007) holds that greater party competition
leads to lesser extraction of the public resources, while O’Dwyer (2004:
521) claims that the tougher the party competition, the bigger resources
will be extracted via the public administration, since a large number of
coalition partners have to be accommodated.
We believe that greater party competition enables greater mutual
control of the parties on one hand, and easier control of the parties by
businesses, on the other. Greater party competition and hence greater
uncertainty about who will form the future government (s), may also
result in the regulated businesses turning more to the market rather
than state-extraction logic. is is due to the fact that no guarantees
exist that they will able to operate under the model of “state assisted”
regulation for a while. Hence the regulated company may increase the
pressure on the regulator/agency to be more transparent as, under the
aforementioned circumstance, good business environment is an issue
of high priority for the company:
H8: Greater degree of political competition leads to more
extensive forms of transparency.
8. Methodology
Data
e data are collected through coding of the materials available on
the agencies’ ocial websites between November 2014 and February
2015.13 For most agencies, we analysed a random sample of about 20%
of the overall material, for the years 2013 and 2014. We assume that
the sample is highly representative of the overall communication the
agency pursued via the website, given the uniformity in the agencies’
style of communication. Namely, certain patterns hold across the same
sort of material and it is highly likely that the content of a decision,
register or annual report is structured in the same way as it is in all
other decisions, registers, and so on. When agencies oered limited
amount of information and digital material, we analysed the whole
content of their website.
Interviews were also conducted with representatives of the agencies, in
order to better understand the context of their work and the potential
determinants of the espoused levels of transparency. We conducted
seven interviews in total.14
e communication through website is not the only way of exercising
transparency. e agencies can use other channels of communication
to inform the public about their work, such as distributing newsletters
via email, publishing itemised budgets, releasing bi-annual or more/
less frequent reports, publishing external audits (Koop, 2014), being
visible in the traditional media by making public statements regularly, by
taking part in round-tables, debates and discussions, or by distributing
printed materials with the aim of reaching as wider audience as possible,
13 It is possible that some agencies subsequently uploaded new material on their
websites. However, this is irrelevant for the period observed. We consider that newly
available data do not change the history of the previous enforcement of transparency.
14 We could not reach representatives of three agencies, despite multiple attempts.
38 39
and so on. Bearing all that in mind, we still consider that the website
content is the fundamental and, hence, the most important channel
of communication in an era of Internet. While the other ways of
communication may undeniably enhance an agency’s transparency,
by no means can they compensate for a potential absence of the ve
elements in the website content. Media, wider public, political parties
– including the opposition ones as the major critique, then watchdogs
organisations, external evaluators, and regulated entities, they primarily
get informed by reading website materials, which are available to all
social groups, 24-hours a day, at no cost. No other medium can convey
as complete and extensive information as the Internet (website) can.
For these reasons we consider the website content the key proxy for an
agency’s transparency.
Just as an agency’s website is not the sole tool for facilitating transparency,
a website is not the sole means of exercising accountability either. ere
is a variety of accountability channels, such as voluntary commitments to
codes of conduct (Koop, 2014), peer-review or exposure to benchmarking
and other sorts of evaluations. Such instruments certainly add to
an agency’s accountability, but what precedes and conditions their
application is again the information concerning the agency’s conduct.
is brings us back to the issue of providing data on the agency’s
enforcement, which is operationalised in this study through the ve
elements of control systems. us, the presence of the ve elements, as
set out in the conceptual framework (Lodge, 2004), is a necessary factor
for the application of any other form of transparency and accountability
that may, no doubt, additionally strengthen the control of the agency.
It is worth reminding that, in this paper, we present and discuss the
transparency of the agencies’ work and not the quality of it. More
precisely, an institution may make all its work public, yet its on-ground
performance might be dismal; and reversely, an agency that is non-
transparent is by no means predetermined to be a poor performer.
erefore, by noting that an agency has achieved higher or lower
degree of transparency in its work, we are not assessing the agency’s
performance in normative terms (although transparency is generally
considered a contributor to good governance).
Case studies, which are contained in Part II of the publication, are
presented in sectoral order; rst comes the Serbian and then the
Macedonian agency in a given sector. In Part III – “comparative analysis”,
a comparative review will be presented discussing the country, sector,
and agency patterns than may potentially be observed.
Coding had been undertaken in the following way. For each task or
jurisdiction of an agency, we coded the data about those elements of
transparency that have been identied in the website material. e
coding followed the order of tasks/jurisdictions presented in the agencies’
annual reports or legislation. We rst looked at an agency’s annual
reports to identify its activities and thereaer we sought to nd which of
these activities have been published on the website. For the purpose of
comparison between the agencies, we looked at the 2013 annual reports
for all agencies (please, note that not all agencies published their annual
reports for 2014). Full details of coding are available in Appendix IV.
Based on the observed presence of each of the ve elements, we made
decisions whether the given element can be coded as overall “present”
in the agency’s enforcement of transparency.
As it usually goes, some approximations and simplications were
inevitable. For example, one agency can feature the h element,
named as transparency of feedback, in several of its jurisdictions but
not in all of them. Whether this element will be coded as “present” in
the overall summary of the agency’s work depends on an assessment
of how crucial the given jurisdiction for the overall agency’s mission
is; e.g. “international cooperation” is secondary to “deciding about
market monopolies”. Such instances of “mixed” presence of certain
40 41
elements across the jurisdictions were cross-checked by at least one
more researcher and subsequently agreed upon jointly. Moreover, the
cases that could not be assigned the “present” or the “absent” value
were named as “partially present” and marked with the “p” sign in the
table. Lastly, we looked at the frequency of the element appearance,
i.e. whether it appears systematically or only periodically in the overall
body of materials. For example, if an agency made 100 decisions during
a year and published only 10 of them, this would be coded as “absent”
despite the fact that actually 10 decisions have been published.
Case Selection
e study analyses ten agencies operating in ve major policy sectors -
market competition, telecoms and IT, media, energy, and environmental
protection - in Serbia and Macedonia. e case selection is based on
the following criteria. Firstly, we selected ve major regulated sectors
which frequently appear in the literature on developed states’ agencies.
Free market competition is widely regarded as a key precondition for
economic development and as such represents one of the most important
concerns in modern liberal-democracies. Market competition, aer all,
has been the cornerstone of EU since its inception. Telecoms and IT
is probably the fastest growing sector, where the role of regulators has
been highlighted as essential to fostering technological development.
is sector championed the EU and world liberalisation toward the end
of the 20th century (Humphreys and Padgett, 2006). Energy is another
key domain, especially given its geo-political and strategic importance
as a resource. e work of regulators in energy policies has been subject
to increased scrutiny because, unlike telecoms, this sector has been
more resistant to liberalisation (Eising, 2002). Moreover, energy is
among the most important and pressing questions within the EU (see
for exampe, European Commission, 2011). Media are inextricable
ingredients of democratic societies and as such their regulation deserves
particular attention. Finally, there has been an increasing emphasis on
environmental protection, on global, EU, and national level. Truth,
environmental protection has been devoted insucient attention in
developing countries. However, this area will be part of the reform
agenda in those countries and promoted by external actors. In Serbia
and Macedonia, for example, the environmental issues are mainly
addressed in the context of the EU accession process.
Aer discussing the selection criteria for the ve sectors examined in this
study, we proceed to the discussion about the nature of the examined
agencies. In this study we focus on the agencies operating in these ve
sectors regardless of their organisational form, i.e. whether they are
independent regulatory agencies by strict denition, or they take the
form of controlling or executive (semi-autonomous) agencies instead.
ey, namely, all operate in the domains that are highly regulated and
increasingly salient, particularly in the context of EU integration. As
such, they face similar challenges, demands, and pressures concerning
everyday work including the exercise of transparency. erefore, whether
one agency is regulatory or controlling or executive is not expected to
make a crucial dierence when it comes to the outcome we are looking
at (apart from the factor of de-jure independence). Six out of the 10
analysed bodies – the energy, telecoms, and media regulators – feature
the IRA model; the two agencies responsible for market competition are
controlling agencies, and there are two executive agencies which operate
within ministerial hierarchy (these are the environment protection
agencies in both countries) (see Table 2). e inclusion of the last two
non-“non-majoritarian” agencies enables comparisons of whether the
“non-majoritarian” status itself aects the transparency regime, since
the level of de-jure independence is one of the explanatory variables.
42 43
Tabl e 2. ree categories of agencies in the analysed sample.
Independent agencies Agencies subordinated to
ministry
Independent regulatory
agencies (IRAs) Controlling agencies Executive agencies operating
under ministerial hierarchy
Energy Agency (Serbia)
Commission for
Protection of
Competition (Serbia)
Environmental Protection
Agency (Serbia)
Energy Regulatory
Commission(Macedonia)
Commission for
Protection of
Competition
(Macedonia)
Directorate for Environment
(Macedonia)
Regulatory Agency for
Electronic Communications
and Postal Services (Serbia)
Agency for Electronic
Communications
(Macedonia)
Regulatory Authority of
Electronic Media (Serbia)
Agency for Audio and
Audio-Visual Media Services
(Macedonia)
e given setup allows for a great variety of the independent variables’
constellations, that is a high number of combinations in their values.
ere is a full variation in the level of liberalisation, media exposure, and
several other variables, which maximises the testing potential of those
variables on the observed outcome. Due to the context specics, some
other independent variables cannot exert a full variation. For example,
agency’s age is bound to be “low” due to a relatively recent date of the
launch of agencication reforms; likewise, the agency resources are not
expected to be ”high” in this early stage. Yet, these variables of limited
variation, in combination with the variables that exert full variations,
ultimately provide for abundant comparative opportunities.
Research Methods and Comparative Strategy
e study employs case study method in measuring the transparency
levels of the 10 agencies. Case study approach allows the detailed
examination of one aspect of the cases under investigation (George
and Bennet, 2005: 5). It may also lead to testing existing explanations
or developing new ones, which could be generalised to other cases of
the same type (George and Bennet, 2005: 5). When it comes to our rst
research question – focused on identifying the levels of transparency -
the intention is not to generalise, but rather to measure the outcome of
interest. Yet, the ndings about the ten agencies’ levels of transparency
may be a hint or a starting point for future research on other tens of
agencies in Serbia and Macedonia, which were not selected for the study.
Should “abridged” forms of transparency be found, this might mean
that a number of other agencies in Serbia and Macedonia have enforced
a similar form of transparency by using only some – and not all ve -
elements of transparency. is would certainly be a useful indicator for
policy recommendations. e things work the other way round, too.
Should full or “fuller” forms of transparency be observed – the forms
involving all ve elements or four out of ve – it might be a good indicator
that, contrary to the general assumptions, the agency transparency is not
an issue of concern in the examined cases. As we mentioned above, this
study analyses diverse sectors and includes various models of agencies,
such as independent non-regulatory, independent regulatory and non-
independent agencies. us, the validity and reliability of the study
lend credence to the claim that the conclusion could be turned into a
44 45
tentative generalisation for the overall universe of agencies in Serbia and
Macedonia which can be tested on other agencies thereof in the future.
In addressing the second question – about determinants of transparency
levels - we go beyond case-study approach. Our sample, which includes
two countries, ve sectors, ten agencies in total, is suitable for a
compound research strategy (Levi-Faur, 2004), based on cross-country
and cross-sector comparisons. We seek to identify sectoral and national
patterns which then may be indicative of the impact of sector-level or
country-level variables. If distinct sectorial or country patterns cannot
be observed, and if there is a variation in the dependent variable, one
of the following explanations is possible:
• some of the agency-level, rather than sector- or country-level
explanations, oer(s) a plausible account of the variation in
the dependent variable;
•
none of the factors (from the three groups: agency-level,
sector-level, country-level) oers a plausible explanation for
the observed outcome variations; therefore we either failed to
include a powerful explanatory factor in our hypotheses or the
transparency regime is more ad-hoc driven rather than by some
underlying logic.
Should a lack of variation in the dependent variable be observed, it
would signify the absence of variation in the key independent variable
(hence identical outcomes). What remains to be done in such a scenario
is to identify that particular key independent variable and uncover the
underlying mechanism of its impact on the dependent variable. ere
might be several variables which exert no major variations and they
will all feature as the “prime suspects”.
is research strategy is useful in uncovering cross-agency, cross-
sectoral, or cross-national variations, which then may point to particular
factors explaining the transparency levels. However, we need to admit
that the strategy bears certain limitations. Ten cases, across ve sectors
and two countries, do oer a basis for comparisons that can identify
potential causes of the observed outcome. e sample, though, is too
small for drawing rmer conclusions. In that sense, if liberalisation,
agency independence or political competition appear as promising
explanatory factors, it still does not mean that the inclusion of additional
sectors would not lead to dierent results, diminishing the initial
factors’ explanatory power. erefore, by seeking to identify the causes
of the various transparency levels of the agencies, we are interested in
coming up with explanations that may be applied to other non-observed
agencies. Yet, our conclusions should serve only as tentative directions
before making any broader generalisations. Rather than claiming their
prowess, we should further test the ndings, both on other countries
in the region, e.g. Montenegro, Croatia, or Bosnia & Herzegovina, and
on other sectors, such as regulation of medicines, food safety, water
management, airline industry and so forth.
In summary, we are interested in two key concerns in this study: (i) to
identify the patterns of the ten agencies’ transparency; (ii) to consider
which factors may have determined these patterns. To measure the
agencies’ transparency, we use a ve-pronged framework developed
by Lodge (2004). e framework points to ve major elements that
should be included in considerations of regulatory (and hence agency)
transparency: (i) decision-making; (ii) procedures/rules; (iii) regulatees’
conduct; (iv) regulators’ controls; (v) received feedback. How many of
these elements have been present on the agencies’ websites indicates
46 47
how transparent they are. We will also try to pinpoint the causes behind
the dierent levels of agency transparency, by looking at three sorts of
explanations. Firstly, there are agency-level explanations, which include
the characteristics of individual agencies, such as their age, de-jure
independence, resources, de-jure transparency and media-exposure of
the institution. en, the second-level explanations consider the level
of information costs and the degree of liberalisation as two potentially
determining factors. Lastly, the country-level explanations focus on
party competition at the national level.
Part II
9. Case studies
is section of the paper analyses transparency regimes of the ten
selected agencies. Before looking at the data concerning the analysed
transparency enforcement, a brief overview of the agencies’ origins,
institutional status and mission will follow.
Regulatory Agency for Electronic Communications and Postal
Services (RATEL, Serbia)
Serbian sector of telecommunications has been regulated by an
independent regulatory agency RATEL. e existence of this Republic
Agency for Telecommunications dates back to 2005 aer the adoption of
Law on Telecommunications in 2003.15 e Law said that the functions
over the telecommunication sector are delegated as follows. e
political functions, that is formulation of policies, and the operational
functions, which include formulation of strategies, are entrusted to the
Government and competent Ministry.16 e regulatory role, instead, is
delegated to the Agency for Telecommunications.17 is Agency went
through several changes stipulated by the Law amendments, but it has
remained the only regulator in the telecommunication sector. In 2010
Electronic Communications Law renamed from the Republic Agency
for Telecommunications into RATEL (Regulatory Agency for Electronic
Communications) and advanced its jurisdictions. More recently, in
2014, RATEL merged with the postal regulator RAPUS.18 So, RATEL’s
competencies have expanded over time.
15 RATEL: Market analysis for 2007, from: http://www.ratel.rs/editor_les/File/Pre-
gled_trzista_telekomunikacija_u_RS_u_2007.pdf
16 RATEL’s presentation: Tasks, Jurisdictions, and Commencement of work,
from: www.ratel.rs/upload/editor_les/File/Prezentacije/RATEL_prezentacija_
TELFOR_2005.pdf
17 Ibid.
18 Postal services are however excluded from this study; we largely use the data
before RATEL’s merger with the postal regulator.
48 49
According to Article 8 of the applicable Electronic Communications
Law, main RATEL’s tasks include:
• adopting ordinances regulating the issues within its remit;
•
deciding about the operators’ and consumers’ rights and
obligations;
•
collaborating with other institutions and organisations in matters
related to electronic communications;
• cooperating with regulatory and expert institutions from EU
and other states;
•
participating, as a national regulatory representative, in the work
of international organisations and institutions focusing on the
electronic communications sector;
• regulating in postal services’ domain.19
RATEL’s high degree of de-jure independence is not only reected in
the fact that it is organisationally detached from the Government and
Ministry’s control, but is also evidenced by a high value of the index of
de-jure independence (0.70 “Gilardi points”; see Appendix II). is value
is lower than in some other agencies analysed in this paper, yet it makes
for a substantial degree of autonomy in comparative terms.20 Two things
particularly add to RATEL’s de-jure independence: rstly, its nancial
and organisational autonomy are high, e.g. the Agency is self-funded
through the fees collected from the industry; secondly, the Agency has
no formal obligations towards the government and parliament, except
for the submission of annual reports and government’s permission on
nancial plans and statutory changes.
19 Electronic Communications Law (Ocial Gazette 44/10), from: www.ratel.rs/
upload/documents/Zakon_o_elektronskim_komunikacijama.pdf
20 Comparing, for example, to the West European regulators analysed by Gilardi
(2002).
Prior to the establishment of RATEL (under its initial name), the
telecommunications sectors and their parts were characterised by
dierent levels of competition. In the eld of mobile telephony, there
were two major companies operating - the state-owned Telekom and
a private company Mobtel 063.
21
e xed telephony, however, was
characterised by the state monopoly.22 Later on, the telecommunications
sector underwent substantial liberalisation in two ways: rstly, through
the arrival of new operators on the market (Telenor, VIP Mobile);
secondly, through the development of a regulatory framework which
stimulates open and competitive market.23 Yet, the state-owned Telekom
has remained the dominant player in the sector, especially when it
comes to the xed-line telecommunications services. is company is
controlled by the government, who owns a 58.11% of Telekom’s shares,
including the golden share.24 Due to the fact that the state’s inuence
in the telecommunication sector is considerably strong - through the
majority ownership of the largest operator, as explained above, and
since the “implementation of the competitive safeguards is still lagging
behind”,25 the telecommunications sector in Serbia can be described as
partly rather than fully liberalised.
21 Note that several transformations and disputes over the ownership of the two
telecoms operators occurred since their creation in the 1990s.
22 World Bank: Indicators of Foreign Direct Investment Regulation – Serbia, from:
www.iab.worldbank.org/Data/ExploreEconomies/serbia/xedlinetelephonyservices
23 RATEL: An Overview of the Telecom and Postal Services Market in the Republic
Serbia in 2014, from www.ratel.rs/upload/documents/Pregled_trzista/rate-pregled-
trzista-za-2014-ENGLESKI-web.pdf
24 Cullen International: Monitoring regulatory and market development for
electronic communications and information society services in Enlargement
Countries: Report 4, from: www.cullen-international.com/asset/?location=/content/
assets/research/studies/2011/11/nal-summary-report-4-feb-2014.pdf/nal-
summary-report-4-feb-2014.pdf
25 Ibid.
us Telekom’s status corresponds to the fourth, out of the ve forms of privati-
sation, that is „public company with less than 100% share“, as conceptualised by
Schmitt (2014: 614).
50 51
In what way has RATEL enforced its transparency in practice? We
rst provide a summary of the data that RATEL used to make public
via its website (during the observed period, 2013-2014). ereaer
follows an analysis of these data through the lenses of the conceptual
framework we draw on in this study.
RATEL’s website comprises the following sections:
•
About RATEL: this section features information about the
agency’s organisational structure and sta, the agency’s statute,
information booklets, work plans, together with annual reports
and presentations;
•
Market: contains annual sectorial analyses (from 2006 to 2013),
audit reports and information on price regulation;
• Information: data on tenders, public consultations, public calls
and news;
•
For users: information for consumers, e.g. information concerning
roaming prices and number portability in the mobile telephony;
• Regulations: contains relevant laws and secondary legislation,
strategies, plans, rule-books and market analyses;
• Instructions and forms: guidelines, e.g. instructions and forms
for radio station licences;
• Press: media news and public announcements;
• Internet counter: is a section through which RATEL provides
services to citizens and customers via the Internet; and
• Register: provides access to RATEL’s registries and databases.26
As RATEL’s annual reports for 2013 and 2014 are not yet available, we
26 RATEL’s website, from: www.ratel.rs
used RATEL’s Information Booklet 2012-201327 to draw the agency’s
major jurisdictions. e jurisdictions are indispensable for coding the
presence of the ve elements of transparency in the agency’s work.
A summary of the presence of the elements of transparency, across the
respective jurisdictions, is provided in the table below:
Table 3. Transparency of RATEL across jurisdictions.
Competence 1 2 3 4 5
Adopts ordinances and other rules
Assigns and revokes licences for the use of numbering
Monitors and controls market of electronic
communications pp
Assigns and deals with radio-frequencies p
Adopts technical rules in electronic communications
Monitors whether the operators adhere to the licence/
permit conditions p
Handles users’ complaints
Overall transparency p pp
Source: RATEL’s ocial website: www.ratel.rs. Sign “p” indicates partial website
presence of the given element in the observed jurisdiction. Fields 1, 2, 3, 4, 5 denote
the ve elements of transparency, as introduced in Part I.
It must be borne in mind that some jurisdictions are by default unable
to exhibit all ve transparency elements, e.g. adaptation of ordinances.
erefore, based on the assessment of the overall presence of the
respective transparency elements across the jurisdictions, it can be
concluded that RATEL has exhibited a relatively stable pattern of
“medium” degree of transparency across the jurisdictions. RATEL’s
communication via the website has namely included the rst, second,
27 RATEL: Information Booklet for 2012-2013, from: www.ratel.rs/upload/
documents/O_Ratelu/Informator/INFORMATOR%20za%202012-13%20
konacna%20verzija.pdf
52 53
third and h element from the transparency framework. While
the communication of rules (2) saw a high level of transparency, the
transparency of the decisions (1), conduct (3) and feedback (5) are
only partially present on RATEL’s website.
Large number of decisions could be found on RATEL’s website, either in
the form of Director’s executive decisions, Board’s meetings’ minutes
and conclusions, or in other sorts of materials. Yet, only a small portion
of the published decisions concerns radio frequencies licences’ issuance
and revocation. e section Director’s executive decisions contains not
more than 100 decisions on issuance/revocation of radio-frequencies
licences for the period between 2010 and 2015, which is a much lower
number compared to the overall pool of decisions made by RATEL.
For instance, in 2014 RATEL made 579 decisions about issuance and
312 decisions about revocation of the radio frequencies’ licences.28 For
this reason the rst element of the transparency – transparency of the
decisions – is coded as only partially present.
Next, the rules and procedures – a wide range of them, from those
pertaining to the awarded licences, to the standards that the operators
need to adhere to and other sorts of behaviour-regulating rules – all
are spelled out in a clear and visible manner on RATEL’s website.
e third element, transparency of the conduct of regulated subjects,
paints a dierent picture though. ere are market analyses featuring
information about the market of electronic communications in Serbia.
Certain information about the operators’ conduct, such as service
prices, are also available. RATEL’s website also contains registers of
all operators. ere are analyses of the relevant markets containing
information about operators with signicant market power. Still,
RATEL does not publish all information about the regulated subjects.
According to RATEL’s reports and the forms available on its website,
28 RATEL: Information Booklet for 2014, from: www.ratel.rs/upload/documents/O_
Ratelu/Informator/INFORMATOR%20za%202014.pdf
this regulator collects data about the quality of the operators’ services,
as well as technical and nancial information on an annual basis.
However, to the best of our knowledge, such data are not available
for all individual operators on the agency’s website. Transparency of
the conduct of regulated subjects, therefore, has been only partially
demonstrated.
Specic information on how RATEL controls and monitors the
operators’ adherence to the licence conditions cannot be found on
the website. RATEL explains the procedure for monitoring, however
details are lacking as to whether the telecoms operators act contrary
to the set conditions. Moreover, the website’s content does not explain
when, how and what controlling measures RATEL undertakes in
its monitoring activities. For example, RATEL’s website contains a
database related to the control and monitoring of the radio frequencies;
what is lacking, though, is a document or a report explaining how
exactly RATEL conducts the monitoring of the operators. e only
exceptions, in regard to the control of regulated subjects, are two
types of documents available on the website: rst, the analyses of the
relevant markets and second, the decisions containing information on
the obligations of operators with signicant market power as well as
information on how RATEL controls the conduct of these operators.
Nevertheless, it remains unclear which activities of the individual
operators are in accordance with RATEL’s requirements and which are
not.
Lastly, various forms of feedback, both from the commercial and experts’
side, have found their place on RATEL’s website. RATEL publishes
comments of the regulated subjects and experts about the regulation
and analyses of the relevant markets. However, while the consultation
letters directed to RATEL are available, the individual complaints
and feedback seem to be absent. us, neither the full information
about the content of individual complains, nor the outcomes resulting
54 55
from these complains can be found. A Telecoms Complaint Bulletin,
a quarterly published by British OFCOM, may serve as an example
of how this element of transparency can be exercised in practice.29
However, potentially high resource costs of processing and uploading
such data may be justied by the value that such feedback brings.
In summary, RATEL has demonstrated a form of transparency relying
on the provision of four out of the ve elements of transparency.
In addition to the rst two elements, decision-making and rules/
procedural aspects, which are usually highlighted by those with the
traditional views as something a transparent body must communicate,
RATEL has publicly provided information on the h element that is
feedback process. However, this not fully presented, such as in the case
of individual users’ complaints. Similarly, transparency of regulatees’
conduct has been partial, while the data concerning control of
regulated subjects have not been a regular feature of RATEL’s website,
at least not in the observed period.
Agency for Electronic Communications (AEC, Macedonia)
Macedonian Agency for Electronic Communications (AEC) was
established in 2005 as a regulator in the electronic communications
markets.30 According to the applicable Law on Electronic Communications,
the agency’s core jurisdictions are:
•
monitoring and controlling operators in the market of electronic
communications;
• dening and identifying the operators with signicant market
power;
29 OFCOM: Telecoms Complaint Bulletin, from: www.stakeholders.ofcom.org.uk/
enforcement/telecoms-complaints-bulletin/
30 Law on Electronic Communications (Ocial Gazette 13/05), from: le:///C:/
Users/Ivana%20Popovic/Downloads/01.Zakon_za_elektronski_komunik-
acii_13-05%20(3).pdf
• issuing licences and monitoring the use of radio-frequencies;
• issuing and revoking the use of numbers;
• monitoring the use of numbers and number providers;
• taking measures in cases of law violation;
• handling complaints between operators and service providers,
as well as between users and operators and providers;
• adopting technical rules;
• implementing domestic and international standards and
technical rules.31
Overall, AEC’s major goal is creation of a competitive market in the
domain of electronic communications.32
AEC features a high degree of de-jure independence. With its 0.79
“Gilardi points” (Appendix II), it scores higher than Serbian RATEL.
In reality, though, the dierences between the elements shaping their
formal independence are far from substantial. Both agencies enjoy
a high degree of nancial and organisational autonomy. However,
what makes the Macedonian AEC specic is the following: rst, the
provisions dening the possibility of holding multiple posts by the
Commission members; then, the utter absence of obligation toward
the government, i.e. submitting reports to the government is not
stipulated (RATEL does not submit reports about its work, yet it
submits nancial plans to the government).
e telecommunications sector in Macedonia has been liberalised to
a signicant degree. Unlike Serbia, Macedonia introduced most of the
31 Law on Electronic Communications (Ocial Gazette 39/14), from: www.
mioa.gov.mk/les/pdf/dokumenti/zakoni/zek/Zakon%20za%20elektronskite%20
komunikacii_2014.pdf
32 AEC’s website, from: www.aek.mk/en/about-us
56 57
competitive safeguards in 2007 and 2008.33 In 2001, when Makedonski
Telekom was privatised by Magyar Telecom, a subsidiary of the Deutsche
Telekom Group, the state had pulled out from the telecoms sectors as
a majority owner; yet it has remained present as a minority owner,
having 34.81% ownership in Makedonski Telekom.34 us, AEC has
been dealing with a more - albeit not fully - liberalised sector during
its decade-long functioning, compared to its Serbian counterpart.
What did the content of AEC’s website look like during the observed
period? e following are the sections presented on AEC’s ocial
website:
•
About us: contains information about the agency’s organisational
structure and sta, the agency’s public meetings, meetings on the
occasion of public hearings and lastly, public announcements;
•
Documents: this section contains legislation, agency’s decisions,
information about public hearings, agency’s working plans, the
annual reports, the meeting minutes, forms for dierent agency’s
services, and agency’s registers;
•
Radio frequency spectrum: contains information about the
legislation pertaining to the radio frequency spectrum and the
registers;
• Telecommunication: contains legislation about
telecommunications and the registers;
•
Market analysis: contains legislation related to the market
analysis, the forms for submission of the information needed
for market analysis, and analyses of the market;
33 Cullen International: Monitoring regulatory and market development for
electronic communications and information society services in Enlargement
Countries: Report 4, from: www.cullen-international.com/asset/?location=/content/
assets/research/studies/2011/11/nal-summary-report-4-feb-2014.pdf/nal-
summary-report-4-feb-2014.pdf
34 Makedonski Telekom, from: www.telekom.mk/en/?z=763
• Customer care: contains basic legal information about disputes
between users and operators and forms for users’ complains;
• Portal komuniciraj.mk: contains a link forwarding to a website
with various information about the telecom operators.35
Following the structure and the order of the jurisdictions listed in the
2013 report, we coded AEC’s transparency as featuring the following
elements:
Table 4. Transparency of Macedonian AEC across jurisdictions.
Competence 12345
Adopts by-laws and other rules p
Issues and revokes the numbers and monitors the
use of numbers
Supervises electronic communication networks and
providers p
Issues and revokes radio-frequencies
Monitors the use of radio-frequency spectrum
Handles complaints between operators and
services’ providers, as well as between users and
operators and providers
Pre-emptive reporting and sanctions
Overall transparency p
Source: AEC’s ocial website www.aek.mk. Sign “p” indicates partial website
presence of the given element in the observed jurisdiction. Fields 1, 2, 3, 4, 5 denote
the ve elements of transparency, as introduced in Part I.
AEC has displayed a similar pattern of transparency to its Serbian
counterpart RATEL. It is the procedures and rules (2), as well as
information about the conduct of the regulated subjects (3) that the
regulator has mainly communicated to the broader public. AEC’s
35 AEC’s website, from: www.aek.mk/
58 59
website also shows partial transparency when it comes to the feedback
(5). However the transparency of the decisions (1) and the control (4)
have largely been absent.
ough some decisions are published on the agency’s website, their
number is negligible compared to the overall number of decisions
made by AEC. For example, according to the 2013 Annual Report,36
AEC made hundreds of decisions during that year only, including the
decisions about licences issuing, about measures against those violating
the law and rules, decisions about complains, and so forth. On the
website’s section documents/decisions, however, no single decision
from 2013 can be found. Moreover, only 23 decisions in the section
documents/decisions in total have been made publicly available for
the period between 2010 and 2015. is is surprising given the fact
that AEC regulates a fast developing and technologically advanced
sector, characterised by a high degree of market competition. is
is altogether likely to drive the market entrants to press for greater
accessibility and assessability of the regulator’s work.
e second element of the transparency framework we employ in this
study has “fared” better. All rules pertinent to the work of AEC, as well
as the operation of the regulated markets, the telecoms being the key
one among them, are presented in a clear and systematic manner.
Concerning transparency of the conduct of regulated subjects, AEC
provides periodical (quarterly and annual) market analyses featuring
information about the market of electronic communications. AEC’s
website also contains registers of all operators and providers in
Macedonia. Market analysis reports feature information about the
operators with signicant market power. Other information about
the operators, such as service prices, the level of radiation or the
network coverage across the country, can be found at AEC’s portal
36 AEC’s Annual Report for 2013, from:
www.aek.mk/mk/dokumenti/izveshtai/godisni-izveshtai-za-rabota-na-aek/
“komuniciraj.mk”. When it comes to quality of the operators’ service,
the portal oers three reports about the quality of services of the
three mobile operators in three zones. What is missing on this portal,
though, are the reports about other operators and for previous years.
Yet, it could be said that overall AEC provides a considerable amount
of information about the regulatees, so it has been transparent in this
respect.
When it comes to control of the regulated subjects, AEC has not been
publishing decisions, pre-emptive reports, and sanctions against those
operators violating the rules. According to the annual reports, AEC
provides reports about its inspection supervision, decisions banning
radio-frequencies, and so on; however, these reports could not be
found on its website. erefore, several issues remain unknown, such
as the ways in which AEC was undertaking inspections, the sorts of
monitoring strategies that the regulatees had been subjected to and
the names of particular operators which had breached the rules.
e only exception in that sense, as in the case of Serbian RATEL,
are the decisions and market analyses containing information about
obligations of the operators with signicant market power. Even that
information, concerning the results of the controlling activities in
respect to the operators with signicant market power, was limited.
Generally speaking, however, we consider that sucient information
could not be found out on AEC’s website about the prior control of the
regulated subjects.
Regarding the feedback directed at AEC, this regulator publishes annual
public opinion polls. ese polls, among others, include questions about
citizen satisfaction with the operators and providers. AEC also publishes
comments from the public hearings pointing to some regulatory rules
and analyses, but does not publish materials from all public hearings.
Published comments can be found primarily in the section “public
announcements”, and not in the sections “public hearings” which a
60 61
visitor might start searching rst. is shows that the website does
not present the comments in a clear and visible manner. Furthermore,
similarly to Serbian RATEL, Macedonian AEC does not publish any
sort of reports containing citizen complaints, nor decisions on disputes.
To conclude, this element of transparency is characterised as being only
partly present.
In summary, Macedonian AEC has displayed a medium degree of
transparency. rough the website, as its major means of transparency,
AEC mainly communicates the details pertaining to the second
element of the transparency framework – the rules and procedures
regulating the conduct of actors in the sector. AEC has also shown
a signicant level of transparency when it comes to the conduct of
the regulated entities. e information going beyond the second
element (involving procedures and rules) have been lacking across the
jurisdictions involving control of networks and providers as well as
decision-making, except for the partial presence of the h element
(transparency of the feedback).
Commission for Protection of Competition (CfPC, Serbia)
Serbian Commission for Protection of Competition (CfPC) was set up in
2005 by a Law on Protection of Competition (Ocial Gazette 79/05).37
e Commission acts as an independent agency with delegated
authorities for market control. us, the Commission enjoys the status
of a controlling body, rather than the regulatory one.38 According to
37 CfPC’ website, from: www.kzk.gov.rs/o-nama/osnivanje-i-status
38 Note that Director of the Commission, Dr Miloje Obradovic, mentioned that
“dierent interpretations appeared concerning one provision that allows the
Commission to make regulatory rules, which may qualify it as a regulatory body,
however given that we are talking about one provision only – as opposed to all other
tasks and the crux of what the Commission does, calling this agency controlling
would be the most appropriate characterisation” (Belgrade conference, 23 May
2015).
Article 21 of the Law on Protection of Competition, Commission’s
main competitions are:
• deciding on the rights and obligations of market actors;
• imposing administrative measures;
• participating in draing regulations and giving opinions on
laws related to market competition;
• monitoring and analysing competition conditions on particular
markets;
• performing and controlling implementation of the measures
that provide protection of competition;
•
developing cooperation with international organisations
according to the international obligations.39
Apart from being regulated by the Law, the domain of market
competition is regulated by a string of Government by-laws as well
as the European Stabilisation and Association Agreement (SAA).40
e latter stipulates application of the criteria derived from the
fundamental principles of EU market competition.41
e institutional conguration of CfPC ensures a considerable degree
of de-jure independence to this commission (0.69 “Gilardi points”; see
Appendix II). Still, there are certain issues reecting on this somewhat
lower index compared to the telecommunications or media regulators.
e issues include, rst, the fact that President of CfPC is appointed
by Parliament rather than by the CfPC’s Council (the latter is also
39 Law on Protection of Competition (Ocial Gazette 51/09), from: www.kzk.org.
rs/kzk/wp-content/uploads/2011/07/ZAKON-O-ZASTITI-KONKURENCIJE.pdf
40 CfPC’s website, from: www.kzk.gov.rs/o-nama/osnivanje-i-status
41 Ibid.
62 63
elected in Parliament). Second, CfPC has reporting duties toward both
Parliament and Government (the Statute and nancial plans need to
be approved by the Government). Nevertheless, CfPC has enjoyed a
considerable degree of de-jure independence in comparative terms.
In Serbia, as in other transition economies, market competition has
been among the thorniest issues. Transforming the market from a
predominantly state-controlled to a competitive one, where the private
sector would play a major role and where the “playing eld” would
allow private companies to engage in fair competition, is a challenging
task to accomplish. It is, therefore, not surprising that Serbian CfPC
has faced substantial challenges of the local market: from the changes
in the state-dominated sectors where it had to rule at least in those
cases where the state provides generous subsidies, to those instances
where powerful companies and individual oligarchs have come to
dominate the market in one or another way.
Over the past years, CfPC has been in the position to decide about a
series of major cases. is is oen followed by heated political debates.
For example, the case of an alleged market dominance and abuse in
the eld of retail.42 Or, the “favourable treatment” of foreign investors,
when some foreign investors complained about unfair market
conditions, while others had been accused of utilising political links in
order to secure a privileged status vis-à-vis the domestic companies.43
While those cases have been frequently hitting the headlines and
raising the issue of control and regulation of market competition, they
have not put CfPC under a proportionately high public scrutiny, as
42 For instance, a widely debated case of the network of supermarkets of Delta
company, owned by Mr Miskovic, who had been perceived as the most powerful
oligarchin period 2000-2012 (the year when we was arrested), oen accused for the
abuse of dominant market position.
43 One such salient issue has been the government’s programme of subsiding foreign
investors since 2005, whereby the government provides nancial incentives as well
as other sorts of allowances and exemptions for those launching businesses.
one would expect given the scope and nature of the debates. In that
sense, CfPC has been ocassionaly present in the public, but never at
the forefront, even when the landmark cases were being discussed.
Instead of referring such cases to the controlling agency CfPC, the
disputed cases were dealt with by the government and the high-
ranking politicians in the public.
CfPC’s website contains the following sections and information:
• About us: information about the Commission’s organisational
structure and jurisdictions;
• Information booklet: contains annual information booklets;
• Annual reports: features Commission’s annual reports;
•
International and domestic activities: contains a brief description
of the Commission’s international activities and domestic cross-
institutional cooperation;
• Legal framework: contains laws, secondary legislation, statute,
instructions and guidelines;
• Decisions: contains decisions published in full and arranged
according to the respective jurisdictions;
• Launched cases: conclusions concerning the cases in progress;
• Sectorial analysis: contains annual sectorial analyses of the oil
and milk market;
•
Forms: contains the forms for initiating investigation of
violations of competition;
• Public announcements: contains media news and Commission’s
public announcements.44
44 CfPC’s website, from: www.kzk.gov.rs/
64 65
e following table summarises transparency extensiveness of the
Commission, based on our analysis of the Commission’s website
material:
Table 5. Transparency of Serbian CfPC across jurisdictions.
Competence 12345
I Competition violation
(a) Breach of competition p
(b) Prohibition exemption of restrictive agreements
II Concentration inquiry
III Opinions on laws
IV Sectorial analyses p
V International activities
Overall transparency
Source: CfPC’s ocial website: www.kzk.org.rs. Sign “p” indicates partial website
presence of the given element in the observed jurisdiction. Fields 1, 2, 3, 4, 5 denote
the ve elements of transparency, as introduced in Part I.
Some jurisdictions are not crucial for our analysis of the Commission’s
transparency, “international activities” being one such example. Other
jurisdictions are, by nature, unable to feature all ve transparency
elements, e.g. opinions on legislation. If those objective limitations are
discounted, the Commission’s transparency can overall be characterised
as extensive. Details pertaining to the execution of major tasks, such
as the information regarding competition violation and concentration
inquiries, have been widely covered and extensively communicated on
the website. e Commission has, therefore, exerted a high degree of
transparency, particularly in respect to the rst, second, third, and the
fourth element of transparency, concerning decisions, rules, conduct,
and control of the market actors.
All CfPC’s decisions are published on the website in the section
“decisions” and they are also thoroughly discussed in the Annual
Reports. e Annual Reports are exhaustive and detailed, containing
explanations of the individual decisions, rules according to which the
decisions were made, the list of cases examined by the Commission
and the cases in which the market entities appealed against the
Commission’s decision. All rules are available and communicated in a
clear and consistent manner.
As to the transparency of the market actors’ conduct, the Commission
publishes information about the nished and ongoing cases. It
also publishes explanations for the cases where an initiative for the
examination of a potential violation of the competition rules did not
result in the launch of formal procedure before the Commission.
Periodical sectorial analyses, which to some extent focus on the conduct
of the market actors, have also their place on the Commission’s website.
Yet, the available sectorial analyses cover only two markets – the oil
and the milk market. According to the Commission, sectorial analysis
is an important tool in identifying possible competition violations.
45
erefore, it would be advisable for the Commission to carry out and
publish the analyses in other domains too.
In respect to the control of the regulated subjects, the Commission
publishes decisions containing measures taken against the subjects
violating the competition principles. ese decisions also contain
information on how the Commission checks whether the market
participants act in accordance with the issued measures or not. Moreover,
CfPC publishes cases that have not resulted in initiating the proceedings
before the Commission. Here, the Commission typically explains who
submitted a request for examination of competition violation, what
steps were taken by the Commission in response and why the cases
did not result in the initiation of proceeding against the suspects. CfPC
45 Commission’s Annual Report for 2013; from: www.kzk.gov.rs/kzk/wp-content/
uploads/2014/06/Izvestaj-o-radu-za-2013-godinu.pdf
66 67
also publishes information about ongoing cases, including all prior
steps made by the Commission up until that moment. is provides an
opportunity for the insight into the Commission’s activities in specic
cases, such as the information on how the Commission controls the
market actors, what sort of data are collected about these actors, which
measures have been undertaken, and so on. Given all this, the fourth
element of transparency can be qualied as being a relatively regular
part of CfPC’s transparency practices.
Lastly, the release of received feedback is partly exhaustive and includes
judicial decisions about the lawsuits which the market participants led
against a previous Commission’s decision. Other sorts of feedback,
however, have not been part of CfPC’s website, such as experts’
opinions, citizens’ comments, and the likes. ereby, the h element
of the Commission’s transparency has been only partly present.
Overall, CfPC has demonstrated an extensive form of transparency,
with the rst, second, third, and fourth elements being a regular feature
of its website communication.
Commission for Protection of Competition (CfPC, Macedonia)
Macedonian Commission for Protection of Competition (CfPC) was
established in 2005 by the Law on Protection of Competition.46 Its core
jurisdictions are similar to those of Serbian CfPC and include:
• exercising control over the Law implementation;
• monitoring and analysing market conditions;
• conducting administrative procedures;
• dening rules and measures concerning the protection of
competition and dening measures aimed at establishing
eective competition;
46 CfPC’s website, from: www.kzk.gov.mk/eng/aboutus_C.asp
• giving opinions on market competition related laws;
• approving the allocation of state aid;
• developing international cooperation.47
What lies at the heart of CfPC’s institutional mission is the exercise
of control of market entrants’ adherence to the rules, rather than
production of new rules regulating market competition. erefore,
Macedonian Commission for Protection of Competition can be
categorised as a controlling body.
CfPC’s index of de-jure independence is 0.70 and comes at the bottom
end of the sample of the analysed bodies (if the environment protection
agencies are excluded). Yet, this makes for a relatively high degree
of formal independence in absolute terms. ere is no substantive
dierence between the Serbian and Macedonian commissions for
market protection in this regard (0.69 and 0.70).
e following are elements contained in the ocial website of CfPC:
• About us: information about the Commission’s organisation,
sta and jurisdictions;
• News: press reports (very few of them, though) and cross-
institutional collaboration memoranda signed between the
Commission and other institutions and agencies;
• Legal framework: laws, secondary legislation, statute, and
guidelines;
• Decisions: containing the previously adopted decisions;
• Notications: notications about market concentrations;
47 Law on Protection of Competition (Ocial Gazette 145/10), from: www.kzk.gov.
mk/images/ZakonZaZastitaNaKonkSlves%20145%2010.pdf
68 69
• Resources: contains forms for requests with regard to the
Commission’s competences;
• Publications: Annual Reports and sectorial analyses of banking,
TV commercials, and liquid gas.48
Translated into the framework applied in this study, the above data
make for the following constellation of transparency elements across
the Commission’s jurisdictions:
Table 6. Transparency of the Macedonian CfPC across jurisdictions.
Competence 12345
Competition violation p
Concentration inquiry p
Opinions on laws
Sectorial analyses
Approval of the allocation of state aid
International activities
Overall transparency p
Source: CfPC’s ocial website www.kzk.gov.mk. Sign “p” indicates partial website
presence of the given element in the observed jurisdiction. Fields 1, 2, 3, 4, 5 denote
the ve elements of transparency, as introduced in Part I.
It should not be overlooked that some jurisdictions cannot be
representative of the overall Commission’s transparency pattern (e.g.
international cooperation) and that, as in the other cases, some other
jurisdictions are by denition precluded from having all ve elements
of transparency. Nevertheless, CfPC’s transparency pattern can be
characterised as “abridged”. Full details have only been released for
the rst two elements of the framework – the decision-making (1)
48 CfPC’s website, form: www.kzk.gov.mk/
and rules related information (2). e third element of transparency –
market actors’ conduct - has only partly been exercised and, moreover,
the remaining elements (transparency of control (4) and transparency
of feedback (5)) could be found only in limited forms on the website.
Within its core jurisdictions, CfPC has made its decision-making process
considerably transparent to the wider audience, as all Commission’s
decisions are easily discernible on the website. Likewise, all rules, from
the legislation to other details dictating the conduct of the relevant
parties in the process of control of market competition, are presented
on the website in a clear and consistent manner.
More information on market participants’ conduct can only be found if
it relates to a specic CfPC’s decision. Furthermore, little can be learnt
from the website regarding the ongoing cases and, in particular, the
ones which do not result in the initiation of a proceeding (this is not
the case with the website of CfPC’s counterpart in Serbia). e sectorial
analyses include three sectors only - banking, TV commercials, and
liquid petroleum gas. ey are, however, not conducted in a regular or
cyclical way, but rather in a one-o manner: the analysis of the banking
sector was carried out in 2012, TV commercials in 2012 and liquid
gas in 2010.49 Further publication of analyses concerning other sectors
would certainly add to the transparency of the conduct of market
participants. Somewhat generously, we mark this element as “partly
present”, although in terms of the third element of transparency CfPC
has probably been closer to the value of“not exerting” than “exerting”.
Based on the website, it is not possible to nd out more about the
market actors’ controls. Some of the control measures undertaken by
CfPC against market participants, when a competition violation was
suspected to have occurred, could be tracked through the Commission’s
49 CfPC’s website, from: www.kzk.gov.mk/mak/zapis.asp?id=18
70 71
decisions. However, CfPC’s website again fails to provide data about
the investigated cases which did not result in an administrative or
misdemeanour procedure. In particular, it is not known which steps
the Commission made, what data it collected, and so on. As a result,
one cannot see how CfPC behaves when examining such cases, except
for the examples that ended up in a specic decision. us, the users of
the Commission’s website are deprived of the information concerning
the controlled subjects’ conduct and their knowledge on this topic
remains limited.
Concerning the received feedback, the Commission publishes judicial
decisions about the lawsuits led against the Commission’s decisions.
However, other types of feedback such as experts’ opinions, citizens’
comments, public debates and the like, are not published. Hence, the
h element of the Commission’s transparency is characterised as
being present in a limited form, at best.
In summary, CfPC has seen a limited degree of transparency, with
some, yet not full details, about the market participants’ conduct and
the Commissions’ control. e transparency model we observed in
the case of CfPC departs to a minimal extent from the traditional
“abridged” view of transparency. is view highlights the need for
publishing decisions and rules/procedures, but does not pay much
attention to the other aspects that are elsewhere said to be important
for systems of controls.
Regulatory Authority for Electronic Media (REM, Serbia)
Regulatory Authority of Electronic Media (REM) was set up in 2003,
originally under the name Republication Broadcasting Agency (RRA),
by the Law on Broadcasting.50 REM has been in charge of regulating
50 REM’s Annual Report for 2013, from: www.rra.org.rs/uploads/useruploads/
PDF/5346-Izvestaj_o_radu_RRA_2013.godina_nal.pdf
the electronic media market, one of the most sensitive domains for the
functioning of a democracy, especially in transition contexts.
e adoption of a package of media laws in 2014 (Law on Public
Information and Media, Law on Electronic Media, Law on Public
Service Broadcasting) represented an important step in harmonisation
of the Serbian legal framework with the EU legislation regulating media
sphere (European Commission, 2014a). Nonetheless, according to the
latest European Commission Progress Report for Serbia (2014a: 29),
“the media market continues to suer from non-transparent public
funding of selected state-owned media and commercial media through
direct budgetary subsidies and contracts with public enterprises and
authorities”. Besides, the state is present in this sector as owner of
some media and the structure of the media ownership remains non-
transparent (Commission, 2014: 29). us, overall, although some
progress has been made, further improvements in the media market
liberalisation in Serbia are necessary.
According to Article 22 of the Law on Electronic Media, REM’s
major competences are:
• draing Strategy of Development of Broadcasting;
• monitoring broadcasters’ work and ensuring the law
implementation;
• issuing broadcast permits;
• setting binding rules for the media service providers;
• setting rules relating to programme content;
• handling complaints regarding the program operation
providers of media services;
• undertaking measures against broadcasters.51
51 Law on Electronic Media (Ocial Gazette 83/14), from: www.rra.org.rs/uploads/
useruploads/PDF/5605-Zakon%20o%20elektronskim%20medijima.pdf
72 73
REM is a prime example of a highly independent regulatory agency (in
de-jure terms). With as many as 0.86 “Gilardi points” (Appendix II), it
represents one of the (formally) most independent agencies in the sample
and, needless to say, a highly independent regulator in comparative
terms. All aspects dening an agency’s de-jure independence - from
the status of agency head, through the appointment and functioning
of the Council, to the relationship toward parliament and government,
and nally, the agency’s nancial and organisational autonomy – allow
for a high degree of institutional autonomy, in the case of REM. If
the “de-jure independence hypothesis” proves to be true (Hypothesis
4), it would be possible to expect a high degree of transparency. e
underlying logic here is that higher degrees of de-jure independence
entail higher degrees of transparency, due to a need for establishing
credibility/legitimacy among the audiences.
REM’s website contains the following sections and information:
• About us: information about REM’s organisational structure;
• Regulatory framework: laws, strategies, guidelines,
recommendations and the statute;
• Decisions: contains detailed information about REM’s meetings,
measures pronounced against broadcasters, decisions on
issuing or revoking licences and judicial decisions;
• Public tenders: features calls for tenders for allocation of
broadcasting licences;
• Information booklet: contains REM’s information booklets;
•
Reports: contains REM’s Annual Reports, reports about
supervision of broadcasters’ activity, nancial plans and reports
and reports about public hearings;
• Analyses: contains analyses of electronic media;
• News and announcements: contains media news and REM’s
public announcements.52
e table below structures the observed website content by tailoring
it to the format we use for mapping agency transparency regimes:
Table 7. Transparency of REM across jurisdictions.
Competence 12345
Issues and deprives broadcast permits
Approves broadcasters’ ownership changes
Provides opinion on the state’s, parties’ and other
organisations’ advertising
Monitors broadcasters’ work
Handles complaints
Undertakes measures against broadcasters p
Opinions on laws
Overall transparency pp
Source: REM’s ocial website www.rra.org.rs. Sign “p” indicates partial website
presence of the given element in the observed jurisdiction. Fields 1, 2, 3, 4, 5 denote
the ve elements of transparency, as introduced in Part I.
As can be seen, in its core jurisdictions - issuing of broadcast permits
and oversight over their work - REM has demonstrated an extensive
form of transparency. Namely, full details are published in respect
to the rst, second, third and fourth element of transparency. Yet,
what has been limited is the transparency of the feedback and the
52 REM’s website, from: www.rra.org.rs
74 75
transparency of the decisions on approval of broadcasters’ ownership
and opinions about the state’s and political parties’ advertising.
In the core jurisdictions, REM made its decision-making process
extensively transparent to the wider audience, with all previous
decisions being put up on the website. What is lacking, however, are
the decisions concerning the approval of changes of the ownership
structure of media and also REM’s opinions about the states’, political
parties’ and other organisations’ advertising. e latest Annual
Reports makes it clear that REM was making decisions regarding these
issues (see the 2013 Annual Report53). However, as we pointed out
earlier, these decisions were not available on the website in its integral
form. Approvals of changes of ownership structure are among the
most important decisions that REM has taken so far in term of their
consequences for the market competition, media reporting policy and
the likes. Regarding the second element of transparency, all rules and
procedural regulations are presented in a clear and consistent manner.
Transparency of regulatee’s conduct has been exercised to a full degree
through decisions, analyses and reports featuring information on how
the regulated subjects perform particularly with regard to meeting the
standards set by the legislation or licences. e website also contains a
licence register. REM has been highly transparent in this aspect.
e control of the broadcasters has also been transparent. REM
publishes reports on the fullment of the program and legal obligations
of broadcasters. Also, decisions containing measures and sanctions
against broadcasters acting against the laws are available on the REM’s
website.
53 REM: Annual Reports for 2013, from: www.rra.org.rs/uploads/useruploads/PD-
F/5346-Izvestaj_o_radu_RRA_2013.godina_nal.pdf
Finally, in respect to the h element of transparency – feedback –
judicial decisions are published in cases where a broadcaster appeals
against a REM’s decision. REM also publishes some of the citizens’
questions in regard to its activities and answers to these questions, as
well as comments given by the participants in public debates. However,
not all decisions about citizens’ complaints are not available. We can
see from the REM’s annual reports which complains are considered by
REM, but we could not nd on the website all decisions concerning
these complaints. erefore the transparency of the feedback has been
partial rather than full.
Following from the above, it can be said that REM has demonstrated
a rather extensive form of transparency, with publicly available data
concerning almost all stages of the policy cycle (the only exception
being the h element of transparency – feedback).
Agency for Audio and Audio-Visual Media Services (AVMS,
Macedonia)
With adoption of the Law on Audio and Audio-Visual Media Services
(2013), the Macedonian Broadcast Council (created in 1997) was
replaced by a new independent regulator named the Agency for Audio
and Audio-Visual Media Services.54
According to Article 6 of the Law on Audio and Audio-visual Media
Services, the Agency’s major jurisdictions are:
• ensuring transparency in the broadcasters’ work;
• ensuring protection and enhancing pluralism in the sphere of
audio and audio-visual media services;
54 AVMS’s website, from: www.avmu.mk//index.php?lang=mk
76 77
• undertaking measures against broadcasters when provisions
of the Law and other rules are violated;
• adopting acts derived from the Law;
• issuing and revoking broadcast permits;
• monitoring broadcasters’ work; and
• prescribing the manner of measuring the number of viewers
or listeners of the broadcasted programmes and conducts the
process of measurement.55
AVMS is the most independent regulator (and agency) in the whole
study sample. Its institutional design yields 0.90 “Gilardi points”
(Appendix II), which is not only the highest value in the sample, but
is also a remarkably high and rarely seen score in comparative terms.
AVMS is the oldest agency in the sample, created 18 years ago.
Media market in Macedonia shares similar characteristics with the one
in Serbia. e adoption of the Laws on Audio and Audio-visual Media
Services in 2013 was a step forward in harmonisation of the national
legislation with the EU standards (European Commission, 2014b).
However, the European Commission (2014b) has emphasised the
uncertainty concerning the implementation of the law in practice. e
EC also raised some concerns related to the complaints made in public
discourse about the allegedly limited media freedom in this country
(Commission, 2014b and 2013). Generally, further advancement of
the media market is necessary, like in Serbia.
55 Law on Audio and Audio-visual Media Services(Ocial Gazette 184/13), from:
www.avmu.mk/images/Zakon_za_audio_i_audiovizuelni_mediumski_uslugi_
mkd_1.pdf
AVMS’ website contains the following sections and information:
• About agency: information about AVMS’ organisation and
sta, plans, programs and annual reports, rules of procedures,
and the agency’s public meetings in 2015 and 2014;
• Sessions: summaries, minutes and decisions made at the
sessions;
• Measures/supervision: contains information about AVMS’
measures in respect to the broadcasters;
• Licences: decisions about broadcast permits;
• Legislation: domestic and European laws and secondary
legislation;
• Media: registers of broadcasters;
• Operators: contains the register of operators, registered
programme packages, signal locations and author rights;
• Publications/analyses: economic, programme, legal, copyright,
technical and other analyses, as well as analyses of the media
coverage during elections;
• Forms: contains dierent sorts of forms for citizens and
operators;
•
Public consultations: contains information about public
consultations concerning rules and the agency’s work
programmes.56
56 AVMS’s website, from: www.avmu.mk
78 79
e following table summarises the structure of the AVMS’
transparency:
Table 8. Transparency of AVMS across jurisdictions.
Competence 12345
Issues and revokes broadcast permits
Monitors broadcasters’ work
Supervises the operators of the public
communications networks
Supervises print media
Undertakes measures against broadcasters
Handles complaints
Overall transparency
Source: AVMS’s ocial website: www.avmu.mk. Sign “p” indicates partial website
presence of the given element in the observed jurisdiction. Fields 1, 2, 3, 4, 5
denote the ve elements of transparency, as introduced in Part I.
As can be seen, AVMS has exerted a high degree of transparency
extensiveness in respect to the all elements of transparency –
transparency of decisions, rules, conduct, control of the regulated
subjects and feedback.
AVMS’s website boasts having all previous decisions. All rules are
represented in a clear and consistent manner on the agency’s website.
Concerning the transparency of the regulatees’ behaviour, AVMS
publishes licence registers, decisions and reports containing information
about the conduct of the regulated subjects. It also publishes dierent
sorts of analyses, such as economic, programme, legal, technical and
also analyses of the media coverage during elections.
e control of the broadcasters is also transparent, as the agency
publishes regular monitoring reports. Also, decisions containing
measures against the broadcasters that have been found in breach of
law, together with information on AVMS’s control mechanisms, are
available on the website.
In respect to the h element of transparency – concerning feedback –
AVMS publishes experts’ opinions and broadcasters’ stances. AVMS’
responses to citizens’ or broadcasters petitions are contained on
the website, too. It is worth noting that this agency organises public
meetings, which is another way of eliciting and discussing the feedback.
Overall, AVMS has exerted a high degree of transparency in respect to
all ve elements of transparency. As will turn out, AVMS has been the
most transparent agency in the whole sample.
Energy Agency (EA, Serbia)
Energy Agency (EA) was instituted in Serbia in 2005 by the Energy
Law, which has been amended several times since (2011, 2012, 2014).57
According to the Energy Law and international agreements, the
agency’s major tasks are:
• price regulation;
• licensing in the energy sector;
• deciding about appeals;
• supervision and monitoring of the energy market; and
• implementation of international agreements.58
57 EA’s website, from: www.aers.rs/Index.asp?l=1&a=91
58 EA’s website, from: www.aers.rs/Index.asp?l=1&a=16.1
80 81
EA’s work is relevant for the economic development in general, but
in a more direct manner – by contributing to the regular households’
expenses – the work of EA is linked to the citizens’ welfare.
EA enjoys a very high degree of formal independence (0.88, Appendix
II), which renders it one of the most independent energy regulators
in comparative terms. is high independence is partly due to the
exclusivity of EA’s competencies and also due to the multiple safeguards
of its Council and President. Even though Council and President are
appointed by Parliament, there are strong mechanisms preventing
external interference in their work.
As for the market liberalisation, it is worth reminding that – despite
the narrative about the attractiveness of liberalisation and despite the
EU calls for a greater opening of the network industries – the energy
sector in Serbia has not been considerably liberalised so far. While
the dominant player in the domain of electricity has been the state
monopolist Elektroprivreda Srbije (EPS), the gas domain has been
subject to an inter-state deal (with Russia) rather than subject to
market competition. Besides, many energy companies, such as EPS,
Yugorosgaz-Transport and Srbijagas, have not been unbundled yet – in
legal or operational sense (European Commission, 2014a). In spite of
the presence of small and medium enterprises in some parts of the
market, the energy domain is overall characterised by a low degree of
liberalisation.
How has the Energy Agency enforced its transparency in practice?
EA’s website contains the following sections and information:
• About agency: information about the agency’s organisation,
tasks and sta, plans, annual reports and information booklets;
• Legislation: laws, secondary legislation, acts made and also acts
approved by the agency, international legislation;
• Forms: contains forms for energy entities through which EA
collects needed information;
• Licence: contains general information about licences, rules
about licences, information on licensing and licence register;
• Price regulation: data on gas, oil and electricity prices
regulation;
• Energy market: contains basic information about the
regulations concerning gas, oil, and electricity market and
decisions about energy prices;
• Appeals: contains information on the agency’s competences
in respect to the appeals, rules about appeals and instructions
for submission to appeal;
• Renewable energy sources: contains information on the agency’s
jurisdictions and rules in respect to renewable energy sources;
• Rational use of energy: contains information on the agency’s
jurisdictions in respect to rational use of energy;
• Heat energy: contains information on the agency’s
jurisdictions in respect to heat energy;
• Public consultations: contains forms for sending objections
and suggestions about the agency’s rules.59
59 EA’s website, from: www.aers.rs
82 83
Table 9 summarises the transparency regime of EA:
Table 9. Transparency of EA across jurisdictions.
Competence 12345
I Regulation of prices
(a) Price-setting methodology
(b Setting prices of system services
(c) Approves regulated prices
(d) Supervision of the implementation of the
price-setting methodology and approved prices
II Licensing
III Market oversight p
Overall transparency p
Source: EA’s ocial website: www.aers.rs. Sign “p” indicates partial website
presence of the given element in the observed jurisdiction. Fields 1, 2, 3, 4, 5
denote the ve elements of transparency, as introduced in Part I.
EA has displayed a rather limited form of transparency. It has been
highly transparent only in the rst and second element – transparency
of decisions and transparency of rules. e transparency of the
regulatees’ conduct (3) can be characterised as only partial, while the
remaining two elements (transparency of control and transparency of
feedback) are almost completely missing.
is agency generally publishes decisions concerning the price-setting
methodology, the price-setting itself and approvals of prices. e
website features a licence register, but decisions about issuing and
revoking of licences are not available. e procedures and rules are
represented in a clear and consistent manner on the agency’s website.
Transparency of regulatees’ conduct (the third element) has been
partial. EA’s website contains information about energy prices. Apart
from a general market overview, however, EA’s website does not
contain more details about the individual energy subjects’ behaviour.
Certain information about individual regulated subjects could be
found in the market reports (which are part of the annual reports),
but that information is not exhaustive compared to the amount of
information that EA regularly collects; moreover, such information
does not pertain to all energy subjects. According to the agency’s
annual reports, EA collects detailed data about the energy subjects
quarterly, semi-annually and annually. ese data are, however, not
available to the broader public (except for the information contained
in the market reports).
Transparency of regulatees’ controls has been even more limited. For
example, information about how the agency monitors the conduct
of the energy companies is unavailable. According to the annual
reports, the agency controls weather the regulatees act in accordance
with the rules. e control is conducted, among others, through EA
representatives’ participation in commissions formed by the energy
companies and through market inspection (please, see Annual Report
201360). However, to the best of our knowledge, EA’s website does not
contain any sort of data about this aspect of EA’s work.
EA’s website does not contain any sort of feedback, including citizens’,
energy subjects’, and experts’ opinions and comments. e agency
does not publish neither citizens’ and energy subjects’ complains, nor
decisions in regard to these complains.
Overall, one is not able to nd out more about the EA’s activities,
apart from the rules guiding the markets, the decision-making related
60 EA: Annual Report for 2013, from: www.aers.rs/Files/Izvestaji/Godisnji/
Izvestaj%20Agencije%202013.pdf
84 85
information and market analyses. Given that the set standards and,
relatedly, compliance to these standards have huge social, economic
and political implications, the lack of this sort of data seems to be a
forceful indicator of how “abridged” the EA’s transparency has been.
Energy Regulatory Commission (ERC, Macedonia)
Macedonian Energy Regulatory Commission (ERC) was set up in
2002 by a Law on Energy and commenced its operation in 2003.61 ERC
is responsible for regulating the energy sector by performing a set of
tasks similar to the Serbian energy regulator (EA). According to the
Law on Energy, ERC’s most important tasks are:
• prescribing conditions under which certain sorts of energy
can be supplied;
• dealing with price regulation;
• issuing and revocation of licencesin the energy sector;
• monitoring of the implementation of licences;
• dealing with conict resolution;
• proscribing rules for connecting to the energy grid; and
• adopting rules, procedures and other acts.62
ERC’s formal independence amounts to 0.82 “Gilardi points”
(Appendix II), which is a considerably high degree of formal
independence in comparative terms.
61 ERC’s website, from: www.erc.org.mk/Default_en.aspx
62 ERC’s website: www.erc.org.mk/pages.aspx?id=60
e pace and the ultimate scope of energy sector liberalisation in
Macedonia have been modest. Although some progress has been
made in regard to the opening of the electricity market (Commission,
2014b), full liberalisation of the electricity market, initially planned for
the beginning of 2015, was postponed until 2020 by the Macedonian
government (Energy Community Secretariat, 201563). Currently, the
electricity sector is dominated by an Austrian monopolist (EVEN
AG)64 who privatised the state-owned energy company in 2006. In
this way, the state’s monopoly was replaced by a private company’s
monopoly. e gas sector is not liberalised either,65 as the import of
gas is constrained and no free competition exists in this eld.
ERC’s website contains the following sections and information:
•
ERC: contains information about the Commission’s
organisational structure, competences and international
activities;
• Regulation: laws and internal organisational laws;
• Pricing: contains information about energy prices;
• Licensing: contains information about licensing procedures
and decisions about issued and revoked licences;
• Complains: contains legal information about complains;
• Annual reports: contains ERC’s annual reports;
63 Energy Community’s website, from: www.energy-community.org/portal/page/
portal/ENC_HOME/NEWS/News_Details?p_new_id=10921
64 Energy Regulators Regional Association’s website, from: www.erranet.org/Abou-
tUs/Members/Proles/Macedonia
65 ERC: Annual Report for 2014, from: www.erc.org.mk/odluki/2015.05.15_
Godisen%20izvestaj%20za%20rabota%20na%20Regulatornata%20komisija%20
za%20energetika%20na%20RM%20za%202014%20godina_FINAL.pdf
86 87
•
Public relations: public announcements and statements,
information about ERC’s projects and notications from
companies;
• Sections electricity, natural gas, heat energy, oil and renewable
sources: contain secondary legislation, pricing and tari
decisions, and information about the market.66
Table 10 summarises the transparency of the Commission:
Table 10. Transparency of ERC across jurisdictions.
Competence 12345
I Regulation of prices
(a) Price-setting methodology
(b) Decisions on the energy prices p
II Issuing and depriving of licences
III Monitoring of the implementation of the licences
IV Monitoring of the energy market p
V Disputes resolution
VI International activities
Overall transparency p
Source: ERC’s ocial website: www.erc.org.mk. Sign “p” indicates partial website
presence of the given element in the observed jurisdiction. Fields 1, 2, 3, 4, 5
denote the ve elements of transparency, as introduced in Part I.
Macedonian Energy Regulatory Commission is an example of a quite
“abridged” form of transparency. Similarly to its Serbian counterpart,
ERC has been highly transparent when it comes to the rst and second
element – transparency of rules and decisions – and partly transparent
in the third element - conduct of regulated subjects.
66 ERC’s website, from: www.erc.org.mk
When it comes to the transparency of decisions, the situation is
as follows. e decisions about price-setting methodology, about
energy prices, issuing and revoking licences, acquiring the status of
privileged producer and preferential taris, they have been in general
made transparent. e website displays all rules and legal directions
regulating the eld.
Transparency of the regulated subjects’ conduct could be observed
to a limited extent. e decisions about licences, published by ERC,
include basic information about the regulatees. Market analyses are
also published as part of ERC’s annual reports. us, it is possible to
nd out more about what the regulatees do in practice. Nevertheless,
ERC’s website does not contain further information on energy entities’
behaviour, apart from the information provided in the market analyses.
According to the Annual Report for 2014, ERC supervises the energy
market by using data from monthly and annual regulatees’ reports.
While some of these data are revealed in the ERC’s annual reports - for
certain businesses only - they are not available for all licence holders.
Transparency of the control of regualtees has been limited, too. Certain
information related to this topic cannot be found on the website,
such as the information on how ERC supervises the energy subjects’
activities and how the enforcement of licences is being controlled.
ERC’s website does not contain any sort of feedback, including citizens’
and energy subjects’ complains. ere are no citizens’ and experts’
opinions, and the feedback provided by regulated subjects is not
available either.
Generally, ERC has shown a similar pattern of transparency to its
Serbian counterpart EA. What has been mostly communicated are the
rules and decisions, and partly the conduct of energy subjects.
88 89
Environmental Protection Agency (SEPA, Serbia)
Serbian Environmental Protection Agency (SEPA) was founded by
the Law on Ministries in 2004.67 It operates as part of the Ministry
of Agriculture and Environmental Protection (and the corresponding
ministries in the past). SEAP does not have the status of a non-
majoritarian agency and does not command regulatory powers. As
such, SEPA enjoys a low degree of de-jure independence, i.e. the
Agency’s budget, personnel policies, powers and jurisdictions are
subject to the Ministry’s control. SEPA has been responsible for
the development of an IT system which would enable tracking the
indicators of the state of environment (air, water, and other sorts of
pollution), for the directing of the National Laboratory’s work – which
carries out technical inspections, execution of state monitoring of the
quality of air and water, for the gathering of data on the implementation
of environment protection policies, and for cooperation with the
European Environmental Agency (EEA) and EIONET network.68
SEPA’s website contains following sections and information:
• About the agency: contains information about the agency’s
jurisdictions;
• Organisation: contains information about SEPA’s
organisational structure;
• Information booklet: contains information booklet and a form
for applying for access to information of public importance;
• Data and services: contains information about air and water
quality, allergenic pollen, and the results of state monitoring
of the air and water quality;
67 SEPA: Link to Europe, from: www.sepa.gov.rs/download/Agencija_publikacija.
pdf
68 SEPA: Information Booklet for 2014, from: www.sepa.gov.rs/download/IJZ/
informatorNov2014.pdf
• ematic areas: features details about activities and important
data concerning the water, air, climate changes, land,
biodiversity, waste, pollen, radiation, economic activities and
instruments, and noise;
• National register of pollution sources: contains information
about relevant legislation, activities, reports, data, permits for
waste management, documents on the waste movements and
pollution sources’ register;
• Documents: contains reports, publications, presentations and
papers about environment;
• News: contains media news and public announcements.69
e following table summarises the exhibited transparency pattern of
this agency:
Table 11. Transparency of SEPA across jurisdictions.
Competence 12345
Development, coordination and direction of national IT
system for tracking the state of environmental protection
Execution of state monitoring of the quality of air and
water
Gathering of data about implementation of environment
protection policies
Cooperation with the European Environmental Agency
(EEA) and EIONET network
Overall transparency
Source: SEPA’s ocial website: www.sepa.gov.rs. Sign “p” indicates partial website
presence of the given element in the observed jurisdiction. Fields 1, 2, 3, 4, 5
denote the ve elements of transparency, as introduced in Part I.
Despite the lack of formal independence and a chronic shortage of
69 SEPA’s website, from: www.sepa.gov.rs
90 91
resources, SEPA has focused on a diverse set of elements in exercising
its transparency (within the given jurisdictions, of course). us, SEPA
has been highly transparent when it comes to the second, third, and
fourth element of the transparency extensiveness.
All rules concerning SEPA’s jurisdictions are available on its website.
As to its major jurisdictions, SEPA’s website features a registry of
the national waste management spots, a section about polluters,
movements of dangerous waste and so forth. Additionally, various sorts
of reports, publications and presentations concerning environment are
also available on the website. e website is regularly updated with the
data on the quality of air, land, water, which suggests that the elements
2-4 of the transparency framework are being regularly communicated.
Whilst the rst three jurisdictions feature an extensive list of elements
(2-4), the fourth does not do so. Since international cooperation is
not substantively a core jurisdiction, the absence of 2-5 elements in
it will not be taken as a dening factor of the overall extensiveness of
transparency of SEPA.
SEPA provides information based on their on-ground inspections
of the material. It does not make decisions nor creates rules though.
erefore its transparency is considered to be full.
Directorate for Environment (DfE, Macedonia)
Similarly to the Serbian SEPA, Macedonian counterpart – the
Directorate for Environment has been part of their ministry responsible
for the issues related to environmental protection (Ministry of
Environment and Spatial Planning70). It, therefore, does not feature as
a non-majoritarian or regulatory agency. Instead, this institution has
70 Ministry’s website, from: www.moepp.gov.mk/
been added to the sample of analysed administrative bodies, for the
reasons cited in the methodological section.
According to the Law on Environmental Protection, DfE’s major
jurisdictions are:
• carrying out professional activities in regard to the protection
of nature, water and soil;
• carrying out professional activities in regard to the management
of the waste, air, chemicals and other areas of environment;
• monitoring the state of the environment; and
•
keeping the Environment Cadastre and the register of polluters.
71
DfE does not have its own website. Since it operates as a part of Ministry
of environment and spatial planning, all information relevant to its
work is available at the ministry’s website.
e following table summarises the transparency of DfE:
Table 12. Transparency of DfE across jurisdictions.
Competence 12345
Professional activities in regard to the environment
protection and management of dierent areas of the
environment
Monitoring of the state of the environment
Keeping the Environment Cadastre and the register
of polluters
Overall transparency pp
Source: Ministry’s ocial website:www.moepp.gov.mk/#. Sign “p” indicates partial
website presence of the given element in the observed jurisdiction. Fields 1, 2, 3, 4, 5
denote the ve elements of transparency, as introduced in Part I.
71 Law on Environmental Protection (Ocial Gazette 53/05), from: www.moepp.
gov.mk/?page_id=901
92 93
DfE has not encompassed as many elements of transparency as the
Serbian SEPA has, but it has, nevertheless, featured the rst one
(transparency of rules) across all jurisdictions. All rules concerning
DfE’s jurisdictions are available on the ministry’s website. In regard
to the third element, the ministry’s website contains various sorts of
reports, studies and registers about waste, water, soil and other areas
of the environment. For the process of monitoring the environment
quality, DfE oers its control-related information, such as the data
about the measuring stations. e feedback process have not been
part of the communication toward the public. Possible reason for this
is that DfE, due to its institutional status, is unable to deal with this
sort of concern. Generally, though DfE has exerted a medium degree
of transparency, it would be useful for DfE to create its own website
where information about its activities would be presented in a clear
manner.
Part III
10. Comparative analysis
Comparative overview
In this section, we present a comparative overview of the empirical
evidence about the ten agencies’ transparency regimes. Based on the
individual case studies, presented in Part II, the table below summarises
the ten agencies’ transparency regimes:
Table 13. Agencies’ transparency, as measured in the individual case studies
presented in Part II (“p”: the agency implemented the given element partially).
1
Transparency
of decision-
making process
2
Transparency
of rules
3
Transparency
of regulated
activities
4
Transparency
of regulator’s
controls
5
Transparency
of feedback
Tel e c om s
RATEL (S) p pp
AEC (M) p
Market competition
CfPC (S)
CfPC (M) p
Media
REM (S) p p
AVMS (M)
Energy
EA (S) p
ERC (M) p
Environment protection
SEPA (S)
DfE (M) pp
ere seem to be certain similarities when it comes to the individual
elements of transparency themselves. Firstly, all agencies, with no
exception, communicate the second element: transparency of rules.
us, relevant laws, by-laws, guidelines, instructions and other
documents regulating the market are all available on the agencies’
94 95
websites. Secondly, a majority of the observed agencies release their
decisions (the rst element of transparency) in a regular and consistent
manner. e exceptions are the cases where only a small portion the
overall number of decisions is made transparent, such as in the case of
AEC, or when one type of decisions is published and other types are
not, as on the websites of REM and RATEL.
Another similarity can be noticed in respect to the third element
(transparency of conduct of the regulated subjects): most of the
available information about the regulated subjects can be found
in annual market analyses provided by the regulators. ough
informative, such analyses usually do not contain full data about all
regualtees. Besides, the internet presentations typically contain the
standard details the citizens are interested in, pertaining primarily to
the services’ prices (gas, electricity, mobile phone prices, and so on).
Overall, websites containing a section about the individual regulated
subjects are rare. Role models in this regard are the media regulators –
REM and AVMS, who oer individual sections for each of the media.
Furthermore, the agencies rarely communicate information about
their own behaviour. What is oen missing is the information on what
kind of controls the agencies conduct and in what way, in their day-to-
day enforcement (the fourth element of transparency).
e h element, the transparency of feedback, has mostly been
conned to publishing judicial reviews of agency’s decisions as well as
the regulatees’ comments on rules by the agency. Citizens’ comments
and complains, and experts’ opinions, are not a common feature of the
analysed websites.
In contrast to this relative trend of cross-element similarities,
considerable variations can be observed in the exhibited transparency
levels across the agencies. Some agencies feature almost the maximal
(AVMS) or nearly maximal degrees of transparency (REM, Serbian
CfPC – with four out of the ve elements present), whereas other
have been found to communicate three elements or fewer (EA, ERC,
Macedonian CfPC).
is diverse picture leads to several inferences and questions. First,
the data illustrate the heuristic value of the ve-pronged framework
proposed. If the “traditional concepts” of transparency (Lodge 2004:
123-124) are used – those based on a legal-administrative understanding
which focuses on a two-dimensional framework – we would not be
able to pinpoint these major dierences among the agencies. us,
if the two-dimensional concept is applied - consisting solely of the
transparency of decision-making and the transparency of rules – the two
commissions for market competition (Serbian CfPC and Macedonian
CfPC) would appear identical in their transparency regimes, whereas
in practice, as the table above indicates, they have been substantively
dierent. Moreover, the “ticked” elements (transparency of conduct,
control, and feedback) – which some agencies enforced and others
did not – are not some minor details noted for the sake of analytical
acrobatics. On the contrary, they represent key elements in the logic of
agency enforcement and profoundly aect the outcomes, interests and
rights of the involved parties. In that sense, it is corroborated that the
ve-pronged concept of transparency brings a substantive value to the
study of agency transparency.
e above description poses very important questions regarding the
central concern of the study: Which factors explain the observed
variations in transparency levels across the ten agencies? Why do
some agencies communicate more and others less extensively? Do
the theoretical accounts, set out in Part I of this study, contribute to
the explanation of the transparency dierences? If so, which are those
accounts and in what way?
e following section seeks to provide answers to these questions.
96 97
Assessing variables and hypotheses
e following table oers the constellation of the theorised independent
variables, and the observed transparency levels as the dependant variable.
For the full calculation of particular independent variables’ values,
please refer to Appendix.
72 See Appendix III
73 See Appendix II
74 Source: Agencies’
websites.
75 Source: Agencies’
websites.
AGENCY COUNTRY-
LEVEL SECTOR-LEVEL AGENCY-LEVEL OUTCOME
Political
competition
Libera lisation Information
cost
Media
exposure72
Formal
independence73
Age74 Resources75 Transparency
extensiveness
RATEL (S)
AEC (M)
CfPC (S)
CfPC (M)
REM (S)
AVMS (M)
EA (S)
ERC (M)
SEPA (S)
DfE (M)
High
Low
High
Low
High
Low
High
Low
High
Low
Partial
Consi derable
-
-
Partial
Partial
Low
Low
-
-
Medium
Medium
Low
Low
Low
Low
Medium
Medium
High
High
Medium
High
Medium
Low
High
High
Medium
High
Low
Low
0.70
0.79
0.69
0.70
0.86
0.90
0.88
0.82
Low
Low
10
10
10
10
12
18
10
12
11
10
122
137
31
21
82
59
38
28
71
-
123*5*
235*
1234
123*
1*2345*
12345
123*
123*
12345
123*4*5
Table 14. Constellation of the independent variables and the agencies’ transparency extensiveness.
“*” – the agency implemented the given element to some extent (partially).
98 99
As a reminder, the research strategy employed in this study is based
on cross-national and cross-sectorial comparisons and furthered by
a cross-agency comparison. us, the questions for the start would
be: Based on the table above, is it possible to identify distinct national
or sectorial patterns? Do the dierences in agency specics (such
as age, de-jure independence, media exposure, resources, de-jure
transparency) correlate with the dierent outcomes, including those
in transparency?
In what follows, we will begin with presenting the sectorial factors.
Information costs, the rst sector-level variable, does not feature as a
plausible explanatory factor. Our hypothesis H6 stipulates that high
information costs lead to a lower degree of transparency. Contrary
to that, the empirical evidence shows that some agencies with high
information costs (e.g. SEPA) have been extensively transparent,
whereas certain agencies with low information cost (e.g. Macedonian
CfPC) demonstrated an “abridged” form of transparency. erefore,
information costs do not oer explanatory power for the transparency
level; correlation between various degrees of information costs has
not been found either, nor has the predicted direction always been
materialised.
One reason could be that, although some information are highly
technical by their nature, they may also be very important for people’s
well-being or may involve some sort of value judgement (Reiss, 2009:
116); therefore, they have to be shared with the broader public. Support
for this explanation could, for example, be found in the Serbian Law
on Environmental Protection, which lays down a general principle that
“in realising their rights on healthy and safe environment, everyone
has the right to be informed about the state of the environment”.76
76 Law on Environmental Protection (Ocial Gazette 135/04, 36/09, 36/09, 72/09,
43/11), from: www.paragraf.rs/propisi/zakon_o_zastiti_zivotne_sredine.html
us, even if information costs are high, the question of environmental
protection is so important that the relevant authority must respect
citizens’ right to be informed about the on-ground realities.
Liberalisation, another sector-level variable, has been assumed to be
positively correlated with the degree of agency transparency: the more
liberalised the sector, the greater the agency/regulator transparency is
(H7). Assessing the plausibility is dicult on a deterministic level; the
empirical evidence suggests that are (rare) examples running against
the logic of H7, but it also contains points to several examples that
conform to the H7 expectations. AEC, an agency operating in the most
liberalised sector in our sample (telecommunications in Macedonia),
oers an example of a very limited transparency, which runs against
the hypothesis’ expectation. On the other hand, the agencies operating
in sectors with a low degree of liberalisation (EA, ERC) have been
little transparent, as the hypothesis predicts; likewise, those agencies
where sectors have reached a certain stage of liberalisation (RATEL,
REM, AVMS) have been considerably transparent agencies. is lends
support to the hypothesis H7.
It is hard to say whether AEC represents an “odd man” out and
whether, should the sample be bigger, signicant correlation would
appear between the degree of liberalisation and transparency. But,
what can be made as a provisional conclusion is that the agencies
in non-liberalised sectors seem to be less prone to extensive forms
of transparency. e ndings can also be interpreted in the following
way: liberalisation may be a necessary, but not a sucient factor
for extensive transparency. In other words, high degrees of the
agency transparency may not be possible without (certain level of)
liberalisation; but also a prior liberalisation itself is not a guarantee
that the agency will be transparent. is would mean in conjunction
with liberalisation another factor (s) is needed to make the agency
transparent. In conclusion, the variable “liberalisation” may be oering
some, but not deterministic explanatory power.
100 101
On the other hand, the country-level variables may be oering greater
explanatory power. If we divide the ten agencies along the national
lines, into the group of Serbian and Macedonian ones, we might note
dierences in transparency between the two groups. e Serbian
agencies appear as featuring more extensive transparency regimes.
is pattern seems consistent, to a lesser or greater extent, along three
out of ve sectors. For example, Serbian CfPC is considerably more
extensive than its Macedonian counterpart CfPC. Serbian RATEL and
SEPA have expressed slightly more extensive forms of transparency
compared to Macedonian AEC and DfE. e energy regulators
(Serbian EA and Macedonian ERC) and the media regulators (AVMS
and REM respectively) have been almost equally transparent. It cannot
be argued that in the observed pairs of agencies, Serbian agencies are
overwhelmingly more transparent than their Macedonian counterparts.
However, the identied dierences between the two countries may
point to certain systemic dierences.
ese cross-national dierences might indicate particular patterns of
agency transparency in each country. In order to explain them, it would
be necessary to focus on the country-level factors that dier between
the two states. ere are many similarities pertaining to the macro-
political settings between Serbia and Macedonia, including their status
as transition countries, external EU conditionality, common legal and
administrative history, and the likes. Yet, one of the rare factors that
substantively diers, as explained in Part I, is the nature of political
competition. is factor is especially worth considering as it might
be contributing to the dierent agency transparency levels in the two
states. Serbia and Macedonia feature similar political systems (semi-
presidential democracies), with similar legal-administrative legacies,
cultures, externally driven agendas and similar challenges. Yet, they
greatly dier when it comes to the degree of political competition. For
example, Serbia has been characterised by an extremely fragmented
party system from 2001 to 2014, with considerable uncertainty in each
parliamentary (and presidential) elections – except for the latest one
in 2014.77 On the other hand, the Macedonian realities have seen less
uncertainty in this regard. Macedonian party system can be dened
as a system with one predominant party (Aziri, 2013), that is VMRO-
DPNE which has won all early parliamentarian and presidential
elections since 2006.78 Almost a decade-long dominance of this party
enabled greater concentration of power, not only in the political but
also in other realms, economic being one of them.
erefore, Hypothesis 8 - “greater degree of political competition
leads to more extensive forms of transparency” - may oer a plausible
explanation of the varying transparency levels. It is dicult to pinpoint
the exact mechanisms implied by this hypothesis due to the lack of
tangible data and the inability of gaining insight into the “black box”
of the underlying process taking place between the political elite and
the regulator. However, the systemic dierences in the outcomes,
i.e. levels of transparency that we observed across the two countries,
78 Note that the margin between the two largest parties in Macedonia in the
election held between 2006 and 2014 has not necessarily been larger than the
margin between the two largest parties in Serbia, but according to a widespread
perception, and which is dierent than Serbia, the incumbent VRMO-DPNE had
been expected in all elections to stay in power (with a safe-option of having one of
the Albanian ethnic parties as a future coalition partners).
In the nal project conference, organised in London by the mentoring institution
Centre for Analysis of Risk and Regulation (CARR, LSE), Dr Jan Meyer-Sahling
from the University of Nottingham pointed out that the situation in Serbia and
Macedonia is in fact the reverse: Serbian party system is dominated by one strong
party (SNS), whereas Macedonia moves towards a polarised two-block system. is
is indeed true, however, the mentioned developments have unfolded only recently,
while the agencies’ transparency we observed encompasses the work that had been
performed before the changes of the party systems gained momentum.
77 For full details about the previous elections in Serbia, please see the edition of
the Centre for Free Elections and Democracy (CESID), from: www.cesid.org/lt/
articles/izdanja/oko-izbora/
102 103
together with other accompanying indicators, point to the need for
further exploration of the politics-regulators nexus in less developed
societies.
So far, one sector-level variable (liberalisation) and one country-level
determinant (political competition) have showed some (limited)
explanatory potential. Now we need to turn to the agency-level factors
- age, resources, media exposure, de-jure independence, and de-jure
transparency - in search for explanations of the variations in the
outcome.
Contrary to the expectations of the existing literature, the agencies’ age
does not oer strong explanatory power. e agencies of similar age have
exercised dierent levels of transparency. What is more, the analysis
has shown that our rst hypothesis (H1): “Older agencies tend to be
less transparent”, works in the opposite direction in the observed cases.
For example, the most transparent agency in our sample is the oldest
one (AVMS). However, the role of this agency-level variable should
not be fully dismissed. If understood as a resource for institutional
learning and a factor that contributes to further institutionalisation,
age may be linked to the question of democratisation stage and wider
macro-political changes that strongly inuence the transparency
agencies. In that sense, age may be coupled to national-level variables.
Next, the analysis suggests that bigger resources do not necessarily
imply more transparency (H2). e agency with the small number of
sta (Serbian CfPC) turns out to be highly transparent, while some
other agencies with far more employees have communicated fewer
elements of transparency (RATEL, AEC). However, despite the cross-
agency variations in the amount of resources, the question is whether
all of them can be qualied as lowly-resourced in general terms. If we
compare RATEL with 137 employees and British Telecoms regulator
OFCOM79 with 766 employees, or SEPA’s 71 employees compared to 1500
employees of the Germany’smainenvironmentalprotectionagency,80
we come to the conclusion that the agencies we analysed are endowed
with a low level of resources (despite the potentially wider range of
competencies and bigger markets in UK and Germany).81 Although
in our sample the agencies’ resources did not prove to be a signicant
explanatory variable, it should be noted that their variation across the
agencies may have not been as substantial. Instead, they had been a
constraining factor for all agencies due to its “low” value.
Media exposure is the third agency-level variable. e assumption that
more media scrutiny leads to more extensive transparency (H3) does
not seem convincing in our sample, because some agencies which had
been highly exposed in media, such as AEC and ERC, have shown the
abridged forms of transparency. Unlike them, some highly exposed
agencies have been highly transparent, such as REM and AVMS.
Contrary to the expectations again, some agencies that have generated
little media interest (SEPA) have been transparent to a signicant
extent. e lack of support for our media related hypothesis (H3)
can potentially be explained by the fact that the media, in general,
are not interested in all aspects of agencies’ work but only in some of
their activities. Sometimes, one feature of an agency’s work attracts
plenty of attention, while other features remain unnoticed in media
reports. For example, energy regulators are usually under intense
media scrutiny when it comes to energy prices and under far lesser
scrutiny when other aspects of their work are at stake. is means that
the pressure exerted by the media varies from one to another agency’s
task. is can reect in lower levels of transparency regarding one set
79 OFCOM’s website, from: www.stakeholders.ofcom.org.uk/binaries/foi/2011/
february/1-166510234Response.pdf
80 UBA’s website, from: www.umweltbundesamt.de/en/the-uba/
81 is was a unanimous remark by all interviewees and also a widely shared public
impression.
104 105
of issues as opposed to the issues expected to be more transparent due
to higher media exposure. e regulators from Serbia and Macedonia,
who attended the rst round-table within this project on 20 December
2014 in Belgrade, pointed out that their work gets media attention
either when a scandal breaks out or when issues of wider societal
interests are on the table (e.g. electricity prices). Many of the vital
issues in the agencies’ domain, however, remain underreported by the
media. is is probably the reason why media exposure did not show
higher explanatory power in our study.
De-jure independence of the agencies, as measured by “Gilardi index”,
does not appear to shape the agencies’ level of transparency either. In
contrast to the assumption that higher de-jure independence leads to
more extensive transparency (H4), some agencies with a very high index
of de-jure independence (e.g. EA) have turned out less transparent than
other agencies with extremely low de-facto independence (e.g. SEPA,
which is not a non-majoritarian institution either). Literature shows
that high de-jure independence does not necessarily translate into
high de-facto independence (Hanretty and Koop, 2013: 212). Based
on our study, this argument can be taken further. We argue that high
de-jure independence does not determine any other aspect of agency
enforcement either, including agency transparency.
Unlike other agency-level variables that we gauged in this study, striking
correlation is established between the de-jure transparency and the de-
facto transparency:
Table 15. De-jure transparency vs. de-facto transparency of the ten agencies
(* - the agency implemented the given element partially).
Agency De-jure transparency De-facto transparency Dierence between de-jure
and de-facto transparency
RATEL 1*, 2, 3*, 5* 1*, 2 ,3*, 5*
AEC 1, 2, 3, 5* 2, 3, 5* 1
CfPC (S) 1, 2, 3* 1, 2, 3, 4 3*,4
CfPC (M) 1, 2, 3* 1, 2, 3*
REM 1*, 2, 3*, 4, 5* 1*, 2, 3, 4, 5* 3*
AVMS 1,2,3,4, 5* 1,2,3,4,5 5*
EA 1,2, 3* 1,2,3*
ERC 1,2,3* 1,2,3*
All agencies have displayed very similar patterns of de-facto and de-
jure transparency, with the exception of Serbian Commission for
Protection of Competition (CfPC). In 2013, Serbian CfPC made a
decision to publish a broader list of elements than it is required by
the Law82 which is why there is signicant dierence between its de-
jure and de-facto transparency in favour of the de-facto transparency.
However, generally, the above table shows that the agencies did not
go far beyond the legal provisions in exercising their transparency.
Striking congruence between the two sorts of transparency lends
strong support for our Hypothesis 5, which suggests that de-jure
transparency requirements determine – to a considerable degree –
what the agencies will actually communicate through their websites.
One possible explanation for this strong correlation may be that the
scarce resources prevent the agencies from publishing more elements
than the law stipulates. Preparing and uploading information on the
website is a time- and resource-consuming activity; even more so if it
82 CfPC’s website, from: www.kzk.gov.rs/kzk/wp-content/uploads/2013/05/144-2-2.
pdf
106 107
is undertaken on a daily basis and in the context of heavy workload.
Under such settings, the opportunity costs of publishing data that are
not part of the formal obligations may be very high. Moreover, the
agency may prefer to use the resources for completing other important
tasks. As Reiss put, “since agencies have limited resources, they would
not want to spend more on accountability behaviours than they have
to” (2009: 117).
A somewhat dierent view, however, would suggest that institutions
in transition states are still dominated by the legal-administrative
tradition, which places an emphasis on legally binding means of
accountability. It would not be surprising if agencies in such societies
see the principals as ultimate sources of authority, which then leads
to a more “sti ” understanding of accountability that resembles what
is theoretically articulated as vertical accountability. Where such an
understanding prevails, little regard is given to “alternative” means of
accountability, including non-obligatory aspects of transparency. In
favour of this assumption is the opinion of a regulator’s representative
who was interviewed in this project. When asked whether their agency
publishes data concerning the control of regulatees’ conduct (the fourth
element of transparency), the regulator’s representative replied:
“We control the conduct of the regulatees, but we do not
make those information publicly available. We do not
publish it on the website, because Article 67 of the Law on
Market Competition explicitly enumerates what we must
publish”. (a response from Macedonian CfPC’s member)
We will return to this point in the following section,
while discussing in more detail the relationship between
accountability and transparency. At this point, it should be
noted that Hypothesis 5 seems to oer perhaps the most
plausible explanatory account of the observed patterns of
transparency across the ten agencies.
Before we turn to the next section, we will briey recap which of
the hypothesised factors seem to have received empirical support as
determinants of transparency regimes.
Table 16: Reviewing the hypotheses (“p”: the hypothesis nds only partial
support).
Agency-level
Age: Older agencies tend to be less extensive in their transparency (H1) x
Resources: more resources, more extensive transparency (H2) x
Media exposure: More media scrutiny leads to more extensive transparency (H3) x
De-jure independence: e higher the de-jure independence, the more extensive
the transparency (H4) x
De-jure transparency: e more extensive de-jure transparency is, the more
extensive de-facto transparency will be (H5)
Sector-level
Information costs: High information costs lead to a lower degree of transparency
extensiveness (H6) x
Liberalisation: Greater liberalisation implies more extensive IRA’s transparency
(H7) p
Country-level
Political competition: Greater degree of political competition leads to more exten-
sive forms of transparency of the regulators/agencies (H8) p
To summarise, the level of liberalisation (sector-level variable) and
party competition (country-level variable) may be oering some
explanatory power in accounting for the dierences in the agencies’
patterns of transparency. It is, however, de-jure transparency (agency-
level variable) that may have been the crucial driver behind the
dierences of the agencies’ transparency.
108 109
As it usually goes, interdependencies of the hypothesised variables are
not to be excluded either. For example, as agencies age and their society
shis towards a more developed one, the role of de-jure transparency
may diminish. During this process, the agencies increasingly depart
from the legal-administrative view of accountability, realising the
need for having more extensive transparency than the legal framework
obliges them to. To discover more about interacting or mediating
eects among the variable, a broader sample would be needed. Yet,
what needs to be emphasised is that sector-level and national-level
factors, even if characterised as being of secondary importance to
agency-level determinants, are by no means irrelevant and as such are
worth taking into account in the future studies in this eld.
Part IV
11. From transparency to accountability
is study has shown that ten regulatory agencies in Serbia and
Macedonia have exercised dierent levels of transparency in the time
period between 2013 and 2014. De-jure transparency, as mentioned,
has proved to be the most signicant factor inuencing agencies’
factual transparency. In other words, the observed dierences in
agencies’ transparency result from the dierent legal requirements
in regard to the transparency enforcement. It is very encouraging
that some laws, in both Serbia and Macedonia, prescribe high levels
of transparency, (e.g. laws regulating legal status and jurisdictions
of REM, AVMS, and SEPA). Still, this is not the case in all sectors;
some agencies have shown abridged forms of transparency following
the modest legal requirements in their elds (e.g. EA, CfPC).83 is
indicates that traditional concept of accountability still dominates
agencies’ enforcement in Serbia and Macedonia.
e traditional concept of accountability involves agencies’ formal
duty “to account for their actions to ministers, Parliament, and to
courts” (Scott, 2000: 40). Consequently, the agencies follow legal
requirements imposed by these political and judicial institutions,
including requirements to publish certain data about their activities.
Given the legacy of centralised political systems which leave little
room for horizontal controls, it is not surprising that Serbian and
Macedonian public bodies still consider accountability primarily as
vertical, that is as accountability to central political intuitions (Scott,
2000: 40). In doing so, they may have overlooked the importance of
83 Positive exception in this respect is Serbian Commission for Market Competition
who made a decision according to which it commits to publishing a broader list of
information than required by the Law in order to increase its transparency.
110 111
horizontal accountability, that is “[the] accountability to citizens and
stakeholders” (Meijer, 2014: 513). Furthermore, the mechanisms of
horizontal control have been disregarded due to the initial lack of
experience and knowledge of the wider public about independent
agencies and the lack of media attention in regard to their work. Lastly,
since precondition for horizontal accountability is transparency of
agencies’ work, additional resources were needed to be invested in
making agencies’ enforcement more transparent. us, the process
of accelerated “agencication”, which was driven by the EU pressures
(Musa and Kopric, 2011: 34), accompanied by a lack of experience and
the media and citizens’ attention, signicantly limited the potentials
for enforcement of horizontal accountability.
As experience in developed countries has shown, it is necessary
that the horizontal control, provided by citizens and stakeholders, is
combined with the vertical control, if agencies’ accountability is about
to be improved. Since the precondition for horizontal accountability
is transparency of agencies’ work, agencies are supposed to “put
more light” on their work. e existing empirical studies show that,
generally speaking, transparency is indeed an eective mechanism
for allowing media and stakeholders to make public authorities more
accountable for their actions (Meijer, 2014: 516). For example, NGOs
using information to point to government corruption in India, the
Watergate Investigation, or the Dutch newspaper using data about
school performance to call schools to account, are some of the cases
listed in literature as evidence of how transparency can be used to make
public institutions more accountable (Meijer, 2014: 516). Transparency
of agencies’ enforcement is also an eective preventive measure. e
fact that agencies know that someone watches them work, may force
them to be more accountable for their actions (Meijer, 2014: 509).
12. Conclusion
While independent agencies had initially been seen “as a technocratic
and ‘clean’ (i.e. non‐political) device […] capable of bringing to
bear greater professional expertise than the judiciary […] concerns
were soon expressed with the growing discretionary powers of these
administrative bodies” (Lodge and Stirton, 2010: 353). e question
of agencies’ accountability and control of their enforcement, thus,
has occupied a central place in the study of agencies and regulators.
It has been suggested that one of the most eective mechanisms for
improvement of agencies’ accountability is to encourage them to be
more transparent. e idea behind this is Bentham’s notion that “the
closer we are watched, the better we behave” (in Lodge and Stirton,
2010: 353).
Driven by these concerns, we sought to explore the transparency of ten
agencies from Serbia and Macedonia, operating in ve major regulated
sectors. Our research questions have been: How transparent are the ten
agencies and what explains their levels of transparency? e empirical
analysis was based on the content of the ten agencies’ websites,
observed from 2013 to 2014. e research ndings have conrmed
our expectation that, in a transitional context, agency transparency is
not granted to be full, but certain “abridged forms” of transparency can
be observed as well.
e agencies’ transparency has exhibited a considerable degree of
variation, along the agency, sectorial and country lines. However,
the distinct agency-level patterns suggest that national patterns
(political competition) and the sector-level factors (liberalisation and
information costs) do not oer superior explanation for the observed
levels of transparency. Within the group of agency-level factors
dierent levels of the agencies’ de-jure transparency seem to have
facilitated dierent patterns of factual agency transparency. Although
112 113
not oering as encompassing explanation of the transparency levels
as de-jure transparency seems to be, some sector- and nation-level
factors may have had some eect on the agencies’ transparency though.
Specically, political competition (nation-level) may have played out
as an additional contributor (in Serbia) or detractor (in Macedonia)
from agency transparency, and also a greater level of liberalisation
seems to have further facilitated transparency in most, but not all of
the analysed cases.
e ndings suggest that traditional concepts of accountability and
transparency still dominate the regulatory intuitions in Serbia and
Macedonia. is means that the agencies mainly communicate the rst
and the second element of transparency (rules and decisions), which
is consistent with the traditional legal-administrative understanding
of transparency. Moreover, central political institutions are still the
ultimate authorities of control of the agencies’ enforcement, as well as
the agencies’ behaviour in regard to transparency. is conrms that
the prevailing understanding of accountability is the one of vertical
(hierarchical) process of control. is is not a surprising nding given
the social and political context in the two countries.
In order to contribute to the debate about the agencies’ transparency
regimes, we suggest the following. e agencies should communicate
more information about the conduct of regulated subjects, about the
control proved by the agencies themselves, and the details concerning
feedback, which are the third, fourth and h elements of transparency
respectively. We also suggest the improvement of transparency regimes
– either by means of legal changes or through voluntary activities of the
agencies themselves. Lastly, we suggest that all interested social actors
pay more attention and engage in discussions about the agencies and
their activities.
In addition to its practical contribution, this study oers guidelines
for the future research on agencies’ transparency regimes. e present
analysis has shown that the ve-pronged framework could be a useful
device for measuring the extensiveness of agencies’ transparency.
However, given the problem of “too many variables, too few cases”
(Goggin, 1986) the upcoming examinations of agencies’ transparency
should use larger samples to test some of this study’s ndings. Future
research of agency transparency may focus on the role of both
political dimension, i.e. political competition (which may have been
elsewhere termed “party institutionalisation”), as well as the economic
dimension, i.e. liberalisation, in shaping regulators’ conduct. One
possible way forward in seeking systematic explanatory patterns
of transparency regimes may include more complex models, which
would rely upon mutual interactions of variables used in this study
and some novel variables, too.
114 115
Recommendations
e recommendations provided in this section are aimed at three types
of actors in the regulatory area: (i) agencies, (ii) agencies’ principals,
(iii) external evaluators, (iv) stakeholders, citizens and media.
Policy recommendations for agencies
(1) Agencies are advised to increase their de-facto transparency. Legal
framework regulating the status of agencies in Serbia and Macedonia
varies in terms of the levels of transparency it stipulates. For example,
the laws regulating the work of REM, AVMS and SEPA prescribe high
levels of transparency; however, this is not the case with EA or ERC.
Where the laws do not require full transparency - as dened in the
theoretical framework used in this study – the agencies can choose
to improve their transparency voluntarily. A good example of that is
Serbian Commission for Protection of Competition, which voluntarily
made the decision to improve the transparency of its work.84
(2) e agencies should communicate more information about the
conduct of the regulated subjects (third element of transparency).
While most of the time rules and agencies’ decisions are being
published orderly and consistently on the agencies’ websites, the
information concerning the actual behaviour of the regulatees is
limited. All agencies in our sample do provide some sort of information
on this topic; however, this is little compared to the amount of non-
shared information that agencies normally collect about individual
actors. Moreover, other sorts of materials about regulatees’ behaviour,
besides market analyses, are rare on the agencies’ websites. Although
informative, market analyses usually do not contain full data about
84 CfPC’s website, from: www.kzk.gov.rs/kzk/wp-content/uploads/2013/05/144-2-2.
pdf
all regualtees. Some agencies, such as AEC, REM, AVMS, publish
comparative overviews of the service quality in their sector. is
kind of material, however, is not a common feature for all agencies
and is not produced in a regular manner. Agencies can provide, in
accordance with their jurisdictions, more analyses, reports, overviews
and other similar materials containing detailed information about
regulated subjects.
(3) Agencies could also communicate more information about the way
they control regulated subjects (the fourth element of transparency).
e agencies with the mandate to impose measures against regulatees
who are violating the law, such as REM, AVMS and CfPC, publish
their decisions regularly. However, the major part of agencies in our
sample does not provide any sort of reports or other documents
containing details about the way they actually conduct the control of
regulated subjects. Legal basis and general procedures for the control
are explained on their websites, but the specic reports are missing.
In that sense, it is necessary that the agencies put more light on this
aspect of their work. More details about the control of regulated
subjects in the form of reports or decisions would be useful. A good
example in this regard is AVMS, as they regularly publish reports
containing information about the control of every regulated subject
in their sector.
(4) Agencies could communicate more information about the feedback
they receive (the h element of our transparency framework). Most
of the agencies publish the regulated subjects’ comments in regard
to the regulatory rules. ey also publish judicial decisions about
complaints on agency’s decisions. Nevertheless, citizens’ complaints
and objections, as well as experts’ opinions are rarely published.
Based on their annual reports, the agencies receive hundreds of
citizens’ complaints of all sorts. For example, Serbian EA received
116 117
201 complaints in 2014,85 RATEL received 869 complaints in 2012.86
However, most of the agencies do not publish these complaints, neither
individually nor in the form of reports. Such publications would be
useful as they oen contain information about the most common
citizens’ problems, about the main market actors that citizens complain
about, citizens’ concerns in regard to the agency’s work and so on. If
individual complaints cannot be published due to, for example, data
protection principles, then agencies should provide reports containing
overviews of all complains. A good example, in that sense, is British
regulator for telecommunications OFCOM who provides reports
with an overview of all individual complains, citizens’ questions and
OFCOM’s answers to those questions and so on.87 Publishing feedback
information improves the quality of services of the agency, on the
one hand, and of the regulated subjects on the other. Also, expert
analyses, studies and opinions should be produced and published in
greater numbers. RATEL’s website can serve as a good example in this
respect, as they regularly publish reports by independent auditors
about telecommunication companies’ nances.
(5) As for data presentation on the agencies’ websites, there is still
room for improvement. e transparency of website is not only
about the content of the uploaded materials. What matters, too, is
the way in which the data is presented, from the overall layout of a
website, to adequate organisation of material, user-friendly options
85 ЕА›s Annual report for 2014, from: www.aers.rs/Files/Izvestaji/Godisnji/
Izvestaj%20Agencije%202014.pdf
86 RATEL’s Annual report for 2012, from: www.ratel.rs/upload/documents/O_Rate-
lu/Godisnji_izvestaj/RATEL%20IZVESTAJ%20ZA%202012.pdf
87 OFCOM: Telecoms Complaint Bulletin, from: www.stakeholders.ofcom.org.uk/
enforcement/telecoms-complaints-bulletin/and www.stakeholders.ofcom.org.uk/
enforcement/audience-complaints/
and other web design solutions.88 Serbian and Macedonian agencies’
websites usually do not provide summaries of all websites’ sections;
usually professional jargons and highly technical language is used. We
recommend the agencies to provide short explanations and guidelines
about the segments of their internet presentations and to use a
language more comprehensible to a wide audience. As a role model
in that sense, we single out the price calculator option presented on
the energy regulators’ websites in both countries. ere are several
other technical details that should be improved, too. For example, the
agencies’ annual reports should be uploaded in a searchable format,
and not as scanned documents; also, all websites should have the
„search“ option.
(6) We also suggest that the agencies improve their communication
with the media, watchdog organisations and other relevant groups,
such as consumer groups, as this can increase the agencies’ visibility
in public.
Policy recommendations for the agencies’ principals
As the study shows, legal provisions signicantly inuenced the
agencies’ de-facto transparency. erefore, Serbian and Macedonian
parliaments and governments should consider increasing the agencies’
de-jure transparency levels by making changes to the existing legal
framework. Yet, since preparing and releasing a broader set of data
can be resource- and time-consuming, the legislators should consider
increasing the agency’s resources as well. Besides, public hearings and
parliamentary debates concerning the agencies’ annual reports should
88 As Professor Martin Lodge, from the London School of Economics and Political
Science, noted in a project conference in Belgrade (May 2015): “Everything that
cannot be arrived at [on the regulator’s website] with two or three mouse clicks,
with a user-friendly navigation, is virtually useless” [from the perspective of
website visitors).
118 119
be used, as a good opportunity, for drawing attention to the question of
transparency.89 Lastly, MPs in both countries could make use of their
public prole to inform the citizens and stakeholders about agencies’
work.
Policy recommendations for external evaluators
Being the main promoter of the regulatory reform in Serbia and
Macedonia, the European Union should put more emphasis on the
question of agencies’ transparency, as this issue is rarely mentioned in
the EU progress reports. Similarly, the regulatory authorities on the
EU level, as well as other international organisations and bodies, could
provide guidelines concerning IRAs accountability and transparency.
eir experience and expertise, in form of best practices, would be
very helpful.
Policy recommendations for stakeholders, citizens and media
is study was primarily focused on the tasks and possibilities of
the agencies to increase the amount and quality of data that they
communicate with broader public. However, improvement of
horizontal accountability is not a unidirectional process, so other social
actors need to be involved, too. us, the media, citizens, watchdogs,
scholars and other stakeholders in Serbia and Macedonia should devote
more attention to the work of these agencies. By giving their inputs
into the process of regulation, these actors will exercise horizontal
accountability.
89 Note that rarely, if ever, were annual regulators’ reports discussed in both Serbian
and Macedonian Parliament.
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128 129
Appendix I
Acronyms
Serbia
RATEL Regulatorna agencija za elektronske telekomunikacije i poštanske usluge (Regulatory
Agency for Electronic Communications and Postal Services)
CfPC Komisija za zaštitu konkurencije (Commission for Protection of Competition)
REM Regulatorno telo za elektronske medije (Regulatory Authority of Electronic Media)
EA Agencija za energetiku (Energy Agency)
SEPA Agencija za zaštitu životne sredine (Agency for Environment Protection)
Macedonia
AEC Agencija za elektronski komunikacii (Agency for Electronic Communications)
CfPC Komisija za zaštita na konkurencijata (Commission for Protection of Competition)
AVMS Agencija za audio i audiovizuelni medijumski uslugi (Agency for Audio and
Audio-Visual Media Services)
ERC Regulator na komisija za energetika (Energy Regulatory Commission)
DfE Uprava za životna sredina (Directorate for Environment)
Appendix II
Table 17. Formal independence of the agencies
Index components RATEL AEC CfPC (S) CfPC (M) REM AVMS EA ERC SEPA DfE (M)
Agency head
Term length
Appointed by
Dismissal rationale
Head’s multiple posts
Is appointment renewable?
Is independence formally stated?
Management Board
Term length
Appointed by
Dismissal rationale
Multiple posts
Is appointment renewable?
Is independence a formal requirement for appointment?
Relationship with government and parliament
Is independence formally stated?
Obligation toward government
Obligation toward parliament
Who can overturn decisions?
Financial and organisational autonomy
Source of budget
How is the budget controlled?
Who control personnel policy?
Regulatory competencies
Who regulates the eld?
Index of de-jure independence
0.60
1.00
0.67
0.00
0.00
0.00
0.38
0.60
0.75
0.67
0.00
0.50
0.00
0.42
1.00
0.67
0.67
1.00
0.83
1.00
0.67
1.00
0.89
1.00
0.70
0.60
1.00
0.67
1.00
0.50
0.00
0.63
0.60
0.50
0.67
1.00
0.50
0.00
0.51
1.00
1.00
0.67
1.00
0.92
1.00
0.67
1.00
0.89
1.00
0.79
0.60
0.50
0.67
1.00
0.00
1.00
0.63
0.60
0.50
0.67
1.00
0.00
1.00
0.63
1.00
0.33
0.67
0.67
0.67
1.00
0.33
1.00
0.77
0.75
0.69
0.60
0.50
0.67
1.00
0.00
0.00
0.46
0.60
0.50
0.67
1.00
0.00
0.00
0.46
1.00
1.00
0.67
1.00
0.92
0.00
1.00
1.00
0.67
1.00
0.70
0.60
1.00
0.67
1.00
0.50
1.00
0.78
0.60
0.50
0.67
1.00
0.50
1.00
0.71
1.00
1.00
0.67
1.00
0.91
1.00
0.67
1.00
0.89
1.00
0.86
0.80
1.00
0.67
1.00
1.00
0.00
0.74
0.80
0.75
0.67
1.00
1.00
1.00
0.87
1.00
1.00
0.67
1.00
0.92
1.00
0.67
1.00
0.89
1.00
0.90
0.80
0.50
0.67
1.00
0.50
1.00
0.74
0.80
0.50
0.67
1.00
0.50
1.00
0.74
1.00
1.00
0.67
1.00
0.92
1.00
1.00
1.00
1.00
1.00
0.88
0.60
0.67
0.67
1.00
1.00
1.00
0.82
0.60
0.67
0.67
1.00
0.50
0.00
0.57
1.00
0.67
0.67
1.00
0.83
1.00
0.67
1.00
0.89
1.00
0.82 Low Low
Source: Relevant laws regulating the legal status of the ten agencies.
130 131
Explanation: e table shows how the de-jure independence index is calculated for each of
the agencies (apart from the two environmental agencies which do not enjoy the status of non-
majoritarian institutions and as such enjoy a low degree of formal independence by denition). e
le column contains components of the “Gilardi index” (2002) with its constituent elements; points
are assigned for each of these elements according to the options listed in the original formula.
Appendix III
Media exposure
Table 18. e following media count shows the frequency of an agency’s appearance
in the media on an annual basis (2010-2014).
“AV”: the average for the four years; “Indexed”: adjusted values (divided by 1.49) for
the Macedonian agencies, as explained below.
2014 2013 2012 2011 2010 AV Indexed Exposure
RATEL 98 111 67 87 48 82.2 82.2 Medium
AEC 247 488 333 185 75 265 177.8 High
CfPC (S) 77 60 72 166 105 96 96 Medium
CfPC (M) 52 16 53 24 22 33.4 22.4 Low
REM 294 368 282 166 84 238.8 238.8 High
AVMS 198 428 632 567 142 393.4 265 High
EA 145 145 68 89 27 94.8 94.8 Medium
ERC 1036 1108 957 520 249 774 519 High
SE PA 57 20 28 28 828.2 28.2 Low
DfE 1992 7 5.6 3.76 Low
Sources Macedonian: “Time” search engines for the media sources (www.time.mk - for Macedonia,
and www.time.rs – for Serbia)
132 133
Index: We selected four major international events in 2014, which are assumed to have been covered
with similar degrees of interest by both Serbian and Macedonian media. We measured the proportion of
appearance of these events when searched on the Macedonian press-clipping service, compared to the
Serbian press-clipping. Surprisingly, the Macedonian media tend to produce more search results than the
Serbian media for events that are assumed to generate similar degrees of interest in the two countries. e
average value of these four proportions is 1.49, in favour of the Macedonian media. To make the media
exposure between the two countries comparable, we divided the scores obtained for the Macedonian
agencies by 1.49 (presented in the “indexed” column in the table above).
Ukraine: 38665 (M) vs. 27605 (S) proportion: 1.4
Malaysia: 5559 vs. 2912 (for Macedonia) proportion: 1.9
Sochi: 3757 (M) vs. 2688 (S) proportion: 1.39
Ebola: 4855 (M) vs. 3735 (S) proportion: 1.29
Average proportion (used for „indexation“ between the two countries): 1.49
Appendix IV
Table 19. Coding of the de-facto transparency of the agencies.
Five elements of
transparency Question of interest What sorts of materials indicate presence of the given element Partial presence
1. Decision-making
process Are decisions made known
to the public? All decisions the agency makes, published in full. Release of a portion, but not all decisions.
2. Rules Are the rules of the game
clear and spelled out by the
regulator? All rules which the agencies apply in a given competence Selective publishing or rules.
3. Conduct of the
regulated subjects
Can the public get
information about the
regulatees’ conduct?
Detailed reports, analyses, databases, decisions containing relevant
information about particular regulatees’ conduct, information about
ownership structure, quality, cost of services of individual regulated entities,
and other information relevant for a given sector. Registers and statistics are
not taken as evidence of existence of the third element of transparency.
It is possible to nd certain information about
regulated entities, yet neither are the full information
collected by the regulator available nor are all
regulated entities within the given jurisdiction
covered.
4. Regulator’s
conduct
Can the public nd out
more about the work of the
regulator herself?
Detailed reports on conducted monitoring, reports of market inspections,
decisions containing measures against regulated entities who did not act
in accordance with the law, the steps the agencies were taking to control
individual entities and so forth. General rules and norms of control are not
taken as evidence of existence of the fourth element of transparency; rather,
only information about control exercised in specic cases is regarded as
sucient evidence for coding the fourth element of transparency as present.
It is possible to nd certain information about how
the agency monitors and controls specic cases,
but the full information which about the conducted
controls and inspections is not publicly available.
5. Feedback
Does the public have
access to the content of
the regulatees’ or other
stakeholders’ feedback to
the regulator’s decisions?
Information about who submitted feedback: (1) citizens; (2) regulated
entities; (3) experts; (4) courts; (5) other stakeholders.
Two sorts of feedback in relation to the object of feedback are: (1) feedback
on the regulator’s behaviour; (2) feedback on regulated entities’ behaviour.
Partial presence of information who provided
feedback and/or who the object of this feedback
is. For instance, disclosing feedback about the
regulator’s, while withholding details about the
regulatee’s conduct.
Explanation: De-facto transparency of the ten agencies was measured by looking at what these agencies published on their websites. For
each element to be marked as present relevant data need to be published in full, rather than partially. e coding results, contained in Part
II of the publication, are displayed through 2x2 tables which help review which elements of transparency have been exercised, from one
jurisdiction to another
134 135
Appendix V
De-jure transparency of the ten agencies
De-jure transparency was measured by looking at the legal provisions that dene what kind of information the
agency has to publish on its website. All provisions that explicitly spell out this sort of obligation were taken into
account. Submission of annual reports and nancial plans, as well as decisions concerning public competitions,
are not included in the tables below. e same framework that was used for de-facto transparency is applied
for de-jure transparency as well.
e two environment protection agencies (SEPA, DfE) are not analysed here because the legislation regulating
their work does not contain particular provision that dene what levels of transparency they should meet.
e tables below present how thede-jure transparency of agency is worked out.
Table 20. Serbian RATEL’s de-jure transparency.
De-jure transparency Transparency extensiveness
- Session proceedings and decisions of the Managing Board 1*
- By-laws and other regulation 2
- Registers and databases 3*
- Comparative overviews of quality and price of the public services oered 3*
- Statistical data and other indicators of development of electronic communications 3*
- Analysis of relevant markets 3*
- Experts’ opinions, studies and analyses ordered by the Agency 5*
- Program of public consultation and opinions on the subject of public consultation 5*
Overall de-jure transparency of the agency 1*, 2, 3*, 5*
Source: Law on Electronic Communications (Ocial Gazette 44/10); available from: www.ratel.rs/upload/documents/Zakon/
Law%20on%20Electronic%20Communications%20rev%20June%202014.pdf
136 137
Table 21. Macedonian AEC’s de-jure transparency.
De-jure transparency Transparency extensiveness
- e agenda, minutes from the Commission’s meetings and the decisions taken 1
- Approval for the use of radio frequencies 1*
- Decisions about the right to use number 1*
- Decisions on disputes 1* and 5*
- By-laws and other regulation 2
- Rules and standards 2
- Quarterly and annual reports analysing the market 3*
- Information about operators commanding signicant market power 3*
- Costs for universal services 3*
- Registers 3*
- Completed procedures of supervision 4*
- Comments and opinions received by the participants in public meetings and debates 5*
Overall de-jure transparency 1, 2, 3, 5*
Source: Law on Electronic Communications (Ocial Gazette 39/14); available from: www.mioa.gov.mk/les/pdf/
dokumenti/zakoni/zek/Zakon%20za%20elektronskite%20komunikacii_2014.pdf
Table 22. Serbian CfPC’s de-jure transparency.
De-jure transparency Transparency extensiveness
- Decisions about infringement of competition 1 and 3*
- Initiation of the ex ocio procedure 1 and 3*
- Law 2
- Sectorial analyses 3*
- Announcement of submission of requests for suspension of procedure 3*
Overall de-jure transparency of the agency 1, 2, 3*
Source: Law on Protection of Competition (Ocial Gazette 51/09 and95/13); available from: www.kzk.org.rs/kzk/wp-content/
uploads/2011/07/ZAKON-O-ZASTITI-KONKURENCIJE.pdf and www.kzk.org.rs/kzk/wp-content/uploads/2014/01/ZK.pdf
Table 23. Macedonian CfPC’s de-jure transparency.
De-jure transparency Transparency extensiveness
- By-laws 2
- Commission’s decisions 1 and 3*
- e judgments (court decisions) 5*
- Notication of concentrations 1 and 3*
- Announcement about submission of requests for suspension of the procedure 3*
Overall de-jure transparency of the agency 1, 2, 3*
Source: Law on Protection of Competition (Ocial Gazette145/10 and 136/11); available from: www.kzk.gov.mk/images/
ZakonZaZastitaNaKonkSlves%20145%2010.pdf and www.kzk.gov.mk/images/ZakonZaZastitaNaKonkSlves%20136%2011.pdf
138 139
Table 24. Serbian REM’s de-jure transparency.
De-jure transparency Transparency extensiveness
- Minutes from the session 1*
- Decisions which impose measures 1* and 4
- List of citizens with issues grant for emitting 1*
- Decisions concerning complaints led by legal entities and individuals 1*and 5 *
- Rules, guidelines, recommendations 2
- Registry of media services 3*
- Warning given for distorting media pluralism 4*
- Judgments in administrative disputes initiated against decisions of the regulator 5*
- Public debates along with the comments and opinions and the Agency’s responses to them 5*
- Experts’ opinions, studies and analyses 5*
Overall de-jure transparency of the agency 1*, 2, 3*, 4, 5
Source: Law on Broadcasting (Ocial Gazette 83/14); available from: www.rra.org.rs/uploads/useruploads/PDF/5605-
Zakon%20o%20elektronskim%20medijima.pdf
Table 25. Macedonian AVMS’s de-jure transparency.
De-jure transparency Transparency extensiveness
- Sessions’ summaries, minutes and decisions made thereof 1
- Decisions on granting or revoking licences for radio and television broadcasting 1*
- By-laws 2
- Programme concepts of radio broadcasters 3*
- Polls and analyses about market development 3*
- Registers 3*
- Measures taken against those who violate regulations 4*
- Comments and opinions received by the participants in public meetings and debates 5*
Overall de-jure transparency of the agency 1, 2, 3, 4, 5*
Source: Law on Audio and Audio-Visual Media Services (Ocial Gazette 184/13, 13/14, 44/14, 101/14, 132/14); available from: www.
avmu.mk/images/Zakon_za_audio_i_audiovizuelni_mediumski_uslugi_mkd_1.pdf
Table 26. Serbian ЕА’s de-jure transparency.
De-jure transparency Transparency extensiveness
- Regulated prices 1* and 3*
- Decision on the prices of systematic services 1*
- Rules 2
Overall de-jure transparency of the agency 1*, 2, 3*
Source: Energy Law (Ocial Gazette 57/11); available from: www.aers.rs/FILES/Zakoni/Zakon%20o%20energetici_57-11.pdf
140
Table 27. Macedonian ERC’s de-jure transparency.
De-jure transparency Transparency extensiveness
- Decisions in the domain of its competence 1
- Decision on Tari Systems and prices 1*and 3*
- Decision on initiating the procedure for licence revocation 1*
- Rules 2
- Guidelines 2*
- Registers 3*
Overall de-jure transparency of the agency 1, 2, 3*
Source: Energy Law (Ocial Gazette 16/11); available from: www.erc.org.mk/odluki/SLUZ.VES.BR.16-10.02.2011-
ZAKON%20ZA%20ENERGETIKA.pdf
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