Fit for purpose? Scrutinizing the EU’s system for ex-post evaluation

Based on Ellen Mastenbroek’s inaugural lecture ‘More than the sum of its parts’, held at Radboud University, 15 September 2017 and two related articles (Van Voorst and Mastenbroek, 2017; Mastenbroek et al, 2016).

In this contribution, we critically assess the EU’s system for ex-post evaluation, using fresh empirical data. We find that the Commission has not met its repeated ambition to produce systematic and high-quality ex-post evaluation of all important EU legislation. Both the coverage and quality of ex-post evaluations have been variant. This lack of systematic high-quality evaluation is problematic, as such evaluations can fulfill important functions in the EU policy cycle: learning, accountability and improved enforcement. It also bring strategic risks for the Commission, primarily reduced credibility.

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EIOPA: with more power comes more accountability?

The European Insurance and Occupational Pensions Authority (EIOPA or the Authority) is one of three European Supervisory Authorities (ESAs) created in the aftermath of the financial crisis. They are part of the European System of Financial Supervision (ESFS), a supervisory system created to ensure proper financial supervision of, for example, banks, insurance companies and pension institutions. The other two ESAs are the European Securities and Markets Authority (ESMA) and the European Banking Authority (EBA).

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Transnational executive bodies: very effective but hardly accountable?

The implementation of EU policies is a member state affair. This is, at least, the principle established by the Treaty on the Functioning of the European Union: the member states are responsible for implementation, and if there is a need for more uniformity it is the Commission that adopts further detailed rules, or exceptionally the Council.

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Emergency! But what about legal protection in the EU?

Based on a forthcoming article co-authored with Argyro Karagianni & Miroslava Scholten.

The European Union (EU) has become increasingly involved with enforcing EU law directly vis-à-vis private actors. Such direct enforcement by EU authorities has a potential to address non-implementation occurring for both procedural and substantive reasons. Emerging research in the area of direct enforcement by EU authorities has mapped out the EU enforcement authorities (EEAs), EU risk regulators (ERRs), and their cooperation with national authorities from such perspectives as accountability and protection of procedural safeguards. In some cases, the EEAs and ERRs have been endowed with the so-called emergency powers. A question that (academic) research has yet to address is whether relevant and adequate safeguards are in place to ensure the rule of law and prevent the abuse of executive discretion by public authorities in such emergency situations. What is an emergency power in the EU in the first place? This blog post offers a comprehensive overview of all the existing EU entities with such powers and argues that the legal protection framework of private actors in the case of emergency must be enhanced.

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‘Rating’ ESMA’s accountability for its enforcement powers: ‘AAA’ status

The European Securities and Markets Authority (ESMA) is exclusively competent for the direct supervision of credit rating agencies (CRAs) and trade repositories (TRs). ESMA is in fact the only EU agency that can exercise monitoring, investigating and sanctioning powers by itself. However, the question rises whether ESMA also renders accountability for such powers. The delegation of enforcement powers to ESMA appears to have been coupled with the establishment of sufficient political and judicial accountability mechanisms. The accountability framework may thus be assigned ‘AAA’ status. However, if changes were to happen on the basis of the ongoing revision of the operations of the European Supervisory Authorities, e.g. if ESMA’s direct supervisory powers would be extended to other areas of financial services, one important recommendation is to pair such delegation with appropriate changes to the accountability framework so that the ‘AAA’ status can be upheld.

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Why the implementation of European Union law is more than just a question of legal compliance

The European Union (EU) is an unprecedented instance of a regulatory state above the nation state. Its underlying idea is to provide joint solutions to shared regulatory problems. For example, the EU issues emission reduction targets for new cars in order to address the problem of man-made environmental pollution. However, and as the above picture illustrates, it is not always an easy task to ensure that the actors responsible for a given problem – for example, car producers – comply with such rules. Member states have a crucial and double role here. On the one hand, they often have to transpose rules from EU Directives into national legislation. Beyond this, however, they also have to put these rules on paper into action, and enforce them to ensure that target groups actually comply. Germany, for instance, has not rigorously enforced EU emission reduction targets vis-à-vis the Volkswagen Company. To put it bluntly, EU law can be perfectly transposed and still fail due to poor implementation performance in practice.

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Cooperation between EU and Dutch enforcement authorities: room for improvement!

Which questions remain unanswered with regard to the established mechanisms of vertical cooperation between certain EU and Dutch enforcement authorities? And which possible consequences could these unanswered questions have for the protection of those subjected to an investigation and the success of an investigation in the system of shared enforcement in the EU?

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Effective and accountable enforcement in EU aviation safety?

Air travel is considered to be the safest mode of transportation. Within the EU, there is an extensive aviation safety system at work to keep things that way. It consists of the national aviation authorities (NAAs) of the Member States, the Commission and an EU agency: the European Aviation Safety Agency (EASA). As is the case with EU rules on medicines, European aviation safety rules are largely regulated at the EU level while in most cases national authorities are in charge of enforcing them.

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The shared enforcement of antitrust cases: effectivity difficulties at the national level

The proposal of the European Commission of 22 March 2017 for an European Directive to achieve more convergence in investigative and sanctioning powers of the Member States forms a great opportunity to address the shared enforcement of antitrust cases and the effectiveness thereof in the post of this month.  Continue reading “The shared enforcement of antitrust cases: effectivity difficulties at the national level”

It’s a new agency. It’s a federal agency. It’s the European Border Coast Guard! No wait… it’s Frontex

On 6 October 2016 the European Border and Coast Guard (EBCG) was officially launched at the border point of Kapitan Andreevo between Bulgaria and Turkey. As a result of the migratory crisis, the transformation of Frontex into a EBCG became a political priority for both the EU and the Member States. Frontex was established in 2004 to assist the countries of Europe to better cooperate in controlling their external borders. The new Regulation 2016/1624 is the third legislative revision of the mandate and competences of Frontex. This Regulation aims to both strengthen the position of the EBCG from the Member States, which have not always fully cooperated with Frontex, and also effectively and uniformly implement the EU rules and policies on border management.

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