Constitutional challenges of administrative enforcement centralization – Transparency in Banco Popular

This blog has paid careful attention to the current strengthening of centralized enforcement of EU law by European institutions, organisms and bodies, which is increasingly replacing national implementation in many areas of law. This process is also taking place when national authorities were entrusted with the enforcement of EU secondary law that provided for transnational administrative acts. In particular, both transnational authorizations and ex post administrative measures adopted by national authorities are being substituted by enforcement decisions taken by EU agencies, at times after the implementation of a composite procedure. The point that I want to make here is twofold: leaving aside its impact on EU law effectiveness, centralization transfers problems of compliance with constitutional requirements of administrative enforcement towards EU agencies, and ultimately it intensifies the constitutional dimension of the Court of Justice of the European Union (CJEU).

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EU Agencies as Accountability Entrepreneurs: Enabling EU Law Enforcement After Brexit

European Union agencies have recently been highlighted as key sites for enabling future European law enforcement after Brexit. By operating as ‘nodes’ in trans-European scientific and policy networks, they provide a route to EU law enforcement in ‘third countries’ who wish to integrate with EU regulatory standards without full EU membership, creating ‘regulatory harmonisation’. There is an obvious link here to the potential to enforce regulatory arrangements and ensure ‘alignment’ following March 2019. However, ‘agencies’ have very different forms and functions. Some have hundreds of staff, are based in glamorous offices across the Union and have quasi-‘hard’ regulatory powers. Others have a couple of dozen staff and provide a discrete service to EU Directorates Generales, with more of a ‘soft’ monitoring role.

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An Enforcement Role for EUROPOL in the Aftermath of the “Refugee Crisis”?

The “refugee crisis” has led to the establishment of the European Border and Coast Guard (EBCG) (the successor of Frontex) in 2016 and the transformation (still under negotiation) of the European Asylum Support Office (EASO) into a European Union Agency for Asylum (EUAA). The expansion of the operational tasks of the EBCG and the future EUAA in comparison to Frontex and EASO is clear. While Frontex and EASO have traditionally been characterized by their operational role and assistance to the frontline Member States on the ground, Europol under the recently adopted Regulation 2016/794 has also started to assist those national authorities subject to the extraordinary and sudden arrival of mixed migratory flows.

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Explaining Judicial Deference in Competition Law

Judicial deference is sometimes taken with scepticism and associated with limited judicial review or even a court’s complete abdication of its role. It is not necessarily so. By referring to competition law, I would like to argue that a deferential style of judicial review of competition authorities’ determinations based on their expert knowledge is permissible on the condition that administrative proceedings are fair, competent and impartial and on the condition that judicial review is effective. If properly understood, judicial deference can positively influence the effectiveness of EU law while not undermining the protection of the rights of private firms involved in competition proceedings.

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Curtailing (informal) power—accountability lessons from the civilian dimension of EU security and defence

This blog post offers an excursion to EU civilian crisis management, an operational tool of the Union’s Common Security and Defence Policy (CSDP). Currently, some 2,500 experts—comprising lawyers, police personnel, customs officers, and security sector specialists—work in ten ongoing EU civilian missions in Europe, Africa, and Asia. Mandates cover a broad range of multidimensional tasks, such as rule of law support (in Kosovo), police training (in the Palestinian Territories), border assistance (in Georgia), security sector reform (in Iraq), or security-related capacity building (in the Sahel region).

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Complementing Centralised Banking Supervision: Preliminary Remarks on a (Harmonized) Private Enforcement of the EBU Single Rule Book

The establishment of the European Banking Union (EBU) stands as a paradigm for how the EU has become increasingly involved in directly enforcing EU law throughout recent years. The institutional centerpiece of the EBU is the so-called Single Supervisory Mechanism (SSM), a supervisory network under the auspices of the European Central Bank (ECB) assigned with the task to monitor the Euro-area banking system. Apart from its coordinating functions in relation to the national competent authorities (NCAs), the ECB is responsible for directly supervising the business activities of the 120 most significant credit institutions in the Euro-area in accordance to the so-called Single Rulebook, a set of harmonised prudential rules which credit institutions registered in the EU must adhere to.
This blog post is not doubting the importance of this type of vertical monitoring of market participants through public supervisory action. However, the recent crisis has shown that public enforcement is subject to several vulnerabilities. Even though the EBU may be able to overcome some of these vulnerabilities, several others will certainly remain. Thus, it is argued here that the existing supervisory architecture should be complemented by horizontal mechanisms of behavioral control. Central to this approach is a private enforcement of the Single Rulebook, i.e. the granting of individual causes of action for damages resulting from an institutions’ violation of EU banking regulation (as it is well-established for example in the area of EU competition law).

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MiFIR: Intervention Powers strengthen customer protection

The Markets in Financial Instruments Regulation Nº600/2014 (MiFIR) that entered into force on the 3rd of January 2018 establishes intervention powers for National Competent Authorities (NCAs), the European Banking Authority (EBA) and the European Securities and Markets Authority (ESMA). This post discusses these ‘MiFIR’ developments. Other key developments in this area are the Packaged Retail and Insurance-Based Investment Products Regulation (PRIIPs), which introduces product intervention powers for National Competent Authorities, and the European Insurance and Occupational Pensions Authority (EIOPA).

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Crisis Averted: the Puigdemont Surrender Procedure and Mutual Trust

Since roughly 2002 the surrender of persons for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order takes place no longer on the basis of extradition treaties in the EU. It takes place on the basis of Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States. One of the main advantages of surrender by means of a European arrest warrant (EAW) over traditional extradition proceedings as a means to transfer persons fleeing justice, is that it takes place between Member States’ judicial rather than political authorities. The EAW was put in place with the explicit purpose of depoliticising and accelerating the transfer of persons escaping the arm of the law from one EU Member State to another.

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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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