United in Diversity: why we need less (not more) uniformity in (national and EU) competition policy and enforcement in Europe

Based on ‘A Framework for European Competition Law: co-ordinated diversity, (2018) Hart Publishing’

Europe’s peoples are scared, divided, and increasingly dissatisfied with uniform solutions to many local problems. Recent examples can be found in Greece, Hungary, Italy and the UK. For many years, de Búrca and Scott (Constitutional Change in the EU: from uniformity to flexibility? (2000), 2) note that in many areas of EU law, “…increased heterogeneity, political, economic and cultural…inevitably brings an increase in the heterogeneity within the functioning of…[the EU’s] institutions and policies.” Yet, the European Commission, European Parliament, as well as many academics, practitioners and other regulators strongly resist diversity in competition policy and enforcement in Europe. They fear undermining a level playing field for firms in the EU; reduced co-operation between national competition authorities (NCAs) and courts; and increasing the costs to business. In my new book, A Framework for European Competition Law: co-ordinated diversity, (2018) Hart Publishing, I underline uniformity’s benefits, but highlight the important contributions that diversity brings too, including better alignment with national preferences and more innovation and experimentation. I offer a new structure, Co-ordinated Diversity. This combines uniformity and diversity to generate more efficient, effective and legitimate outcomes, in ways which fit with the EU legal order.

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From Better Regulation to Better Aligning Regulation and Enforcement: The Example of Data Protection

Next year, a new European Commission will take office. It will no doubt develop new policies in the field of better regulation as its predecessors have done as well. In 2015, the current Juncker Commission presented the better regulation for better results policy – the EU’s ‘Better Regulation’ agenda. Since then, the Commission published several policies as part of this agenda, inter alia, a policy on effective enforcement in December 2016. More recently, in October 2018, the Commission presented a policy on subsidiarity and proportionality in EU policymaking. With these policies the Commission has made important steps in improving legislative quality in the EU. One element is missing however: the link between legislation and legislative differentiation on the one hand and the effects thereof on enforcement on the other. This would be an important issue for the next Commission to take up as we will demonstrate here.

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Problems of informal supranational enforcement: The case of chemical substance registration in the REACH regulation

In recent years, the European Union (EU) has become increasingly involved in the enforcement of EU policies. While the institutional arrangements of this involvement vary in different policy areas, it is usually based on shared competences between the European Commission, EU agencies and national enforcement authorities. This ‘supranational enforcement’ appears to be a functional extension to EU regulation. However, in case of the REACH regulation on chemical substances, this extension is not based on formal delegation of competences, but informal practices of the European Chemicals Agency (ECHA). In this blog post, I discuss these practices to demonstrate systemic problems of supranational enforcement in the case of REACH. Due to these problems, there is substantial non-compliance with essential provisions of the regulation.

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Swift, brokered and broad-based; 
How to monitor EU policy implementation like a watchdog

Civil society organizations provide an important watchdog mechanism in the European policy process. Based on her study on what drives information exchange regarding the implementation of EU gender equality law in practice, Reini Schrama draws three important lessons from the monitoring network of women´s groups in the Netherlands. The aim of monitoring is to gather information and gain access to valuable sources and this requires swift, brokered and broad-based information exchange. Because of this distinct functionality, monitoring networks benefit from a structure of interactions that allows information to spread rapidly across different parts of the network, no matter the preferences or the organizational background of the actors involved.

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How to monitor EU policy implementation like a watchdog”

Putting training at the forefront of rights-based policing in the EU

The 10-year anniversary of the EU Charter of Fundamental Rights becoming legally binding is due next December. This fast approaching anniversary gives us the opportunity to look back on the fundamental changes that the Charter has brought about in EU law enforcement. Most importantly it caused a change in the mindset of EU policy-makers to give more consideration to fundamental rights when making decisions. In my view, this change towards a more rights-based approach is yet to be fully translated into the daily work of national and local law enforcement actors. I am convinced that progress can be made by training national and local law enforcement to adequately respond to interconnected security and fundamental rights challenges. However, police officers now generally have limited access to non-core fundamental rights education. Therefore, in my post, I will explore why police training should promote the understanding of police officers that a rights-based approach does not limit policing work but underpins its legitimacy in society, decreases the surfacing democratic deficit in EU law enforcement and helps to build bridges with and among citizens and communities in Europe. In light of the turbulent events that occurred recently in Europe and that have fundamentally changed the EU’s security environment, understanding the need for and potential of better fundamental rights education of police officers seems more timely than ever.

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A European Prosecutor: Three Scenarios to Prevent ‘Forum Shopping for Evidence’

By the end of 2020, a new Office will be operational in the European Union, the European Public Prosecutor’s Office (EPPO). The EPPO will be responsible for investigating, prosecuting and bringing to judgment the perpetrators of, and accomplices to, criminal offences affecting the financial interests of the Union. The establishment of the EPPO can be seen as the latest development in the proliferation of EU enforcement authorities (EEA’s). The establishment of this Office raises a large number of legal questions relating to the protection of fundamental rights. This blog post will focus on one of those legal questions, namely how evidence will be gathered and recognised across the European Union in cross-border cases. Under the current approach to cross-border evidence, the EPPO could choose to gather evidence in specific Member States based on their lower (minimum) standards, which could lead to a race to the bottom with regard to fundamental rights. This blog will outline three ways in which this risk could be addressed, each of which has its own advantages and disadvantages.

For an overview of the EPPO’s structure and both material and procedural competence, please see the earlier post on the EPPO on the student-page by clicking here.

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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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