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Regulation as Agreement: Rethinking the Hard–Soft Divide

Introduction

It is common to view agreements between regulators and regulated entities, such as enforcement settlements, voluntary compliance agreements, and even permits and licenses, as a specific regulatory tool grounded in negotiation, exchange, and consensus. In a forthcoming article in the Harvard Negotiation Law Review, titled “The Hidden Nature of Regulation,” I offer an alternative view and suggest that all types of regulation–including command-and-control (c&c), self-regulation, voluntary programs, regulatory sandboxes, disclosure, and “naming and shaming”– are based on agreements between government regulators and regulated entities (e.g. corporations and businesses).

Can the Public Be Trusted? Navigating the Complex Terrain of Voluntary Compliance in Modern Regulation

In the evolving landscape of regulatory governance, few concepts generate as much enthusiasm—and skepticism—as voluntary compliance. Across jurisdictions and different regulatory domains, policymakers increasingly champion the notion that citizens and regulated entities should comply with the law not through coercion, but through intrinsic motivation and shared commitment to public goals. This aspiration promises to transform adversarial regulatory relationships into cooperative partnerships, reduce enforcement costs, and foster genuine behavioral change rather than mere box-ticking compliance.

Yet as Yuval Feldman’s forthcoming book Can the Public be Trusted? The Promise and Perils of Voluntary Compliance (Cambridge University Press, 2025) demonstrates, the reality of implementing voluntary compliance strategies reveals a far more nuanced picture. Focusing on three main case studies in tax, environmental behavior, and public health, the book poses a fundamental question that challenges regulatory orthodoxy: if voluntary compliance offers such compelling benefits, why do regulatory agencies worldwide continue to default to deterrence-based approaches?

Data Protection Rights Born of Recent Reform in Georgian Law

Introduction

On June 14, 2023, the Parliament of Georgia took a significant step toward safeguarding personal privacy by adopting a new Law “On Personal Data Protection”. Entering into force on March 1, 2024, the legislation marks a transformative shift in Georgia’s legal framework for data protection, aligning it more closely with the European Union’s (EU) General Data Protection Regulation (GDPR).

Quis custodies ipsos custodes? Vivacom Bulgaria (C‑369/23) and the relationship between ‘two autonomies’ of EU law

In 1861, Mill wondered how to hold to account Parliament, which checks the Ministers’ actions, but whose own behaviour is subject to little control. A similar logic is inherent to another branch of government: the judiciary. Legislation usually sets up a system of remedies against wrongful decisions; however, what if the court of last instance disregarded the law?

The proper mechanism of EU law answering to this question is judicial liability as per the Köbler case. Alongside the actions in Articles 258-259 TFEU and other non-EU remedies, this latter judgment enforces the duty laid down in Art.267(3) TFEU. Pursuant to the abovementioned legal framework, a Member State must compensate the injury caused by a manifest breach of the acquis on the part of a court of last instance (see also the Hochtief Solutions case, para. 41-43).

New book ‘Regulation in Australia’ by Arie Freiberg

In May 2025 a second edition of Regulation in Australia was published.

This book provides a comprehensive analysis of the nature of regulation, its origins and development in Australia, why governments regulate, how they regulate, and who regulates whom at the federal, state and local government levels. Management of the regulatory process, the principles of good regulation and ‘red tape’ in regulation are examined. The role of soft law, prescriptive, performance-based and principle-based regulation, as well as the use of rewards and incentives in regulation is also explored.

More restrictive measures in the area of asylum and migration and the balance with the rule of law

Introduction

Due to the high influx of migrants to the European Union (EU), migration is a European challenge that requires a European solution. The EU legislator’s aim is to realize a comprehensive approach that aims at strengthening and integrating key EU policies on migration, asylum, border management and integration. With firm but fair rules, these policies are designed to manage and normalize migration for the long term, providing EU countries with the flexibility to address the specific challenges they face, and with the necessary safeguards to protect people in need. The national courts and the Court of Justice have the task to review whether these new rules are in line with EU law and the fundamental rights of the migrant in order to protect the rule of law.

Innovation in EU Competition Law: Towards a New Frontier

By Lisanne Hummel*

Introduction

Europe’s capacity for innovation has come under intense scrutiny in recent years, recently fueled by reports from Draghi and Letta that highlight a widening innovation gap between Europe, China, and the U.S. With escalating geopolitical tensions and the increasing urgency for Europe to maintain independent competitiveness in especially digital markets, the mission letters to incoming Commissioners underscore the vital role of disruptive innovation. These letters establish Europe’s competitiveness as intrinsically linked to its ability to prioritize groundbreaking innovations.

[REPOST]* Turkey as a ‘safe third country’? The Court of Justice’s judgment in C-134/23 Elliniko Symvoulio

This post examines Case C-134/23, where the CJEU ruled that asylum claims cannot be deemed inadmissible if readmission to a safe third country is unfeasible. The decision represents progress in ensuring access to asylum procedures, but it highlights persistent flaws in the EU system of remedies.

[REPOST] How to Define Relevant Labour Markets?*

The application of competition rules to the conduct and concentrations of employers has been called ‘the new frontier for competition policy’ (see here). This so-called ‘labour antitrust’ has been growing rapidly especially on the other side of the Atlantic over the last fifteen years (see here). ‘All eyes are on labor’ in the United States even in 2024 (see here).

Competition between employers is receiving an increasing attention also on the old continent. We have seen enforcement cases in various European countries (see here). The European Commission reported this summer that it started its first ever formal investigation into no-poach agreements. Earlier this year, the Commission also published a policy brief called Antitrust in Labour Markets.

Yet, markets on which undertakings compete for labour are completely absent from the revised Market Definition Notice (Notice), which the Commission published this year. This is a pity because including labour markets would have given more credibility to the Commission’s mission to intervene in these markets and it would also have provided guidance to other enforcers of EU competition law. My newest working paper reflects on the omission and discusses how to define relevant labour markets.

From tough to tender? A new change in enforcement regime of the Dutch social security system

This blog post is based on the book Van hard naar hart? Handhavers over de menselijke maat in de Participatiewet. This research is funded by the Gratama stichting.