People regularly complain about too many rules and too little enforcement, both with respect to the European Union and the Member State governments. One often finds both these criticisms in a political context, and rightly so. After all, everyone can quickly think of a rule, but to have others abide by it is another matter altogether. Promulgating a norm too easily implies its enforcement, and politicians are exactly the ones who should be aware of that.
As entries in this blog reveal (Townley; Linden), debates over the enforcement of EU economic law, are often framed in terms of the desirable level of diversity or uniformity to be achieved. Both instincts, meaning to call for more uniformity and more diversity, seem justified.
In the European Union businesses, consumers and workers all enjoy the benefits of the Single Market. The Single Market rules ensure that there are no internal frontiers for people to work, live, study and do business within the EU. However businesses and citizens also often run into trouble because of the incorrect application of EU Single Market rules by public authorities of the EU Member States. For that purpose, the Commission launched an informal network named SOLVIT in 2002. Despite being almost old enough to buy a drink in a pub, not everyone is aware of SOLVIT’s existence, nor of what it does. A lack of (effective) promotion is most likely the cause of this problem. Therefore, this post is meant to offer some clearance on how SOLVIT functions in practice, while also dwelling upon some success stories.
Framework Decision 2008/947/JHA (FD) is an act of the EU concerning cooperation in criminal matters between national judicial authorities. It facilitates the recognition of final judicial decisions imposing non-custodial sentences across the Union, to allow the cross-border enforcement of probation measures or alternative sanctions (see the measures listed in Art. 4). As such, this instrument is part of the EU toolbox governing the cross-border transfer of offenders, because it enables a person to serve his/her sentence in another Member State. In fact, it is complementary to FD 2008/909/JHA on the transfer of prisoners and to FD 2009/829/JHA concerning the European Supervision Order.
Under the aegis of the SSM, which comprises the ECB and 19 national central banks (NCAs), the ECB carries out banking supervision vis-à-vis euro area banks. To this end, the EU watchdog has been entrusted with various direct law enforcement powers. Yet, for executing its tasks, it still depends to a significant extent on the expertise and powers of the NCAs. For instance, a large part of banks’ (punitive) sanctioning is still being dealt with by the NCAs, upon the ECB’s request. In our recent study ‘EU administrative investigations and the use of their results as evidence in national punitive proceedings’, which was part of the report Admissibility of OLAF Final Reports as Evidence in Criminal Proceedings, we have pointed out the challenges that stem from the fact that certain ECB investigations and their concomitant results can be used as evidence for punitive sanctioning at the national level; in the absence of EU rules providing for clear guidance on the admissibility of EU gathered materials in national proceedings, numerous questions can be raised concerning the protection of defense rights in a composite law enforcement setting. We have identified three types of challenges: how to protect defense rights at the interface of i) different legal orders, ii) non-punitive and punitive law enforcement, iii) administrative and criminal law enforcement. We concluded that the introduction of EU rules facilitating the interoperability of SSM materials as evidence in national proceedings should be put high on the agenda.
Much is being said, lately, regarding the effectiveness of EU policies, often arguing that their implementation is too poor or uneven throughout the Union. Enforcing EU laws is crucial for their successful implementation; however, how should enforcement be organised? At which level, by what type of institutions and what implications does the choice for a particular institutional strategy have in terms of legitimacy, organization of controls and operation of enforcement? The European Commission itself is committed to making EU laws more effective and improving overall compliance with them. What is most relevant is the ongoing changes in the governance of EU law enforcement, according to which direct enforcement powers, long been regarded an exclusive competence of the EU Member States, are increasingly being uplifted at the supranational level, both by providing EU actors with direct powers and through unprecedented shared powers with the lower administrative levels.
This contribution discusses the legal complications of the digital revolution on competition law, including a call for action to the European Union to adapt the existing legal framework in order to catch data-driven conduct and ensure effective enforcement. The rise of the digital economy demands (European) policymakers and enforcers to look at ways in which privacy and competition can strengthen each other to address today’s key challenges. In relation to the incorporation of privacy or data protection principles into a substantive competition analysis, the Court of Justice of the European Union (henceforth: CJEU) and the Commission have been very restrictive. However, this contribution argues that this vision is no longer without debate and susceptible to change.
Michiel Luchtman & Miroslava Scholten
With this blog post, the editors of the blog would like to announce the creation of the Jean Monnet Network on EU law Enforcement (EULEN). We would like to sketch briefly the relevance of this topic, thematic scope, structure and plans for activities of the network.
This blog post is a follow up to the preliminary outcomes of the international conference “European Union Law Enforcement: The Evolution of Sanctioning Powers”, organised by the Law Department of the University of Turin on 28 and 29 March 2019. The post is also intended to provide an overview of the main contents of the forthcoming publication of the proceedings of the conference (Eds Stefano Montaldo, Francesco Costamagna and Alberto Miglio, European Union Law Enforcement: The Evolution of Sanctioning Powers, Routledge – book series Routledge Research in EU Law – early 2020). Building on the conference, the book presents the state of the art of EU sanctioning powers and discusses paths converging towards its centralisation – at various degrees of intensity depending on the area of EU competence involved – in the hands of European institutions and bodies.
In my first blog post for this blog page, I signaled a rapid proliferation of EU enforcement authorities (EEAs). These EEAs are an example of a growing administration of shared tasks – regulatory and enforcement – in the EU. The establishment of these complex, multi-level governance structures and decision-making procedures is necessary to address “wicked problems” (think, for instance, about the need to protect environment), which require cooperation of and involvement of various stakeholders. Establishing these complex structures and procedures requires in turn sophisticated systems of controls over public power to safeguard the rule of law. How to build such a system? My main argument is that it is through a framework in which a number of elements need to be connected. These elements include:
- relevant concepts of control (accountability, protection of fundamental rights, etc);
- types of controls (political, judicial, etc) that these concepts may represent;
- analytical prisms that they may create (institutional, decision-driven and rights-driven); and
- systems of controls belonging to different jurisdictions/legal orders in the EU (EU-national and national-national).