Shared direct enforcement of EU laws is a relatively new phenomenon in the EU. If the default rule of enforcing EU laws at the national level faces challenges, it is logical to enhance the regulation of national enforcement and/or the exercise of enforcement stages at the same level where EU rules are established (functional policy cycle over spillover). Hence, we witness a proliferation of EU enforcement authorities (EEAs) which can enforce EU laws directly vis-à-vis private actors themselves or together with national competent authorities. This development prompts to address the question of control over actions and decisions resulting from this EU shared direct enforcement. This blog post argues that the EU shared enforcement necessitates aligning of the systems of controls (EU-national, national-national) and creating ‘joint controllers’. It uses the logic of the ‘Meroni+’ (non-) delegation doctrine to support its argument. It concludes with three recommendations for assessing and (re)designing controls for EU shared enforcement.
Continue reading “Recommendations for ensuring controls for shared enforcement in the EU”The Dutch benefits scandal: a cautionary tale for algorithmic enforcement
On January 15, the Dutch government was forced to resign amidst a scandal around its child-care benefits scheme. Systems that were meant to detect misuse of the benefits scheme, mistakenly labelled over 20,000 parents as fraudsters. More crucially, a disproportionate amount of those labelled as fraudsters had an immigration background.
Amongst the upheaval, little attention was brought to the fact that the tax authority was making use of algorithms to guide its decision-making. In a report by the Dutch Data Protection Authority, it became clear that a ‘self-learning’ algorithm was used to classify the benefit claims. Its role was to learn which claims had the highest risk of being false. The risk-classification model served as a first filter; officials then scrutinized the claims with the highest risk label. As it turns out, certain claims by parents with double citizenship were systematically identified by the algorithm as high-risk, and officials then hastily marked those claims as fraudulent.
It is difficult to identify what led the algorithm to such a biased output, and that is precisely one of the core problems. This blogpost argues that the Dutch scandal should serve as a cautionary lesson for agencies who want to make use of algorithmic enforcement tools and stresses the need for dedicated governance structures within such agencies to prevent missteps.
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Effective legal protection in the composite procedures of the SSM
It seems to be a given by now that shared administrations are increasingly used in the EU to ensure an effective implementation of Union law. However, the administrative reality of shared administrations still seems ahead of the legal and judicial reality. Shared administrations result in decisions based on often complex composite administrative procedures involving administrative authorities from both the EU and national legal orders. However, there is no single uniform set of EU administrative standards and the judicial orders are still relatively separate. The different administrative authorities involved may thus be subject to different administrative standards and, due to the relatively separate judicial orders, it is often uncertain in what manner effective judicial protection can be ensured. The extent to which an effective legal control is possible is thus questionable in case of composite administrative procedures. In this blog post, which is based on my new book ‘Effective Legal Protection in Banking Supervision. An Analysis of Legal Protection in Composite Administrative Procedures in the Single Supervisory Mechanism’ (Europa Law Publishing 2021), I will be addressing this question on the example of the Single Supervisory Mechanism (SSM). I have looked for a middle ground that ensures effective legal protection in composite procedures in such a way that persons’ rights are safeguarded without unnecessarily hampering the supervisors’ effectiveness. Although this is not such an easy task, it seems possible nonetheless.
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To what extent is the EU Single Market resilient?
This blog post is based on the discussion that took place on January 29, 2021, within the JMN EULEN online lunch meetings.
Maciej Bernatt (chairing the discussion): The COVID 19 crisis has brought challenges to the proper functioning of the EU Single Market. These challenges include, among other things, export restrictions among the EU Member States and the closing of borders affecting the free movement of people, products, and food supply. While many of these measures were arguably justifiable, some of them could in practice be protectionist in nature and thus undermine the very foundation of the EU Single Market. The question is how the EU and the EU Member States should deal with the crisis situation and yet ensure the values and freedoms of the EU Single Market. In this context, it is also crucial to ask about the permissibility and the legality of the restrictions imposed by Member States.
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How the rule of law toolbox fails to tighten the screws
On the 11th of January 2020, judges from 20 European countries marched with their Polish colleagues through Warsaw in a silent protest against repressive new measures aimed at Polish judges. The many EU flags rising above the crowd could be seen as cries for help to Brussels. We cannot defend our independence alone, we need the EU to step in and step it up. But the EU’s current rule of law toolbox has been painfully ineffective to enforce the principle of judicial independence (JI) in Poland. Concerned about the Polish government’s judicial reforms, the Commission has used every tool in the toolbox. But, after two years of unfruitful dialogue under the Rule of Law Framework – ending with launching the Article 7 procedure in 2017 – and four infringement proceedings (and counting) later, the first edition of the new Rule of Law Report in 2020 does not paint a flattering picture of the current state of the Polish judiciary’s independence. This blog post argues that these failures were quite predictable, as the rule of law toolbox fails to put the right tools in the right hands. Notwithstanding the blame rightly put on the EU institutions for failing to make effective use of the available mechanisms, the different tools all have inherent qualities that hinder their effectiveness to enforce the principle of JI upon a Member State (MS) – especially when threats are widespread and deliberate. The new rule of law budget conditionality mechanism can hopefully offer the Commission a more powerful tool to force MS compliance, but doubts remain whether it will be applied effectively.
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The EU’s Rule of Law Enforcement Framework Challenges in Bulgaria
Post-accession, Bulgaria has proven to be a functioning member of the common market and has enjoyed the benefits of EU access. But while it has reaped success in the field of market integration, it has consistently underperformed in the rule of law domain. Part of the blame falls with domestic institutions and processes, but the rest seems the result of EU enforcement inadequacy. The importance of the rule of law enforcement issue is indisputable – and the recent examples of Poland and Hungary only highlight that window-dressing by governments and EU inaction can be nothing short of problematic. This blog post argues that the existing article 7 TEU and the Commission’s new rule of law enforcement toolkit, are insufficient to address these challenges. As the example of Bulgaria will show, “smaller sticks” such as temporary sanctions, appear essential to making the system more effective.
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Is preliminary reference procedure an adequate channel for the assessment of validity of EU soft law acts?
EU soft law typically serves as an interpretative tool helping with enforcement of EU hard law, especially when hard law provisions are indeterminate or open-textured. The power of soft law making brings with it the risk that an EU institution issues a soft law act going beyond the binding provisions that it is intended to interpret. In such a scenario, the soft law act does not ensure the enforcement of EU hard law, but rather sets new rules, which may be considered as circumventing the legislative process. This is just one of the reasons, why it seems vital to make EU soft law acts subject to judicial review by the CJEU.
50th Blog Post on EU Law Enforcement: Taking Stock and Moving Forward
Emilie: This month marks the celebration of our 50th blog post and the first anniversary of the Jean Monnet Network on EU Law Enforcement (JMN EULEN). Since the publication of the first blog post 4 years ago, this blog has reached more than 115 thousand visitors from 165 different countries. In addition, over the past year, JMN EULEN has brought academics and practitioners together during several (online) roundtables and conferences. We thank all our readers and contributors, ranging from students and academics to policy makers and practitioners. This milestone feels like a good moment to take stock of the recent developments in the field of EU law enforcement. So, what are the major developments and challenges in the field of EU law enforcement and how to overcome these?
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Enforcing EU law: the case of the whistle-blower
In 2017 the European Commission, in its Communication on ‘EU law: better results through better application,’ stressed that: “[e]ffective enforcement of EU rules – from the fundamental freedoms, food and product safety to air quality to the protection of the single currency – matters to Europeans and affects their daily lives […]. Often, when issues come to the fore […] it is not the lack of EU legislation that is the problem but rather the fact that the EU law is not applied effectively.” In order to increase available enforcement mechanisms to promote effectiveness, the European Commission sought an approach to enabling indirect enforcement via private actors, in legislation on the protection of whistle-blowers, proposed in 2018. By October 2019, the Directive on the protection of persons who report breaches of Union law (henceforth referred to as the Directive) was adopted. The Directive is the first EU horizontal piece of legislation on the protection of whistle-blowers.
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Which enforcement strategy for the Common European Asylum System?
The reform of the Common European Asylum System (CEAS) is one of the major regulatory challenges to the European Union (EU), which has continuously attracted academic attention (Nicolosi, 2019). Less consideration has been given to the dynamics of enforcement of that policy. Yet, this is a crucial issue, as acknowledged by the European Commission , the recent migratory pressure stressed the ‘structural weaknesses and shortcomings in the design and implementation of European asylum and migration policy’. Apart from a ‘protracted implementation deficit,’ EU asylum law has been suffering from a ‘protracted compliance deficit’ (Thym, 2017). This makes the need for a more effective enforcement strategy all the more urgent. This post, therefore, aims to explain whether EU direct enforcement mechanisms can be more effective than traditional forms of enforcement by State authorities.
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