The past years have seen a progressive expansion of the operational powers of the European Asylum Support Office (EASO). As formerly discussed, EASO’s increasing involvement in the processing of asylum applications at the Greek Hotspots confirmed the need for Member States to integrate the EU support within their domestic system, while keeping the primary administrative responsibility for asylum applications. This trend toward EU direct enforcement is justified by the need to improve the implementation and overall functioning of the Common European Asylum System (CEAS) and has resulted in the adoption of Regulation 2021/2303 establishing the EU Agency for Asylum (EUAA).
This short post explains how the powers of this new ‘fully-fledged’ agency may contribute to a better level of enforcement, though its normative setup does not fully reflect the practice of joint processing of asylum applications already undertaken by EASO.
Continue reading “The EU Agency for Asylum: A New Institutional Dress for Old Enforcement Tasks?”
The Single Supervisory Mechanism (SSM) is the legislative and institutional framework that grants the European Central Bank (ECB) exclusive competence to authorize and supervise banks in the eurozone. Yet, even in the context of such a high degree of Europeanization, the ECB is not completely autonomous but often relies on the powers and expertise of the national supervisors (NCAs). Various final decisions are therefore adopted on the basis of composite administrative procedures. While SSM procedures are indeed highly integrated, the protection of fundamental rights is split between the EU and the national legal orders, which may lead to gaps in complete fundamental rights protection.
Continue reading “A roadmap toward protecting fundamental rights in composite banking law enforcement”
In December 2021, we posted a now-widely-publicized working paper tackling a major puzzle: Why did infringement actions launched by the European Commission against member states (under Article 258 TFEU) plummet since 2004? As the EU’s “Guardian of the Treaties,” the Commission is the sole EU actor capable of launching infringements against member states that fail to comply with their legal obligations – a crucial tool for the preservation of the EU legal order. Yet from 2004 to 2018 infringements opened by the Commission dropped by 67%, and infringements referred to the European Court of Justice (ECJ) dropped by 87%. Strikingly, this decline spun across nearly all member states and policy areas, and it occurred despite the fact the EU nearly doubled in size and was plagued by a series of crises that involved widely-publicized member state violations of EU law.
Continue reading “Forbearance and Enforcement at the European Commission: A Response to von der Leyen”
In its recent judgments in bpost and Nordzucker, the CJEU held – in essence – that to prevent a violation of the ne bis in idem guarantee in Article 50 of the Charter of Fundamental Rights of the European Union, public authorities need to cooperate and coordinate their punitive enforcement actions, also when they are active in different policy areas or in other jurisdictions. According to Michiel Luchtman, the paradoxical result seems to be that to prevent one fundamental right from being violated, it is necessary to accept (sometimes intrusive) interferences with other rights. Has the Court now entered a slippery slope, eliminating fundamental rights barriers, to promote the effective enforcement of EU law? And if so, at the expense of what?
This blog is a cross-post from RENFORCE (original blog here)
Continue reading “The CJEU judgments in C-117/20 bpost and C-151/20 Nordzucker: Fundamental rights as a vehicle for hybrid enforcement mechanisms? (Cross-post from RENFORCE blog)”
For Aristotle, gentleness is the virtuous expression of anger, as the mean between two extremes: spinelessness, and irascibility. When faced with insult or injury, the philosopher suggests, feeble responses (spinelessness) are to be considered equally nonsensical to disproportionate, drastic reactions (irascibility). The wise should instead strive to answer in a controlled and effective manner, ‘as principle may ordain.’
Submitted more than two millennia ago, this proposition still holds value to this day. This contribution seeks to apply the philosopher’s lessons in the context of EU law, focusing on the enforcement of inmate right standards in the Area of Freedom, Security, and Justice.
Continue reading ““Let gentleness my strong enforcement be…?” Prisoner rights in the AFSJ”
The EU has some of the world’s most ambitious and highly developed environmental laws on its books, in fields ranging from climate law to industrial emissions, water and air pollution, nanotechnology and nature conservation.
The effectiveness of these laws is, however, severely compromised by under-enforcement. In fact, environmental law has consistently been one of the EU’s areas with the highest number of infringement cases as well as citizen complaints regarding non-compliance. In its Seventh Environmental Action Programme (2013 – 2020), the EU already announced that improving the implementation of EU environmental law would be given ‘top priority’.
The risks associated with under-enforcement manifest in various ways, from reduced water quality, air pollution, biodiversity loss and more. The economic costs and benefits foregone from not achieving the environmental targets specified in EU environmental legislation have further been estimated at no less than 55 billion euros per year.
Continue reading “Enforcing EU environmental law: putting law’s effectiveness to the test”
Yane Svetiev’s book, Experimentalist Competition Law and the Regulation of Markets, was launched at an event organized by the University of Amsterdam’s Centre for European Law and Governance (ACELG) and Centre for European Studies (ACES). The book provides an account of the evolution of EU competition law enforcement through the prism of experimentalist governance. Within an experimentalist governance architecture, regulation and enforcement are recursively re-formulated through monitoring and comparing implementation experience from different local contexts. Compared to more traditional legal enforcement that proceeds through identifying and punishing infringements, experimentalist implementation is problem-oriented and collaborative. Moreover, experimentalist governance does not rely on controlled experiments to identify universal causal mechanisms or successful interventions. Rather, as Svetiev explains, it is pragmatic: it relies on “prototyping solutions to specific problems followed by iterative adaptation to refine the prototype” and to then “possibly scale it up or diffuse it” to other contexts.
Continue reading “Experimentalist Enforcement in the European Union: A New Cookbook for Emergent Recipes?”
After rather chaotic initial responses to the spreading pandemic in the first months of 2020, the Commission nowadays appears eager to look and move ahead. As a case in point, its recently proposed reform of Schengen governance seeks to create a ‘fully functioning and resilient Schengen area’. To that end, the Commission inter alia acknowledges the need for strengthened enforcement. As this blog post will argue, however, that commitment may be belied by the substance of reform. The Commission’s announcement to use enforcement measures more actively may be undone by a relaxation of standards delineating Member States’ latitude under the Schengen acquis. Accordingly, the view will be posited that the Commission’s reforms are not aimed at stronger enforcement as an end in itself, but rather at avoiding open conflict with Member States over the reintroduction of internal border controls.
Continue reading “The Commission’s proposed reform of the Schengen area – stronger enforcement or conflict aversion?”
The European Union introduced common rules for the EU internal gas market as a crucial energy commodity. Published jointly as the Energy Union Strategy in 2015, the rules aim to create a common environment to facilitate trade and competition on all gas markets in EU Member States. The regulations specify the steps necessary for any given gas market to liberalize and comply with common rules for internal gas market. Each Member State negotiates the pace at which it will liberalize according to the implementation of common rules. Thus, levels of liberalisation may be objectively assessed according to a shared metric. In one interesting case of implementation, Poland followed an initially clear vision and implementation of free market regulations. However in 2016 -2017 it took an unexpected sidestep that had profound economic impacts on the domestic gas market resulting in many retailers being driven out of the market, and the state owned incumbent regaining its super-dominant market share.
Initial Stages of Polish Gas Market Liberalisation
Following the issuance of the Union Energy Strategy, Poland began to gradually introduce legislation aimed at gas market liberalisation in compliance with common rules for the EU internal gas market:
Continue reading “Polish Gas Market Liberalisation: The Impact on Competition due to 2016 – 2017 Legislative Changes”
Setting the scene
EU regulatory measures in the field of private law, such as the Unfair Contract Terms Directive, the Mortgage Credit Directive or the Antitrust Damages Directive, have been compared to islands in the ocean of national private law. This metaphor has been used to highlight the difficulties of integrating EU private law into national private law, given their different rationalities. The private law of the Member States has traditionally been primarily concerned with horizontal relationships and justice between private parties. In particular, the individual who has suffered from the breach of a private law norm by another individual can use the characteristic private law enforcement tools, such as a claim for damages. National private law, therefore, is underpinned by relational rationality, even though it may be influenced by policy objectives and have distributive implications. In contrast, EU private law has developed in a piecemeal and uncoordinated fashion across different sectors of the economy as a subset of market regulation to serve various policy goals, notably the establishment of the European internal market. Thus, while this body of law also affects horizontal relations between individuals, it is first and foremost informed by the instrumentalist rationality. Continue reading “Islands and the Ocean: Three Models of the Relationship between EU Market Regulation and National Private Law”