Mira: Once the law is passed, its interpretation and application become the tasks for many different actors, such as public supervisors and private actors. These actors in turn may have different views on how to comply with the law, due to, among other things, different organizational settings, educational or national backgrounds of individual supervisors, to name but a few. The application of the law and the monitoring of compliance (the latter being the first step of enforcement) lead to the processes and decisions, which require explaining how the law is being understood by, for instance, supervisors, and how they will enforce it, or how compliance will be done within an organization. This ‘grey area’ of executive discretion raises a number of pertinent questions. More specifically, the question is who should be in charge to saying how compliance is ought to be done and, for instance, if public supervisors should be operationalizing the law with the help of internal and/or external documents, such as risk-based policies and guidance, for effective and consistent application? How should supervisors and private entities align different laws to address specific concerns, which may fall just in between existing regulatory frameworks? etc. The tension here is about legitimacy and controls of soft law, on the one hand, and attempts to ensure legal certainty and effectiveness, on the other hand. Ultimately, it is about the question of what is fair and what is legally certain? Let an addressee of a law develop compliance on their own, even though this may lead to possible non-compliance (as judged by a public authority), an investigation, or a fine? Or should a public supervisor help complying to ensure that the investigation or the fine is only a matter of the last resort, ie when non-compliance has been persistent? To what extent should EU law-maker regulate enforcement, and to what extent should this be left to the EU shared administration and eventually the courts, the latter option leading to a long waiting period before legal certainty may be established? These have been the questions that I have been investigating in my ongoing research projects, and which I have brought to my classroom during LLM Law & Economics’ course ‘supervision of markets, enforcement and agency design’. I am delighted to share interesting thoughts from three graduates of this master, who have written their theses with me on these pertinent questions. While dealing with different policy areas – from EU Space Law to AI-enabled risks and Anti-Money Laundering, common conclusion seems to be clear: effectiveness of a law can certainly benefit from the clarity of the law, especially on who should organize compliance, alignment with other laws, and with how much discretion. Leaving the task of establishing legal certainty to the courts only may lead to ineffective laws, wrong applications, unnecessary overcompliance, and impede innovativeness.
Continue reading “When EU Legislation meets Enforcement Reality: The Need for Sufficiently Certain and Clear Rules in the Field of Space, AI and Anti-Money Laundering Law”