General – EU Law Enforcement

Preparing the European Union for a Geoengineering Future: Exploring the Interplay of EU and International Law in Geoengineering

Introduction

Geo-Engineering (GE) is an attempt to intervene in the Earth´s climate system. It refers to “the deliberate large-scale intervention in the Earth’s climate system to counteract man-made climate change”. Solar Radiation Management (henceforth GE), is to mitigate global warming by reducing solar radiation reaching the Earth’s surface through techniques such as stratospheric aerosol injection, aiming to cool the planet by reflecting a portion of incoming sunlight. This could have significant levels of risk concerning its impact on the global climate system, natural ecosystems, weather patterns, biodiversity and human rights, therefore having heterogenous externalities. So far, only the legally binding London Convention / London Protocol (LC/LP) and the Convention on Biological Diversity (CBD) regulates the fertilization of oceans to promote CO₂-binding algae, another type of GE. Other regulation on GE is lacking. In June 2023 the European Commission (EC) published their intention to “support international efforts to comprehensively assess the risks and uncertainties of such climate interventions and promote discussions on a potential international framework for their governance, including research into related aspects”.

This blogpost highlights the EU´s potential leading role in the evolving landscape around GE regulation and gives recommendations how the EU can leverage existing mechanisms to address the complexities possible GE regulation entails.

Round-up of publications focused on Enforcement at the EU Commission this month

This month, the editors of the blog issue a ‘news type’ of blog post. We would like to bring the readers’ attention to publications related to the central theme of enforcement that the EU Commission has made in the last month.

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New research insights and questions for future research and practitioners on supervision and enforcement of banking, financial, digital markets and promotion of sustainability

Mira: The topic of supervision of markets and enforcement of norms and policies in the EU is an exciting, yet complex one to discuss, to design and to research (see my new chapter in Maggetti et al. 2022 aiming at capturing all relevant elements and dilemmas). The classic debates concern such pertinent issues as to which types of supervision – public and/or private, EU and/or national, compliance and/or deterrent oriented, to name but a few – should be most optimal to ensure specific policy goals and promotion of values. Next to these, new trends and challenges – globalisation and digitalisation of markets and hence enforcement, promoting sustainability and yet competitive businesses, etc. – add to the ‘to do’ list for researchers and practitioners. Knowledge accumulation and exchange on these questions across jurisdictions, policy fields and disciplines are thus essential to advance academic and policy debates, and this blog post aims to contribute to this. It shows the pertinent research and policy questions and research conclusions of five 2022 LLM Law & Economics master graduates who have written their impressive master theses on the topics of their choice in the area of supervision of markets, enforcement and agencies under my supervision. Their results and suggestions for future research on integer (banking) supervision, sustainable, fair (digital) competition and finance are impressive and aim to promote achieving policy objectives and boost further research attention and discussion in enforcing the areas of banking, financial, digital markets and sustainability goals and beyond.

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The EU Agency for Asylum: A New Institutional Dress for Old Enforcement Tasks?

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.

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A roadmap toward protecting fundamental rights in composite banking law enforcement

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.

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Forbearance and Enforcement at the European Commission: A Response to von der Leyen

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.

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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)

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)

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Enforcing EU environmental law: putting law’s effectiveness to the test

Introduction

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.

Experimentalist Enforcement in the European Union: A New Cookbook for Emergent Recipes?

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.

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The Commission’s proposed reform of the Schengen area – stronger enforcement or conflict aversion?

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.

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