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.
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.
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.
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.
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.
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)
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.
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.
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: