Emergency! But what about legal protection in the EU?

Based on an article co-authored with Argyro Karagianni & Miroslava Scholten.

The European Union (EU) has become increasingly involved with enforcing EU law directly vis-à-vis private actors. Such direct enforcement by EU authorities has a potential to address non-implementation occurring for both procedural and substantive reasons. Emerging research in the area of direct enforcement by EU authorities has mapped out the EU enforcement authorities (EEAs), EU risk regulators (ERRs), and their cooperation with national authorities from such perspectives as accountability and protection of procedural safeguards. In some cases, the EEAs and ERRs have been endowed with the so-called emergency powers. A question that (academic) research has yet to address is whether relevant and adequate safeguards are in place to ensure the rule of law and prevent the abuse of executive discretion by public authorities in such emergency situations. What is an emergency power in the EU in the first place? This blog post offers a comprehensive overview of all the existing EU entities with such powers and argues that the legal protection framework of private actors in the case of emergency must be enhanced.

Taking stock of the varieties in EEA emergency enforcement powers

Constituting the principal executive body of the EU, it may not come as a surprise that the European Commission (EC) holds emergency enforcement powers in a number of policy fields, including food and fisheries. Furthermore, our analysis of all the policy fields has revealed that emergency powers can be exercised by the European Supervisory Authorities (ESAs): the European Banking Authority (EBA), the European Securities and Markets Authority (ESMA), and the European Insurance and Occupational Pensions Authority (EIOPA), the recently-established European Border and Coast Guard (EBCG), and the European Aviation Safety Agency (EASA) if the ongoing revision of the EASA’s founding act is adopted as it stands now.

Now, what does constitute an emergency situation, what do these emergency powers entail, and what legal form do they assume? Little to no consistency can be detected amongst the abovementioned EEAs (safe for the ESAs, whose constitutive documents are akin; see Table 1 below).

EEA Legislation ‘Emergency’ Enforcement power Safeguards
EC Art. 53 Reg. 178/2002 Likelihood of serious risk is evident. Suspending or conditioning activities. Not elaborate
  Art. 108 Reg. 1224/2009 Evidence of threat or undermined plans. Suspending or prohibiting activities. Not elaborate
  Art. 36 Reg. 1005/2008 Evidence of undermined measures. Prohibiting activities. Not elaborate
EBA Art. 18 Reg. 1093/2010 Adverse developments which may seriously jeopardise the orderly functioning and integrity of financial markets or the stability of the whole or part of the financial system in the Union. Require necessary action, including the cessation of any practice. Very elaborate
EIOPA Art. 18 Reg. 1094/2010 Adverse developments which may seriously jeopardise the orderly functioning and integrity of financial markets or the stability of the whole or part of the financial system in the Union. Require necessary action, including cessation of practice. Very elaborate
ESMA Art. 18 Reg. 1095/2010 Adverse developments which may seriously jeopardise the orderly functioning and integrity of financial markets or the stability of the whole or part of the financial system in the Union. Require necessary action, including cessation of practice. Very elaborate
EBCG Art. 19 Reg. 2016/1624 Control of the external borders is rendered ineffective to such an extent that it risks jeopardising the functioning of the Schengen area. Organising and coordinating rapid border interventions; organising return interventions. Elaborate
EASA Art. 55 Reg. COM(2015) 613 final Serious and persisting inability of a Member State to effectively perform certain or all of its certification, oversight and enforcement tasks. Becoming the competent authority for the purposes of the transferred responsibility, relieving MS. Not elaborate

Table 1. EEA emergency enforcement powers

First, the legislative framework is diverse as to when an emergency can arise. In some cases, it is serious risks that are “evident” (EC). In other cases, there should be “evidence” of a threat (EC). The degree of the specificity of such provisions is thus diverse. Under the EBCG’s regulation, a situation requiring urgent action arises where “a Member State facing specific and disproportionate challenges at the external border has either not requested sufficient support […] or is not taking the necessary steps to implement actions” (EBCG). Furthermore, one could observe that the urgency, with which emergency action or decision is taken, can differ from case to case. Differences exist between situations necessitating immediate action (as the term ‘emergency’ arguably would suggest) and situations where time is allotted for a more extensive deliberation. Accordingly, the term emergency should be read with caution, especially considering that (an apparent absent of) demanding time constraints could arguably influence the discussion on relevant safeguards.

Second, the contents of the various emergency enforcement powers awarded to EEAs also vary greatly. Broadly speaking, emergency powers given to EEAs imply taking decisions affecting the legal position of private actors, for instance by imposing a conditioning, suspension, or prohibition on certain activities.

Finally, a survey of legal forms reveals that EEA emergency powers are either exercised through individual decisions, Commission decisions, or implementing decisions. These emergency decisions can either be addressed to the Member States – imposing enforcement actions to be taken at the national level – or directly to the private actor(s) concerned. This is important since the legal form affects such questions of judicial protection as whether there is a judicial review and at what level.

Relevant safeguards to ensure legal protection

The catalogue of procedural safeguards necessary to accompany any (ordinary) enforcement process encompasses the right to privacy, a multitude of defence rights (e.g. the right to be heard and the right to be informed), a many-faceted proportionality test, and the right to an effective remedy. It may be argued that the necessity of ensuring these safeguards is little or not-at-all affected by the emergency that characterizes the specific enforcement actions discussed in this blog. At the end of the day, the exercise of emergency enforcement powers is public power, the arbitrary or unjustified use of which must be prevented by the implementation of relevant safeguards. The question arises whether the relevant safeguards are in place to prevent the abuse of executive discretion by EEAs in emergency situations.

Safeguards in place?

Much like the aspects regarding the usage of emergency powers discussed above, the legislative frameworks concerning procedural safeguards differ greatly from EEA to EEA (see Table 1 above). Going over the legislative documents constitutive of the aforementioned EEA emergency powers, a mixed picture is revealed: from virtually no mentioning of relevant safeguards (in the case of the EC) to elaborate lists of safeguards (in the case of the three ESAs). However, as common ground between all EEAs, no single legislative document prescribes all the relevant safeguards. Although – admittedly – some safeguards may be derived from a more general source (such as the Treaties, the CFR, or even jurisprudence), this shortcoming may be considered problematic from the point of view of ensuring the rule of law and legal certainty, especially given the fact that the number of EU entities with such powers is growing. Especially such requirements as the legality principle’s elements of accessibility and foreseeability, as well as the principle of legal certainty, warrant this position.

So what is the way forward?

Logically, on account of the specificities of various cases that may warrant emergency enforcement action by EEAs, a one-size-fits-all approach towards the relevant safeguards seems hard to imagine, if necessary in the first place. Already on account of the different legal forms, standing before the Court of Justice, and thus required considerations of legal protection, may vary greatly. Notwithstanding, uniformly supporting emergency enforcement powers with safeguards will make it clearer for EEAs how to exercise such powers properly, for the (supervised) private actors what rights they can invoke at what stage of the enforcement procedure (e.g. privacy rights during the stage leading up to the exercise, and rights of defence upon actual exercise of the emergency enforcement power), and finally for courts upon which standards to scrutinize the exercise of those powers. A narrower typology of emergency situations and emergency powers would allow for the establishment of few models or types of legal protection elements for the use of emergency enforcement powers by EEAs, which could go a long way towards promoting the rule of law in the EU. An example could be to adapt a typology that duly considers the urgency – in the sense of rapid response requirement – of the emergency situation at hand, and appoints the relevant safeguards accordingly.

Tom Binder
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Author: Tom Binder

Tom Binder is a Junior Lecturer at Utrecht University, specializing in European Law. While obtaining his LL.M. in European Law, Tom was employed as student-assistant to Miroslava Scholten for the purposes of her veni research project and provided editorial support for this blog in 2016-2017.

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