Symposium on Institutional Innovations in the Enforcement of EU Law and Policies

Much is being said, lately, regarding the effectiveness of EU policies, often arguing that their implementation is too poor or uneven throughout the Union. Enforcing EU laws is crucial for their successful implementation; however, how should enforcement be organised? At which level, by what type of institutions and what implications does the choice for a particular institutional strategy have in terms of legitimacy, organization of controls and operation of enforcement? The European Commission itself is committed to making EU laws more effective and improving overall compliance with them. What is most relevant is the ongoing changes in the governance of EU law enforcement, according to which direct enforcement powers, long been regarded an exclusive competence of the EU Member States, are increasingly being uplifted at the supranational level, both by providing EU actors with direct powers and through unprecedented shared powers with the lower administrative levels.

The special issue of the European Journal of Risk Regulation, that we have co-edited, focuses on the institutional innovations in the field of EU law enforcement. It aims at promoting research in the so far understudied field of enforcement of EU laws and policies. Its contributions address the questions ranging from how enforcement has been organized in EU policy fields and what we could learn for future design of enforcement institutions, with a special focus on the issues of effectiveness and the rule of law. It does so by gathering experts from different disciplines to contribute to building common knowledge by providing (comparative) case studies and much needed assessment frameworks.

The special issue starts with two contributions focusing on possible explanations of why and when specific types of enforcement institutions have been selected.

Van Kreij offers a framework to investigate and understand the EU legislator’s choice between EU agency, EU network and a national enforcement authority. He offers also two illustrations – the cases of Consumer Protection Cooperation network and Environmental Crimes Directive – showing how this framework could be applied by researchers and practitioners assessing and designing enforcement regimes.

Maggetti takes an opposite, ‘negative case’ of enforcement to discuss the question of when certain institutions could be selected to enforce EU laws and policies or thus not. He investigates the case of Energy Regulation and the Agency for the Cooperation of Energy Regulators (ACER). What is interesting with this specific agency is that it acts like a negative case, as it has not been attributed such competences although positive conditions are present. Maggetti argues that the differences in the attribution of enforcement powers in this case should depend on the role of interest groups.

Interrelated with the question of the creation of an EU enforcement authority is the issue of effectiveness. How can we measure effectiveness of enforcement institutions? Martinius and Mastenbroek offer an evaluation framework to assess European administrative networks on their potential to spur innovative collaboration, and they apply it to the European Network of Prosecutors for the Environment (ENPE).

Cacciatore focuses on the effectiveness and governance aspects in enforcement of the European System of Financial Supervision, and shows that both degrees of organisational change and perceptions of the concrete effectiveness and legitimacy of the new EU governance may vary, according to the different patterns of networked enforcement governance emerging in the subfields of financial surveillance.

Cacciatore and Eliantonio consider the innovative enforcement governance within the fisheries sector, namely networked enforcement through data sharing. They focus on the analysis of corresponding political and judicial accountability mechanisms, and find out that networked enforcement is prevalent in fisheries’ data sharing, yet the mechanisms of both political and judicial accountability have not been able to keep up with this novel institutional arrangement.

Finally, Scholten argues that the proliferation of the shared administration in the EU affects the organization of controls for such a system. A number of developments – proliferation of enforcement, proliferation of mixed forms of decision-making, technological changes – require establishing not only shared types of decision-making procedures but also merge the systems of controls belonging to different jurisdictions, types and concepts of control. she offers her first observations on what issues could be connected in future research and legislative design. She illustrates the added value of connecting with an example of the Single Supervisory Mechanism.

Originally posted in the Cambridge Core blog.

Miroslava Scholten & Federica Cacciatore
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Author: Miroslava Scholten & Federica Cacciatore

Miroslava Scholten is an Associate Professor of EU law, Utrecht University and a member of the Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE). Federica Cacciatore is a senior expert for administrative simplification at the Department of Public Function, Italian Presidency of the Council of Ministers. She is Adjunct Professor of Policies of Administrative Simplification at Tuscia University, Viterbo, Italy.

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