Emilie: This month marks the celebration of our 50th blog post and the first anniversary of the Jean Monnet Network on EU Law Enforcement (JMN EULEN). Since the publication of the first blog post 4 years ago, this blog has reached more than 115 thousand visitors from 165 different countries. In addition, over the past year, JMN EULEN has brought academics and practitioners together during several (online) roundtables and conferences. We thank all our readers and contributors, ranging from students and academics to policy makers and practitioners. This milestone feels like a good moment to take stock of the recent developments in the field of EU law enforcement. So, what are the major developments and challenges in the field of EU law enforcement and how to overcome these?
Laura: The enforcement of EU competition law is going through a time of great change. When it comes to public antitrust enforcement, by the end of 2021, Member States are required to adopt the ECN+ Directive (Directive 2019/1/EU) aimed at creating a level playing field in terms of the establishment and powers of National Competition Authorities (NCAs) charged with the enforcement of Articles 101 and 102 TFEU, and at strengthening cooperation between NCAs during the investigation and enforcement phases.
In the area of private antitrust enforcement, it is time to understand whether the equally “revolutionary” Antitrust Damages Directive (Directive 2014/104/EU) has really increased the use of this channel of enforcement and the amount of damages actually granted, and whether consumers – and not only businesses – have been successful in obtaining damages.
In addition, a cross-cutting and crucial challenge that EU competition law is currently facing is that of its effectiveness in the digital environment. I refer in particular to the fundamental debates on the necessity (or lack thereof): (i) to update the traditional definitions of relevant market and market power in case they are no longer “fit-for-purpose”; (ii) to introduce a new market investigation tool aimed at addressing structural competition problems across markets; (iii) and – on the regulation level (see the Digital Services Act Package) – to adopt ex ante rules to ensure that markets characterized by “gatekeepers platforms” remain fair and contestable for innovators, businesses, and new market entrants. All of these profiles are game-changers for the potential enforcement of EU competition law enforcement and following the evolution of the Commission’s position in the near future will be of crucial importance.
Kelly: There are several recent, major developments in European criminal law enforcement. Just earlier this year we have seen the establishment of the European Public Prosecutors Office. Similarly, the European Arrest Warrant has been operational for some time, having generally proven successful. These mutual legal assistance mechanisms show genuine, political intention to foster judicial cooperation. While these are certainly important initiatives in forming a more cooperative approach to criminal law, their uses are not without significant challenge.
Since criminal law largely remains within the competence of the Member States, the Union’s competence is limited to facilitating mutual recognition and establishing minimum rules where the approximation of criminal laws of the Member States proves essential to ensure the effective implementation of a Union policy (Article 83(2) TFEU).
As a consequence of the resulting diversity of national criminal laws, it is necessary to reconsider the centrality of mutual recognition in this field. Though mutual recognition is a cornerstone of EU criminal law, in practice enforcement disputes are frequent and run the gambit from allegations of human rights violations to accusations of inefficient procedures of evidence collection. None are minor issues and each has the ability to significantly complicate judicial cooperation.
Finally, as important as the positive developments such as EPPO and EWA are the new challenges. As Laura discusses, the role of digitization in the Union has been highly disruptive. Criminal law enforcement in itself relies on a number of diverse mechanisms in any given case, now we must also set common standards on the tools used. As long as we have a flourishing diversity of Member State criminal law systems there will be complicated cross-border enforcement of criminal law.
Mira: In my opinion, one of the biggest challenges is how to create an appropriate system of controls for the proliferating shared administration of enforcement in the EU (see, for instance, Scholten and Luchtman 2017, Scholten 2019, Scholten and Brenninkmeijer 2020). What we see is that EU laws offer an increasing number of institutional innovations in the field of enforcement. Think of EU agencies with supervisory and enforcement powers like ESMA, EU networks boosting the exchange of information and cooperation between national ‘enforcers’, like the ECN mentioned by Laura, and such organs as joint supervisory teams as examples. These EU enforcement authorities work increasingly together with their national counterparts, the development that can be explained (Scholten and Scholten 2017). However, we do not yet witness a development of establishing ‘joint controllers’ to check the exercise of the shared enforcement tasks. In my opinion, relevant EU laws and where possible relevant practices and institutional arrangements need to be put in place de jure and de facto to establish a joint system of controls when shared tasks are being delegated. These could include joint parliamentary hearings of the EU and relevant national parliaments; joint databases on national case-law between judges in relevant policy areas, including translations; and ad hoc tribunals and discussion forums for transnational cases with possible conflicts of jurisdictions and of procedures. The controls in the expanding shared public enforcement could also be ensured by developing a comprehensive system of controls, where also various types of controls are aligned to complement each other and mitigate for each other’s challenges (see, the blog post of Scholten and Brenninkmeijer). Public enforcement could be more often designed, for instance, next to ensuring effective private enforcement, whose effectiveness depends on relevant national laws and harmonised procedures, which is, as Kelly mentioned, not that easy to reach politically. The relevance of this approach has become evident in various sectors and interestingly especially in the crisis situation, like the recent financial crisis or the ongoing ‘corona’ crisis. The picture below is a good illustrative example of how new rules and regulations may be getting introduced, especially in times of crisis (but see Binder, Karagianni and Scholten 2018), yet the recipient of such notice cannot help but wonder as to what the legal basis is for this decision, to what extent it is binding, which jurisdiction would apply in case of the argument, which procedural rules (EU and/or national) apply, what sanctions are possible exactly and where, to name but a few.
Anyways, I believe we could build this system by combining our efforts. We, academics, could contribute to building databases, arrange exchanges of information and practices between different stakeholders from different policy fields, compare and develop systematizations, typologies and models, which could hopefully contribute to boost and advance political debate and developing effective practices and laws at the EU and national levels.
Emilie: It becomes clear from the above that there are many challenges in the field of EU law enforcement yet to overcome. In this regard, I consider that a vital means to address the mentioned challenges is to connect academics, policymakers and practitioners. An important development in this respect is the establishment of the Jean Monnet Network on EU Law Enforcement (JMN EULEN) one year ago. Its 5 first events have brought 394 people together from all over the world and it will continue to organise a large variety of activities, including conferences, online lectures and papers, a staff mobility program, a summer school and others in the upcoming years.
- 50th Blog Post on EU Law Enforcement: Taking Stock and Moving Forward - October 30, 2020