On December 15 and 16, the University of Luxembourg commemorated the work of the Doctoral Training Unit on Enforcement in Multi-Level Regulatory Systems (DTU REMS), which culminated with a closing conference and the unveiling of their published joint work, Enforcement Challenges in Multi-Level Regulatory Systems, Revealing Weaknesses and Offering Solutions (Nomos). The conference began with a presentation of the contributing PhD graduates and their supervisors. Afterwards, Dean Katalin Ligeti, coordinator of the program, was joined by the Program Manager of the Luxembourg National Research Fund (FNR), Marie-Claude Marx, and the Vice-Rector for Research of the University of Luxembourg, Professor Jens Kreisel, to share remarks on the project.
The DTU REMS was a four-year grant of the FNR to the Department of Laq in partnership with the Max Planck Institute for Procedural Law. (Grant award announcement) The focus of the DTU REMS doctoral researchers was cross-cutting in nature and addressed enforcement challenges in banking & financial law, IT & satellite communications law, international trade & investment law, dispute resolution, criminal law, administrative law, EU law, international law, and human rights law. (University of Luxembourg)
During the closing conference, each of the PhD researchers presented the development of their work as demonstrated in the edited volume. The panels were categorized according to the structure of the book, which is divided into three main themes: 1. “Enforcement in multi-level regulatory systems: the design”, 2. “General and specific problems of enforcement in multi-level regulatory systems”, and 3. “Sketching solutions for enforcement problems of multi-level regulatory systems”.
The first theme, on the design of multi-level regulatory enforcement, approaches challenges in the design of the enforcement mechanisms from three perspectives. The first addresses the enforcement of EU law from a critical perspective from the lens of the Whistleblowing Directive (2019/1937). The second questions the judicial consequences of enforcing administrative decisions, illustrated specifically by the use of the Single Resolution Mechanism. And finally, the first panel concluded by questioning the notion of a public-private divide in enforcement mechanisms, specifically as demonstrated in criminal law enforcement. Taken all together, these presentations and indeed the conference discussion came to the conclusion that the proliferation of enforcement actors begs questions of private versus public enforcement and how we perceive the legitimacy of enforcing actors.
Another theme addressed in the book as well as discussed at the closing conference was that of general and specific problems in enforcement. The cases assessed in this section are time limits in EU procedural law; enforcement of remedies in the case of automated decision-making; the role of national judges in enforcing the EAPO Regulation (EU 655/2014) from the perspective of domestic civil procedure; and complexities of internet regulation and online platform responsibility in the Digital Single Market. Though very different cases and perspectives, the discussion came to share several common findings, such as the need for solutions tailored to the specific enforcement mechanism or enforcer.
A theme that frequently emerged during the conference was that the role and autonomy of the enforcer varied according to the manner in which it was defined. As an example, the E-commerce Directive (2000/31/EC) seeks to determine how an online platform is regulated based on whether it may be defined as neutral, however, at the same time enforcement of the platform is guided by national law. Consequently, the definition of liability, remedy, and choice of law is accordingly defined and causes various applications across borders. Similarly, the use of technology, as in composite decision-making such as for Schengen enforcement by interoperable border programs, requires nuance as to the understanding of technology and its role as an active ‘enforcer’ in of itself. Just as e-commerce is defined in the Directive yet implemented according to national categorization the implementation and review of its uses for border management are performed in a silo-ed approach.
The third main theme in the book is the search for solutions to the identified challenges. The cases highlighted for discussion are: the effect of Europeanization and (lacking) post-accession enforcement as it affects semi-independent judiciaries; whether serious economic crimes should be included in the Rome Statute; self-placement as a potential regulatory solution to the silo effect in EU financial regulation; and the role of loyalty as a remedy in the EU judicial experience. It was clear that while we consider levels of enforcement and the effect of EU law on national systems, or vice versa, the idea of remedies similarly varies. For example, in the case of digital enforcement mechanisms, violations are often at the collective level, as are remedies. While regulations such as the GDPR (EU 2016/679) or E-commerce Directive are an important first step, they raise important questions of how we craft and use enforcement tools that are defined by national systems. These questions are amplified by the variation of the actors responsible as well as the changing role of procedural mechanisms and standards that are adapted to ensure the adequacy of enforcement. The book and closing conference offered numerous insights into the challenges that affect multi-level enforcement systems and specifically the European Union. Taking lessons learned from experience in regulatory mechanisms, the hybridity of actors, and competing interests, it was suggested in consensus that these issues face many of the same challenges yet also share numerous avenues to resolution. While liability for different actors may be according to the sector or enforcement mechanism, a divide in private versus public, or civil versus criminal, the defining of enforcement may center on shared principles, such as transparency or safety by design. By identifying the diverging issues in multi-level enforcement systems, projects such as the DTU REMS or EULEN also shed light on shared opportunities and open the door for ongoing research.