By the Network members
The Jean Monnet Network on enforcement of EU law (EULEN) was launched in September 2019. This ERASMUS+ project has been funded for four years; it came to an end in September 2023. This blog post offers a recap of the network’s departing points, results and conclusions. The EULEN network aims at developing further, including holding an annual conference with a call for papers (to be announced in due time), in order to contribute to research and practice in the field of enforcement of EU law.
The establishment of the network and its structure
The creation of the Jean Monnet Network on enforcement of EU law (EULEN) was announced in our earlier blog post of September 2019. As we stated there, the enforcement of EU law and policies – whether they deal with securing our societies against transnational crime, the stability and competitiveness of our markets or migration and border management – have increasingly become a shared concern and responsibility for the EU and its Member States. Three developments mark the growing influence of the EU on law enforcement, i.e. on the monitoring of compliance of substantive norms of EU law, the investigation of alleged breaches of law and sanctioning for non-compliance (Scholten and Luchtman 2017, Scholten 2017):
- the increasing emphasis of the EU legislator on enforcement convergence and on how nation states organize their systems of public and/or private enforcement (indirect or decentralized enforcement);
- the proliferation of new models of transnational enforcement cooperation, i.e. the shift from traditional international cooperation towards new, transnational forms of cooperation under a framework of common goals, rules and institutions (e.g. the European Arrest Warrant, joint investigation teams, operational enforcement networks);
- the proliferation of EU authorities with direct enforcement powers vis-à-vis private actors, including the sanctioning of infringements of EU law by these actors (direct or centralized enforcement).
These three developments have brought along a delicate interplay between the many different actors involved and confront the EU and its Member States with the challenges to:
– align models for effective law enforcement, predominantly still based on the model of the nation-state, with rule of law standards in the shared legal order of the EU,
– obtain a fair balance between the need to integrate the enforcement of EU policies in national systems, customs and practices and the need to accommodate a level playing field at the transnational and supranational levels, and
– address the challenges for law enforcement in the digital era.
To contribute to addressing these challenges, we established EULEN, an initiative of 9 Universities. This network’s thematic focus was twofold.
On the one hand, its activities focused on four selected policy areas where we had witnessed the mentioned trends:
- EU competition law (coordinated by the University of Warsaw, Poland (dr. M. Bernatt and dr. L. Zoboli), and Bocconi University, Milan, Italy (prof. dr. F. Ghezzi and dr. M. Maggiolino));
- EU banking and financial services law (coordinated by King’s College London, the United Kingdom (prof. dr. A. Turk and dr. O. Stefan));
- Protection of the EU’s financial interest (PIF) (coordinated by the University of Luxembourg, Luxembourg (prof. dr. K. Ligeti, Mr. F. Giuffrida (2019-2020), Mr. P. Constantinides (2021-2022) and Ms. G. Theodorakakou (2022-23));
- Migration, border management and asylum (coordinated by the University of Deusto, Bilbao, Spain (prof. J. Abrisqueta Uriarte, dr. D. Fernández Rojo and dr. J. López Rodríguez)).
Three ‘horizontal themes’ were coordinated by Utrecht University, the Netherlands (prof. dr. M. Luchtman and dr. M. Scholten), in cooperation with the University of Bonn, Germany (prof. dr. M. Böse), and the University of Zurich, Switzerland (before 2022) and then the University of Heidelberg (from 2022) (prof. dr. F. Meyer) on the ensuring effectiveness and the rule of law in a shared legal order and with the University of Castilla-La Mancha, Spain (prof. dr. L. Arroyo Jiménez) on the technological innovations and EU law enforcement. The topic of finding balance between differentiated enforcement and a European level playing field was coordinated by dr. S. Princen of Utrecht University.
The network had an advisory board with internationally recognized experts in the field of enforcement – dr. F. Blanc (OECD), prof. P. Craig (University of Oxford), prof. W. Kovacic (George Washington University, former US Federal Trade Commission), prof. A. Ottow (Leiden University, University Board), prof. J. Vervaele (Utrecht University; President of the Association International de Droit Pénal).
EULEN had a platform of Young Researchers (YRP) to promote their research projects and dissemination of findings via blog posts and EULEN’s online collections of papers and other publications. YRP was coordinated by Ms. K. Blount (University of Luxembourg) and Mr. L. van Kreij (Utrecht University). Having hosted numerous online research seminars, YRP members benefited from sharing their research and receiving comments from peers and experts in their fields. All of this despite COVID restrictions. Similarly, the YRP was active throughout the course of in-person conferences, such as the kick-off session in Utrecht and culminating with the YRP research seminar in Bonn in 2022. The seminar resulted in a working paper series, available online, and generated networking and increased visibility for the YRP and EULEN. Since the origin of EULEN, YRP membership increased by nearly ten-fold and members frequently utilized the network for research purposes.
Results and conclusions
In the four years of its operation (September 2019 – September 2023), the nine-partner universities organized more than 20 events, issued seven online working papers’ series, awarded three master thesis prizes and exchanged their research and teaching staff to boost research on the so far understudied pertinent questions surrounding the theme of enforcement of EU laws. A special online lecture series was developed to share our experts’ knowledge and ideas with the public at large.
What is the state of the art in research and practice on the enforcement of EU laws and what are the pertinent questions to investigate and develop further? In addition to the online working papers, online lectures and blog posts, we offer the following reflections on the four policy areas and three ‘horizontal issues’ we have discussed at in our activities:
- Enforcement in the area of EU competition law
Enforcement of EU competition law boasts one of the lengthiest and most established traditions within the realm of EU law (for a more detailed analysis see here). This historical continuity finds its roots in the fact that core EU competition regulations have been an integral part of primary EU law since the establishment of the EC Treaty in 1957. The enforcement system has since evolved on multiple occasions, exemplified by the Copernican revolution brought about by Regulation 1/2003. This transition shifted the public enforcement of competition law from a centralized to a decentralized model. More recently, the ECN+ Directive further aimed to establish a minimum standard for authorities’ formation, independence, resources, and powers. Alongside, important reforms have been brought to private enforcement, through the enactment of the Damages Directive.
Insights garnered from EULEN network’s activities (also resulting in an issue of the Yearbook of Antitrust and Regulatory Studies) underscore that EU competition law enforcement, in the present day, constitutes a complex yet predominantly effective framework. This assertion holds true across all three enforcement “pillars”: public enforcement of Articles 101 and 102 TFEU, merger reviews, and private antitrust enforcement, notably damages compensation. It is crucial to emphasize that the efficacy of antitrust enforcement within the EU does not solely hinge on a sophisticated regulatory framework but equally on the genuine independence of national competition authorities. This underscores the broader imperative of upholding the rule of law to enhance the efficacy of competition law enforcement. Concurrently, ensuring the delegation of EU law enforcement duties to competition authorities aligns with adequate resource allocation and measures of accountability.
While the public enforcement system has now reached a high level of standardization, a critical profile is still represented by national jurisdictional systems and the fact that procedural rules often do not allow for an effective decentralized application of European competition law, just as in terms of substance national courts often do not follow European principles, as developed by the Court of Justice, because they are contrary to national legal traditions. On a broader scale, the achievements and challenges faced in competition law enforcement offer invaluable insights for burgeoning enforcement systems and potential schemes within the EU. A notable example is the proposed ‘media plurality test’ within the 2022 draft of the EU Media Freedom Act, that could be refined to augment its practical effectiveness, mirroring the strides achieved in the domain of competition law enforcement.
- Enforcement of EU banking and financial services law
From our two workshops in London (virtually in April 2020 and in person in September 2022) that were dedicated to “Enforcement of EU banking and financial services law: challenges and opportunities” a number of key themes emerged. The first was related to the constitutional foundation of EU financial regulation. It was felt that the work of the European Supervisory Authorities (ESAs) as EU agencies had to be placed on a more secure constitutional basis to enhance the legitimacy of their work. A second theme concerned the multi-level and multi-jurisdictional nature of the EU’s system of financial regulation. As regards the vertical relationship between European authorities and national competent authorities (NCAs), it was in particular the varied legal effects of Article 16 guidelines (and other soft law instruments) adopted by the ESAs in the national legal orders that attracted attention. Concerns were also raised about judicial protection in respect of the enforcement of sanctions within the Single Supervisory Mechanism (SSM) by the ECB and the NCAs and more generally it was submitted that a more robust regime was necessary to strengthen the non-judicial accountability fora within the SSM. At the European level questions were raised about the horizontal interaction between the EBA and the ECB. A third theme concerned the role of private enforcement and here in particular the question of remedies for private parties but also the gaps in protection for whistle-blowers. A final theme concerned the issues that financial innovations, such as crypto-assets, have raised for EU financial regulation and the value that comparative perspectives, in particular with the USA, can bring to bear in this field.
- Enforcement in the area of protection of financial interest of the EU
During the EULEN activity period, the University of Luxembourg carried out academic activities around the challenges for EU enforcement in the field of protection of the European Union’s financial interests (PIF). Among other events, in 2022 the University of Luxembourg organized a 3-day conference on ‘EPPO One Year in Action: Towards Resolving Complexity and Bringing Added Value’ which consisted of a scientific event that brought together high-profile speakers from various EU institutions, bodies, offices and agencies, national practitioners, and prominent academic experts, and resulted in a working paper series, available online, and a Special Issue in the New Journal of European Criminal Law. The academic activities organized by the University of Luxembourg concluded that the enforcement of the protection of financial interests of the EU has a multilevel character (supranational – national, centralized – decentralized, preventative – suppressive, criminal – administrative) which although is necessary to provide complete protection, it sometimes gives rise to further complexities (e.g., coordination among the various levels, legal certainty). With respect to enforcement via the EPPO, the discussion showed that the EPPO has indeed brought added-value, but shortcomings remain. It emphasized mostly the challenges stemming from the lack of harmonization (e.g., cross-border investigations, defence rights) and the interaction between the supranational and domestic levels in both the EPPO’s institutional design and legal framework, which according to some scholars, should lead to an amendment of the EPPO Regulation. Indeed, the Commission has already started assessing the implementation of the EPPO Regulation by the Member State to judge whether to proceed with amending it in light of the findings of the assessment. Finally, the rising role of the EPPO in protecting the financial interests of the EU at a global level was highlighted, and is expected to inspire further discussion, and perhaps, legislative or other political action in the future.
- Enforcement in the field of migration, border management and asylum in the EU
The 2015 ‘refugee crisis’ revealed the urge to ensure the functioning of the Schengen area and the Common European Asylum System, the need to operationally assist those Member States most affected by the sudden and extraordinary arrival of mixed migratory flows, and the need to effectively and uniformly implement the EU measures regarding migration, asylum and border management. It is key to promote a transnational dialogue among administrations at the EU, national and local level, as well as to adopt effective measures that overcome the existing implementation deficit concerning migration, asylum and border management. In this regard, for example, EU decentralised agencies in the Area of Freedom, Security and Justice (i.e. Frontex, EU Agency for Asylum, Europol) are now crucial actors, not only in providing operational assistance to frontline Member States, but also in effectively and uniformly implementing the EU border management, migration and asylum laws and policies adopted. The focus of the EU in border management, migration and asylum matters is shifting from adopting measures to tackling the existing implementation deficit. Due to the predominantly operational nature of migration, border management and asylum policies, the EU decentralised agencies stand out as the mode of administrative governance, specially indicated for providing technical expertise, exchanging information, and coordinating the operational activities of the Member States. That is, migration, border management and asylum policies are amended and strengthened with a clear trend from decentralised enforcement towards developing more and more forms of transnational and centralised enforcement.
- Rule of Law in the Enforcement of EU Law
Law Enforcement is an essential requirement for the rule of law. Without enforcement, EU law will remain a dead letter. Its enforcement does not only aim at protecting the Union’s legal interests but the interests of its citizens as well. However, the rule of law does not only call for effective enforcement of EU legislation and policies but also for an institutional and legal framework that abides by the rule of law and respect for human rights in particular. This tension has been discussed during various (online) events, including at the online event organized by the University of Bonn (November 2021) and at the conference at the University of Heidelberg in June 2023.
The rule of law requirement holds especially true for criminal sanctions and other measures (e.g., in the border control framework) that seriously interfere with fundamental rights. The growing impact of EU legislation and agencies and the enforcement framework has raised however many questions, ranging from the need for common standards for fundamental rights and procedural safeguards in transnational enforcement mechanisms to their practical implementation in hybrid enforcement frameworks where we have a shared responsibility of EU institutions (e.g. the EPPO or FRONTEX) and national authorities. In this regard, both effective enforcement and protection of fundamental rights crucially depend upon a clear-cut division of tasks and responsibilities that can serve as a basis for accountability mechanisms and judicial protection of the individual. Where national authorities are still responsible, EU legislation has established a common level playing field for decentralized enforcement. Still, it relies on the institutional and procedural framework of the national enforcement regimes. Accordingly, decentralized enforcement must strive to ensure coherence within the EU legal order (e.g., concerning the proportionality principle) as well as within the national enforcement frameworks (e.g., with general concepts of criminal law rooted in the Member States’ criminal justice systems). See also the online lecture on this subject matter by Martin Böse and Martin Böse, Der EuGH und die Strafrechtsdogmatik. Grund und Grenzen einer Harmonisierung des Allgemeinen Teils, in: Bublitz, Bung, Grünewald, Magnus, Putzke, Scheinfeld (eds), Recht – Philosophie – Literatur, Festschrift für Reinhard Merkel zum 70. Geburtstag, Duncker & Humblot Berlin 2020, p. 589-606.
- Uniformity vs. differentiation in enforcement of EU law
The stream on differentiated enforcement and level playing fields focused on the tension between, on the one hand, differentiation in the way EU law is enforced and, on the other, the creation of level playing fields within the EU. This topic was explored in a two-day workshop in Utrecht on 20 and 21 April 2023, a working paper and an online lecture by Sebastiaan Princen. Whereas risk-based differentiation in enforcement has received considerable attention from scholars and enforcers, territorial differentiation seems to be an afterthought in debates on EU enforcement. To the extent that it exists, it tends to be seen as an unfortunate imperfection rather than a potentially positive contribution to the effectiveness and legitimacy of enforcement in the EU. However, a case can be made for a more explicit and nuanced understanding of the relationship between differentiation, uniformity and level playing fields in EU law enforcement. Depending on the policy issue at stake and the type of level playing field one seeks to achieve, forms of differentiated enforcement may lead to more effective enforcement efforts and better policy outcomes. The work within EULEN has sought to identify the considerations that need to be taken into account in the choice for differentiation and uniformity in enforcement. Based on this work, the next step would be to come to a more precise framework that specifies the conditions under which forms of differentiation and uniformity are (un)desirable in the enforcement of EU law. In this way, the choice for differentiated or uniform enforcement can be made in a more conscious as well as more balanced way.
- Technological challenge and enforcement of EU law
Technological disruption is dramatically transforming the production and implementation of law from various perspectives. In the framework of the EULEN network, we have focused on a group of these changes, namely those brought about by the expansion of automated decision-making (ADM), and in particular of artificial intelligence (AI) systems, in the activity of public authorities carried out to enforce EU law. The output of the network’s action in this area has been threefold: a conference on the topic “AI Systems and EU Law Enforcement – Between Effectiveness and the Rule of Law”, the online publication of a series of 12 working papers on the impact of AI systems on different areas of EU law, and a special issue consisting of 7 articles that has recently been accepted for publication in “European Papers”.
Our approach has been both deductive and inductive. On the one hand, the implications of ADM and AI systems in terms of general principles of EU law have been explored – effectiveness of EU law, non-delegation, transparency, due process, good administration, and so no. These and other principles comprise legal requirements that can be put at risk when public authorities enforce EU law through ADM and AI systems. On the other hand, those issues have been analyzed as they arise in the various policy-areas covered by the EULEN network – banking supervision, competition, fraud, immigration, asylum and border control.
The challenge of incorporating ADM and AI systems into EU law enforcement is to enjoy the promise of optimization of EU policies, while evading at least their most notable risks. Both the former and the latter require different trade-offs to be achieved by EU courts and the EU legislator depending on criteria such as the technological approach of the system – semi or fully automated systems, machine learning, deep learning, and so on, the functions it performs – red-flagging, allocation of scarce resources, provision of public services, and so on, and the area where it operates – the internal market, the area of area of freedom, security and justice, and so on.
All in all, EULEN has aimed at promoting cooperation and discussion among academics and practitioners on the pertinent, yet understudied topic of enforcement of EU law. While specific policy areas and laws may require more or less differentiation in enforcement, we see an emerging ‘minimum standard’ or a set of ‘golden rules’ or issues that one may need to pay attention to when assessing, (re)designing and operating an enforcement system. This includes: a suitable institutional shape for enforcer (EU or national agency e.g.); its (constitutional) legitimacy; proper human, financial and technological resources; adequate powers and mechanisms to ensure compliance and to sanction for violation of law; principles for operation for the enforcer (independence, accountability) ensured de jure and de facto; clear division of tasks and responsibilities between relevant enforcers; clear standards of protection of fundamental rights; coherence among EU and national legal orders (definitions, interpretations, standards and procedures); proportionality in ensuring compliance; and availability of remedies aligned with private and public law (EU and national administrative and criminal law) enforcement.