The EU body of law counts more than 100,000 pieces of legislation and some argue that the legislative activity of the EU has been declining. However, are these laws being followed and do they bring the expected results? To answer these questions, it is important to investigate relevant implementation processes.
Enforcement is a process of monitoring compliance with laws, investigating possible violations and responding to the proven violations via corrections and sanctions. Upon an invitation from Edward Elgar publishing, I have organised a research handbook on the enforcement of EU law, which was written by 50 experts from relevant fields. This blog post gives a succinct overview of the main findings of this book, which has aimed to present the state-of-the-art in research and practice and outline directions for future research and policy. The book shows an evolution of the concept of enforcement of EU law and observes interesting trends. Based on a comparative methodology, it argues for an increasing importance of the preventive function of enforcement and shows an insightful variety of approaches that can be taken in this regard. Finally, the book discusses the question of success of enforcement by pinpointing the factors that could promote or hinder it.
About the book
The ‘Edward Elgar Research Handbook on the Enforcement of EU Law’ includes three parts: on the conceptual, institutional and sectoral perspectives of the enforcement of EU law. The overarching aim was to investigate how enforcement has been organized (feature 1), to what extent it has been successful (feature 2) and what successful enforcement could mean (feature 3).
Conceptually, it was clear that success comes from the clarity of norms, a good alignment between EU and national laws and the interplay between deterrent- and compliance-based approaches, which may include enforcement ladders of instruments such as warnings, periodical payments, sanctions, withdrawal of licenses, etc. Institutionally, the legitimacy and independence of EU and national enforcement agencies and courts seem to be of key importance. Resources – human, financial, technological – and expertise are of paramount importance too. Twenty-one sectoral studies showed all kinds of variations in terms of enforcement – from court-based to enforcement by public agencies. Debate is ongoing as to how to measure the success of enforcement – is it dependent on having relevant norms and powers, and/or also having specific results, and/or making specific efforts?
Presentation of the book at the first 2024 EULEN Annual Conference at King's College London. The panel consisted of Prof. Ch. Vajda (barrister, visiting professor at KCL, former judge at the Court of Justice of the European Union), Mr. H. Mojet (Senior Official at the Dutch Ministry of Economic Affairs) and Mr. J. Lynch (Senior Enforcer at the European Securities and Markets Authority (ESMA)). 20.09.2024
Feature 1: evolution of the concept of ‘enforcement of EU law’ and trends
The evolution of enforcement of EU law knows a number of processes and trends mentioned throughout the book. First of all, it is clear that enforcement of EU law is more than, roughly put, the infringement procedure. National courts, administrations, EU and national agencies and networks, citizens and companies are the enforcement actors. This implies the importance of studying more than the court judgements but also rules, actors and processes beyond that.
Secondly, a number of trends can be noticed:
- Principles-, rights- and safeguards-based approaches in enforcement are on the rise. This means that enforcement of EU laws can be organized via ensuring and monitoring specific principles in attaining policy goals, rather than using detailed regulations. This development also allows reliance on rights and safeguards in ensuring the attainment of policy goals in a legitimate way;
- Europeanization of national laws and their enforcement in EU context is growing. This trend signifies changes in influence and adjustments in various degrees of harmonization of national substantive and procedural laws; further, this trend also showcases a shift from predominately indirect to also networked and direct enforcement;
- There is centralization of the enforcement power of the rule-making authority to determine how enforcement should be done and exercised; for instance, via proliferating coordination (via networks) and agencies;
- We observe politicization of regulatory enforcement via determining, debating and defining which issues need to be regulated and enforced and which – not; difficult compromises and difficulties in reaching an agreement may lead to creating too complex governance- and decision-making processes that could challenge enforcement;
- There seems to be an ongoing consolidation and proceduralization of enforcement activities via EU hard-, soft- and case law, and rights and safeguards;
- We further observe proliferation of soft or ex ante mechanisms to enhance compliance that ensure the preventive function of enforcement instead of relying only on its responding function, which can be expensive in terms of human, financial and emotional costs;
- Finally, we note the advent of criminalization of EU laws, meaning the proliferation of prescribing national criminal sanctions for EU law enforcement violations; additionally, we observe ongoing harmonization of procedural criminal laws.
Feature 2: preventive function of enforcement and laboratory of approaches in enforcement
The evolution of the concept of ‘enforcement of EU law’ is also seen in understanding better the functions of enforcement. This book shifted the focus from predominantly the reactive or responsive function of enforcement to its preventive function. While it is important to consider a proper balance of ex-ante and ex-post mechanisms of enforcement, this volume produces a good illustration of a rich and developing set of tools of ex- ante mechanisms and clauses that support the development of enforcement pyramids and responsive regulation. Such ex-ante tools include developing codes of conduct, compliance programmes, peer pressure, dialogue procedures, mediation and dispute-resolution clauses (including reliance on the ex-post effective systems like SOLVIT), alternative dispute resolution and online dispute resolution, laying ex ante conditions and notifications requirements, preventive remedies, self-reporting, collaborative enforcement, education and soft law guidance, developing specific principles like ‘polluter pays’ and traceability of food or money origins, rapid alert systems, cooperation, exchange of information, disciplinary measures.
Feature 3: elements promoting and hindering the success of enforcement
The elements that can promote or hamper the success and the assessment of enforcement seem to come down to the following three:
- (lack of) enforcement strategy;
- complexity of designed institutions, legal provisions and enforcement, as well as controlling procedures that undermine legitimacy and rule of law standards;
- (undesirable) politicization.
One may at the same time wonder if the undesirable politicization factor is also not part and parcel of the lacking strategy and complex procedures. I leave this to the reader’s further consideration. So, the lessons learned include:
- having an overarching strategy and clarity on the enforcement power of the EU (this includes justification of choices behind indirect, networked and direct enforcement; elaborating balances between preventive and reactive enforcement functions and mechanisms; developing general and sector-specific approaches, etc.);
- smart law- and rule-making that considers enforcement ex-ante, at the law-/rule-making stage (including within impact assessment). Such rule-making would include national enforcement mechanisms, tailoring enforcement to the policy aims and the nature of obligations, as well as to the actors targeted to carry such obligations;
- studying the effect of existing enforcement policies continuously to build reliable statistics and knowledge on enforcement;
- developing principles of creating simple and clear institutions and procedures;
- finally, working on practices of dealing with political considerations via developing of the ‘rule of reason’ in justifying the need for regulation and its further elements (at the EU law level), as well as promoting the idea that the government does not only control the governed but also itself (the Federalist No 51, see Madison 1788).
Concluding remarks
All in all, enforcement is a complex process with preventive and reactive mechanisms, both of which contribute to addressing non-compliance, which, in my view, should be the focus of any successful enforcement strategy. Preventing non-compliance enhances the chances of ensuring the policy goal or regime value at the least cost, be it financial or otherwise. Furthermore, preventive and reactive functions need to be well-designed and balanced to ensure enforcement success. Policy fields may differ in terms of the competence of the EU and their respective policy goals. This in turn will translate in the need for different enforcement mechanisms and approaches. In any case, understanding (potential) reasons behind non-compliance could help offering an effective toolbox of enforcement instruments, tailored to addressing the said reasons – tools to seek for agreement on the norm, educate, discuss, warn, explain, investigate and give various responses to various violations in a legitimate and proportionate manner.
- Edward Elgar Research Handbook on the Enforcement of EU Law - September 30, 2024
- John Vervaele’s farewell speech and legacy in the field of enforcement of EU laws - March 31, 2023
- Recommendations for ensuring controls for shared enforcement in the EU - May 31, 2021
