The lion’s share of antitrust agencies’ actions is the enforcement of policies that ensure compliance and deter market players to engage in anticompetitive practices. However, credibility of competition authorities is hindered when agencies fail to enforce policies successfully. A source of ‘failed’ enforcement policies is found in judicial appeal cases against regulatory decisions, which can delay for years the effective implementation of a sanction or can even rule out the enforcement decision of an agency. Why do regulatory agencies fail to comply with legal standards in the process of enforcing the law? Answering this question can lead us to look up into different places, such as courtrooms, texts of legislation or the market structures of the economic sectors under supervision. Nevertheless, what if we look straight into the core decision-making structure of competition agencies?
For many years, the incorrect application of the Single Market rules has been a concern for the EU. In that respect, the European Commission has expressed its ambition, in compliance and enforcement matters, to be “bigger and more ambitious on big things, and smaller and more modest on small things”. Given its limited resources, it makes sense for the Commission to focus on the “big things”. But then someone else has to take care of the “small things” because, added together, they constitute a serious impediment to the functioning of the Single Market.
How, and by whom, these small things shall be taken care of is the topic of our newly published discussion paper “Reforming compliance management in the Single Market”. In this paper, the National Board of Trade Sweden discusses, after looking at possible alternatives, a decentralisation reform that would consist in setting up national enforcement bodies in each Member State. Their mandate would be to investigate local infringements of EU law and, eventually, to bring actions before the national courts.
Ensuring effective judicial protection appears to be a challenge in the case of the increasingly integrated administrative procedures. The judicial powers are generally more strictly divided between the EU and the national level, while composite procedures may require a more integrated judicial control. Is the Court of Justice of the EU (CJEU) moving into this direction in the recent case of Berlusconi by confirming its exclusive competence to review non-binding national preparatory measures that are part of an EU decision-making process? The ruling clarifies the CJEU’s jurisdiction and avoids a strict separation of the EU and the national level, but it remains to be seen if it serves as an actual next step towards integrated judicial protection. Just how the CJEU can review the national part of the procedure is still unclear, as are the types of preparatory measures to be covered. It seems to nevertheless be a welcome step towards clarifying judicial protection in the case of composite procedures.
Based on ‘Criminal Liability of Managers in Europe. Punishing Excessive Risk’, (2019) Hart Publishing
“In retrospect, many firms … took on too much risk and did not have sufficient resources to manage those risks effectively in a rapidly changing environment.” (Written Submission of Morgan Stanley to the Financial Crisis Inquiry Commission, John J Mack, Chairman, January 2010)
Every managerial decision is risky, at least to some extent. Conducting business is impossible without venturing into new territories and even the most ordinary daily choices could turn out to be failures. Excessive risk, however, can be very detrimental as was starkly illustrated by the most recent financial crisis. By criminalising managers’ excessive risk-taking criminal law enters a sphere at the core of business activity. But it also provides for criminal punishment for courses of conduct that can be extremely harmful.
The aim of this post is to present a national perspective on the functioning of the European Competition Network (ECN) introduced by Regulation 1/2003. I would like to focus on some of the features to come forth with a positive impact on substantive law, despite the fact that it caused decentralisation of enforcement and what is worth mentioning that national rules on procedures and sanctions remained heterogeneous.
Europe’s peoples are scared, divided, and increasingly dissatisfied with uniform solutions to many local problems. Recent examples can be found in Greece, Hungary, Italy and the UK. For many years, de Búrca and Scott (Constitutional Change in the EU: from uniformity to flexibility? (2000), 2) note that in many areas of EU law, “…increased heterogeneity, political, economic and cultural…inevitably brings an increase in the heterogeneity within the functioning of…[the EU’s] institutions and policies.” Yet, the European Commission, European Parliament, as well as many academics, practitioners and other regulators strongly resist diversity in competition policy and enforcement in Europe. They fear undermining a level playing field for firms in the EU; reduced co-operation between national competition authorities (NCAs) and courts; and increasing the costs to business. In my new book, A Framework for European Competition Law: co-ordinated diversity, (2018) Hart Publishing, I underline uniformity’s benefits, but highlight the important contributions that diversity brings too, including better alignment with national preferences and more innovation and experimentation. I offer a new structure, Co-ordinated Diversity. This combines uniformity and diversity to generate more efficient, effective and legitimate outcomes, in ways which fit with the EU legal order.
Next year, a new European Commission will take office. It will no doubt develop new policies in the field of better regulation as its predecessors have done as well. In 2015, the current Juncker Commission presented the better regulation for better results policy – the EU’s ‘Better Regulation’ agenda. Since then, the Commission published several policies as part of this agenda, inter alia, a policy on effective enforcement in December 2016. More recently, in October 2018, the Commission presented a policy on subsidiarity and proportionality in EU policymaking. With these policies the Commission has made important steps in improving legislative quality in the EU. One element is missing however: the link between legislation and legislative differentiation on the one hand and the effects thereof on enforcement on the other. This would be an important issue for the next Commission to take up as we will demonstrate here.
In recent years, the European Union (EU) has become increasingly involved in the enforcement of EU policies. While the institutional arrangements of this involvement vary in different policy areas, it is usually based on shared competences between the European Commission, EU agencies and national enforcement authorities. This ‘supranational enforcement’ appears to be a functional extension to EU regulation. However, in case of the REACH regulation on chemical substances, this extension is not based on formal delegation of competences, but informal practices of the European Chemicals Agency (ECHA). In this blog post, I discuss these practices to demonstrate systemic problems of supranational enforcement in the case of REACH. Due to these problems, there is substantial non-compliance with essential provisions of the regulation.
Civil society organizations provide an important watchdog mechanism in the European policy process. Based on her study on what drives information exchange regarding the implementation of EU gender equality law in practice, Reini Schrama draws three important lessons from the monitoring network of women´s groups in the Netherlands. The aim of monitoring is to gather information and gain access to valuable sources and this requires swift, brokered and broad-based information exchange. Because of this distinct functionality, monitoring networks benefit from a structure of interactions that allows information to spread rapidly across different parts of the network, no matter the preferences or the organizational background of the actors involved.
The 10-year anniversary of the EU Charter of Fundamental Rights becoming legally binding is due next December. This fast approaching anniversary gives us the opportunity to look back on the fundamental changes that the Charter has brought about in EU law enforcement. Most importantly it caused a change in the mindset of EU policy-makers to give more consideration to fundamental rights when making decisions. In my view, this change towards a more rights-based approach is yet to be fully translated into the daily work of national and local law enforcement actors. I am convinced that progress can be made by training national and local law enforcement to adequately respond to interconnected security and fundamental rights challenges. However, police officers now generally have limited access to non-core fundamental rights education. Therefore, in my post, I will explore why police training should promote the understanding of police officers that a rights-based approach does not limit policing work but underpins its legitimacy in society, decreases the surfacing democratic deficit in EU law enforcement and helps to build bridges with and among citizens and communities in Europe. In light of the turbulent events that occurred recently in Europe and that have fundamentally changed the EU’s security environment, understanding the need for and potential of better fundamental rights education of police officers seems more timely than ever.