This blog post is a follow up to the preliminary outcomes of the international conference “European Union Law Enforcement: The Evolution of Sanctioning Powers”, organised by the Law Department of the University of Turin on 28 and 29 March 2019. The post is also intended to provide an overview of the main contents of the forthcoming publication of the proceedings of the conference (Eds Stefano Montaldo, Francesco Costamagna and Alberto Miglio, European Union Law Enforcement: The Evolution of Sanctioning Powers, Routledge – book series Routledge Research in EU Law – early 2020). Building on the conference, the book presents the state of the art of EU sanctioning powers and discusses paths converging towards its centralisation – at various degrees of intensity depending on the area of EU competence involved – in the hands of European institutions and bodies.
In my first blog post for this blog page, I signaled a rapid proliferation of EU enforcement authorities (EEAs). These EEAs are an example of a growing administration of shared tasks – regulatory and enforcement – in the EU. The establishment of these complex, multi-level governance structures and decision-making procedures is necessary to address “wicked problems” (think, for instance, about the need to protect environment), which require cooperation of and involvement of various stakeholders. Establishing these complex structures and procedures requires in turn sophisticated systems of controls over public power to safeguard the rule of law. How to build such a system? My main argument is that it is through a framework in which a number of elements need to be connected. These elements include:
- relevant concepts of control (accountability, protection of fundamental rights, etc);
- types of controls (political, judicial, etc) that these concepts may represent;
- analytical prisms that they may create (institutional, decision-driven and rights-driven); and
- systems of controls belonging to different jurisdictions/legal orders in the EU (EU-national and national-national).
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.
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.
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.
European Union agencies have recently been highlighted as key sites for enabling future European law enforcement after Brexit. By operating as ‘nodes’ in trans-European scientific and policy networks, they provide a route to EU law enforcement in ‘third countries’ who wish to integrate with EU regulatory standards without full EU membership, creating ‘regulatory harmonisation’. There is an obvious link here to the potential to enforce regulatory arrangements and ensure ‘alignment’ following March 2019. However, ‘agencies’ have very different forms and functions. Some have hundreds of staff, are based in glamorous offices across the Union and have quasi-‘hard’ regulatory powers. Others have a couple of dozen staff and provide a discrete service to EU Directorates Generales, with more of a ‘soft’ monitoring role.
Based on Ellen Mastenbroek’s inaugural lecture ‘More than the sum of its parts’, held at Radboud University, 15 September 2017 and two related articles (Van Voorst and Mastenbroek, 2017; Mastenbroek et al, 2016).
In this contribution, we critically assess the EU’s system for ex-post evaluation, using fresh empirical data. We find that the Commission has not met its repeated ambition to produce systematic and high-quality ex-post evaluation of all important EU legislation. Both the coverage and quality of ex-post evaluations have been variant. This lack of systematic high-quality evaluation is problematic, as such evaluations can fulfill important functions in the EU policy cycle: learning, accountability and improved enforcement. It also bring strategic risks for the Commission, primarily reduced credibility.
The implementation of EU policies is a member state affair. This is, at least, the principle established by the Treaty on the Functioning of the European Union: the member states are responsible for implementation, and if there is a need for more uniformity it is the Commission that adopts further detailed rules, or exceptionally the Council.
Based on an article co-authored with Argyro Karagianni & Miroslava Scholten.
The European Union (EU) has become increasingly involved with enforcing EU law directly vis-à-vis private actors. Such direct enforcement by EU authorities has a potential to address non-implementation occurring for both procedural and substantive reasons. Emerging research in the area of direct enforcement by EU authorities has mapped out the EU enforcement authorities (EEAs), EU risk regulators (ERRs), and their cooperation with national authorities from such perspectives as accountability and protection of procedural safeguards. In some cases, the EEAs and ERRs have been endowed with the so-called emergency powers. A question that (academic) research has yet to address is whether relevant and adequate safeguards are in place to ensure the rule of law and prevent the abuse of executive discretion by public authorities in such emergency situations. What is an emergency power in the EU in the first place? This blog post offers a comprehensive overview of all the existing EU entities with such powers and argues that the legal protection framework of private actors in the case of emergency must be enhanced.
The European Union (EU) is an unprecedented instance of a regulatory state above the nation state. Its underlying idea is to provide joint solutions to shared regulatory problems. For example, the EU issues emission reduction targets for new cars in order to address the problem of man-made environmental pollution. However, and as the above picture illustrates, it is not always an easy task to ensure that the actors responsible for a given problem – for example, car producers – comply with such rules. Member states have a crucial and double role here. On the one hand, they often have to transpose rules from EU Directives into national legislation. Beyond this, however, they also have to put these rules on paper into action, and enforce them to ensure that target groups actually comply. Germany, for instance, has not rigorously enforced EU emission reduction targets vis-à-vis the Volkswagen Company. To put it bluntly, EU law can be perfectly transposed and still fail due to poor implementation performance in practice.