Experimentalist Enforcement in the European Union: A New Cookbook for Emergent Recipes?

Yane Svetiev’s book, Experimentalist Competition Law and the Regulation of Markets, was launched at an event organized by the University of Amsterdam’s Centre for European Law and Governance (ACELG) and Centre for European Studies (ACES). The book provides an account of the evolution of EU competition law enforcement through the prism of experimentalist governance. Within an experimentalist governance architecture, regulation and enforcement are recursively re-formulated through monitoring and comparing implementation experience from different local contexts. Compared to more traditional legal enforcement that proceeds through identifying and punishing infringements, experimentalist implementation is problem-oriented and collaborative. Moreover, experimentalist governance does not rely on controlled experiments to identify universal causal mechanisms or successful interventions. Rather, as Svetiev explains, it is pragmatic: it relies on “prototyping solutions to specific problems followed by iterative adaptation to refine the prototype” and to then  “possibly scale it up or diffuse it” to other contexts.

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The Commission’s proposed reform of the Schengen area – stronger enforcement or conflict aversion?

After rather chaotic initial responses to the spreading pandemic in the first months of 2020, the Commission nowadays appears eager to look and move ahead. As a case in point, its recently proposed reform of Schengen governance seeks to create a ‘fully functioning and resilient Schengen area’. To that end, the Commission inter alia acknowledges the need for strengthened enforcement. As this blog post will argue, however, that commitment may be belied by the substance of reform. The Commission’s announcement to use enforcement measures more actively may be undone by a relaxation of standards delineating Member States’ latitude under the Schengen acquis. Accordingly, the view will be posited that the Commission’s reforms are not aimed at stronger enforcement as an end in itself, but rather at avoiding open conflict with Member States over the reintroduction of internal border controls.

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Polish Gas Market Liberalisation: The Impact on Competition due to 2016 – 2017 Legislative Changes

The European Union introduced common rules for the EU internal gas market as a crucial energy commodity. Published jointly as the Energy Union Strategy in 2015, the rules aim to create a common environment to facilitate trade and competition on all gas markets in EU Member States. The regulations specify the steps necessary for any given gas market to liberalize and comply with common rules for internal gas market.  Each Member State negotiates the pace at which it will liberalize according to the implementation of common rules. Thus, levels of liberalisation may be objectively assessed according to a shared metric. In one interesting case of implementation, Poland followed an initially clear vision and implementation of free market regulations. However in 2016 -2017 it took an unexpected sidestep that had profound economic impacts on the domestic gas market resulting in  many retailers being driven out of the market, and the state owned incumbent regaining its super-dominant market share.

Initial Stages of Polish Gas Market Liberalisation

Following the issuance of the Union Energy Strategy, Poland began to gradually introduce legislation aimed at gas market liberalisation in compliance with common rules for the EU internal gas market:

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Islands and the Ocean: Three Models of the Relationship between EU Market Regulation and National Private Law

Setting the scene

EU regulatory measures in the field of private law, such as the Unfair Contract Terms Directive, the Mortgage Credit Directive or the Antitrust Damages Directive, have been compared to islands in the ocean of national private law. This metaphor has been used to highlight the difficulties of integrating EU private law into national private law, given their different rationalities. The private law of the Member States has traditionally been primarily concerned with horizontal relationships and justice between private parties. In particular, the individual who has suffered from the breach of a private law norm by another individual can use the characteristic private law enforcement tools, such as a claim for damages. National private law, therefore, is underpinned by relational rationality, even though it may be influenced by policy objectives and have distributive implications. In contrast, EU private law has developed in a piecemeal and uncoordinated fashion across different sectors of the economy as a subset of market regulation to serve various policy goals, notably the establishment of the European internal market. Thus, while this body of law also affects horizontal relations between individuals, it is first and foremost informed by the instrumentalist rationality. Continue reading “Islands and the Ocean: Three Models of the Relationship between EU Market Regulation and National Private Law”

A ban on using predictive policing to forecast human behaviour: a step in the right direction

In 2021 members of the European Parliament passed a resolution to endorse the report of the Civil Liberties Committee. The report expresses an opposition to the use of predictive policing tools which operate on artificial intelligence (hereinafter AI) software in order to make predictions about the behaviour of individuals or groups “on the basis of historical data and past behaviour, group membership, location, or any other such characteristics.” (par. 24) This opposition is based on the fact that predictive policing tools cannot make reliable predictions about the behaviour of individuals. (par. 24) Additionally, the report notes that AI applications have a potential for reinforcing bias and discrimination. (par. 8) Although this resolution is non-binding, Melissa Heikkilä believes that it conveys a message of how the European Parliament is likely to vote on the AI Act. There is a need for a legally enforceable ban on the use of AI predictive policing tools in respect of human beings. As discussed below, the use of AI can lead to inaccurate assessments due to the inherent character of the data. The basing of decisions on group data is inconsistent with protecting individuals from discrimination.

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“The past is the past. The future is all that’s worth discussing” (Lord Baelish, The Game of Thrones). Some reflections on the non-delegation doctrine and its impact on the ESAs powers after the CJEU decision on the FBF case

The CJEU decision in the FBF case involves many crucial elements of EU law, all of which deserve careful consideration. Among the others, the decision touches upon the nature and the justiciability of soft law measures in the EU legal framework, the ESAs’ power to adopt them, and the relationship between corporate governance and product governance in the financial sector. In this blogpost, we concentrate only on some of these implications. In particular, we look at the general impact of the decision on the non-delegation doctrine, at the uncertainties surrounding the delegation of powers concerning broad matters such as corporate governance in the past and in the future regulatory framework and, finally, at how such uncertainties should guide the allocation of the power to review soft law measures. We suggest that the system of controls deserves our attention and reconsideration to adjust to the new realities of proliferation of soft, technical but also shared (enforcement) administration in the EU. This blog post is based upon the discussion speeches that the authors delivered in the online discussion organised by JMN EULEN (RENFORCE) in August 2021.

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Schrems II and the Data Protection Enforcement Gap

The July 2020 judgement of the Court of Justice of the European Union (CJEU) in the so-called Schrems II case has resulted in a great deal of uncertainty for organizations engaging in the transnational transfer of personal data and in particular when those transfers are to entities in the United States. This post will investigate the enforcement issues on which the Schrems II reasoning is based, and discuss the potential effects that the decision has for General Data Protection Regulation (GDPR) enforcement.

Schrems II is the most recent installation of an ongoing litigation that resulted from a complaint that Maximilian Schrems levied against Facebook with the Irish Data Protection Commissioner (DPC) in 2013. Schrems’ complaint objected to Facebook transferring personal data to the United States (US) as contrary to the protections provided by the GDPR. It was based in part on the US National Security Agency (NSA) documents leaked by Edward Snowden in the summer of 2013. These documents revealed a mass surveillance program run by the NSA under Sec. 702 of the Foreign Intelligence Surveillance Act (FISA). This surveillance included direct collection from major US telecommunication providers, internet service providers, and Internet content providers under a program code named PRISM. Schrems’ complaint was rejected by the DPC and Schrems sought judicial review. It eventually led to an assessment of data protection adequacy decisions specifically regarding transfers to the US. The CJEU twice in Schrems I and Schrems II struck down adequacy decisions with the United States.

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The DSA Enforcement Framework, Lessons Learned from the GDPR?

Since 2012, the European Commission has taken numerous steps in order to shape to EU’s digital future. One of these steps included the adoption of the General Data Protection Regulation (GDPR) which entered into force in May 2018. The GDPR aims to protect, in particular, the right of natural persons to the protection of personal data. At the end of 2020, the Commission went a step further and published its proposal for the Digital Services Act (DSA). As part of the EU’s Digital Strategy, it contains provisions to update the e-commerce legal framework.

Infringements of both the GDPR and the DSA do not stop at the Member States’ borders. An incident at Twitter, for instance, led to a situation where Twitter users had their Tweets, dating back to 2014,  publicly accessible without their knowledge. This breach of the GDPR affected at least 88.726 EU and EEA Twitter users all across the continent. For this reason, it is essential that national authorities of different Member States cooperate in order to adequately enforce such breaches. Cooperation is fundamental here because it enhances the enforcement capacity and quality (van der Heijden 2016) – e.g., when investigating and sanctioning infringements that take place in multiple Member States, authorities can benefit from sharing resources and knowledge, which also speeds up the enforcement process. Keeping enforcement mainly the responsibility of national authorities, also respects the Member States’ desire to keep these competences at national level and it offers functional benefits since national authorities often have better access to information at national level (Hofmann 2008; Coen and Thatcher 2008; Eberlein and Grande 2005. Börzel and Heard-Lauréote 2009). Therefore, both the GDPR and the DSA provide that national  authorities of different Member States cooperate, under the coordination of an EU body. Nevertheless, the GDPR experience proved that enforcement of cross-border infringements is not an easy task and the complexity of such structures could even lead to under-enforcement.

This blogpost aims to shed light on the complex enforcement procedures and speculates as to whether the Commission has learnt any lessons from the enforcement challenges that materialize under the GDPR. In order to assess the potential of the DSA enforcement structure, we discuss the horizontal (national authorities cooperating) and vertical (national authorities cooperating with an EU body) enforcement procedures of both systems, and the challenges that arise under the GDPR system.

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Assessing and Enforcing Compliance with the Framework Decision on the European Arrest Warrant

The European arrest warrant, now in force for nearly two decades has continued to show success in the objective supporting judicial cooperation without hindering free movement within the Union. Its successes indicate what may be expected to manifest as a safer Union and safer Member States. However as with any legal instrument, particularly one implemented across 27 individual nations, its use is not without difficulties. In the spirit of the European Law Enforcement blog, this post will highlight a few of the enforcement measures, stemming from various approaches, being invoked to ensure the proper enforcement of this enforcement mechanism.

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Recommendations for ensuring controls for shared enforcement in the EU

Shared direct enforcement of EU laws is a relatively new phenomenon in the EU. If the default rule of enforcing EU laws at the national level faces challenges, it is logical to enhance the regulation of national enforcement and/or the exercise of enforcement stages at the same level where EU rules are established (functional policy cycle over spillover). Hence, we witness a proliferation of EU enforcement authorities (EEAs) which can enforce EU laws directly vis-à-vis private actors themselves or together with national competent authorities. This development prompts to address the question of control over actions and decisions resulting from this EU shared direct enforcement. This blog post argues that the EU shared enforcement necessitates aligning of the systems of controls (EU-national, national-national) and creating ‘joint controllers’. It uses the logic of the ‘Meroni+’ (non-) delegation doctrine to support its argument. It concludes with three recommendations for assessing and (re)designing controls for EU shared enforcement.

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