{"id":7991,"date":"2021-05-31T19:45:24","date_gmt":"2021-05-31T17:45:24","guid":{"rendered":"https:\/\/eulawenforcement.com\/?p=7991"},"modified":"2021-05-31T20:27:27","modified_gmt":"2021-05-31T18:27:27","slug":"recommendations-for-ensuring-controls-for-shared-enforcement-in-the-eu","status":"publish","type":"post","link":"https:\/\/eulawenforcement.com\/?p=7991","title":{"rendered":"Recommendations for ensuring controls for shared enforcement in the EU"},"content":{"rendered":"\n

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<\/a>). Hence, we witness a proliferation of EU enforcement authorities (EEAs)<\/a> which can enforce EU laws directly vis-\u00e0-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 \u2018joint controllers\u2019. It uses the logic of the \u2018Meroni+<\/em>\u2019 (non-) delegation doctrine to support its argument. It concludes with three recommendations for assessing and (re)designing controls for EU shared enforcement.<\/p>\n\n\n\n\n\n\n\n

Evolving EU law enforcement<\/em><\/p>\n

The \u2018default\u2019 rule for enforcing EU laws has been enforcing at the national level by national authorities and via national systems of control and bodies of private, administrative and criminal laws. National enforcement has not been always successful<\/a> and a number of EU enforcement authorities<\/a> and other institutional innovations<\/a> have appeared; EEAs number and powers seem to be growing too. The European Securities and Markets Authority (ESMA<\/a>) has been known as the strongest of all EU agencies as it enjoys rule-making and direct supervisory and enforcement powers vis-\u00e0-vis credit-rating agencies and trade repositories. As of the 1st<\/sup> of January 2022, ESMA\u2019s supervisory and enforcement powers are expanding further to include more financial market participants (Annual report 2019<\/a>, amendments<\/a>).<\/p>\n

Developments concerning the need to readjust enforcement of EU law are noticeable throughout different policy areas, what has also received attention in the recent RENFORCE<\/a>\u2019s special blog series on EU law enforcement (10 blog posts<\/a> published from May 9 until May 25, 2021). In my contribution to that series<\/a>, I have argued for the necessity of EU law enforcement strategy and theory to ensure successful enforcement. An essential part of that should concern the proliferation and institutionalization of EEAs where the design of system of controls must be discussed. A number of studies have showed that the design of such system needs to take into account the fact that enforcement involves a number of different types of actions and decision-making processes, including determining enforcement strategy, issuing soft law guidelines for supervision, exchange of information, (non) legally-binding decisions and actions resulting from investigations and sanctioning, undertaken by officials and institutions from different jurisdictions, whose norms, procedures and standards for operation and review differ (among others Mustert and Scholten 2021<\/a>; Contreras Condezo, Kingma and Scholten 2020<\/a>; Scholten and Brenninkmeijer (eds) 2020<\/a>; Binder, Karagianni and Scholten 2018<\/a>; Simonato, Luchtman and Vervaele (eds) 2018<\/a>; Luchtman and Vervaele (eds) 2017<\/a>).<\/p>\n

Shared direct enforcement => aligned systems of controls and \u2018joint controllers\u2019<\/em><\/p>\n

The system of control for shared enforcement tasks is at this moment embedded largely in relevant secondary legislation, such as founding acts of respective EEAs and other additional acts with reference to the relevant Treaties\u2019 provisions and mechanisms. Those provisions delegating tasks, powers and possible in- and outputs of EEAs and national counterparts are different and are not necessarily connected with the types of controls relevant for those tasks and decisions and\/or at least they do not necessary account for possible limits of individual types of controls they prescribe. The provisions on accountability and other controls are often prescribed in separate articles and are oftentimes quite generally formulated and seem to focus largely on EU institutions and procedures. The design of controls does not seem to take into consideration the fact that the shared enforcement tasks and other actions will involve actors, procedures and standards of different jurisdictions, which can cause challenges of different kinds and result in no or less or questionable level of controls. The current situation makes the system of controls for shared enforcement not \u2018watertight\u2019 and challenging to enhance the rule of law and democratic values.<\/p>\n

The EEAs can enjoy powers to monitor application of EU laws, often in accordance with various soft-laws that EEAs can create. Furthermore, EEAs can be investigating and sanctioning on their own or together with national authorities, using information and other in- or output from authorities from another jurisdiction. These processes, or at least parts of them, can fall outside administrative review and judicial control, which is normally designed for specific legally-binding decisions coming out of the investigation and sanctioning stages when appealed, if are accepted for review and upon further possible limitations in light of the standard of review and deference. Furthermore, the political accountability via reporting and possible hearings is known to show other limits, such as unspecific reporting standards concerning explaining and justifying choices and actions, which may not be always resolved by de facto agencies\u2019 justifications, and political salience influencing the frequency and level of scrutiny. Clearly, reporting is crucial also for transparency and giving account to the public, yet the public may not be always organized and have resources and channels to scrutinize and bring further actions (via democratic means of control).<\/p>\n

Given the limits and peculiarities of different types of controls, also in different jurisdictions for those cases where relevant enforcers work together, it seems logical to consider designing \u2018joint controllers\u2019 and at least align the systems of control of different jurisdictions. The \u2018joint controllers\u2019 extend to various possibilities:<\/p>\n