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: EU (shared) Law Enforcement: Who Does What and How?

Miroslava Scholten

ABSTRACT: Enforcement of EU law has changed considerably in the last decades. By bringing the recent developments together, this chapter offers a ‘bird’s-eye view’ of the ‘what, who and how’ concerning enforcement ofEU law. It discusses the many ways of enforcement under the three scenarios and zooms in on the most intrusive enforcement power, i.e., the sanctioning power. All in all, it shows that enforcement of EU law has been done differently in different policy areas, which demonstrates an ongoing search for the conditions and factors of when EU law enforcement can be enforced more effectively and what role there is for sanctions to play.

KEYWORDS: enforcement - models - sanctions - EU

SUMMARY: 2.1. Introduction. - 2.2. Defining EU law enforcement and its types. - 2.3. EU (shared) law enforcement in different policy areas. - 2.4. EU enforcement and sanctions. -2.5. Conclusion.

: Introduction

The European Union (EU) has rapidly evolved from being an international organization to become a supranational polity with autonomous regulatory and enforcement powers. Its regulatory power, which is derived from hard, case and soft law, has expanded from pure ‘economic’ areas, such as the original coal and steel sector, to include other policy fields like environmental policy. What is more, in recent decades, the enforcement power of the EU has increased drastically in various ways, including direct enforcement powers by EU enforcement authorities (EEAs)

Associate Professor of EU Law, RENFORCE, Utrecht University.

This chapter is a part of the ongoing research project of the author 'Shared tasks, but separated controls in the EU - how to make it work for democracy and the rule of law’, funded by the Dutch Research Council (NWO) under the ‘veni’ scheme of M. Scholten. I would like to thank Tom Huisjes, Maurits Munck, Giancarlo Pistelli and Leander Stabler for their assistance. A first draft was presented before the scholars and students at the conference 'European Union Law Enforcement: The Evolution of Sanctioning Powers’, Turin, 28-29 March 2019, for which I am grateful to the organisors-editors of this volume.

vis-à-vis private parties.[1] Enforcement implies monitoring compliance with laws, investigating an alleged violation of a law and the sanctioning for a violation. It is essential for the implementation of any policy as it can rectify non-compliance and promote the attainment of policy goals. At the same time, enforcement power, and especially its sanctioning stage, implies interfering in activities and with rights and freedoms of the affected parties. Therefore, it is essential that the enforcement power is exercised in accordance with the rule of law ideals - legitimacy and necessary controls to prevent the abuse of power and arbitrary interferences - which is challenging in a multi-jurisdictional legal order of the EU.

Enforcement of EU law has been experiencing many changes in recent years. Many actors have appeared at the EU and national levels to prescribe enforcement standards, by being involved in direct enforcement and sanctioning and supervising the direct enforcers. The differences between enforcement processes in different policy areas are not that easy to explain and it seems that the development has occurred quite sporadically and in different forms and speeds in different sectors. This is alongside the fact that there are different ways as to how law can be enforced in general and EU law in particular, also as to whether sanctioning takes part (or should take part) in the enforcement process or not and of what type. So, who does what in EU (shared) law enforcement and what sanctions can be involved? I will start with defining enforcement (section 2). On these premises, I will discuss different enforcement scenarios that have emerged in varied sectors (section 3). Then, I will zoom in on the most far reaching enforcement power, namely the sanctioning power (section 4). In section 5, I present some conclusions. Overall, this chapter aims to show who does what in the enforcement of EU law, building on existing literature and information presented in other chapters of this book.

  • [1] M. Scholten, M. Luchtman, Law Enforcement by EU Authorities: Implications for Political and judicial Accountability (Edward Elgar Publishing 2017). 2 J. Vervaele, ‘Shared Governance and Enforcement of European Law: From Comitology to a Multi-level Agency Structure?’, in C. Joerges, E. Vos (eds), EU Committees: Social Regulation, Law and Politics (Hart Publishing 1999) 131. 3 5 C. Knill, and J. Tosun, Public Policy: A New Introduction (NY Palgrave Macmillan 2012); G. Falkner, O. Treib, M. Hartlapp, S. Leiber, Complying with Europe: EU Harmonisation and Soft Law in the Member States (Cambridge University Press 2005). 4 M. Scholten, ‘Mind the Trend! Enforcement of EU law has been moving to ‘Brussels” (2017) 24 journal of European Public Policy 9, 1348. 5 In this light, it is important to note that the differences in enforcement mechanisms, types of sanctions and institutional characteristics of enforcers in different jurisdictions in the EU is an additional concern for ensuring enforcement of EU law in a consistent manner, especially where cross-jurisdictional cooperation is necessary. 6 This chapter is also informed by useful insights gained from semi-structured interviews and meetings during a number of research projects supporting the ‘veni’ project (fn **) that I have
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