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: Defining EU law enforcement and its types

Since the very beginning, the EU has been set up to make rules. These rules can relate to the entire breadth of Union law - from the free movement of goods, services, capital, and people to environmental law and cooperation in criminal law matters. Once these norms have been set, they will then need to be ‘enforced’ so as to prevent a violation or to respond to an existing violation of the norm. But what is law enforcement? Enforcement is a process that aims at “preventing or responding to the violation of a norm” in order to promote the implementation of the set laws and policies.' According to Vervaele, “[L]aw enforcement comprises monitoring, investigating and sanctioning violations of substantive norms”.[1] These stages in turn can be exercised by different enforcement powers such as the power to request information for monitoring and/or investigating stages and the power to impose fine (of administrative and/or criminal nature) and/or publish a public notice. These powers can be granted to an enforcement authority by EU and/or national law and may vary from sector to sector and member state to member state, which may make cooperation in shared enforcement more challenging.

Enforcement of EU law can be understood broadly and narrowly.

In a board way, it can even include the stage of registration of specific entities at a supervising-enforcement authority to be supervised, such as the case with the credit ranking agencies at the European Securities and Markets Authority. After registration, the stage of monitoring takes place, relevant authorities check whether natural and/or legal persons are adhering to the law. If the monitoring of persons leads to a certain degree of suspicion, the competent authority can then start an administrative and/or criminal investigation during which it gathers further information. If the investigation concludes that there has been a violation of the law, the competent authority can then sanction the natural and/or legal person in question. The decision of the competent authority may be then enforced by another institutions, such as the court, or appealed by the affected person before a Board of Appeal or the court. The grounds for appeal could include procedural and/or substantive arguments, depending on relevant laws.

In a narrow sense, enforcement can be pictured as actions of police and judicial authorities of the investigative and sanctioning stages.

Scholars have delineated direct and indirect administration in the EU.[2] In light with these terms, one could classify direct enforcement as monitoring, investigating and sanctioning vis-à-vis those subjects that are subject to substantive norms, e.g. companies and citizens. In light of concerns about national sovereignty, direct enforcement of EU law has been largely kept at the national level, with the only exception of EU competition law where the EU Commission has played traditionally a great role in enforcing EU competition rules vis-à-vis undertakings. What the EU has been doing in enforcement in other sectors can therefore be called indirect enforcement, i.e. “the supervision of the application of the law by public authorities -and foremost of the Member States - but not directly over whether citizens as such obey it.” The EU Commission (e.g. the Food and Veterinary Office) and later also EU agencies such as the European Maritime Safety Agency (EMSA) and the European Court of Auditors have been among the key actors in checking upon EU member states. As I investigated elsewhere, next to late transposition, there are different procedural and substantive reasons for non-implementation. Procedurally, the member states could be late in transposing EU legislation at home and could lack financial and human resources to apply and enforce EU law properly. Substantively, an incorrect transposition (whether or not this is on purpose) and (political) unwillingness could lead to non-implementation. In addition, differences in national laws and procedures could result in disparities in the uniform application of EU law and the ineffectiveness of EU policies.

The growing number of infringements and the variety of sources causing those infringements have led to modifications of the strategies that the Commission would employ in indirect enforcement and the proliferation of EU direct enforcement power.[3] The growth of the EU’s authority in regulating matters of national enforcement and establishing various new modes of enforcement are among the most recent developments in this respect. Generally, enforcement of EU law has become more and more ‘shared’, though, as this book also shows, what is shared, how it is shared and among whom it is shared have found different formulas in different policy areas. This expansion of the EU competences from one (regulatory) step in the policy cycle to another (enforcement) can be explained from a functional spillover perspective: if the implementation of EU law is facing difficulties at the national level, enforcement at the EU level is likely to follow.

  • [1] V. Roben, ‘The enforcement authority of international institutions’ in A. von Bogdandy et al (eds), The Exercise of Public Authority by International Institutions: Advancing International Institutional Law (Springer 2009) 819-42. 2 Vervaele (fn 3) 131. 3 See for instance, M. van Rijsbergen, M. Scholten, ‘ESMA Inspecting: The Implications for Judicial Control under Shared Enforcement’ (2016) 7 European Journal of Risk Regulation 3, 569; J. Foster, M. van Rijsbergen, ‘Rating’ ESMA’s accountability: ‘AAA’ status’, in M. Scholten, M. Luchtman (eds), Law Enforcement by EU Authorities (Edward Elgar Publishing 2017).
  • [2] J.H. Jans, S. Predial, R.J.G.M. Widdershoven, Europeanisation of Public Law (Europa Law Publishing 2015), H.C.H. Hofmann, A.H. Türk, Legal Challenges in EU Administrative Law: Towards an Integrated Administration (Edward Elagar Publishing 2009). 2 " Vervaele (fn 3) 129-50; W. Duk, Recht en Slecht: Beginselen van Algemene Rechtsleer (Ars Aequi Libri 1999); G. Rowe, ‘Administrative supervision of administrative action in the European Union’, in H. Hofmann, A. Turk (eds), Legal Challenges in EU Administrative Law: Towards an Integrated Administration (Edward Elgar Publishing 2009) 136-67. 3 Rowe (fn. 11). 4 Please, see chapter by Alberti in this volume. 5 Scholten (fn 4). 6 Ibidem E. Thomann, A. Zhelyazkova, 'Moving beyond (non-)compliance: the customization of European Union policies in 27 countries’ (2017) 24 Journal of European Public Policy 9, 1269. 7 Scholten (fn 4), see also M. Scholten, A. Ottow, ‘Institutional design of enforcement in the EU: the case of financial markets’ (2014) 10 Utrecht Law Review 5, 80.
  • [3] 2 ls Scholten (fn 4); M. Scholten, D. Scholten, ‘From regulation to enforcement in the EU policy cycle: A new type of functional spillover?’ (2017) 55 Journal of Common Market Studies 4, 925. 3 J. Vervaele, European Criminal Justice in the Post-Lisbon Area of Freedom, Security and Justice (University of Trento 2014), p. 11, available at: http://eprints.biblio.umtn.it/4399/l/COLLA NA_QUADERNI_VOLUME_5_VERVAELE_FORNASARI_SARTORI_02.09.2015.pdf. 4 1 am grateful for our continuous debate on this issue with Prof. Michiel Luchtman.
 
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