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: EU (shared) law enforcement in different policy areas

Vervaele observes that “it is not a secret that the European Communities founding fathers underestimated the importance of the enforcement of Community law. Apart from a few exceptions in primary' Treaty law, such as the obligation for Member States to criminalize violations of Euratom confidentiality or perjury' in front of the European Court of Justice, they maintained a resolved silence concerning Community law enforcement.’’ The situation has changed with the years. Who does what and what is exactly shared, between whom and how? As this section and this edited volume show, this varies greatly in different sectors and even within the same categories of actors, such as EU agencies. My initial search for ‘models of enforcements’ have faced a challenge of distinguishing ‘models’, including the search for an appropriate term for various enforcement processes and procedures that have appeared in the EU recently. It seems to depend on a particular departing point of what kinds of, to use this term for the sake of example, ‘models’ can be distinguished. This in turn may depend on the overall purpose of why such ‘modelling’ exercise has been undertaken in the first place. One could determine models in relation to what rules are being enforced, including for instance, primary' or treaty obligations against national governments or private actors. They could be determined by departing from the question of ‘who’ - which institution, such as the Commission, the European Central Bank or the Court of Justice - undertakes an enforcement action and at what level. The fact remains that using different departing points is likely to lead to different numbers and types of such models, bringing into question the usefulness of such an exercise.[1] Moreover, the term 'model’ can lead to misleading considerations, especially for experts with different scientific backgrounds. Therefore, I leave the ‘modelling’ exercise and the question about its usefulness for future research and debate. In this section, I describe three scenarios as to how EU law can be enforced, which seem to accommodate various actors and policy areas, also included in this book. The question of whether this is an attempt for ‘modelling’ I leave up to the reader to assess and for future research to finetune. These scenarios are being distinguished based on two considerations: 1. interrelations between relevant actors and 2. material scope of laws to be enforced.

Scenario 1

EU laws set up norms for different actors, primarily national governments and private actors. Therefore, the first scenario concerns enforcement of EU legislation and policies by EU and/or national authorities vis-à-vis public and/or private actors in the EU. Starting from the Treaties, Article 2 TEU, for instance, promotes the core values of the Union, such as democracy and the rule of law and, next to the Treaties, secondary law imposes various standards and procedures to adhere to in order to achieve the aims of the Treaties. For instance, in accordance with Article 191 TFEU ‘a high level of protection’ is required for the purposes of EU environmental policy, which is then supported further by more than 200 pieces of EU secondary legislation (mainly directives) to be further implemented and enforced at the national level.25

First, the most typical case here is that the Member States must implement particular primary and secondary legislation adopted by the EU legislator. They are oftentimes free to choose which type of enforcement to use in order to enforce substantive norms. For example, Member States can choose to enforce a substantive norm regarding environmental law by creating an agency or delegating the task to a ministry, also through sanctions derived from administrative, criminal, or private law. In most cases, it is up to the Member States to choose a sanction or combination of sanctions. This derives from the principle of national institutional autonomy, with some limitations. Enforcement sanctions must be equivalent, effective, dissuasive, and proportional.[2] Also, the Member States must observe fundamental rights, general principles of Union law, and the Treaty freedoms. The large margin of discretion in the choice of sanctions has, since the mid-1980s, decreased and the EU has increasingly prescribed which (type of) sanctions the Member States ought to impose.' From the beginning of the 21st century, this has also led to the EU no longer limiting itself to prescribing administrative sanctions, but also punitive sanctions for violations of substantive norms in fields such as environmental law.

When enforcement is entrusted in national authorities, the EU executive actors, such as the Commission, EU agencies and networks, largely monitor the implementation of EU laws by national governments and private actors. In other words, they identify if the policy goals and core values are adhered to. As Alberti mentions in this volume, the number of such monitoring EU agencies has been increasing. This is the case, for instance, for the European Chemicals Agency, European Fisheries Control Agency, the newly established European Labour Agency, to name but a few, where information gathered by such agencies may lead to further actions, including sanctioning at the national or EU levels. Next to monitoring, the ‘infringement procedure’ is available to ensure that the national governments comply with the implementation of EU secondary laws. In short, if a Member State does not live up to its obligations under the EU law, the EU Commission or other Member States can start an infringement procedure in order to force the Member State to enforce the specific norm (Articles 258-260 TFEU). As Prete mentions in this volume, this possibility has not been there since the outset but came about later with the Treaty of Maastricht. This procedure has two pre-judicial and judicial phases and both the Commission or the Member States can initiate it. First, the Member State of the perceived failure is informed about the breach, which the Member State can then counter. Subsequently, the Commission can issue a ‘reasoned opinion’ on the issue. This reasoned opinion will include a time limit for the breach of EU law to be ended. If the breach of EU law is not resolved by the end of the time limit, the Commission can bring the case to the Court of Justice of the EU. If the Commission considers that the Member State does not comply with the conclusion of the Court, it can bring the case before the Court once more. During these proceedings the Court can impose a fine (lump sum) as punishment for the continued breach of EU law. An interesting development in the recent years has been the establishment of 'EU pilots’ mechanism, which promotes resolving possible non-implementation by the Member States without opting for a lengthy and costly infringement procedure.[3]

Two separate specific procedures that can be brought under this scenario are the enforcement procedures under Article 7 TEU and for the Economic Monetary Union (EMU). These procedures involve the Member States being in charge of enforcing specific primary and secondary EU laws, whereas the EU institutions monitor and can sanction violations, yet in procedures established specifically for these cases. As Bonelli describes in this volume, “Article 7(1) TEU allows the Council to determine, after obtaining the European Parliament’s consent, the existence of a 'clear risk of a serious breach’ of EU values in a Member State of the EU” (section 4.1.). The Commission or the European Parliament can initiate this 'preventive’ procedure to set a dialogue between EU institutions and the Member State in question. The sanctions can be imposed under Article 7(2-4) TEU if the European Council determines 'a serious and persistent breach’ of values of Article 2 TEU. As Costamagna and Miglio discuss in this volume, Article 126 TFEU and the Stability and Growth Pact lays down the powers to monitor the decision taken by national authorities concerning their budgets and impose fines if they deviate from the agreed benchmarks.

At the same time, since recently, we witness the proliferation of the so-called EU enforcement authorities, which can be involved in enforcing EU law together with national authorities or even do this on their own. Some use the term 'shared enforcement’ to describe this situation, although this term may be misleading in consideration of the processes where different - EU and national - actors are being involved. This brings us to the second scenario.

Scenario 2

This scenario can be characterized by the establishing of a more direct link between EU authorities and private actors, although this happens with the involvement of relevant national authorities in the process of enforcement. The monitoring function of the Commission is then altered as relevant courts, parliaments and other controlling actors become overseers of such enforcement processes. This so-called 'direct shared enforcement’ by an EU authority has been known in the area of EU competition law for a long time.[4] The Commission has had enforcement powers to investigate and sanction private actors almost from the outset of EU integration. For the protection of the financial interests of the EU and the fight against fraud a specific office - the European Anti-fraud Office (OLAF) - was set up in 1999. It can conduct administrative investigations within the EU institutions and the Member States.37 Since the beginning of the 21st century, more and more of such authorities started to be created. The reasons why some authorities are created in the shape of an agency or a body or why the enforcement of EU law by national authorities should be helped by an EU coordinating network are yet to be better explored.38 It is also unclear why some of such authorities have more enforcement powers than others, and to what extent they truly share enforcement with national authorities. The following observations stand out here.

First, from the functional perspective, these authorities can be subdivided into two groups: those, which enjoy powers to realize all the enforcement stages (monitoring, investigation and sanctioning) and those, which do not have all those powers and have to rely upon national authorities. The former includes, for instance, the EU Commission in the area of competition law, European Securities and Markets Authority and European Central Bank within the Single Supervisory Mechanism (SSM). The latter includes the Anti-Fraud Office, European Medicines Agency, European Aviation Safety Agency and European Fisheries Control Agency.39 In addition, the European Public Prosecutor’s Office (EPPO) will be soon operational as an independent and decentralized prosecution office of the European Union, with the competence to investigate, prosecute and bring to judgment crimes against the

EU budget, such as fraud, corruption or serious cross-border VAT fraud. [5]

Secondly, these EU enforcement authorities do not replace relevant national authorities. This has led to using of the term ‘shared’ enforcement to such cases. A closer look at these authorities reveals the many facets of such sharedness and what it can mean. This sharedness does not seem to follow a particular logic, such as for instance the functional subdivisions considered in the previous paragraph. The European Securities and Markets Authority is, for instance, an agency enjoying the powers to monitor the performance of specific financial market participants, such as credit rating agencies, or to investigate the cases of suspicion and sanction for violation of EU laws. In this particular function, it may delegate certain tasks to be performed by its national counterparts, but it would remain in charge of the enforcement process, including the sanctioning stage. In this case, reliance upon national counterparts is at ESMA’s discretion and would take place only for a particular part of the enforcement process, such as when making an online inspection. The case of the European Aviation Safety Agency sheds a different light upon the term ‘shared enforcement’. Here, it can be observed that the task of enforcement of the aviation safety laws is shared between EU and national relevant agencies but with a clear division of competences and procedures. The EASA is in charge of ensuring the safety of a particular type of an aircraft, whereas the national authorities look after the individual units of that type.5 The term ‘shared’ in the case of the

European Central Bank reflects also on the shared enforcement but more on the shared structures used in enforcement. For instance, the monitoring stage over the ‘big banks’ is organized by the so-called joint supervisory teams, where both ECB and relevant national staff work together and employ both relevant EU and national law for substance and procedure.[6] Finally, for example, to ensure effective enforcement of authorization and supervision of medicinal products (Regulation 726/2004), the European Medicines Agency (EMA) has come to share enforcement stages of monitoring, investigating suspicious cases via national authorities, and imposing fines via the Commission. While the EMA has no authority to investigate the premises of authorization holders directly, it can, for example, order the initiation of such investigations by national investigators, who may be accompanied by an expert appointed by the Agency (Article 8 of Regulation No. 726/2004).

These observations are important as they make it clear that enforcement takes place in different settings in all the above cases. It also shows that these differences will have different implications for other pertinent questions, such as legitimacy, controls and legal protection for the shared enforcement. The clearer the division of tasks between EU and national authorities is, the clearer the rules for controls (political, judicial, etc.) are likely to be. In any case, however, the new complex interactions between EU and national enforcement actors results in complex enforcement procedures, which in turn may lead to decisions, which can be checked only by appropriate, sophisticated systems of controls.

Scenario 3

A peculiar situation exists in the area of EU Common Foreign and Security Policy (CFSP) in which sanctions have been imposed against other states and individuals. Thus, this scenario features other types of actors and procedures and interaction with International law. Beaucillon captures this in the beginning of her chapter in this volume, “to what extent does respect for human rights in Syria, the Iranian nuclear crisis or the international fight against terrorism fall within the scope of the enforcement of European Union law?” And as both Beaucillon and Spagnolo show in this volume, the EU seems to promote its values and laws also beyond its territory via instruments of restrictive measures and sanctions against third countries and individuals. According to Spagnolo, “as of today, more than thirty unilateral sanctions adopted by the EU against third countries are in force, demonstrating the vitality of the instrument and the frequency of its use. Within them, a large number of sanctioning regimes are ‘autonomous’, namely adopted outside - or in addition to - the framework of a resolution of the UN Security Council. In other words, the EU adopts sanctions without any authorization from the UN” (.section I); Title IV TFEU governs the procedure on the adoption of ‘restrictive measures’.[7]

The number of countries under CFSP sanctions has increased dramatically, from six in 1991 to almost thirty in 2018. As of February 2018, the EU has ten sanction programs implementing UN measures, eight cases in which it applies its own additional sanctions in parallel to UN sanctions, and 24 autonomous sanction programs. The composition of sanction programs in place by April 2018 was as follows: 30 asset freezes, 27 visa bans, 21 arms embargoes, 9 commodity trade restrictions, 7 bans on exports of equipment for internal repression, 7 financing, banking and investment restrictions, 3 bans on dual-use exports, 3 flight bans and 2 shipping bans.

The measures and sanctions adopted under the CFSP serve several objectives, including: safeguarding the EU’s values, preserving peace, consolidating and supporting democracy, and preventing conflicts and strengthening international security. They can be aimed at governments, entities, groups, or individuals. There is a wide range of possible restrictive measures that could be imposed by the EU. These include: arms embargoes, economic and financial sanctions, diplomatic sanctions, suspensions of cooperation, boycotts of events, and restrictions on admission (such as visa and travel bans). Individual sanctions within the EU amongst others form a part of the broader counterterrorism strategy, mainly pursuing objectives of the European Arrest Warrant[8] and the European Security Strategy. After all, terrorism has been identified as the first of five key threats to European interests.

  • [1] See, for instance, an interesting ‘modeling’ for the purpose of a specific study on the interactions between EU and national levels: M. Luchtman, J. Vervaele, ‘Comparison of the legal frameworks’, in M. Luchtman, J. Vervaele, Investigatory powers and procedural safeguards: Improving OLAF’s legislative framework through a comparison with other EU law enforcement authorities (ECN/ESMA/ECB) (Utrecht University 2017) 248-253. 2 P Craig, G de Brea, EU Law: Text, Cases and Materials (Oxford University Press 2015). 3 2> See chapter by Munari in this volume. 4 Jans, Prechal, Widdershoven (fn 10).
  • [2] 68/88, Commission v Greece (Greek Maize), ECLI:EU:C:1989:339. 2 See the chapter by Lazzerini in this volume. 3 2'Jans, Prechal, Widdershoven (in 10) 281. 4 Craig, de Burca (in 23) 429 and on the functioning of the infringement procedure under Article 258 TFEU, see 431. 5 Ibidem. 6 w See Prete’s contribution to this volume. 7 51 Craig, de Burca (fn 22) 431 and 435. See also: E. Korkea-Aho, ‘Watering Down the Court of Justice: The Dynamics between Network Implementation and Article 258 TFEU Litigation’ (2014) 20 European Law Journal 649.
  • [3] »On the EU pilot schemes, Craig, de Burca (in 22) 435. See also: D. Hadrousek, 'Speeding up Infringement Procedures: Recent Developments Designed to Make Infringement Procedures More Effective’ (2012) 9 Journal for European Environmental and Planning Law 235. 2 See the chapter by Bonelli in this volume. 3 See the chapter by Costamagna and Miglio in this volume. 4 M. Scholten, M. Luchtman, E. Schmidt, 'The proliferation of EU enforcement authorities: a new development in law enforcement in the EU’ in M. Scholten, M. Luchtman (eds), Law Enforcement by EU Authorities: Implications for Political and Judicial Accountability (Edward Elgar Publishing 2017).
  • [4] Ibidem, 6.; see also Calzolari in this volume. 2 Regulation 883/2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) [2013], OJ 2013 L248/1. See, also See, also M. Luchtman, M. Wassmeier, ‘The political and judicial accountability of OLAF’ in M. Scholten, M. Luchtman (eds), Law Enforcement by EU Authorities: Implications for Political and Judicial Accountability (Edward Elgar Publishing 2017). 3 L. Van Kreij, ‘Towards a Comprehensive Framework for Understanding EU Enforcement Regimes’ (2019) 10 European Journal of Risk Regulation ?>, 439; M. Scholten, ‘Shared Tasks, but Separated Controls: Building the System of Control for Shared Administration in an EU Multi-Jurisdictional Setting’ (2019) 10 European Journal of Risk Regulation 5, 538. See also the respective blog: M. Scholten, ‘Shared Tasks, but Separated Controls. How to build a system of control for EU shared administration?’, in EU Law Enforcement blog, available at: https://eulawenforcement.com/?author=2. w Scholten (fn 4).
  • [5] Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) [2017], J. Vervaele, Judicial and political accountability for criminal investigations and prosecutions by a European Public Prosecutor's Office in the EU: the dissymmetry of shared enforcement’, in M. Scholten, M. Luchtman (eds), Law Enforcement by EU Authorities: Implications for Political and Judicial Accountability (Edward Elgar Publishing 2017). 2 See also M. Scholten, M. Maggetti, E. Versluis, ‘Political and Judicial Accountability in Shared Enforcement in the EU’ in M. Scholten, M. Luchtman (eds), Law Enforcement by EU Authorities: Implications for Political and Judicial Accountability (Edward Elgar Publishing 2017). 3 Scholten and Luchtman (fn 1). 4 45 Van Rijsbergen and Scholten (fn 9); see also: Van Rijsbergen and Foster (fn 9). A. Karagianni, M. Scholten, M. Simonato, ‘EU ‘vertical’ report ‘The exchange of information between national and EU authorities”, in M. Simonato, M. Luchtman, J. Vervaele (eds) Exchange of information with EU and national enforcement authorities: Improving OLAF legislative framework through a comparison with other EU authorities (ECN/ESMA/ECB) (Utrecht University 2018) 7-32. 5 L. Mustert, M. Scholten, ‘Controls in the case of the EU civil aviation safety rules’ in M. Scholten, A. Brenninkmeijer, Controlling EU Agencies. The Rule of Law in a Multi-jurisdictional Legal Order (Edward Elgar Publishing 2020) and Luchtman and Scholten (fn 1). 6 1 have conducted a number of interviews and held talks with experts from and on ESMA, which revealed that ESMA did not seem to use this function that often and may be unlikely to be using it due to a number of considerations. This includes, for instance, the fact that ESMA registers the entities to be supervised where its national authorities do not normally have any supervision over those entities, which may diminish the necessity and useful of the help from their side.
  • [6] A. Karagianni, M. Scholten, ‘Accountability Gaps in the Single Supervisory Mechanism (SSM) Framework’ (2018) 34 Utrecht Journal of International and European Law 2, 185; see also Allemand in this volume. 2 M. Chamon, S. Wirtz, ‘Complex procedures as hurdle to accountability: verticalization of pharmaceutical enforcement’ in M. Scholten, M. Luchtman (eds), Law Enforcement by EU Authorities: Implications for Political and Judicial Accountability (Edward Elgar Publishing 2017). 3 Scholten, Maggetti, Versluis (fn 41); T. Binder, A. Karagianni, M. Scholten, ‘Emergency! But What about Legal Protection in the EU?’ (2018) 9 European Journal of Risk Regulation 1, 99. 4 Scholten (fn 35). M. Scholten, A Brenninkmeijer Controlling EU Agencies. The Rule of Law in a Multi- jurisdictional Legal Order (Edward Elgar Publishing 2020). 5 European Commission - Service for Foreign Policy Instruments (FPI) available at: https://ec.europa.eu/fpi/what-we-do/sanctions_en. 6 Ibidem See also Craig, de Bürca (Fn 22) 344 on the Common Foreign and Security Policy (CFSP).
  • [7] See also Craig, de Biirca (Fn 22) 348. 2 M. Russell, EU sanctions: A key foreign and security policy instrument (Briefing, European Parliamentary Research Service 2018) 2, available at https://www.europarl.europa.eu/RegData/ etudes/BRIE/2018/621870/EPRS_BRI(2018)621870_EN.pdf. 3 Ibidem, 4. 4 ‘’’’Ibidem. 5 Council of the European Union - Sanctions: how and when the EU adopts restrictive measures (2019) available at: https://www.consilium.europa.eu/en/policies/sanctions/. 6 Council of the European Union, Guidelines on Implementation and Evaluation of Restrictive Measures (Sanctions) in the Framework of the EU Common and Foreign Security Policy (2018) 5. 7 European Commission, Restrictive Measures (2008) 3-5. See also, notably, joined cases C-402 and 415/05 P Kadi v Council and Commission, ECLI:EU:C:2008:461.
  • [8] Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism OJ 2002, L 164/3 and Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L 190/1. For a more extensive discussion on the European Arrest Warrant (EAW) see: Craig, de Burca (fn 22) 990-996. 2 C. Eckes, ‘Test Case for the Resilience of the EU’s Constitutional Foundations’ (2009) 15 European Public Law 3, 351. 3 C. Eckes, ‘Sanctions against Individuals. Fighting Terrorism within the European Legal Order’ (2008) 4 European Constitutional Law Review 2, 205, 208. See also: Craig, de Burca (fn 22) 347. 4 See M. Bovens, ‘Analysing and Assessing Accountability: A Conceptual Framework’ (2007) 13 European Law Journal 4, explaining this logic behind the sanctioning stage for accountability process. See also: C.E. Koops, Contemplating Compliance: European compliance mechanisms in international perspective (2014) PhD thesis, University of Amsterdam. 5 65 See Lazzerini in this volume. 6 See, for instance, an online Cambridge dictionary: https://dictionary.cambridge.org/ dictionary/ english/strong. 7 Craig, de Burca (fn 22) 348-349.
 
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