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: An analytical taxonomy of EU agencies’ direct or indirect sanctioning powers

Even though the legal and political literature framing EU agencies’ powers and functions is extremely rich, far less attention has been given to the peculiar power of issuing sanctions. Thus, sanctioning powers are usually mentioned as a single category of the broader taxonomies on EU agencies’ powers, but no taxonomy has ever been made - according to our knowledge - to discuss in depth the sanctioning powers as such.

EU agencies’ contribution to EU and national sanctioning can be sorted out according to the following categories, which are lined up from the weakest form of involvement to the strongest.

: Collection and spread of information and best practices among national administrations

As already mentioned, because of its multilateral composition virtually any agency performs this function. However, when engaging in this form of transnational cooperation, agencies simply build the basis upon which usually national administration may eventually rely upon to sanction market operators. Legally speaking,

there is no direct link between the agencies’ activity and the adoption of sanctions. Therefore, this function deserves only to be mentioned at the weakest side on the spectrum of EU agencies’ contribution to the topic under scrutiny.

: Monitoring activities and inspections that might bring to sanction issued by national or EU authorities

Slightly more interesting are those functions of monitoring and carrying out inspections that might bring to further sanctions issued by other bodies, at either EU or national level. Indeed, in this case there is a formal legal link between the agencies’ activity and the opening of sanctioning proceedings: monitoring and inspections are the first steps of an administrative sanctioning procedure.

However, since the degree of discretion left to the sanctioning authorities is maximum, EU agencies are called upon to provide the factual data on whose basis national administrations or the Commission will take the decision of sanctioning. It is worth noting that, contrary to the categories that will follow below, in this case EU agencies are not proposing the adoption of a sanction, but simply collecting data that could be used for issuing sanctions.

This happens in the field of chemicals (namely by the European Chemicals Agency, ECHA[1] ), fisheries control (by the European Fisheries Control Agency, EFCA44, for instance for assessing the respect of fish quotas) and cross-border labour flows and working conditions (by the brand new European Labour Agency, ELA3). In these cases, agencies carry out inspections whose results are then given to the national authorities in charge of issuing sanctions. It is worth noting that the fragmentation of the sanctioning proceedings between final national acts and preliminary European ones might well create some problems in the field of judicial protection. These problems are still to be fully explored with regard to these bodies, since no relevant litigation has arisen so far; however, this possible lack in judicial protection given by the multi-level fragmentation of regulation is gaining a significant relevance in the context of banking supervision, because of the recent empowerment of the ECB, and it, therefore, deserves to be carefully monitored.

Conversely, inspections can also be carried out in view of potential sanctions issued by European authorities: for instance, this is the case of the European Maritime Safety Agency (EMSA), which operates essentially for the prevention of pollution by ships and by oil and gas installations.[2]

Moreover, the sanctioning authority (whether European or national) can also be left to the specific circumstances of the procedure. An interesting example in this regard, where the agency’s involvement in sanctioning is actually quite close to the category discussed in the following sub-section, is provided by the European Medicines Agency (EMA) in the field of pharmaceutical supervision. In this case, the sanction, consisting in the revocation of a market authorization, is adopted by the Commission only as a last-resort, if there is no consensus among the Member States on the urgent measures recommended by the agency. This means that EMA performs not only a scientific evaluation, but also bears a slightly more political role to build a common trust among the Member States on the need to revoke certain market authorizations. If a unanimity among national authorities is reached, then the sanction is taken at national level; otherwise, is up to the Commission to take the decision. This, by the way, goes as further example of EU agencies as platforms that merge the European and national level of implementation and that create the conditions for a 'Europeanization’ of sanctioning.

  • [1] Art. 77, par. 4, lit. b) and e) of Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006, OJ 2006, L 396/1 (as subsequently amended). 2 Art. 3, lit. i) and Art. 19 of Regulation (EU) 2019/473 of the European Parliament and of the Council of 19 March 2019, OJ 2019, L 8/18; Art. 79 of Council Regulation (EC) No 1224/2009 of 20 November 2009, OJ 2009, L 343/1 (as subsequently amended). 3 Art. 8 of the Regulation (EU) 2019/1149 of the European Parliament and of the Council of 20 June 2019, OJ 2019 L 186/21. 4 Case C-219/17, Fininvest, ECLI:EU:C:2018:1023; see, ex multis, S. Demkova, ‘The Grand Chamber’s Take on Composite Procedures under the Single Supervisor}' Mechanism’, (2019) Review of European Administrative Law 209 and the chapter by F. Allemand in this Book.
  • [2] Art. 2(2), lit. b) and Art. 3 of Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002, OJ 2002, L 208/1 (as subsequently amended). 2 Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004, OJ 2004, L 136/1 (as subsequently amended). 3 Art. 107i - Art. 107k of the Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001, OJ 2001, L 311/67 (as subsequently amended). 4 See on this point M. Chamon, S. Wirtz, ‘Complex procedures as hurdle to accountability: verticalization of pharmaceuticals enforcement’, in M. Scholten, M. Luchtman (eds), Law Enforcement by EU Authorities (2017, Elgar) 152.
 
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