This chapter explores the new (codified) competence of the EU set out in Article 83(2) TFEU which enables criminal sanctions to be introduced at EU level in order to render its harmonizing policies more effective. The chapter focuses on the role of this new competence in the enforcement of EU law and policy by drawing upon criminology to fashion a theoretical understanding of legal compliance. It proposes that since the exercise of this competence will operate not with a single dose of enforcement, but upon a process that relies upon a series of episodes, involving a range of actors, at multiple governmental levels, it can be understood as entailing a vertical concept of 'nested enforcement'.
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Melanie Smith and Sara Drake
The existing literature on economic governance in the EU is focused on the substantive changes to the rules and has, to date, given less weight to exploring the changing trends in the enforcement of those rules across the whole system of governance. This chapter seeks to fill this gap in the literature by taking a broad view of the enforcement structures and practices in a number of areas of economic governance. The chapter explores the extent to which the new rules will be more effectively enforced, with a particular focus on the excessive deficit procedure, the macro-economic imbalance procedure, the conditionality of financial assistance and the Treaty on Stability, Coordination and Governance. The chapter argues that similarities in subject matter between areas may mask underlying policy differences that will have an impact on the effective enforcement of the rules. Moreover, areas that appear very different have certain shared features in their enforcement structures (i.e. staged, automatic, ratcheted and differential enforcement strategies) that may enhance effectiveness in those areas. The conclusion finds that innovation and experimentation in enforcement of economic governance has been fuelled, or even led, by the economic crisis. However, the chapter closes by considering the political barriers (i.e. political interference and political apathy) that may nullify the benefits of this creativity and innovation.
This chapter assesses the effectiveness of the 2013 Commission’s Communication and Recommendation on collective redress mechanisms by combining the theory of input/output legitimacy with the EU legal concept of effectiveness. In particular, this chapter asks first, whether the inputs provided by the European Parliament and stakeholders in the course of the policymaking process of private enforcement of competition law and of collective redress had an impact on the EU rules currently adopted; and second, whether such inputs have increased rather than decreased the effectiveness of these rules. The chapter shows that the European Parliament and stakeholders’ positions are reflected in the adopted rules. As for the impact of such inputs in terms of more, rather than less, effectiveness, the assessment seems to point to a decreased effectiveness of these rules, which is reflected in the adoption of soft law, which means that the Member States may not adopt it, and in the capability of these rules to promote compliance with Articles 101 and 102 TFEU. However, this chapter also shows that the European Parliament and stakeholders’ inputs highlighted the need that the collective redress rules should respect some important legal values that make the judicial decision-making process legitimate. This is an important precondition for the proper application of the new rules on collective redress by the legal community, which in turn is likely to make such rules effective.
Dorte Sindbjerg Martinsen and Mogens Hobolth
The practical realization of European Union (EU) rights and obligations depends to a considerable extent on how national public authorities apply EU legislation in their daily work. A growing number of EU compliance studies have probed the transposition of EU law and discussed the importance and shortcomings of the European Commission, the Court of Justice of the European Union (CJEU) and national courts as central and decentralized enforcers. However, the practical application of EU rights and obligations remains rather unexplored. Drawing on survey data covering EU-27 and three EEA states participating in SOLVIT, an internal market problem-solving network, this paper investigates the role of transgovernmental networks in enforcing and managing the daily application of EU legislation by national authorities. We show that informal conflict resolution has become an important and effective tool for addressing misapplication of EU law. Anchored in national public administrations yet working under the ‘shadow of hierarchy’ (namely the Commission) transgovernmental networks are in fact able to improve the compliance of domestic authorities.
This chapter analyses the new EU legal framework for enforcing consumer law through three prongs: public enforcement bodies, judicial mechanisms and out-of-court redress schemes. Accordingly, it starts with an examination of the cooperation of public enforcement authorities through pan-European networks. It then critically analyses the changes affecting two key judicial procedures for consumers (the European small claims procedure and collective redress), and lastly it evaluates the new framework on ADR. The chapter argues that only a holistic approach with consumer ADR at its core and that sufficiently interconnects the three prongs will offer consumers an effective enforcement system that ensures a high level of consumer protection.
The volume of EU environmental legislation and the serious consequences for humans and nature alike in case of non-compliance has made the issue of the enforcement of EU environmental law a top priority for the EU. The EU commitment to better and more effective enforcement of environmental legislation is all the more urgent because the EU is obliged by virtue of international law under the Aarhus Convention to ensure that the public has effective means to enforce EU environmental law through ensuring ‘wide access to justice’. This chapter will first identify the shortcomings of the system of centralized enforcement of environmental law. It will then analyse the gaps to effective decentralized enforcement before the national courts. The chapter will then consider some ‘new’ modes of governance in the enforcement of environmental law, namely the use of ‘soft law’ and networks, and evaluate their role towards creating a more effective enforcement regime for EU environmental law. This chapter will show that networks and guidance documents represent a promising addition to the more traditional instruments. However, further academic attention should be devoted to explore their actual effectiveness (and the conditions for their effectiveness) to promote a higher level of compliance with EU environmental law.
Melanie Smith and Sara Drake
Jeroen van der Heijden
Regulatory enforcement as a practice, and how political scientists, regulatory scholars and lawyers think about it, has changed considerably since the 1980s. For a long time, practitioners and scholars have sought to improve the effectiveness of regulatory enforcement without sacrificing other democratic values such as accountability and transparency. This chapter maps the evolution of regulatory enforcement literature by discussing some of the steps taken on the long, but promising, road that practitioners and scholars have travelled: from deterrence-based strategies to compliance-based strategies, and from enforced self-regulation first to responsive regulation and then on to smart regulation and beyond. The chapter concentrates in particular on the opportunities and constraints of what is the current state-of-the-art practice and theory on regulatory enforcement: networked enforcement. The chapter argues that, whilst scholarship on regulatory enforcement has made some impressive advances, the ‘perfect’ regulatory enforcement model has not yet been uncovered. It concludes by reflecting on some of the key questions that scholars may wish to take up in future research on regulatory enforcement.
Based on the premise that the system of private enforcement of EU law constructed by the Court of Justice of the European Union constitutes a regulatory scheme, this chapter will present a new framework for assessing its effectiveness in a more systematic and holistic manner. Inspired by regulatory scholarship, both the institutional design of the private enforcement regime and the underpinning legal doctrines will be mapped against regulatory goals and constitutional values, allowing inadequacies to be identified. The analysis includes an assessment of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights, two new constitutional innovations set out in the Treaty of Lisbon, and their application by the Court. The chapter will argue that, whilst these legal provisions pave the way for greater alignment of regulatory goals and constitutional values leading to more effectiveness, their full potential has yet to be seized upon by the Court.