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Edited by Miroslava Scholten and Michiel Luchtman

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Law Enforcement by EU Authorities

Implications for Political and Judicial Accountability

Edited by Miroslava Scholten and Michiel Luchtman

EU law and governance have faced a new development – the proliferation of EU enforcement authorities, which have grown in number over the last 15 years. These entities, either acting alone or together with national enforcement authorities, have been investigating and sanctioning private actors on their compliance with EU law. Law Enforcement by EU Authorities investigates whether the system of control (in terms of both judicial and political accountability) has evolved to support the new system of law enforcement in the EU.
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Lisette Mustert and Miroslava Scholten

The European Aviation Safety Agency has been given various regulatory and enforcement tasks. This chapter analyses controls over specific outputs by EASA – soft law and airworthiness directives – and discusses a new oversight support mechanism. It argues that when de facto or de jure legally binding decisions face limits of judicial controls due to the nature of such decisions or judicial deference, ex ante controls, transparency requirements and political accountability seem essential and could be seen as mitigating for the challenges of judicial control.

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Controlling EU Agencies

The Rule of Law in a Multi-jurisdictional Legal Order

Edited by Miroslava Scholten and Alex Brenninkmeijer

Controlling EU Agencies launches the debate on how to build a comprehensive system of controls in light of the ongoing trends of agencification and Europeanisation of the executive in the EU.
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Miroslava Scholten, Michiel Luchtman and Elmar Schmidt

Recently, the powers of the European Union (EU) have evolved from being mainly regulatory to include also direct enforcement competences. Rather than monitoring the enforcement efforts of national authorities (indirect enforcement), direct enforcement by the EU implies that EU enforcement authorities (EEAs) have the power to monitor adherence to legal rules by private actors, as well as to investigate and sanction alleged violations of EU law by those actors. The shift of power from the national to the EU level, especially in such an area as law enforcement, raises concerns about how to ensure democratic control and the rule of law. What challenges in terms of democratic control and the rule of law does this development bring about and how could or should those challenges be addressed? This chapter outlines the research project and sets up an analytical framework for the nine case-studies and cross-cutting issues of accountability and judicial protection.

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Miroslava Scholten, Martino Maggetti and Esther Versluis

The focus of this chapter is on the shift of direct enforcement power from the national to the European Union (EU) level (‘verticalization’) and accountability in this new system of shared enforcement. Has the shift of direct enforcement power been accompanied by the establishment of an appropriate accountability system? What have we learned about accountability for enforcement, including in a multi-level setting? Based on the comparative insights of the legal frameworks of all EU Enforcement Authorities and relevant national enforcement authorities, it shows that political accountability for enforcement tasks is overall quite weak. While the overall degree of accountability of EEAs is not very high, in some types of relationships it is higher than in others. The powerful EEAs are formally more accountable, although they are so mostly by judicial means. The chapter concludes with highlighting three challenges to accountability in shared enforcement – those which limit/restrict the scope of political accountability; those which hinder/weaken execution of accountability; and those which undermine the very existence of accountability – and directions for necessary further research in the emerging field of shared enforcement in the EU.

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Miroslava Scholten, Béla Strauss and Alex Brenninkmeijer

The EU has seen the rise of agencification and EU agencies, which now form an integral part of the EU legal order. EU agencies have also been entrusted with an increasing number of tasks, accompanied by an equally increasing number of competences, such as rule-making and (direct) enforcement. It has long been recognised, by scholars and EU institutions alike, that this ‘competence creep’ may be problematic given the large degree of independence these bodies possess, combined with the lack of a formal legal basis in the constitutional treaties and the challenges raised by Europeanisation. This raises the question how the necessity of effectively and efficiently operating agencies can be reconciled with an equally necessary overarching and comprehensive system of control, without one compromising the other. This volume seeks to address the question of how a comprehensive system of controls can be established.

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Miroslava Scholten, Martino Maggetti and Yannis Papadopoulos

EU agencies have been growing over the last 45 years, with a proliferation since the early 2000s. They are seen as an important instrument for shaping and implementing EU policies throughout a large number of policy areas. As the policy areas’ specificities vary greatly, including how much of a say the EU gets in regulating specific sectors, EU agencies also differ to a considerable extent. They can, for example, have different policy objectives, functions, powers, institutional structures and mechanisms to render account, to name but a few.