This chapter examines challenges for realizing effective judicial protection in composite national-EU administrative procedures where EU agencies may be involved. In this respect it discusses problems of jurisdiction, drawbacks of the system of composite judicial protection and judicial protection against agencies’ non-binding preparatory acts and soft law. It is argued that the system of composite judicial protection, as designed by the CJEU on the basis of the Treaties, in theory generally offers sufficient possibilities to have agencies’ output judicially assessed by the EU courts or/and the national courts. However, in practice it may take a while before questions of jurisdiction of EU or national courts and of the applicable law are resolved by the CJEU, and national courts in particular may be reluctant to use the existing possibilities to effectively assess agencies’ preparatory acts and soft law. In addition, the system of judicial protection may not guarantee effective judicial protection of validity questions concerning binding acts of agencies in all cases and for all individuals having an interest in the case.
Sacha Prechal and Rob Widdershoven
Rob Widdershoven and Paul Craig
This chapter discusses the judicial accountability of enforcement actions in which European Enforcement Authorities (EEAs) are involved, in the light of the fundamental European standards of the CFR and ECHR. In this respect three general weaknesses are highlighted. First, the framework of some EEAs facilitates the possibility of forum shopping by the authorities to the national legal order with the most far-reaching competences and the lowest procedural guarantees. Second, most regulatory EEA frameworks neglect essential procedural safeguards applicable to EEA investigations, such as the principle of legal professional privilege, the right not to incriminate oneself, and the ex-ante judicial authorisation of on-the-spot inspections. Third, in several areas it is uncertain whether individuals enjoy effective access to a court against EEA investigations. Most weaknesses should be addressed by the European legislator; some may be solved by the national courts.