For EU law enforcement strategy and theory building!

Calls for EU law enforcement are a common and logical response to address recent challenges – and crises – across multiple policy sectors, but may face constraints of a legal, political and practical nature. According to Miroslava Scholten, these constraints are exactly where we all need to focus in order to ensure the resilience of the EU into the future. Today, on May 9, the Day of Europe, we make a start of a special blog post series by RENFORCE experts to put the need for more and better enforcement of EU law in the spotlight. Check our blog page out in the coming days!

In the last decennia, the EU (and the world) have faced a number of crisis situations, some of which are and will be ongoing for the upcoming years, if not decades: the ongoing environmental crisis, the financial crisis, the migration crisis, the rule of law crisis, the health crisis… This list could include also growing concerns in light of digitalization with things like cyberattacks and AI and as regards ensuring equality (North-South, West-East, male-female workers, to name but a few). Devastating as it may be, a crisis situation or a growing concern creates a pressing opportunity to identify what does not work and learn what to (re)design to prevent and repair the devastation, to a certain extent at least.

This blog post argues that no matter how different recent growing concerns in the EU have been, the same recommendation seems to follow as response – the need for EU law enforcement, i.e., monitoring compliance, investigating and sanctioning for violations if necessary, directly by or at least upon guidance of the EU.

So, if we want to learn well from all the challenging events and enhance the resilience of the EU to future crisis, it is essential to invest time and resources in establishing a proper EU law enforcement strategy and theory. The ‘to-do’ list for all of us – be it for a member of a parliament in the EU or at the national level, public official, researcher or activist – includes adjusting EU treaties to enhance direct supervisory and enforcement competences, passing relevant secondary legislation, promoting clearer caselaw (analysis) and supporting soft law guidance, facilitating cooperation among national enforcers and initiating (calls for) cross-sectoral, cross-jurisdiction and multi-disciplinary comparative studies.

In this blog post, I first show that a call for EU law enforcement is, in one way or another, a common response to address recent challenges across policy sectors. Then, I argue that this reaction is logical, yet may face constraints of legal, political and practical nature. And these constraints are exactly where we all need to focus on to ensure the resilience of the EU in the future. As EU law enforcement is an understudied field, the road towards a successful EU law enforcement strategy includes investigating a number of at times novel questions and forming an EU law enforcement theory. The ultimate goal of this blog post, which is part of series of blog posts, is to boost a normative and policy debate on the ‘what, when and how’ in EU law enforcement further.

Different crises and concerns but the same response: call for EU law enforcement

The financial crisis hit Europe due to the international interconnectivity of the financial markets and after the US’s system went down. While the regulation and supervision of financial markets was already under discussion, the crisis pushed a rapid response and a considerable speed in integration in this field. The lack of transparency, divergent rules and interpretation of common EU rules and soft laws and the lacking de jure authority of the soft guidance were among the key impetus factors to suggest the need for the Europeanisation of national laws, enhanced cooperation of national relevant authorities and the establishment of the first fully-fledged EU supervisory and enforcement agency (ESMA) and the Single Supervisory Mechanisms (SSM) for banking supervision.

While the recent migration, ongoing health and the rule of law crises and other concerns seem to have not shown such remarkable results in terms of enforcement integration progress, at least not yet, relevant official documents and studies show the need to enhance enforcement of EU law in those areas in one way or another. Among the changes proposed are: adjust procedures; enhance or interpret widely EU competence to include enforcement; formalize the already de facto existent enforcement action in de jure terms; and create an EU law enforcement network or agency.

All in all, while crises and other concerns may differ in nature and cause, the need for more enforcement by or guided from the EU has increasingly become the response to address the challenges via more legislative guidance from the EU on how national enforcement should be done, enhancing cooperation via network and/or EU agencies with direct enforcement powers.

Functional necessity but legal, political, practical constraints

The response to have enforcement of laws regulated and/or executed at the same level of governance where rules have been made is logical and can be explained, e.g. as a form of policy cycle functional spillover, especially when other, somewhat more classic methods of indirect enforcement (infringement procedure) face their limits. However, what can be necessary from a functional point of view in the EU may face (1) legal, (2) political and (3) practical constraints.

(1) It is a debatable issue to what extent the EU should be and is allowed to be involved in enforcing EU laws given the conferral, subsidiarity and proportionality pillars of Article 5 TEU, often unclear treaty enforcement competences, the existence of the national procedural autonomy principle, the non-delegation doctrine and the absence of a good normative debate and theory on EU law enforcement.

(2) Politics kicks in irrespective of whether the legal competence is there or not and if successful, the results may be innovative and ‘thinking outside the box’ (European Supervisory Authorities’ emergency powers vis-à-vis national supervisors, SSM’s joint supervisory teams or EASA’s new founding act Article 66 mechanism allowing delegation of relevant tasks to EASA or other national authorities to ensure enforcement of air safety) or as unfortunate as reaching no agreement for years (for example, in the area of migration).

(3) And even once enforcement seems to have given a good legal shape, practicalities may get in the way of proper enforcement functioning, including lack of human and financial resources, late and wrong transpositions, (political) unwillingness to enforce, undesirable differences among national rules and actors, etc.

Towards ‘Successful EU law enforcement’: to assemble the puzzle you need to determine the relevant pieces

Now, enforcement of rules is as old as having rules and has been investigated in the literature of different disciplines already, though not necessarily with providing clear-cut answers to all the pertinent questions, especially in an EU context.

Among the pertinent questions that need to be addressed by practitioners and researchers together to be able to form an EU law enforcement strategy are the following.

• Given the cultural and linguistic differences among the Member States, to what extent can the deterrent-compliant and other theoretical lenses and ladders be applicable for ‘uniform’ EU laws?
• What is a successful agency design of an EU supervisor (compared to that of a national supervisor)?
• What leadership is required to head EU law enforcement structures?
• To what extent can we rely on and integrate in administrative law enforcement means given the fact that the private and criminal law means of enforcement may be restricted to employ due to e.g. lacking harmonization and EU competence?
• To what extent can the digitalization of enforcement enhance or impede EU enforcement cooperation given the facts that digital evidence may be not accepted in courts or different jurisdictions and national procedural differences exist concerning accountability and the protection of fundamental rights , etc?
• Which way is the most optimal for enforcement of EU law and when: loose or close networks of national supervisors or an EU enforcement authority with direct enforcement powers, like ESMA, yet with what types of controls for ‘shared enforcement’, especially in the case of emergency?
• Given the constraints of the sanctioning stick of the EU due to the sovereignty of its Member States, would it be more realistic for EU enforcement theory and strategy to be focusing on pre-sanctioning ways and means to prevent violation of EU law and soft sanctioning (‘name and shame’, ‘public notice’, political pressure, etc), rather than to respond to non-compliance with harsh sanctions?

Success: this way!

Insights on the mentioned questions coupled with hopefully relevant legislative and policy changes – from the Treaties to secondary and soft laws and at times clearer guidance from the case law on such things as the scope of the non-delegation doctrine (as regards enforcement powers) – could contribute to promoting successful EU law enforcement. The EU foundations with more than 100 000 pieces of legislation have been laid down; the time is ripe to ensure that EU laws and policies are being enforced.