Miroslava Scholten and Michiel Luchtman – ‘The Rise of EU Direct Enforcement and the Accountability Implications thereof’

Research note on the new edited volume ‘Law Enforcement by EU Authorities. Implications for Political and Judicial Accountability’ by M. Scholten and M. Luchtman (eds), EE, 2017. The book came out in November 2017 and was presented at the European Parliament, Brussels, in December 2017.

The new trend

Recently, the powers of the European Union (EU) have evolved from being mainly regulatory to include also direct enforcement competences. With the exception of the area of EU competition law, the ‘classic enforcement’ done by EU authorities has been monitoring the enforcement efforts of national authorities (indirect enforcement). This has changed drastically. Since 1999, the number of EU enforcement Authorities (EEAs) has grown from one to eight: the Commission (Directorate-General for Competition, ‘Directorate-F’ (on food law) and the Anti-Fraud Office/OLAF); European Medicines Agency (EMA); European Aviation Safety Agency (EASA); European Fisheries Control Agency (EFCA); European Securities and Markets Authority (ESMA); European Central Bank (ECB); and European Public Prosecutor’s Office (EPPO).

What can EEAs do? Depending on the statutory remit, they can monitor behavior of private parties, such as air companies and banks. If the violation of relevant EU law by the private party is suspected, the EEAs can investigate the suspected violation, including making an on-site inspection to the business premises of the private party. If the violation has been proved to occur, they can punish via imposing fines and/or supervisory measures, like public notices and revocation of a permit.

The proliferation of EEAs can be explained by the desire to promote the at times problematic implementation of EU policies and the (uniform) compliance with EU law, as well as to fight the limits of the ‘traditional tool’ of indirect enforcement via the Commission. It is likely to take place in those policy areas where implementation by national authorities has been or could have been problematic. Assigning EU authorities tasks in the area of law enforcement can resolve problems of transnational enforcement, because expertise and capacity are thus combined with the advantages of what is called ‘European territoriality’. Whereas national borders bind the enforcement jurisdiction of national authorities, the territorial competences of EU authorities include the joint territories of all the participating Member States (MS). Depending on their specific institutional designs, these advantages gain even greater weight when time-consuming schemes for mutual legal (administrative or criminal law) assistance are removed from their legal design. In this case, EU authorities can have the legal power to gather information anywhere in the EU.

It is important to stress that none of the EEAs entirely replaces their national counterparts, i.e. the competent national enforcement authorities (NEAs). This is why we speak of enforcement in a shared legal order. By that, we mean that in the enforcement of EU policy areas both the EEAs and their national partners have their own tasks in enforcement, which are inter-dependent. For the EU policies to be implemented and enforced effectively, both the EU and national authorities need to discharge their respective tasks. The precise content of the tasks and the division of labor between the national and EU level differ, depending on the specific policy area. In some cases, for instance, EEAs have taken charge of the enforcement policy and process, while in other cases they can enforce law in parallel or support NEAs in performing one or other of the enforcement tasks.

Why to investigate (accountability in direct) enforcement of EU laws and policies?

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, e.g., who holds joint (EU-national) investigation teams to account? Etc. These concerns are not without valid reasons. For example, the European Court of Auditors (ECA) has recently concluded that the efforts of the ECB to ensure transparency and accountability before the European Parliament are weakened by the lack of a proper accountability mechanism (ECA’s Special Report No 29/2016, Single Supervisory Mechanism – Good start but further improvements needed, p. 10). In the light of such concerns, the aim of this edited collection has been to analyse whether and how the shift of direct enforcement power to the EU level has been accompanied by establishing relevant accountability systems. 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?

What is in the book?

This book has been written by 30 international scholars and practitioners. They have analysed all existing EEAs and their relationships with the national partners in various EU policy areas. In addition, they have drawn up a series of conclusions from the comparisons between these areas in horizontal studies.

More specifically the chapter by Ton Duijkersloot, Argyro Karagianni and Robert Kraaijeveld started off the discussion by looking at political and judicial accountability in the EU shared system of banking supervision and enforcement (Chapter 2). They focused on the very powerful institution, the European Central Bank and its Dutch and Greek counterparts. Marloes van Rijsbergen and Jonathan Foster analysed the political and judicial accountability of the European Securities and Markets Authority’s enforcement powers (Chapter 3); this has been the strongest of the EU agencies and the only one with enforcement powers. Their selected national jurisdiction was the UK and its Financial Conduct Authority. Kati Cseres and Annalies Outhuijse zoomed in on the area of EU competition law enforced by the Commission’s Directorate-General for Competition, Dutch and Hungarian competition authorities as well as an additional structure, namely the European Competition Network (Chapter 4). Florin Coman-Kund, Mikołaj Ratajczyk and Elmar Schmidt continued the discussion of shared enforcement and accountability in the Aviation Safety Area by analysing the growing powers of the European Aviation Safety Agency and its French and German counterparts (Chapter 5). Merijn Chamon and Sabrina Wirtz presented a case of what they call a ‘modest start’ of the verticalization of enforcement in pharmocovigilance and its implications for accountability. They focused on the European Medicines Agency and relevant Belgian and German authorities (Chapter 6). Federica Cacciatore and Mariolina Eliantonio analysed the accountability of the European Fisheries Control Agency, an EEA with a limited inspection powers, and its UK and Italian counterparts in enforcing the common fisheries policy of the EU (Chapter 7). Antonia Corini, Bernd van der Meulen, Floris Kets, Giuseppa Ottimofiore and Florintin Blanc added to the discussion by showing the emergency powers of the Commission’s Directorate-F in the field of direct enforcement of EU food law and the challenges, which such powers bring for accountability (Chapter 8). They took the Dutch and Italian jurisdictions on board for comparison. Michiel Luchtman and Martin Wasmeier scrutinized the political and judicial accountability of OLAF (the European Anti-Fraud Office), an independent part of the Commission with fragmented investigative powers, and its Dutch counterpart (Chapter 9). John Vervaele concluded the analysis of individual case studies with a chapter on accountability for criminal investigations and prosecutions by a European Public Prosecutor’s Office in the EU, an EEA which did not exist at the time of writing but whose creation was being intensely debated at that moment by legislatures across the EU (Chapter 10).

Chapters 11 to 14 offer a cross-cutting analysis on the four issues. Florentin Blanc and Giuseppa Ottimofiore took a critical look at the formulation of accountability obligations of EEAs and how these affected the meaning of rendering and holding to account (Chapter 11). They discussed the lessons that we could draw from other sectors in this respect. Alex Brenninkmeijer and Emma van Gelder analysed the role of the European Court of Auditors (ECA) in holding EEAs to account, because we noticed that the ECA turned out to be quite effective for reinforcing political or judicial accountability (Chapter 12). Rob Widdershoven and Paul Craig zoomed in on one of the pertinent implications of the system of shared enforcement in the EU – that of ensuring judicial protection, and the existing possibilities and challenges (Chapter 13). Miroslava Scholten, Martino Maggetti and Esther Versluis concluded the book with the discussion of the political and judicial accountability in the shared enforcement in the EU by addressing the main research questions based on comparative insights of all the contributions (Chapter 14). In a way, at the Meta level, the order of Chapters 2-10 corresponded to the observations of this concluding chapter that, while the overall degree of accountability of EEAs is not very high and improvements are needed, a correlation between the strength of powers and availability of accountability mechanisms at the EU level can be detected.

How did we investigate accountability in EU direct enforcement?

We have offered a new analytical framework on how accountability could be investigated in a more comprehensive way. This has been made possible by combining the analytical framework on accountability from public administration scholars (following such scholars as Bovens, Mulgan and Papadopoulos) with the legal principle of effective judicial protection, developed largely by legal scholars. Using one or the other would not have enabled us to produce the same comprehensive result. In this light, each case-study offers an investigation into the following four questions:

1. Who are the relevant actors (EEA/NEA(s)) in the particular sector affected by shared enforcement in the EU? Which NEAs are relevant to be considered in the case study?
2. Who does what in the shared enforcement? What is shared in enforcement and how?
3. How is the system of political and judicial accountability organized in the system of shared enforcement in the given case?
4. What are the gaps/redundancies in the system of accountability and their sources and how could the gaps/redundancies be addressed?

What are the findings?

The comparative analysis has showed three main findings. First, political accountability has been overall quite weak for EU and national enforcement authorities. This weakness stemmed especially from the absence of a link between an accountability obligation and enforcement tasks and from difficulty in using sanctioning powers. Second, the overall degree of accountability of EEAs was not very high. Third, powerful EEAs were formally more accountable, although they are so mostly by judicial means.

All in all, the book has put the quite recent yet rapidly growing phenomenon of shared enforcement in the EU on the map and offered a critical analysis of the implications of this development in terms of accountability. The book provides a valuable contribution for various groups of society, including practitioners, i.e., officials from the EEAs and their national counterparts, judges, politicians and civil servants; stakeholders, i.e., private actors, which could be subject to enforcement procedures by EU and national enforcement authorities in the shared enforcement setting, and clearly the citizen. This volume provides information on relevant procedures and legal regimes in specific sectors of the economy. It highlights points for attention, which we recommend that practitioners and stakeholders should address together in order to respect democratic control and the rule of law.

Miroslava Scholten is an Associate Professor of EU law, a member of the scientific board of Osservatorio AIR, and Michiel Luchtman is a Professor of Transnational Law Enforcement and Fundamental Rights, Willem Pompe Institute for Criminal Law and Criminology at Utrecht University, the Netherlands. Both are members of the Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE) where they coordinate the project ‘verticalisation of enforcement’.

Law Enforcement by EU Authorities is available now.

Read Chapter 1 free on Elgaronline.