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The lion’s share of antitrust agencies’ actions is the enforcement of policies that ensure compliance and deter market players to engage in anticompetitive practices. However, credibility of competition authorities is hindered when agencies fail to enforce policies successfully. A source of ‘failed’ enforcement policies is found in judicial appeal cases against regulatory decisions, which can delay for years the effective implementation of a sanction or can even rule out the enforcement decision of an agency. Why do regulatory agencies fail to comply with legal standards in the process of enforcing the law? Answering this question can lead us to look up into different places, such as courtrooms, texts of legislation or the market structures of the economic sectors under supervision. Nevertheless, what if we look straight into the core decision-making structure of competition agencies?

Public management literature could provide us with an alternative explanation of why agencies fall into unlawful behavior. Recent advances within the study of executive politics have developed the notion of ‘blind spots’ and attention biases of bureaucracies, which refer to the non-evident weaknesses associated to the decision-making structure of an organization. This scholarship explains the causes of policy failures and poor implementation as a result of biases in organizational attention, embedded in the decision-making processes of public offices. In this sense, the notion of a ‘blind spot’ is defined as the unknown inability to detect and process potentially critical information that might be fundamental to prevent poor policy implementation, generally caused by structural and institutional features of organizations. To illustrate this idea, I now recall an iconic antitrust law case from 2007, where the recently created Spanish National Competition Commission (CNC) imposed the highest antitrust fine ever implemented in Spain to that date, triggering a decade of litigation in courts, which only ended after the Spanish Supreme Tribunal issued a final ruling favorable for the CNC.

The construction insurance cartel

After few months of starting operations in 2007, the CNC acted ex-officio to investigate six insurance companies allegedly involved in a price fixing cartel in the Spanish construction insurance market, imposing the firms a fine of €120 million in 2009. However, the story was far from over. It took six more years of litigation where the CNC had to defend its decision in courts of appeal against allegations of insufficient evidence to prove that the insurers engaged in anticompetitive conduct. The CNC finally claimed victory after a favorable ruling issued by the Supreme Court in 2015, defeating four out of the six firms involved in the cartel (a last attempt of three firms to appeal against the amount of the fine was dismissed by the Spanish High Court in 2018). Despite the triumph for the law enforcers, there were costs associated to a decade of litigation, such as economic resources, political pressures and reputational doubts about the motivations, lawfulness a​nd accuracy of the agency. Much has been argued by legal scholars about how the fate of the CNC’s enforcement decision was highly dependent on the judges’ rationale to assess the legality of CNC’s antitrust decisions. However little has been said about how the nature and organizational features of the CNC might have played an important role that led to a difficult time for the agency’s quest to enforce the law.

The agency’s ‘blind spots’: not seeing the not seeing

Could all of these years of litigation have been prevented? What type of ‘blind spots’ was the CNC exposed to when deciding to impose such a fine? Two theoretical ‘blind spots’ might give us a hint and point out what could have gone wrong with the CNC’s decision: the imperious immediacy of interests that mediate an organization’s priorities and the standard operating procedures that drive the performance of bureaucracies. These two theoretical sources of ‘blind spots’ can be detected in our Spanish antitrust case, if we consider the attributions and context under which the CNC’s decision was taken.

A crucial aspect of the CNC’s decision-making process allows us to verify the presence of the imperious immediacy of interest blind spot. The CNC’s decision to act was ex-officio, motivated by an article published in a specialized construction magazine, where the possible existence of a cartel was pre-conceived by the Agency. This might have influenced the choice to act swiftly, and construct a case aiming to gain reputation ​as an active advocate of competition law, but unaware of the possible side effects, such as 10 years o​f litigation or losing the battle in courts. Acting swiftly and ex-officio is an example of the urge to address short-term, seemingly urgent problems leading to neglect, if not direct attenuation, of more long term problems.

Furthermore an example of the standard operating procedures blind spot in our case is the omitted ‘red light’ signaled by the particular vote of one of the CNC’s Council members. In his particular vote, the council member expressed his discrepancy with the Council’s decision to proceed with the imposition of the fine, warning that the High Court and the Supreme Court had constantly reviewed previous decisions of the agency with the similar argumentative structure. This ‘blind spot’ might have been triggered by the theoretical notion of “worldviews shared by professional practices” which provide implicit assumptions that filter out ‘important’ from ‘unimportant’ information to make decisions (in other words, affirming the “not seeing”). The discrepancy of the council member might appear like a lucky coincidence that justifies the argument of the blind spot argued in this text; however, this is confirmed by a consequent opinion issued by the Supreme Tribunal in the same year (2015). The opinion clarified that the procedures followed by the CNC to estimate the amount of fines in several antitrust cases “breached the requirements of the constitutional principles of legal description of sanctions and of proportionality”. It was not only once that the agency followed a ‘standard’ to operate; it was a systematic pattern of decision-making.

Lessons: the elusive quest for organizational ‘blind spots’

How to deal with the blind spots of bureaucracies? Overcoming perceptive selection, policy impact assessment and accounting for behavioral insights are among the possible strategies that competition agencies could adapt to understand and identify sources of attention biases that trigger blind spots. Accounting for blind spots can be a relevant approach for regulators to understand and prevent causes of potential implementation failures. The lesson is to encourage regulators to be tough and decided, but at the same time look up for mechanisms to detect possible sources of weaknesses underlying in the organizational decision-making processes.

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For many years, the incorrect application of the Single Market rules has been a concern for the EU. In that respect, the European Commission has expressed its ambition, in compliance and enforcement matters, to be “bigger and more ambitious on big things, and smaller and more modest on small things”. Given its limited resources, it makes sense for the Commission to focus on the “big things”. But then someone else has to take care of the “small things” because, added together, they constitute a serious impediment to the functioning of the Single Market.

How, and by whom, these small things shall be taken care of is the topic of our newly published discussion paper “Reforming compliance management in the Single Market”. In this paper, the National Board of Trade Sweden discusses, after looking at possible alternatives, a decentralisation reform that would consist in setting up national enforcement bodies in each Member State. Their mandate would be to investigate local infringements of EU law and, eventually, to bring actions before the national courts.

We explain why a decentralisation reform is necessary in order to significantly reduce the compliance deficit in the EU. It would also be a natural step in the development of the European integration project. Finally, it would be a means for the Member States to reassert their ownership of and responsibility for the Single Market.

A necessary reform

Whereas the Commission’s infringement proceedings focus on major enforcement issues, such as the timely transposition of directives, numerous cases of misapplication of Union law go under the EU’s radar. Those compliance issues may take the form of discriminatory decisions on the labelling of goods, municipal planning rules that restrict market access in a disproportionate manner or undue delays for the recognition of professional qualifications.

Taken separately, each of these problems may be very painful in the everyday lives of the EU citizens and businesses concerned. Added together, they may “prevent the Single Market from fully delivering projected benefits” as shown in the report “In Quest of Compliance” which we published in 2016.

The size of the compliance deficit is difficult to measure. A few studies have attempted to assess the cost of non-compliance within specific areas, for instance within taxation, services, public procurement and mutual recognition or for EU environmental legislation. For each of these areas, they indicate losses of tens of billions of euros every year due to an incorrect application of Union law.

There are already mechanisms in place to address compliance issues. Over the years, the European Commission has launched new tools ranging from scoreboards and peer-review mechanisms to interpretative guidelines or the setting up of the informal problem-solving network SOLVIT. It is also possible for citizens and businesses whose EU rights have been breached to bring a complaint before the national courts.

However, in our paper we explain why those mechanisms are, in our view, not sufficient to significantly reduce the compliance deficit in the EU. We argue further that compliance problems affecting the Single Market are inherent to the nature of EU law, a body of rules that transcend distinct legal orders – the European and the national ones –, each with their own (and not always compatible) logic, concepts, interests and traditions.

Bridging the gap between these legal orders requires more than the communication channels in place. In order to foster continuous awareness of, and understanding for EU law on the side of the national administrations, we find a need to move the enforcement mechanisms closer to where the infringements take place, that is within the Member States.

Devising a decentralised enforcement regime

More specifically, we discuss the possibility to introduce, in each Member State, a new player, a “National Enforcement Agency” or NEA, that would monitor the correct application of EU law in those states. In order to safeguard an efficient enforcement, we find it also necessary to endow each NEA with the power to bring cases before the national courts. Hence, the role of the NEAs in the Member States would mirror the Commission’s supervisory work at the EU level.

Aside from these two core features – a national authority embedded in the Member States’ administrations and the recourse to the judiciary – we discuss various aspects that may be relevant in devising a decentralisation regime. One of them relates to the scope of supervision of the NEAs, that is monitoring the application of the whole acquis or of specific pieces of EU legislation. Another concerns the risk of overlap with other national authorities which are entrusted by the EU to apply Union rules within specific sectors or areas, for instance in financial services, telecom or chemicals.

We also insist on the need to involve the Commission in such decentralised regime in order to safeguard a uniform application of the Single Market rules. Experiences from collaboration between national authorities and the Commission within competition law (with the European Competition Network), telecom (BEREC) or consumer protection (the CPC network) may serve as useful guidance here.

Impact of a decentralisation reform

We believe that a decentralised regime for the enforcement of EU law would have a significantly positive impact on the functioning of the Single Market. Reducing the compliance deficit would also contribute to raising the legitimacy of the European integration project.

Another positive effect of such a regime would be to reassert the Member States’ ownership of the Single Market. Both the European Commission and the Member States have an obligation, indeed a strong interest, in making the Single Market work. Solving local problems at the local level is not only an efficient way of enforcing Union law but also, and in line with the principle of subsidiarity, a way to involve the Member States in improving the EU’s engine for growth.

Even if a decentralisation reform would tick many boxes in terms of efficiency, economic integration and subsidiarity, we are conscious of the objections that may be formulated against such an idea. These include the costs associated with such a reform, the possible threat on the uniform interpretation of EU law, the challenge in safeguarding the independence of the NEAs or the difficulties in getting the Member States to agree on scrutinizing their own administrations. Without minimising the validity of these objections, we attempt in our paper to show that those are not necessarily insurmountable.

What next?

The appointment of a new European Commission this year provides a window of opportunity for taking a fresh look at the future of the Single Market. In that context, we are witnessing calls from the business community, Member States and the Commission to focus on the correct application and enforcement of EU law.

A decentralisation reform may not be the most realistic outcome in the short term but we hope that our paper can trigger a reflection on the needs and means for strengthening compliance in the Union. In particular, we hope that a presentation of an ambitious, yet concrete idea may elevate the debate and contribute in going beyond too abstract or too modest wishes for the Single Market.

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Ensuring effective judicial protection appears to be a challenge in the case of the increasingly integrated administrative procedures. The judicial powers are generally more strictly divided between the EU and the national level, while composite procedures may require a more integrated judicial control. Is the Court of Justice of the EU (CJEU) moving into this direction in the recent case of Berlusconi by confirming its exclusive competence to review non-binding national preparatory measures that are part of an EU decision-making process? The ruling clarifies the CJEU’s jurisdiction and avoids a strict separation of the EU and the national level, but it remains to be seen if it serves as an actual next step towards integrated judicial protection. Just how the CJEU can review the national part of the procedure is still unclear, as are the types of preparatory measures to be covered. It seems to nevertheless be a welcome step towards clarifying judicial protection in the case of composite procedures.

Case C-219/17 (Berlusconi): what happened?

The ECB opposed the acquisition by Berlusconi and Fininvest of the qualifying holding in Banca Mediolanum. It found that the acquirers did not meet the criteria against which a proposed acquisition is assessed. In accordance with the applicable procedures, the ECB’s decision was preceded by a draft decision of the national authority involved, i.e. Banca d’Italia.

Berlusconi and Fininvest brought, inter alia, an action before the Consiglio di Stato (Italian Council of State), claiming that the preparatory measures of Banco d’Italia were void. During this procedure, the Consiglio di Stato requested a preliminary ruling from the CJEU. It asked whether the CJEU or national courts have jurisdiction in the case of actions challenging non-binding measures adopted by national authorities in the procedure for assessing acquisitions of qualifying holdings (paragraph 39).

The CJEU concluded that the ECB is not bound by the national draft decision and has exclusive competence to decide whether or not to oppose the proposed acquisition. Accordingly, the CJEU is exclusively competent to review the final ECB decision as well as the preparatory measures leading to that decision. Thus, whereas in previous cases the CJEU obliged national courts to ensure judicial protection in case of binding national measures, even when part of an EU procedure, it now explicitly precludes them from reviewing the legality of non-binding national preparatory measures.

Division of jurisdiction in composite procedures clarified

Under settled case law, any defects in preparatory measures must be relied upon in an action against a final decision following such preparatory measures. This can only be taken otherwise if the preparatory measure itself was subject to judicial review (IBM). In the current judgement, the CJEU basically applies this principle to composite procedures.

The CJEU explained that the division of jurisdiction between the CJEU and national courts depends on the kind of involvement of national authorities in the course of an EU decision-making procedure. Where the EU authority maintains the exclusive decision-making power and cannot be bound by the national preparatory acts, the involvement of the national authority cannot affect the classification of the EU decision as an EU act (Sweden v Commission). For such a decision-making process to be effective, a single judicial review, conducted by the CJEU alone, would be required. If any national remedies exist alongside the action before the CJEU, the risk of divergent assessments in one and the same procedure would not be ruled out. It could compromise the CJEU’s exclusive jurisdiction on the legality of the final EU decision and would thus be unacceptable. This is contrary to a situation in which EU law aims to establish a division between two powers. In such a case, where the EU institution has only a limited or no discretion so that the national act is binding on the EU institution, it is up to the national court to review the national act. Any irregularity that might affect the national measure cannot affect the validity of the EU measure (Borelli).

How can the CJEU review the national measure?

The CJEU has previously accepted that an applicant may rely on circumstances affecting the legality of a decision, even when such circumstances related to the conduct of an authority other than the defendant authority (Austria v Council). In that specific case, however, both the preparatory phase and final decision took place at an EU level, thus the CJEU was competent to review measures of both authorities involved. In the current case, the circumstances that may affect the legality of the ECB decision relate to the involvement of a national authority. As discussed by Brito Bastos, the CJEU only accepts that irregularities on a national level may also affect the validity of a final EU measure in very specific circumstances. Even so, the CJEU merely holds the EU institution responsible for the conduct of the national authority involved instead of reviewing the national measure. For instance, in Sweden v Commission, the CJEU held the EU institution responsible for providing reasons for a decision to refuse access to a document, even if it was based on a national objection. Thus, although the CJEU was exclusively competent, it did not actually need to review the conduct of the national authority involved. In the Berlusconi case, the CJEU states that it shall also determine, as an incidental matter, whether the preparatory national act is vitiated by defects that may affect the validity of the ECB’s decision. The logical following question then is “how?”.

If the situation is reversed, and a national decision is preceded by EU preparatory measures, then the preliminary procedure becomes an important tool for ensuring judicial review of the EU acts (cf. Opinion of AG; UPA). In bottom-up procedures such as the Berlusconi case at hand, the CJEU has no formal tools for requesting an opinion from a national court about the validity of the national measures. The CJEU may reason that the national authority, when implementing EU law and assisting the ECB in carrying out its exclusive tasks of prudential banking supervision, is subject to EU standards only. The national context, still relevant as a result of the banking rules laid down in directives, and its explicit references in the SSM Regulation, is ignored in such case. National rules may still determine some of the procedures, supervisory powers and substantive norms due to the room left for national differences under the directives. Ignoring the national context thus seems unacceptable. However, taking the national context into consideration would imply that the CJEU must review the national preparatory measures on the basis of national standards. The CJEU’s ability to review the national measure as it would an EU measure is debatable, due to the lack of sufficient knowledge of the relevant national legal system and the related national laws. Moreover, would the uniformity of national laws not be at stake when the CJEU also interprets and applies them? Both alternatives have their merits and demerits. It will be interesting to see how the matter is handled by the CJEU.

Which preparatory measures are covered by the ruling?

The CJEU speaks in its ruling about “involvement” or “act” of national authorities in the course of an EU procedure. In this particular case, it concerns a national preparatory measure addressed to the ECB. Does the ruling also relate to preparatory measures not directly addressed to an EU institution? Would national courts be prohibited from reviewing national preparatory measures such as gathering and establishing information, which would probably be done quite regularly by national supervisors acting as member of a Joint Supervisory Team (Article 3 of the SSM Framework Regulation)? It would significantly reduce the differences between member states for the reviewability of national acts. Such a broad interpretation, however, is debatable. The risk of divergent opinions seems less likely in case of a separate review by national courts of measures that merely serve as general input for a final EU decision. A ruling on the legality of such input may indirectly affect the legality of an EU decision (Greenpeace), but would not require taking a stance on the subject of the case. In accordance with IBM, a decision to request information could probably thus still be separately subject to review, even when it concerns input for an EU decision, and reviewed by a national court.

Apparently, the CJEU applied the IBM case law to composite procedures, only leaving out the way in which it would execute the review of the national part of the procedure. Although this seems to be the only path to ensuring effective judicial protection, it does not solve all issues. Next steps from the CJEU have to show if it is indeed moving towards a more integrated judicial control.

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Based on ‘Criminal Liability of Managers in Europe. Punishing Excessive Risk’, (2019) Hart Publishing

“In retrospect, many firms … took on too much risk and did not have sufficient resources to manage those risks effectively in a rapidly changing environment.” (Written Submission of Morgan Stanley to the Financial Crisis Inquiry Commission, John J Mack, Chairman, January 2010)

Every managerial decision is risky, at least to some extent. Conducting business is impossible without venturing into new territories and even the most ordinary daily choices could turn out to be failures. Excessive risk, however, can be very detrimental as was starkly illustrated by the most recent financial crisis. By criminalising managers’ excessive risk-taking criminal law enters a sphere at the core of business activity. But it also provides for criminal punishment for courses of conduct that can be extremely harmful.

In my new book, ‘Criminal Liability of Managers in Europe. Punishing Excessive Risk’ (Hart Publishing, 2019), I examine existing criminalisation of excessive risk-taking, I analyse whether such criminalisation is desirable and if so, under which conditions.

I argue that two types of criminal offences are legitimate and proportionate:

(1) a general offence of intentional mismanagement. It punishes exposure of the company to excessive risk (or causing a loss) and it may include reckless mismanagement, if the latter is committed for personal interests;

(2) offence(s) enforcing concrete risk-preventing rules. It aims at protecting the interests of the economic system: punishment for breaching some risk-preventing rules may be justified because of the systemic consequences these breaches may entail. It may even be legitimate to criminalise the breach even if committed negligently.

General offence of intentional mismanagement requires further explanations below.

Excessive risk-taking

The crucial context in which criminal liability for excessive risk-taking comes into play is the divide between capital and management, which is the common model of limited companies. Investors entrust their money to professionals who are supposed to manage the company’s affairs in a way that brings profit. The relationship between the company (and the shareholders) and the managers relies on trust that the managers use the assets in the best interest of the company. Managers to whom the company assets have been entrusted are accountable vis-à-vis the investors according to rules provided for by company law, their contracts and rules regulating the particular domain of business.

Most commonly managers who act contrary to the company interests or breach relevant rules would be subject to criminal liability when they cause loss to the company. The question whether excessively risky decisions should be punished irrespective of the loss, can appear in three situations. First, and most typically, it would be the case where an act of mismanagement was detected, but no loss occurred. Secondly, this could be the case when it is impossible to prove the loss according to the relevant standard of proof; and, thirdly, focusing on the excessive risk may be necessary where it is impossible to link the loss to the manager’s act.

These cases will remain at the borderline between causing a loss to the company because of wilful misuse of the company assets and decisions, which are technically correct but which turned out to be failures. The excessively risky decision in this context does not cause loss (at least not yet), but there is a need to demonstrate that the risk was excessive.

It has to be stressed also that it is not the task of criminal law to establish the criteria to decide what is too risky in business. Instead, this is done on the basis of criteria and rules regulating the business domain in question (subsidiarity of criminal law). If it cannot be demonstrated with the required certainty, that the perpetrator exposed the company to excessive risk, then he/she must benefit from the in dubio pro reo rule.

Need for criminal liability?

Excessive risk-taking by managers may be criminalised for several reasons. For instance, excessive risk-taking may create an effective setback to the company interests due to book-keeping rules requiring the inclusion of foreseeable risks and costs related to the depreciation of the value of the endangered assets, resulting in an actual lowering of the value of company’s assets.

But more importantly, there may be a variety of interests worth protecting, which may be infringed by exposing the company to excessive risk: (1) interests of the company as an entity; (2) interests of the shareholders; (3) interests of the stakeholders and of other groups of actors. These interests may differ as to the level of permitted risk. The interests of the company seem to be the best common denominator of the stakes held by these actors, as it can be assumed that they will all benefit from the company’s prosperity. The legislator gives more prevalence to the interests of the shareholders through the rules on consent to acts of the management, without which consent the acts would be considered criminal.

Limitations of criminal liability

The main limitations when deciding on introducing criminal liability stem from the principle of ultima ratio (proportionality) and legal certainty (fair warning). The analysis of the problem in view of the principle of ultima ratio demonstrates the following. Generally other tools – legal (of civil, administrative or company law nature) or extra-legal methods – should be used in the first place in order to contain excessive risk-taking. However, there is a variety of arguments in favour of using criminal law to punish acts that wilfully or recklessly (for personal interests) expose companies to such risks. For instance: from the point of view of managerial conduct, there is no difference if loss occurs (which would be usually criminalised) or if there is just significant risk (created by the manager) that it happens, but for sheer luck it is avoided. Criminal law plays also an important communicative function against blatant abuses and helps balance the information asymmetry between management and shareholders or stakeholders.

As to legal certainty, if excessive risk-taking is to be criminalised, it must be made clear in such a way that managers can avoid criminal liability by abstaining from what is prohibited. The book analyses in details all elements of possible definitions of the offence(s) from that point of view. In particular legislators would need to take decisions as to how to describe the circle of perpetrators (all managers or only the highest level), the conduct and whether to include a requirement of result, with all these decisions having policy implications.

Insights from the comparative analysis

In my book, I examine criminalisation of excessive risk-taking in three legal orders: England and Wales, France and Germany.

All these legal orders contain criminalisation of excessive risk-taking, although often at the margin of other provisions, and presenting significant shortcomings of different nature. These shortcomings affect significantly their possible use to deal with managerial misconduct when concerning too risky business. The analysis revealed that besides various similarities, the three models differ – in legislative or practical ways – as regards key requirements. It is those requirements that shape the scope of criminal liability and will ultimately be decisive for the focus of the prosecution and significantly thwart its use. They also reflect the policy choices as well as criminal law traditions of each system.

Conclusion

In ‘Criminal Liability of Managers in Europe. Punishing Excessive Risk’ (Hart Publishing, 2019), I examine the shortcoming of existing criminalisation models and present a blueprint that could serve rationalising this criminalisation. The book presents a panorama of arguments for a responsible legislator to decide whether and how to criminalise excessive risk-taking, be it a national legislator or potentially also the European one.

In sum, criminal law has been and should be used to contain abuses of companies consisting in exposing them to excessive risk. Yet, legislators should avoid the tendency of attempting to cure all problems by using criminal law. The economy should not be thwarted by unnecessarily burdensome criminalisation, and enough space should be left for human creativity. Risk is an inherent part of business. In order for business to thrive, it must also embrace failure.

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The aim of this post is to present a national perspective on the functioning of the European Competition Network (ECN) introduced by Regulation 1/2003. I would like to focus on some of the features to come forth with a positive impact on substantive law, despite the fact that it caused decentralisation of enforcement and what is worth mentioning that national rules on procedures and sanctions remained heterogeneous.

To start with, the ECN consists of the European Commission – the main player – and national competition authorities (NCAs). The structure of the ECN is comprised of eleven working groups and nine sectoral subgroups.

The most important forum is a meeting of Directors General of the ECN members. Their aims are to discuss policy issues. The other significant forum is the so-called Plenary meeting. Its aim is to review the work of the working groups of the ECN and to adopt common policies. There are also horizontal working groups such as Advocacy, Communication, Cooperation Issues and Due Process, Cartels, Digital, Fines, Horizontal & Abuse, Merger, Verticals, Chief Economist, and FIT. Sectoral subgroups concern particular sectors such as Banking and Payments, Energy, Food, Healthcare and Pharma, Telecoms, Environment, Insurance, Media and Sport. It must be stressed that the ‘Cooperation Issues and Due Process Working Group’ is a substantial group due to the fact that the activity of the group includes comparative law studies whereas the aim of the rest of the groups and subgroups is to exchange information i.a. about the market, its structure, national laws, market studies and new crucial decisions of the NCAs in particular. It must be admitted at this point that officials of NCAs can gain new valuable knowledge during the aforementioned meetings.

The Cooperation in Practice

The core source of law that regulates the cooperation between members of the ECN is Regulation 1/2003 which was a landmark reform. It imposes obligations on NCAs and the Commission to cooperate closely with one another. The cooperation between NCAs and the Commission includes sending notifications of new cases. This enables the NCAs to detect cases investigated under the Treaty and cooperate from the very beginning. Next, the NCA should inform the Commission about the envisaged decision before it is issued. In 2010-2017, the Polish NCA notified the ECN of 8 cases investigated under the provisions of the Treaty and it informed the Commission about 6 envisaged decisions. In 2018, UOKiK notified the ECN of 5 cases. When it comes to the Polish NCA, it consults the European Commission through the ECN about cases and it always follows the European Commission’s recommendations. In practical terms, DG Competition always brings awareness to crucial aspects of an envisaged decision. As an example, UOKiK changed one of the envisaged decisions concerning the telecommunications sector after having consulted with the Commission officials.

According to the Regulation, NCAs may consult the European Commission on any case conducted under Union law. The Polish NCA exercises its right to discuss legal interpretation, facts or evidence with the European Commission when it handles a given case in which some questions of a legal nature may arise. Such consultation may lead to proper interpretation, application and consistency of the (case) law.

The Regulation also gives NCAs the power to carry out inspections or other fact-finding​ measures on behalf of NCAs of other Member States. Not only may the Commission request an NCA to assist it in carrying out a dawn raid but it may also ask it to carry out an inspection on its behalf. In June 2018, Commission officials carried out dawn raids in several Member States at the premises of companies active in styrene monomer purchasing. The European Commission was accompanied by its counterparts from the NCAs. Such assistance is efficient and makes the inspections faster and more successful, because of the language skills of national officials and their knowledge of national procedures since the investigation is conducted under national law.

In order for the ECN to function effectively, NCAs and the Commission exchange information between themselves. Besides the formal exchange of information and evidence, informal requests for information (RFI) are used by the NCAs as well. In 2018, UOKiK received 60 RFIs concerning inter alia Polish law, decisions of UOKiK, and the structure of markets. What is more, UOKiK sent more than 7 RFIs. This is a vital scope of activity of the ECN. NCAs send RFIs in particular when they conduct proceedings and encounter dilemmas of a legal nature concerning, for instance,​ a new practice which may infringe competition rules or when considering the relevant market on a given market. Recently the Dutch NCA used one of the Polish cases in the reasoning of a decision. Due to such exchange of information, all the decisions of NCAs can be issued in the same way so it ensures consistency of decisions in all Member States.

There is also the Advisory Committee which acts as a forum for discussion. The Commission consults the Committee before issuing decisions. The representative of the Commission runs the meeting and one of the members of the Committee (designated by one of the NCAs) plays the role of a rapporteur. When it comes to the Polish NCA, Polish officials take part in the Advisory Committee on a regular basis and are designated to be a rapporteur.

Taking everything into account, the NCAs are active participants in the network and follow the rules on cooperation which is of great importance for the functioning of the ECN. It must be stressed that the ECN was not only set up to enforce EU competition rules. It also plays a crucial role in developing a so-called ‘EU competition culture’ by sharing knowledge and experience within the network through participation in working groups of the ECN. As it enables the exchange of knowledge, information and opinions on legal issues, the ECN serves as the platform for exchanging alternative legal solutions. As far as UOKiK is concerned, the participation in the ECN working groups is crucial for its employees. The Polish authority finds the ECN useful and helpful as a forum for learning from the more experienced authorities. To sum up, the way the European Competition Network functions should be assessed as positive as the application of competition law remains consistent in EU Member States.

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Based on ‘A Framework for European Competition Law: co-ordinated diversity, (2018) Hart Publishing’

Europe’s peoples are scared, divided, and increasingly dissatisfied with uniform solutions to many local problems. Recent examples can be found in Greece, Hungary, Italy and the UK. For many years, de Búrca and Scott (Constitutional Change in the EU: from uniformity to flexibility? (2000), 2) note that in many areas of EU law, “…increased heterogeneity, political, economic and cultural…inevitably brings an increase in the heterogeneity within the functioning of…[the EU’s] institutions and policies.” Yet, the European Commission, European Parliament, as well as many academics, practitioners and other regulators strongly resist diversity in competition policy and enforcement in Europe. They fear undermining a level playing field for firms in the EU; reduced co-operation between national competition authorities (NCAs) and courts; and increasing the costs to business. In my new book, A Framework for European Competition Law: co-ordinated diversity, (2018) Hart Publishing, I underline uniformity’s benefits, but highlight the important contributions that diversity brings too, including better alignment with national preferences and more innovation and experimentation. I offer a new structure, Co-ordinated Diversity. This combines uniformity and diversity to generate more efficient, effective and legitimate outcomes, in ways which fit with the EU legal order.

Disagreements in competition policy and enforcement exist

Three disagreements in competition policy and enforcement occur: disagreements on aims, methods, and procedural rules and institutional structures. Disagreements on aims involve: the type of competition that is desirable (e.g. consumer welfare or Ordoliberalism); the precise definition of the type of competition selected (e.g. short or longterm consumer welfare); and the relevance of wider public policy goals. For example, the Netherlands favours integrating environmental considerations in competition analysis, the UK does not. Yet, even if we could agree on uniform aims, disagreements on the best methods to achieve these aims are possible. For example, the NCA in the Netherlands asked other NCAs what emphasis they place on innovation in their consumer welfare analysis. Its joint report with the ICN in 2011 uncovered many diverse approaches. The third kind of disagreement concerns the best procedural rules and institutional structures for achieving these aims and methods. For example, should enforcers be independent NCAs, or should one use a court-based system?

Why the Commission and others seek to suppress disagreements through uniformity

The European Commission calls for a “…consistent application of the rules, and the preservation of the unity of competition policy.” Other relevant actors, such as the European Parliament, academics (Cengiz, Ortiz Blanco and Lamadrid de Pablo – although note the work of Kerber and Budzinski, Svetiev, and Wilks), practitioners and regulators overwhelmingly agree that NCAs and courts should closely follow the Commission’s application of Article 101 TFEU (and, to a slightly lesser degree, Article 102 TFEU). While less uniformity is demanded for procedural matters, this is increasing there too.

The Commission emphasises uniformity because it fears that diverse case outcomes undermine a level-playing field for firms and reduce co-operation between national regimes. Others, such as the UK NCA, worry that diverse competition rules raise business costs.

Why uniformity is not enough

While uniformity brings many benefits, A Framework for European Competition Law (2018) argues that we now need more diversity (within limits). Diversity has two core benefits. It allows diverse national policy preferences; and helps with policy innovation and experimentation. These benefits feed into all three kinds of disagreements discussed above, enhancing the efficiency, effectiveness and legitimacy of the competition system.

Could one say that national policy preferences are less valuable in competition law and policy today? There is increasing agreement on competition’s meaning and the benefits it brings, at least within the competition community. The idea is that intense competition pushes firms to innovate and become more efficient, making their outputs cheaper. Successful firms can undercut their rivals (while providing consumers with better goods and services at lower prices). In fact, Buch-Hansen and Wigger (The Politics of European Competition Regulation (2011), 1) say that:

“The assumption that competition is good and more competition is even better has reached the status of a mantra among policy-makers, business people and academics alike. Never before in the history of mankind has faith in competition enjoyed such an exalted, almost religious, standing and never before have more dimensions of social reality been immersed with its logic.”

However, as Piketty (Chronicles on Our Troubled Times (2016), 59-61) notes, the arbitrary nature of inheritance, and our genetic gifts mean that we are not all likely to be able to enjoy success, at least not to the same extent. Some Member States might want to protect values outside of short term efficiency concerns (helping weaker firms (that struggle in competitive environments, at least in the short term), their employees (who risk losing their jobs) and the environment (cheaper goods may mean more waste)). The social costs of competition are significant. States might disagree how best to ameliorate these costs. Diversity allows them to better reflect their national preferences. Note that NCA independence has helped the competition community to avoid political discussions about the costs and benefits of competition policy and enforcement. The book debates this too.

Diversity also creates space for experimentation. This is extremely valuable in the evolution of policy, especially in fast moving markets. Over time, ‘laboratories of democracy’ allow us to compare various approaches and may provide deeper insights into which response is best (different national preferences may also impact upon this assessment). This can generate effectiveness, and legitimacy, benefits too.

Co-ordinated Diversity: combining uniformity and diversity more efficiently, effectively and legitimately

Given the conclusions above, the second part of A Framework for European Competition Law (2018) examines ways of achieving a better mix of uniformity and diversity. It suggests a new framework for national and EU competition law, Co-ordinated Diversity. This is built on Casella’s theory of clubs (Free Trade and Evolving Standards (1996), 142), as interpreted for the EU by Majone (Europe as the Would-be World Power (2009), 220). The idea is to group similar EU Member States in clusters. Similarlity might focus on a combination of culture, languages, geography, ideology (including ideas of competition and varieties of capitalism), legal cultures, relationships to other values, procedural solutions, etc. Different clusters would pursue diverse national and EU competition policy and enforcement (within limits), allowing for a better match with national preferences and more innovation and experimentation.

The third and final part of the book asks whether Co-ordinated Diversity fits within the EU’s legal order. The book notes that Co-ordinated Diversity is not in line with the current practice in the EU (given the prevalence of the uniformity discourse). Having said that, in cases such as Case C-309/99 Wouters [2002], para 108, the European Court of Justice explicitly accepts that Article 101 TFEU can be applied differently (within limits) in different Member States. In fact, most necessary adjustments to implement Co-ordinated Diversity could be easily achieved through changes to Commission notices and joint statements between the Commission and the NCAs. There are, however, some issues which require deeper change, such as amending Articles 101 and 102 TFEU’s procedural regulation and the merger regulation. So, the book asks whether such changes would fit with the EU’s constitutional order. In order to do this, it has to explain how this constitutional order applies in the competition sphere, something which has rarely been attempted before. In the end, A Framework for European Competition Law (2018) argues that it is possible to make Co-ordinated Diversity fully compatible with the EU order and it explains how this might be done.

Conclusion

Many will argue that undermining uniformity in EU competition policy and enforcement will irreparably harm the EU project. As someone who deeply believes in this project, I hope that we become more open to diversity in competition policy and enforcement in Europe. In the EU, there is not ‘one inexorable path of integration implying harmonization and gradual unification, but rather commitment to a broad commonality within which room exists for varying degrees of difference and diversity.’ (de Búrca and Scott (Constitutional Change in the EU: from uniformity to flexibility? (2000), 2, making the point for EU law more generally) In fact, the EU’s motto is ‘United in diversity’. A Framework for European Competition Law (2018) offers a way of achieving a more efficient, effective and legitimate balance between uniformity and diversity in competition policy and enforcement.

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Next year, a new European Commission will take office. It will no doubt develop new policies in the field of better regulation as its predecessors have done as well. In 2015, the current Juncker Commission presented the better regulation for better results policy – the EU’s ‘Better Regulation’ agenda. Since then, the Commission published several policies as part of this agenda, inter alia, a policy on effective enforcement in December 2016. More recently, in October 2018, the Commission presented a policy on subsidiarity and proportionality in EU policymaking. With these policies the Commission has made important steps in improving legislative quality in the EU. One element is missing however: the link between legislation and legislative differentiation on the one hand and the effects thereof on enforcement on the other. This would be an important issue for the next Commission to take up as we will demonstrate here.

Aligning regulation and enforcement

The Commission’s policies on subsidiarity and proportionality and on effective enforcement are at the heart of the EU’s ‘Better Regulation’ agenda. They represent the distinction between legislation on the one hand and enforcement on the other. This distinction is also reflected in the division of authority between the EU and the Member States. The archetype division of authority involves legislation being adopted by the EU and the Member States being in charge of enforcement. However, it has been demonstrated that enforcement of EU law is progressively being Europeanized. And there is more. Also the picture of EU legislation, which entails a full, comprehensive and exclusive responsibility for the EU institutions, needs to be nuanced. Much EU legislation leaves considerable scope for national discretion, and thus for variation in legislative regimes among the Member States – legislative differentiation is thus a common feature of EU legislation. And so a more refined picture emerges of both legislation and enforcement in the EU. This makes the connection between the two even more relevant.

The new policy of the Commission on subsidiarity and proportionality seeks to strengthen these principles in the EU. Strengthening subsidiarity involves leaving certain aspects of regulatory regimes to the Member States and thus allowing for differentiation in legislation where possible. From a subsidiarity perspective, such differentiation strengthens legitimacy – by legislating closer to citizens – and ensures better efficiency in respecting national differences between and within Member States. At the same time, such differentiation comes with downsides and may cause coherency problems and may even result in outright regulatory failures. As a consequence, such legislation is often revised and replaced by more concrete and specific legislation that leaves less room for national and individual choices.

What is remarkable is that this tension between the effectiveness and coherence of EU legislation on the one hand and the need to accommodate national and local diversity on the other is hardly reflected in enforcement approaches. This is exemplified already by the two separate policies of the European Commission. This creates mismatches between regulation and enforcement. The Commission in its 2016 policy on effective enforcement simply states that: “The uniform application of EU law throughout all Member States is essential for the success of the EU” without mentioning how to deal with legislative differentiation itself. This reflects no understanding whatsoever of the abovementioned tension in EU legislation.

Aligning EU data protection laws

This runs the risk that the outcome of regulatory processes will be the exact opposite of what the Commission seeks to achieve with its Better Regulation agenda. The example of EU data protection is illustrative in this regard. It shows that the lack of alignment between different legislative measures creates problems for the effective enforcement of data protection in the EU.

First, there is the General Data Protection Regulation (GDPR), which provides for a rather strict and elaborate general legislative regime for data protection. The GDPR strengthened the pre-existing network of national enforcement authorities by creating a cooperation and consistency mechanism and regulates national enforcement by prescribing procedural and substantive enforcement standards. This cooperation and consistency mechanism first requires the national data protection authorities to cooperate. Second, the consistent application of the law is ensured by the European Data Protection Board (EDPB). All national data protection authorities are represented in the EDPB, which serves to align their policies in view of a consistent application of the law throughout the EU. The revised Payment Services Directive (PSD2) applies to specific data protection situations. PSD2’s primary focus is on regulating payment services throughout the EU. However, it also regulates the processing of personal data by payment service providers. In particular, the processing of payment account data to third parties is a sensitive issue in this Directive. To ensure that payment service providers comply with the rules, PSD2 requires Member States to appoint supervisory authorities, but it leaves the Member States free to decide how.

In practice, this leads to a lack of coherence. Most Member States have appointed two supervisory authorities: one authority responsible for the prudential supervision and one for data protection supervision. The latter normally is the same supervisory authority as under the GDPR and which would thus be part of the consistency mechanism. The Netherlands, however, initially appointed data protection supervision responsibility to the authority which was responsible for prudential supervision. This choice had two negative effects. The designated authority on data protection supervision under PSD2 could not take part in the GDPR data protection consistency mechanism. Another effect was that the Dutch supervisory authority might apply the rules differently from other Member States. This would not only impede the coherence of data protection legislation in the EU but would also affect the protection of individuals.

Conclusion

In the end, the problem in this case solved itself. After having been criticized, the Dutch legislator now intends to appoint the Dutch data protection authority as the supervisory authority for data protection under PSD2. However, similar problems may easily arise here and in other fields. The EU can prevent problems like these by better alignment of its policies. The first step would be to make the alignment of regulation and enforcement a key aspect of its better regulation policies.

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In recent years, the European Union (EU) has become increasingly involved in the enforcement of EU policies. While the institutional arrangements of this involvement vary in different policy areas, it is usually based on shared competences between the European Commission, EU agencies and national enforcement authorities. This ‘supranational enforcement’ appears to be a functional extension to EU regulation. However, in case of the REACH regulation on chemical substances, this extension is not based on formal delegation of competences, but informal practices of the European Chemicals Agency (ECHA). In this blog post, I discuss these practices to demonstrate systemic problems of supranational enforcement in the case of REACH. Due to these problems, there is substantial non-compliance with essential provisions of the regulation.

Informal practices of supranational enforcement and recent case law

The REACH regulation, adopted in 2006, is based on a ‘no data, no market’ principle (Art. 5), meaning that all chemical substances imported, produced and manufactured in the EU have to be registered. To this end, companies are required to submit registration dossiers to ECHA. The dossiers include technical information on the substance as well as risk assessment and management. As of November 2018, the ECHA database contains almost 90,000 dossiers on more than 20,000 chemical substances.

To check companies’ compliance with the information requirements of substance registration, ECHA conducts dossier evaluations in line with Articles 40 and 41 of REACH. There are two possible outcomes. If dossiers are found to be fully compliant with these requirements, no further action is initiated. If, however, dossiers are non–compliant because of missing or insufficient information, ECHA drafts a decision requiring companies to submit additional information. Based on the draft, national representatives in the Member State Committee of ECHA make the final decisions on the compliance of registration dossiers (Art. 51). Information submitted by companies in response to these initial decisions is checked by the agency, which, if necessary, drafts any new decisions (Art. 42).

Since 2012, ECHA has started to issue ‘Statements of Non-Compliance’ (SONCs) in case it regards the submitted information not sufficient to conform to the information request of the initial decision. The instrument of SONCs does not have a legal base in REACH and, de jure, enforcement is a Member State competence (Art. 126). By sending a SONC as a letter to the national authorities, with non-compliant companies copied, SONCs are intended to facilitate enforcement activities at the national level. As of today, around 200 SONCs have been issued by ECHA.

This informal practice of issuing SONCs was subject to legal challenge first in 2013, when the Belgian company ‘Solutia’ took a case to the ECHA Board of Appeal. The company submitted information following a decision on non-compliance of its registration dossier. According to ECHA, the submitted information did not suffice to conform to the request made in the decision and, as a result, issued a SONC that was sent to the Belgian authorities as well as Solutia. The second challenge came in the form of a case taken to the Court of Justice of the European Union (CJEU). In 2015, the company ‘Esso Raffinage’, established in France, sought the annulment of the SONC issued by ECHA and sent to the French authorities. In both cases, the pleas of the applicants were upheld, ruling that the practice of issuing SONCs was in breach of the provisions on dossier evaluation as laid down in REACH.

How does the issue of SONCs relate to the general question of REACH enforcement?

This recent case law has procedural consequences regarding compliance checks. In the initial practice of issuing SONCs, ECHA did not formally involve the Member State Committee in line with Article 51. The agency argued that if the information submitted by companies after a decision on non-compliance was insufficient, the issuing of a SONC is a continuation of the procedure leading to the initial request, and not a new decision requiring a new procedure. In the Solutia case, however, the Board of Appeal stated that ECHA was examining “substantial new information” submitted by the company, which requires a new decision-making procedure and thus the involvement of the Member State Committee.

After the Solutia ruling in 2015, the submission of ‘new and substantial information’ was used by ECHA as reference for deciding on whether or not to involve the Member State Committee. In the proceedings of the Solutia case, ECHA argued that “using the onerous decision-making procedure set out [in Article 51] would lead to paralysis of the enforcement of Agency decisions and create an endless loop of new decisions”. The General Court, however, dismissed this argument in the proceedings of the Esso Raffinage case and thus nullified the ‘new and substantial information’ reference. Unless the submitted information is “manifestly unreasonable” and thus an “abuse of process”, decisions on non-compliant dossiers have to be made by the committee in line with the respective procedure.

Apart from these procedural consequences, and more importantly, the issue of SONCs demonstrates systemic problems of supranational enforcement in the case of REACH. Enforcing the regulation is based on shared competences in that ECHA examines the information in the registration dossiers, the Member State Committee makes decisions on the compliance of dossiers and national enforcement authorities control and sanction companies. There are three systemic problems with regard to substance registration.

First, due to the high number of registered substances and the complexity of the subject matter, ECHA is not in the position to check the compliance of all dossiers. According to REACH, at least 5% of the dossiers have to be checked (Art. 41 (5)). In total, the agency has conducted almost 2,000 compliance checks (4.6% of all registrations). The numbers are inconclusive, but evidence shows that between a third and more than two-thirds of the registration dossiers are non-compliant.

Second, when issuing SONCs, ECHA states that companies are not in compliance with Article 5 (‘no data, no market’). In the Court proceedings, ECHA, as well as Member States supporting the agency, argued that SONCs are an informal practice to notify national authorities about non-compliant companies that are not binding for either companies or national authorities. The General Court, however, states that the content of a SONC “must (…) be regarded as producing binding legal effects”, and that the “informal nature of the mechanism of cooperation between ECHA and the competent national authorities (…) does not call into question the division of competences”. Therefore, SONCs have to be issued in line with the decision making procedure on dossier evaluation.

However, for ECHA, substances with non-compliant registrations are not illegally on the market, despite the ‘legally binding effects’ of SONCs, which state that companies are not in compliance with the ‘no data, no market’ principle. This might seem paradoxical, but registration in REACH is designed to evaluate registration dossiers ex post (and not to authorise substance use ex ante). In a recent appearance before the ENVI committee (Environment, Public Health and Food Safety) of the European Parliament (EP), ECHA Director Bjorn Hansen confirmed that registration is meant for substances “to stay on the market”. Hence, the agency has in the past revoked registrations in case of incomplete dossiers, but for non-compliant dossiers, this is not an option, despite evidence of substantial non-compliance.

Third, the underlying objectives of REACH are the functioning of the internal market and the protection of human health and the environment. The registration of all substances with ECHA is an essential provision to achieve these objectives, given that companies are responsible for risk assessment and management. As the repository of registration information for more than 20,000 chemical substances, ECHA is central to the institutional framework of REACH (and EU chemicals policy in general). Although Member States have endorsed the issuing of SONCs, it is an informal instrument that does not alter the sharing of competences between ECHA and the Member States. The agency claims that this instrument facilitates national enforcement activities. While this claim warrants further analysis, these activities, ultimately, are the responsibility of national authorities, regardless of the number and contents of SONCs.

However, the substantial non-compliance since the adoption of REACH in 2006 indicates that informal practices are not able to rectify the systemic problems of supranational enforcement. There are two alternative options to address these problems. The first option is a total revision of the REACH regulation to formally delegate enforcement competences to ECHA, including the revocation of registrations in case of non-compliance. Due to the economic and political ramifications, this is not a viable option. Hence, the second, and in fact only option, is for ECHA and the Member States to work within the legal and institutional framework of REACH. Sufficient resources for ECHA to increase output in terms of compliance checks are one essential precondition. To this end, the Member States, the EP and the Commission have to be committed to addressing the substantial non-compliance with information requirements of substance registration. As regards the Member States, sufficient resources for national authorities are another precondition, but without the political commitment to control and sanction non-compliant companies, the systemic problems of supranational enforcement in the current framework will not be alleviated.

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Civil society organizations provide an important watchdog mechanism in the European policy process. Based on her study on what drives information exchange regarding the implementation of EU gender equality law in practice, Reini Schrama draws three important lessons from the monitoring network of women´s groups in the Netherlands. The aim of monitoring is to gather information and gain access to valuable sources and this requires swift, brokered and broad-based information exchange. Because of this distinct functionality, monitoring networks benefit from a structure of interactions that allows information to spread rapidly across different parts of the network, no matter the preferences or the organizational background of the actors involved.

The implementation and enforcement of EU Directives is a multi-level game. Member states have to transpose EU law, prepared by the EU Commission and agreed upon collectively, into national legislation and are responsible for their actual implementation in the domestic context. The EU Commission supervises the implementation process to make sure Member States comply with EU requirements. Although the EU´s enforcement powers may be expanding through the network linkages among national authorities, it traditionally relies heavily on a decentralized monitoring system by fire-alarm. Local actors can monitor implementation informally by assessing whether targets are actually met and provide information on incorrect applications whenever there is a problem. Though the importance of monitoring by local actors to help enforce compliance is widely acknowledged, little is known on how these actors organize their monitoring activities and what determines effective information exchange.

To monitor whether key concepts of EU law are implemented in practice, relevant Civil Society Organizations (CSOs) need to engage with a variety of stakeholders. First, civil servants and political actors collect background information, regularly review priorities and reflect on activities in relation to policy implementation. Second, transnational CSOs can provide input for the data collection process, report on implementation efforts across the EU and widely distribute information. Third, local CSOs can provide specific knowledge and feedback on the concrete impact of policies in practice. Lastly, independent research institutions contribute through extensive data collection and external evaluations.

At the end of the day, organizations monitoring policy implementation are in need of a network that allows them to keep track of all developments in the policy process and detect implementation problems immediately. To gain access to this type of information, organizations must exchange information rapidly and among a diverse set of actors. In this context, the types of interactions that add the most value are the ones that increase the connectivity of the network resourcefully, broker between different parts of the network and do not discriminate against different kind of actors. Information exchange in a monitoring network is therefore driven by efficiency, brokerage, and diversity. These kind of bridging interactions are particularly relevant for networks monitoring the implementation of multi-level policies attracting stakeholders active on different levels.

To demonstrate how these monitoring networks are structured and what drives information exchange, I have mapped out the network of a key civic actor when it comes to monitoring EU gender equality law in domestic practice. The Dutch Women´s Council (Nederlandse Vrouwenraad) brings together women´s groups in the Netherlands and represents them within the European Women´s Lobby. An inferential network analysis allowed me to test what increases the likelihood of information exchange and provides us with three important lessons for civic actors setting up their monitoring activities (read more about the study here).

Monitoring network of the NVR (Dutch Women´s Council); violet is domestic, blue is European and grey is international level.

Lesson 1: Do not discriminate

First, diversity is key when it comes to information exchange to monitor policy implementation. In contrast to more general collaboration, a similarity in preferences, mutual objectives, and compatible organizational backgrounds are unlikely to drive information exchange for the purpose of monitoring. Monitoring benefits from actors gathering as much valuable information as possible from a variety of sources.

Different kind of actors will process and value information according to their distinct perspectives, leading to more broad-based monitoring. Information exchange for the purpose of monitoring entails sharing detailed information and specific knowledge about the concrete impact and implementation of policies. This type of information is often shared by research actors and CSOs and put to use through access relations with state actors. Monitoring by fire-alarm assumes interaction between societal actors and governmental actors to get full information on implementation practices at those in the position to do something about it. Information is likely to be dispersed among actors with divergent preferences on implementation strategies. In addition, CSOs rely on the information resources produced by research actors. When you are dependent on the resources of others, as is the case in a monitoring network, linking up to others is a necessity, no matter the differences in preferences. As a result, monitoring the implementation of external rules requires a network that includes different perspectives in order to gain full information on the process of implementation.

Lesson 2: Connect different worlds

Another mechanism driving access to new information is brokerage. Brokers essentially create indirect relations where there are no direct ones and thereby increase the flow of information and connectivity of the network. In the context of a monitoring network, brokers can connect actors with a distinct focus on the implementation process and different pools of information. The ability to establish contacts with actors and organizations from various parts of the network is particularly important for monitoring, as it provides an opportunity to access information that is different from what is already circulating. A monitoring network requires information to flow freely, so that problems can be detected in every phase and in each aspect of the policy process. As a result, in order to fully monitor policy implementation, you have most control when you are in the valuable position to bridge parts of the network that are otherwise unconnected.

Brokers are essential in multi-level monitoring networks to improve coordination of collective action and bring together actors from different polity-levels to help them understand implementation problems with common terms of reference.

Lesson 3: Use your connections wisely

Finally, by using exchange relations efficiently, you gain greater access to external information and resources. Monitoring entails detecting implementation problems whenever they occur, so connections that bring in information that is unknown, even to someone’s close relations, are the most advantageous. To save the costs of the additional link that will not lead to new information anyway, actors tend to exchange information with those that do not have overlapping sources of information. When in need of swift access to novel information, try to exchange information with those that provide new connections. This way, you can reach and gain insights from a higher number of actors in the network and learn about information that is different from your own pool of knowledge.

Summing up, especially when policy implementation is a multilevel and inter-organizational task, such as in the case of the EU policy process, successful implementation requires networked communication and exchange of resources. To effectively increase transparency in the implementation process, actors that monitor policy implementation should use their network differently than in more collaborative settings. Instead of building trusted partnerships with like-minded parties to push a certain policy forward, in a monitoring network policy stakeholders benefit more from letting information flow freely at low cost, brokering information between different parts of the network and facilitating information exchange among a diverse set of actors with divergent preferences.

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The 10-year anniversary of the EU Charter of Fundamental Rights becoming legally binding is due next December. This fast approaching anniversary gives us the opportunity to look back on the fundamental changes that the Charter has brought about in EU law enforcement. Most importantly it caused a change in the mindset of EU policy-makers to give more consideration to fundamental rights when making decisions. In my view, this change towards a more rights-based approach is yet to be fully translated into the daily work of national and local law enforcement actors. I am convinced that progress can be made by training national and local law enforcement to adequately respond to interconnected security and fundamental rights challenges. However, police officers now generally have limited access to non-core fundamental rights education. Therefore, in my post, I will explore why police training should promote the understanding of police officers that a rights-based approach does not limit policing work but underpins its legitimacy in society, decreases the surfacing democratic deficit in EU law enforcement and helps to build bridges with and among citizens and communities in Europe. In light of the turbulent events that occurred recently in Europe and that have fundamentally changed the EU’s security environment, understanding the need for and potential of better fundamental rights education of police officers seems more timely than ever.

What is a rights-based approach?

A rights-based approach may be seen as a conceptual framework based on international human rights standards that also reflects on inequalities and that addresses discriminatory practices. At this point, an important distinction must be made between fundamental rights and human rights; fundamental rights constitute those rights that are mainly ensured by individual governments at the (Member) State level, while human rights are universal and apply to each and every individual, regardless of their nationality, ethnicity, and religion.

Before the adoption of the Lisbon Treaty, no founding Treaty provided anything about fundamental rights protection in the EU, but now the EU Charter entails the full recognition of fundamental rights in the EU legal order. This change envisaged a shift towards a rights-based approach in the JHA area which was then further shaped by EU institutions and law enforcement agencies through law-and policy-making and targeted capacity-building efforts. Although this transition did not happen overnight, it fundamentally challenged the traditional approach towards policing in the EU, relying mainly on the deterrence of police presence.

Post-Lisbon State of Play

The EU Charter’s human rights principles and standards must be implemented by all EU institutions and by the Member States when applying EU law. In doing so, they must ensure respect of fundamental rights throughout the EU, for instance, those relating to the freedom of assembly and association. These collective freedoms are generally upheld by the police and other law enforcement actors which justifies the policy need to explore the role of a rights-based policing in better preventing conflicts, civil unrest, and fundamental rights abuses in Europe.

Nexus between fundamental rights protection, conflict prevention, and police work

History shows that upholding fundamental rights and stability go hand in hand; human rights violations may lead to conflicts and conflicts may lead to human rights abuses. In case abuses remain unredressed (including those committed by perpetrators acting in their official capacity), they might as well constitute root causes of conflicts, considering that such scenarios often relate to changes in power relations triggering feelings of injustice and discrimination. The integration of a rights-based approach within law enforcement policies may prevent such events, whereby authorities in charge of protecting citizens’ rights in line with state obligations seek to uphold the highest standards of human rights in their daily operations. They will do so even in situations of civil unrest where there is a heightened risk of abuses. The successful implementation of this rights-based approach shall be key to lasting and sustainable regional stability, as it can actively contribute to social justice by fostering dialogue between ethnic/religious groups and the state.

Law enforcement actors are widely seen as guarantors of order and security and protectors of citizen’s security and their ability to enjoy their human rights and fundamental freedoms. This suggests that fundamental rights may be considered as the basis for, and the main objective of law enforcement work. Nonetheless, law enforcement professionals acting in their official capacity in challenging situations might consider fundamental rights as a limitation to their work and thus may become perpetrators through the abuse of power. Recent examples of police abuse related to pro- and anti-migration movements taking place throughout the EU impacted the public trust in law enforcement actors. By addressing such scenarios, the EU-wide fundamental rights training of police officers would help officers to understand why it is important for them to abide by human rights standards, exercising the use of force strictly in accordance with the principles of legality, proportionality, internal/external accountability, and transparency, and to act in line with the EU’s roadmap for law enforcement operations in the JHA area. Realising this need, EU agencies have increasingly integrated fundamental rights training in police education. Looking at a concrete example, the EU’s Fundamental Rights Agency published a guide named Fundamental rights-based police training – a manual for police trainers in 2013 which foresees the enhanced integration of a fundamental rights training within police education in compliance with the EU’s goals in the field of justice and home affairs.

Victim-centered approach ambitioned by EU law

The rights-based approach has entailed important legislative developments in EU law. In 2011, a new EU Directive was adopted on trafficking in human beings (THB) with the aim of approximating related legislation and penalties among EU Member States, envisaging an enhanced protection of and assistance to THB victims (trafficking of sex workers, children and men for purposes of forced as welllabour). As a result, EU countries started to increasingly apply a victim-centered approach, collaborating closely with international organizations and NGOs working on assisting THB victims. This may be seen as a best practice subsequently also applied by an increasing number of partner countries in the Euro-Mediterranean region. Then the Victim’s Rights Directive was adopted in 2012 (with a transposition deadline by November 2015) bringing about minimum standards on the rights, support and protection of victims of crime. The Directive attributes tremendous importance to training in the implementation of the Directive. For instance, it provides that any official coming into contact with victims should receive sufficient training to allow them “to identify victims and their needs and deal with them in a respectful, sensitive, professional and non-discriminatory manner” (Recital 61, Article 25). In the year of the transposition deadline of the Directive, the LIBE Committee released its report suggesting important amendments to the proposal for a regulation on the extension of CEPOL’s (the EU Agency for Law Enforcement Training) mandate. It included important amendments in terms of fundamental rights, especially Amendment 1, Recital 6 highlighting the need to promote fundamental rights in law enforcement training, including privacy, data protection, and victims’ rights. Building on this momentum, there has been a greater emphasis on fundamental rights training at the EU level. CEPOL now offers a wide range of related courses, webinars, seminars and residential activities addressing fundamental rights aspects concerning (disability) hate crime, core international crimes (war crimes, crimes against humanity, genocide), gender-based violence (GBV), data protection, fundamental rights in the context of police ethics, in countering violent extremism/radicalization and in diversity management, as well as human rights mainstreaming in CSDP missions.

CEPOL Corporate Film 2014 - YouTube

In addition to these truly valuable and practice-oriented courses, I would recommend to include more intercultural, gender-sensitive and victim-centered courses, providing law enforcement professionals with a deeper understanding of how to investigate particular human rights violations in a constantly changing security environment. Moreover, I find that the potential of community policing in preventing radicalization should be addressed more extensively in police education in the EU.

To conclude, in the realisation of a rights-based approach a more intercultural, gender-sensitive, victim-centered and community-based approach should be incorporated in the capacity-building of law-enforcement professionals both at the EU and national level. This will allow them to respond to contemporary security challenges in a comprehensive way while respecting fundamental rights and maintaining good relations with communities which will promote the legitimacy of police work in the area of freedom, security and justice in line with the expectations this term generally entails in the public eye.

Any views expressed in this article are solely those of the author and do not represent the position of the European Union or Euromed Police IV.

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