EU Law Enforcement: The Evolution of Sanctioning Powers

Description

The existence of a structured enforcement system is an inherent feature of national legal orders and one of the core elements of State sovereignty. The very limited power to issue sanctions has often been deemed a gap in the EC legal order. Over the years, the situation has progressively changed. The Union’s institutional setting is growing in complexity and a variety of agencies has been or is expected to be endowed with law enforcement responsibilities. In addition, the so-called competence creep has led the EU to play an increasingly prominent role in several areas of EU law enforcement, including the issuing of sanctions. This book examines these developments, focusing on both the general features of the EU legal order and the analysis of key-substantive areas, such as banking and monetary union, environmental law, and data protection. The work thus presents a general framework for understanding EU sanctioning based on structural features and general legal principles. Part I develops an analytical framework, tracking the most significant evolutive patterns of EU sanctioning powers. Part II adopts a more practical approach focusing on specific issues and policy areas. The book bridges a gap in existing literature and sheds new light on the relationship between the exercise of jus puniendi and the evolution of EU integration. Cover Half Title Title Page Copyright Page Table of Contents Chapter 1: Introduction Chapter 2: EU (shared) Law Enforcement: Who Does What and How? 2.1: Introduction 2.2: Defining EU law enforcement and its types 2.3: EU (shared) law enforcement in different policy areas 2.4: EU enforcement and sanctions 2.5: Conclusion Chapter 3: New Actors on the Stage: The Emerging Role of the EU Agencies in Exercising Sanctioning Powers 3.1: Introduction 3.2: EU agencies: a brief overview 3.2.1: EU agencies: what’s in a name? Some methodological caveats for assessing the bodies under scrutiny… 3.2.2: … and some key-features particularly relevant for understanding their limits and potentialities in issuing sanctions 3.3: The agencies’ contribution to EU law enforcement. A theoretical perspective 3.3.1: EU agencies as a tool to force the ‘sanction conundrum’ of the EU 3.3.2: EU agencies as ever-changing creators of enforcement practices 3.4: An analytical taxonomy of EU agencies’ direct or indirect sanctioning powers 3.4.1: Collection and spread of information and best practices among national administrations 3.4.2: Monitoring activities and inspections that might bring to sanction issued by national or EU authorities 3.4.3: Power to propose to the Commission to impose fees 3.4.4: Assistance in the enforcement of EU law (a silent erosion of the Commission’s infringement powers?) 3.4.5: Power to impose fees (and the not-always-unlimited jurisdiction of the Court of Justice of the EU) 3.5: EU agencies’ contribution to the exercise of sanctioning power: current and future challenges Chapter 4: From Sanctions to Prevention, and Now Back to Sanctions? Article 7 TEU and the Protection of the EU Founding Values 4.1: Introduction 4.2: Article 7 TEU: an overview of the system 4.2.1: Article 7(1): clear risk of a serious breach 4.2.2: Article 7(2): serious and persistent breach 4.2.3: Article 7(3) and (4): sanctions 4.2.4: Article 7: concluding thoughts 4.3: From sanctions to prevention… 4.3.1: The origins of the procedure: a sanctions regime 4.3.2: The Haider case: moving towards prevention 4.3.3: The Commission’s Rule of Law Framework: doubling down on prevention 4.3.4: The Council Rule of Law Dialogue: a ‘culture’ of prevention? 4.4: …and now back to sanctions? 4.4.1: The new centrality of Article 7 4.4.2: New tools: rule of law conditionality 4.4.3: Reviving ‘old’ tools: the infringement procedure 4.5: Concluding remarks and possible future developments Chapter 5: Infringement Procedures and Sanctions under Art. 260 TFEU: Evolution, Limits and Future Prospects 5.1: Introduction 5.2: Evolution 5.2.1: Article 260(2) TFEU: nihil sub sole novum? 5.2.2: Article 260(3) TFEU: (some) clarity at last 5.2.2.1. The nature and purpose of the provision 5.2.2.2. The scope of the provision 5.2.2.3. The an and quantum of the sanctions 5.2.3: Article 279 TFEU: penalty payments as interim measures 5.2.3.1. The Court’s order of 20 November 2017 5.2.3.2. Did the Court see the full picture? 5.2.3.3. A more thoughtful reflection 5.3: Limits and future prospects Chapter 6: Fundamental Rights as Constraints to the Power of the European Union to Impose Sanctions 6.1: Introduction: the twofold relationship between fundamental rights and the power of the Union to impose sanctions 6.2: The duty of the Union to respect fundamental rights and its implications on the power to sanction 6.3: Substantive and procedural fundamental rights constraints in the sanctioning cycle: a mapping exercise 6.3.1: “Shaping” sanctions 6.3.2: Proceedings that may lead to the imposition of sanctions and related investigatory activities 6.3.3: Judicial review of sanctions 6.4: Concluding remarks Chapter 7: EU Sanctioning Power and the Principle of Proportionality 7.1: Introduction: proportionality and sanctions in EU law 7.2: EU sanctions and proportionality: the normative layer 7.2.1: EU direct sanctions 7.2.2: EU indirect sanctions: the adoption of common standards concerning the duty incumbent upon the Member States to sanction breaches of Union law 7.3: The judicial review of EU direct and indirect sanctions: the role of the Court of Justice 7.3.1: The judicial review of national measures: derogations from EU law 7.3.2: The judicial review of national measures: implementation of EU law 7.3.3: The judicial review of EU sanctions 7.4: Conclusions Chapter 8: Sanctions in the EMU Economic Pillar 8.1: Introduction 8.2: The structure of the EMU and the rationale for sanctions 8.3: “Hard” sanctioning powers in the EMU economic pillar 8.3.1: Sanctions under the Stability and Growth Pact 8.3.2: The Macroeconomic Imbalances Procedure 8.4: The limited application of sanctions: reasons and alternatives 8.4.1: Elements of flexibility in the sanctioning machinery 8.4.2: Enforcement by the market 8.4.3: Conditionality 8.5: Towards quasi-automatic enforcement? Reverse qualified majority voting 8.6: Conclusion Chapter 9: The Sanctioning Power of the ECB: From One to Several Regimes 9.1: Introduction 9.2: The distinct philosophy of the ECB’s monetary and prudential tasks 9.2.1: Monetary policy: favouring the market approach 9.2.2: Prudential policy: improving the regulatory approach 9.3: The duality and complexity of the two legal regimes 9.3.1: General power to sanction 9.3.2: The specific sanctioning power of the ECB in the prudential supervision area 9.4: The convergence of sanctioning procedures 9.4.1: Initiation and investigation phase 9.4.2: The decision on sanction and its administrative review 9.5: Concluding remarks Chapter 10: Restrictive Measures as Tools of EU Foreign and Security Policy: Promoting values, from Antiterrorism to Country Sanctions 10.1: Introduction 10.2: Normative synergies: promoting EU values through international sanctions 10.2.1: The two faces of Janus: a double qualification in EU and international law 10.2.2: EU restrictive measures as international sanctions 10.2.3: The double purpose of EU restrictive measures: respect for international law and EU values 10.3: The mechanics of normative exportation: linking EU values to international law 10.3.1: EU restrictive measures implementing UNSC counter-terrorism resolutions: exporting human rights to the international collective security system through the EU member States. – i. Member states obligations under EU and UN law: a combined reading. – ii. The coordination of the Union and the UN by their common Member States. 10.3.2: EU restrictive measures imposing autonomous sanctions in reaction to a treaty breach: exporting human rights, democracy and the rule of law to third-country partners 10.3.3: EU restrictive measures imposing autonomous sanctions in reaction to violations of customary international law: the case of massive human rights violations 10.4: Conclusions Chapter 11: Entering the Buffer Zone between Legality and Illegality: EU Autonomous Sanctions under International Law 11.1: Introduction: research question and structure of the chapter 11.2: Identifying the buffer zone in the law of sanctions in international law 11.3: An introduction to EU restrictive measures (sanctions) 11.4: Exploring the buffer zone 11.5: EU restrictive measures as third-party countermeasures adopted by non-injured entities 11.6: Concluding remarks Chapter 12: Sanctions in EU Competition Law: Ensuring Deterrence within the Decentralised Enforcement System of Articles 101 and 102 TFEU 12.1: Preliminary remarks 12.2: The optimal level of antitrust sanctions: a quest for the soul of competition policy 12.3: Sanctioning powers within the context of the “modernized” system of enforcement of Articles 101 and 102 TFEU 12.4: The margin of discretion conferred to the Commission (and NCAs): the standard of judicial review in competition cases 12.5: Setting sanctions in practice: the 2006 Fining Guidelines 12.6: The limited role played by intent and imputability in the antitrust realm 12.7: Negotiated remedies vis-à-vis individual sanctions: diverging trends? Chapter 13: Protecting the Environment through Union Sanctions: The Many Facets of the Enforcement of EU Environmental Law 13.1: Introduction 13.2: The EU environmental policy and rules as crafted at primary law level: converging principles to secure compliance 13.3: The multi-faceted scenario of enforcement of EU environmental law: enforcement on Member States and sanctions for non-fulfilment of the obligation to implement EU environmental directives 13.4: Interim measures and sanctions to protect the environment 13.5: Damages actions by individuals against Member States for breach of EU environmental law? 13.6: Enforcement on individuals: Directive 2004/35/EC on environmental liability (and related sanctions under Member States’ national laws) 13.7: The duty of Member States to enforce effective, proportionate and dissuasive penalties in case of infringement of EU environmental law as a general principle of EU law: detailed sanctions for breaches of the ETS regime and relevant CJEU case-law 13.8: Directive 2008/99/EC on the protection of the environment through criminal law: a point of arrival for sanctions in EU sectoral law or rules to be fine-tuned? 13.9: Concluding remarks Chapter 14: EU Sanctioning Powers and Data Protection: New Tools for Ensuring the Effectiveness of the GDPR in the Spirit of Cooperative Federalism 14.1: Introduction: the enforcement of EU data protection relies on a criminal justice model, a civil justice model, and an enforcement agency model 14.2: EU secondary laws on data protection 14.3: EU primary law provisions on data protection and the imperative to improve EU data protection 14.4: Independent and effective data protection authorities (DPAs) and the GDPR 14.5: Responsibilities, tasks and powers of DPAs (Articles 57-58-59 GDPR) 14.6: European and trans-border tasks and cooperation between DPAs (one stop-shop and EDPB) 14.7: Remedies 14.8: Overview of recent sanctioning practices 14.9: Creating supervisory convergence without creating new EU institutions (reflection 1) 14.10: The administrative enforcement fray and defence rights (reflection 2) 14.11: The role of criminal law in EU data protection law (reflection 3) 14.12: Conclusion: boost in administrative enforcement partly on cooperative federalist arrangements with open questions about how how the GDPR will be put into practice Index