EU Law Enforcement

1. Introduction

Stefano Montaldo, Francesco Costamagna, Alberto Miglio 1

2. EU (Shared) Law Enforcement: Who Does What and How?

Miroslava Scholten 7

2.1. Introduction 7

2.2. Defining EU law enforcement and its types 9

2.3. EU (shared) law enforcement in different policy areas 11

2.4. EU enforcement and sanctions 19

2.5. Conclusion 22

3. New Actors on the Stage: The Emerging Role of EU Agencies in Exercising Sanctioning Powers

Jacopo Alberti 25

3.1. Introduction 26

3.2. EU agencies: a brief overview 27

3.2.1. EU agencies: what's in a name? Some methodological caveats for assessing the bodies under scrutiny... 27

3.2.2. ... and some key-features particularly relevant for understanding their limits and potentialities in issuing sanctions 28

3.3. The agencies' contribution to EU law enforcement. A theoretical perspective 31

3.3.1. EU agencies as a tool to force the 'sanction conundrum' of the EU? 31

3.3.2. EU agencies as ever-changing creators of enforcement practices 33

3.4. An analytical taxonomy of EU agencies' direct or indirect sanctioning powers 35

3.4.1. Collection and spread of information and best practices among national administrations 35

3.4.2. Monitoring activities and inspections that might bring to sanction issued by national or EU authorities 36

3.4.3. Power to propose to the Commission to impose fees 37

3.4.4. Assistance in the enforcement of EU law (a silent erosion of the Commission's infringement powers?) 38

3.4.5. Power to impose fees (and the not-always-unlimited jurisdiction of the Court of Justice of the EU) 41

3.5. EU agencies' contribution to the exercise of sanctioning power: current and future challenges 44

4. From Sanctions to Prevention, and Now Back to Sanctions? Article 7 TEU and the Protection of the EU Founding Values

Matteo Bonelli 47

4.1. Introduction 48

4.2. Article 7 TEU: an overview of the system 49

4.2.1. Article 7(1): clear risk of a serious breach 50

4.2.2. Article 7(2): serious and persistent breach 50

4.2.3. Article 7(3) and (4): sanctions 51

4.2.4. Article 7: concluding thoughts 54

4.3. From sanctions to prevention... 54

4.3.1. The origins of the procedure: a sanctions regime 55

4.3.2. The Haider case: moving towards prevention 57

4.3.3. The Commission's Rule of Law Framework: doubling down on prevention 58

4.3.4. The Council Rule of Law Dialogue: a 'culture' of prevention? 60

4.4. ...and now back to sanctions? 61

4.4.1. The new centrality of Article 7 62

4.4.2. New tools: rule of law conditionality 63

4.4.3. Reviving 'old' tools: the infringement procedure 65

4.5. Concluding remarks and possible future developments 66

5. Infringement Procedures and Sanctions under Article 260 TFEU: Evolution, Limits and Future Prospects

Luca Prete 71

5.1. Introduction 71

5.2. Evolution 73

5.2.1. Article 260(2) TFEU: nihil sub sole novum? 74

5.2.2. Article 260(3) TFEU: (some) clarity at last 75

5.2.2.1. The nature and purpose of the provision 76

5.2.2.2. The scope of the provision 78

5.2.2.3. The an and quantum of the sanctions 80

5.2.3. Article 279 TFEU: penalty payments as interim measures 81

5.2.3.1. The Court's order of 20 November 2017 82

5.2.3.2. Did the Court see the full picture? 83

5.2.3.3. A more thoughtful reflection 85

5.3. Limits and future prospects 86

6. Fundamental Rights as Constraints to the Power of the European Union to Impose Sanctions

Nicole Lazzerini 93

6.1. Introduction: the twofold relationship between fundamental rights and the power of the Union to impose sanctions 94

6.2. The duty of the Union to respect fundamental rights and its implications on the power to sanction 97

6.3. Substantive and procedural fundamental rights constraints in the sanctioning cycle: a mapping exercise 102

6.3.1. "Shaping" sanctions 102

6.3.2. Proceedings that may lead to the imposition of sanctions and related investigatory activities 105

6.3.3. Judicial review of sanctions 108

6.4. Concluding remarks 113

7. EU Sanctioning Power and the Principle of Proportionality

Stefano Montaldo 115

7.1. Introduction: proportionality and sanctions in EU law 115

7.2. EU sanctions and proportionality: the normative layer 117

7.2.1. EU direct sanctions 117

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 121

7.3. The judicial review of EU direct and indirect sanctions: the role of the Court of Justice 125

7.3.1. The judicial review of national measures: derogations from EU law 125

7.3.2. The judicial review of national measures: implementation of EU law 128

7.3.3. The judicial review of EU sanctions 131

7.4. Conclusions 136

8. Sanctions in the EMU Economic Pillar

Francesco Costamagna, Alberto Miglio 139

8.1. Introduction 139

8.2. The structure of the EMU and the rationale for sanctions 140

8.3. "Hard" sanctioning powers in the EMU economic pillar 144

8.3.1. Sanctions under the Stability and Growth Pact 144

8.3.2. The Macroeconomic Imbalances Procedure 146

8.4. The limited application of sanctions: reasons and alternatives 148

8.4.1. Elements of flexibility in the sanctioning machinery 148

8.4.2. Enforcement by the market 151

8.4.3. Conditionality 153

8.5. Towards quasi-automatic enforcement? Reverse qualified majority voting 156

8.6. Conclusion 158

9. The Sanctioning Power of the ECB: From One to Several Regimes

Frederic Allemand 161

9.1. Introduction 161

9.2. The distinct philosophy of the ECB's monetary and prudential tasks 163

9.2.1. Monetary policy: favouring the market approach 163

9.2.2. Prudential policy: improving the regulatory approach 165

9.3. The duality and complexity of the two legal regimes 169

9.3.1. General power to sanction 170

9.3.2. The specific sanctioning power of the ECB in the prudential supervision area 173

9.4 The convergence of sanctioning procedures 178

9.4.1. Initiation and investigation phase 178

9.4.2. The decision on sanction and its administrative review 181

9.5. Concluding remarks 184

10. Restrictive Measures as Tools of EU Foreign and Security Policy: Promoting EU values, from Antiterrorism to Country Sanctions

Charlotte Beaucillon 187

10.1. Introduction 188

10.2. Normative synergies: promoting EU values through international sanctions 190

10.2.1. The two faces of Janus: a double qualification in EU and international law 190

10.2.2. EU restrictive measures as international sanctions 193

10.2.3. The double purpose of EU restrictive measures: respect for international law and EU values 195

10.3. The mechanics of normative exportation: linking EU values to international law 197

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. 197

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 202

10.3.3. EU restrictive measures imposing autonomous sanctions in reaction to violations of customary international law: the case of massive human rights violations 207

10.4. Conclusions 212

11. Entering the Buffer Zone between Legality and Illegality: EU Autonomous Sanctions under International Law

Andrea Spagnolo 215

11.1. Introduction: research question and structure of the chapter 215

11.2. Identifying the buffer zone in the law of sanctions in international law 216

11.3. An introduction to EU restrictive measures (sanctions) 220

11.4. Exploring the buffer zone 226

11.5. EU restrictive measures as third-party countermeasures adopted by non-injured entities 232

11.6. Concluding remarks 239

12. Sanctions in EU Competition Law: Ensuring Deterrence within the Decentralised Enforcement System of Articles 101 and 102 TFEU

Luca Calzolari 241

12.1. Preliminary remarks 241

12.2. The optimal level of antitrust sanctions: a quest for the soul of competition policy 242

12.3. Sanctioning powers within the context of the "modernized" system of enforcement of Articles 101 and 102 TFEU 245

12.4. The margin of discretion conferred to the Commission (and NCAs): the standard of judicial review in competition cases 249

12.5. Setting sanctions in practice: the 2006 Fining Guidelines 252

12.6. The limited role played by intent and imputability in the antitrust realm 257

12.7. Negotiated remedies vis-a-vis individual sanctions: diverging trends? 261

13. Protecting the Environment through Union Sanctions: The Many Facets of the Enforcement of EU Environmental Law

Francesco Munari 267

13.1. Introduction 268

13.2. The EU environmental policy and rules as crafted at primary law level: converging principles to secure compliance 269

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 271

13.4. Interim measures and sanctions to protect the environment 275

13.5. Damages actions by individuals against Member States for breach of EU environmental law? 276

13.6. Enforcement on individuals: Directive 2004/35/EC on environmental liability (and related sanctions under Member States' national laws) 277

13.7. The duty of Member States to enforce effective, proportionate and dissuasive penalties in case of an 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 281

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 still to be fine-tuned? 285

13.9. Concluding remarks 288

14. EU Sanctioning Powers and Data Protection: New Tools for Ensuring the Effectiveness of the GDPR in the Spirit of Cooperative Federalism

Paul De Hert 291

14.1. Introduction: the enforcement of EU data protection relies on a criminal justice model, a civil justice model, and an enforcement agency model 292

14.2. EU secondary laws on data protection 293

14.3. EU primary law provisions on data protection and the imperative to improve EU data protection 296

14.4. Independent and effective data protection authorities (DPAs) and the GDPR 300

14.5. Responsibilities, tasks and powers of DPAs (Articles 57-58-59 GDPR) 304

14.6. European and trans-border tasks and cooperation between DPAs (one-stop-shop and EDPB) 305

14.7. Remedies 308

14.8. Overview of recent sanctioning practices 310

14.9. Creating supervisory convergence without creating new EU institutions (reflection 1) 312

14.10. The administrative enforcement fray and defence rights (reflection 2) 314

14.11. The role of criminal law in EU data protection law (reflection 3) 320

14.12. Conclusion: boost in administrative enforcement partly on cooperative federalist arrangements with open questions about how the GDPR will be put into practice 323

Index 325