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Enforcement of EU Law: is there anything new under the sun? (PART 1) – Dr Melanie Smith and Dr Sara Drake

5 September 2014

There is little positive commentary in the media regarding the enforcement of EU obligations (or the EU more generally of course) despite the fact that member states’ infringements tend to undermine citizens’ rights: from air passenger rights to holiday pay, to clean beaches and cleaner air, EU enforcement has generally been a force for rights’ protection. Despite this, where such stories are reported in the media, a negative tone persists. More often we hear rather hysterical stories of vacuum cleaner regulations being perceived as the main focus of Brussels’ bureaucrats, rather than the realisation of rights which national governments have already committed to through legislation at the EU level. Neither do we hear of the efforts of the European Court of Justice in Luxembourg or our national courts in endeavouring (successfully for the most part) to effectively protect rights granted to citizens by EU law, often where these rights have been infringed by the Member States themselves.

Media reports on enforcement of EU law tend to focus on the specific path of (public) Commission enforcement through infringement proceedings against member states or large corporations, particularly where they may have been subject to large financial sanctions for non-compliance. However, enforcement of EU law is not a single topic but rather it is filled with a myriad of different, overlapping, complex, complementary, and potentially conflicting measures across multiple policy sectors. In reality, there are multiple enforcement measures scattered throughout legislative instruments and case law in a range of policy sectors requiring the involvement of multiple actors, that all contribute to ensuring citizens can assert and experience their EU rights, but research tends to tackle the workings of these mechanisms separately without reference to the enforcement framework as a whole.

From an academic perspective there is a multi-disciplinary interest with lawyers and political scientists taking quite different approaches to researching the topic. Although each singular discipline is capable of producing interesting work on enforcement, surely there is a case to be made for more inter-disciplinary collaboration in this area. Compliance studies need to understand the legal, normative and process frameworks that, for example, shape the production of statistics on non-compliance which political scientists rely on to pose hypothesis and draw conclusions. Lawyers would similarly benefit from stepping outside the bounded questions posed by command and control models of enforcement based on adherence to the rule of law to understand the rich interplay of actors and governance measures than contribute to the increasingly complex picture of EU law enforcement.

This call to arms for lawyers and political scientists to talk to rather than across each other’s research, in order to unpack the concept of effective enforcement in EU law, is to be the theme running through the forthcoming Jean Monnet Centre of Excellence workshop to be held at Cardiff School of Law and Politics on 8 September. This inter-disciplinary workshop on New Directions in Effective Enforcement of EU Law and Policy comprises scholars from across the EU and beyond whose aim is to, firstly map the byzantine architecture of EU law enforcement both public and private and across policy sectors, and secondly, to understand what each disciplinary approach can bring to the other in the study of effective enforcement. The workshop seeks to address the question as to whether there are innovations in enforcement that are hidden away in particular policy fields which could be deployed more widely, and analyse the utility of existing mechanisms of enforcement across the Union. It will cover the traditional routes of public and private enforcement but will also drill down into sector specific issues relating to environment, Common Foreign and Security Policy, Justice, Network enforcement and technological solutions such as the IMI and SOLVIT in the internal market, consumer policy and collective redress.