EU Law Enforcement

Dr Stefano Montaldo is Associate Professor of EU Law at the University of Turin, Italy. Dr Francesco Costamagna is Associate Professor of EU Law, University of Turin; Affiliate, Collegio Carlo Alberto, Italy.Dr Alberto Miglio is Postdoctoral Researcher in EU Law, University of Turin, Italy.

• 1. IntroductionStefano Montaldo, Francesco Costamagna, Alberto Miglio 12. EU (Shared) Law Enforcement: Who Does What and How?Miroslava Scholten 72.1. Introduction 72.2. Defining EU law enforcement and its types 92.3. EU (shared) law enforcement in different policy areas 112.4. EU enforcement and sanctions 192.5. Conclusion 223. New Actors on the Stage: The Emerging Role of EU Agencies in Exercising Sanctioning PowersJacopo Alberti 253.1. Introduction 263.2. EU agencies: a brief overview 273.2.1. EU agencies: what’s in a name? Some methodological caveats for assessing the bodies under scrutiny… 273.2.2. … and some key-features particularly relevant for understanding their limits and potentialities in issuing sanctions 283.3. The agencies’ contribution to EU law enforcement. A theoretical perspective 313.3.1. EU agencies as a tool to force the ‘sanction conundrum’ of the EU? 313.3.2. EU agencies as ever-changing creators of enforcement practices 333.4. An analytical taxonomy of EU agencies’ direct or indirect sanctioning powers 353.4.1. Collection and spread of information and best practices among national administrations 353.4.2. Monitoring activities and inspections that might bring to sanction issued by national or EU authorities 363.4.3. Power to propose to the Commission to impose fees 373.4.4. Assistance in the enforcement of EU law (a silent erosion of the Commission’s infringement powers?) 383.4.5. Power to impose fees (and the not-always-unlimited jurisdiction of the Court of Justice of the EU) 413.5. EU agencies’ contribution to the exercise of sanctioning power: current and future challenges 444. From Sanctions to Prevention, and Now Back to Sanctions? Article 7 TEU and the Protection of the EU Founding ValuesMatteo Bonelli 474.1. Introduction 484.2. Article 7 TEU: an overview of the system 494.2.1. Article 7(1): clear risk of a serious breach 504.2.2. Article 7(2): serious and persistent breach 504.2.3. Article 7(3) and (4): sanctions 514.2.4. Article 7: concluding thoughts 544.3. From sanctions to prevention… 544.3.1. The origins of the procedure: a sanctions regime 554.3.2. The Haider case: moving towards prevention 574.3.3. The Commission’s Rule of Law Framework: doubling down on prevention 584.3.4. The Council Rule of Law Dialogue: a ‘culture’ of prevention? 604.4. …and now back to sanctions? 614.4.1. The new centrality of Article 7 624.4.2. New tools: rule of law conditionality 634.4.3. Reviving ‘old’ tools: the infringement procedure 654.5. Concluding remarks and possible future developments 665. Infringement Procedures and Sanctions under Article 260 TFEU: Evolution, Limits and Future ProspectsLuca Prete 715.1. Introduction 715.2. Evolution 735.2.1. Article 260(2) TFEU: nihil sub sole novum? 745.2.2. Article 260(3) TFEU: (some) clarity at last 755.2.2.1. The nature and purpose of the provision 765.2.2.2. The scope of the provision 785.2.2.3. The an and quantum of the sanctions 805.2.3. Article 279 TFEU: penalty payments as interim measures 815.2.3.1. The Court’s order of 20 November 2017 825.2.3.2. Did the Court see the full picture? 835.2.3.3. A more thoughtful reflection 855.3. Limits and future prospects 866. Fundamental Rights as Constraints to the Power of the European Union to Impose SanctionsNicole Lazzerini 936.1. Introduction: the twofold relationship between fundamental rights and the power of the Union to impose sanctions 946.2. The duty of the Union to respect fundamental rights and its implications on the power to sanction 976.3. Substantive and procedural fundamental rights constraints in the sanctioning cycle: a mapping exercise 1026.3.1. "Shaping" sanctions 1026.3.2. Proceedings that may lead to the imposition of sanctions and related investigatory activities 1056.3.3. Judicial review of sanctions 1086.4. Concluding remarks 1137. EU Sanctioning Power and the Principle of ProportionalityStefano Montaldo 1157.1. Introduction: proportionality and sanctions in EU law 1157.2. EU sanctions and proportionality: the normative layer 1177.2.1. EU direct sanctions 1177.2.2. EU indirect sanctions: the adoption of common standards concerning the duty incumbent upon the Member States to sanction breaches of Union law 1217.3. The judicial review of EU direct and indirect sanctions: the role of the Court of Justice 1257.3.1. The judicial review of national measures: derogations from EU law 1257.3.2. The judicial review of national measures: implementation of EU law 1287.3.3. The judicial review of EU sanctions 1317.4. Conclusions 1368. Sanctions in the EMU Economic PillarFrancesco Costamagna, Alberto Miglio 1398.1. Introduction 1398.2. The structure of the EMU and the rationale for sanctions 1408.3. "Hard" sanctioning powers in the EMU economic pillar 1448.3.1. Sanctions under the Stability and Growth Pact 1448.3.2. The Macroeconomic Imbalances Procedure 1468.4. The limited application of sanctions: reasons and alternatives 1488.4.1. Elements of flexibility in the sanctioning machinery 1488.4.2. Enforcement by the market 1518.4.3. Conditionality 1538.5. Towards quasi-automatic enforcement? Reverse qualified majority voting 1568.6. Conclusion 1589. The Sanctioning Power of the ECB: From One to Several RegimesFrédéric Allemand 1619.1. Introduction 1619.2. The distinct philosophy of the ECB’s monetary and prudential tasks 1639.2.1. Monetary policy: favouring the market approach 1639.2.2. Prudential policy: improving the regulatory approach 1659.3. The duality and complexity of the two legal regimes 1699.3.1. General power to sanction 1709.3.2. The specific sanctioning power of the ECB in the prudential supervision area 1739.4 The convergence of sanctioning procedures 1789.4.1. Initiation and investigation phase 1789.4.2. The decision on sanction and its administrative review 1819.5. Concluding remarks 18410. Restrictive Measures as Tools of EU Foreign and Security Policy: Promoting EU values, from Antiterrorism to Country SanctionsCharlotte Beaucillon 18710.1. Introduction 18810.2. Normative synergies: promoting EU values through international sanctions 19010.2.1. The two faces of Janus: a double qualification in EU and international law 19010.2.2. EU restrictive measures as international sanctions 19310.2.3. The double purpose of EU restrictive measures: respect for international law and EU values 19510.3. The mechanics of normative exportation: linking EU values to international law 19710.3.1. 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. 19710.3.2. 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 20210.3.3. EU restrictive measures imposing autonomous sanctions in reaction to violations of customary international law: the case of massive human rights violations 20710.4. Conclusions 21211. Entering the Buffer Zone between Legality and Illegality: EU Autonomous Sanctions under International LawAndrea Spagnolo 21511.1. Introduction: research question and structure of the chapter 21511.2. Identifying the buffer zone in the law of sanctions in international law 21611.3. An introduction to EU restrictive measures (sanctions) 22011.4. Exploring the buffer zone 22611.5. EU restrictive measures as third-party countermeasures adopted by non-injured entities 23211.6. Concluding remarks 23912. Sanctions in EU Competition Law: Ensuring Deterrence within the Decentralised Enforcement System of Articles 101 and 102 TFEULuca Calzolari 24112.1. Preliminary remarks 24112.2. The optimal level of antitrust sanctions: a quest for the soul of competition policy 24212.3. Sanctioning powers within the context of the "modernized" system of enforcement of Articles 101 and 102 TFEU 24512.4. The margin of discretion conferred to the Commission (and NCAs): the standard of judicial review in competition cases 24912.5. Setting sanctions in practice: the 2006 Fining Guidelines 25212.6. The limited role played by intent and imputability in the antitrust realm 25712.7. Negotiated remedies vis-à-vis individual sanctions: diverging trends? 26113. Protecting the Environment through Union Sanctions: The Many Facets of the Enforcement of EU Environmental LawFrancesco Munari 26713.1. Introduction 26813.2. The EU environmental policy and rules as crafted at primary law level: converging principles to secure compliance 26913.3. 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 27113.4. Interim measures and sanctions to protect the environment 27513.5. Damages actions by individuals against Member States for breach of EU environmental law? 27613.6. Enforcement on individuals: Directive 2004/35/EC on environmental liability (and related sanctions under Member States’ national laws) 27713.7. 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 28113.8. 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? 28513.9. Concluding remarks 28814. EU Sanctioning Powers and Data Protection: New Tools for Ensuring the Effectiveness of the GDPR in the Spirit of Cooperative FederalismPaul De Hert 29114.1. Introduction: the enforcement of EU data protection relies on a criminal justice model, a civil justice model, and an enforcement agency model 29214.2. EU secondary laws on data protection 29314.3. EU primary law provisions on data protection and the imperative to improve EU data protection 29614.4. Independent and effective data protection authorities (DPAs) and the GDPR 30014.5. Responsibilities, tasks and powers of DPAs (Articles 57-58-59 GDPR) 30414.6. European and trans-border tasks and cooperation between DPAs (one-stop-shop and EDPB) 30514.7. Remedies 30814.8. Overview of recent sanctioning practices 31014.9. Creating supervisory convergence without creating new EU institutions (reflection 1) 31214.10. The administrative enforcement fray and defence rights (reflection 2) 31414.11. The role of criminal law in EU data protection law (reflection 3) 32014.12. Conclusion: boost in administrative enforcement partly on cooperative federalist arrangements with open questions about how the GDPR will be put into practice 323Index 325