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Shared Tasks, but Separated Controls: Building the System of Control for Shared Administration in an EU Multi-Jurisdictional Setting

  • Miroslava SCHOLTEN

Abstract

In order to address “wicked problems”, complex, multi-level governance structures must be established. These structures in turn require sophisticated systems of controls over public power to safeguard the rule of law. This seems to have been ignored in EU legislative practice and relevant research. This article argues that future research and legislative design of controls over public power in the EU need to be guided by the principle of connecting, aligning and making interplay between relevant concepts, institutions, procedures and scopes of different types of control belonging to the many jurisdictions, whose actors are involved in the executing of (shared) tasks in the EU. Connecting the disciplines that study these issues is a necessary prerequisite to this endeavour.

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Copyright

Footnotes

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Associate Professor of EU law, Utrecht University, member of the Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE); email: m.scholten@uu.nl. I would like to acknowledge the financial support of the Dutch Council for Scientific Research (NWO) under the “veni scheme” for writing this article.

Footnotes

References

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1 M Scholten and M Luchtman (eds), Law Enforcement by EU Authorities. Implications for Political and Judicial Accountability (Cheltenham, Edward Elgar 2017); M Eliantonio, “Judicial Review in an Integrated Administration: The Case of ‘composite procedures’” (2014) 7(2) Review of European Administrative Law 65; P Craig, EU Administrative Law (Oxford, Oxford University Press 2006).

2 M Luchtman and J Vervaele, “Exchange of information with EU and national enforcement authorities: Improving OLAF’s legislative framework through a comparison with other EU authorities” (OLAF 2018); Eliantonio, supra, note 1.

3 The essence of the rule of law can be characterised as the binding of the exercise of executive power to fixed rules, which allows a degree of certainty in predicting how and when that power will be exercised. In other words, the exercise of power becomes dependent on rules, instead of on the preferences and whims of those who exercise the power: D Sklansky, “Crime, Immigration, and Ad Hoc Instrumentalism” (2012) 15(2) New Criminal Law Review 157.

4 But see Craig’s EU administrative law books, starting from its first edition in 2006, discussing the issues of legal, political and financial accountability: Craig, supra, note 1.

5 In search of a complete list, we should consider that different types of controls can be and have been studied also through particular types of controlling institutions, such as, for instance, ombudsman: H Hofmann and J Ziller (eds), Accountability in the EU. The Role of the European Ombudsman (Cheltenham, Edward Elgar, 2017).

6 JP Olsen, Democratic Accountability, Political Order, and Change (Oxford, Oxford University Press 2017); Y Papadopoulos, “Accountability and Multi-level Governance: More Accountability, Less Democracy?” (2010) 33 West European Politics 1030; M Maggetti, “Legitimacy and Accountability of Independent Regulatory Agencies: A Critical Review” (2010) 2 Living Reviews in Democracy 1.

7 M Busuioc, “Accountability, Control and Independence: The Case of European Agencies” (2009) 15 European Law Journal 599.

8 M Scholten, The Political Accountability of EU and US Independent Regulatory Agencies (Leiden, Brill 2014); M Maggetti et al, “Having Your Cake and Eating It, Too: Can Regulatory Agencies Be Both Independent and Accountable?” (2013) 19 Swiss Political Science Review 1.

9 Busuioc, supra, note 7.

10 M Bovens, “Analysing and Assessing Public Accountability: A Conceptual Framework” (2007) 13 European Law Journal 447 at p 450.

11 M Busuioc, European Agencies: Law and Practices of Accountability (Delft, Eburon, 2010); Scholten, supra, note 8; C Moser, EU Civilian Crisis Management. Law and Practice of Accountability (Heidelberg, City-Druck 2018).

12 M Scholten et al, “The proliferation of EU enforcement authorities: a new development in law enforcement in the EU” in Scholten and Luchtman, supra, note 1, p 17.

13 GJ Brandsma, Controlling Comitology: Accountability in a Multi-level System (London, Palgrave Macmillan 2013) pp 50–53.

14 Papadopoulos, supra, note 6.

15 T Besley and M Ghatak, “Incentives, Choice, and Accountability in the Provision of Public Services” (2003) 19 Oxford Review of Economic Policy 235; S Gailmard, “Multiple principals and oversight of bureaucratic policy-making” (2009) 21(2) Journal of Theoretical Politics 161.

16 C Scott, “Accountability in the Regulatory State” (2000) 27(1) Journal of Law and Society 38; R Mulgan, Holding Power to Account: Accountability in Modern Democracies (London, Palgrave Macmillan, 2003).

17 M Scholten et al, “Political and judicial accountability in shared enforcement in the EU” in Scholten and Luchtman, supra, note 1.

18 JG Koppel, “Pathologies of accountability: ICANN and the challenge of ‘multiple accountabilities disorder’” (2005) 61(1) Public Administration Review 94 at p 105.

19 P Bundi, “Varieties of Accountability: How Attributes of Policy Fields Shape Parliamentary Oversight” (2018) 31(1) Governance 163.

20 See also Papadopoulos, supra, note 6.

21 F Blanc and G Ottimofiore, “The interplay of mandates and accountability in enforcement within the EU” in Scholten and Luchtman, supra, note 1, p 287.

22 F Brito Bastos, “Derivative Illegality in European Composite Administrative Procedures” (2018) 55 Common Market Law Review 101.

23 P Craig, “Shared Administration, Disbursement of Community Funds and the Regulatory State” in H Hofmann and A Türk (eds), Legal Challenges in EU Administrative Law: Towards an Integrated Administration (Cheltenham, Edward Elgar 2009) p 34; G Della Cananea, “The European Union’s Mixed Administrative Proceedings” (2004) 68 Law and Contemporary Problems 197; Eliantonio, supra, note 1; M Luchtman and J Vervaele, “European Agencies for Criminal Justice and Shared Enforcement (Eurojust and the European Public Prosecutor’s Office)” (2014) 10(5) Utrecht Law Review 132; M Luchtman (ed), Choice of Forum in Cooperation against EU Financial Crime – Freedom, Security and Justice and the Protection of Specific EU Interests (The Hague, Eleven 2013); M Luchtman, “Towards a Transnational Application of the Legality Principle in the EU’s Area of Freedom, Security and Justice?” (2013) 9(11) Utrecht Law Review 11; H Hofmann et al, Administrative Law and Policy of the European Union (Oxford, Oxford University Press 2011); A de Moor-van Vugt and R Widdershoven, “Administrative Enforcement” in J Jans et al (eds), Europeanisation of Public Law (Groningen, European Law Publishing 2015) p 263; R Widdershoven, “Developing Administrative Law in Europe: Natural Convergence or imposed Uniformity?” (2014) 7(5) Review of European Administrative Law 5; J Vervaele, “Transnational Cooperation of Enforcement Authorities in the Community Area” in J Vervaele (ed), Compliance and Enforcement of European Community Law (Alphen aan den Rijn, Wolters Kluwer 2009) p 361; M van Rijsbergen and M Scholten, “ESMA Inspecting: The Implications for Judicial Control under Shared Enforcement” (2016) 7 EJRR 569; G Rowe, “Administrative supervision of administrative action in the European Union” in Hofmann and Türk, above, p 136; R Widdershoven and P Craig, “Pertinent issues of judicial accountability in EU shared enforcement” in Scholten and Luchtman, supra, note 1, p 330.

24 But see Craig, supra, note 1; G Ter Kuile et al, “Tailor-made accountability within the Single Supervisory Mechanism” (2015) 52 Common Market Law Review 155; A Karagianni and M Scholten, “Accountability Gaps in the Single Supervisory Mechanism (SSM) Framework” (2018) 34(2) Utrecht Journal of International and European Law 185.

25 B Wolfers and T Voland, “Level the Playing Field: The New Supervision of Credit Institutions by the European Central Bank” (2014) 51 Common Market Law Review 1463.

26 H Hofmann and A Tuürk, “The Development of Integrated Administration in the EU and its Consequences” (2007) 13 European Law Journal 253 at p 267.

27 Brito Bastos, supra, note 22.

28 P Nicolaides, “Accountability of the ECB’s supervisory activities (SSM): evolving and responsive” (2019) Maastricht Journal of European and Comparative Law, forthcoming; Jans et al, supra, note 23.

29 Eliantonio, supra, note 1.

30 F Cacciatore and M Eliantonio, “Fishing in troubled waters. Shared enforcement of the Common Fisheries Policy and accountability gaps” in Scholten and Luchtman, supra, note 1, p 168.

31 Luchtman, supra, note 23; Luchtman and Vervaele, supra, note 23.

32 Luchtman and Vervaele, supra, note 2.

33 Scholten et al, supra, note 12.

34 M Scholten, “Mind the Trend! Enforcement of EU law has been moving to ‘Brussels’” (2017) 24(9) Journal of European Public Policy 1348; Scholten and Luchtman, supra, note 1.

35 J Vervaele, “Shared Governance and Enforcement of European Law: From Comitology to a Multi-level Agency Structure?” in C Joerges and E Vos, EU Committees: Social Regulation, Law and Politics (Oxford, Hart Publishing 1999) p 131.

36 Scholten et al, supra, note 17.

37 Scholten and Luchtman, supra, note 1.

38 L Wissink et al, “Shifts in Competences between Member States and the EU in the New Supervisory System for Credit Institutions and their Consequences for Judicial Protection” (2014) 10(5) Utrecht Law Review 92; Wolfers and Voland, supra, note 25; Ter Kuile et al, supra, note 24; T Duijkersloot et al, “Political and judicial accountability in the EU shared system of banking supervision and enforcement” in Scholten and Luchtman, supra, note 1, p 28; Karagianni and Scholten, supra, note 24; Nicolaides, supra, note 28, to name but a few.

39 Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions.

40 Duijkersloot et al, supra, note 38.

41 General Court (T-122/15), Landeskreditbank Baden-Württemberg v ECB.

42 Ibid; Ter Kuile et al, supra, note 24.

43 Karagianni and Scholten, supra, note 24.

44 ECA’s Special Report No 29/2016, “Single Supervisory Mechanism – Good start but further improvements needed”.

45 P Boers et al, “Wie controleert de toezichthouder? De meeste rekenkamers kunnen het banktoezicht niet controleren” (2012) 66(12) Internationale Spectator 609.

46 Prechal et al, “Introduction” in Jans et al, supra, note 23, p 3.

47 Hofmann et al, supra, note 23.

48 In the most recent landmark Case C-219/17 (Berlusconi), the Court of Justice determined its exclusive competence to review non-binding national preparatory measures taking part of an EU decision-making process. See also L Wissink, “CJEU moving towards integrated judicial protection?” EU Law Enforcement 30 April 2019, available at (eulawenforcement.com/?p=1567); Brito Bastos, supra, note 22.

49 M Luchtman and J Vervaele, “Investigatory powers and procedural safeguards – Improving OLAF’s legislative framework through a comparison with other EU law enforcement authorities (ECN/ESMA/ECB)” (Utrecht: Utrecht University, 2017). There are of course certain standards that NCAs must apply, irrespective of national law (Akzo Nobel judgment, ECLI:EU:T:2007:58) and the nemo tenetur principle (Orkem judgement, ECLI:EU:C:1989:387). See Luchtman, supra, note 23, on the discussion of implications from the choice of forum by public authorities in the EU.

50 K Cseres and A Outhuijse, “Parallel enforcement and accountability: the case of EU competition law” in Scholten and Luchtman, supra, note 1, p 82.

51 Jans et al, supra, note 23.

52 I am grateful to the anonymous reviewer for the suggestion on this point.

* Associate Professor of EU law, Utrecht University, member of the Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE); email: . I would like to acknowledge the financial support of the Dutch Council for Scientific Research (NWO) under the “veni scheme” for writing this article.

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