EU Law Enforcement The Evolution of Sanctioning Powers: The Evolution of Sanctioning Powers


EU (shared) Law Enforcement: Who Does What and How?IntroductionDefining EU law enforcement and its typesEU (shared) law enforcement in different policy areasEU enforcement and sanctionsConclusionNew Actors on the Stage: The Emerging Role of the EU Agencies in Exercising Sanctioning PowersIntroductionEU agencies: a brief overviewEU agencies: what's in a name? Some methodological caveats for assessing the bodies under scrutiny...… and some key-features particularly relevant for understanding their limits and potentialities in issuing sanctionsThe agencies’ contribution to EU law enforcement. A theoretical perspectiveEU agencies as a tool to force the 'sanction conundrum' of the EU?EU agencies as ever-changing creators of enforcement practicesAn analytical taxonomy of EU agencies’ direct or indirect sanctioning powersCollection and spread of information and best practices among national administrationsMonitoring activities and inspections that might bring to sanction issued by national or EU authoritiesPower to propose to the Commission to impose feesAssistance in the enforcement of EU law (a silent erosion of the Commission’s infringement powers?)Power to impose fees (and the not-always-unlimited jurisdiction of the Court of Justice of the EU)EU agencies’ contribution to the exercise of sanctioning power: current and future challengesFrom Sanctions to Prevention, and Now Back to Sanctions? Article 7 TEU and the Protection of the EU Founding ValuesIntroductionArticle 7 TEU: an overview of the systemArticle 7(1): clear risk of a serious breachArticle 7(2): serious and persistent breachArticle 7(3) and (4): sanctionsArticle 7: concluding thoughtsFrom sanctions to prevention...The origins of the procedure: a sanctions regimeThe Haider case: moving towards preventionThe Commission’s Rule of Law Framework: doubling down on preventionThe Council Rule of Law Dialogue: a ‘culture’ of prevention?…and now back to sanctions?The new centrality of Article 7New tools: rule of law conditionalityReviving ‘old’ tools: the infringement procedureConcluding remarks and possible future developmentsInfringement Procedures and Sanctions under Art. 260 TFEU: Evolution, Limits and Future ProspectsIntroductionEvolutionArticle 260(2) TFEU: nihil sub sole novum?Article 260(3) TFEU: (some) clarity at lastThe nature and purpose of the provisionThe scope of the provisionThe an and quantum of the sanctionsArticle 279 TFEU: penalty payments as interim measuresThe Court’s order of 20 November 2017Did the Court see the full picture?A more thoughtful reflectionLimits and future prospectsFundamental Rights as Constraints to the Power of the European Union to Impose SanctionsIntroduction: the twofold relationship between fundamental rights and the power of the Union to impose sanctionsThe duty of the Union to respect fundamental rights and its implications on the power to sanctionSubstantive and procedural fundamental rights constraints in the sanctioning cycle: a mapping exercise“Shaping” sanctionsProceedings that may lead to the imposition of sanctions and related investigatory activitiesJudicial review of sanctionsConcluding remarksEU Sanctioning Power and the Principle of ProportionalityIntroduction: proportionality and sanctions in EU lawEU sanctions and proportionality: the normative layerEU direct sanctionsEU indirect sanctions: the adoption of common standards concerning the duty incumbent upon the Member States to sanction breaches of Union lawThe judicial review of EU direct and indirect sanctions: the role of the Court of JusticeThe judicial review of national measures: derogations from EU lawThe judicial review of national measures: implementation of EU lawThe judicial review of EU sanctionsConclusionsSanctions in the EMU Economic PillarIntroductionThe structure of the EMU and the rationale for sanctions“Hard” sanctioning powers in the EMU economic pillarSanctions under the Stability and Growth PactThe Macroeconomic Imbalances ProcedureThe limited application of sanctions: reasons and alternativesElements of flexibility in the sanctioning machineryEnforcement by the marketConditionalityTowards quasi-automatic enforcement? Reverse qualified majority votingConclusionThe Sanctioning Power of the ECB: From One to Several RegimesIntroductionThe distinct philosophy of the ECB’s monetary and prudential tasksMonetary policy: favouring the market approachPrudential policy: improving the regulatory approachThe duality and complexity of the two legal regimesGeneral power to sanctionThe specific sanctioning power of the ECB in the prudential supervision areaThe convergence of sanctioning proceduresInitiation and investigation phaseThe decision on sanction and its administrative reviewConcluding remarksRestrictive Measures as Tools of EU Foreign and Security Policy: Promoting values, from Antiterrorism to Country SanctionsIntroductionNormative synergies: promoting EU values through international sanctionsThe two faces of Janus: a double qualification in EU and international lawEU restrictive measures as international sanctionsThe double purpose of EU restrictive measures: respect for international law and EU valuesThe mechanics of normative exportation: linking EU values to international lawEU restrictive measures implementing UNSC counter-terrorism resolutions: exporting human rights to the international collective security system through the EU member StatesEU restrictive measures imposing autonomous sanctions in reaction to a treaty breach: exporting human rights, democracy and the rule of law to third-country partnersEU restrictive measures imposing autonomous sanctions in reaction to violations of customary international law: the case of massive human rights violationsConclusionsEntering the Buffer Zone between Legality and Illegality: EU Autonomous Sanctions under International LawIntroduction: research question and structure of the chapterIdentifying the buffer zone in the law of sanctions in international lawAn introduction to EU restrictive measures (sanctions)Exploring the buffer zoneEU restrictive measures as third-party countermeasures adopted by non-injured entitiesConcluding remarksSanctions in EU Competition Law: Ensuring Deterrence within the Decentralised Enforcement System of Articles 101 and 102 TFEUPreliminary remarksThe optimal level of antitrust sanctions: a quest for the soul of competition policySanctioning powers within the context of the “modernized” system of enforcement of Articles 101 and 102 TFEUThe margin of discretion conferred to the Commission (and NCAs): the standard of judicial review in competition casesSetting sanctions in practice: the 2006 Fining GuidelinesThe limited role played by intent and imputability in the antitrust realmNegotiated remedies vis-à-vis individual sanctions: diverging trends?Protecting the Environment through Union Sanctions: The Many Facets of the Enforcement of EU Environmental LawIntroductionThe EU environmental policy and rules as crafted at primary law level: converging principles to secure complianceThe 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 directivesInterim measures and sanctions to protect the environmentDamages actions by individuals against Member States for breach of EU environmental law?Enforcement on individuals: Directive 2004/35/EC on environmental liability (and related sanctions under Member States’ national laws)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-lawDirective 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?Concluding remarksEU Sanctioning Powers and Data Protection: New Tools for Ensuring the Effectiveness of the GDPR in the Spirit of Cooperative FederalismIntroduction: the enforcement of EU data protection relies on a criminal justice model, a civil justice model, and an enforcement agency modelEU secondary laws on data protectionEU primary law provisions on data protection and the imperative to improve EU data protectionIndependent and effective data protection authorities (DPAs) and the GDPRResponsibilities, tasks and powers of DPAs (Articles 57-58-59 GDPR)European and trans-border tasks and cooperation between DPAs (one stop-shop and EDPB)RemediesOverview of recent sanctioning practicesCreating supervisory convergence without creating new EU institutions (reflection 1)The administrative enforcement fray and defence rights (reflection 2)The role of criminal law in EU data protection law (reflection 3)Conclusion: boost in administrative enforcement partly on cooperative federalist arrangements with open questions about how how the GDPR will be put into practice
 
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