Table Of ContentEu Law Enforcement
The Evolution of Sanctioning Powers
Routledge Research in EU Law
Available titles in this series include:
The Evolving EU Counter-terrorism Legal Framework
Maria O’Neill
The Early Warning System for the Principle of Subsidiarity
Constitutional Theory and Empirical Reality
Philipp Kiiver
The European Constitution, Welfare States and Democracy
The Four Freedoms vs. National Administrative Discretion
Christoffer C. Eriksen
New Governance and the European Strategy for Employment
Samantha Velluti
Human Rights and Minority Rights in the European Union
Kirsten Shoraka
Centralized Enforcement, Legitimacy and Good Governance in the EU
Melanie Smith
EU External Relations and Systems of Governance
The CFSP, Euro-Mediterranean Partnership and migration
Paul James Cardwell
The EU Social Market Economy and the Law
Theoretical Perspectives and Practical Challenges for the EU
Delia Ferri and Fulvio Cortese
Gender and the Court of Justice of the EU
Jessica Guth and Sanna Elfving
The EU and the Proliferation of Integration Principles under the Lisbon Treaty
Francesca. Ippolito, Maria Eugenia Bartoloni, Massimo Condinanzi
Migration Law and the Externalization of Border Controls
European State Responsibility
Anna Liguori
Member States Interests and European Union Law
Revisiting the Foundations of Member State Obligations
Marton Varju
https://www.routledge.com/Routledge-Research-in-EU-Law/book-series/ROUTEULAW
Edited by
Stefano Montaldo, Francesco Costamagna, Alberto Miglio
Eu Law Enforcement
The Evolution
of Sanctioning Powers
G. Giappichelli Editore
First published 2021
by Routledge
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ISBN: 978-88-921-3454-6 (hbk-G. Giappichelli Editore)
ISBN: 978-0-367-18640-1 (hbk-Routledge)
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by G. Giappichelli Editore, Turin, Italy
The manuscript has been subjected to the double blind peer review process prior to
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The publication of this book was funded by Fondazione Compagnia di San Paolo, in the
framework of the research project of the University of Turin “Offenders’ Rehabilitation
in the European Union”, coordinated by Prof. Stefano Montaldo.
CONTENTS
page
1. Introduction
Stefano Montaldo, Francesco Costamagna, Alberto Miglio 1
2. EU (shared) Law Enforcement: Who Does What and How?
Miroslava Scholten 7
2.1. In troduction 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. Co nclusion 22
3. New Actors on the Stage: The Emerging Role of the EU Agencies in Exercising
Sanctioning Powers
Jacopo Alberti 25
3.1. In troduction 25
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
VI Contents
page
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. In troduction 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 Art. 260 TFEU: Evolution,
Limits and Future Prospects
Luca Prete 71
5.1. In troduction 71
5.2. Ev olution 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
Contents VII
page
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. Co ncluding 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. Co nclusions 136
8. Sanctions in the EMU Economic Pillar
Francesco Costamagna, Alberto Miglio 139
8.1. In troduction 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
VIII Contents
page
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
Frédéric 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
values, from Antiterrorism to Country Sanctions
Charlotte Beaucillon 188
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 collec
tive 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
Contents IX
page
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-à-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
