The Mix Enforcement Project

The Mix Enforcement Project is an expression of the second research theme: the policy cycle in the EU and its Member States. The Mix Enforcement Project researches issues of shared regulation and enforcement regimes along both the public-private and the European-national axes. The goal of the project is to gain more insight into the variables that determine which enforcement instruments are best suited to achieve a given set of enforcement goals.

Part I – Shared private-public regulatory and enforcement regimes

Two subthemes are used to cover the broad subject-matter of the Mix Enforcement Project. The first part is concerned with the relationship between public and private regulation, for example the way in which governments stimulate selfregulation or co-regulation by private actors, combined with public ‘command and control’ legislation.

A number of research reports have been published in the last few years which were initiated with the objective of mapping the causes of failed supervision. Examples are: Icesave (research by UvA), Baby Jelmer (the Dutch Ombudsman, researching the position of one of the health care regulators), and Environment Service IJmond (failed supervision by the Environmental Inspectorate of Rijnmond, which has gone to court). These reports usually conclude that supervision in that specific area has failed (to a greater or lesser degree) and needs to be adapted, thereby increasing the need for more supervision. At the same time these reports prompt others to scrutinize supervisory authorities. This increases the need for more accountability: the authorities need to clarify how they deploy their resources and whether they work effectively. Results must be measurable.

Moreover, the resources available to supervisory authorities and enforcement agencies have decreased significantly due to the financial crisis. Supervisory authorities are also looking for ways to decrease the costs of regulation. This has led to alternative enforcement strategies, in which public and private cooperation is pivotal in the use of enforcement instruments (see Ottow, ‘De Markt Meester?’ Inaugural Speech UU, 2007). On the other hand, there are sectors in which private enforcement regimes have been replaced or supplemented by public enforcement strategies. These ‘mixed regulatory strategies’ are meant to enable enforcement authorities to achieve better results, often with fewer means. The research in this subtheme will, amongst other forms, include the mapping of these ‘alternative’ forms of regulation. Both theory-generation and the case-study method will be applied in different policy sectors (such as the financial sector or healthcare) to discern which factors contribute to an optimal mix of regulation and enforcement instruments.

The research questions of the first subtheme can be summarized as follows:

  • Which enforcement strategies can be identified?
  • What kind of enforcement mix (public/private) is used?
  • Which factors are of influence, and which instruments have been chosen?
  • Which conditions can be identified to effectuate these instruments?
  • What lessons can be learned from the shift from private to public (a reverse shift)?
  • What lessons can be learned for policy makers in general?

Part II – Shared national-European regulatory and enforcement regimes

The primarily horizontal focus of subtheme one is complemented by the more vertical method of the second subtheme. The latter theme is concerned with the interaction between European enforcement regimes and their national counterparts and/or implementation. De strategies Europe has devised range from direct enforcement in e.g. competition law, to harmonized legislation and forms of national enforcement. There is a clear trend in many fields of European regulation, in which supervisors form networks and collaborate, or in which international networks are transformed into European supervisory authorities. This collaboration is initiated in order to coordinate enforcement and to harmonize enforcement practices. Sectors that have followed this trend are, for instance, environmental protection, consumer protection, energy, the financial sector and telecom. Even though institutional and procedural autonomy is the starting point, the influence of European law on the activities and strategies of supervisory authorities is great (a process called Europeanization). This makes regulation and supervision a complicated field of study, in which there is a ‘mixed administration’ with a ‘multi-layered legal order’:

Level 1: Supervision and enforcement is carried out by national authorities, but with the clear influence of European law.

Level 2: Networks of national authorities have been created which exert (informal) influence on each other’s national practices.

Level 3: European supervisory authorities have been created, with binding (or non-binding) powers. In some cases, there is even a transfer of powers from the national to the European level.

The objective of subtheme two is therefore to gain insight into the variables that determine which enforcement instruments are most suitable for attaining certain enforcement goals. Similar to the first theme, a combination of theory-generation and the case study method will be applied to different sectors, ranging from the European Public Prosecutor to contract law, to research which factors contribute to such an optimal mix. The research questions of the second subtheme can be summarized as:

  • Which forms of shared enforcement can be identified?
  • Which goals of regulation are relevant?
  • How is ‘governance’ incorporated in shared enforcement?
  • How does this shared enforcement work from an institutional / safeguarding point of view?
Image source: European Parliament, license CC BY-NC-ND 2.0.