Europeanization of the Supervision of Competitive Markets

Abstract

Over the past two decades, the Member States have seen many different market regulators being set up under the influence of European law. Market liberalization has resulted in regulatory authorities being created for the purposes of monitoring the liberalization process and promoting competition. These play a key role in implementing and enforcing European rules. Although the work of these national regulatory authorities is based on the principles of institutional and procedural autonomy, European law has a major impact on their activities and how they operate. This 'Europeanization' is multifaceted and does not always manifest itself in the same way in the various regulatory authorities. In addition to the influence of European law at a national level (level 1), various European networks of national regulators (level 2) have also been set up over the years, and these are playing a role in the further harmonization, implementation, and enforcement of European law. A recent development has been the establishment of European regulatory authorities (level 3) alongside the national regulatory authorities and to which are being assigned European powers. These three different levels make the European regulatory landscape highly complex. An institutional structure for coordination has been created, as a result of which a mixed administration, with national and European elements, is now in operation. This article analyses this three-layered legal order in the area of market supervision.

Mind the trend! Enforcement of EU law has been moving to ‘Brussels’

“…Since this field is understudied, it is unclear how far EEAs are exposed to the problems faced by national enforcement authorities (such as a lack of resources) or whether they could face additional challenges, e.g., an impossibility to oversee the extensive EU territory or less trust by the supervised in arguably less legitimate and trusted EU entities. Networks of enforcement authorities bring together national counterparts and the Commission, and could be used as a venue for promoting convergence and 'naming and shaming' when it comes to late and incorrect transposition, non-application and problematic enforcement in terms of an unwillingness to co-operate and enforce and a lack of resources (Ottow 2012). Since these structures have predominately co-ordinating rather than strong direct enforcement powers, their enforcement capacity can be limited (e.g., the case of three financial networks in the EU [Scholten and Ottow 2014]).…”

“…This is because the seven EEAs have gained far-reaching enforcement powers vis-à-vis private actors, but they do not completely replace national enforcement authorities. Rather, enforcement powers have become increasingly shared between EU and national authorities (Della Cananea 2004;Hofmann 2009;Ottow 2012;Prechal et al 2015). However, EU and national systems of democratic and judicial control over EU law enforcement remain strictly separated: national parliaments and courts for national authorities, the EU parliament and courts for EEAs.…”