The Conceptual, Constitutional and Theoretical Foundations of Shared Regulation and Enforcement for a stronger Europe

How do we conceptualize the core notions involved in the RENFORCE research program and how do they relate to one another and other relevant concepts:

• Regulation
• Enforcement
• Effectiveness
• Coherence
• Legitimacy
• Core values (art. 2 TEU values, a.o.)
• General global interests / protection of the commons
• Peace/security
• Well-being; social market economy, (social) justice, etc.

Within this part of the research, the focus will first of all be on the identification of which (other) key conceptual notions arise within the various building blocks that would require more fundamental research (e.g. also discretion, coherency, Union loyalty, etc)? 

In a second step, it will seek to map and identify how these concepts have so far been conceptualised in the framework of the various building blocks and other research projects carried out within RENFORCE and following which methodological approach (including PhDs, individual articles, 2nd and 3rd money stream projects). In a third step, it will be important to see how the different conceptualizations compare with one another and which ones may be considered more convincing than others, taking also into account the aforementioned law in context and living constitution starting points for the analysis and the theoretical perspectives that can be taken on these or applied to them. In a final step, what does this add to our ‘classic’ understanding of key notions/concepts/principles within the framework of regulation and enforcement in the shared and multi-level European legal order?

The study of such concepts has included amongst others core values and sovereignty (Van den Brink, Luchtman & Scholten, Sovereignty in the Shared Legal Order of the EU. Core Values of Regulation and Enforcement, Intersentia 2015; Jaremba, ‘Non-Economic Values and Objectives in EU Trade Policy: Different Models of Externalization and Enforcement’, in Weiß & Furculita (eds), Global Politics and EU Trade Policy – Facing the Challenges to a Multilateral Approach. European Yearbook of International Economic Law, 2020, 163-184); (private) regulation and enforcement (Scholten, ‘Mind the Trend! Enforcement of EU law has been Moving to Brussels’, JEPP 24(9), 2017, 1348-1366 and De Cock Buning and Senden (eds), Private Regulation and Enforcement in the EU - Finding the Right Balance from a Citizen’s Perspective, Hart 2020); the social market economy (Pennings and Gerbrandy, Utrecht Law Review 15(2), 2019, Special Issue); sustainability and social inclusion (Janssen, Tijdschrift voor Bouwrecht 2, 2021, Special Issue; Manunza & Meershoek, ‘Fostering the Social Market Economy through Public Procurement? Legal Impediments for New Types of Economy Actors’, Public Procurement Law Review 6, 2020, 343-358); legitimacy/accountability/effectiveness (Scholten & Luchtman (eds), Law Enforcement by EU Authorities - Political and Judicial Accountability in Shared Enforcement, Elgar 2017; Van Rijsbergen, Legitimacy and Effectiveness of ESMA’s Soft Law, Elgar 2021); security (Meershoek, ‘The Constraints of Power Structures on EU Integration and Regulation of Military Procurement’, European Papers 6(1), 2021, 831-868). Currently, two working papers are being finalised, focusing on the concepts of coherency and effectiveness and legitimacy.

Within the various RENFORCE building blocks, empirical insights, as well as insights from legal practice and doctrine, have been gained as to the choice for certain regulatory and enforcement approaches, arrangements and tools within different policy sectors, at the public as well as the private levels of regulation and enforcement.

This part of the project envisages connecting these findings to theoretical insights and approaches as to regulatory and enforcement choice.  It will scrutinize more in-depth the key drivers for the choice for regulatory and enforcement approaches/arrangements/tools and investigate what the role of the law is in making such choices in particular in its instrumental function, vis-à-vis other determinants at the micro- meso- and macro levels of instrumental choice and in view of smart/optimal mix and other theories.

At the macro-level, the factors of time and place are important; at the meso-level, policy sector specificities and path dependency for example; and at the micro-level, personal and cultural elements may play a role for instance. Gaining more insights into these aspects is relevant with a view to developing solutions and making proposals for better regulatory and enforcement approaches in certain fields and assessing the potential of cross-sectoral spill-over and learning effects and the identification of best or good practices. It is also key to determine what knowledge is necessary to make the law function well and who is to decide on that and how, at the stage of development and application of the law.

Connected to that, within this framework it will also be further explored how we currently assess and evaluate policy effectiveness or effectiveness of regulatory and enforcement approaches and arrangements within the various RENFORCE building blocks. Next, how could such evaluation be enhanced and what can be seen to be the role of the law in this regard?

Key output is Senden, ‘Smart’ Public-Private Complementarities in the Transnational Regulatory and Enforcement Space’, in Van Erp et al. (eds), Smart Mixes for Transboundary Environmental Harm, Cambridge University Press, 2018, 25-48 and De Cock Buning & Senden, ‘Conclusions […]’, in De Cock Buning & Senden (eds.), Private Regulation and Enforcement in the EU - Finding the Right Balance from a Citizen’s Perspective, Hart 2020, 519-562. Van Kreij’s PhD research sets elementary steps towards a framework that brings together prominent theoretical insights from the legal and political disciplines, to discuss their combined leverage for understanding the EU legislator's choice for these enforcement regimes: ‘Towards a Comprehensive Framework for Understanding EU Enforcement Regimes’, European Journal of Risk Regulation 10(3), 2019, 439-457. Once regulatory and enforcement choices are made, the importance of subsequent consistency, coherency and certainty is explored fundamentally by Janssen in his PhD EU Public Procurement Law & Self-Organisation (Eleven 2018). In her (to be defended in fall 2022) PhD, Bouwman addresses the importance of setting clear demarking lines between legal instruments to multiply the positive effects of coherent regulation and enforcement: Choosing Legal Instruments in the Social Domain - Demarking Lines Between Public Procurement & Subsidy, Limited Authorisation Schemes, Concessions and Open House).

Within the various building blocks, empirical insights and insights from legal practice and doctrine have also been gained as to the balancing act that takes place within different policy sectors as to the assessment and weighing of different values, interests, principles and rights vis-à-vis realising the policy objectives of the specific law or legislation that has been put in place, at the national, EU and/or international levels.

Importantly, the values of the EU have not only accrued over the past decades, as a consequence inter alia of the entry into force of the Treaty of Lisbon and the Charter of Fundamental Rights, but their appreciation and weight have also shifted over time, which may lead quite some conflicting situations in practice in which it may be difficult to decide as to what interest, right or values is to prevail.

This part of the project will thus focus on the guarantee function of the law and consider more specifically how then are the different values balanced vis-à-vis not only the policy effectiveness interest but also vis-à-vis one another in the framing of regulatory and enforcement arrangements in different policy sectors and how should these be - better - balanced?

Addressing this issue at a more fundamental level is key to answering not only the main question of RENFORCE but also to realise the underlying goal of our research contributing to the goal of a European society that enjoys peace, is provided with protection of core values and whose well-being is ensured. 

This raises a host of more specific questions:

• What insights does the ongoing RENFORCE research in the different policy fields reveal as to how this balancing act is conducted; are the same/similar/different tests applied for this and if so, what explanations can be found for this?
• Do the RENFORCE and other doctrinal research reveal that in the shaping of regulatory and enforcement arrangements there is a hierarchy of values; that some core values are carrying more weight than others and if so, why? Which values are of a mandatory nature and which are not (cf. AG Bot in Bauer case)? What insights (explanations and/or justifications) may legal theory (e.g. human rights, justice), socio-economic or other theories provide for such differences in weight?
• What is the impact of the answers to the previous questions on private actors/regulators/enforcers, especially where a legal duty of ensuring protection is being imposed on them; what support – if any - can be found for such horizontal effect of EU rights and principles in legal and other theories? 
• What is the best level for determining the prioritisation of values, from constitutional or other perspectives?
• How are policy integration/mainstreaming duties put into practice and how can they be enhanced to ensure better protection of core values in and across policy sectors? Especially in areas in which so far protection of certain values is not speaking for itself or is only gradually being introduced, e.g. in competition law, EMU, etc.; and by comparing these areas of law with those where this protection is a fundamental aim of the whole legal system, e.g. in public procurement law, and investigating the reasons for the different approach. How can institutional, constitutional, human rights theories or others be helpful in this regard?

Relevant publications include Phoa’s PhD thesis (cum laude), 'EU Law as a Creative Process - a Hermeneutic Approach for the EU Internal Market and Fundamental Rights Protection' (Europa Law Publishing 2021), which takes an original approach towards a better understanding of the CJEU approach in balancing of economic and fundamental rights. Within the various building blocks empirical insights and insights from legal practice and doctrine have also been gained as to balancing of various public interests, values, principles or rights. A key output here is the Special issue of the Utrecht Law Review as introduced by Pennings, ‘How do Social and Economic Rights Relate to Each Other in the Social Market Economy: An Introduction to this Special Issue’, Utrecht Law Review 15(2), 2019, 1-15. In the field of security, a multidimensional research commissioned by the Ministry of Defence has explored the balancing act between security and internal market interests and the constitutional foundations for the development of more adaptive armed forces: Manunza, Meershoek & Senden, ‘Het Ecosysteem voor de Militair-logistieke Capaciteiten van de Adaptieve Krijgsmacht: In het Licht Bezien van het NAVO-Verdrag, de EU-Verdragen en het Nationale Aanbestedings- en Mededingingsrecht, 2020. The issue of policy integration/mainstreaming duties has been addressed in Janssen and Bouwman, ‘Legislating Societal Value into Dutch Public Procurement Law: Symbolism or Substance?’, Public Procurement Law Review 2, 2020; Gerbrandy, ‘Rethinking Competition Law within the European Economic Constitution’,  JCMS 57(1), 2019, 127-142; Kozak, ‘Competition Law and the COVID-19 Pandemic – Towards More Room for Public Interest Objectives?’, Utrecht Law Review 17(3), 2021, 118-129; Manunza, ‘Achieving a Sustainable and Just Society through Public Procurement? On the Limits of the Principles of Equal Treatment and Transparency and Relative Scoring’, in Manunza & Schotanus (eds), The Art of Public Procurement, 2018, 139-158.

A final element that could be addressed within this project concerns the relevance and meaning of the notion of ‘trust’ for ensuring good regulation and enforcement in the shared European legal order. Trust is crucial in - shaping - all relationships and in ensuring that the law will be able to meet its instrumental and guarantee goals in regulatory and enforcement arrangements in Europe; without there being trust between the EU institutions and the Member States and actors in the international arena, in-between the Member States and on the part of their citizens vis-à-vis relevant public authorities and private actors, the law by which regulatory and enforcement arrangements have been established will be less or not effective.

A key point would thus be to address how trust matters within the framing of regulatory and enforcement arrangements in different policy fields that are investigated in RENFORCE research, why trust may be lacking and how this impacts policy effectiveness and the protection of other core values. What is needed to enable trust? What can be learnt e.g. from institutional, trust and civil (contract) law theories to enhance trust in these contexts and by using the law as a means to achieve this? What impact is there of – the lack of – trust on the relationships that have emerged between the different levels of regulation and enforcement – European, international, national – across different policy sectors in the past decades, in light of the principles governing these relationships and their operationalisation as well as existing theories on constitutional pluralism. 

Principles addressed in relevant RENFORCE research include the rule of law (Kanetake, ‘The Interfaces between the National and International Rule of Law: A Framework Paper’, in Kanetake & Nollkaemper (eds), The Rule of Law at the National and International Levels: Contestations and Deference. Hart, 2016; Manunza, ‘Public Procurement Law as an Expression of the Rule of Law: On How the Legislature and the Courts Create a Layered Dynamic Legal System Based on Legal Principles’, Public Procurement Law Review 5, 2023 (319-334), Nagy and Nicolosi (eds.), Utrecht Law Review 17(4), 2022 Special Issue: Mobility in a European Post-Crisis Scenario: Regulatory Dynamics and Enforcement Challenges; Vroege, Exporting Arms over Values: The Humanitarian Cost of the European Defence Fund, European Papers 6(3), 2021, 1575-1601); conferral (Meershoek, ‘Why the EU Internal Market is not the Correct Legal Basis for Regulating Military-Strategic Procurement: On Functional Division of Competences’, European Law Review 3, 2022, 353-375; Senden, ‘The Constitutional Fit of European Standardisation Put to the Test’, Legal Issues of Economic Integration 44(4), 2017, 337-352); effective legal protection (Wissink’s PhD thesis, ‘Effective Legal Protection in Banking Supervision - An Analysis of Legal Protection in Composite Administrative Procedures in the Single Supervisory Mechanism, 2021); trust  (Van den Brink and Marguery, ‘Mutual Recognition and Mutual Trust: Reinforcing EU Integration?’ European Papers 3(1), 2016, 861-864; De Cock Buning & Senden, ‘Conclusions […]’, in De Cock Buning & Senden (eds), Private Regulation and Enforcement in the EU. Finding the Right Balance from a Citizen’s Perspective, Hart 2020,); and solidarity (Joppe, ‘EU-Solidarity, Illustrated by the Covid-19 Crisis: What Does EU Solidarity Mean in the Context of Free Movement of Goods and Persons and How is This Illustrated by the Response to the Covid-19 Pandemic?’, Utrecht Law Review 17(3), 2021, 130-142).

The third CoCoT Conversation addressed the notion of trust as a constitutional precondition for good regulation and enforcement in Europe. Trust is crucial in - shaping - all relationships; without there being trust (in-)between the EU institutions and the Member States and actors in the international arena, in-between the Member States and on the part of their citizens vis-à-vis relevant public authorities and private actors, regulation and enforcement will be lacking both in effectiveness and legitimacy.

The programme  started with a presentation of some key findings on the relevance and meaning of trust that ensues from earlier RENFORCE output including a CoCoT working paper. The Conversation then continued with presentations and commentaries that focused on trust in relation to specific policy fields as well as from a judicial and political science perspective.

Speakers:

• Sebastian Meyer and Linda Senden on ‘Towards a Constitutional Responsibility Approach for Securing Good Regulation and Enforcement in the Shared European Legal Order’;
• Bram Duivenvoorde on ‘Trust in Advertising and the Digital Society’;
• Olia Kanevskaia on ‘Trust and Technical Standardisation in the Internal Market’;
• Roeland de Bruin on ‘Trust and the Uptake of AIS’;
• Malgorzata Kozak on ‘Trust and Competition Law’;
• Paul van der Smitte on ‘Trust in the Cross-Border Recovery of Tax Claims’;
• Sacha Prechal on ‘Trust in the Area of Freedom, Security and Justice and Beyond’.

Commentators:

• Koen Verhoest and Esther van Zimmeren on ‘Some Views from the Interdisciplinary GOVTRUST Centre of Excellence’.
   

The second CoCoT Conversation was organised in collaboration with the Equality and Social Justice Building Block and focused on the concepts, challenges and opportunities of mainstreaming equality in various areas of law. The programme started with a workshop which reflected on the horizontal mainstreaming clauses in the EU Treaties, on social mainstreaming in EU policy-making, and on barriers to effective mainstreaming from an institutional perspective. Afterwards a CoCoT Conversation amongst various RENFORCE researchers took place about how mainstreaming requirements are put into practice and how they can be enhanced, so as to ensure a better protection of core values in and across policy sectors.

Speakers:

• Alexandra Timmer on ‘Mainstreaming What Kind of Equality?’;
• Tom Huisjes on ‘Social Return on Investment and Other Mainstreaming Tools in Public Procurement’;
• Virginia Passalacqua on ‘Mainstreaming Equality for Third-Country National Migrants: (Many) Limits and (Few) Opportunities’;
• Matteo Gargantini on ‘Mistakes that Marginalize. Financial Advice and Low-Income Financial Market Participants’;
• Tatyana Teplova on ‘Deep Dive – Gender Equality and Covid Responses and Recovery: an OECD Perspective’.

The first CoCot Conversation was held on 29 November 2021 and focused on the relevance and meaning of the value of respect for – national/public – security in regulation and enforcement approaches in different areas of EU law, including EU external relations, migration, public procurement and criminal law.

Speakers:

• Machiko Kanetake on ‘Security and human rights: EU’s export controls over surveillance technologies’;
• Salvo Nicolosi on ‘From protection to security: controversial issues at the EU borders’;
• Nathan Meershoek on ‘EU Military procurement regulation vs global security politics’;
• Gavin Robinson on ‘Security-related considerations in the CJEU case law in the framework of communications data retention’.

Discussants:

• Martin Trybus (Birmingham Law School) 
• Roberto Caranta (University of Turin)

9 December 2022: Conference ‘Europe and the Price of Well-Being: How to Secure Good Regulation and Enforcement in Europe?’

• Dr. Roeland de Bruin (Utrecht University School of Law – Molengraaff Institute for Private Law)
• Dr. mr. Bram Duivenvoorde (Utrecht University School of Law – Molengraaff Institute for Private Law)
• Mr. Tom Huisjes (Utrecht University School of Law – International and European Law)
• Dr. Matteo Gargantini (University of Genoa)
• Dr. Machiko Kanetake (Utrecht University School of Law – International and European Law)
• Dr. Olia Kanevskaia (Utrecht University School of Law – International and European Law)
• Dr. Malgorzata Kozak (Utrecht University School of Law – International and European Law)
• Mr. Nathan Meershoek (Utrecht University School of Law – International and European Law)
• Dr. Salvatore Nicolosi (Utrecht University School of Law – International and European Law)
• Dr. Virginia Passalacqua (University of Turin)
• Prof. mr. Sacha Prechal (Court of Justice of the European Union and Utrecht University School of Law)
• Dr. Gavin Robinson Utrecht University School of Law – Willem Pompe Institute for Criminal Law and Criminology)
• Mr. Paul van der Smitte (Utrecht University School of Law – International and European Law)
• Dr. mr. Alexandra Timmer (Utrecht University School of Law – International and European Law)
• Prof. Koen Verhoest (University of Antwerp)
• Dr. Esther van Zimmeren (University of Antwerp)