Title: Multilevel Governance in Enforcement and Adjudication
Abstract: The classic branches of government are legislation, administration and adjudication. These branches together maintain the national legal system: they create national law rules, apply these in individual cases, interpret them and enforce them. When horizontal shifts in governance take place, these can refer to any and all of these functions of the national state. But the several functions cannot be separated altogether. Privatizing enforcement may in the long run lead to the creation of a semi-autonomous legal order. How this can happen, and how this affects the national legal system, will be demonstrated below. As soon as two legal orders coexist, they will interact, for example because people try to effectuate the rights granted within the private legal order through procedures of the state-based legal order. This creates an interface between the legal orders which can be described in general terms. The discussion concerning the content of this interface lies at the heart of both the multilevel and the multicultural debate. The European legal order – as a legal order in its own right –creates its own interface with national law. But it also has an impact on the interfaces between national law and private arrangements and between the different means of enforcement within the national legal order itself. In most areas of law that fall within the competences of the EC, private enforcement is seen as a way to further European policies, not as a first step towards establishing a private legal order. This focus on uniform application and enforcement makes the EC/EU legal order appear hostile towards the existence of semiautonomous legal orders. In this sense the EC governance model can be understood to be liberal in character. Private enforcement and non-state legal orders The word enforcement is often associated with the activities of the police and the criminal justice system. But it has a wider connotation. Enforcement in this wider sense refers to all means by which individuals defend their legal position and/or the state ensures compliance with its norms. When we concentrate on the latter effect – of stimulating norm-abiding behaviour we can see that the state uses both civil law and public law remedies to ensure compliance. A classical example of private law enforcement of public interest legislation is to be found in the field of competition law, where private enforcement plays an important role in steering market behaviour. The American system of punitive and double/triple damages has to a large extent developed as an incentive for individuals to enforce compliance through the civil law system. By 1 J. Malmberg, Effective enforcement of EC labour law: A comparative Analysis of Community Law Requirements, European Journal of Industrial Relations 10/2004, pp. 218 and 220 differentiates between judicial enforcement and enforcement through processes of administrative law and industrial relations. He makes a further distinction between enforcement at the macro-level (compliance) and at the micro-level (protecting individual rights): p. 221-222. See also S. Laulom, Chapter 7, Four lessons in: Malmberg et al, Effective Enforcement of Labour Law, The Hague: Kluwer Law International, 2003, p. 307. giving private individuals a civil law remedy against the infringement of competition law rules, and by creating a big enough incentive for starting private enforcement action, a higher level of compliance will be attained than by only public law enforcement. The European system also recognized the importance of private law enforcement at an early stage. The development of the doctrine of direct effect was to a large extent meant to induce compliance by the member states through civil legal action. But these days the doctrine also fosters compliance by private individuals and corporate entities, for example through the mechanism of horizontal direct effect. This trend has been furthered by the Munoz judgment of 2002 in which the ECJ decided that national courts must offer a civil law remedy against breaches of European competition law by private parties. So, private enforcement is generally recognized as an important way to further compliance with both private law rules and public law rules. The European law system even forces the member states to adapt their enforcement systems in order to accommodate this type of enforcement. Depending on private actions in order to enforce public interest carries certain risks, however. One of these risks relates to the fact that the state cannot exert direct influence on the enforcement decision of private parties. It cannot commence or halt these actions, but can only create incentives (or disincentives). This means – inter alia – that priorities in enforcement are no longer subject to democratic control. Nor is the decision to enforce subject to equal treatment considerations. As long as the private enforcement is channeled through the courts, the state system does retain control over the application and interpretation of the legal norms. But even this control mechanism is lost as soon as the dispute resolution mechanism itself is privatized. Private adjudication creates the possibility for both the parties and the adjudicator to divert from national standards and to apply private standards instead, thus creating a private legal order. 2 The American system allows for triple damages in antitrust cases. See on private enforcement of antitrust law in the USA: L.A. Sullivan, W.S. Grimes, The Law of Antitrust: an integrated handbook, Hornbook Series, St.Pauls (Minn): West Group 2000, p. 908 ff. 3 ECJ case 26/62, Jur 1963, p. 1 (Van Gend & Loos). See on this case law: P. Craig, G. De Burca, EU Law, Text, Cases and Materials, Oxford University Press 2 ed. 1998, p. 167; P. Craig, Once upon a Time in the West: Direct Effect and the Federalization of EEC Law, (1992) 12 OJLS, p. 453; W.T. Eijsbouts, J.H. Jansen F.O.W. Vogelaar, Europees Recht; Algemeen deel, Groningen: Europa Law Publishing 2004, p. 222. 4 ECJ case C-415/93, ECR 1995, p. I-4921 (Bosman); ECJ case C-281/98 ECR 2000, p. I-4139 (Angonese). 5 C-253/00 Jur 2002, I-7289. See G. Betlem, Torts, A European Ius Commune and the Private Enforcement of Community Law,” [2005] Cambridge Law Journal 126. Compare on the use of private enforcement in European antitrust cases also “Meer civiele handhaving van mededingingsregels wenselijk” persbericht Ministerie van Economische Zaken 3 November 2005, www.ez.nl (communication to the public of the Ministry of Economic Affairs, in which the secretary-general on Economic Affairs expresses the government’s wish to further the possibilities of private enforcement). On the European policy in this
Publication Year: 2006
Publication Date: 2006-01-01
Language: en
Type: article
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Cited By Count: 11
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