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6 Further Limitations Due to the EU’s Organisational Structure: Decentralised Implementation

6 Further Limitations Due to the EU’s Organisational Structure: Decentralised Implementation

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4  The Mandate of the EU Under Article 16 TFEU and the Perspectives of Legitimacy…



courts. The modalities for the exercise of the national authorities’ tasks are determined by their national constitutional systems. However, EU law limits the discretion of the Member States. Two key restrictions are: the principle of sincere

cooperation and the responsibility of Member States to protect EU fundamental

rights. These restrictions are interrelated.



4.6.2  S

 incere Cooperation as a Means to Regain Control

Over Fundamental Rights Protection

The principle of sincere cooperation requires that “the Union and the Member

States shall, in full mutual respect, assist each other in carrying out tasks which flow

from the Treaties.”99 The Court of Justice of the European Union has defined this

principle as an expression of solidarity within the system of the Union.100 The principle is elaborated in obligations for Member States, but the institutions, too, shall

practice mutual sincere cooperation.101 A number of requirements developed on the

basis of the principle of sincere cooperation102 must ensure that Member States give

full effect to EU law and that the Member States and the EU institutions cooperate

in a fruitful way. The principle of sincere cooperation has specific significance in the

context of the Union’s external action, ensuring that Member States do not deviate

from positions taken by the Union in negotiations with third countries and international organisations.103 The principle of sincere cooperation is also guiding in the

activities of the independent data protection authorities under Article 16 TFEU.104

This general principle of sincere cooperation under EU law is specified in a wide

range of legislative instruments of the European Union, for specific sectors. Thus,

the obligation under Directive 95/46 of the supervisory authorities for data protection to cooperate with one another to the extent necessary for the performance of

their duties105 is a specification of the principle of sincere cooperation.

In the area of this book, which was triggered by the loss of control over personal

data on the internet, the principle of sincere cooperation has an additional dimension. Cooperation between the various levels and actors may compensate for the

loss of power of individual public entities within a globalised society. Arguably,

the loss of control of the European Union and the Member States reinforces the

obligations under the principle of sincere cooperation. Complementary action of

99



 Article 4(3) TEU.

 Case 6/69, Commission v France, EU:C:1969:68, at 16.

101

 Article 13(2) TEU.

102

 Further read: Koen Lenaerts and Piet van Nuffel, European Union Law (Third edition) Sweet &

Maxwell, 2010, at 7-044–7-049.

103

 Craig in EU Law, Text, Cases and Material (Fifth Edition) Paul Craig and Grainne de Burca,

2011, at 337.

104

 See Chaps. 7 and 8 of this book.

105

 Article 28(6) of Directive 95/46.

100



4.6  Further Limitations Due to the EU’s Organisational Structure: Decentralised…



147



the various actors in the Union and the Member States is a means to regain control.

This view is reflected in debates on multi-level or network governance,106 or multilevel constitutionalism.107

Member States’ responsibility to protect the fundamental rights of privacy and

data protection may qualify as a species of sincere cooperation in the context of

Article 16 TFEU. In addition, the Member States’ obligation to respect the fundamental rights provided for in the Charter follows directly from Article 51 Charter, as

interpreted in Åkerberg Fransson.108

In N.S.,109 a case relating to the Common European Asylum System, the European

Court of Justice dealt with the Member States’ responsibility to respect fundamental

rights when they act within the scope of EU law and the Charter is applicable.110 The

Court confirmed that Member States must make sure that they interpret EU legal

instruments in accordance with the fundamental rights of the Union.111 This means,

in addition, that a Member State should not recognise fundamental rights protection

in another Member State, when there are substantial grounds for believing that systemic deficiencies in the protection of fundamental rights exist in that other state.112

In other words, there is a rebuttable presumption that another Member State complies. Where a Member State does systemically not comply with the obligation to

protect fundamental rights, there may be an obligation of the European Union to

guarantee that individuals can invoke their rights.113

More generally, in the system of decentralised implementation, enforcement and

judicial protection the European Commission has the task to ensure the application

of EU law114 and more particularly, to guarantee that Member States and their

authorities comply with EU law. The infringement procedure under Article 258

TFEU is an important instrument for the fulfilment of this task.115 The European

Court of Justice accepts a wide discretion of the Commission in deciding whether

106



 Craig in EU Law, Text, Cases and Material (Fifth Edition) Paul Craig and Grainne de Burca,

2011, at 3.

107

 Anand Menon and Stephen Weatherill, “Democratic politics in a globalising world: supranationalism and legitimacy in the European Union (2007)”, LSE law, society and economy working

papers No. 13-2007, at 23.

108

 Case C-617/10, Åkerberg Fransson, EU:C:2013:280.

109

 Joined cases C-411/10 and C-493/10, N.S., and M.E. and Others, EU:C:2011:865.

110

 The ruling, at 64, referred to implementing EU law by the Member States under Article 51

Charter, but Åkerberg Fransson gives a wide interpretation to this article 51.

111

 At 77 of the ruling.

112

 At 86 and 104 of the ruling.

113

 This argument is made in relation to EU citizenship, in: Armin von Bogdandy, Matthias

Kottmann, Carlino Antpöhler, Johanna Dickschen, Simon Hentrei, Maja Smrkolj, “Reverse

Solange–Protecting the essence of fundamental rights against EU Member States”, CMLR 49,

pp. 489–519.

114

 As laid down in Article 17 TFEU.

115

 This procedure was described as an objective method for ensuring Member State compliance of

EU law, not a procedure providing individuals with a means of address; see: EU Law, Text, Cases

and Material, Fifth Edition, Paul Craig and Grainne de Burca, 2011, at 410.



148



4  The Mandate of the EU Under Article 16 TFEU and the Perspectives of Legitimacy…



or not to instigate proceedings under this provision. The Court examines whether an

infringement exists, but does not judge the motives of the Commission for bringing – or not bringing – a case before it.116 In the area of data protection, the

Commission has not played an active role in bringing infringement cases before the

Court, apart from three cases on the independence of data protection authorities.117



4.7  E

 nforcement and the Organisation of Judicial Protection

Are Normally Tasks of the Member States

Enforcement of EU law is primarily a task of the Member States, albeit under the

general conditions of EU law. The Member States must pay due regard to the

requirements of uniform application and sanctions must be effective, proportionate

and dissuasive.118 EU institutions do not operate directly within the territory of the

Member States, but through national institutions and authorities.119

The European Union only has the power to enforce directly vis-à-vis private parties in a few specific sectors, the best known being the enforcement of EU competition law by the European Commission.120 In this domain, the Commission has

powers of investigation in the Member States and may impose penalties.121 In addition, outside the area of competition law, a growing number of EU agencies has

been given binding decision-making powers vis-à-vis private parties.122 These are

however exceptions to the rule that the Member States enforce EU law.



116

 Further read: EU Law, Text, Cases and Material (Fifth Edition) Paul Craig and Grainne de

Burca, 2011, at 415–418.

117

 Case C-518/07, Commission v Germany, EU:C:2010:125, Case C-614/10, Commission v

Austria, EU:C:2012:631 and Case C-288/12, Commission v Hungary, EU:C:2014:237. See Chap.

7 of this book.

118

 Koen Lenaerts and Piet van Nuffel, European Union Law (Third edition) Sweet & Maxwell,

2010, at 17–005.

119

 In this sense: Carol Harlow, “Three Phases in the Evolution of EU Administrative Law”, in: Paul

Craig and Grainne de Búrca, The evolution of EU Law (second edition), Oxford University Press,

2011, Chapter 15.

120

 Under Articles 101 and 102 TFEU and Council Regulation (EC) No 1/2003 of 16 December

2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the

Treaty, OJ L 1/1.

121

 Under Chapter V and VI of Council Regulation (EC) No 1/2003 of 16 December 2002 on the

implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1/1.

122

 Further read: Michelle Everson, Cosimo Monda, and Ellen Vos (eds), EU Agencies in between

Institutions and Member States, 2014 (Kluwer Law International). As the title of the book reveals,

there is no communis opinio of the place of EU agencies, as part of the EU executive. They are also

considered to be hybrid constructions in between the EU and the Member States. See Chap. 7,

Sect. 7.8 of this book.



4.7  Enforcement and the Organisation of Judicial Protection Are Normally Tasks…



149



In the area of criminal law this rule is most evident. The Treaties do not touch

upon the Member States’ monopoly of the use of force.123 The Treaty on the

Functioning of the European Union only confers supporting competences on the

Union, and where the Treaty provides for operational cooperation, a unanimous

Council decision is needed.124 Also, Europol’s mission is limited to supporting and

strengthening action by the Member States’ police authorities.125



4.7.1  A

 dministrative Law Enforcement: Multi-level

Governance or Shared Administration

In areas of administrative law enforcement the situation is more mixed, also because

of the contribution by EU agencies and EU networks, creating multi-level forms of

governance, including enforcement. Harlow uses the term “shared administration”.126

The provisions on the independent data protection authorities in the General

Data Protection Regulation are an illustration of the concept of shared administration. These provisions do not only include a cooperation mechanism that is supposed to carry out enforcement tasks in a networked structure within which the EU

level and the national level participate, they also precisely circumscribe the tasks of

the national supervisory authorities, their discretionary powers as well as the administrative sanctions they must impose in case of breaches of data protection law.127

These EU provisions apply even when authorities fulfil their tasks within the

national jurisdiction without input of the cooperation mechanisms between the

authorities.128 In short, Member States enforce the rules on data protection, but the

enforcement is subject to conditions laid down in EU law.



123



 The Bundesverfassungsgericht underlined this monopoly as a particular sensitive area that

should remain with the national state, see Sect. 4.8 below.

124

 Article 87 TFEU.

125

 Article 88 TFEU.

126

 Carol Harlow, “Three Phases in the Evolution of EU Administrative Law” in: The evolution of

EU Law, Second Edition, Paul Craig and Grainne de Burca, Oxford University Press, 2011, e.g. at

450. See further Chap. 8, Sect. 8.7 of this book.

127

 On sanctions, see Article 83 GDPR.

128

 As included in Chapter VII GDPR.



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