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7 Enforcement and the Organisation of Judicial Protection Are Normally Tasks of the Member States

7 Enforcement and the Organisation of Judicial Protection Are Normally Tasks of the Member States

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


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.


 The Bundesverfassungsgericht underlined this monopoly as a particular sensitive area that

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


 Article 87 TFEU.


 Article 88 TFEU.


 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.


 On sanctions, see Article 83 GDPR.


 As included in Chapter VII GDPR.


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

4.7.2  J udicial Protection: The Principle of National

Procedural Autonomy

The principle of national procedural autonomy129 – or national procedural responsibility130 – is part of the constitutional configuration of the European Union, as developed in the case law of the European Court of Justice.131 National courts are

entrusted with ensuring the legal protection of the citizens under EU law in accordance with the principles of equivalence and practical possibility or effectiveness.

Remedies and forms of action must be equivalent to the remedies used to observe

national law and the exercise of a right under EU law must be possible in practice.132

Since the entry into force of the Lisbon Treaty, Article 19 TEU lays down that:

“Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”

Nevertheless, the principle of national procedural autonomy poses challenges for

the effectiveness and uniform application of EU law.133 There is abundant case law

on the balancing between the requirement of effective legal protection on the one

hand and national procedural autonomy on the other. This case law has become

gradually stricter, leaving less discretion to the Member States.134 Sometimes EU

instruments provide that specific remedies and sanctions need to be made available,

of which Chapter VIII of the General Data Protection Regulation is a good


This book discusses the national procedural autonomy in particular in relation to

the position of the independent data protection authorities and the cooperation

between these authorities. An issue is how to ensure the judicial review of actions

of these authorities, in particular in cases with cross-border elements.135

 Case C-93/12, Agrokonsulting-04, EU:C:2013:432, at 35. See also, Koen Lenaerts, Ignace

Maselis and Kathleen Gutman, EU Procedural Law, Oxford University Press, 2014, at 4.01 and



 This may better reflect the task of the Member States in determining the procedural conditions

for ensuring EU law; see: EU Law, Text, Cases and Material (Fifth Edition) Paul Craig and Grainne

de Burca, 2011, at 220.


 Starting with Case 33/76, Rewe-Zentralfinanz, EU:C:1976:188.


 EU Law, Text, Cases and Material (Fifth Edition) Paul Craig and Grainne de Burca, 2011, at 220

and the case law mentioned there.


 Dougan, Remedies and Procedures for enforcing Union Law, in: The evolution of EU Law,

Second Edition, Paul Craig and Grainne de Burca, Oxford University Press 2011, at 408.


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

Burca, 2011, Chapter 8.


 See Chaps. 7 and 8 of this book.


4.8  Democratic Legitimacy of EU Action Under Article 16 TFEU: A Prerequisite…


4.8  D

 emocratic Legitimacy of EU Action Under Article 16

TFEU: A Prerequisite for Trust

This book is based on the presumption that ensuring privacy and data protection on

the internet requires trust, also in view of the perceived loss of control over personal

data. If the European Union were to regain control, this would benefit both the individuals whose fundamental rights are at stake and the general trust in the Union. In

view of this double objective, the effectiveness of the protection (output legitimacy)

cannot be sufficient for trust. Democratic legitimacy (or input legitimacy) is also

required. The following sections are meant to give context to EU action under

Article 16 TFEU and, hence, go beyond the limited understanding of legitimacy

given in Chap. 1 of this book.

Considering the main substance of Article 16 TFEU, democratic legitimacy

requires specific attention. On the basis of Article 16 TFEU the European Union

exercises powers to protect fundamental rights of individuals, a subject matter

closely related to the traditional state function of ensuring the protection of fundamental rights. Article 16 TFEU leaves little room for the Member States to exercise

autonomous powers,136 it rather leads to an unconditional exercise of powers by the

Union, taking precedence over national powers.137

4.8.1  F

 undamental Rights and the Academic Controvery

on Democratic Legitimacy

A controversy in the academic discussion relating to the democratic legitimacy of

the European Union is whether this legitimacy depends mainly on the existence of

adequate checks and balances limiting government power and protecting against the

tyranny of a majority (or a powerful minority) or whether government power must

be based on electoral accountability in order to be legitimate. The absence of the

latter link is the most important democratic deficit (of the Union). This is all well

described by Craig.138 On the one hand, there are the views of Monnet representing,

roughly, a technocratic vision of democracy defined as neofunctionalist. These

views emerge in the approach of Moravcsik139, who defends the EU system against

the accusations of a democratic deficit. On the other hand, Weiler and others strongly


 As will be further explained in Chap. 6, Sect. 6.2 of this book.

 See on this: P. Popelier, Europe Clauses’ and Constitutional Strategies in the Face of MultiLevel Governance, Maastricht Journal of European and Comparative Law, 2014, at 300.


 Craig in “The evolution of EU Law (Second Edition) Paul Craig and Grainne de Burca, Oxford

University Press 2011, Chapter 2 on Integration, Democracy and Legitimacy.


 A. Moravcsik, Preferences and Power in the European Community: A Liberal Intergovernmentalist

Approach (pages 473–524), JCMS: Journal of Common Market Studies, Volume 31, Issue 4.



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

argue against the democratic legitimacy of the Union, precisely because of the

absence of accountability in free elections.140

In our view, and in line with the views of Weiler and others,141 it is difficult to

deny the importance of the relationship between legitimacy of government action

and elections expressing the will of the people. In this regard, reference may be

made to Article 21 of the Universal Declaration of Human Rights: “The will of the

people shall be the basis of the authority of government; this will shall be expressed

in periodic and genuine elections which shall be by universal and equal suffrage and

shall be held by secret vote or by equivalent free voting procedures.” The EU Charter

of Fundamental Rights is more modest in its wording, but nevertheless Article 12(2)

Charter reads: “Political parties at Union level contribute to expressing the political

will of the citizens of the Union.”

This controversy on the democratic legitimacy of the European Union has wider

relevance for this book, especially because it analyses the domain of fundamental

rights, which is close to the citizen. Democratic shortcomings of and a lack of support for the Union are matters of concern, also because the use of the wide powers

on data protection afforded to the Union under Article 16 TFEU delimits the discretion of democratically legitimised national governments, in connection to fundamental rights protection.

4.8.2  T

 he Legitimacy of EU Action Depends

on the Subject Area

The German constitutional court made an attempt to classify certain areas of government intervention in its Lisbon ruling,142 in which it ruled that certain areas are

of such a sensitive nature that sufficient room must be left to the Member States143

and competences should not be fully transferred to the European Union. The

Bundesverfassungsgericht mentioned, in particular, “areas which shape the citizens’

living conditions”. This includes the private sphere of the individual protected by

fundamental rights, as well as a variety of cultural issues including the freedom of

opinion, press and association. It also mentioned areas which are “particularly sensitive for the ability of a constitutional state to shape itself”, such as the police’s


 Further read: The Constitution of Europe, “Do the new clothes have an emperor?” and other

essays on European integration, Joseph Weiler, Cambridge University Press, 1999.


 Craig submits that not many commentators support the views of Moravcsik.


 2 BvR 2661/06, 6 July 2009, e.g. at 249.


 The list of sensitive areas is also relevant for subjects that would qualify as being part of the

national identity (as meant in Article 4(2) TEU). It is wider than the subjects mentioned here.

Further read: Armin von Bogdandy, Stephan Schill ‘Overcoming absolute primacy: Respect for

national identity under the Lisbon Treaty’, CMLR, 48: pp. 1417–1453, at 1435–1436.

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