The impact of judicial interactions on the interplay between administrative and judicial enforcement

Abstract

Since the liberalisation process in the 1990s, enforcement of EU law in many legal areas has relied on administrative enforcement mechanisms based on regulatory and sanctioning powers allocated to independent administrative authorities at the national level. In order to ensure the legitimacy and accountability of these institutions, their decisions are subject to judicial review, as any party subject to a sanction has the right to appeal against the decision. The institutional setting triggers an interplay between administrative and judicial enforcement: in areas where administrative authorities exercise sanctioning powers, the enforcement procedure generally involves a preliminary phase before the administrative authorities and a subsequent one before judicial courts. A civil or administrative court may be asked to scrutinise a decision of a public or independent authority in order to determine whether a violation of procedural or substantial rules occurred or there is a risk of infringement. Thus, courts are responsible for providing effective remedies in cases of a procedural irregularity either by way of an administrative or judicial review or by means of parallel or sequential enforcement mechanisms. This institutional setting involving both administrative and judicial enforcement, however, has an impact on the exercise of the right to an effective remedy which is enshrined in Art. 47 of the Charter of Fundamental Rights, in particular in the definition of the content of the remedy selected and imposed as a result of the interplay between administrative and judicial proceedings. This contribution aims to shed some light on this topic and show the importance of judicial interactions between national and European courts in identifying how due process guarantees should be interpreted in the light of coordination between administrative and judicial enforcement regimes.