The Diversity of the EU Approach to Law Enforcement — Towards a Coherent Model Inspired by a Law and Economics Approach

Traditionally in the division of labor between the European level and the Member States it was, roughly, the European legislature that set the norms and the Member States that took care of enforcing these norms. In various policy areas, an implementation deficit has been observed, which is said to be partly due to the Member States facing difficulties with the choice of procedural options. For that reason, among others, the European legislature increasingly prescribes the enforcement approach to the Member States to back up national legislation that implements European law. This Article examines the incoherence of the EU's approach to law enforcement in the areas of consumer, competition, environmental, and insider trading laws. After setting out the EU's legal competences with a view to law enforcement, the rather diverse picture — mixes — of private, administrative, and criminal law enforcement in the four areas will be illustrated. The authors then ask the question of whether this divergence can be explained by an economic reasoning with respect to law enforcement. The analysis, however, identifies substantial differences between an ideal enforcement mix and the current enforcement approaches used in EU law. Moreover, it is suggested that the economic approach could be employed to provide more consistency to the use of enforcement tools in EU law