Towards More Stringent Enforcement? Analysis of Enforcement Styles of EU Agencies

The implementation of EU policy is traditionally the turf of its member states, with the European Commission monitoring and enforcing member state compliance. However, enforcement activities are increasingly conducted by other EU institutions such as EU agencies. EU agencies have acquired formal powers to impose stringent measures on private actors, including revoking market authorisations and imposing financial penalties. They may, however, also use facilitative measures such as mitigation plans and clarifying regulatory requirements. It is, however, not clear how EU agencies apply their formal enforcement powers towards private actors in practice. On the one hand, research shows that the EU increasingly employs a legalistic, coercive enforcement style. On the other hand, traditional approaches to EU compliance suggest that coercive measures are used as a last resort and supranational supervision is dominated by “informal bargaining”. Consequently, EU agencies are expected to adhere to a more facilitative enforcement style. Using elite interviews with EU agency officials and market participants and document analysis, we analysed the enforcement styles applied by the European Union Aviation Safety Agency (EASA), the European Securities and Markets Authority (ESMA) and the European Medicines Agency (EMA). Contrary to traditional EU compliance approaches, we show that EU agencies apply formalistic and coercive measures. However, there are notable differences between agencies. ESMA is the only agency that employs financial penalties. EASA uses a rather facilitative style but imposes market restrictions when aviation safety is compromised. EMA is rather coercive, as most of its enforcement consists of market restrictions. Furthermore, formal competences do not necessarily reflect autonomous powers in enforcing EU rules. Our analysis shows that ESMA’s extensive enforcement powers limit regulators’ discretion to apply less coercive measures. These insights further our understanding of enforcement by supranational institutions and how the authority delegated to EU agencies is practically used.