Harmonization: legal enforcement

While harmonization and convergence of national substantive laws are well advanced in the European Union, a similar convergence and harmonization of the procedural rules and institutional frameworks has not taken place. The implementation, supervision, and enforcement of EU law are left to the Member States in accordance with the so-called national procedural and institutional autonomy. This "procedural competence" of the Member States means that the Member States have to provide remedies and procedures governing actions intended to ensure the enforcement of rights derived from EU law.

Harmonized substantive rules are implemented through diverging procedures and different kinds of enforcement bodies, but this decentralized enforcement challenges the coherent and uniform application of EU law. In an enforcement system where Member States apply divergent procedures, may impose a variety of sanctions and remedies administered by various actors the effectiveness of EU law, effective judicial protection and effective law administration may be at risk. This chapter analyzes the development of EU law concerning law enforcement and takes a critical look at the EU’s aim to harmonize the national procedural rules when EU law is enforced. It will examine the question of which legal basis can be used in order to harmonize procedural rules, whether harmonizing procedural rules would be more efficient than the existing legal diversity and the economics of harmonization will be applied to assess the top-down harmonization by the EU and comparative law, and economics is applied to evaluate the bottom-up voluntary harmonization of the Member States.