How to ensure legitimacy when (re)designing enforcement on the EU level: the ‘Enforcement Competence Test Roadmap’

The EU level has been increasingly involved in the enforcement of EU law through the regulation of national enforcement, the establishment of enforcement networks, and the establishment of separate EU enforcement authorities. These developments have taken place, however, despite the lack of explicit enforcement competences under the EU treaties. This consequently raises several questions. To what extent can the development of increased enforcement on the EU level be reconciled with the lack of an express enforcement competence, and how can the legitimacy of the enforcement structures on the EU level be ensured? This paper presents a step-by-step roadmap based on the core EU legal principles that can be utilised by the EU legislator and others to determine the legitimate establishment and use of EU enforcement competences when (re)designing and assessing EU enforcement structures. The proposed roadmap is subsequently applied to one of the most criticized EU agencies in terms of legitimacy, namely, the European Markets and Securities Authority, to demonstrate its practical application This roadmap aims at helping further research and legal practice to (re)designing legitimate enforcement of EU law. While the roadmap can be seen as a helpful tool, this paper shows that this is a pragmatic solution which leaves discretion to the EU institutions on the question which has no clear legal normative answer, i.e. what should be the EU’s enforcement power?