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Fit for purpose? Assessing Collaborative Innovation in the European Network for Prosecutors for the Environment

Published online by Cambridge University Press:  30 September 2019

Evelijn MARTINIUSOpen the ORCID record for Evelijn MARTINIUS[Opens in a new window] and
Ellen MASTENBROEK
Evelijn MARTINIUS*
Affiliation:
Vrije Universiteit; email: r.e.maritnius@vu.nl.
Ellen MASTENBROEK
Affiliation:
Institute for Management Research, Radboud Universiteit, Nijmegen; email: e.mastenbroek@fm.ru.nl.
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Abstract

European Administrative Networks are expected to strengthen the national enforcement of European legislation. The idea is that these networks organise national civil servants, and allow them to exchange best practices, negotiate guidelines and develop inventive solutions to common challenges faced during the implementation and enforcement of European Union regulations. This paper proposes a framework to evaluate European Administrative Networks on their potential to spur collaborative innovation concerning national enforcement of this common regulation. The framework is then applied to a particular network, the European Network for Prosecutors of the Environment. Results show that this network can be considered a resource for collaborative innovation.

Information

Type
Symposium on Institutional Innovations in the Enforcement of EU Law and Policies
Information
European Journal of Risk Regulation , Volume 10 , Issue 3: Symposium on Institutional Innovations in the Enforcement of EU Law and Policies , September 2019, pp. 485 - 501
Copyright
© Cambridge University Press 2019 

I. Introduction

The European Union (EU) is an unprecedented supranational regulatory state. Member states have transferred sovereignty to the European level, to allow for supranational law-making. Ultimately, this legislation should enable them to solve wicked cross-border problems. Despite this unprecedented power transfer, member states have resisted the all-out transfer of policy competences by the implementation and enforcement of common policies have remained at the national level. This has led to a “regulatory gap”:Footnote 1 within their borders, national authorities are responsible for the implementation and enforcement of EU legislation.

The EU’s regulatory gap has paved the way for widespread “post-decisional politics”:Footnote 2 absent or lukewarm implementation and enforcement of EU law by the member states. For this reason, various countervailing arrangements have been established. First and foremost, the European Commission and Court of Justice of the European Union have enforcement powers under the Treaty.Footnote 3 However, using these powers is costly, time-consuming, and complicated by the fact that the Commission has limited resources and inspection powers. Therefore, the EU institutions have established additional countervailing powers on national authorities. First, this concerns indirect enforcement by national courts.Footnote 4 Second, we have seen the establishment of a variety of administrative arrangements enhancing national implementation and enforcement vis-à-vis target groups. One of these arrangements is the European Administrative Network (EAN).

EANs are networks of national administrative or judicial organisations tasked with national implementation and/or enforcement of EU law,Footnote 5 such as ministries, agencies, and inspectorates. They are expected to improve national implementation and enforcement of EU legislation, for instance through the exchange of best practices, the pooling and building of capacities, learning and socialisation, and potentially mutual peer pressure.Footnote 6 Some of these networks also have EU institutions as their members – chiefly the European Commission and EU agencies.Footnote 7 By providing a platform for intergovernmental and supranational interaction, EANs are expected to fill the EU’s regulatory gap,Footnote 8 ultimately improving the quality and comparability of national implementation and enforcement of EU legislation.

According to some observers, EANs indeed function as effective new governance tools that result in administrative integration, more efficiency,Footnote 9 and even “intensive and often seamless cooperation”.Footnote 10 Others, however, dispute this positive assessment. For instance, Kelemen and Tarrant argued that EANs fail “to deliver regulatory harmonisation and that the actors involved in the design of EU regulatory bodies anticipate and welcome this”.Footnote 11 Arguably, EANs are a response to member states’ desire to solve common problems without surrendering too much power to supranational institutions.Footnote 12 Given member states’ incentives to renege on previous commitments, the advent of qualified majority voting, and the national politicisation of the European project, it remains to be seen whether soft instruments like networks actually are effective. Accordingly, an evaluative question arises: to what extent are these networks more than the sum of their national parts? Or more specifically: to what extent do they provide an effective basis for better national implementation and enforcement of common EU legislation?

In this article, we develop an analytical framework aimed at answering this question. Building on the literatures on collaborative innovation and EANs, this framework contains the conditions favourable to effective joint problem-solving in EANs. We apply this framework to the European Network of Prosecutors for the Environment (ENPE) to analyse its potential for spurring collaborative innovation in the realm of enforcement. In addition, we assess practices and perceptions of collaborative innovation taking place in the network.

In doing so, this paper aims to make a threefold contribution to the literature. First, our evaluative framework provides a stepping stone for researchers intending to evaluate EAN effectiveness.Footnote 13 Second, by applying the evaluative framework to a specific EAN, we generate fresh empirical insights on the question of EAN impact.Footnote 14 Third, this evaluation may provide ENPE members with useful information about its functioning and effectiveness.

II. Formulating criteria for collaborative innovation through EANs

EANs are expected to promote national enforcement practices in at least three ways.Footnote 15 First, they may enhance learning between national enforcers facing similar enforcement challenges. The exchange of best practices in the member states may lead to processes of knowledge exchange, persuasion and learning,Footnote 16 which may improve compliance at the national level. Second, EANs may build common capacities for adequately preventing and sanctioning cross-border non-compliance by target groups,Footnote 17 such as illegal waste transports or trade in protected species. Third, EANs may enhance the enforcement capacity and knowledge of member states,Footnote 18 especially in these member states where these are substandard.

The argument of this paper is that the key to EAN effectiveness is with collaborative innovation between network members. Networks in general are expected to be resources of innovative public solutions,Footnote 19 because they facilitate collaboration among experts with different backgrounds,Footnote 20 creating a joint momentum for change.Footnote 21 Similarly, EANs are expected to be vehicles for problem-solving challenges in national enforcement,Footnote 22 through building capacity among their members to identify, mediate and solve problems of misapplied EU law.Footnote 23

Empirical research into EANs shows that problem-solving occurs when national experts exchange best practices and negotiate guidelines, thus generating innovative solutions to solve problems at the national level with the practical application of European law to the internal market.Footnote 24 Hobolth and Martinsen found that within these networks actors formulate new ideas, test them on a small scale, evaluate them in the group and implement them.Footnote 25 SlaughterFootnote 26 writes that network actors focus primarily on enhancing cooperation among national regulators, to enforce existing national laws and rules. As the subjects they regulate move across borders, they must expand their regulatory reach by initiating contact with their foreign counterparts. At a very concrete level this is about sharing information and collaborative development of individual cases. A possible next step is strategic priority setting and targeting. Kopsick and BrommFootnote 27 found network members exploring innovative technologies in detection and monitoring, for the prosecution of illegal shipments of waste. Hazardous waste was detected using secure node-to-node technology, reducing the potential for errors, improving easier data exchange and data comparison. Another example of this is the employment of hand-held refrigerant analysers at ports of entry, to rapidly scan the composition of the gases in the cylinders. Canada, Mexico and the US have shared information gathered during port checks of ozone-depleting substances shipments. This has led to a better understanding of illegal smuggling, which enabled them to communicate about new technologies and innovative detection practices. Lehane, finally, describes the practices of AECEN, a network informally organised for government agencies, to include an exchange of innovative practices and policies aimed at improving compliance with environmental legal requirements in Asia through exploring new monitoring technologies.Footnote 28

Building on these literatures, the assumption underpinning our analysis is that EANs’ potential to solve problems and improve national enforcement of EU law, is linked to their potential to fuel collaborative innovation. In line with the definition raised by Torfing,Footnote 29 we define innovative enforcement practices in enforcement networks as the formulation of new ideas translatable to existing enforcement practices among national enforcement authorities.

To evaluate EANs’ potential to strengthen national enforcement strategies, we develop a framework to assess EANs’ potential for collaborative innovation. We use Torfing’sFootnote 30 conceptual model for collaborative innovation through networks as a starting point. The benefit of his model is that it assembles the main building blocks for theorising collaborative innovation,Footnote 31 applicable to all kinds of networks. The model distinguishes four types of conditions: meta-governance, collaborative processes, drivers and barriers within the network, and initial conditions that should be present.Footnote 32 Building on empirical studies into EANs, we will tailor these general conceptual dimensions to the precise nature and operation of EANs.

1. Network conditions for collaborative innovation

The conditions formulated here start from the assumption that a network’s potential for collaborative innovation derives from the relations between its members.Footnote 33 We distinguish three sets of conditions: self-regulatory capacity; collaborative process; drivers of collaborative innovation and contextual influences.

a. Self-regulatory capacity

A first condition promoting collaborative innovation is a network’s self-regulatory capacity. In Torfing’s model, self-regulatory capacity includes “attempts to govern interactive governance arenas without reverting too much to traditional forms of command and control”.Footnote 34 Self-regulatory capacity is hypothesised to stimulate collaborative innovation because it makes members less dependent on existing organisational bureaucracies, which can erect hurdles for professionals from different organisations wanting to share ideas and resources.Footnote 35

Previous empirical research into EANs has identified two factors promoting self-regulatory capacity. The first factor is network size. Small-scale arrangements are hypothesised to be significant characteristics of EANs.Footnote 36 It could be expected that managing (the number of) memberships of EANs to maintain a small scale promotes collaborative innovation through EANs. Empirical studies into network size and composition support this contention. They show that the larger the network, the lower the degree of its perceived effectiveness.Footnote 37 The first evaluation criterion hence is a (perceived) small network size.

A second factor promoting EANs’ self-regulatory capacity is the presence of face-to-face meetings.Footnote 38 Such meetings enable network members to build strong ties, which helps to build contacts and share information.Footnote 39 Support for this finding comes from Ansell and Gash.Footnote 40 In their literature review of 137 studies on collaborative governance, face-to-face meetings proved a significant factor for building the trust and commitment required to direct the collaborative process.Footnote 41

b. Collaborative process

The second set of conditions in Torfing’s model concerns the collaborative process itself, or the interaction between network actors. When people are open to interaction, they might exchange new ideas and approaches they can adoptFootnote 42 or adapt.Footnote 43

The first condition under this heading is trust. Several authors have highlighted the importance of trust for the functioning of EANs, for instance as a pre-condition for information exchangeFootnote 44 or for network effectiveness more broadly.Footnote 45

A second condition for the collaborative process is capacity building. In EANs, capacity building entails the sharing of experiences with the enforcement of EU environmental law, and the raising of awareness to improve enforcement efforts.Footnote 46 Several observers have identified capacity building as an asset of EANs,Footnote 47 collaborative networksFootnote 48 and transnational enforcement networks,Footnote 49 because it can enable (joint) problem-solving.Footnote 50 Capacity building practices include, for example, workshops, and seminars.Footnote 51 Capacity building differs from information exchange, which could entail simply sending around a newsletter or an email. Therefore, the second condition of a network’s collaborative innovation is capacity building.

The third condition influencing the collaborative process is joint responsibility for network activities. Joint responsibility for network activities, eg through working groups, can thus promote collaborative innovation.Footnote 52 Maggetti and GilardiFootnote 53 showed that joint responsibilities to organise review panels increases EANs’ impact on the domestic adoption of soft rules. A review panel is a working group, in charge of monitoring the spread and implementation of soft rules approved by the network.Footnote 54

c. Drivers of collaborative innovation

The third set of conditions consists of drivers: “factors that further collaborative innovation, including organisational culture, institutional logic, organisational and interorganisational relations and identity aspects of key stakeholders”.Footnote 55

A first driver for collaborative innovation is the informality of a network, or “a perception of the network as informal and facilitating trust”.Footnote 56 Informality in EANs is perhaps best defined as a sense of “openness”Footnote 57 in the relationships between network members, as opposed to a more formal form of participation, driven by formal representation, mandates and responsibilities. Versluis and PolakFootnote 58 found that in the case of the EU network for the Implementation and Enforcement of Environmental Law (IMPEL), informality spurs resource sharing, mutual trust, mutual learning and conflict resolution within and between EANs.

A second driver is a shared logic of appropriateness. In organisational theory, this entails the obligations encapsulated in the rules, roles and identity that come with the membership of a community or group, and the ethos or practices of its institutions.Footnote 59 In EANs, a shared logic of appropriateness can enhance collaborative innovation, in that it makes that members view the network’s objectives as “natural, rightful and legitimate”.Footnote 60

A third driver is information exchange. This entails the gathering and sharing of information, which has been found to be the most significant resource available to EANs.Footnote 61 This is in line with Peterson’s finding that information is the “currency” that keeps policy networks together.Footnote 62

A fourth factor driving the collaborative process is embeddedness of the EAN in broader networks. This refers to the strength or quality of relationships between networks or organisations, as well as the structure of those relationships.Footnote 63 The network in which EANs are embedded is considered a distinct resource to them, enabling them to co-operate strategically with counterparts in their transnational community.Footnote 64 Strongly embedded relations enable information exchange, presupposing time was invested and mutual trust developed.Footnote 65 Hence, as embedded relations are a resource for collaboration, this is expected to be a condition for collaboration as well.

A final driver is a shared professional logic, meaning that network members share professional norms and values. This informs norms and values, of “how things are done”, for example among prosecutors. Whereas appropriateness is a normative framework around topical issues, a shared professional logic stems from a professional ethos rather than a substantive issue.

d. Contextual influences

In the third set of conditions, we focus on conditions outside the organised network. These conditions concern the quality of ties that connect the organised network to other actors and institutions at the micro, meso, and macro level.Footnote 66

At the micro level, positive past collaborations are mentioned in the literature as promoting collaborative innovation, through building a positive outlook on future advantages from being involved in the collaboration.Footnote 67 Whereas a history of antagonism is likely to reduce trust, previous successful cooperation can create social capital and trust, thus producing a virtuous cycle of collaboration.Footnote 68

At the meso level, the legal and institutional opportunities for network collaboration are likely to differ between policy fields. More specifically, collaborative innovation in EANs is expected to be impacted positively by the presence of a network coordinator, either in the form of a lead organisation or a network administrative organisation. Having a network coordinator is more effective than having a shared organisation – at least when the number of network members increases.Footnote 69 Such a central player can serve as a broker between network members, and play a key role in coordinating and sustaining the network.Footnote 70 This role may be played by the European Commission; Martens found that a proactive role from Directorate-General (DG) Environment and DG Enterprise and Industry officials positively influenced the functioning of the IMPEL network.Footnote 71 Yet it must be noted that the role of the Commission will also run into its limits: given the Commission’s role as “guardian of the treaties”, member states may be reluctant to share information with the Commission.Footnote 72 Therefore, it seems that the Commission, if involved, should not be too dominant in the network, at most playing a supportive, facilitating role.

At the macro level, finally, traditions of stakeholder involvement may differ between countries.Footnote 73 Torfing hypothesises that national differences in, for example, stakeholder involvement account for differences in the evolution of collaborative innovation.Footnote 74 Conditions promoting or hindering the collaborative innovation in EANs among national authorities have not (yet) been formulated. Therefore, we do not formulate macro conditions for collaborative innovation (Table 1).

Table 1:

Framework for evaluating collaborative innovation through EANs

III. Method

Having introduced our framework for evaluating the collaborative innovation potential of EANs, this framework can now be applied to our case, ENPE. Before doing so, we detail the method used for this project, comprising case selection, data sources and collection, operationalisation, and validity and reliability of the research.

Our general rationale for conducting a case study was that the evaluation requires qualitative information, partly in light of the fact that networks have limited membership, which makes surveys a less suitable approach. Also, a qualitative case study makes it possible to obtain additional theoretical insights, or deepen our understanding. By selecting ENPE, we opted for a least likely case. The main reason is that criminal law is traditionally the area in which the member states have strongly protected their sovereignty from EU influence.Footnote 75 Accordingly, collaborative innovation is not very likely to take place in this policy domain. Yet if it occurs, this strengthens the findings that ENAs can be effective governance instruments more broadly.

In order to apply the evaluation framework, we have collected data from three sources: policy documents, minutes, and interviews. The documents were published between 2011 and March 2017; the minutes and interviews stem from 2017. This time frame captures ENPE’s informal establishment in 2011, until one year after its formal incorporation as an AISBLFootnote 76 in 2016.Footnote 77 Using qualitative data for evaluating ENPE is especially appropriate, because this enables (inductive) exploration of potential barriers to collaborative innovation, so as to complement the literature. Combining internal and external sources should provide insight into the outcomes of the administrative procedure as well as the interaction between network members.Footnote 78 Moreover, using external sources allows us to cross-validate internal documents, which might be biased towards a more positive assessment of ENPE’s functioning. Finally, internal and external documents together provide an understanding of the full range of collaborative activities in the enforcement space.Footnote 79

We selected documents and respondents using a purposive sampling strategy.Footnote 80 For the interviews, respondents were selected through a snowballing strategy, comprising first of all board members, who then were asked to provide contact details of full members or observer members. The complete data pool consists of 45 documents (see attachment 2 in the online appendix). In total, we conducted 13 interviews, which followed a semi-structured topic list (see attachment 3 in the online appendix). External documents include policy reports and presentations from affiliated partners. Internal documents include minutes (from the general and board meetings between 2011 and March 2017), newsletters, reports and transcript interviews with (observing) members.

The operationalisation of the evaluation factors closely resembles the definition of these factors (see attachment 4 in the online appendix). Therefore, respondents were asked if they “rely on ENPE-members”. Similarly, trust was operationalised as “reliance upon network members in sharing difficulties”. We maintained open-endedness in the codebook when it comes to barriers to collaborative innovation. Maintaining open-endedness to the operationalisation is essential for inductive coding.Footnote 81

The data were analysed through coding of the presence and/or absence of the conditions specified in the theoretical framework (see attachment 4 in the online appendix). In doing so, we followed Strauss and Corbin’s coding procedure of subsequently using open, axial and selective coding.Footnote 82 The data was first coded using an open coding scheme (attachment 4), specifying sub-codes except for the barriers. In order to identify potential barriers to the collaborative innovation process, respondents were asked about the barriers they experience in ENPE. Subsequently, fragments coded as barriers were compared and categorised until sub-codes for barriers could be formulated. Then, all data were coded again, following a selective coding scheme. Attachment 5 (online appendix) shows all the coding schemes used.

With regard to the internal validity and reliability of our evaluation, a few critical remarks are in place. Regarding internal validity, the purposeful sampling strategy has the disadvantage that data can be biased.Footnote 83 All respondents turned out to be from Northern European member states and were closely involved in the network (see attachment 1). To compensate for this selection bias we used multiple data sources to cross-validate information.Footnote 84 To enhance reliability, we maximised transparency on data collection and analysis.Footnote 85 To this end, statements derived from the documents or interviews are accompanied by a reference between brackets to the corresponding document number or interview number (see attachments 2 and 3 in the online appendix).

IV. Results

Formally established in 2016, ENPE is a European network of public prosecutors tasked with enforcement in the realm of environmental crime. ENPE aims to support the operational work of national public prosecutors (25). At the moment of writing (spring 2017), the network counted 15 members and five observing members. ENPE has a board of public prosecutors from France, Ireland, Sweden, the Netherlands and the UK, and a project manager from the UK. With the support of the LIFE funding from the European Commission, ENPE facilitates four working groups specialising in air pollution, waste, wildlife trafficking and sanctioning practices.Footnote 86 In the following, we describe collaborative innovation within ENPE and analyse whether it fulfils the theoretical conditions we specified.

1. Collaborative innovation within ENPE

So far, three forms of collaborative innovation of enforcement practices have materialised: exploration of new monitoring devices, new ways of sharing information, and the exchange of best practices that leads to new ideas. To begin with the first, our interviews revealed that the working group on air pollution discussed whether and how they could use the so-called e-nose, a device used in the Rotterdam harbour to detect hazardous odour.Footnote 87

Second, ENPE found new ways of sharing information through the development of a database of decisions in environmental criminal cases. The database is considered an instrument for the exchange of criminal law. It is accessible on their website, to members of the network. Another example of how ENPE aims to improve existing practices, or provide concrete ideas to do so at least, is for example through their newsletters on Brexit, or “how to handle court proceedings invoking non-compliance with EU waste” (document number 20 and 21 in the online appendix, attachment 2).

Third, our desk search showed that ENPE formulated “sharing experiences and best practices in the enforcement of environmental crime” as their essential objective. The workshops, conferences and general meetings confirm that this is put into practice. As another example of sharing best practices to formulate innovative practices of enforcement among member states, in their LIFE activity report from March 2017 (number 15 in the online appendix, attachment 2) ENPE presented new ideas for strengthening enforcement practices within the domains of wildlife, air pollution, waste and sanctioning across the EU member states. These recommendations are specifically targeted at prosecutors and judges.

1. Applying the framework

As a next step, we apply our evaluative framework, to find out whether ENPE fulfils the theoretical conditions we specified.

a. Self-regulatory capacity

The first condition for collaborative innovation in networks is small network size. Because ENPE is a European network, sources mentioned that ideally all European member states should be involved (34; 28; 14; 11; 4; 8; 9). The network is also open to non-EU countries (5; 8; 9; 15; 46). Interestingly, we found no clear statements from respondents on how to maintain a small scale when the network expands. Rather than scale, respondents argue that a more prominent challenge is how to activate passive members (1; 11; 12). While ENPE does not seem to have made a deliberate decision to maintain a small-scale network in terms of its members, the working groups are kept small deliberately. ENPE has four working groups, which are managed to retain a small scale (up to eight members), in order to safeguard efficiency (3; 4). In conclusion, ENPE fulfils a refined version of the first condition for collaborative innovation: a small scale of the working groups.

The second condition for collaborative innovation is holding face-to-face meetings. Although most contacts occur through email or phone (respondent 2; 3; 6; 11; 13) ENPE organises a face-to-face “annual meeting” (18; 2). In addition, ENPE board members meet at least twice a year in person, unofficially (18). “It is indispensable to complete [communication] with encounters with real, living bodies” (7). “Time, development of relationships, and meeting people. It’s all linked with relationships, that’s the development of trust over time, it really makes those relationships strong” (8). Face-to-face meetings seem to build informal relations in the network (13) and allow for the building of trust (8; 13; 11).

b. Collaborative process

Trust is the third evaluative condition. One respondent argued that trust is implied by many of the network activities: “Getting information is all about building trust” (11). However, trust has to be gained. “I think that is where the informality of the network is helpful sometimes, because, for me it is just like any human relationship. You get to know people a bit, you work with them a little bit and you develop the trust on a kind of human level I suppose” (4). Other respondents argued that trust is built through being “non-judgmental” (11; 13). “There isn’t a structure to that, (trust) (…), but yeah, I would say a certain reliance on professional standards as well (4)”. In conclusion, trust is present within ENPE.

The fourth condition for collaborative innovation is capacity building, which is prominently present in ENPE. “It’s one of the main reasons we are around, you know” (9). The network explicitly aims to build the capacity of prosecutors, especially in the domain of environmental crime (19; 8; 9; 18; 20; 44; 10; 11; 13; 2), for example through exchanging good practices (7; 15; 4). “The idea is to draw upon the expertise of our members, to try and identify obstacles to the successful prosecution of environmental crime, and to find ways of surmounting those obstacles and establish best practices” (2). Capacity building aims to realise mutual learning through exchanging ideas (see 7; 15; 4; 8). “And we do that, we hope, by engagement of our members in workshops to discuss best practices, to disseminate ideas. We hope that we are a repository for some expertise” (2). Workshops revolve around the idea of building capacity not necessarily through formal qualifications, but through sharing best practices “without sounding eh, pompous because ‘we’ve done it’ (…), but we are there to help” (8). In sum, ENPE fulfils the criterion of capacity building.

The fifth condition is a joint responsibility for network activities. In ENPE, this joint responsibility is organised through working groups. These working groups are organised rather informally (13; 2; 9) and lack a clear hierarchical structure (11; 12; 2; 9). Working groups are involved in training and building capacities for prosecuting environmental crime (8; 9; 13; 2). Working groups “focus on an agreed pan-European theme to improve understanding and consistency of [prosecution] practice through training” (25). They were funded through the LIFE project (17; 32; 28; 15; 19; 20) and as such reflect a sense of joint ownership. In sum, ENPE ticks the box of joint responsibility for organising network activities, and it is seen to promote collaborative innovation by the respondents.

The sixth condition for collaborative innovation is a network’s informality. Contrary to expectations, informality and formality go hand-in-hand in ENPE (11; 8; 12; 13). On the one hand, ENPE was founded in a bottom-up fashion by practitioners (2), which indicates informality. Another informal aspect of ENPE is its voluntary membership (2), which is seen to signal “international collegiality” (13; 3; 5; 6). Moreover, the informal gatherings, especially through the working groups, lend themselves to the discussion of prosecution practices, for example through using new technologies (4).Footnote 88 On the other hand, ENPE has formalised certain aspects of the network’s functioning in its statutes. ENPE’s statutes, for example, provide the procedure of board appointments (32; 18) and a formal voting procedure for decision-making at the annual meeting (18). Formalised procedures thus seem to support network management. One respondent even argues that they provide a structure for “sustainable” relations to develop (13).

The seventh condition for collaborative innovation is a shared logic of appropriateness. Within ENPE, this is reflected by a shared commitment to combatting environmental crime (34; 15; 20; 39). The data shows no instances of debate on the relative priority of fighting environmental crime over other priorities. Within the network, promoting enforcement of environmental crime “cuts right across the board in all of the work we do” (2), one respondent argues. This consensual commitment to fighting environmental crime, however, is not necessarily an idealistic motivation (13). Respondents argued that environmental crimes are particularly difficult to get sentenced in court (13; 3; 8). According to the respondents, the shared awareness among network members of the challenges in enforcing criminal law in the environmental domain helps network functioning (20) and makes information-sharing easier (7). In short, the shared logic of appropriateness promotes the collaborative process.

The eighth condition is information exchange. The need for information exchange was one of the main reasons why ENPE was established (15; 18; 7). It is reported to be a core task of EANs in general (23; 7). Through exchanges of case law (35; 3; 4; 8; 9), for example via its newsletter (17; 25; 20; 45) ENPE aims to build enforcement capacity (15; 24; 12; 13; 2; 4).Footnote 89 Another member stated: “Without those initial contacts, twelve years ago, and without the development of ENPE, it would have been a whole different ball game. (…) Because now we have contacts and I was able to speak to X and X and ask if he’d had similar arguments in their law. And they had. And it was part of a supreme court case, which he sent to me and we as part of our argument we referred to that” (8). Information sharing happens informally, between members, but the network also makes a structural effort at dissemination. For example, through the LIFE project, ENPE will produce reports and recommendations on the improvement of the prosecution of environmental crime in Europe (15; 24). Information exchange is thus present in ENPE.Footnote 90

Embeddedness, the ninth condition, is also present. ENPE is embedded in a European institutional context, keeping contact with other EANs, European training networks and other LIFE projects (13; 36; 32; 16; 17; 15; 24; 16), as well as international environmental and/or prosecution networks (37; 18). The EU Forum of Judges for the Environment (EUFJE) and IMPEL, two EANs operating in the domain of law and environment, called for a public prosecutor network (16). ENPE maintains contacts with some of these affiliated partners through conferences (13; 37), workshops, and training (17; 16; 19; 20; 21; 22). Encouraged by the European Council (24) and DG Environment (1), ENPE organises conferences with its European counterparts IMPEL, EUFJE and EnviCrimeNet (16). Moreover, embedded relations within national prosecution organisations and administrations are secured by membership granted to organisations as well as private persons (18). Altogether, ENPE scores positively on the condition of embeddedness.

The tenth condition, a shared professional logic, is also present in ENPE, given its explicit aim to support the operative work of prosecutors (14; 17; 15; 25; 46; 10; 13; 3; 5; 8; 18; 9), for example by exchanging levels of convictions (19; 46; 11; 15; 13; 3; 8). Uneven sanctioning practices in courts have been a key reason for ENPE’s establishment (46; 15). The prosecution logic is also the perspective from which ENPE approaches collaboration across the enforcement chain (15; 1; 26; 20) to improve enforcement in general (17), and with administrative enforcement (20; 21) and judges (7; 21; 22; 25) in particular. The focus on prosecution constitutes the rules, roles and identity that come with the membership of a community or group, signalling ENPE’s shared professional logic.

c. Drivers

The eleventh condition is positive past collaboration experiences. One respondent states that past collaborations are especially positive when there is a personal as well as a professional connection (13). ENPE members share positive memories of joint participation in conferences (13; 6; 5) or know each other from operational collaborations (2; 3), such as joint investigations (8).

The final condition specified by our framework is the presence of a network coordinator. However, ENPE is a bottom-up network, meaning it has not been formally established, eg by legislation or a formal resolution. Therefore, Commission delegates position themselves as partners to the network “available for dialogue” (1). The Commission, specifically DG Environment, is considered a key partner of ENPE (2; 12), in that it provides information on European policy and practices (38; 1; 9). “We share information, we have permanent open dialogue and we try to consider each other’s priorities” (1), the respondent from the Commission argues. Dialogues with the Commission inform ENPE’s agenda setting, but concern issues of environmental crime (1; 20; 23; 1; 11; 7). Furthermore, ENPE receives funding from the Commission, resulting in formal obligations towards the Commission in terms of presentations and dissemination of reports (35; 38; 23; 7; 12; 2; 9). In sum, the Commission plays a supportive role, without being so involved as to shy network members away from sharing information. This is positive, because the latter might be to the detriment of the network’s functioning.Footnote 91

d. Barriers to collaborative innovation

Analysis of the empirical material has also revealed inductively two barriers to collaborative innovation within ENPE. Both barriers operate at the contextual level, rather than at the network level.

The first barrier concerns the pronounced differences between ENPE members. The respondents reported four main differences: language barriers (2; 4); different legal practices (2; 3; 7; 12; 3), variant national transposition (2; 7; 9; 4), and the difference between centralised and decentralised national prosecution systems. The latter type generates difficulties for the appointment of network members (12; 4; 7; 9). Fifthly, ENPE members argue that the presence of non-EU members in the network hampers its operation, which is a reason for worries about the upcoming Brexit (28; 11; 8). Non-membership of the EU can hinder optimal communication, as there are more misunderstandings about each other’s judicial context (2; 7) hindering the collaborative process.

The second barrier that can be derived from the interviews is a lack of permission from members’ supervisors to participate in network activities. This translates into the inability of network members to spend time (13; 2; 3; 9) and money (13; 2) on network activities, which is perceived as a barrier to the network’s functioning. Furthermore, if the shared logic of appropriateness to prioritise environmental crime is no political priority within the administration or organisation, membership as such may be compromised (4; 11).

V. Conclusion

EANs have been presented as means for strenthening the national implementation and enforcement of EU law.Footnote 92 It is assumed that EANs, because of their networked organisation, have the potential to strengthen national enforcement practices vis-à-vis the target groups of environmental legislation. Yet, the conditions under which EANs can realise this potential so far remained unclear.Footnote 93

This paper develops a framework for evaluating EAN effectiveness. Key to this framework is that effectiveness requires collaborative innovation between network members, ie the formulation of new ideas translatable to existing enforcement practices among national enforcement authorities, which include developing new ideas to tackle challenges in enforcement practices. The framework comprises 12 conditions for collaborative innovation through EANs. Factors identified in this evaluation enhance the network’s self-regulatory capacity, its collaborative process, and drivers of collaborative innovation at the network level. Positive past collaboration and favourable legal and institutional conditions are contextual elements argued to promote collaborative innovation within the network.

We used this evaluative framework to assess (the potential for) collaborative innovation of ENPE. As to the dependent variable, our analysis revealed the occurrence of innovative enforcement practices, such as the exploration of new monitoring devices, new ways of sharing information on environmental crime, and exchanging best practices to spur new ideas to strengthen enforcement practices. Turning to the evaluative framework, our analysis showed that all 12 conditions are fulfilled. Hence, ENPE indeed seems to have the conditions in place to foster collaborative innovation. Furthermore, the interviews provided credence to the evaluative framework developed, as they underscored the importance of the selected conditions for network effectiveness. In addition, the interviews revealed two barriers to collaborative innovation within ENPE: differences between national members and members’ lack of permission to partake in network activities.

In sum, our empirical results indicate that the conditions presented in our analytical framework can be used as a starting point for assessing collaborative innovation in the realm of enforcement. The framework may thus provide a useful tool for other researchers wishing to evaluate EAN effectiveness. Secondly, our analysis showed that EANs can be effective tools for collaborative innovation in the realm of enforcement, even in a rather sensitive policy area. Thirdly, the analysis has shown that ENPE faces several challenges to the collaborative innovative process, which we theoretically did not expect to occur.

Reflecting critically upon the research we conducted, we identify several avenues for future research. Firstly, identifying barriers to collaborative innovation at the network level would help to create insight into both promising factors and also pitfalls. Secondly, the relations between the conditions deserve more attention. We have already mentioned the interplay between informality, trust and shared norms and values. Possibly, additional interactions can be at play. Thirdly, researchers might consider developing this theoretical evaluation methodologically. In particular, a more ethnographic study of the networking of national authorities through EANs may be beneficial, allowing for a more in-depth study of the specific practices, and shed light on not just whether conditions are present or absent but especially on how they impact collaborative innovation. Such an approach would do justice to the more interpretive rationale underpinning Torfing’s model,Footnote 94 which we reduced somewhat in this slightly positivist analysis. Fourthly, this paper has not analysed the final impact of collaborative innovation in networks on enforcement on the ground: to what extent do they translate into changed enforcement styles, methods and practices at the national level? Answering this follow-up question would be crucial for answering the question whether EANs are truly fit for purpose.

Supplementary material

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Footnotes

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8 Eberlein and Grande, supra, note 1; A Gouldson et al, “New alternative and complementary environmental policy instruments and the implementation of the Water Framework Directive” (2008) 18 Environmental Policy and Governance 359; M Martens, “Administrative Integration through the Back Door? The Role and Influence of the European Commission in Trans-governmental Networks within the Environmental Policy Field” (2008) 30 Journal of European Integration 635; Levi-Faur, supra, note 7; Hobolth and Martinsen, supra, note 6; M Maggetti and F Gilardi, “Network governance and the domestic adoption of soft rules” (2014) 21 Journal of European Public Policy 1293.

9 Hobolth and Martinsen, supra, note 6; Maggetti and Gilardi, supra, note 8.

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13 Mastenbrock and Martinsen, supra, note 5.

14 Maggetti and Gilardi, supra, note 8; Smith, M and Drake, S, “Introduction” in Drake, S and Smith, M (eds), New Directions in the Effective Enforcement of EU Law and Policy (Edward Elgar Publishing, 2016); D Martinsen and M Hobolth, “The effectiveness of trans-governmental networks: managing the practical application of European integration in the case of SOLVIT” in Drake and Smith, Footnote ibid.

15 It must be noted that these functions can partly also be fulfilled by other types of “filling” of the European Administrative Space, notably European agencies. Many of these agencies are also fully or partly networked. See Levi-Faur, supra, note 7.

16 Hobolth and Martinsen, supra, note 6.

17 D Bach and A Newman, “Transgovernmental networks and domestic policy convergence: Evidence from insider trading regulation” (2010) 64 International Organization 505.

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20 E Sørensen and J Torfing, “Introduction: Collaborative innovation in the public sector” (2012) 17(1) The Innovation Journal 1; S Clegg et al, “The transformative power of network dynamics: a research agenda” (2016) 37 Organization Studies 277; Torfing, J, Collaborative Innovation in the Public Sector (Georgetown University Press, 2016).

21 Torfing, supra, note 20.

22 Smith and Drake, supra, note 14.

23 Martinsen and Hobolth, supra, note 14.

24 Hobolth and Martinsen, supra, note 6.

25 Footnote ibid.

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28 J Lehane, “Towards a critical analysis of environmental enforcement networks” in Fauré et al, supra, note 27.

29 Torfing, supra, note 20.

30 Footnote ibid.

31 Footnote ibid, 65–66.

32 Footnote ibid, 105.

33 Torfing, supra, note 20.

34 Footnote ibid, p 105.

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38 Versluis, E, Enforcement Matters: Enforcement and Compliance of European Directives in Four Member States (Eburon, 2003); C Ansell and A Gash, “Collaborative governance in theory and practice” (2007) 18 Journal of Public Administration Research and Theory 543.

39 Versluis, supra, note 38.

40 Ansell and Gash, supra, note 38.

41 Footnote ibid.

42 Torfing, supra, note 20, p 223.

43 J Hartley, “Innovation in governance and public services: Past and present” (2005) 25 Public Money and Management 27 at 32.

44 Eberlein and Grande, supra, note 1, p 103.

45 T Börzel and K Heard-Lauréote, “Networks in EU multi-level governance: concepts and contributions” (2009) 29 Journal of Public Policy 135; K van Boetzelaer and S Princen, “The Quest for Co-ordination in European Regulatory Networks” (2012) 50 Journal of Common Market Studies 819; Versluis, E and Polak, J, “International cooperation via networks and agencies: A tale of perceptions, informality and national cultures” in van der Steen, M and Chin-A-Fat, N (eds), Cross-border Cooperation between National Inspectorates (Netherlands School of Public Administration, 2016).

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47 Gouldson et al, supra, note 8; B Eberlein and A Newman, “Escaping the international governance dilemma? Incorporated trans-governmental networks in the European Union” (2008) 21 Governance 25; Martinsen and Hobolth, supra, note 14.

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49 Pink, supra, note 46; Slaughter, supra, note 26.

50 Footnote ibid.

51 Footnote ibid.

52 Torfing, supra, note 20, p 106.

53 Maggetti and Gilardi, supra, note 8.

54 Footnote ibid.

55 Footnote ibid, p 106.

56 Versluis and Polak, supra, note 45, p 30.

57 Footnote ibid, p 29–30.

58 Footnote ibid, p 28.

59 JG March and JP Olsen, “The logic of appropriateness” (2004) ARENA Working Papers, 9 <www.sv.uio.no/arena/english/research/publications/arena-working-papers/2001-2010/2004/wp04_9.pdf> accessed 16 August 2019.

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66 Torfing, supra, note 20, p 106.

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75 Macrory, R, Regulation, Enforcement and Governance in Environmental Law (Hart Publishing, 2014).

76 AISBL means “association sans but lucratif” [associations without a lucrative purpose], a formal designation under Belgian law.

77 European Network of Prosecutors for the Environment, “Home” (nd) <www.environmentalprosecutors.eu/>, accessed 16 August 2019.

78 Hofmann, supra, note 10.

79 Footnote ibid.

80 H Suri, “Purposeful sampling in qualitative research synthesis” (2011) 11 Qualitative Research 63.

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87 ENPE, supra, note 77.

88 The e-nose is a new technology through which (dangerous) odeur can be detected. It is already used in Rotterdam Harbour for example, but has not been yet used to present evidence before court (4). See for more information on the application of e-nose: <www.portofrotterdam.com/en/the-port/safe-port/e-noses-for-a-safe-port>.

89 ENPE makes the following remark with respect to the case law exchanged through the database in its newsletter: “It is important to note that the database is of a non-operational character and concerned with legal aspects only. Names of defendants and other identifying information are left out” (3). Other respondents also note they cannot exchange information on operational cases, or personal information, as operational protocol declares this information confidential (13; 12; 8).

90 While it is beyond the scope of this article to explore the specific outcomes of ENPE, information exchange can also be considered an outcome of ENPE’s collaborative process. The database with environmental case law, discussed in section III, is an example of innovative enforcement through ENPE.

91 Versluis and Tarr, supra, note 72.

92 Hobolth and Martinsen, supra, note 6; Maggetti and Gilardi, supra, note 8.

93 Mastenbroek and Martinsen, supra, note 5; M Scholten, “Mind the trend! Enforcement of EU law has been moving to ‘Brussels’” (2017) 24 Journal of European Public Policy 1348.

94 Torfing, supra, note 20.

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Figure 0

Table 1:Framework for evaluating collaborative innovation through EANs

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