Empowerments (Part I): typology

To ensure the good application of law, authorities must have empowerments. However, we have not yet found any systematic presentation of types of empowerments. We aim at closing this gap by this article. We will see that the focus on empowerment permits a new, complementary view on what regulation should contain. This complementary view can be used to double-check whether draft regulation is complete.

I. Primary typology of empowerments

1. Regulatory versus administrative measures

Empowerments may be needed for the administration to adopt regulatory measures and other measures which we call here “administrative measures”. We define regulatory measures as measures of general applicability targeting an undetermined number of persons. A law/regulation is the most prominent type of regulatory measure whilst a decision in an individual case is the most prominent type of an administrative measure. It targets one or a few individuals, is thus clearly opposed to a regulatory measure such as a law which targets an undetermined number of persons. Some administrative measures do not target any person at all, because they are intra-organisational.

We have to admit that the definition of „regulatory measure“ is itself subject to interpretation and not necessarily clear-cut. Two classics to illustrate:

– What about a (formal) law which, whilst being formulated in an abstract way, happens to be applicable only in one case?

– What about a traffic sign, placed in adoption of a generic traffic regulation, but still targetting an undetermined number of persons passing by?

Despite these tricky borderline cases, we have noticed that most jurisdictions set-up different rules and require different types of empowerments for adopting regulatory measures than for adopting administrative measures. Hence it seems imperative to mirror this distinction in this article, leaving the precise definition of „regulatory measure“ to the respective jurisdictions.

2. Sub-divisions of regulatory measures

The regulatory measures can be subdivided into two groups:

– Regulatory measures defining1 the rights2 and obligations3 of natural or legal persons, thus measures which define these rights and obligations for an undefined number of natural or legal persons and thus are of general applicability;

– Regulatory measures (by definition of general applicability) which establish general rules for administrations, but do not define rights and obligations of natural or legal persons. We could call these regulatory measures “organisational regulatory measures”.

Both groups could be further subdivided into primary regulatory measures, containing the major principles, and secondary regulatory measures which complement primary regulatory measures by providing details thereto or by clarifying specific aspects.

Both groups can furthermore be subdivided into those regulatory measures which aim at enforcement and those which don’t. As regulatory measures aiming at enforcement are very rare, we present this distinction in the context of administrative measures.

3. Sub-divisions of administrative measures

We define administrative measures as measures other than regulatory measures. If any at all, they define the rights and obligations of natural or legal persons4 only for a determined number of persons.

Similar to the distinction made for regulatory measures, the administrative measures can be subdivided into the following groups:

– Administrative measures defining the rights and obligations of natural or legal persons5, thus measures which define these rights and obligations for a defined / limited number of natural or legal persons;

– Administrative measures not defining rights and obligations, but supporting or ensuring the good application of regulation, such as intra-administrative measures, cooperation with other administrations, public or private organisations or even other jurisdictions and international organisations, or the collection and processing of data. We could call these administrative measures “organisational administrative measures”.

As for regulatory measures, both groups could be further subdivided into those which deal with primary issues and those dealing with secondary issues. As example, take the decision of the fiscal authority to impose a certain fiscal duty on you (primary decision) versus a later (secondary) decision to allow you to pay the duty in monthly rates.

Moreover, both groups could be further subdivided into those aiming at the enforcement of regulatory or administrative measures and those which do not. Enforcement traditionally aims at rights and obligations of natural and legal persons. However, we have also seen some examples of administrative measures for intra-administrative enforcement, e.g. for cases where a low-level administrative entity does not follow the rules.

4. The primary typology developed above reflects 4 parameters which correspond to the following binary possibilities:

Regulatory measuresAdministrative measures

Defining the rights and obligations of natural or legal persons

Not defining the rights and obligations of natural or legal persons, but aiming at good application of the law or intra-administrative aspects, hereafter called “organisational measures”
Primary level (major issues)Secondary level (minor issues, details, interpretation of the primary level)
Aiming at enforcementNot aiming at enforcement

All four parameters can be combined with each other so that 16 different cases of empowerments can be established. But some cases are frequent, and some are rare or otherwise merit some particular remarks.

II. Some special aspects regarding the cases covered by the primary typology of empowerments

1. Organisational measures touching upon the rights of natural or legal persons

At first sight, one might believe that organisational measures do not touch upon the rights of natural or legal persons. However, the example of data collection shows that even organisational measures may touch upon the rights of natural or legal persons, subject to the respective legal order of the jurisdiction. In quite a number of jurisdictions an empowerment is needed to authorise an administration to collect data on individuals. Even more so, an empowerment is needed in many jurisdictions to permit the administration to investigate individual cases, to verify that rights and obligations are respected and to ensure that rights and obligations are respected, in particular when the investigation has lead to the statement of an infringement.

2. Enforcement measures touching themselves upon the rights and obligations of natural or legal persons

Enforcement measures that touch upon the rights and obligations of natural or legal persons merit our special attention when determining empowerments. The constitution or other high-ranking law of the jurisdiction in question might require a special empowerment for these enforcement measures, in addition to the general empowerment to enforce rights and obligations. Accordingly, regulation must be particularly precise and detailed in that respect to ensure that enforcement will not fail.

We have so far assumed that, regardless of whether they aim at enforcing regulatory measures or administrative measures, enforcement measures may themselves touch upon the rights and obligations of natural or legal persons. Let us analyse this in more detail:

– Even if I owe the state 1.000 €, my rights might be violated if a state officer walks into my house and confiscates my Swiss watch. Subject to the respective jurisdiction, my house might be particularly protected against entry by state agents without cause or a warrant. Furthermore, I might have procedural rights, e.g. in terms of obtaining the chance to pay my debt on my own initiative.

– The natural or legal persons affected by enforcement measures are not necessarily the persons against which the enforcement is directed. They may also be third parties, more or less closely linked to the holders of the rights and obligations. E.g. if I host a person who is a criminal (and evidently I know the person is a criminal for whom the authorities are searching), I might be obliged to tolerate that measures aiming at capturing the criminal touch also upon my legal sphere; and even my partner or my landlord might be obliged to tolerate these measures, though they are even less responsible for the acts of the criminal.

Based on the two previous indents or paragraphs, we can observe a hierarchy:

Primary rights and obligations of natural or legal persons may require enforcement measures which can touch upon the (secondary) rights and obligations of the same or other natural or legal persons, and the (secondary) enforcement of the secondary rights and obligations may require even further (tertiary) measures which touch upon (tertiary) rights and obligations of individuals, and so on, be the natural or legal persons the same or others.

Regulators should discuss with enforcement practitioners which primary, secondary or tertiary enforcement measures they need to take in practice. Once the needs have been established, regulators should analyse which of the measures are already covered by existing, e.g. generic empowerments and which are not (gap analysis). Based on the gap analysis, complementary, sector specific empowerments can be provided in the regulation, whilst making sure that these specific empowerments are deemed to be just complementary. Alternatively, a full range of enforcement empowerments can be laid down in the regulation. This second alternative has the advantage of making the regulation in question independent from generic enforcement provisions. However, the second alternative is more cumbersome to conceive and to update.

3. Direct and indirect enforcement

Another, similar hierarchy can be observed in the context of enforcement. Enforcement cannot only be ensured directly by the authority primarily responsible for the subject matter, but also indirectly by other authorities / public institutions or by natural or legal persons. An example for the first case is that customs authorities assist authorities responsible for product safety by controlling imported goods. An example for the second case are private conformity assessment bodies which were entrusted to certify or to take measures against infringements.

There seems to be little consciousness of regulators regarding these two enforcement hierarchies because one can observe that enforcement empowerments are often even missing; this is at least what the Regulatory Institute and the author have found when analysing regulation. Both have hardly found regulation which was complete or close to complete in terms of enforcement empowerments.

III. Further parameters to be applied on measures (with special focus on enforcement measures)

We have so far developed a primary typology for empowerments, distinguishing inter alia between empowerments for regulatory measures and for administrative measures. Furthermore, we have identified another distinction or parameter for enforcement measures: direct versus indirect enforcement. This distinction can be zoned-up to the level of regulatory or administrative measures in general. Also measures other than enforcement measures can operate directly or indirectly. E.g., third parties can be referred to and required to provide licences to a high number of natural or legal persons. Third parties can even be referred to and required to establish regulatory measures. E.g., in quite a number of jurisdictions professional associations are empowered to adopt regulatory measures dealing with the question of how the profession shall be executed. To create such an empowerment in regulation constitutes an indirect operating regulatory measure. Accordingly, we have already won another parameter applicable to both regulatory and administrative measures:

Direct measuresIndirect measures

However, there are further possible distinctions or parameters that can be applied to regulatory and administrative measures and in particular to administrative enforcement measures. These include the following:

Measures dealing with persons (e.g. arrest)

Measures which do not deal with persons

Measures dealing with objects, be they real or virtual like websites or patent rights

Measures which do not deal with objects, be they real or virtual like websites or patent rights

Measures dealing with money

Measures which do not deal with money

Preliminary or other time-related limited measures (e.g. retention of a medicine infringing a patent for the time of validity of the patent)

Definitive or continuous measures (e.g. destruction of heroin)

One-off measures

Repetitive measures

Measures with effects (only) on the territory of the authority

Measures with effects (also) outside the territory of the authority

IV. How to identify the measures and corresponding empowerments needed?

It is not amusing to see that newly adopted regulation fails or requires amending soon after due to insufficient empowerments for the administration to take enforcement measures or for the good application in general. Hence it is worthwhile checking whether all needed empowerments are provided by draft regulation. But how to undertake this check best?

We see five ways to use the typology of empowerments developed above :

– The systematic approach: combining all the parameters of empowerments so as to assess in total several hundred different empowerments. Use the checklist presented in the next howtoregulate article Part II: The empowerment checklist to complement;

– The intuitive approach: taking the parameters of empowerments just as inspiration for intuitively identifying needed empowerments. When doing so, one might ask: 1. What should the administration be able to do to enforce the new regulation or to otherwise improve its application? 2. Who could help to enforce the new regulation or to otherwise improve its application? Once answers to these questions has been found, it is possible to formulate empowerments. Use the checklist presented in the next howtoregulate article Part II: The empowerment checklist to complement;

– The half intuitive, half systematic approach: Print the chart listing all the parameters that you find at the end of this text, cut along the lines of the chart. Look at all combinations of two pieces of paper (except for those pieces of paper which have the same number). In theory, there could be 110 combinations, but many combinations are obviously not relevant. Thus you will reflect only on about 40 to 60 combinations, subject to your sector. Use the checklist presented in the next howtoregulate article Part II: The empowerment checklist to complement;

– The best-guess approach: Print the chart listing all the parameters that you find at the end of this text, cut along the lines of the chart. Select those combinations under the parameters of empowerments which are the most plausible for the respective regulatory subject matter / sector and focus your analysis on these. Use the checklist presented in the next howtoregulate article Part II: The empowerment checklist to complement.

– The checklist-only-approach: In the next howtoregulate article Part II: The empowerment checklist, we will present a checklist for the most frequently needed empowerments. Whilst not deemed to serve as replacing own reflection, the checklist could still be used as means to identify needed empowerments from scratch. Once you have identified the empowerments or the list which are appropriate for your sector, have a look at each field of the chart that you find at the end of this text to check whether there are neighbouring empowerments still missing.

Whatever method you apply:

– Once you have identified a need for an empowerment, check whether you might need neighbouring empowerments. E.g.: If you detected a need for an empowerment to confiscate illegal objects you might also need an empowerment to confiscate money obtained by selling illegal objects, and this both for physical money and virtual money, including bitcoins or other virtual currencies and the computers on which the virtual currencies are “stored”.

– Check whether your jurisdiction requires a specific empowerment for review, renewed decisions or regulations, withdrawal or repeal of decisions or regulations etc.

– In some jurisdictions, it is sufficient that the legislation assigns a task – and the empowerment follows indirectly from the task assignment. In others, tasks and assignments are different things. Check whether your authorities need empowerments corresponding to the tasks which have been assigned to them.

V. Generic or specific empowerments?

Once regulators have established which measures and corresponding empowerments are needed by their administration, they can appropriately reflect on how best to cover them.

Basically, regulators can pursue two strategies:

– either bundling the needed empowerments in generic text, covering many particular empowerments in one strike (hereafter: “generic empowerments”);

– or listing the empowerments one by one in a list of specific empowerments.

The advantage of the first strategy is that the legal text is shorter. Furthermore generic empowerments have a lower risk of missing certain situations. Even empowerments that have not been thought of by the regulator can be provided by a generic empowerment.

The advantage of the second strategy is more legal certainty, more preciseness. Also, generic empowerments are less tangible, concrete so that the administrations do not necessarily get aware of all the measures which might be possible under a generic empowerment.

In quite a number of jurisdictions, very generic empowerments are not permitted by the Constitution or by the case-law of the supreme or constitutional court. The limit of abstraction accepted may evidently vary from jurisdiction to jurisdiction.

As both strategies have pros and cons, we recommend a combination of the two:

The ideal regulation contains in our view a generic empowerment which is concrete enough to pass the control by the supreme or constitutional court. But this generic empowerment should be followed by a list or series of specific empowerments which can also serve as illustration of what is meant by the generic empowerment. Ideally, both go hand-in-hand. The two empowerments can be linked as follows:

“The authority XYZ may take all measures necessary to ensure that … “ (goals and objectives of the regulation).

“The authority XYZ may in particular …”

This article will be followed by another article presenting a checklist of empowerments.

ANNEX: 11 parameters or binary distinction criteria for measures and corresponding empowerments identified in the previous text

Regulatory measuresAdministrative measures

Defining the rights and obligations of natural or legal persons

Not defining the rights and obligations of natural or legal persons, but aiming at good application of the law or intra-administrative aspects, hereafter called “organisational measures”
Primary level (major issues)Secondary level (minor issues, details, interpretation of the primary level)
Aiming at enforcementNot aiming at enforcement

Direct measures

Indirect measures

Measures dealing with persons (e.g. arrest)

Measures which do not deal with persons

Measures dealing with objects, be they real or virtual like websites or patent rights

Measures which do not deal with objects, be they real or virtual like websites or patent rights

Measures dealing with money

Measures which do not deal with money

Preliminary or other time-related limited measures (e.g. retention of a medicine infringing a patent for the time of validity of the patent)

Definitive or continuous measures (e.g. destruction of heroin)

One-off measures

Repetitive measures

Measures with effects (only) on the territory of the authority

Measures with effects (also) outside the territory of the authority

1The “defining” encompasses two different situations: 1st rights and obligations can be set by regulation or individual administrative measures. 2nd rights and obligations can be formally stated to exist by virtue of pre-existing regulation; in the second case, a clarification is provided.

2The rights can be “active” (the right to obtain something) or “passive” (the right to be protected against something).

3Likewise, the obligations can be “active” (obligation to do something) or “passive” (the obligation to tolerate something). In between is the obligation not to do something (injunction).

4These administrative measures may contain orders or authorisations or the withdrawal or modification of one of the two.

5These administrative measures may contain orders or authorisations or the withdrawal or modification of one of the two.

Leave a Reply