Empowerments (Part II): The empowerment checklist

The following list of empowerments should be used to verify whether all necessary empowerments have been integrated into the draft regulation under development.

It is recommended to read first the previous howtoregulate article on “Empowerments (Part I): typology”. For readers who have not done so, we repeat here a key recommendation of that article:

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”.”

Furthermore, we copy the chart which summarises the parameters which are behind the typology of measures and corresponding empowerments developed in that article. Once you have used the checklist to complete the empowerments of your draft, you should ideally check each identified empowerment against some of the 22 other fields in the chart to help you to identify additional necessary empowerments.

Regulatory measures

Administrative 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 enforcement

Not 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

Determining non-financial rights

Empowerments might be needed for:

  • Authorising undertakings;
  • Subjecting authorisations to conditions (from the beginning or even later);
  • Renewing an authorisation;
  • Suspending authorisations;
  • Withdrawing authorisations (with effect from the time when the conditions were not met anymore);
  • Repealing/revoking authorisations (with effect from the time when the condition wasere not met from the beginning); and
  • Stating that a certain right exists by virtue of the law.

Determining non-financial obligations of natural and legal persons

This section can hardly be illustrated by concrete empowerments without taking the specific context of the respective sector into account. A future article on requirements will develop a typology of requirements and thus indirectly of obligations and might serve as illustration of what needs to be thought of. However, two types of obligations and corresponding empowerments mentioned in the previous howtoregulate article are often forgotten and thus merit being mentioned explicitly right away:

  • Imposing injunctions, e.g. aiming at non-interference, toleration of action of the state or third parties; and
  • Imposing interim obligations (obligations pending a final decision).

Determining financial rights and obligations of natural and legal persons

Empowerments might be needed for:

  • Providing subsidies;
  • Subjecting grants to conditions (from the beginning or at a later point in time);
  • Renewing grants;
  • Withdrawing grants (with effect from the time whern the conditions were not met anymore);
  • Repealing/revoking grants (with effect from the time when the condition was not met from the beginning);
  • Making financial contributions other than grants (e.g. joint investment);
  • Stating that a certain right exists by virtue of the law;
  • Obliging to compensate damages;
  • Compensating damages;
  • Recovering compensation or other payments given to some persons from others;
  • Recovering payments (which were not due from the beginning or which had to be returned for reasons arising later); and
  • Recovering costs for state action, e.g. for investigations triggered by infringements.

Imposing costs on natural or legal persons

Empowerments might be needed for:

  • Imposing enforcement costs;
  • Taking fees for state action (e.g. for authorisation procedures);
  • Requesting securities (as guarantee for the fulfillment of financial obligations); and
  • For all financial obligations and financial sanctions or penalties: levying extra fees and interests for delayed payment.

Sanctions and penalties

Empowerments might be needed for:

  • Penalties for natural persons;
  • Financial sanctions for legal persons: direct sanctions and indirect sanctions like banning from receiving subsidies;
  • Exclusions from public tenders;
  • Imposing a ban from participating in certain activities other than tenders;
  • Imposing a ban from receiving grants;
  • Public naming and shaming;
  • Withdrawing titles and rewards;
  • Withdrawing membership;
  • Extending sanctions to mother or sister companies and their agents, at least in cases where a company has been set-up as a shield for illegal activities1;
  • Extending sanctions to partner companies and their agents where they contributed to illegal activities;
  • Confiscating illegal objects or property used in or in connection with the illegal activity or obtained in return or in connection with the illegal activity (“tainted property” according to the terminology used in the Ugandan Anti Money Laundering Act 2013, see for details the Sections 61 onwards thereof);
  • Restraining orders against objects (see Sections 71 onwards of the Ugandan Anti Money Laundering Act 2013); and
  • Restraining orders against persons (obligation to stay in a certain perimeter).

Additional empowerments for all financial obligations and financial sanctions or penalties

One might need an empowerment to enforce via confiscation of objects, rights or money or via lawsuits or generic state enforcement procedures. This should in particular include “tainted property”, meaning property used in or in connection with the illegal activity or obtained in return or in connection with the illegal activity; see the Sections 61 onwards of the Ugandan Anti Money Laundering Act 2013.

Enforcement with the help of non-designated third parties

Empowerments might be needed for:

  • Establishing a complaints, alert or whistle-blowing portals or specific communication channels;
  • Communication campaigns aimed at introducing or giving information about the whistle-blowing portals or communication channels; and
  • Communicating with third parties to obtain further evidence and details.

Enforcement via regional authorities, geographic entities or designated third parties

We distinguish here between regional authorities and geographic entities, because regional authorities can also be those that belong formally to the federal state though being just responsible for a region.

Empowerments might be needed for:

  • Establishing minimum resource requirements or at least of parameters for determining how many full-time equivalences (FTE) are needed for enforcement at the level of geographic entities or designated third parties2.
  • Benchmark designated third parties, regional authorities or geographic entities, applying the naming and shaming principle;
  • Creating the legal possibility of steering grants away from authorities not willing to enhance enforcement to those which are strongly engaged;
  • Creating incentives for highly performing third parties, regional authorities or geographic entities3;
  • Obliging to undertake certain enforcement activities (in some jurisdictions: to be specified);
  • Obliging to inform about enforcement activities;
  • Obliging to inform about certain critical events, incidents, problems, obstacles;
  • Obliging to ensure qualification of staff by minimum recruitment requirements and training requirements;
  • Obliging to participate in certain training or information or coordination events;
  • Obliging to undergo accreditation (by independent accreditation bodies, see IAF);
  • Obliging to participate to peer-review;
  • Delegating investigation tasks (by means of public or private law);
  • Therein in particular: Delegating the collection and investigation of complaints;
  • Delegating enforcement tasks (by means of public or private law);
  • Giving regional authorities or geographic entities the right to delegate investigation or enforcement tasks; and
  • Designating the lead regional authority, geographic entity or lead third party in cases where different regional authorities, geographic entities or third parties are involved and coordination is necessary.

Designation and supervision of public or private organisations entrusted to play a special role in the application of regulation

Empowerments might be needed for:

  • Preselecting potential cooperating organisations in cases of high number of potential candidates;
  • Establishing selection criteria;
  • Selecting members of panels attributing subsidies, functions or other advantages;
  • Taking discretionary decisions regarding the attribution of subsidies, functions or other advantages (which can exclude full legal control); and
  • Taking into account previous assessments of the candidate organisation (by the same authority, by others, by foreign jurisdictions or by third bodies like accreditation bodies).

Investigations and data

Empowerments might be needed for:

  • Conducting, or cooperating with persons conducting, research, development, tests, demonstrations and studies and publishing this research or test results;
  • Imposing obligations to cooperate without remuneration with the authority and in particular to permit samples to be taken or provide samples on request, provide information, and to grant access to documentation and premises;
  • Arrest (and financial sanctions) in case these obligations are not fulfilled;
  • Visiting and inspecting offices, factories, warehouses, wholesaling establishments, retailing establishments, laboratories, research institutions and other premises in which products are produced or kept, or where services provided);
  • Entering and inspecting any vehicle used to transport or hold products or to provide services;
  • Investigate alleged violations of laws and regulations
  • Taking samples of the products covered by the regulation in question;
  • Ordering anonymously or via proxy products or services in view of assessing their conformity;
  • Seizing and taking possession of all articles which are in non-conformity, be they placed with the person responsible for the infringement or other persons;
  • Seizing and taking possession of all documents, data and objects which might serve as means of proof for stating the non-conformity;
  • Compelling the attendance of witnesses and the production by third parties of evidence via a subpoena, when there are reasons to believe or first evidence for assuming that any infringement there is;
  • Compelling the production or delivery of data or documents of any kind, including on property or other rights related to objects and rights, issuing document search warrants and further empowerments needed to search and confiscate documents (see the excellent Sections 44 onwards of the Ugandan Anti Money Laundering Act 2013);
  • Therein in particular: empowerment to request data from Internet or telecommunication service provider;
  • Supervising the internet communication or telecommunication (meta-data or even content) in a personalised or generic way;
  • Acquiring data and documents from third parties, including against payment or providing advantages;
  • Processing data;
  • Exchanging data with other authorities, courts, natural or legal persons or other jurisdictions and adopting agreements in this regard4; and
  • Personal supervision of persons / monitoring orders (see as example Sections 56 onwards of the Ugandan Anti Money Laundering Act 2013).

Enforcement in general

Empowerments might be needed for:

  • Empowerment to request from Internet or telecommunication service provider blocking of certain content;
  • Empowerment to block certain internet content by own means;
  • Issuing notices of non-compliance and set an appropriate deadline for rectification of the situation;
  • Confiscating and destroying illegal products or means to produce them or means to provide illegal services;
  • Forbidding the use of premises or establishments;
  • Closing plants and other premises;
  • Retaining shipments (in particular for customs authorities);
  • Requesting securities (as guarantee for the fulfillment of non-financial obligations);
  • Publishing evaluations on own compliance statistics, compliance reporting by regional authorities and third parties (naming and shaming);
  • Publishing individual infringements;
  • Obligating regional or local authorities to publish stated infringements of operators („naming and shaming“);
  • Creating a label for those operators who, over a longer period, have not been reported to infringe the law;
  • Creating a label for those operators who undergo a voluntary compliance verification program managed by the chambers of commerce or similar semi-public organisations or by conformity assessment bodies engaged by them (entrusted certification).
  • Obliging economic operators to display information on the conformity assessment of regulated products or services, e.g. by web link;
  • Obliging operators to disclose (better online, but at least to the authorities) the major components and substances/materials used;
  • Obliging operators to disclose (better online, but at least to the authorities) the supply chain for major components or service providers and for substances/materials used, ensuring traceability;
  • Obliging operators to inform their clients of their rights in case of illicit practice; and
  • Imposing immediate, temporary obligations by provisional order (e.g. for reasons of imminent danger).

Information

Empowerments might be needed for:

  • Information dissemination to media, with or without data concerning natural or legal persons;
  • Information campaigns for the general public or specific target groups;
  • Blocking illegal information or information which endorses illegal activities;
  • Informing the clients of non-compliant operators of their rights; and
  • Informing the clients of non-compliant operators of the legal requirements applicable for the product in question, inviting them to verify compliance and to report.

Cooperation, including exchange of data with other jurisdictions

It is recommended to assess which of the national empowerments one can make available to other jurisdictions in return for assistance from these other jurisdictions. Furthermore, empowerments might be needed to make the other jurisdiction work on one’s own behalf or to operate on the ground of another jurisdiction with the agreement of the latter (e.g. common practice of food inspection authorities with regard to foreign slaughter houses).

Whilst we cannot claim completeness for the following list, we recommend verifying in particular the need for the following empowerments:

  • Permitting foreign officers to take part in state operations;
  • Disclosing confidential information to authorities of other jurisdictions;
  • Establishing joint expert committees and data exchange needed for that purpose;
  • Investigating or enforcing on the territory of the other jurisdiction;
  • Empowering foreign authorities to investigate cases on one’s own behalf on the territory of the other jurisdiction;
  • Requesting foreign authorities to enforce on one’s own behalf on the territory of the other jurisdiction;
  • Enforcing on request of the foreign authority;
  • Empowering foreign authorities to investigate cases on their own behalf on one’s own territory;
  • Requesting foreign authorities to enforce on their own behalf on one’s own territory;
  • Recognising foreign certificates or approvals;
  • Extension of domestic investigational empowerments to cases committed outside the applicability of domestic law, but subject to the law of another jurisdiction where there is mutual assistance between the two jurisdictions (based on formal agreements or practical arrangements).
  • Mutual legal assistance in general, including for court procedures, see Sections 106 onwards of the Ugandan Anti Money Laundering Act 2013; and
  • Extradition of offenders for offenses committed in other jurisdictions; andTransfer of witnesses in custody for court procedures in other jurisdictions.

Cooperation, including exchange of data with international organisations

Similar to the previous, except that some items might not be relevant.

Intra-organisational measures

Empowerments might be needed for:

  • (Re-)Assigning of human resources (in case of changing situation);
  • (Re-)Assigning of financial resources (in case of changing situation);
  • Assigning of and cooperation with external experts as advisors;
  • Creating scientific or advisory bodies;
  • Establishing procedures regarding scientific or other advisory bodies;
  • Creating intra-organisational independence (e.g. for scientific or advisory bodies that must have independence to be credible);
  • Intra-organisational reporting obligations;
  • Intra-organisational control mechanisms (e.g. mandatory review by superior instance for difficult or important decisions, periodic control review, right to instruct);
  • Intra-organisational disciplinary procedures; and
  • Whistle-blower protection mechanisms (a universe of its own, see the howtoregulate article “Whistleblowers: protection, incentives and reporting channels as a safeguard to the public interest”).

1  See Section 7.18 of the Handbook “How to regulate?”.

2  Parameters could include population, number of operators to be verified, or number of administrative districts. Quantified minimum resources could be, for example: 10 FTE per region and 1 FTE per million population at the central level for the overall management of enforcement (with no other tasks of course). 2 FTE per district and 1 per 100,000 inhabitants in each district.

3  We heard that Bulgarian customs authorities obtain, when being particularly successful, financial rewards that they can use to improve their office facilities.

4  For these aspects, please have a look at Sections 37 onwards and 46 onwards of the Ugandan Anti Money Laundering Act 2013.

Leave a Reply