Private Regulation and Enforcement in the EU: Finding the Right Balance from a Citizen’s Perspective 9781509919529, 9781509919550, 9781509919543

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PRIVATE REGULATION AND ENFORCEMENT IN THE EU Globalisation and technological innovation have been fuelling the need for increasing levels of trust in private actors, such as companies or special interest groups, to regulate and enforce significant aspects of people’s daily lives: from environmental and social protection to the areas of food safety, advertising and financial markets. This book investigates the trust vested in private actors from the perspective of European citizens. It answers the question of whether private actors live up to citizens’ expectations or whether more should be done as to the safeguarding of citizens’ interests. Several cross-cutting studies explore how private regulation and enforcement are embedded in EU law. The book offers an innovative approach to private regulation and enforcement by focusing on the specific EU context which, unlike the national and transnational ones, has not yet been widely explored. This context merits a stand-alone analysis because of the unique normative framework of the EU, as a particular polity itself but also in relation to its Member States. With an overall analysis of the main aspects of private regulation and enforcement across different policy fields of the EU, the book adds a missing tile to the mosaic of public–private governance studies.

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Private Regulation and Enforcement in the EU Finding the Right Balance from a Citizen’s Perspective

Edited by

Madeleine de Cock Buning and

Linda Senden

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2020 Copyright © The editors and contributors severally 2020 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2020. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Cock Buning, M. de, editor.  |  Senden, Linda, editor. Title: Private regulation and enforcement in the EU / edited by Madeleine de Cock Buning and Linda Senden. Other titles: Private regulation and enforcement in the European Union Description: Oxford ; New York : Hart, 2020.  |  Includes bibliographical references and index. Identifiers: LCCN 2020002759 (print)  |  LCCN 2020002760 (ebook)  |  ISBN 9781509919529 (hardback)  |  ISBN 9781509919536 (Epub) Subjects: LCSH: Actions and defenses—European Union countries. Classification: LCC KJE3896 .P75 2020 (print)  |  LCC KJE3896 (ebook)  |  DDC 347.24/05—dc23 LC record available at https://lccn.loc.gov/2020002759 LC ebook record available at https://lccn.loc.gov/2020002760 ISBN: HB: 978-1-50991-952-9 ePDF: 978-1-50991-954-3 ePub: 978-1-50991-953-6 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

PREFACE This book marks the final outcome of a research project conducted within the framework of the Utrecht Law School research centre on Regulation and Enforcement in Europe (RENFORCE). The research conducted within this centre focuses on the question as to how public tasks and public policy objectives can be better realised in the shared European, national and international legal order, by regulation and enforcement arrangements that safeguard core values and which ensure policy effectiveness. It therewith seeks to contribute to the ongoing societal and academic debates on better EU regulation and enforcement and to ensure a high degree of responsiveness to societal questions. The centre involves legal scholars from different backgrounds, including amongst others administrative law, private law, social law, criminal law, European law, international law, economic public law and human rights, but also collaborates with scholars from other disciplinary domains, such as criminology, political and social sciences. As such, this book has brought together researchers from within RENFORCE, as well as from a wide range of other (academic) institutions such as the European University Institute (EUI); School of Transnational Governance (STG), the UCD Sutherland School of Law, the UCD College of Social Sciences and Law, the European Interactive Digital Advertising Alliance (EDAA), University of Sussex, Centre for Information Governance Research, Ca’ Foscari University of Venice and University of Southern Denmark. We are very much indebted to dr. Salvo Nicolosi for his invaluable editorial support so as to ensure the timely publication of this volume and we wish to express our gratitude for this. Madeleine de Cock Buning Linda Senden

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CONTENTS Preface����������������������������������������������������������������������������������������������������������������������������v 1. Introduction: EU Private Regulation and Enforcement – Mapping its Contextual, Conceptual, Constitutional and Citizens’ Dimensions��������������������1 Madeleine de Cock Buning and Linda Senden PART I POLICY DOMAINS 2. The Special Position of Agreements by Social Partners in EU Law�������������������37 Frans Pennings 3. Private Regulation in the Internal Market: Assessing European Technical Standardisation Through a Citizen’s Eye��������������������������������������������57 Mariëtte Hiemstra and Linda Senden 4. The Role of Private Actors in Data Protection Law and Data Protection Practice������������������������������������������������������������������������������95 Peter Blok 5. Private Actors in European Consumer Law�����������������������������������������������������121 Ewoud Hondius and Esther van Schagen 6. Of the People, by the People, for the People? The European Union’s Experience with Private Environmental Regulation and Enforcement������������������������������������������������������������������������������������������������165 Suzanne Kingston and Edwin Alblas 7. Unfolding the Private–Public Dynamics of Regulation and Enforcement in EU Food Law�������������������������������������������������������������������������������������������������191 Michele Simonato and Salvatore F. Nicolosi 8. Engaging Private Actors in the Production of EU Financial Regulation: Advantages and Disadvantages from a Citizen’s Perspective���������������������������219 Andrea Minto 9. Trust through Responsibility: Advertising and Self-Regulation in Europe������243 Oliver Gray

viii  Contents 10. Private Regulation and Enforcement in the EU: Finding the Right Balance from a Citizen’s Perspective – The Protection of Minors against Online Harms����������������������������������������������������������������������������������������295 Madeleine de Cock Buning 11. Internet Liability Law Case Study: Private Regulation and Enforcement in the EU from the Citizens’ Perspective����������������������������������������������������������������327 Christopher T. Marsden 12. The Role of Private Actors in the Regulation and Enforcement of Corporate Environmental Harm�������������������������������������������������������������������353 Judith van Erp PART II CROSS-CUTTING ISSUES 13. The Constitutional Authority of Private Regulation in the Light of the EU’s Competence Order���������������������������������������������������������������������������375 Kilian Klinger 14. Private Regulation and Enforcement within the Single Market’s Legal Framework: The Need for a More Holistic Approach���������������������������������������411 Frederick Brouwer 15. European Union Co- and Self-Regulation and the Protection of Fundamental Rights���������������������������������������������������������������������������������������443 Jessy M. Emaus 16. EU Competition Law versus Private Regulation: Restrictive or Enabling?�����475 Jotte Mulder 17. The Democratic Challenges of Effective Private Regulation and Enforcement������������������������������������������������������������������������������������������������497 Colin Scott 18. Conclusions: Drawing the Lines Together of Regulatory Choice, Public–Private Dynamics and Citizens’ Trust in Private Regulation and Enforcement in the EU�������������������������������������������������������������������������������519 Madeleine de Cock Buning and Linda Senden Index��������������������������������������������������������������������������������������������������������������������������563

1 Introduction: EU Private Regulation and Enforcement – Mapping its Contextual, Conceptual, Constitutional and Citizens’ Dimensions MADELEINE DE COCK BUNING AND LINDA SENDEN

Regulations are indispensable for the proper functioning of economies and the ­society. They create the ‘rules of the game’ for citizens, business, governments and civil society. They underpin markets, protect the rights and safety of citizens and ensure the delivery of public goods and services. The objective of regulatory policy is to ensure that regulations and regulatory frameworks work effectively in the public interest.1

1. Introduction In the early 1990s, Majone described the EU as a ‘regulatory state’, underscoring thereby the importance of law and regulation as the mechanisms for realising the EU’s policy objectives. As other forms of economic and social intervention, including macroeconomic, budgetary and redistribution mechanisms, were not available to the EU in its original form, the law, and regulation in a wider sense, could indeed develop as a prominent steering mechanism from the beginning of the European integration process.2 The role of law and regulation gained a further impetus within the framework of the internal market programme and, later on, from the various Treaty amendments which brought more policy areas within the

1 Organisation for Economic Co-operation and Development (OECD), OECD Regulatory Enforcement and Public Inspections Toolkit (Paris, OECD Publishing, 2018) 3, available at: https://doi. org/10.1787/9789264303959-en. 2 G Majone, ‘The Rise of the Regulatory State in Europe’ (1994) 17 West European Politics 77–101; R King, The Regulatory State in an Age of Governance. Soft Words and Big Sticks (London, Palgrave Macmillan, 2007) 94.

2  Madeleine de Cock Buning and Linda Senden sphere of influence of the EU. Regulation of markets, industries and services thus occurs in many EU policy domains as well as at multiple levels, these increasingly being not only of a public but also of a private nature. In the EU context, the regulatory potential of private actors increasingly emerges in areas such as product safety and sustainability, food hygiene, advertising, e-commerce, internet and media services, financial markets, social policy and environmental protection. These private regimes range from codes of conduct to voluntary commitments and also include industry and contractual agreements, framework agreements, autonomous agreements, standards, guidelines, guides, charters, good practices, etc.3 As such, private regulation and enforcement have become part and parcel of the EU’s instrumental toolbox and are part of this vision of the EU as a regulatory state.4 However we prefer to conceive of it as a ‘regulatory space’, as this better expresses the fact that regulatory – and also enforcement – authority is not confined to the state but is also diffused and shared between public and private actors. This book focuses on the incremental relevance of private regulation and enforcement within this regulatory space, both within the general EU policy context as well as in specific EU policy areas, by putting the following question centre stage: What role do private actors play in the regulation and enforcement of EU-wide problems and how, from a citizen’s perspective, can the protection of public interests and EU core values be best ensured in European private regulation and enforcement?

By taking this question as its lead, the book seeks to identify and exemplify the public–private dynamics that are at play in various EU policy contexts and the different constitutional challenges that private regulation and enforcement raise for citizens affected by such regimes. Mapping, scoping and addressing the challenges for citizens’ interests involved in private regulation is especially relevant in an era where EU citizens feel already less represented in EU democratic processes,5 let alone their potential disconnect to private regulation that only rarely involves (indirect) representation of their interests. In fact one could perceive Article 11(1) of the Treaty on European Union (TEU) to already reflect this insight: ‘The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action.’ Finding where citizens’ trust and best interests are at stake in private

3 cf the (non-exhaustive) database on co- and self-regulation that the European Economic and Social Committee (EESC) has put into place, containing about 130 such regulatory regimes in a variety of policy fields, available at: www.eesc.europa.eu/?i=portal.en.smo-database. 4 Cf F Cafaggi, ‘New Foundations of Transnational Private Regulation’ (2011) 38 Journal of Law & Society 20, 95. 5 L Van den Brande, Reaching Out to EU Citizens: A New Opportunity, About Us, With Us, For Us (Luxembourg, Publications Office of the European Union, 2017) 6; O Treib, ‘The Voter Says No, but Nobody Listens: Causes and Consequences of the Eurosceptic Vote in the 2014 European Elections’ (2014) 21 Journal of European Public Policy 1541–54.

Introduction  3 regulation and exploring ways for their improvement could strongly contribute to a citizens’ reconnect to (at least) private regulation. This is in the best interest of EU society as a whole, as well as its market(s). To that end, this volume combines both perspectives. It does so by taking a twofold – ie horizontal and sectoral – approach, presenting first of all a number of horizontal studies as to the general boundaries that ensue from EU law for the use of private regulation and enforcement, and, secondly, a number of vertical case studies focusing on specific EU policy domains or issues. Such boundaries relate to those principles determining the existence and exercise of EU powers, fundamental rights, internal market law, competition law rules and general requirements ensuing from the rule of law, in particular democratic legitimacy. In this introductory chapter, we will explain the central research focus in more depth and lay the analytical foundations for the other contributions in this volume. We will first discuss the drivers behind and proclaimed benefits of the use of private regulation and enforcement as well as considering the risks involved that warrant attention from a citizen’s perspective (section 2). Then we will establish the conceptual frame by discussing the key notions of ‘private’, ‘regulation’ and ‘enforcement’ (section 3). Next, we zoom in on the specific EU context and how private regulation and enforcement fits in with the EU’s Better Regulation policy and why the EU context deserves particular, stand-alone attention (section 4). The section after that will then explain the citizen’s perspective of the research focus in more detail, elaborating on the importance and meaning of trust in and credibility of private regulatory and enforcement regimes in order to be successful and meet the citizen’s expectations and also on the principles that come into play to contribute to this. These constitute important benchmarks for the assessment and possibly better future framing of private regulatory and enforcement regimes in the EU (section 5). The chapter will close with a more detailed explanation of the approach of the case studies (section 6).

2.  Proclaimed Benefits and Potential Risks Private regulation has been recognised as a social fact, with the capacity to perform important social functions6 and to solve certain collective problems.7 It is often seen as a crucial element of regulatory reform and policy design programmes and better/smart regulation policies, advocated for instance by the OECD8 but also by

6 A McHarg, ‘The Constitutional Dimension of Self-Regulation’ in F Cafaggi (ed), Reframing SelfRegulation in European Private Law (Dordrecht, Kluwer Law International, 2006) 77–106. 7 D Chalmers, ‘The Government and Citizenship of Self-Regulation’ in Cafaggi (n 6) 163–88. 8 cf OECD, OECD Report on Regulatory Reform, Synthesis (Paris, OECD Publishing, 1997) available at: www.oecd.org/gov/regulatory-policy/2391768.pdf; OECD, Better Regulation in Europe, series of country reports, available at: www.oecd-ilibrary.org/governance/better-regulation-in-europe_20790368.

4  Madeleine de Cock Buning and Linda Senden the EU institutions, as we will see in section 4. This warrants a closer consideration of why this is the case and of what the actual justifications are for the use of private regulation and enforcement, as well as the proclaimed benefits of such use:9 • private actors are considered as being well placed to provide fast and effective solutions to certain problems by bringing knowledge, expertise and information into the regulatory process;10 • they allow not only for decision-making that is better fitted to practical realities, local circumstances and own business values and ethics,11 but also for a faster response and upgrading, especially in areas of high technological innovation; • they are involved in the norm-setting process of the parties which are to apply the set rules and possibly also those for whom protection is devised, thus enhancing the level of responsiveness and potential to enhance compliance and therewith overall effectiveness;12 • they can provide in a transnational context for a certain – higher – level of protection (such as consumer, health and safety, environmental, social and data protection), which traditional international and national public law arrangements appear incapable of providing;13 • they can enhance consumer confidence and rights and improve the image of business;14 • they bring resources to and impose costs of regulation on private actors/ industry themselves and are thereby more cost-efficient for governments;15 • they incentivise better and cheaper means to tackle the risks involved with these regulatory regimes.16 Private actors can thus potentially make important contributions to the realisation of socioeconomic goals by engaging in private regulation and enforcement.17 Private regulatory and enforcement regimes, however, not only create challenges as to how to actually ensure their effectiveness but they also bear other important risks. Such risks arise in particular from the perspective of their (democratic)

9 OECD (n 8, 1997) 28. See also M de Cock Buning, ‘Towards a Future-Proof Framework for the Protection of Minors in European Audiovisual Media’ (2014) 10(5) Utrecht Law Review 9–30, available online at: www.utrechtlawreview.org/articles/abstract/10.18352/ulr.298/. 10 Cafaggi (n 6) 8. 11 M Priest, ‘The Privatization of Regulation. Five Models of Self-Regulation’ (1997–98) 29 Ottawa Law Review 233, 270. 12 OECD, ‘Industry Self-Regulation; Role and Use in Supporting Consumer Interests’ (23 March 2015) DSTI/CP(2014)4/FINAL, 11–12. 13 ibid. 14 OECD (n 8, 1997) 38 and OECD (n 12) 6. 15 Chalmers (n 7). 16 A Ogus, ‘Rethinking Self-Regulation’ (1995) 15 OJLS 97–108. 17 McHarg (n 6).

Introduction  5 legitimacy and accountability because of the possibly binding effects which such regimes may have for third parties, the lack of an electoral mandate supporting such regimes and of self-interests that may prevail over public interests in their design.18 Factors inducing or contributing to the prevalence of self-interest and to the failure of private regimes have been recognised to be: • the risk of regulatory capture by the regime members, especially in monopolistic markets where there is little regulatory competition;19 • favouritism, an insufficient sense of responsibility and a lack of integrity on the part of the actors involved, which can fail to ensure the interests of those not represented in the norm-setting process;20 • a lack of transparency and accessibility and information asymmetries between stakeholders; • a lack of inclusiveness and of participation by relevant stakeholders; • a lack of other mechanisms for ensuring checks and balances; • a lack of effective monitoring and enforcement mechanisms so as to ensure compliance with the set rules,21 ineffectiveness in achieving compliance creates distrust, and a loss of public confidence in the self-regulatory entities and in self-regulation itself;22 • the – lack of – strength of instruments and level of market coverage;23 • the problem of free riders and of costs of the regime.24 Practice shows how things may go wrong, the banking sector illustrating the negative consequences that private regulation can have when public interests are not sufficiently taken into account. The lack of integrity, accountability, and checks and balances regarding private regulatory and enforcement regimes concerning financial reporting obligations and derivatives rules for banks, both at the global and European level, have all contributed to opaque, fragmented markets and market failure.25 This has contributed to severe financial crises, affecting the trust of stakeholders and citizens in the economic system as well as in the integrity of banks, financial institutions, governments and the EU. There are, however, other examples of specific private regulatory regimes that have shown themselves to be deficient, such as the Guidelines for Good Practice of Transmission System

18 Cafaggi (n 6). 19 cf Ogus (n 16) for a discussion of such and other criticism on the use of self-regulation. 20 OECD (n 12). 21 OECD (n 8, 1997). 22 R Ong, Mobile Communication and the Protection of Children (Leiden, Leiden University Press, 2010) 254. 23 OECD (n 12) 5–6. 24 ibid. 25 S Pagliari, ‘Who Governs Finance? The Shifting Public–Private Divide in the Regulation of Derivatives, Rating Agencies and Hedge Funds’ (2012) 18 European Law Journal 44–61.

6  Madeleine de Cock Buning and Linda Senden Operators, defining minimum requirements for third-party access to the gas transmission networks in the EU. To compensate for non-compliance with these voluntary Guidelines, the Commission proposed to turn them into legislation.26 However, the solution to such problems is not simply the replacement of private regimes by public ones. As will be seen in various contributions in this volume, public regulation and/or enforcement may not even be a viable option in many cases. The fundamental challenge is thus how, within this regulatory space, the potential of private actors to contribute to the resolution of EU-wide policy issues and goals can be put to its best possible use. In essence, private regulation and enforcement regimes in the EU context will need to be effective, reflect the EU’s core values and protect public interests as well as incorporating the citizen’s perspective, because only then will they be capable of building the credibility and trust of and acceptance by those affected by them. Before looking closer into the specific EU context and the citizen’s perspective, it is essential to first elucidate the key notions of this research.

3.  The Conceptual Frame 3.1.  Defining ‘Regulation’ and ‘Enforcement’ Only a few decades ago Selznick’s seminal definition of regulation still emphasised merely the state’s role in regulation, by considering that it concerned ‘the sustained and focused control exercised by a public authority over activities valued by the community’.27 Black’s definition does not refer to a specific source of authority, holding that regulation concerns ‘the intentional use of authority to affect behaviour of a different party according to set standards, involving instruments of information-gathering and behaviour modification’.28 This definition can thus be said to encompass both public and private sources of authority. A more recent definition presented by Lodge and Wegrich makes this yet more explicit and can therefore be taken as a lead for the purposes of this volume, as it states that regulation concerns ‘the intentional use of authority by state and non-state actors to affect a third party’.29 This also reflects the evolution of the concept in a relatively 26 Regulation (EC) No 1775/2005 of the European Parliament and of the Council of 28 September 2005 on conditions for access to the natural gas transmission networks [2005] OJ L289/1, recital 2. 27 P Selznick, ‘Focusing Organisational Research on Regulation’ in R Noll (ed), Regulatory Policy and the Social Sciences (Berkeley, University of California Press, 1985) 363, as referred to in R Baldwin, M  Cave and M Lodge (eds), The Oxford Handbook of Regulation (Oxford, Oxford University Press, 2010) 12. 28 J Black, ‘Decentring Regulation; Understanding the Role of Regulation and Self-Regulation in a “Post-Regulatory” World’ (2001) 54 Current Legal Problems 103–47, as referenced in Baldwin, Cave and Lodge (n 27) 12. 29 M Lodge and K Wegrich, Managing Regulation: Regulatory Analysis, Politics and Policy (London, Palgrave Macmillan 2012), 16.

Introduction  7 short period of time, it no longer being limited to ‘dedicated “command” regimes that are designed to offer continuing and direct control over an area of economic life’.30 Yet, the forms in which such use or exercise of authority come differ considerably. Public and private regulation thus distinguish themselves in terms of modes of governance and of how they impact on property rights and responses to externalities.31 However, within private regulation such modes also vary and range from command and control, to market-based and responsive regulation,32 as the contributions in this book will reveal. While ‘enforcement’ is often considered to be implied in or captured by the notion of regulation, we deem it to be important to distinguish the two concepts, with a view as well to the public–private regulatory and enforcement continuum that we will present in the next subsection. Following the definition of the OECD, ‘enforcement’ can be understood as ‘all activities of state structures [or structures delegated by the state] aimed at promoting compliance and reaching regulations’ outcomes …. These activities may include: information, guidance and prevention; data collection and analysis; inspections; enforcement actions in the narrower sense, ie warnings, improvement notices, fines, prosecutions, etc.’33 While this definition is useful, it also emphasises the role of the state in enforcement and does not seem to acknowledge the potential role of private actors in this regard. Scholarly definitions have left this more open, for example the one presented by Scholten that we adhere to here, who describes enforcement as ‘efforts including monitoring compliance, investigating an alleged violation and the sanctioning of a violation’ with a key goal being to ‘rectify non-compliance and promote the attainment of policy goals’.34 It will be considered in this volume to what extent private actors in the EU context may be involved on this enforcement side as well. However, this induces a further preliminary conceptualisation of the ‘private’.

3.2.  Defining the ‘Private’ Who or what, then, are these ‘private’ or ‘non-state’ actors, as referred to by Lodge and Wegrich? These have many faces and may range from industry, firms, economic operators more generally and civil society organisations to social partners, professional associations, standardisation bodies, NGOs and more.

30 Baldwin, Cave and Lodge (n 27) 5. 31 A Ogus, Regulation; Legal Form and Economic Theory (Oxford, Oxford University Press, 2004) esp ch 2. 32 F Cafaggi, ‘Private Regulation in European Private Law’ in AS Hartkamp, M Hesselink E Hondius, C Mak and C du Perron (eds), Towards a European Civil Code (Dordrecht, Wolters Kluwer, 2011) 92, under reference to Ogus (n 16) 97. 33 OECD, Regulatory Enforcement (Paris, OECD Publishing 2014) available at: https://read.oecdilibrary.org/governance/regulatory-enforcement-and-inspections_9789264208117-en#page12. 34 M Scholten, ‘Mind the Trend! Enforcement of EU Law Has Been Moving to “Brussels”’ (2017) 24 Journal of European Public Policy 1348.

8  Madeleine de Cock Buning and Linda Senden What, then, may ‘the intentional use of authority’ by such private actors consist of and what interaction may this imply with state actors? We have deliberately put the notion of ‘private’ centre stage in this volume, so as to underscore that our main focus is on the role of private actors in regulation and enforcement processes and that we start our analysis from their position. Yet, it must be noted that in many cases their exercise of regulatory and/or enforcement authority occurs in interaction with state bodies and some hybrid form of public–private regulation and enforcement emerging from this. Concepts that are commonly used in this context are self-regulation and co-regulation, public involvement being the distinctive criterion between them. Empirical and theoretical findings allow for the establishment of a broad spectrum of manifestations of ‘the private’ in regulation and enforcement regimes, revealing different relationships with ‘the public’ that can be placed on a regulatory and enforcement continuum. As this continuum is helpful for better understanding the nature and intensity of the regulatory and enforcement dynamics between private actors and public bodies analysed in the various case studies in this volume, we will discuss and visualise this continuum here below in more detail.35 Figure 1  The regulatory continuum between the fully private and the fully public Market -> I. No regulation/ regulation at firm level CSR