Externalizing EU Law, Policy and Values -- Europe's Global Identity, Mechanisms of Rule Transfer and Case Studies on Illegal Logging and Bosnia and Herzegovina
42 Pages Posted: 30 Dec 2015
Date Written: December 19, 2015
Written as the basis for the conceptual framework of an interdisciplinary research project on the external effects of EU law, this working paper provides an overview of several important literature lines on the external affairs of the EU. In addition to describing these literature lines, the paper will apply the insights from the various perspectives to two case studies: the EU’s external efforts to combat illegal logging and the EU’s recent approach to the ongoing integration process of Bosnia and Herzegovina. The paper aims to move beyond the distinctions between scholarly disciplines by incorporating insights from the legal, political science, public administration and international relations disciplines to describe how the EU can impact legal orders across the globe through its various powers. First, the debate in international relations on the identity and power sources of the EU will be presented. Important contributions on the role of the EU as a normative power and the EU as a market power will be summarized in this section. Moreover, the section will also elaborate on the EU’s recent activities in security and defense, with special attention being devoted to the EU’s civil and peace-keeping missions under the Common Foreign and Security Policy (CFSP) and Common Security and Defence Policy (CSDP). The question to what extent the EU could be considered a military power in addition to its economic weight and normative power will be considered in particular.
After this relatively broad debate on the role of Europe in the world, an approach focused on concepts describing the specific mechanisms of rule transfer available to EU policy makers will be presented. It will firstly be argued that the EU’s internal regulation can achieve external effects through its market power. The pressure the EU can apply to third state market operators and – indirectly – third state governments to comply with the EU standard to retain market access has been coined the Brussels Effect. EU policy makers may also decide to move one step further by designing internal legislation in such a way that external market parties fall under the scope of EU measures through the extraterritorial application or territorial extension of the EU’s norms. Should the EU choose to incorporate extraterritorial application in a measure, no territorial connection to the EU is needed at all for it to the application and enforcement of this measure. An example is jurisdiction based on the principle of nationality. More common, however, are norms which do require some form of territorial connection with the EU, even if this connection may at times be tenuous. The effects-based doctrine of competition law, which requires that the effects of anti-competitive behavior occur at least partially on the EU market, is a clear example of such a ‘territorial extension’ of a European norm to undertakings and conduct which could potentially be located outside the EU.
Subsequently, the contributions from the political sciences and public administration on the EU’s conditionality policies and several social mechanisms of policy diffusion will be discussed. Under conditionality policies the EU aims to introduce a carrot and stick approach to rule transfer and European integration, based on the grant of rewards in return for reforms by a third state. After the arguably successful implementation of conditionality in the accession policy of the 90’s, the technique has also become an important element in for instance the EU’s more recent approach towards its Mediterranean neighborhood. Furthermore, EU diplomacy may contribute to the rule transfer through what is known in the policy diffusion literature as negotiation and socialization strategies. Through negotiation, EU officials actively attempt to influence the rational decision-making process of other actors, while socialization pertains more to the normative example the EU may pose for other actors or the naming and shaming tactics the EU may employ. Moreover, when employing what has been dubbed spurred emulation, the EU may influence rule-making in other states or international organizations through technical and/or financial assistance. This process is distinct from conditionality strategies, however, as instead of a reward-sanction based structure it focuses on support and assistance for other actors. Finally, an interlude will be presented on a concept developed in comparative law: the legal transplant. The strength of this legal transplant literature is that it inter alia describes the roles of domestic rule-makers, internal motivations for rule transfer and the role of norm entrepreneurs in the diffusion of rules between legal orders. It thereby provides the important nuance that, in addition to the EU’s own efforts in external affairs, the domestic legal and political processes of a recipient state remains of vital importance to the eventual transfer of a rule.
In the analysis of the illegal logging and Bosnia and Herzegovina case studies, it will be seen that the EU applies a multitude of mechanisms in both areas. For illegal logging, the EU utilizes a combination of negotiation strategies through agreements, territorially extended measures and a strong focus on the Brussels effect of its market power. In Bosnia and Herzegovina, the conditionality strategy of the Stabilization and Association Process takes center stage and is complemented by attempts to induce spurred emulation through technical assistance. Both cases rely on the values and market power underpinning the EU, illustrating how both the Market Power Europe and Normative Power Europe perspectives are relevant. The EU’s comprehensive approach to Bosnia and Herzegovina furthermore includes both a civilian and a peace-keeping mission to promote and ensure stability, illustrating the EU’s fledgling involvement in security affairs. After these applications of the presented concepts, the concluding section of the paper will include several recommendations to consider for the subsequent development of the project.
Keywords: CFSP, EU foreign policy, external action, European law, EU law, Brussels effect, territorial extension
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