The Global Reach of EU Law

Elaine Fahey

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781315524078
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The EU strives to be a leading rule-making organisation with global reach in both economic and non-economic fields. But how should we understand the science behind this? This book focuses upon unpacking the uncertainty, the form and directions of the global reach of EU law, as a distinctive form of post-national rule-making. The work examines two central themes: the conceptual development of the global reach and effects of EU law; and the methodology of EU rule-making processes. It considers what specific impact and effects the EU's rules are having, and its approach to global reach. The book studies the EU's Area of Freedom, Security and Justice (AFSJ) as a case of a non-economic field offering examples of ways and means in which the global reach of EU law can manifest itself in an evolving and sensitive field. Using this casestudy, the book develops a sharper focus upon the 'internal' and 'external' elements of EU law which make up our understanding of the global reach of EU law and develops further why global reach is important as a scientific phenomenon.

The book will be a valuable resource for researchers and students in the areas of EU law, global governance and the study of law beyond the nation state.

1 Introduction

On the spread of EU law

The global reach and effects of EU law,¹ or simply put for now, the ‘spread’ of EU law, is increasingly the subject of legal scholarship, which considers a broad range of its manifestations to other legal orders or systems, organisations or third countries, as an empirical phenomenon. For example, the so-called ‘Brussels effect’ is the subject of recent scholarship, assessing the perceived ‘spillover’ effect of EU regulatory standards on US rules in the realm of inter alia genetically modified foods, data privacy standards and chemical safety rules.² Equally, recent accounts consider the extent to which EU legal rules are actually transplanted in the US – for example, the transposition of EU environmental standards in California, Boston and Maine.³ Included in these theorisations is the view that the size and scale of the EU, as a market and as a polity, has generated what is understood here as ‘rule-transfer’. It has entailed that the EU has adopted rules and standards that other polities and markets have in turn adopted, compelled to do so or acting out of sheer necessity. This process of the ‘outwards’ adoption of EU rules elsewhere, particularly in the US, is conceptualised in various legal accounts. This concerns the actual practice-based transfer of rules, less so the process and the significance of the EU’s promotion of norms. Such accounts offer normative explanations that are often dominated by market-based rationalisations, such as economic power, less so convergence or convenience.⁴ However, as will be argued here, economic arguments may be insufficiently nuanced to similar practices of rule-making beyond economic areas. Legal and other scholarship examining the external adoption of EU rules usually relies upon economic-based rationales to understand the process and outcome of such ‘rule-transfer’. Similarly, convenience, mimicry, expertise, innovation and other technocratic rationales offer normative explanations for such transfers.⁵ Very high EU legal standards as much as very low national standards may be equally open to ‘mimicry’, even where the social benefits come at a great economic cost.⁶ Within the context of the US, the openness of federalism is depicted as an explanation for this rule-transfer, whereby the legal order at state level is inherently open to receiving best practices from external sources, constitutionally speaking.⁷ This is argued here to be an excessively ‘structural’ account of such rule-transfer and not necessarily a very holistic account of the global reach and effects of EU law. At the other end of the spectrum, it has been recently argued that transfers of policies from the EU to the US – e.g. in socioeconomic areas, is inherently democracy-enhancing in so far as it purports to set high standards, which this account considers in detail.⁸ Nonetheless, the normative story of the global reach and effects of EU law is innately bound up with the process surrounding it and it is one which this book seeks to develop further.

This book broadly explores what the ‘global reach and effects’ of EU law entails, theoretically, empirically and practically. It seeks deliberately to look beyond ‘headline’ approaches to the global reach of EU law in understanding EU rule-making, while also closely examining what is meant by the EU’s self-expressed ‘global approach’ to EU rule-making or external dimensions to internal rule-making.⁹ It focuses upon drawing together two specific strands so as to offer an integrated account of rule-making processes: (1) how the EU promotes external norms and (2) its relationship to internal rule-making. This focus draws from the evolution in legal scholarship of predominantly empirical work, whereby EU law scholars have charted the adoption in the US of vast ranges of EU rules in very recent times, as well as the broader idea of the global impact or spread of EU law.¹⁰ However, for all of their merits, there may be said to be many shortcomings of existing studies outlined above. The distinctions drawn there raise fundamental methodological issues which are explored here further – for example, what analytical method is best used, what is being transferred, why and how? And is it legitimate or transparent what EU law achieves? And what is explicitly aimed at in rule-making?

One specific theoretical methodology used to sketch the broader themes of this account and explore specific case studies is the phenomenon of ‘EU rule-transfer’, expanded upon here next. More practically, the book traces norm promotion in rule-making and purports to carefully identify and separate the external from the internal in distinct case studies. It is argued that defined methodologies are only embryonic in EU law scholarship. For example, there is currently a movement in scholarship to reconstruct methodology and take into account the multi-disciplinarity of the subject, its highly diverse range of actors, instruments and processes.¹¹ It advocates approaches which accommodate inter alia the plurality of sources of EU law and which explicitly enunciate its method. An attempt to trace transparently a source-based construction of EU rule-making is argued here to accommodate contemporary concerns rather than conform to the practices of other disciplines and subject-confines, usually structured interviews or practice-based accounts.

On EU rule-making

EU rule-making has long existed as a ‘black box’ within European Union (EU) law scholarship, whereby a limited amount of traceable output thereof has become the subject of vast sectors of scholarship. The ‘black box’ itself has become more transparent, traceable and accessible over time.¹² Yet still to speak about EU rule-making poses elementary questions as to its meaning that may appear striking. There is no common, standard description of EU ‘rule-making’ that is shared across disciplines in a holistic sense. Instead, temporal stages of inter alia lobbying, negotiation, consultation and input, decision-making, implementation, enforcement and judicial decision-making in EU law have been analytically developed piecemeal by legal scholars, often later than other disciplines on the same fields.¹³ The absence of such an understanding of EU rule-making is argued here to emasculate transparency. Accordingly, this account considers EU rule-making in a holistic sense, both as a process and as a normative idea, and specifically focuses upon understanding its methodology from a legal perspective. It uses the term ‘rule-making’ so as to encompass active and dynamic practices arising in postnational rule-making that may not fit conventional or traditional models of law-making or specific understandings of ‘law’.¹⁴ This terminology draws a wider lens so as to capture its impact as postnational rule-making, focusing upon its method, its instruments and aims in a global context. This particular approach of focusing upon methodology also involves tracing its active or ‘bottom-up’ construction in various case studies.

No rule-making project, whether a new legal order or constitution or otherwise has ever truly begun as a tabula rasa. They have influences, sources and borrowings that are commonplace, which range from the formal and explicit to the informal, osmotic or organic.¹⁵ EU rule-making has never been reluctant to draw inspiration, to emulate or to replicate best international standards, practices or rules of its Member States.¹⁶ As the EU as an organisation evolves, its strategic internalisation of external norms has also evolved. Similarly, the global impact of its rules and choices have too. There are distinct normative challenges posed by an inherent openness to absorbing, emulating or integrating all international standards, member state existent standards and values. Furthermore, the scale of the EU as an economic bloc and its evolving reputation as a global governance actor render the adoption of its rules mandatory, essential or simply useful for many outside of its territory, creating issues of social acceptance and legitimacy. To study how the EU engages in rule-making and its effects thus involves studying an ecosystem of processes. What this book focuses upon, then, is the unpacking of the ‘ecosystem’ of EU rule-making processes. Its study is argued to demand a particularly integrated view of the ‘internal’ and ‘external’ of the EU law, one which is advocated here to be conducted through developing a methodology of EU rule-making.

This book thus takes as its central theme two specific issues: (1) understanding conceptually the global reach and effects of EU law, including its democratising and legitimising effects and challenges, which are argued to be inadequately exposed and (2), understanding the methodology of EU rule-making processes in this context through the lens of ‘EU rule-transfer’ and select security-based case studies. As a result, this book considers what specific impact and effects the EU’s rules are having. What is the EU trying to do when it uses external norms? What third parties are accepting the EU’s rules and why? What rules, standards or values is the EU accepting? And what relationship do its practices have to international political processes that it participates in?

Using EU rule-transfer to frame the global reach of EU law

This book provides a legal theorisation of the global reach and effects of EU law conducted through rule-transfer. As a multi-directional phenomenon, with internal and external, and inwards and outwards dimensions, it is argued here to have both positive and negative effects for democracy, offering insights into the flourishing as much as the failings of EU integration processes. Outwards EU rule-transfer is demonstrated through a series of case studies to manifest itself in largely economic-orientated domains and is widely accounted as being ‘democracy enhancing’ for its recipients or is perceived as beneficial, market enhancing, market creating or sustaining.¹⁷ Existing accounts are argued not to be sufficiently nuanced to the relationship between direct and indirect outwards rule-transfer. The legitimacy of these processes is argued to be sometimes questionable and highly variable and dependent upon social acceptance thereof. By contrast, inwards rule-transfer irrespective of whether the EU is the initial source of rules or simply where external sources and norms are transferred largely tends to create contexts whereby democracy is perceived to be thwarted or adversely impacted through such transfers. This is shown to occur more frequently in non-economically oriented areas. External norms are often used by the EU to legitimise these same processes, particularly in these non-economic fields.¹⁸ In this regard, this book considers the question of the social legitimacy of the operation of inwards and outwards EU rule-transfer – i.e. its external acceptance by third countries, parties and organisations. In sociological terms, even if it is an objective fact, legitimacy is socially constructed.¹⁹ Legitimacy is a multifaceted entity which comprises both social credibility and social acceptance. It may be pragmatic or normatively or cognitively based and is not necessarily a study of legal formalism or legal validity. Legitimacy can differ across time and space, and between actors, systems and contexts, and is characterised by malleability. It may change but it may also be resilient.²⁰ Legal scholarship often focuses upon normative or cognitive bases of legitimacy rather than on whether ‘X’ is regarded as legitimate.²¹ It is argued here that to focus upon questions of social legitim...