EU Regional Trade Agreements

An Instrument of Promoting the Rule of Law to Third States

Maryna Rabinovych

• Publisher: Routledge
• Year: 2021
• eBook ISBN: 9781000374797
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: International Marketing
• Index: Politics & International Relations

This book unveils the potential of utilizing EU Regional Trade Agreements (RTAs) as an instrument of promoting the rule of law to third states.

In doing so, the book combines development economics, foreign policy and legal perspectives at three levels of analysis of four sectors to introduce the concept of "EU value-promoting RTAs". The book demonstrates that the EU RTAs bear considerable potential to be strategized as instruments of promoting the rule of law in third states, requiring, however, overcoming strict divides between EU political and economic cooperation, and values and acquis conditionality in its relations with third countries.

This book will be of key interest to scholars and students of European Studies, European Union Law, EU external action/foreign policy, EU trade agreements and Development Studies, as well as to NGOs and think tanks that work on European affairs.

1 The concept of the rule of law in the EU external action

Part 1. Conceptual problématique of the rule of law

The rule of law represents an “expansive” and “essentially contested” concept, characterized by multi-aspect problématique, including unclear relations to other concepts, and varying interpretations in scholarship (Fallon, 1997; Waldron, 2002). These understandings vary from associating the rule of law with the formal presence of transparent and predictable rules to complex conceptualizations, entailing formal, substantive and institutional aspects. While these understandings are not mutually exclusive, the difficulties emerge on the rule of law’s path from a theory to the “solution of the world’s troubles” (Ringer, 2007, p. 178) and the objective of reforms, funded by international donor institutions. The global “conceptual anarchy” (Ibid.) surrounding the rule of law, divergent constitutional traditions of EU Member States and the peculiarities of supranational EU law turn the solidification of the EU’s rule of law concept into a uniquely challenging task. Hence, this chapter will discuss the status of the rule of law in the EU legal system, as well as the relevant theoretical approaches to conceptualizing the rule of law.

1. Rule of law in the EU legal order

Marked by both structural and aspirational nature, “the rule of law already manifests itself in the very existence of the Union and its predecessors” (Larik, 2016, p. 220). Addressing the European Economic Community (EEC) as a “phenomenon of law” (Hallstein, 1979, p. 51), the first EEC President Walter Hallstein coined the notion of Rechtsgemeinschaft (addressed in English-language scholarship as a “European supranational legal community”) and, subsequently, gave rise to the theory of European integration though law” (Müller, 2012, p. 10). Importantly, Hallstein conceptualized the Community as Rechtsgemeinschaft in four senses: as a creation of law (Rechtsschöpfung), a source of law (Rechtsquelle), the legal order (Rechtsordnung) and a legal policy (Rechtspolitik) (Hallstein, 1979, p. 53). In terms of the first connotation, Hallstein emphasized the fact that the Community was not just an economic but a legal project, wherein the relations between the Member States and their relations to the Community had to be governed by law, rather than economic power or force (Tuori, 2015, p. 213). In turn, ensuring such a functioning of the Rechtsgemeinschaft requires strong Rechtsstaat or the rule of law.

Since the concepts of the Rechtsgemeinschaft, Rechtstaat and the rule of law significantly differ in their substance (Tuori, 2015, p. 213), the European Court’s of Justice (ECJ’s) referral to the former European Community (EC) as a “Community based on the rule of law” in its Les Verts judgement brought about crucial conceptual disarray.¹ The Court underlined that the rule of law plays a founding role for the Community “inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional Charter, the Treaty”, thus, evoking the components of both Rechtsgemeinschaft and Rechtstaat.² The analysis of the described formula leads us to three takeaways important for understanding the rule of law concept within the legal system of the EU as a successor of the European Community.

1European Court of Justice, Parti écologiste “Les Verts”/European Parliament, Case294/83, Judgment of 23 April 1986.

2Ibid., para 23.

First, the Court implicitly addressed the rule of law as a “positive good in itself” (Pech, 2009, p. 13) or, put it differently, as a value. Second, since this formulation defines the Treaty as a Constitutional Charter, the rule of law can be regarded as a constitutional principle of the EC to be upheld not only by the ECJ, but national courts that become “decentralized” Union courts (Reding, 2013). Third, the Court approached the rule of law in the EC from the formal standpoint, primarily associating it with the EC institutions and Member States being subject to the rules, contained in Treaties, rather than the substance of Treaty rules.

The rule of law was the first time formalized in the Preamble of the TEU(M), which reflected the Member States’ “attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law”.³ This reference did not, however, either define the status of the rule of law or refer to its substance. Art. 6(1) of the Treaty of Amsterdam (TEU [A]) mentioned the rule of law among the principles the Union is founded upon.⁴ Moreover, the TEU(A) pioneered in introducing sanctions for the Member States’ “serious and persistent breach … of principles, mentioned in Art. 6(1) TEU (A) and Art. 49 TEU (A)” (respect for the rule of law as a criterion for the EU accession). Art. 11 (1) TEU(A) also mentioned the rule of law among the objectives of the Union’s Common Foreign and Security Policy (CFSP). Thus, particularly the TEU(A) reaffirmed the constitutional nature of the rule of law for the EU legal system, giving rise to its conceptualization as a “meta-norm” pertaining to both the EU and its institutions, and the Member States (Palombella, 2009).

3Treaty on European Union, OJ C 191 of 29 July1992, Preamble; hereinafter referred to as “TEU(M)”.

4Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, OJ C 340 of 10 November 1997; hereinafter referred to as “TEU(A)”.

As opposed to Art. 6(1) TEU(A) that viewed the rule of law as a founding principle of the Union, Art. 2 TEU as modified by the Lisbon Treaty mentions the rule of law among the EU’s common values. Such a vocabulary change was repeatedly assessed by scholars as “regrettable”, since the concept of founding principles “expresses the overarching normative frame of reference for all primary law, indeed, for the whole of the EU’s legal order” (von Bogdandy, 2010, p. 22). Nevertheless, the analysis of the further referrals to the founding values in EU primary law reveals that the change of wording (though, hard to explain) is most likely unrelated to any ideas to change the nature or substance of the founding principles as formulated by Art. 6(1) TEU(A). On the contrary, the Treaty of Lisbon (TEU[L]) consolidated the functions the rule of law plays in the EU legal order. Alongside Art. 2 that refers to the rule of law as a fundamental value, Art. 3(1) and 13(1) TEU position the rule of law as an objective of both the EU and its institutions. Next, the TEU(L) mentions the rule of law among the criteria for EU membership. Furthermore, following the trend to the constitutionalization of foreign policy objectives (Larik, 2016), the TEU(L) distinguishes the promotion of EU values, including the rule of law, as a general objective of the whole spectrum of EU external policies.

Despite the detailed regulation of various functions of the rule of law in the TEU(L), it did not shed light on the substance of the rule of law. However, important developments of the EU rule of law agenda took place due to the ongoing rule of law crises in Poland and Hungary. First of all, the “Great Rule of Law Debate” led to the acknowledgement of the lack of genuinely common understanding of the rule of law as a crucial reason behind Member States’ non-compliance with the foundational rule of law requirements, such as judicial independence and impartiality (Kochenov, Magen and Pech, 2016). It was also stressed that, alongside Art. 7 TEU, offering a straightforward way to address a breach via sanctions, the EU has lacked instruments to react to Member States’ non-compliance with fundamental values. Having recognized the rule of law problem but being reluctant to immediately proceed with sanctions, the European Commission started with introducing a new EU Framework to Strengthen the Rule of Law (“2014 Rule of Law Framework”).⁵

5European Commission, Communication to the European Parliament and the Council: A New EU Framework to Strengthen the Rule of Law, COM (2014)158 final/2 of 19 March 2014.

Conceived as an early warning tool to address the rule of law threats through the dialogue with a concerned Member State, the 2014 Rule of Law Framework applies the consensual approach to the rule of law, introduced by the Venice Commission. Even though the Framework allows for a particular degree of vagueness to accommodate differences in Member States’ constitutional traditions, the Commission’s first attempt to map the substance of the rule of law testifies to the ongoing consolidation of the concept at the Union level. Importantly, the formulation of Art. 21(2)(a) TEU (“The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to (a) safeguard its values”, emphasis added) points to an immediate notional link between the Union’s understanding of the rule of law as a fundamental value of the Union and an objective of the EU external action. Subsequently, the adoption of the Rule of Law Framework is crucial not only for streamlining the protection of the rule of law as a fundamental value but defining the substance of this concept that can be, inter alia, extrapolated to the EU enlargement and external action.

The second significant trend that emerged as a result of the intra-EU rule of law crises has been the elaboration of new instruments to promote the rule of law. In this vein, the Commission’s 2019 Communication “Strengthening the rule of law within the Union. A blueprint for action” introduced the Rule of Law Review Cycle and Annual Rule of Law Report to both monitor significant developments in EU Member States and engage into dynamic dialogue with them.⁶ Thus, although the rule of law crises in the EU were not yet resolved, and the infringement procedures are ongoing, the Great Rule of Law Debate in the EU promoted the search for a consensual concept of the rule of law.

6European Commission, Communication to the European Parliament and the Council: Strengthening the rule of law within the Union. A blueprint for action, COM/2019/343final of 17 July 2019.

2. Scholarly approaches to the substance of the rule of law

The easiest-to-capture controversy in the rule of law debate relates to its substance. Such a controversy manifests itself in the co-existence and complex interplay of formal (including institutional) and substantive approaches to the rule of law in the doctrinal interpretation of the concept and the rule of law promotion practice. The core of the formal approaches to the rule of law directly stems from the opposition between the “rule of law” and the “rule of men”, i.e. “the condition of government absent of law, where men rule, according to their fancies, not according to general rules” (Cheesman, 2015, p. 20). In turn, alongside the prevention of the “rule of men” through effective and binding rules, substantive approaches to the rule of law zoom in on the contents of legal regulations. Both approaches are considered in more detail in what follows.

Formal perspectives on the rule of law

Focusing on the ways to effectively bind the governments, the main representatives of the formal approach, such as the Israeli philosopher Joseph Raz (1979) and the British constitutionalist Albert Venn Dicey (1985), emphasized clear, prospective and predictable rules as the foundation of the rule of law. In this vein, Raz (1979) argued in favour of a clear distinction between the rule of law and other features of the political and legal systems, such as democracy, justice and the protection of human rights. The impressive formality of Raz’s approach to the rule of law is manifested by the fact that he “readily admits that the rule of law could be met by regimes, whose laws are morally objectionable, provided that they comply with the formal precepts that comprise the rule of law” (Craig, 1997, p. 468). According to Raz (1979), these formal precepts of the rule of law include prospective nature, openness and clarity of laws; relative stability of laws; open, stable and clear rules of law-making; guaranteed independence of the judiciary; observance of the principles of “natural justice” (p. 217) (open and fair hearing, the absence of bias etc.); review powers of the courts; and accessibility of courts and limited discretion of the crime-preventing agencies.

Although Raz (1979) tries to distinguish the rule of law from other features of government, the analysis of formal approaches to the rule of law, introduced by him and other scholars, reveals tight links between the formal rule of law, on the one hand, and equality, fairness and the protection of individual rights, on the other hand. First, he himself goes beyond the solely formal approach to the rule of law, when mentioning the concept of “natural justice”, characterized by profound substance. Second, the fact that Raz (1979, p. 217) mentions that “the courts should be easily accessibl...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Contents
• Acknowledgements
• Preface
• List of abbreviations
• Introduction
• 1 The concept of the rule of law in the EU external action
• 2 EU external economic policy: history and the legal basis
• 3 The interplay between trade liberalization and the rule of law in the development context: towards the concept of EU value-promoting Regional Trade Agreements (RTAs)
• 4 EU rule of law promotion through RTAs in third states: the “regulation” dimension
• 5 EU rule of law promotion through RTAs in third states: the “action” dimension
• 6 Coherence between the “regulation” and “action” dimensions of rule of law promotion through RTAs (internal coherence)
• 7 Coherence between the rule of law promotion through RTAs and EU broader rule of law promotion activities (external coherence): the case of justice sector reforms
• 8 The EU-Ukraine DCFTA as an instrument of promoting the rule of law: conflict, unique approaches to assistance and unexpected spillovers
• Outlook and recommendations
• Index