Extending the Reach of EU Law

This chapter explores the ways in which the EU uses its external relations powers and its wide range of external instruments to extend the reach of EU law, and the ways in which law shapes the EU’s external action. It examines three dimensions of the relationship between law and external action: first, the role law plays in the construction of the EU’s international presence as a ‘Union of values’; second, the use of law by the EU as a way of conducting its foreign policy and constructing its relationships; third, the EU as a regulatory actor engaged in shaping, importing and promoting international legal norms. These dynamics illustrate different aspects of the notion of the global reach of EU law and in so doing they raise questions about the ambivalent role that law plays in these processes, challenging our understanding of law as the foundation of the EU’s external power and the instrument through which, and in accordance with which, it expresses that power.

The Global Reach of EU Competition Law

The chapter explores the extraterritorial application of the EU’s cartel rules, rules on unilateral conduct and merger control through case studies. It suggests that whilst the Commission’s global reach is extensive, this is tempered by the cooperative approach that the Commission nurtures with other competition agencies as well as a global drive towards convergence of antitrust standards. The scope for cooperation is more extensive in certain fields (e.g. merger control) and much less in others where there is disagreement on the superior standard (e.g. unilateral conduct). At the same time the chapter identifies the limits to the many forms of cooperation which the EU pursues and to the global quest for convergent standards.

The Internet and the Global Reach of EU Law

The internet has had a significant influence on how EU law applies beyond EU borders, and has enabled the EU to extend the application of its fundamental values to third countries. There are many examples of the EU exerting its global reach regarding the internet, particularly in data protection and privacy law. The EU’s actions in exercising its global reach with regard to the internet implicate important normative issues, such as distinguishing between the furtherance of core EU legal values and the advancement of the EU’s political interests; promoting the principles of EU law as universal values; ensuring that EU legal values are upheld in practice; and determining the territorial boundaries of EU law. The influence exercised by the EU carries responsibilities towards third countries, particularly those in the developing world. The internet may itself also be influencing EU law.

The Migration Crisis and the European Union Border Regime

This chapter is concerned with the various ways in which the migration crisis since the Arab Spring of 2011 has reshaped the reach of the EU border control regime. Within the EU framework, Frontex has acquired a greater role, while Schengen states have new powers to reintroduce internal border controls. In the external sphere, the EU now cooperates with a broader range of third states—Libya and Turkey most prominently—while developing more extensive forms of cooperation with them. The chapter will argue that this pattern—incremental internal changes and hyperactivity in the external sphere—is a product of intergovernmental constraints upon EU policy in a core area of member state sovereignty. The avoidance by EU Member States of legal responsibility for asylum applicants and other migrants is a further reason for the preference for externalization.

Financial Stability and the Global Influence of EU Law

This chapter considers the influence of European Union law in the post-crisis regulation of financial institutions on a global basis. The financial crisis of 2007–2009 created incentives for jurisdictions to ‘export’ their legislative solutions globally, in order to promote domestic stability. The resulting frictions were reduced by (a) promoting international agreement on optimal regulatory strategies and (b) using some form of mutual recognition strategy at the level of individual jurisdictions. The chapter argues that the European Union had relatively little influence on (a) because the international standard-setters are still dominated by the individual Member States. On the other hand, with the adoption of a Union level common rule book, implementation of (b) was placed in the hands of Union institutions. A case study of EU/US recognition of each other’s rules on central counterparties for derivatives clearing shows how cumbersome and political recognition may be.

The Global Reach of EU Law

This chapter explores the mechanisms that enable the EU to extend the global reach of its laws. These include extraterritoriality, territorial extension and the ‘Brussels Effect’. It offers multiple examples of territorial extension operating at different levels and considers the relationship between territorial extension and the Brussels Effect. The second part of the chapter includes a case study on territorial extension in EU environmental law. While it is increasingly accepted that the ‘effects’ doctrine may be invoked to regulate foreign conduct that entails significant effects at home, this chapter considers whether the concept of complicity may help to justify EU regulation that seeks to address environmental problems that are manifested outside the EU.

Introduction

The Introduction to this book introduces the concept of the extraterritorial or global reach of EU law, encompassing the extraterritorial application of EU law, territorial extension and the so-called ‘Brussels Effect’ through unilateral, bilateral and multilateral legal instruments, and explores its significance for the EU’s external relations and its identity as an international actor. It introduces the contributions of the subsequent chapters on specific fields of law and policy, including the environment, the internet and data protection, banking and financial markets, competition policy and migration. Finally, it offers some conclusions to the research findings of the book, exploring the ways in which law shapes the EU’s external identity and its relations with other legal regimes, both enabling and constraining the EU’s external action, and making the case for a normative perspective.