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The paradox of human rights conditionality in EU trade policy

Katharina L. Meissner (University of Vienna) & Lachlan McKenzie (University of Melbourne)

Despite its reputation as a champion of human rights, the European Parliament rarely takes a tough stance on including human rights conditionality clauses in its free trade agreements with third countries. Hence, many observers were baffled when the European Parliament insisted on such conditionality clauses in its negotiations over a Comprehensive Economic and Trade Agreement (CETA) with Canada. Given Canada firmly opposed these clauses, why risk derailing highly salient trade negotiations if your negotiation partner has a respectable human rights record anyway? In their article “The paradox of human rights conditionality in EU trade policy: when strategic interests drive policy outcomes” published in the Journal of European Public Policy, Katharina L. Meissner and Lachlan McKenzie offer an explanation to this puzzle that centres on the European Parliament’s strategic interests. Katharina and Lachlan argue that “the EP identified human rights conditionality as a ‘strategic issue’ because human rights made it appear as a unique supporter of legitimate and public interests.” In light of high-profile albeit contentious negotiations, taking risks in investing its political resources to insist on inclusion of non-commercial objectives in CETA was likely to pay off and promised to strengthen the EP’s public profile as a champion of human rights.

The decentralized enforcement of European law

Carolin Hübner (European Space Agency)

Within the EU’s judicial hierarchy, national courts can directly refer questions regarding the application and interpretation of EU law in member states to the European Court of Justice, creating a decentralized system of enforcing EU law. The Lisbon Treaty’s Article 267 specifies that national courts can refer cases to the ECJ to ‘specify the validity and interpretation of acts.’ Why do national courts make use of Article 267 submissions in some of the cases they hear but not in others? In her article “The decentralized enforcement of European law: national court decisions on EU directives with and without preliminary reference submissions” published in the Journal of European Public Policy, Carolin Hübner argues that national courts may simply follow the letter of the Treaty. Drawing on evidence from a sample of 1,310 national court decisions on EU directives, Carolin shows that cases involving directives that have left EU member states with more room for interpretation in implementation and technically complex directives are more likely to result in an Article 267 submission by national courts. The existing academic literature generally expects courts to use the preliminary reference procedure to alert the ECJ to non-compliant member states. Qualifying this expectation, Carolin’s analysis suggests that it “may well be the case that the mechanism is much more integrated into national courts’ day-to-day consideration of legal questions than the literature assumes.”

Assessing mutual trust among EU members: evidence from the European Arrest Warrant

Asif Efrat (Interdisciplinary Center IDC Herzliya)

Since 2004, the European Arrest Warrant (EWA) provides for a swift procedure for extradition between EU member states. The smooth functioning of the EWA ultimately relies on judicial authorities trusting the validity of warrants issued by their counterparts in another EU member state. This presumption of mutual trust among EU member states’ judicial authorities appears to be ill-founded, however, says Asif Efrat. In his article “Assessing mutual trust among EU members: evidence from the European Arrest Warrant” published in the Journal of European Public Policy, Asif provides evidence from the United Kingdom and Ireland, indicating that British and Irish authorities “surrender considerably more individuals to those members with better-quality justice systems and a stronger respect for human rights.” Asif’s findings have implications for policy-makers interested in fostering cross-country efforts to combat crime: Unless differences in the legal standards and human rights safeguards across national judicial systems are smoothed, cross-country cooperation on supressing crime is likely to stall.

The politics of overlapping organizations: hostage-taking, forum-shopping and brokering

Stephanie C. Hofmann (Graduate Institute of International and Development Studies Geneva)

The EU and NATO not only share three quarters of their membership, since the ushering in of the EU’s Common Security and Defense Policy in 1999, the two organizations’ efforts in crisis management also appear to duplicate each other. This phenomenon is indicative of a broader trend: As international organizations expand in scope and membership, their organizational boundaries begin to overlap. In her article “The politics of overlapping organizations: hostage-taking, forum-shopping and brokering” published in the Journal of European Public Policy, Stephanie C. Hofmann asks how such overlap impacts international organizations’ execution of their mandates. As some states are a member of only one organization whereas others hold dual membership, Stephanie argues that overlap between organizations results in a variety of strategies for governments to pursue their preferences. Organizational overlap accords new veto opportunities to single membership states and empowers them vis-à-vis dual membership states, while the latter can choose the organizational venue that best serves their interests or broker informal solutions, avoiding the procurement of expensive resources and resulting in more coherent multilateral engagement. Stephanie’s analysis of the EU-NATO overlap identifies the United Kingdom as a key broker, often offering informal solutions to alleviate complexities in crises management, which – against the backdrop of the United Kingdom’s nearing exit from the EU – suggests “that with Brexit, informal resource-based solutions will be harder to achieve.”

The neglected effects of Europeanization in the member states

Daniela Beyer (Fraunhofer Institute for Systems and Innovation Research)

As a growing volume of EU legislation needs to be incorporated into national law, the transfer of policy competencies to the supranational level has left its mark on the portfolio of tasks for EU member states’ legislators. Looking beyond such immediate effects of Europeanization on the dynamics in domestic legislatures, Daniela Beyer argues that the transfer of competencies has shaped policy-making in EU member states in an indirect – and yet unnoticed – way. In her article “The neglected effects of Europeanization in the member states – policy-making in directly EU-influenced and sovereign domains” published in the Journal of European Public Policy, Daniela shows that the shifting of policy competencies to the European level frees up legislators’ policy-making capacities in domains that remained under member states’ sovereign control. National legislators can devote more attention and resources to such policy issues and change the way policy is produced in these domains. Analysing 35 years of policy-making in the German federal legislature, Daniela shows “that deepening European integration has an influence on member states’ domestic agenda composition, and thus on changing patterns for both their sovereign and directly EU-influenced policy-making.”

The visibility of environmental rights in the EU legal order: Eurolegalism in action?

Chris Hilson (University of Reading)

The legal doctrines of direct effect and supremacy of supranational law offer EU citizens an avenue to challenge member states’ breaches of EU policy in national courts, fostering European integration through law. Against this backdrop, some observers have argued that the EU deliberately frames its policies in the language of rights, a phenomenon known as ‘Eurolegalism’. In his article “The visibility of environmental rights in the EU legal order: Eurolegalism in action?” published in the Journal of European Public Policy, Chris Hilson explores whether and to what extent rights-framed litigation has featured in the domain of EU environmental policy in recent decades. Chris shows that except for substantive legislative rights, the visibility of all types of EU environmental rights has increased in EU litigation cases since 1990, particularly following an EU legislative package aimed at fully implementing international law contained in the 2001 Aarhus Convention and the Lisbon Treaty’s incorporation of environmental rights contained in the EU Charter on Fundamental Rights. Chris’s analysis shows that “a Eurolegalism relying on rights frames has been a relative latecomer to the environment as a policy area”, with the recent upshot in EU environmental rights partly due to new legal opportunities following the adoption of the Lisbon Treaty and the positive signals this sent to litigants and judges.

Free movement and non-discrimination in an unequal Union

Susanne K. Schmidt (University of Bremen), Michael Blauberger (University of Salzburg) & Dorte Sindbjerg Martinsen (University of Copenhagen)

The European Union’s fundamental principles of free movement of persons and non-discrimination challenge the traditional closure of the welfare state. Whereas this appeared largely unproblematic before Eastern enlargement, the increased heterogeneity in economic development and welfare provision among EU Member States has spurred fears about potential welfare migration. JEPP’s most recent special issue on “Free movement and non-discrimination in an unequal Union” edited by Susanne K. Schmidt, Michael Blauberger and Dorte Sindbjerg Martinsen addresses this increasingly salient subject. The special issue brings together a collection of articles of the TransJudFare project as well as other experts to explore the current dynamics, scope and limits of free movement and equal treatment for EU citizens on the move.

The contributions are covering three main issues: One part is discussing the normative basis and the legal evolution of EU citizenship, free movement and cross-border access to social benefits. Another part analyses the politicisation of free movement from the perspective of individual attitudes and domestic institutions. A third part examines the theoretical and empirical nexus between European free movement and its reconciliation with the welfare state’s need for closure with regard to social benefits and study grants.

By analysing free movement and equal treatment from multiple perspectives, this special issue adds to several core debates in current EU studies. This includes the (im)balance between liberal market freedoms and social protection; the relative power of judicial and political decision-making in the EU; the gap between abstract EU legal principles and Member State implementation on the ground; and, lastly, the differences between actual problem pressure and patterns of politicisation.

Stakeholders wanted! Why and how European Union agencies involve non-state stakeholders

Sarah Arras (SB OverSeas) & Caelesta Braun (Leiden University)

Over the past twenty years, EU agencies have proliferated as part of the Eurocracy. Notwithstanding their different tasks and varying competences, they tend to share a common feature: they engage closely with non-state stakeholders, including industry associations, trade unions and non-governmental organizations. In their article “Stakeholders wanted! Why and how European Union agencies involve non-state stakeholders” published in the Journal of European Public Policy, Sarah Arras and Caelesta Braun note that although non-state stakeholder appear to assume an important role in EU agencies’ affairs, we know little about how EU agencies involve non-state stakeholders – or why agencies engage them in the first place. To address these questions, Sarah and Caelesta draw on a novel dataset of access instruments employed by EU agencies and a series of interviews with EU agency officials. Evidence from their analysis suggests that non-state stakeholder involvement not only responds to EU agencies’ demands, such as requests for expertise or attempts to shore up their organizational reputation, but also serves the European Parliament as an instrument of indirect control over the myriad of independent agencies. However, Sarah and Caelesta’s analysis also highlights “that rather than being independent and insulated from external pressures, as the idea of delegation to experts suggests, EU regulatory agencies are strongly embedded in a network of stakeholders”, risking a dependence on the regulated industry.

Opportunity or threat? Public attitudes towards EU freedom of movement

Sofia Vasilopoulou (University of York) & Liisa Talving (University of York)

A cornerstone of European integration, the freedom to work and live anywhere within the European Union is possibly the most visible and cherished perk of EU citizenship. However, for several years the freedom of movement has been the source of a contentious debate, featuring prominently in the rhetoric of Eurosceptic parties re-shaping the political landscape and the EU’s ongoing negotiations over the United Kingdom’s exit from the union in March 2019. In their article “Opportunity or threat? Public attitudes towards EU freedom of movement” published in the Journal of European Public Policy, Sofia Vasilopoulou and Liisa Talving explore the drivers of the public’s attitudes towards intra-EU migration. Combining evidence from four waves of Eurobarometer surveys administered between 2015 and 2017, Sofia and Liisa’s analysis shows that respondents with low levels of skills and education as well as those holding strong feelings about national identity are the ones most likely to oppose freedom of movement. These findings need to be evaluated in a domestic context, however. Digging a little deeper, Sofia and Liisa show that individual-level factors are clearly moderated by country affluence, with generally high levels of support for intra-EU migration in poorer EU member states, even among respondents typically perceived as Eurosceptic. Crucially, Sofia and Liisa’s analysis highlights that “[c]itizens in richer countries that tend to receive more EU migrants and where the question of EU mobility is more salient seem to be more prone to perceiving EU freedom of movement as a threat.”

The politics of guarding the Treaties: Commission scrutiny of rule of law compliance

Carlos Closa (Institute for Public Goods and Policies)

Recent reforms implemented by right-wing governments in Poland and Hungary have threatened to unravel the separation of powers in their respective polities, conflicting with the principles of the rule of law enshrined in Article 2 of the Lisbon Treaty. The Lisbon Treaty, however, equips EU institutions with a mechanism to respond to such threats. The European Commission’s decision to trigger Article 7 proceedings in response to the rule of law crisis in Poland, but not in Hungary, has raised more than a few eyebrows among both policy-makers and academics. In his article “The politics of guarding the Treaties: Commission scrutiny of rule of law compliance” published in the Journal of European Public Policy, Carlos Closa argues the European Commission’s decision to initiate Article 7 proceedings is driven by strategic considerations. Carlos argues that absent cooperation from domestic authorities in the offending member state, the Commission anticipates the likelihood of lacking sufficient support among EU members to employ Article 7 sanctions, which would threaten to signal tacit acquiescence to offending authorities. Drawing on data from Commission documents and a series of interviews with key decision-makers, his findings indicate the limits to the Commission’s enforcement capacities, translating into the latter’s “preference for compliance through instruments that can actively engage offending governments rather than those which could lead to severe sanctions.”