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Extraterritorial sanctions with a Chinese trademark European responses to long-arm legal tactics. CEPS Policy Contribution 26 Jan 2021.
Full text linkChina has recently updated its laws on the (security) screening of foreign investment, promulgated a new export controls law, drawn up an ‘unreliable entity’ list, and adopted an EU-style statute blocking the extraterritorial jurisdiction of US law. Beijing wages legal warfare (‘lawfare’) against Hong Kong, in the South China Sea, along the Belt and Road, and in cyberspace. Given today’s global geopolitical contestation it is only a matter of time before the European Union feels the grip of the long arm of Chinese law. Historically, the EU Blocking Regulation has provided for a unified European response to the extraterritorial application of sanctions. However, the proliferation of such sanctions requires a deeper debate on possible additional measures to increase deterrence and, if needed, to counteract them. This paper asks how the EU might prepare to be better protected against such lawfare, and finds inspiration in the established practice of hedging against secondary sanctions, as adopted by the US Treasury Department
Making European Policies Work – Evolving Challenges and New Approaches in EU Law Enforcement. EIPA Paper October 2021.
Full text linkThe EU is continuing to explore new approaches in the legal enforcement tools that it uses to ensure compliance with EU policies. The EU now combines mechanisms of public or centralised enforcement, on the one hand, with private or decentralised enforcement, on the other. It has also evolved in the last 20 years in order to find alternative and complementary enforcement tools. One key element is the principle of partnership between the EU and the Member States, involving ex ante enforcement mechanisms by which the Commission provides guidance and assistance to prevent non-compliance by Member States. Three case studies illustrate different trends and issues within this process. EU border control policy and the Schengen area show how the combination of horizontal and vertical mechanisms in a particular enforcement arrangement can evolve; horizontal cooperation and peer review continue to be valued even as the evaluation system has come to be Union-led. Competition policy is an example of the increasing importance of private enforcement through actions taken by firms, as a complement to public enforcement in ensuring effective deterrence. The EU response to the digitalised economy highlights the difficulties of using familiar enforcement tools given that new technologies challenge core concepts such as legal certainty; regulatory sandboxes are now being proposed as an innovative response
Getting Fit for Public Procurement: The Push for Professionalism. EIPA Briefing June 2021.
Full text linkPublic procurement is a key policy area for the proper functioning of the internal market, accounting for 14 % of EU GDP. It is also an instrument that can be used to help achieve other policy goals, including successful recovery from the present crisis.
The 2014 Public Procurement Directives were explicitly aimed at increasing access to procurement markets; improving transparency, integrity and data; boosting the digital transformation of procurement; and becoming the tool for strategic implementation of green, social and innovative policies in Member States. The EU would henceforth not only coordinate public procurement rules in order to ensure the integrity of the internal market in public contracts. It would also seek to utilise public procurement as a ‘demand-side policy’ to achieve its own key goals. The Council, in its Conclusions of November 2020, likewise calls on the Commission and the Member States to use public procurement as a strategic tool to foster sustainable and innovative growth.
Yet public procurement is highlighted in the Commission’s 2020 Internal Market Scoreboard as one of the specific areas in which work is needed and the performance of the Member States is ‘uneven’.
How can countries improve their performance? The European Commission has been recommending the professionalisation of public buyers since the last public procurement legislative package, in which Directive 24/2014 already mentions in its preamble the need for professionalising procurement management. In November 2020 the Council called on the Member States to improve the ‘professionalisation of public buyers’ as a key means ‘of enhancing efficiency of public procurement to boost recovery and to tackle future crises’.
This Briefing first presents the main needs and objectives that are involved, and then reviews the various initiatives that are under way to address these needs, focusing on the instrument ProcurCompEU
Member States and EU agreements: Is it really national parliaments that are standing in the way of EU strategic autonomy? EIPA Paper April 2021.
Full text linkIn voicing their ambition for a ‘stronger Europe in the world’ the European Commission has indicated to strive for ‘Open Strategic Autonomy’. One of the obstacles in trying to achieve this capability to assert itself as a global actor, is that individual Member States can often block EU actions. This undermines the EU’s ability to act as one, hindering the realisation of strategic autonomy.
This paper focuses on one specific illustration of this, namely the fact that EU action may be blocked by any single of the 36 legislatures in the EU Member States through their de facto veto right on ‘mixed’ agreements. These are international agreements that covering areas of EU competence as well as of the competence of Member States.
The concept of mixity is addressed in this paper by discussing how this has come about and how it is decided that agreements cannot be EU-only. It will also highlight the political and legal motivations that prompt Member States to insist on mixity in international agreements. Additionally, this paper presents cases where comprehensive agreements were not subject to ratification by each Member State for pragmatic reasons.
Lastly, this paper offers some thoughts on to how to address the dilemma of wanting to enable the EU to act strategically while, at the same time, duly involve national parliaments as representatives of stakeholders and citizen
Towards a European Code of Conduct for ethical campaigning. EPC Policy Brief 05 November 2021.
Full text linkIn recent elections across Europe, the boundaries defining what counts as acceptable or moral behaviour on the part of candidates, parties, media and campaign organisers are increasingly being crossed or have become blurred, especially online. And while the landscape, tone and techniques of political campaigning have changed, the rules have not.
This Policy Brief advocates a European Code of Conduct for ethical campaigning that would more rigorously determine what counts as moral or acceptable conduct, set standards for parties and candidates, and raise expectations for all actors to contribute to a less aggressive political scene. The Code should be established through co-regulation in cooperation with prospective signatories (European political parties), experts and civil society, and should draw on existing expertise, such as from the PRO-RES project, which provides guiding principles for politicians and policymakers to make decisions based on evidence and research - principles that apply to ethical campaigning too.
Without a codified set of standards for appropriate conduct by candidates and parties, political campaigns across Europe are likely to continue to be subject to manipulative practices, personal abuse and disinformation. A Code of Conduct for ethical campaigning may not resolve these issues overnight, but it would set the boundaries more clearly and indicate the expectations that candidates should be bound to – an important step on the path towards fairer, and less divisive and ill-tempered politics
EU crash course in geopolitics: Navigating the transatlantic minefield. EPC Commentary 01/10/2021.
Full text linkThe recent hot summer has been another reckoning for Europe on what geopolitics really means. The debacle in Afghanistan and the AUKUS spat have put a spotlight on transatlantic relations, and it doesn’t look good. It is high time the EU and US restore their diplomatic channels and engage in meaningful exchanges about where both sides converge or diverge in geostrategic terms
The von der Leyen Commission: Time to reset, regroup and get things done. EPC Discussion Paper 13/09/2021.
Full text linkAs Commission President Ursula von der Leyen prepares her State of the Union speech that will map out the second half of her mandate, she must seize the opportunity to reset her Commission after more than 18 months in crisis-fighting mode.
In broad lines, the European Commission’s priorities – fostering a collective recovery from the pandemic; rolling out Europe’s green, digital and geopolitical makeover – are the right ones. But today’s pace of change requires an updated outlook, fresh ideas and a critical examination of the President’s leadership, methods and structures.
Georg Riekeles lifts the veil and outlines three essential questions which guide a reflection on what this Commission now stands for:
How does the Commission ensure a continued capacity for fresh thinking and renewal to direct the EU’s political agenda?
Can the EU deal with the political fall-out from uncertainty, shocks and change?
Is the Commission’s executive structure tailored to deliver the major tasks it faces?
With many strong personalities and seasoned politicians, von der Leyen’s Commission has potential, and yet much of its agenda remains undelivered. Now is the time for her administration to regroup and get things done in the final three years of her term.
The below five recommendations addressed to President von der Leyen outline what should be done to improve her leadership and administration’s delivery within the current legal and institutional framework and complete the mandate assigned to her by Europe’s leaders and the European Parliament:
Establish independent thought and foresight, capable of challenging established ideas and structures, at the heart of the Commission’s leadership and policy agenda.
Clarify responsibilities over priority deliveries in the next three years within the College, including her own working relationship and shared leadership with the (Executive) Vice-Presidents.
Rethink the inter-institutional cooperation on major transformative EU projects, such as the Green Deal and digital transition, which must be co-constructed across institutions, from inception to adoption, through dedicated structures and processes. To better process member states’ political concerns, von der Leyen and Council President Charles Michel should offer First Vice-President Frans Timmermans the ‘Barnier seat’ at the European Council.
Experiment further with the task force model, relying on the dual leadership of a politician and a high-level civil servant that are given direct access to top staff and resources across the Commission to solve a specific mission.
Provide immediate remedy to resource allocation problems in overburdened Directorates-General and enact a proper reform of staffing policies
After Brexit: Could bilateral agreements facilitate the free movement of persons? EPC Discussion Paper 07/09/2021.
Full text linkSome of the millions of EU nationals in the UK and British nationals in the EU are already suffering from Brexit’s drastic curtailment of the right to free movement. How can migration now be governed and facilitated between the two parties?
Although an EU-wide agreement with the UK that ensures free movement remains the ideal solution, it is currently unrealistic. This calls for an evaluation of possible alternatives.
Bilateral agreements should be explored and examined as a possible alternative to an EU-wide agreement with the UK to facilitate and govern cross-border mobility. Various bilateral free movement agreements across Europe show that their use is not only legal but also habitual. They offer flexibility when it comes to the rights of entry, residency and work, as well as other important rights. And they could also be used as a foundation upon which to build an agreement between the EU as a whole and the UK, if not to facilitate the rebuilding of mutual trust.
Migration law expert Diego Acosta makes a further case for Spain being the first possible candidate for a post-Brexit bilateral free movement agreement concluded between an EU member state and the UK. Spain is the most important EU destination for British emigrants, and British migrants residing in Spain constitute the latter’s third-largest non-national population. In turn, the UK is the most important migrant destination for Spanish nationals worldwide, who represent the fifth-largest migrant group from the EU. He offers concrete suggestions as to what a bilateral treaty between Spain and the UK could include.
In addition, governments of EU member states that have important reciprocal migration flows with the UK, as well as the UK government, should consider the following recommendations when exploring the possibility of adopting bilateral agreements on migration:
The negotiating parties should place the rights and interests of both short-term and long-term British and European nationals residing in each other’s territory at the centre stage.
In negotiating a possible treaty, both the respective EU member state (e.g. Spain) and the UK should take the pre-Brexit status quo as the departing point.
The status of mobile nationals could be improved beyond that enjoyed by EU citizens pre-Brexit. For example, political rights could be extended beyond the municipal level.
Certain categories of individuals (e.g. retirees, young workers) could benefit from special provisions which also depart from the pre-Brexit situation
The Israeli-Palestinian conflict: Can the EU break the cycle of violence? EPC Commentary June 2021.
Full text linkThe recent ‘Gaza conflict’ between Israel and Hamas highlighted once again that it is time for the EU to take a more proactive role in the Israeli-Palestinian conflict. It should devise and implement a plan with clear steps and aims anchored on building trust, changing perceptions, redesigning EU policies, and enhanced regional and transatlantic cooperation.
The latest escalation in the Israeli-Palestinian conflict took the international community by surprise. The events are a cautionary tale that, even though the conflict has been low on the international agenda in recent years, tensions continue to simmer, ready to boil over instantly. The international community must urgently double down on efforts to find a long-lasting, peaceful solution
‘When Mayors Make Migration Policy’: The future of city diplomacy. EPC Policy Brief June 2021.
Full text linkIn the times of COVID-19, what are the risks and opportunities for city diplomacy in European migration and integration governance? The consequences of the pandemic on the fragile structure of transnational city-to-city and city-to-EU cooperation are largely overlooked. As priorities shift to short-term crisis management, city representatives find it more difficult than ever to set aside time and resources for city diplomacy at the European level.
There is a real risk of re-localising urban issues that can only be successfully addressed by multilevel governance. The backslide of considering cities as mere policy implementers would hinder the concerted development and promotion of policies that reflect and address migration realities on the ground.
Innovative working methods must be included into city diplomacy, and migration-related policy issues addressed comprehensively. Realising these opportunities is not only necessary to maintain existing networks, but also address short-term management issues and long-term recovery strategies in the context of the pandemic.
In order to seize the windows for inclusive and innovative work methods and policy design in city diplomacy, the following measures should be adopted:
expand inclusive virtual city networking;
strengthen city diplomacy’s everyday dimension;
foster EU institutions’ virtual accessibility;
promote cross-regional city diplomacy;
break up ‘siloing’ of interdependent policy fields;
normalise non-discriminatory access to basic services;
promote inclusive narratives, incubate community solidarity networks; and
link ad hoc COVID-19 practices to general integration strategies