Conference Abstracts – by Stream

The Criminal Justice Stream

The stream examines four areas where highly pertinent social issues trigger a criminal justice reaction: white collar criminality, illicit trafficking, terrorism and cyber-crime. Because of the complexity of problems in these fields and the transnational nature of these phenomena they require regulation and enforcement that crosses the borders of states and disciplines. Four panels dedicated to each of these topics will scrutinize the current state of play with the outlook to the future challenges and developments.

I. Economic and Financial Crime

Michael Levi (Cardiff University, UK) – Why are we so obsessed with criminal law in economic regulation?

The paper examines the analytical and psychological rationales for using the criminal law against white-collar and corporate misconduct, addressing what the real utility of criminal law is for regulating behaviour, social legitimacy and fairness, and concluding that especially given the inability to incapacitate corporations in prison, many of the justifications are weak but reflect the desire not to allow accountability to be seen to be missing and to maintain the pressure for ‘punishment for all’.

Judith van Erp (Utrecht University, USBO) – Shaming in the field of economic and financial crimes

The rise of multinational corporations and the global economy pose unprecedented challenges to the control of corporate behavior. Although globalization decreases the shadow of hierarchy provided by the nation state, it also creates opportunities for new control institutions, as functional equivalents for state legislation and enforcement of corporate misconduct (Borzel & Risse 2010; 2015). This paper focuses on reputational sanctions imposed by global NGO’s in naming and shaming campaigns against corporations for human rights violations. The threat of reputational damage is often assumed to be a strong deterrent that can reinforce, or even replace, legal sanctions. Regulation therefore increasingly focuses on reporting and disclosure obligations for corporations to increase transparency of corporate human rights behavior. The assumption is that this information empowers civil society actors to hold corporations accountable. But this assumption is surprisingly unsubstantiated, as empirical insight in the actual process of shaming, the nature and impact of reputational damage, and its preventative effect on corporate behavior, is lacking. This paper investigates one aspect of this relation by looking at the policy assumptions behind current regulatory and nonstate initiatives directed at increasing transparency and disclosure about corporate human rights violations, such as the EU Directive on Non-Financial Information Disclosure. It also discusses the reactions of global NGO’s to this disclosure, and how this information informs strategies of NGO’s in selecting, targeting, and shaming corporate human rights violations. Last, the paper reviews existing evidence of the effectiveness of reputational damage caused by NGO naming and shaming.

Damián Zaitch (RENFORCE)The role of EU banks, businesses and institutions in the construction of the Global South’s hydropower plants

Half of the large rivers in the world have been populated by more than 55.000 hydropower dams. Once believed to be a cheap solution for energy and water, large dams, particularly those in poor countries, have huge negative economic, social and environmental effects. Many projects do not meet the minimum standards of human rights and environmental protection set for example by the World Commission on Dams or the EU (trade and investment guidelines). This presentation will first introduce the issue of dams as a criminological subject, and will they try to explore the role of European banks, businesses and institutions in the financing or construction of dams in the Global South.

II. Illicit Trafficking & Trade

Stanislaw Tosza (RENFORCE)Countering illicit trade in tobacco – obstacles to effective enforcement

According to the most recent estimates relatively few cases of illicit tobacco trade are detected – thereby prosecuted and/or sanctioned – in the European Union. The enforcement deficit and high dark number are key factors of illicit tobacco trade, which causes huge yearly losses to the Member States and the EU budget in evaded customs duties and taxes; undermines public health policies; and provides a source of revenue for criminal organisations, undermining security and safety in the EU.

The aim of this paper is to present the key obstacles to effective enforcement against illicit tobacco. In the first place, it will analyse the main factors making illicit tobacco trade a phenomenon difficult to fight with. Furthermore, it will focus on the deficiencies of the current enforcement framework: the important but limited role of OLAF (due to its limited capacities) as well as the lack of harmonised national laws and approaches. The paper will also consider the potential influence of the First Protocol to the WHO Framework Convention on Tobacco Control (The Protocol to Eliminate Illicit Trade in Tobacco Products) that entered into force on 25 September 2018.

Madeleine de Cock Buning (RENFORCE) Protection of cyber creativity

In her presentation Prof Dr. Madeleine de Cock Buning (Utrecht University/RENFORCE and European University Institute EUI/STG, Florence) will focus on cyber creativity as a property of free will.   Can Artificial Intelligent Systems be creative? Should their products be protected against profitable misappropriation of third parties? There is no doubt that machine created works can be of great value. That is illustrated by the recent auction of a painting created by the algorithm minG maxD Ex[log(D(x))]+Ez[log(1-D(G(z)))] for €375.000,-.

De Cock Buning will analyze whether machine created works can and should be protected by Intellectual Property (IP) using a parallel that be drawn with the history of photography. Initially, there was discussion about whether making photographs involved a level of human creativity. Louis Daguerre, one of the inventors of photography, saw his invention as a way in which nature reproduced through the lens of the camera obsecura without any human creativity. Following this line of reasoning, photographs should not be protected as creative works of art. Yet, already in 1884, the US Supreme Court decided in the case of Burrow-Giles Lithographic Co. v. Sarony that a photo can be seen as an original work of creativity as the photo is in fact the product of the choices made by photographer, such as the positioning and arranging the subject and disposing levels of light and shadows. Photos were thus protected by IP rights. Nowadays, more than 130 years later, this is commonly accepted. What does this tell us about machine created works of art? De Cock Buning will explain that the current state of technology in AI always involves some form of human authorship. The interesting question remains: can works also be protected if not any human intervention took place? To answer this question, she will argue, that the solution can be found in the foundations of the law: at the one hand IP serves as an (economic) incentive to create, and at the other hand it serves the principle of fairness that the creator of a work has a natural right to pick the fruits of its labor. The extent to which we think that robots fit these foundational principles will determine the answer to the fundamental question thereby connecting the legal question to the state of play of Autonomous Intelligent Agents and its economic value to society.

Steffen Rimner (Utrecht University)Drug Trafficking and State Control: A Global History of Loopholes

This paper delineates the regulatory contours of the global regime of international drug control in historical perspective, identifying it as the first global regulatory regime under League of Nations supervision prior to the regulatory regimes for human and wildlife trafficking. It investigates the changing role and responsibility of Europe within the legal development of the global control regime, now centred on the UN Office on Drugs and Crime. In historical perspective, the paradigmatic priorities of drug regulation were unevenly distributed, both typologically and geographically, shifting the perceived place of legal loopholes of the political economy of drug trafficking as it globalized across time. The paper calls attention to the risks of sidelining the EU experience in the global modification of drug control, impelled by the Wars on Drugs in the Americas but insufficiently attuned to what may be an emerging golden era of trafficking from Asian sources.

Lieselot Bisschop (ERASMUS University, Rotterdam)European ships on South East Asian beaches: shipbreaking, illicit trade, and state-corporate crime

Shipbreaking is the dismantling of discarded vessels with the intent of reusing parts and recycling secondary raw materials. About 70% of discarded vessels end up on the beaches of South East Asia and are dismantled without regard for the environment and human health (Heidegger et al 2016). Various toxins pollute the water, soil and air. Our study discusses the practice of shipbreaking as an environmental crime and analyzes the role played by corporations and governments. The theoretical frameworks of state-corporate crime (Kramer & Michalowski, 2002) and treadmill of production (Lynch et al 2016) provide the frame of analysis for our case study. This explorative study focuses on Germany and Greece as countries of origin and Bangladesh as a country of destination. It is based on document analysis and expert interviews. Our findings show that shipbreaking is the result of a complex interplay of economic and political actors on national as well as international level. This includes shipping lines, financial institutions, investors, cash buyers, classification companies, ship yards, flag states, port states, beneficial owners and tax havens. This environmental state-corporate crime occurs because of high profits, lax formal and informal control and the systemic prioritization of the economy over the environment.

III. Terrorism

Scott Douglas (Utrecht University, USBO)Evaluation of the Dutch counterterrorism strategy in the light of the EU policy and strategy

Terrorisms needs to be countered with interventions which are effective, legitimate, and robust, all at the same time. The counterterrorism strategies of European and national governments do indeed intend to offer such a multi-dimensional approach on paper, but may struggle to realize it in practice.

This presentation focuses on the challenges in organizing such this response, based on an evaluation of the Dutch counterterrorism response between 2011 and 2015. Key challenges included (1) mobilizing a comprehensive response involving both repressive security measures and preventive social measures, and (2) orchestrating a response across multiple levels of government, aligning European and national and local interventions.

Beyond exploring these challenges, the presentation also highlights how several local mayors, police officers, and social workers manage to overcome these obstacles and still deliver an effective, legitimate, and robust response.

Hanneke van Eijken (RENFORCE)EU citizenship under pressure: balancing security and citizenship in times of terrorism

Ensuring the security of EU citizens is high on the EU and Member State agendas because of the recent terrorist attacks in EU countries and the influx of migrants and refugees from Africa and the Middle East. As a result, EU and Member States rules and policies are framed increasingly from a security focus. Although security in itself benefits all EU citizens, this focus also has negative consequences for other fundamental rights of EU citizens.

EU citizenship is the status enjoyed by all nationals of the EU Member States by virtue of Article 20 TFEU, which promotes free movement and equality. Furthermore, EU citizenship is part of both a legal and a political narrative, which frames this legal status as contributing to an exchange of views, increased social and cultural integration, and political participation of EU citizens. EU citizenship embodies the fundamental values of the European Union. EU citizens have a least 5 specific core rights: (1) the right to privacy, (2) the right to family life, (3) the right to equal treatment (4) the right to free movement and (5) the right to security. A proportionate balance should be struck weighing these core rights of EU citizens.

 

John Vervaele (RENFORCE) – Criminalisation of terrorist danger: the imperative of security law

Criminal anti-terrorist legislation is deeply rooted in some European countries, mainly due to the problem of domestic terrorism in the 1970/1980s . However before 9/11/2001 a majority of the MST were not in favor of the harmonisation of autonomous terrorist offences. 9/11 did really change the mindset and led to an expansive criminalization, as a the result of a dialectic interaction between international, European, and national law. They all did preach the same paradigm, but the states often provide the most open and vague offenses in their legislation and/or criminal jurisprudence.

In 2002 the EU did by its FD harmonise terrorist offenses as well as offenses relating to terrorist groups or to terrorist activities. The Netherlands f.i. converted from an opponent to harmonisation into a producer of anti-terrorist legislation and also to a big user by the law enforcement community, especially the prosecutors’ offices.

Despite the lack of unanimity in the international community on the role of criminal law in countering terrorism and on a consensual criminal law definition of terrorism, there is also clearly an expansion and anticipation of criminal law in all 19 international conventions and UN resolutions. Not only do they oblige states to incriminate violent and harmful conduct but also to increasingly incriminate preparatory and anticipative acts that consist of abstract or concrete endangerment, such as certain acts of glorification or financing. UN Resolution 2178 of 2014 on foreign terrorist fighters is the most significant example.

Resolution 2178, that was unanimously endorsed by the UN Security Council in 2014, based on Chapter VII of the Charter, is a very good example of this, as it deals explicitly with the threat posed by foreign terrorist fighters, namely, those fighters travelling to a State other than their State of residence or nationality for the purpose of committing, planning or preparing terrorist acts or participating therein, or providing or receiving training for the purposes of terrorism, including in connection with an armed conflict.

Implementation by the CoE and EU. In 2015 the Council of Europe adopted the Additional Riga Protocol to the Warsaw Convention of 2005, adding new offences, especially in relation to foreign terrorist fighters and their “passive training”, their travelling to areas of conflict, and the funding and material support for these trips. The second, Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 took over the content for the EU. The phenomenon of foreign terrorist fighters lies at the heart of the new criminal intervention, since it is not only a matter of travelling for terrorist purposes (including receiving training), but also the financing, organization and facilitation of such travelling, including logistical and material support, accommodation, means of transport, services, goods and merchandise. Some EU countries even want to go beyond this obligation and to criminalize the mere fact of travelling to conflict areas. In the US was introduced the concept of precursor offences.

This expansion and anticipation of the criminal law intervention in the anti-terrorist policy is turning criminal justice into a mere instrument of security and risk control policy. The counterterrorism paradigm has resulted in a vast array of anticipated and associative offenses, reflecting an expansionist punitivism, whereby the goal of criminal justice has shifted from punishment of perpetrators (for purposes of general and special prevention, including rehabilitation) to a wider field of social control of danger and risk. As a result, the commission of a criminal act by a suspect is no longer the threshold that triggers the state’s ius puniendi; the triggering of criminal investigations and use of coercive measure are based on concept of dangerousness, insecurity and presence of “enemies”. Criminal law becomes security law. Security law is based less on a legal definition of suspects and criminal conduct linked to serious harm to protected legal interests, but on notions of risk, danger and insecurity. There is clearly a trend to criminalize the anticipative field (acts before the commission of even preparatory offenses) and to decrease the protection of human rights.

The expansion and anticipation of criminal justice goes hand in hand with the erosion of the basic principles of modern criminal justice, as elaborated in the Enlightenment (nullum crimen sine iniuria, nulla poena sine culpa, ultimum remedium, fair trial, etc.).

The widening net of criminal justice leads to a function creep and dehumanization of the criminal law combined with a political instrumentalization and mediation of crime, and the fear of crime .

We have to avoid triggering a state response that ends up affecting what it seeks to defend: human rights, democracy, ultimately, the fundamental legal values of a society. They are the foundations and limit of ius puniendi and the basis of a humanistic criminal law. A criminal law without limits becomes an instrument of social control by the state that undermines not only the mere essence of criminal law but also the legitimacy of the punitive power of the state. This is why it is important to redefine and limit the role of criminal law in countering terrorism and to reinforce the human rights approach in this area.

Iain Cameron (Upsala University, Venice Commission) – Smart Sanctions Regime and EU Constitutional Values

The development of EU anti-terrorist sanctions has given rise to a range of difficult issues in several fields. The focus of my short presentation is the use of intelligence material in justifying targeted sanctions against terrorist suspects, and the problems this causes in administrative law and criminal procedural law. I will look, inter alia, at the use of secret evidence in proceedings before the Court of Justice of the EU (CJEU) and what this entails for the rights to a fair trial, and to effective remedies.

IV. Cyber World and Cyber Crime

Katalin Ligeti (University of Luxembourg) – Transnational cyber investigations: reconciling tensions between data protection, law enforcement and cloud computing in the EU

The European Commission is currently promoting draft legislation which would introduce a regime of unmediated, enforced “cooperation” between judicial authorities in one Member State and service providers (tech companies) in another Member State who are in – often exclusive – possession or control of electronic data in the aim of making that data available for criminal investigations and/or at trial. The roots of the legislative package lie in a request from the Member States to the Commission: a rare occurrence in the sovereignty-sensitive real of EU criminal law, and a testament to a political consensus that viable solutions to the e-evidence bottleneck can only be found at the transnational level.

Yet although it is inspired by and founded on mutual recognition, the envisaged European Production Order (EPO) framework would at the same time go further than previous EU criminal law instruments centred on direct interaction between judicial authorities (the European Arrest Warrant; the European Investigation Order) by excising the role of the judicial authority in the Member State where the service provider receives an order directly from the issuing authority – at least until such an order must be enforced. As such, not only its legal basis but its precise interrelationship with extant EU tools invite scrutiny. With “GDPR Day” now in the rear-view mirror, the data protection and fundamental rights repercussions of tasking a private entity with performing an extended sword and shield function on behalf of law enforcement on the one hand and the data subject (its customer, the suspect and potentially the defendant) on the other require careful assessment, as do comparable regulatory developments across the Atlantic.

Mark Zoetekouw (RENFORCE)Jurisdiction in cyberspace, fictions of territoriality: Imaginary Solutions

This contribution will deal with ‘putative territoriality’ explaining why fictions of territoriality are used by people in law enforcement practice and why these fictions are not helpful in dealing with the issue of cross-border criminal investigations.

To that end the contribution will revisit the very basics of international law and test these fictions against them. This overview will take us from all the way back to ‘Lotus’ to very recent developments such as the Microsoft Ireland case, recent legislative efforts in the EU and the new Tallinn Manual 2.0. On this basis it will be discussed if there is reason to think the old adages of international law may have changed.

 

The Migration and Citizenship Stream

The Stream on Citizenship and Migration offers a timely discussion of the most recent developments in regulation and enforcement in the core areas of citizenship, migration, asylum and equality. Brexit, Asylum HotSpots, Trafficking and Gender equality are some of the interesting topics that experts will present in an attempt to shed light on the most recent European challenges.

II. The Governance of Migration

Veronika Nagy (RENFORCE) – How to use the “remote control” of migration? Digital governance of pre-emptive mobility.

As a result of technical innovations in the global bureaucratic infrastructure, migration governance can be increasingly compared to a self-learning machine that aims to ‘read’ the required information and then use it to make a judgment on which status a migrant should be given (Dijstelbloem et al. 2011). The social, ethical, legal and administrative results of such a sorting process add another dimension to the already highly charged debate on migration policy. Because discussions on the political aims of migration policy demand everyone’s attention, the spotlight is much less often focused on what happens during implementation, let alone the specific role of the type of technology used (Broeders 2013). As media infrastructures and social environments become increasingly datafied, digital analysis and self-learning algorithms surpass the legitimacy of many traditional control measures to predict future security concerns. While these predictions were mainly applied for situational crime prevention, recent control policies are initiated based on data mining to define future individual behaviour (Nagy 2018). Due to an increasing role of digitisation, by integration of multiple methods such as classification, clustering, evaluation, and data visualization, data mining established a dominant role in identifying patterns rapidly to detect future risks among migrants (Bigo, 2016). As the latest antiterrorism measures illustrate, these outsourced software-based decisions are considered as objective calculations to justify current changes in security policies (Monahan 2017). As the political elite have a lack of understanding of these big data calculations, they might accept the outcomes provided by contracted corporates without valorisation. These digital predictions might strengthen technocratic bureaucracies and justify the limits of discretionary power among political stakeholders. Shortly, digital innovations provided by corporate vendors turned into the new sentinels of public security in the late modern migration governance.This paper highlights the risks of such predictive power granted to this digital entrepreneurship, while reflects on discrimination issues that need to be tackled with after the datalogical turn.

 

Narin Idriz (Asser Instituut)Regulating cooperation with third countries

Cooperation with third countries to manage migration flows has always been important, but it is all the more so after the refugee “crisis” of 2015-16, which brought the internal cooperation on the matter to a deadlock. Migration management is now a top priority for the EU and Member States alike; an issue to be prioritized and mainstreamed across different policy areas from foreign policy to development cooperation.

In the light of these developments, this presentation will focus firstly, on what is considered to be the building block of EU migration management, namely Readmission Agreements with third countries, their benefits, shortcomings and their evolution into more informal arrangements; secondly, on the development and use of partnership frameworks of different kind when readmission agreements are not an option; and thirdly, on the current trend of employing more innovative and flexible tools, arrangements, and deals in this area. Lastly, the presentation will be concluded by an overall appraisal of the new issues and challenges these recent trends and developments bring.

III. Moritz Baumgartel (University College Roosevelt) – Migrants’ vulnerability and non-discrimination

The sovereign right of states to control their borders entails a correlative right to make distinctions between groups of persons based on the grounds of their presence on the territory. This undisputable principle of international law, however, suspends another basic premise of human rights law, namely the notion that susceptible groups will be shielded from discriminative practices. As legal scholars and practitioners have accepted this situation, little further consideration is given to what exactly gets lost on the way. This paper addressed this question with a view to Europe’s multi-layered system of human rights protection. It will be argued that the near-complete absence of non-discrimination guarantees deprives national and supranational judiciaries of the ability to engage with the rapidly transforming reality of immigration control. Left only with the ‘baseline’ protection offered, for example, by the principle of human dignity, the European Court of Human Rights has made a cautious attempt to ‘take back control’ over this important question for human rights law through the introduction of the principle of vulnerability. This paper questions the Court’s present group-based and historical understanding of vulnerability, advocating instead for its reconceptualization as a socially-induced condition that evolves in tandem with states’ changing strategies aimed at restricting immigration. It finishes with a reflection on the advantages and shortcomings of such a concept of vulnerability particularly when compared a notion of ‘legal precarity’, taking into account the literature on citizenship and the exigencies of jurisprudential strategy.

IV. The Common European Asylum System

Violeta Moreno-Lax (Queen Mary University of London) – EU Humanitarian Visas: From Legal Pathways to Individual (Rights-based) Access to Asylum

This paper will explore the reasons supporting the adoption of a legally-binding instrument on EU Humanitarian Visas, drawing on the study undertaken as part of the Added Value Evaluation submitted in July 2018 in support of the LIBE Committee Report on Humanitarian Visas, as requested by the LIBE Rapporteur Juan Fernando Lopez Aguilar, which is about to be voted in Plenary. It will address the main issues surrounding the access to protection debate, assess the policy solutions available to the EU legislator to resolve the current crisis, and explain why a rights-based approach to humanitarian visas is the best way forward to ensure compliance with the EU Charter of Fundamental Rights. Findings expand on the author’s monograph: Accessing Asylum in Europe (Oxford University Press, 2017).

The Market Stream

The Market Stream will provide insight into pressing market issues ranging from consumer protection, digital markets and fundamental rights as they are interwoven in the EU and global market systems. Developments in this area are complex and affected by a multitude of study fields, including: contract law, digitization, social and economic integration, circular economy, climate change, transatlantic trade relations, and interactions between different legal orders – all of which will be explored through the stream’s workshops. 

I. Digital Market & Consumer Protection
II. The Global Market

Jed Odermatt (City University London) The EU’s Economic Engagement with Areas of Contested Sovereignty

It is now well established that the European Union is under an obligation to respect international law in the exercise of its powers, and an obligation of ‘strict observance’ of international law is enshrined in Article 3(5) Treaty on European Union. This obligation to respect international law gives rise to particular challenges when the EU engages in economic relations with areas of contested sovereignty and limited statehood. The EU’s economic relations with Cyprus, including the unrecognised Turkish Republic of Northern Cyprus, have given rise to legal disputes before the Court of Justice of the European Union (CJEU), as have the EU’s trade relations with Israel and Palestine. In the recent judgments of Western Sahara Campaign UK and Front Polisario, the CJEU was faced with questions arising under international law about how the Union should engage with Western Sahara. On the one hand, the CJEU dealt with public international law in its legal reasoning, applying principles of customary international law and treaty interpretation in the 1969 Vienna Convention on the Law of Treaties (VCLT) when deciding whether the EU’s economic agreements with the Kingdom of Morocco applied to the territory of Western Sahara and its adjacent waters. However, the Court does so in a way that allows the EU’s economic agreements with Morocco to stand, and without examining whether such agreements may violate the EU’s obligation to, for example, not recognise an illegal situation arising from a breach of international law. This contribution discusses this tension, discussing recent cases, as well as the EU’s policy towards areas of contested statehood. How does the EU, an influential and power trade power, engage with such areas of contested sovereignty, while maintaining its obligations to respect international law?

Natalie Dobson (RENFORCE)EU Trade Measures and Climate Change: A Green Playing Field?

Over the past years, the European Union has adopted quite a controversial stance on climate protection through its use of unilateral trade measures. In some cases, this has catalysed the development of multilateral agreements seeking to reduce carbon dioxide emissions. This is particularly evident in the field of international maritime and aviation transport. In other cases however, the EU has faced greater challenges in ‘exporting’ its norms. A key example here is the EU Renewable Energy Directive with its greenhouse gas emissions savings requirements for sustainable biofuels. This standard was challenged by Argentina under WTO law as begin ‘arbitrary’, ‘neither scientifically justified nor … based on a recognized international norm or standard’. While the case never reached the Panel, the EU was eventually forced to lower the barriers to entry for Argentinian biofuel onto the common market after losing a separate anti-dumping case before the WTO. Drawing on EU practice, this presentation considers the merits and dangers of using unilateral trade measures to protect the global climate with the dual objective of maintaining a level playing field or even a competitive advantage. In doing so, it critically assesses recent EU policy developments and looks towards future challenges in the post-Paris era.

Urszula Jaremba (RENFORCE) – (Effective) sharing and enforcing EU values and objectives in international trade: from ‘Brussels effect’ to coercion

The EU’s international trade policy is a powerful tool used to protect EU’s economic and strategic interests. At the same time, Article 21 TEU puts and obligation on the EU to pursue a number of non-economic principles and objectives such as protecting human rights, consolidating the rule of law, strengthening international security, enhancing sustainable development or preserving the environment, to name just a few. As Article 207 TFEU instructs, the EU’s trade policy must be conducted in the context of those ‘extra-trade’ principles and objectives. Also the Court of Justice EU emphasized that the European Union is obliged to integrate those objectives and principles into the conduct of its trade policy (Opinion CJEU 2/15).

There are different instruments and mechanisms that the EU can employ to promote and enforce the mentioned non-economic values and objectives in the field of international trade. On the one hand, the EU can externalize its objectives through internal market mechanisms, i.e. by putting in place regulatory frameworks related to the functioning of the internal market. By doing so the EU induces adherence of external actors to its non-commercial objectives without actively imposing those objectives on them (Bradford 2012). Relevant examples of the foregoing mechanism are for instance the EU Regulation on Conflict Minerals, Novel Food Regulation or the Timber Regulation. On the other hand, the EU can use the (negotiated) Free Trade Agreements to promote the goals of sustainable development, labour norms, human rights and environmental standards. Those commitments are often not accompanied by coercion mechanisms that would allow to effectively enforce them in situations when they are not lived up to. Finally, the EU also resorts to the mechanism based on unilateral coercion to externalize its non-trade objectives. A trade ban that can be imposed by the EU on third states that do not fight illegal fishing is an example of (successful) promotion and enforcement of extra-trade objectives.

The paper aims at providing a global and holistic overview of the mechanisms and tools that the EU can and does resort to in order to externalize its non-commercial values, principles and objectives in the area of international trade. The paper will have both descriptive and normative character trying to answer the question to what extent the available models are desirable, effective and legitimate.

Joris Larik (Leiden University)Brexit and transatlantic trade relations

The withdrawal of the United Kingdom from the European Union (Brexit) is not only a source of political and legal upheaval in Europe but will also prompt a recalibration of transatlantic trade relations. In this presentation, based on an article forthcoming in the University of Pennsylvania Journal of International Law, Joris Larik argues that it would be a gross oversimplification to conceive of transatlantic relations as sets of bilateral relationships. Instead, Brexit affects many existing and interdependent triangular relationships that the United States maintains with the EU and its Member States, which are conditioned also by the foreign relations laws of these polities. Perhaps counterintuitively, recalibration in the “high politics” area of security and defence will be easier than in the “low politics” of trade and regulation. In elaborating on these points, the presentation will delve into three levels of complexity: First, the empirical challenge of determining the relevant treaties in force between the EU and United States and by which the UK will cease to be covered; second, the transatlantic implications of available alternative models of access to the EU’s Internal Market for the UK; and third, the way forward in ensuring continuity and bringing about future trade agreements and economic cooperation in the EU-UK-U.S. triangle, seeing that the EU itself is a moving target due to ongoing reform efforts.

III. Digital Market & Fundamental Rights
IV. Social Market Economy

 

Panel: New Challenges of Regulation and Enforcement in the EU

I. Trends in EU Legislation
II. Institutional innovations in the field of enforcement in the EU

Rob Widdershoven (RENFORCE/Dutch Council of State): Decentralized Enforcement of EU Law: The End of Enforcement Autonomy?

Despite clear verticalisation tendencies in enforcement of EU law, 99% of EU law is still enforced by the MS and is, therefore, governed by the principle of enforcement autonomy. In my contribution I will argue that enforcement autonomy is not a legal principle but a point of departure only, from which the EU may deviate if necessary for an effective application of Union law. In reality the EU has already prescribed so many instrumental and protective requirements concerning both administrative and criminal law enforcement of EU law, that enforcement autonomy is diminished considerably. This development will probably continue in future. Enforcement autonomy, what autonomy?

Marta Kajda (Polish Office of Competition and Consumer Protection)“Enforcing EU law by networks: Insights on the European Competition Network (ECN)”

The presentation  will widely discuss the different competencies of the network, which are established in the Council Regulation (EC) No. 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (also „Regulation”) – the legal foundation of the European Competition Network.

The delegate will present various forms of cooperation with the aim to show their effects. The very general topics for discussion are:

  • article 11 of the abovementioned Regulation which prescribes information for purposes of verification and decision-related coherence within the network,
  • formal and informal exchange of information (art. 12 of the Regulation),
  • the Advisory Committee,
  • inspections conducted by national competition authorities at the request of the European Commission.

Furthermore, all presented forms of cooperation will be described and discussed on the basis of actual cases. In the end of the presentation, the delegate will give an balanced opinion on the effectiveness and current/future challenges of cooperation within the network.

Argyro Karagianni (RENFORCE)Direct enforcement by the ECB: Effective banking supervision and respect for the rule of law

The establishment of the Single Supervisory Mechanism (SSM) under the aegis of the European Central Bank (ECB) put an end to purely national banking supervision, which lied at the heart of many famous banking crises. While the ECB retains responsibility for the effective functioning of the system, cornerstone of the SSM is the close cooperation between the ECB and the national supervisors. For example, for the day-to-day supervision of big banking groups joint supervisory teams have been instituted, composed of staff members coming from both levels. The rationale for creating such joint teams is compelling; cross- fertilization and exchange of best practices are only two of the many ways in which joint supervisory teams can render EU law enforcement more effective and minimize national inconsistencies.  At the same time, such joint teams exercise their monitoring and investigative enforcement powers on different territories; should they come across evidence of facts potentially giving rise to a criminal offence, they must refer the case to the national level for criminal prosecution in accordance with national law. In this integrated setting of banking law enforcement, how can banks subjected to EU supervision effectuate their fundamental right of defense, when they are under a legal obligation to provide information to the ECB, which can later be used in national proceedings and result to the imposition of punitive sanctions? Which legal order is responsible for protecting the fundamental rights at stake? How to find a balance between the need for effective banking supervision and the need to uphold the rule of law?

 
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