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2016 | Buch

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Governance and Security Issues of the European Union

Challenges Ahead

herausgegeben von: Jaap de Zwaan, Martijn Lak, Abiola Makinwa, Piet Willems

Verlag: T.M.C. Asser Press

Enthalten in: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

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Über dieses Buch

This book provides a comprehensive coverage of crucial issues concerning EU co-operation and European security. At present, Europe is confronted with a number of serious common and global challenges, the most important being the economic crisis, migration issues, geopolitical tensions at its external borders, terrorism, climate change and environmental challenges. These developments have a huge impact on the stability and security of the continent as a whole and on each individual European country. Europe, more particularly the European Union, has to organize its governance and security infrastructure in such a way that it can cope with these global threats. This edited volume collects a number of topics and themes connected to the governance and/or security dimensions of EU co-operation.

The book is divided into several parts, which deal respectively with the values and general principles of EU co-operation; institutional aspects of EU co-operation; a number of individual policy domains; areas of European criminal law; the external relations of the EU; and the future functioning of EU co-operation as a whole. The eighteen chapters, written by a team of experts with extensive practical and academic experience, contain insights and information valuable to researchers, students, practitioners and policy makers concerned with EU law and international law.

About the editors

Jaap de Zwaan is Lector European Integration at The Hague University of Applied Sciences, and Emeritus Professor of the European Union Law at Erasmus University Rotterdam. He served for nearly twenty years as a member of the Diplomatic Service of the Dutch Ministry of Foreign Affairs, where he worked notably in the domain of European integration. He was also the Director of the Netherlands Institute of International Relations Clingendael in The Hague for almost six years.

Martijn Lak is a historian and a Lecturer and Researcher at the Department of European Studies of The Hague University of Applied Sciences. He studied Journalism and History at the University of Applied Sciences Utrecht, and obtained his Ph.D. in 2011. Martijn Lak specializes in post-war Dutch-German economic and political relations and contemporary German history.

Abiola Makinwa is a Senior Researcher and Lecturer in commercial Law with a special focus on Anti-Corruption Law and Policy at The Hague University of Applied Sciences. Abiola Makinwa holds a Ph.D. from Erasmus University, Rotterdam. She is a frequent speaker on anti-corruption law and policy and has introduced Anti-Corruption Compliance as an undergraduate course at The Hague University.

Piet Willems is a Lecturer in International and European Law at The Hague University of Applied Sciences, where he focuses on project-based learning, moot court coaching and competition law. His research activities focus on regulation in the European Union. He obtained both his Master’s degree and his LL.M. in European Law from Ghent University. -based learning, moot court coaching and competition law. His research activities focus on regulation in the European Union. He obtained both his Master’s degree and his LL.M. in European Law from Ghent University.

Inhaltsverzeichnis

Frontmatter

Chapter 1. Introduction

Abstract

This book collects a bundle of articles related to the governance and/or the security dimensions of the European Union (EU) cooperation. Europe faces serious challenges, such as the economic crisis, migration, tensions at the external borders, terrorism, and climate as well as the environment. All challenges have in common that they are related to ‘security’. They thus have an impact on the stability of our continent. In order to cope with the challenges and to safeguard our basic values of peace and prosperity, the EU has to (re-)organise the governance and security infrastructures regarding its principles, procedures and policies.

Jaap de Zwaan, Martijn Lak, Abiola Makinwa, Piet Willems

Values and Principles

Frontmatter

Chapter 2. The Early Years of European Integration—German and Dutch Reactions to the Schuman Plan

Abstract

On 9 May 1950, Robert Schuman, the French minister of Foreign Affairs, launched his daring and—to many contemporaries—shocking plan to put the Franco-German production of coal and steel as a whole under a common High Authority. By doing so, he not only hoped to prevent war in Europe in the future, but also started the process of European integration. How did the Netherlands and the Federal Republic of Germany (FRG) react to this controversial plan and why did they decide to join the European integration process? This chapter claims that although there were a number of similarities between Bonn and The Hague, they had different reasons for joining the European integration process from the start. For the FRG, it was mainly a way to regain its sovereignty and to be seen as a normal state again. For The Netherlands, however, the reasons seem mostly to have been economic. By integrating Germany into the Western block, Europe and especially The Netherlands could profit from Germany’s economic potential, while at the same time preventing the country from becoming a military threat ever again. It also explains the Dutch resistance towards more political integration. In fact, the Dutch government remained anti-supranational well into the 1950s. The Dutch European policy, especially in the early years, was driven primarily and maybe even exclusively, by economic considerations, whereas that of the Federal Republic was above all inspired by political motives.

Martijn Lak

Chapter 3. Schuman in Times of Upheaval

Abstract

The European Union (EU) is struggling to survive. Its disintegration has been predicted and contradicted by ever more Europeans since the start of the financial crisis in 2008. European citizens protest and increasingly lack confidence in “Brussels.” Member States also show a lack of confidence in measures proposed by the EU. The EU is internally and externally surrounded by conflicts and humanitarian problems that it needs to face and help to solve, but does not seem able to soften in a proper way. This article focuses on the original vision on European unification of the “Father of Europe,” Robert Schuman, and applies it to today’s society. Schuman’s personality and background as a practising Catholic from the region of Alsace-Lorraine explain to a large extent the intrinsic content of his view on integration. They help to understand his sensitivity to transparency and his person-centred approach to integration which implies his stress on the subsidiarity and solidarity principles as crucial for a proper way of integration. He emphasised the need to protect regional, national and continental interests, unless these went against the national, European or universal common good. Schuman’s point of view shows that the problems faced by Europe today extend well beyond the economic and financial domain. Thus, an analysis is welcomed with regards to the above-mentioned principles and concepts which laid the basis for the European project. This chapter will further add an interpretation of Schuman’s way of thinking on current topics to underline the topicality of his insights.

Margriet Krijtenburg

Chapter 4. Better Regulation in the EU—A Process and Debate at the Core of Regional Integration

Abstract

This chapter assesses whether the European Commission has respected the limitations that follow from the European Union’s institutional design and the notion of mutual sincere co-operation, when launching and implementing its Better Regulation Agenda (BRA). The analysis focuses on three different concepts that are key to the Union’s institutional design: the concept of representative democracy, the principle of effectiveness and the privileged position of both the Committee of the Regions and the European Economic and Social Committee. This selection is based on an analysis of the different critiques on the BRA by other European institutions as well as civil society actors. The focus is on the legal implications for the European Commission when implementing the BRA as well as on the possibility of enforcement of these concepts in case of transgressions. At the same time the chapter provides an insight into the historic antecedents of the BRA and places this topic within the overall principles and dynamics of region integration within Europe. Particular emphasis is paid to the role of inter-institutional agreements.

Piet Willems

Institutional Aspects

Frontmatter

Chapter 5. Informal Decision-Making in the EU: Assessing Trialogues in the Light of Deliberative Democracy

Abstract

With the adoption of the Lisbon Treaty, the process of democratisation in the European Union (EU) seems to have made further progress. The number of policy areas that is subject to what now is called the ordinary legislative procedure has increased. As a consequence, the involvement of the European Parliament as a co-legislator alongside the Council has expanded. However, the practice of co-decision-making that has taken shape between the co-legislators in the EU over the last fifteen years appears to run counter to the traditional precepts of democracy. The legislating partners in the EU (the European Parliament, the Council, and the Commission) found themselves increasingly involved in the practice of reaching first-reading agreements in the context of so-called informal “trialogue” negotiations where discussions are held in seclusion and where access to discussion is restricted to a limited number of discussants. This chapter examines whether and to what extent this practice actually conflicts with the idea of democratic decision-making. In doing so, it considers the question mainly from the deliberative democracy perspective. That is, rather than focusing on the institutional aspects of democratic decision-making (the liberal democracy perspective), this chapter examines “trialogue” negotiations in the light of public will formation through communicative process. It thereby focuses on aspects of (public) justification and accountability under conditions of pluralism as criteria for assessing democratic legitimacy in the practice of “trialogue” decision-making in the EU. Even though shortcomings have been identified in light of these notions, they should, however, not lead to the conclusion that the practice of reaching agreements in “trialogue” setting should be abandoned. Rather, deliberation behind closed doors among a limited number of discussants has even a better chance to efficiently lead to better quality legislation in the EU, as long as a variety of positions advanced in these discussions mirrors the diversity of interests in society and the choices made can be carefully motivated to the public afterwards.

Santino Lo Bianco

Chapter 6. The Five Principles of European Political Communication

Abstract

Over the last few years, there is an increasing awareness that the European Union (EU) should become more democratic. For a democratic EU, it is essential that citizens can exert influence on the policies of European institutions and have sufficient information about the EU. However, media largely fail to bring enough political news about European affairs. This chapter will analyse the main principles of political communication on the EU, based on the work of Gadi Wolfsfeld: Making sense of media and politics. Two cases are analysed to see whether the principles of Wolfsfeld, which are formulated for national politics, also hold for European politics. The research question is: what are the main principles that apply to political communication on the EU? This analysis focuses on two case studies that vary in the amount of coverage that they received: the Value Added Tax Mini One-Stop Shop rules (VATMOSS) and the Transatlantic Trade and Investment Partnership (TTIP). The analysis shows that the five principles of Wolfsfeld on national political communication should be reformulated for political communication on the EU. While all reformulated principles have a clear relation with the relative lack of coverage of the EU, we can wonder whether the media fulfil their role to inform the public satisfactorily.

Chris Aalberts

Chapter 7. A Law and Economics Approach to the New EU Privacy Regulation: Analysing the European General Data Protection Regulation

Abstract

The discussion on the regulation on citizens’ right to privacy grows parallel to the widespread usage and collection of Big Data. This chapter analyses from a law and economics perspective the discussion on the European Union (EU) citizens’ rights to privacy with regards to collection, retention, analysis and transfer of personal data in light of the EU General Data Protection Regulation (GDPR). The GDPR is drafted in coherence with the EU Digital Market Strategy, which aims to create the correct incentives for digital networks and services to flourish by providing trustworthy infrastructure supported by the right regulations. A significant part of achieving this aim would require the EU citizens to trust in using digital services. The GDPR is designed to increase the citizens’ trust to use online and digital services by obliging the service providers to comply with the GDPR. This chapter analyses two key compliance requirements of the GDPR through the economic analysis lens and proposes possible changes to the GDPR in line with the Digital Single Market Strategy of the EU. The scope of this chapter’s analysis is limited to how to cure information asymmetries between the citizens and the data collectors in order to increase the citizens’ trust in using digital services given the fast-changing and delicate legal issues arising from collecting the personal data of the EU citizens. This chapter concludes by suggesting three improvements to the GDPR; more frequent controls for issuing the EU Data Protection Seal, increased independence of the Data Protection Controller and issuance of publicly available, frequent privacy ratings.

Elif Erdemoglu

Policy Domains

Frontmatter

Chapter 8. The EU Economic Governance Framework and the Issue of Debt

Abstract

The Maastricht Treaty introduced the Economic and Monetary Union (EMU) based on a supranational pillar covering the monetary policy and on an intergovernmental pillar covering the coordination of entirely national economic and fiscal policies. This construction relies on the assumption that the disappearance of monetary policy measures to remedy excessive government deficits would discipline Member States’ spending policies. In addition, the European level should only guarantee that Member States do not enter into excessive deficits and debts. The recent economic crisis unveiled the weaknesses of the Maastricht EMU construction and its underlying assumptions. Some Member States piled up debt in such an excessive manner that they were not able anymore to refinance themselves on the private markets. Reforms of the EMU’s economic governance framework made in the aftermath of the peak of the crisis tightened the margin of public spending without addressing the issue of reducing excessive debt within the tightened limits of the reformed framework. In this context, the idea of establishing a European Redemption Fund (ERF) was put forward, into which all government debts amounting to above 60% of Gross Domestic Product (GDP) would be transferred, and where participating Member States would be obliged to redeem the transferred debt over a fixed period of time. This idea can be realised within the existing Treaty boundaries and would not violate the so-called “no bail-out” clause. It would put overindebted Member States in a position to comply effectively with the reformed economic governance framework.

René Repasi

Chapter 9. Time to Shift Towards Shared-Burden Responsibility: A Review of the Syrian Mass Influx Migration

Abstract

The Dublin III Regulation sets the mechanisms and standards that a Member State must adopt, when it comes to reviewing a submitted application for international protection by a third-country national or a stateless person. It requires that an asylum seeker register in the first country in which he enters and remains for the final decision. In the absence of any request for the application of the Mass Influx Directive, this Regulation was applied differently in the Syrian crisis by the States concerned. The end result, however, was that the Syrian migrants in most Member States were considered as refugees, and if they failed to satisfy the set criteria, they were regarded as illegal migrants. The same disparity existed in the Member States’ reactions to some other issues, such as return. None of the measures that Member States and the European Union (EU) have adopted so far seems to offer a proper response to the present massive migration influx. It may be suggested that in the face of a major crisis, the EU has failed to rise up to the challenge, except with regard to some financial aids. This Chapter seeks to review some of these measures and to suggest: (i) that the issues currently faced by Member States are fundamentally different from those for which the earlier measures were adopted; and (ii) that because of that difference, the Dublin system may not be a very appropriate instrument for dealing with this situation as well as other similar circumstances, such as the African and Asian mass influxes. The Commission needs to revert to the issue of mass influx, and to find a reliable solution enhancing shared responsibility and solidarity.

Zahra Mousavi

Chapter 10. Energy Policy in the European Union: Renewable Energy and the Risks of Subversion

Abstract

The European energy policy has a significant influence on the way in which environmental and energy policies are framed and implemented, not only in member states but globally. One of the important challenges of the European energy policy is climate change. Presently, the European Commission (EC) seeks to create an Energy Union, aimed at ensuring that Europe has secure, affordable and climate-friendly energy. In order to achieve this, some propose a compromise involving efficiency in use of fossil fuel and inclusion of different types of energy in the energy mix, while others are in favour of more transformative measures engendered by the Circular Economy (CE) and Cradle to Cradle (C2C) approaches to energy. Conventional and C2C/CE approaches to sustainability in general and energy in particular are not always compatible, as C2C/CE requires radical transformation rather than promoting compromise. This chapter will focus on various types of renewable energy in the context of the European sustainability challenges and explore the EU’s energy policy, providing recommendations for the long-term sustainability.

Helen Kopnina

Chapter 11. European Framework Agreements at Company Level and the EU 2020 Strategy

Abstract

The European Union (EU) 2020 strategy is one of the current EU mainstream policies. Its aim is to boost Europe’s competitiveness by focusing both on economic and employment policies. Particularly, the increase of the employment rate of the population aged 20–64 to 75% is one of the 5 EU headline targets. Several actors (e.g. social partners, civil society) are asked to give their contributions to the achievement of the EU 2020 strategy’s goals. This chapter will look into European framework agreements at company level (EFAs) as potential contributors to the attainment of the employment-related objectives laid down by the EU 2020 strategy. As an emerging form of social self-regulation at European level, these agreements are the outcome of the negotiation process between multinational enterprises and workers’ representatives (e.g. European trade union confederation, European industry federations, and European works councils). In particular, this chapter will examine the topics covered by the EFAs that have been concluded between the launch of the EU 2020 strategy (March 2010) and April 2015. In doing so, it will analyse whether the topics touched upon by the signatory parties of these agreements align with the EU 2020 strategy’s employment-related objectives.

Stefania Marassi

European Criminal Law

Frontmatter

Chapter 12. A Balanced Package: Fighting Money Laundering with the 4th European Directive

Abstract

Money laundering and its underlying criminal activities pose a serious threat to the countries of the European Union (EU). Before the end of 2017 member states will have to turn the 4th new Anti-Money Laundering (AML) directive into national law. This chapter analyses the expected impact of the new legal framework on the prevention and combat of money laundering within the EU. As might have been expected the new directive does not provide governments with a magic bullet to take money launderers out of business. This chapter argues that a number of relevant issues (such as overregulation, compliance costs, privacy protection, and facilitation of financial institutions and other stakeholders) that seriously limit the effectivity of its predecessor, the third AML-directive, have not been fully remedied in the new directive. Despite its shortcomings the new framework does introduce an important element that may greatly contribute to the improvement of the effectivity of AML-policies; the mandatory application of the risk-based approach. This allows governments to calibrate policies and resources according to the related risk profile. An effective implanted risk-based approach can have a profound impact on both the costs and the results of anti-money laundering policies. As there is as yet not a blueprint for a national money laundering risk model this chapter concludes (Fig. 12.1) with the outline of a flexible, anti-money laundering control framework that can be used by national authorities to map, manage and evaluate their money laundering risks in accordance with the requirements of the 4th AML-directive.

Peter Steenwijk

Chapter 13. Harmonising Criminal Laws and EU’s Significant Bankers: First Use of Article 83(2) TFEU, Rights of the Accused and Learning Organisations

Abstract

This chapter critically reviews the harmonisation of national criminal laws pertaining to bankers active in the 100-plus significant supervised banks of the European bank union (“Significant Bankers”). It discusses the tension between administrative sanctions as mentioned in the Market Abuse Directive (596/2014) and the criminal sanctions as mentioned in Criminal Sanction Directive (2014/57). The chapter is limited in scope and deals with insider trading and market manipulation as international financial crimes only. It is not argued that harmonisation of criminal laws should not take place on the basis of Article 86(2) TFEU. However, it is argued that compliance by Significant Bankers with these substantive rules will not increase, if and when both sanction arrangements are actively made applicable on them. Reasons for that assertion are certain of their rights in criminal procedure, including the legal concepts of ne bis in idem (double jeopardy) and nemo tenetur (self-incrimination). The argument is also based on the regulatory science’s and organisational science’s insight that “learning organisations” improve their performance when mistakes are discussed and reviewed and subsequently transformed to innovations and changed behaviour. Hence the argument to restrict the regulatory arrangement around Significant Bankers to the administrative sanctions, and to instruct public prosecutors not to take action against Significant Bankers on the basis of national laws implementing the Criminal Sanction Directive (2014/17).

Ernst E. van Bemmelen van Gent

Chapter 14. Corruption and Security: The Role of Negotiated Settlements

Abstract

Negotiated settlements between alleged wrongdoers and prosecuting authorities is a United States enforcement practice for corruption offences that is spreading globally. The absence of a European Union (EU) dimension on negotiated settlements, coupled with the fact that European multinationals are being “policed” for corruption violations primarily by US authorities, calls for some examination. Should Europe develop a negotiated settlement regime for corruption offences? Can a European dimension on negotiated settlements contribute to the realisation of better security in the form of effective anti-corruption enforcement in the Area of Justice, Freedom and Security for EU citizens? Are negotiated settlements compatible with the fundamental right of EU citizens to a fair trial? This chapter examines these questions and argues that to improve security in the EU and in keeping with global trends, there is sufficient justification and legal scope for a European dimension on negotiated settlements. Such a European dimension on negotiated settlements will give Europe and its Member States a stronger voice in shaping this growing global practice as a strategic tool in the fight against corruption.

Abiola Makinwa

External Relations

Frontmatter

Chapter 15. Taking Stock of the “Common” in the European Union’s Common Foreign and Security Policy

Abstract

This chapter takes stock of “the common” in the European Union’s Common Foreign and Security Policy. Doing so, the chapter analyses the Common Foreign and Security Policy (CFSP) both in terms of institutions and substantive policies. Showing how European Union (EU) foreign policies after the adoption of the Lisbon Treaty have partially been crafted without the necessary institutional consolidation, it sheds light on the many policy challenges that EU diplomacy is confronted with. Cases that this chapter analyses by way of illustration are policies in reaction to the so-called “Arab Spring” and the transnational war in Syria, the EU’s foreign policy performance at the Iran nuclear talks, and the impact of the “Ukraine crisis” on both the EU’s foreign policy manoeuvrability and the perception thereof in other parts of the world. Likewise, the 2015 refugee crisis has become a stress test for common foreign policy responses, and will therefore be assessed in its impact on the perception of EU foreign policy. Finally, the chapter also touches upon the Union’s Common Security and Defence Policy (CSDP) and its intricate interplay between the North Atlantic Treaty Organization (NATO) structures and EU autonomous defence instruments. The European Union’s credibility as a foreign policy actor, it will be argued, hinges on its ability to both formulate common strategies and policies internally, and to hold such policies up in the face of third parties in order to see such European foreign policies implemented beyond declaratory rhetoric.

Moritz Pieper

Chapter 16. Will Sleeping Beauty Wake up? Proposals for a New EU Global Strategy on CFDP

Abstract

In 2015, the European Union (EU) published a strategic Review called The European Union in a Changing Global Environment. A more connected, contested and complex World and called for contributions. Since 2003 the EU has not adapted its foreign policy and the world has changed in important ways. This chapter is meant as a wake-up call. It analyses the “Strategic Review” and offers proposals for a legitimate and realistic EU vision on foreign affairs, for ways to organise foreign affairs at the EU level, and how priorities could be set in a truly global and integrated Common Foreign and Defence Policy (CFDP) strategy. Taken together, these provide elements on which a new and effective EU global foreign and defence strategy can be based.

Geor Hintzen

Chapter 17. Up Towards a Coherent and Inclusive EU Policy on Natural Resources: Treaty Amendment Proposals

Abstract

This chapter depicts the European Union’s struggle to secure its supply of natural resources. From its establishment, the European Union (EU) has developed into an international organisation adopting measures on, basically, all policy areas of governance. The current threats and challenges regarding natural resources, however, were not solved at the time when the EU was established. As a result, the EU has to deal with these contemporary challenges within the limits of its competences conferred to the EU by its Member States. These competences are now listed in the two European Treaties (TEU and TFEU). It seems that the appropriate response would be for the EU to develop a long-term structural policy on natural resources that is coherent and inclusive. The question is, however, whether or not the EU has the competence to develop such a policy? As this chapter will demonstrate, the EU’s competences regarding natural resources lie highly fragmented throughout the two Treaties. This fragmentation of competences also seems to explain why the EU has taken several ad hoc decisions over the years to secure its natural resource supply. The view expressed in this chapter is that the TEU and TFEU do not provide for the proper legal basis to develop a long-term structural policy on natural resources that is inclusive and coherent. For that reason, this chapter concludes by proposing treaty amendments to equip the EU with the legal framework to deal with the current threats and challenges regarding natural resources more effectively.

Chris Koppe

The Future of EU Co-operation

Frontmatter

Chapter 18. Flexibility, Differentiation and Simplification in the European Union: Remedies for the Future?

Abstract

On the basis of the present state of play regarding European Union (EU) policies and law, this contribution will analyse the future perspectives related to the further development of the EU integration process. An important element in this discussion concerns the principle of flexibility, the idea that—in order to have the overall integration process continued and, where possible, deepened—we have to allow for more differentiation with regard to the development of EU policies and the participation of Member States therein. On the other hand, in order to give sufficient contents to EU membership, all Member States have to respect at least a substantive minimum of treaty obligations. It is, furthermore, argued that possibilities for simplification of the treaty amendment procedure have to be examined. Essential preconditions to make such approaches successful are related to the involvement of the institutional framework and ordinary decision-making procedures of the EU. Finally, the question arises whether the composition of an acquis at “minimum” level should not have implications for applicant countries negotiating about their possible accession to the EU.

Jaap de Zwaan

Titel: Governance and Security Issues of the European Union
herausgegeben von: Jaap de Zwaan
Martijn Lak
Abiola Makinwa
Piet Willems
Verlag: T.M.C. Asser Press
Electronic ISBN: 978-94-6265-144-9
Print ISBN: 978-94-6265-143-2
DOI: https://doi.org/10.1007/978-94-6265-144-9