Managing diversity in the European Union : cooperation, convergence and mutual trust
(2014)
Files
THESE-FINALDEC162014.pdf
Closed Access - Adobe PDF
- 4.13 MB
Details
- Authors
- Supervisors
- Francq, Stéphanie
- Abstract
- Reflecting on the coincidence of the entry into force of the 2004 Accession Treaties with a major reform of the EU competition law enforcement system and, generally, with the period of constitutional politics experienced by the Union at the time, the present study formulated four basic hypotheses. Firstly, it postulated that the transformations observed over the past two decades translated in the reliance on specific regulatory tools reflecting the constraints associated with the EU’s growing complexity. Secondly, it posited that a model could be derived from a rationalization of these tools, reflecting a particular – cooperative in nature – method for pursuing integration while acknowledging the value of diversity. Thirdly, the project envisioned the possibility of associating that cooperative method with an identifiable form of approximation favoring the cross-border convergence of domestic solutions over the adoption of common substantive norms. Fourthly, it eventually hypothesized that the development of a particular regulatory method of integration and associated form of approximation revealed the emergence of a particular constitutionalism as a form of polity expression and normative frame of reference from which insights could be derived to inform the perfection of the method and its extension to other policy fields but to also shed light on the ends of the modern Union and possibly the definition of its nature. (i) Managing Diversity To substantiate these hypotheses, the study proceeded in three steps corresponding to as many parts, each divided into two chapters. The first step entailed an exploration of legal pluralism as a framework of analysis capable of informing the identification of relevant analytical tools for managing – without eliminating – diversity. After framing legal pluralist theories, including their basic descriptive and normative premises, Part One endeavored to reveal the potential thereof beyond the management of conflicts of authority between the Union and Member States, i.e., beyond “constitutional pluralism”. In effect, because of the dialectic between autonomy and interlegality inherent thereof, legal pluralism can also be construed as embodying a particular understanding of the regulatory aim underlying the formation of EU law, namely that of accommodating diversity through coordination. Hence, it was submitted that “regulatory pluralism” entails the possibility of formulating an alternative to assertions of either territorial prerogatives or universalist imperatives by seeking ways to address the risk of conflicts by means of procedural coordination mechanisms and to engage in practices of a participative and experimentalist nature to expose and tame diversity, eventually, without insisting on a substantive agreement upfront. The analysis then revealed how the Union experimented in the past with various regulatory mechanisms reflecting that logic of regulatory pluralism, as captured with the assistance of categories developed in global legal scholarship. By rationalizing these categories, Part One then sought to identify the analytical tools capable of giving shape to a cooperative regulatory model designed to capture the constraints arising from the complexification of the Union and thus the increased practical difficulties of pursuing integration objectives in a centralized manner, together with the lack of authority and legitimacy for doing so. Informed by past experiences, conflict of laws theories first emerged as a repository of coordination tools naturally geared towards the recognition of alterity and the responsible management of diversity. In turn, network governance principles surfaced as a natural complement to conflict rules in order to apprise the structuring of interactions between actors and steer their reflexive potential. Hence, cooperation as a regulatory model was apprehended by means of conflict rules designed to deal with overlapping jurisdictional claims and of the organization of enforcement agents in networks to enhance the effectiveness of coordination and enable a permanent policy dialogue prone to the hybridization of domestic solutions. (ii) Cooperation The second step in the analysis entailed an in-depth study of the regulatory frameworks governing two particularly dynamic EU policy areas that have undertaken a structural overhaul in recent years reflective of the complexification of the Union, namely those of competition law enforcement and criminal justice, by means of the set of analytical tools offered by the combination of conflict of laws and network governance theories. The purpose was to apprehend the reality, stability and sustainability of cooperation as a regulatory model and refine the identification of its features, contours, but also limits for managing diversity in the modern Union. The choice of policy fields as empirical testing grounds was guided by three main considerations: (i) their respective inclusion within the range of EU powers at very different periods of the EU integration process, namely the very inception thereof for competition policy and the post-Maastricht substantive enlargement for criminal justice; (ii) their respective position as polar opposites in relation to the Union, competition counting among the most integrated EU policies whereas criminal justice is commonly considered the most prominent mark of national sovereignty; and (iii) the evolution in opposite but converging directions of their respective underlying regulatory framework over recent years, namely from “hierarchy to network” with the decentralization of competition law enforcement and from “anarchy to network” with the promotion of cooperation in criminal matters. Hence, these two areas were considered to constitute good proxies for a broad range of EU policies, while crossing evolutions observable within each of them was deemed particularly informative of the relevance and stability of the proposed cooperative model. In turn, they were both analyzed according to the same two-fold sequence: (i) a first section inquiring into the causes of the observed regulatory phenomena, rooted in the changing realities of the EU, and analyzing the means developed to structure the applicable regulatory frameworks in terms of operational rules and institutional design; and (ii) a second section assessing the challenges associated with the transformations at play in each policy area, primarily due to the exercise of concurrent jurisdiction and the strengthening of enforcement cooperation, thereby pointing to limits in the operation of each of the two frameworks. The successive analysis of these two policy areas conducted in Part Two led to the identification of commonalities and differences, which all inform the multi-faceted purpose of the analysis. Commonalities started with the causes underlying the observed transformation of each policy field, which can be traced to pressures resulting from the completion of the Single Market, on the one hand, and challenges arising from the geographic enlargement of the Union, on the other hand. Importantly, then, the analysis of both fields confirmed the relevance of conflict rules as coordination devices to address situations of concurrent jurisdiction beyond the private sphere. Even though disparities have been noticed in the sophistication of the jurisdiction, choice-of-law and recognition rules encountered in the competition and criminal law enforcement spheres, respectively, differences mainly surfaced in relation to the interpretation of the reach of the ne bis in idem principle and to the resolution of due process tensions arising from the operation of enforcement cooperation mechanisms. Disparities in the design and sophistication of conflict rules can be explained by the different policy objectives and pre-existing enforcement landscapes governing competition and criminal law enforcement. In contrast, differences in the management of due process issues, including by means of the ne bis in idem principle, touch on the limits of the recognition of foreign decisions in situations characterized by profound differences in the applicable enforcement frameworks. The ensuing tensions need to be properly managed for, as explained, it is erroneous to assume that Member States’ legal systems are sufficiently similar and therefore capable of guaranteeing effective due process safeguards in individual cases merely because they are all signatories of the ECHR and subject to the EU Charter. Ignoring these tensions, it was found, opens the door to the development of unilateral public order strategies, while addressing them requires an agreement on specific grounds for non-execution and/or the introduction of common minimum procedural rules. Eventually, the competition and criminal law enforcement frameworks equally support the suitability of the network model in order to conceptualize complex forms of cooperative decision/law-making processes capable of balancing deference for diversity and need for consistency in a dynamic fashion. In turn, observed differences in the structure and institutionalized character of networks, on the one hand, and in the prevailing network management strategies at play, on the other hand, can be related to the relative complexity of the policy fields in question – including in terms of substantive scope, number of actors and diversity of practices – and in the different pre-existing contexts in which the competition and criminal cooperative enforcement systems originated. At the end, the study of the EU competition and criminal enforcement systems carried out in Part Two allowed to frame the contours and dynamics of cooperation as a regulatory model capable of coordinating effectively a diversity of applicable domestic solutions in pursuance of common policy objectives. While commonalities between the phenomena studied in both fields confirm the relevance of the model, observed differences usefully inform the perfection thereof and reveal its stability inasmuch as the model appears to encapsulate a capacity to adjust to tensions created by its operation in a way compatible with its original ambition, of coordinating diversity. This was particularly apparent from confrontations of the model with the ultimate limit of due process, which exposed the need to combine it with (the possibility of) hierarchical interventions. Overall, cooperation emerged as a model capable of managing diversity in widely different contexts, of adjusting to changing realities and of producing different levels of integration outcomes, thereby showing real potential for developing into an integration method in its own right. At the same time, the affirmation of cooperation unveiled a particular function of EU law as a vehicle of coordination between Member States’ legal orders, thereby justifying a representation of the Union as a system of systems or, as Rigaux put it, “un ordre juridique supplémentaire de coordination”. (iii) Convergence and Mutual Trust After validating the relevance and stability of cooperation as a regulatory model embodying the logic of pluralism, the third step in the analysis pursued a two-fold endeavor echoing the third and fourth hypotheses formulated at the beginning of the present study, namely: (i) assessing the ability of cooperation as a regulatory strategy to foster integration objectives by enabling an identifiable form of approximation; and (ii) identifying the source code of cooperation as a regulatory model with a view to assessing the significance thereof for the Union as a polity and to informing the design of effective cooperation strategies. Doing so resulted in two specific endeavors: (i) formalizing the concept of convergence, too often used without much referential substance; and (ii) inquiring into the nature, performance and epistemological potential of the notion of mutual trust as a possible EU constitutionalism. The identification of convergence and mutual trust as relevant notions to explore for the said purposes originated in multiple encounters with references thereto in the analysis of the cooperative regulatory schemes governing the fields of competition and criminal law enforcement. Likewise, their combined treatment was justified by their inherent interdependence, as revealed by the analysis. Thus, Part Three first identified convergence as a specific form of approximation entailing the incremental hybridization of local solutions into shared principles arising from the implementation of cooperation as a regulatory strategy. Departing from the maze of loose references to convergence in the legal literature and political discourses, it equally sought to capture the defining features thereof, including its rooting in a culture of coordination, its multi-dimensional “voluntary” character, its procedural and “open-ended” nature, its inherent dynamism and permanent state of incompleteness, its plasticity and incrementalism. Though chaotic in appearance, these characteristics confer to convergence an ability to operate on the roots of diversity while conforming to domestic legal cultures. Likewise, they allow convergence to position itself on the continuum of integration strategies as an alternative to unification and regulatory competition strategies alike. To test the reality of convergence and assess the determinants of its success and the scope of its limits, one turned again to the fields of competition and criminal law enforcement given their recent experience with cooperative regulatory schemes. The widely different outcome of that analysis then prompted an inquiry into factors conditioning the reach, depth and speed of convergence, themselves inherently dependent on the effectiveness of cooperative regulatory schemes. The apparent complexity and instability of convergence invited a subsequent inquiry into the limits thereof in terms of achievements, relation with rule-of-law standards and democratic credentials, yet none of them were found inherently problematic for these limits largely echoed convergence’s main strengths deriving from its embedded nature within domestic contexts. Part Three subsequently sought to assess the potential of mutual trust as a constitutionalism for the “modern” more complex Union, capable of informing its “finalité” and of providing a normative frame of reference for the perfection of cooperation and its extension to other policy areas. To that end, the fields of competition and criminal law enforcement were called upon again, complemented this time by an incursion into the area of civil justice, to validate the mutually reinforcing relation between cooperation and trust postulated by network governance theories. That analysis revealed at the outset that mutual trust is neither innate nor blind but requires the support of a set of shared values to emerge and the presence of safeguards to stabilize. In a second stage, the nature of mutual trust was assessed by means of a systematic survey of references thereof in the case law of the Court of Justice. While mutual trust has not been recognized to date as an autonomous source of legal effects, let alone as a general principle of law, the Court did elevate it to the status of “raison d’être” of the EU legal system as a guarantee of the effectiveness of, and presumption of compliance with, EU law, including of a cooperative nature. The role ascribed to mutual trust in preserving the unity of the EU legal system, including in its cooperative dimension, fueled the subsequent inquiry into the potential thereof as a constitutionalism. That potential was initially framed with the assistance of sociology and international relations scholarship, starting with Luhmann’s understanding of trust as a form of complexity reduction and enabler of cooperative interactions, followed by accounts analyzing the whole EU integration process through the prism of trust. Subsequently, mutual trust as a constitutionalism was formulated as an horizontal form of loyalty embedding an èthos of mutuality whereby Member States recognize each other’s domestic solutions as equivalent to their own, different but equally valid, and by extension the exercise of their own sovereignty as being intrinsically dependent on others within a EU system of governance. In turn, mutual trust entails a commitment to trustworthiness in Member States’ respective dealings and to convergence in order to address tensions arising from encounters with diversity. Conversely, mutual trust is predicated on the existence and maintenance of a significant core of shared values and on the existence of institutions and legal arrangements acting as safeguards of trust, as well as on a tolerance for domestic public policy justifications when necessary. To that extent, mutual trust as a constitutionalism also provides a frame of reference for policy-makers for it highlights different factors to balance in the design of cooperative regulatory schemes.
- Affiliations
Citations
Gerard, D. (2014). Managing diversity in the European Union : cooperation, convergence and mutual trust. https://hdl.handle.net/2078.5/53445