The Juncker Commission: A New Start for EU Justice and Home Affairs Policy? CEPS Essay No. 15, 18 September 2014

The team comprising Jean-Claude Juncker’s Commission was revealed on 10 September 2014: does it herald a new start for Justice and Home Affairs (JHA) cooperation in the EU? This essay outlines the main structural and thematic changes introduced by the new Commission, in particular those with direct or indirect relevance to EU JHA or the Area of Freedom, Security and Justice (AFSJ) policies. It also reflects on the new institutional configuration and what it means for the substantive work of the new Commission services and for their intra- and inter-institutional relations. The essay concludes with a set of proposed policy priorities for the new Commission.

The Legal Status and Influence of Decisions of International Organizations and other Bodies in the European Union. College of Europe Research Paper in Law 01/2014

Introduction. The European Union’s external action is not only defined by its influence on international developments, but also by its ability and the need to respond to those developments. While traditionally many have stressed the EU’s ‘autonomy’, over the years its ‘dependence’ on global developments has become more clear.2 International law has continued to play a key role in, not only in the EU’s external relations, but also in the Union’s own legal order.3 The purpose of this paper is not to assess the role or performance of the EU in international institutions.4 Rather it purports to reverse the picture and focus on a somewhat under-researched topic: the legal status of decisions of international organizations in the EU’s legal order.5 While parts of the status of these decisions relate to the status of international agreements and international customary law, it can be argued that decisions of international organizations and other international bodies form a distinct category. In fact, it has been observed that “this phenomenon has added a new layer of complexity to the already complex law of external relations of the European Union”.6 Emerging questions relate to the possible difference between decisions of international organizations of which the EU is a member (such as the FAO) and decisions of organizations where it is not (irrespective of existing competences in that area – such as in the ILO). Questions also relate to the hierarchical status of these decisions in the EU’s legal order and to the possibility of them being invoked in direct or indirect actions before the Court of Justice. This contribution takes a broad perspective on decisions of international organizations by including decisions taken in other international institutions which do not necessarily comply with the standard definition of international organizations,7 be it bodies set-up by multilateral conventions or informal (transnational / regulatory) bodies. Some of these bodies are relatively close to the EU (such as the Councils established by Association Agreements – see further Section 5 below); others operate at a certain distance. Limiting the analysis to formal international organizations will not do justice to the manifold relationships between the European Union and various international bodies and to the effects of the norms produced by these bodies. The term ‘international decisions’ is therefore used to refer to any normative output of international institutional arrangements.

Commitments or prohibition? The EU antitrust dilemma. Bruegel Policy Brief 2014/01, 31 January 2014

The issue: Excluding cartels, most investigations into suspected infringements of European Union competition law are resolved with ‘commitment decisions’. The European Commission drops the case in exchange for a commitment from the company under investigation to implement measures to stop the presumed anti-competitive behaviour. Commitment decisions are considered speedier than formal sanctions (prohibition decisions) in restoring normal competitive market conditions. They have a cost, however: commitments are voluntary and are unlikely to be subject to judicial review. This reduces the European Commission’s incentive to build a robust case. Because commitment decisions do not establish any legal precedent, they provide for little guidance on the interpretation of the law. Policy challenge: The European Commission relies increasingly on commitment decisions. More transparency on the substance of allegations, and the establishment of a higher number of legal precedents, are however necessary. This applies in particular to cases that tackle antitrust issues in new areas, such as markets for digital goods, in which companies might find it difficult to assess if a certain behaviour constitutes a violation of competition rules. To ensure greater transparency and mitigate some of the drawbacks of commitment decisions, while retaining their main benefits, the full detail of the objections addressed by the European Commission to defendants should be published.

The EU's Use of 'Targeted' Sanctions: Evaluating effectiveness. CEPS Working Document No. 391, March 2014

This study analyses the use by the European Union of the novel concept of ‘targeted sanctions’ in the framework of its Common Foreign and Security Policy. It examines two sets of sanctions regimes featuring different degrees of efficacy: in Myanmar and Zimbabwe, the EU wielded measures in support of human rights and democracy objectives in the absence of a United Nations mandate, while it supplemented UN sanctions to stop nuclear proliferation in Iran and North Korea. The study highlights a number of facilitators of, or hindrances to, the efficacy of sanctions, such as the degree of support by regional powers or the presence of UN legitimation. It concludes that the EU sanctions regimes could be optimised by using more robust measures, designing them on the basis of ex ante assessments, enabling faster upgrades, monitoring their impact and adjusting them regularly and improving outreach efforts.

Economic Incentives for Indirect TTIP Spillovers. CEPS Special Report No. 94/October 2014 [TTIP Series No. 2]

A deep, comprehensive and ambitious TTIP should not undermine or otherwise negatively affect the WTO and its signatories. Among other things, this means that trade diversion ought to be minimised and positive spillovers stimulated. The present CEPS Special Report provides some elementary quantification, which helps to understand the economic incentives for third countries to seek regulatory alignment with TTIP results, where relevant, and for which TTIP should be ‘open’. It focuses on ‘indirect’ spillovers and employs a rather aggregate economic approach. We find that, of three groups of countries that are important for trade with the EU and the US, the ‘closest’ neighbours (NAFTA, EEA, Switzerland and Turkey) exhibit powerful incentives to align so as to benefit from positive spillovers. This is less clear for two other groups. Of the (seven) ‘biggest traders’ (in manufactured goods, for which spillovers matter most), China turns out to have the greatest interest in alignment in selected sectors, followed by Israel, Japan and South Korea. Whereas the latter three either have or are negotiating FTAs with the US and the EU, precisely China has none and remains outside TPP as well. In terms of sectors, the chemical sector followed by electronic equipment are by far the most important, with agro-products and fish as a good third (SPS issues). However, in chemicals and electrical equipment, the TTIP negotiations so far, and recent US/EU regulatory cooperation, do not indicate an ambitious approach, which could reduce regulatory barriers to market access drastically.

First Anniversary of the Vilnius Summit: Or, how Tolstoy might have portrayed the legacies of Yanukovich and Putin. CEPS Essay No. 18/25 November 2014

Taking inspiration from both Tolstoy’s epic novel War and Peace and the Bible, Michael Emerson reflects in this CEPS Essay on the tumultuous year that has passed since President Yanukovich reneged on signing Ukraine’s Association Agreement with the EU, and on President Putin’s decision to intervene in Ukraine, tearing up all norms of international relations and public morality and inducing the sanctions that now inflict grave economic damage on Russia itself.

Russian sanctions against Moldova. Minor effects, major potential. OSW COMMENTARY No. 152, 2014-11-06

Russia has been Moldova’s main trade partner and Russian capital has accounted for a large part of its foreign investments, dominating in the energy and the banking sectors. Moreover, Russia has been a key job market for Moldovan expatriate workers. In the economic sphere, this is making Moldova unilaterally dependent on Russia. Moscow has been attempting to exploit this situation to put pressure on the authorities in Chișinău for quite some time. In recent months Russia has increasingly used instruments for exerting economic pressure on Moldova, as a means of responding to the current authorities’ pro-Western policy. A key element of this policy was Moldova’s signing on 27 June 2014 of the Association Agreement with the EU (which came into force on 1 September 2014). Over the last year, Russia has implemented a number of import restrictions on Moldovan goods. The aim of the Russian actions is to fuel social disappointment, and ultimately – to prevent the pro-European coalition currently in power from winning the parliamentary elections scheduled for 30 November 2014. Another aim might be to convince the Moldovan authorities to suspend the implementation of the Association Agreement – a plan openly put forward by Vladimir Putin during the CIS summit in Minsk on 10 October 2014. So far, however, the Russian economic sanctions have failed to produce the expected results. Support for the pro-European parties has been high, and there is little chance that the pro-Russian groups might achieve a parliamentary majority. It is not inconceivable, then, that in the upcoming months Moscow might decide to resort to other, more potent instruments of economic pressure such as speculation on the financial market, carried out as part of its de facto control over the banking sector. Another possibility is further tightening of trade restrictions, issuing expatriate workers from Russia or using Moldova’s dependence on Russian energy.

Do agricultural subsidies crowd out or stimulate rural credit institutions? The Case of CAP Payments. Factor Markets Working Paper No. 4, September 2011

In this paper we estimate the impact of subsidies from the EU’s common agricultural policy on farm bank loans. According to the theoretical results, if subsidies are paid at the beginning of the growing season they may reduce bank loans, whereas if they are paid at the end of the season they increase bank loans, but these results are conditional on whether farms are credit constrained and on the relative cost of internal and external financing. In the empirical analysis, we use farm-level panel data from the Farm Accountancy Data Network to test the theoretical predictions for the period 1995–2007. We employ fixed-effects and generalised method of moment models to estimate the impact of subsidies on farm loans. The results suggest that subsidies influence farm loans and the effects tend to be non-linear and indirect. The results also indicate that both coupled and decoupled subsidies stimulate long-term loans, but the long-term loans of large farms increase more than those of small farms, owing to decoupled subsidies. Furthermore, the results imply that short-term loans are affected only by decoupled subsidies, and they are altered by decoupled subsidies more for small farms than for large farms; however, when controlling for endogeneity, only the decoupled payments affect loans and the relationship is non-linear.

EU Sanctions: A Relevant Foreign Policy Tool? EU Diplomacy Paper No. 3, May 2014

This paper examines an instrument which establishes an explicit link between economic power and foreign policy of the European Union (EU): restrictive measures or sanctions. As the EU is increasingly confronted with situations requiring a firm response, sanctions – arguably the EU’s ‘hardest’ tool – have become somewhat of a standard reaction. To what extent are sanctions a relevant tool for EU external action? By looking at several case studies from a set of 47 autonomous EU sanction cases, this paper acknowledges the many internal and external difficulties the EU faces when using the sanctions tool. However, it also shows that despite those challenges, the ‘hard’ and coercive nature of the sanction instrument nevertheless make it a relevant foreign policy tool which allows the EU to react to external crises.

An Assessment of the Penalties System for Infringements of EU Competition Law: Can Personal Sanctions be the Missing Piece of the Puzzle? IES WORKING PAPER 6/2013

Competition law seeks to protect competition on the market as a means of enhancing consumer welfare and of ensuring an efficient allocation of resources. In order to be successful, therefore, competition authorities should be adequately equipped and have at their disposal all necessary enforcement tools. However, at the EU level the current enforcement system of competition rules allows only for the imposition of administrative fines by the European Commission to liable undertakings. The main objectives, in turn, of an enforcement policy based on financial penalties are two fold: to impose sanctions on infringing undertakings which reflect the seriousness of the violation, and to ensure that the risk of penalties will deter both the infringing undertakings (often referred to as 'specific deterrence') and other undertakings that may be considering anti-competitive activities from engaging in them (often referred to as 'general deterrence'). In all circumstances, it is important to ensure that pecuniary sanctions imposed on infringing undertakings are proportionate and not excessive. Although pecuniary sanctions against infringing undertakings are a crucial part of the arsenal needed to deter competition law violations, they may not be sufficient. One alternative option in that regard is the strategic use of sanctions against the individuals involved in, or responsible for, the infringements. Sanctions against individuals are documented to focus the minds of directors and employees to comply with competition rules as they themselves, in addition to the undertakings in which they are employed, are at risk of infringements. Individual criminal penalties, including custodial sanctions, have been in fact adopted by almost half of the EU Member States. This is a powerful tool but is also limited in scope and hard to implement in practice mostly due to the high standards of proof required and the political consensus that needs first to be built. Administrative sanctions for individuals, on the other hand, promise to deliver up to a certain extent the same beneficial results as criminal sanctions whilst at the same time their adoption is not likely to meet strong opposition and their implementation in practice can be both efficient and effective. Directors’ disqualification, in particular, provides a strong individual incentive for each member, or prospective member, of the Board as well as other senior executives, to take compliance with competition law seriously. It is a flexible and promising tool that if added to the arsenal of the European Commission could bring balance to the current sanctioning system and that, in turn, would in all likelihood make the enforcement of EU competition rules more effective. Therefore, it is submitted that a competition law regime in order to be effective should be able to deliver policy objectives through a variety of tools, not simply by imposing significant pecuniary sanctions to infringing undertakings. It is also clear that individual sanctions, mostly of an administrative nature, are likely to play an increasingly important role as they focus the minds of those in business who might otherwise be inclined to regard infringing the law as a matter of corporate risk rather than of personal risk. At the EU level, in particular, the adoption of directors’ disqualification promises to deliver more effective compliance and greater overall economic impact.

Germany in the Russian-Ukrainian conflict: a political or a humanitarian mission? OSW Commentary No. 163, 2015-02-18

Since the beginning of the Russian-Ukrainian conflict, profound changes in Germany’s thinking about Russia, its political elite and foreign policy, can be observed. The trust most German politicians had in their former strategic partner has now lessened. At the same time, Germany has been particularly involved in the process of resolving the conflict, which was demonstrated by the intensive diplomatic actions it undertook. When these failed, Chancellor Angela Merkel did not hesitate to force through the introduction and maintenance of economic sanctions. At the same time, however, this evolution in Germany’s thinking about Russia has not translated into any change in the two basic assumptions of the German attitude towards a possible solution to the conflict. First, Germany supports the concept of ‘strategic patience’ in politics in the context of Russia’s aggression. Second, it is convinced that Europe is fated to cooperate with the Russian Federation, and Europe’s welfare and security are only possible with Russia as a partner in cooperation, not against it or without it. Therefore, in the immediate future no radical change in Germany’s policy as pursued so far should be expected. This provokes questions concerning not only the effectiveness of Berlin’s current actions, but also – in a broader sense – Germany’s ability to negotiate and achieve real, political solutions to the Russian-Ukrainian conflict, reaching beyond (another) ceasefire. The Minsk agreements of 12 February can be considered a success worthy of a humanitarian mission carried out in the hope of reducing the number of casualties. However, the political mission undertaken by Chancellor Merkel and Foreign Minister Steinmeier aimed at “ensuring Europe’s security order”[1] has so far resulted in the sense of helplessness and frustration which have recently dominated Germany’s policy towards Russia[2].