Revue Européenne du Droit
Europe as an international normative power: state of play and perspectives
Issue #3
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Issue #3

Authors

Laurent Cohen-Tanugi

La Revue européenne du droit, December 2021, n°3

The groundwork of European power

Twenty years 1 after an initial assessment 2 , Europe still aims to define itself as being a power whose influence isn’t rooted in its military force, but in its capacity to set rules or behavioral norms that have an international outreach. Indeed, as early as the 1970s, what was to become the European Union was already viewed as being a ‘civil power’ by international relations theorists 3

The status of the European power is yet to be built, but it will certainly rely on the consolidation of the European Union’s influence in the international crafting of norms. Influence is the social and political power of a person or group which allows it to direct the course of events and to induce changes in an indirect and non-coercive manner 4 . Normativity is a ‘freely accepted process of harmonization of players’ preferences in order to advance common interests by strictly adhering to a certain number of rules.’ 5 The normative influence of the European Union, which has been referred as the ‘Brussels effect’ 6 , can be broken down into three parts. First, the ability to enact its own law and to enforce it within its territory, and even beyond (extraterritoriality); second, the ability to influence the content of norms (legal, technical) resulting from an international negotiation process within various multilateral fora; and third, the ability to serve as a voluntary normative model within the international community 7 .

The recourse to norms as a source of influence is, first of all, a reflection of the project of the European integration itself. Indeed, Europe has a primary preference for norms, which provide the grounds for its own internal legitimacy. It is through the crafting of common norms, resulting from a peaceful and negotiated resolution of the conflicts having arisen between historically hostile Nation-States, that the European project emerged, to safeguard the peace on the Old Continent.

If the concept of power traditionally refers to diplomatic and military capabilities, normative influence is today even more necessary because international conflicts tend to trade-in the military uniform for the more civilian garments of economics, law and technology. The controversies arising out of the extraterritorial application of US law are a landmark example. In an interdependent world, regulation through a set of institutions, legal rules and procedures has become essential. Normativity is, then, a reflection of power strategies. It is therefore appropriate to discuss not the existence as such, but the degrees of the European normative influence today

The successes of the European Union as an international normative power will thus be analyzed in the first place, using concrete examples in various areas. The second part will point out the obstacles hindering this ambition, before concluding on the importance and the limits of normativity itself as an instrument of power.

I. Europe as an international normative power: declared ambitions and achievements

Positioning itself very early on as a community of law, Europe has been able to draw on undeniable successes to establish its normative power.

A. Europe, a community of law

The European project was conceived very early on in normative terms, as a ‘community of law’. This legal construction of the European Union was first carried out within the Union itself, through the creation of an institutional system able to generate norms. In addition to the Council, within which qualified majority voting in many areas has been a driving force for integration, and the key role of the Commission, the Court of Justice of the European Communities (CJEC)—now the Court of Justice of the European Union (CJEU)—very quickly developed an innovative case law that accelerated and stressed the normative capacity of the European project thanks to its monopoly over treaty interpretation 8 . As early as 1964, the Court enshrined the principle of the primacy of community law over the domestic laws of its Member States 9 , including their constitutional norms 10 . This principle of primacy, which prevented the erosion of community law by domestic legislation, was gradually accepted by national courts. A year earlier, in 1963, the CJEU had already recognized the principle of direct effect of community law, by virtue of which private individuals could rely on the provisions of the treaty and secondary legislation if their provisions expressly conferred rights upon them and imposed obligations on the Member States that were so clearly defined, precise and unconditional that they did not require any implementing measures 11 . Through the combination of primacy, the direct effect of European law and its control of the compatibility of national legislation with this legal order 12 , the CJEU has opened the way to the constitutionalization of the European treaties according to Judge Frederico Mancini 13 . It has thus taken the European project out of its intergovernmental cradle, where it could have stayed forever, and turned it into an institution of a federal nature.

The European Union has also influenced its Member States through the assertion of a certain number of cardinal values in its constitutive treaties, such as respect for human dignity, freedom, democracy, equality or the rule of law 14 . The respect of these values by the States is a sine qua non condition for accession to the European Union 15 , and their breach by a Member State may expose it to sanctions going as far as the suspension of its right to vote in the Council 16 . It therefore constitutes the first step towards the normative power of the Union. This is complemented by the Union’s preponderant normative involvement in the field of human rights and individual freedoms. The two World Wars led the international community, and in particular the Europeans, who were lagging behind in this respect, to formulate and constitutionalize fundamental rights, sometimes under the control of supranational courts. If the case law of the European Court of Human Rights at the level of the ‘greater Europe’ is a driving force in this respect, the Union itself doesn’t sit still, having adopted the Charter of Fundamental Rights of the European Union in 2000 17 . Like the treaties, the Charter has been legally binding since the Lisbon Treaty of 2007 18 . It also has a broader scope, since it provides a number of social, economic and environmental rights (such as rights to education, working conditions, and environmental protections). It also contrasts with the marginalization of the US in the crafting of an international human rights body of rules and case law. The US reluctance to ratify international conventions (the Kyoto Protocol, the Rome Statute of the International Criminal Court, withdrawal from the Paris Agreement under the Trump administration), including in the field of humanitarian law, is a constant characteristic of US foreign policy, emphasized by the refusal to recognize their primacy over domestic law.

This normative construction has also relied on the four EU freedoms of movement 19 . By opening up the market between its Member States, the Union has created the conditions to make the law governing it unavoidable. Indeed, it is mainly through the Single Market and the treaty, directives and regulations that govern it, that the European Union has given itself a ‘territory’ and, therefore, an increasingly uniform and weighty law. 

B. The European normative power: undeniable international successes

a. The European Union: a regional generator of international standards

The construction of the Single Market enabled the Union to draw up its own law and to enforce it on its own territory. Competition law is the area where this form of the European normative power has been the most striking, thanks to the exclusive competence of the Union in this field 20 . Thus, the so-called ‘effects theory’ asserted in the ‘Wood Pulp’ ruling of the CJEU prohibits anti-competitive practices by undertakings established outside of the Union where the effects of such agreements or practices extend to the territory of the Union 21 . Similarly, above certain thresholds, the Commission oversees and may prohibit, any concentration or merger between undertakings that could affect competition in the Single Market 22 . This control by the Commission applies to the European undertakings, but also to extra-European ones. The recent review of the takeover of Grail by Illumina, two US companies, illustrates the sovereignty of European law over competition conditions within the Single Market and elsewhere 23 .

Personal data protection is another area where Europe is imposing its views beyond its borders. Directive 95/46/EC of 24 October 1995 was the first step towards harmonizing the legislation of the Member States and preventing the transfer of data collected in Europe to third countries where an adequate level of protection was not guaranteed 24 . US companies were free to voluntarily adhere to a system of protection more or less similar to that applicable to their European counterparts. The case law of the CJEU has also enshrined the ‘right to be forgotten’ for the European users of US web platforms 25 . The European normativity in this area has taken on a new impetus with the adoption of Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (the ‘GDPR’), whose the extraterritorial effect is clearly asserted 26 . It was on the basis of the GDPR that, in its Schrems II ruling of 16 July 2020, the CJEU invalidated the 2016 agreement between the US and the EU on the transfer of data from Europe to the US (the ‘Privacy Shield’) 27 . The Privacy Shield was itself the result of the annulment in 2015 by the same Court of the previous transatlantic data transfer authorization scheme, known as the ‘Safe Harbor’ 28 . In 2020, the Court held that the limitations on the protection of personal data arising from the domestic law of the United States on the access and use by US public authorities of such data transferred from the European Union to the United States, which the Commission assessed in the Privacy Shield Decision, are not framed in a way that meets the requirements substantially equivalent to those of the Union 29 . The protection of personal data therefore underscores a European normativity ‘from the top’, relying on the setting of the highest standards. Its power and legitimacy are grounded in choices that are coherent and unchallenged by the Member States, which enables the EU to have a negotiating power rarely reached in its bilateral relations with the US before.

Europe’s normative power is also highlighted by a wealth of European legislation on environmental protection and the fight against climate change. The EU is a party to the Kyoto Protocol of 11 December 1997 and the Paris Climate Agreement of 2015. Numerous European acts have been adopted on subjects as diverse as air quality 30 , the emission of greenhouse gases 31 , the control of hazards related to chemic substances 32 , the management of electronic waste 33 or the protection of biodiversity 34 . Numerous other European law instruments are laying down the foundations for the EU’s environmental normative power 35 . Business undertakings are incentivized to comply in order to be able to operate in the Single Market. The European Climate Pact (the ‘Green Deal’) presented in December 2020 by the Commission marks a new decisive step in the construction of a European normative influence in the field of environmental protection and the fight against climate change.

This facet of the EU’s normative power might find a new embodiment in a possible European duty of vigilance (devoir de vigilance), which was proposed by the European Parliament in March 2021 36 . Originating from international soft law, the idea of a duty of vigilance has been taken up and ‘hardened’ by the national legislations of several EU Member States 37 , such as the Netherlands 38 , France 39 and Germany 40 . Pending the Commission’s proposal, it should be noted that the European Parliament’s proposal of March 2021 assumes its extraterritorial outreach. Indeed, it is proposed that the duty of vigilance applies to companies which are not established on the EU territory as long as they operate in the internal market selling goods or providing services 41 . It would have the effect of disseminating the very high European social, health and environmental standards throughout the global value chains and would therefore constitute an instrument of the European normative power.

b. The European Union: an influential player in international negotiations

A second sphere of normative influence lies on Europe’s intense bilateral and multilateral negotiation activity. The common commercial policy and international investment law, where the EU has exclusive competence 42 , are powerful strategic tools for this way of exercising the European normative power. A good example comes from the original model of the Investment Court System of the EU-Canada Comprehensive Economic and Trade Agreement (the ‘CETA’), whose ratification by all the EU Member States is still awaited 43 . In addition to promoting the European health, social and environmental standards 44 , this free trade agreement establishes for the first time a permanent investment tribunal 45 . The tribunal will be composed of fifteen members appointed by the EU and Canada, rather than arbitrators appointed by the investor and the defendant State. The tribunal will rule in panels of three members appointed on a random basis. The treaty establishes an appellate tribunal to review the initial tribunal’s decisions 46 . The European Union is promoting this model with a view to eventually establishing a multilateral investment court within multilateral institutions such as the United Nations Commission on International Trade Law 47 . This court would operate in a manner similar to the tribunal established under the CETA 48 .

c. The European Union: a normative model for the world

Finally, normative power is expressed by the ability to serve as a voluntary normative model within the international community. Europe’s normative influence outside of its borders lies first of all in the exemplary nature of its own organizational model, as defined in the treaties of Rome, Maastricht and Lisbon. The European integration embodies, first of all, an unprecedented experience of the peaceful and successful emergence of a regional economic and political entity, arising out of Nation States that are culturally diverse and historically hostile. The political miracle of this adventure and the institutional genius behind it confer upon the European Union a real aura for the rest of the world in terms of development of modern and progressive international relations. The Union has undoubtedly inspired regional integration projects in Latin America (Mercosur), Asia (ASEAN) and Africa (ECOWAS, CEDAC, the African Union).

Indeed, the influence of certain European legislative acts goes far beyond their mere extraterritorial application. Some States have drawn their inspiration from the European regulatory model to create their own set of rules. Take personal data protection, an area in which the European model set forth in the GDPR has spread around the world, from the California Consumer Privacy Act (the ‘CCPA’) 49 ,where the global digital giants are headquartered, to the Japanese regime reformed in June 2020.

II. A hindered ambition

The undeniable achievements of the construction of a European normativity should not however conceal the limits and obstacles to this ambition.

A. Internal institutional handicaps 

The Lisbon Treaty has removed many obstacles to the assertion of the European normative power. Indeed, the express division between the exclusive competences of the Union and those shared between the Union and its Member States clarifies the areas of its intervention 50 . The Treaty also established the legal personality of the European Union, allowing it to conclude international conventions, to go to court, and to be a member of international organisations 51 . Nevertheless, not all the obstacles have been removed. 

Indeed, the Union is still dependent on the principle of unanimity of the Member States within the Council in its effort to wield its normative influence. Unanimity is still required in areas as diverse as taxation 52 , the harmonization of laws, regulations and administrative provisions of the Member States which have a direct impact on the establishment or functioning of the internal market 53 , certain areas of the construction of the European social policy 54 , and even trade agreements in the field of cultural services which could undermine the cultural exception 55 . Taxation is one specific example of this, where plans to tax the digital giants are being slowed down by Irish reluctance.

Similarly, the EU’s legal personality, which allows it to conclude international agreements, is not a panacea. The EU remains dependent on the division of exclusive and shared competences in the case of mixed agreements, i.e., agreements whose subject matter does not fall within the exclusive competence of the EU. Member States then also need to ratify them according to their internal constitutional rules 56 . This division slows down and limits the EU’s ability to speak with one voice in international negotiations and to impose its own norms and standards. 

An additional factor that hampers the EU’s normative ambitions is its insufficient participation in technical standardization bodies. Progress has been made over the last twenty years 57 : the Union joined certain technical standardisation bodies such as the Codex Alimentarius in the field of food safety 58 , and has recognised the role of the European Committee for Standardisation (‘CEN’) as a standardisation body 59 working in cooperation with the International Organisation for Standardisation (‘ISO’). However, CEN is not a member of ISO. The European Committee for Standardization in Electronics and Electrotechnology is not a member of the International Electrotechnical Commission (‘IEC’), either. Increased participation in technical standardization bodies is becoming a marker of normative power, in which China is fully engaged. The announcement of the China Standards 2035 plan, through which China sets for itself the objective of becoming the main exporter of international technical standards over the next ten years, is a perfect example 60 . The EU must respond if it intends to assume its leadership regarding standardization.

Lastly, the EU still has recourse to the practice of minimum harmonization by means of directives, whereby Member States are left to opt for different means of implementation, and are also given the possibility of maintaining or establishing more stringent rules. The EU’s legislative activity does not fulfil its unifying function since the legislative choices depend on the will of the Member States. Minimum harmonisation weakens the Union’s capacity for regulatory influence and the negotiating leeway of the European institutions. For instance, France is reluctant to adopt measures that go beyond the minimal European requirements 61

Faced with these obstacles, federalisation is the surest way for the European normative power to reach its full effectiveness. Legislation by means of regulations, which, unlike directives, are of general scope and directly applicable in all Member States 62 , is the most effective way for exerting influence. The areas where integration is most advanced (e.g., competition, monetary and trade policies) proves that the more the legislative disparities between the Member States will be reduced, the more the EU will look like a coherent whole having an influence comparable to that of other standard-setting powers.

B. Europe’s reaction to foreign laws of extraterritorial application

The internationalisation of trade, combined with the dematerialisation of the flows of goods and services, has accentuated the dilution of the territoriality of legal norms and favoured the advent of norms with a broad extraterritorial scope. If, as we have seen, the European Union makes extensive use of extraterritoriality to enforce its competition or personal data protection standards, other jurisdictions are following a similar path. US extraterritorial laws and prosecutions in the fight against corruption or economic sanctions fuel public and legal debates on this topic 63 .

To counter these normative incursions, the EU has equipped itself with legal instruments of dubious effectiveness. The so-called ‘European blocking regulation’, which prohibits persons established on the territory of the Union from complying with the requirements of foreign jurisdictions 64 , was of no help when the Trump administration decided to impose new unilateral sanctions against Iran. The ‘special corporate vehicle’ establishing a barter system between the EU and Iran to deal with these unilateral sanctions didn’t convince European businesses, either.

The right answer is to bring Europe up to speed in those areas where the extraterritoriality of foreign laws is exercised. In the fight against corruption, France and the United Kingdom have reformed their national laws to meet the international requirements of the OECD 65 and the United States. The French law of 9 December 2016, known as ‘Sapin II’, notably requires companies of a certain size to adopt preventive measures against corruption, introduces the judicial public interest agreement (‘CJIP’) in cases of breach of probity involving legal persons, and allows for the prosecution in France of acts of bribery of foreign public officials against any person carrying out ‘all or part of its economic activity on French territory’ 66 .  

The EU would be well advised to follow such a strategy, which is the only way to fill the gaps left by foreign legislation on the one hand, and to make the European response credible on the other. For instance, there are proposals to strengthen the European anti-corruption regime 67 . Up to now, the European Union has not sufficiently dealt with these issues of economic and financial crime. To this end, it could make use of the ordinary legislative procedure, in accordance with Article 83(1) of the Treaty on the Functioning of the European Union 68

More generally, the European normative power should have an enforcement arm to ensure its effectiveness, like the European Commission in competition law. Indeed, Europe does not yet have prosecution authorities as effective as the US Department of Justice, the Office of Foreign Assets Control within the US Treasury, or the US Securities and Exchange Commission in their respective areas of competence. The European Public Prosecutor’s Office has jurisdiction over offences against the financial interests of the EU, namely fraud, cross-border VAT fraud, money laundering, embezzlement and corruption 69 . In the future, we can hope for an extension of its jurisdiction to intra-European economic and financial crime, to environmental law or to the fight against terrorism, making it a key player in the assertion of the European normative power.

C. The populist challenge to the founding principles of the European project

Finally, the ambition of asserting the European normative power is now being undermined by the growing internal attacks from certain of its Member States.

As already pointed out, respect for the rule of law and human rights are cardinal values of the European Union and are a condition for the accession of new Member States 70 . Their breach is likely to result in the suspension of a Member State’s voting rights within the Council 71 . However, despite this clear statement, the illiberalism of certain Member States, such as Hungary or Poland, is flourishing within the Union in contradiction with these principles. The regulatory capacity of the Union is weakened because the Member States cripple the unity of the European normative power by attempting to repatriate their own normative power.

The recent decision of the Polish Constitutional Tribunal, composed of judges appointed by the Europhobic Law and Justice party under conditions criticised by the CJEU in July 2021 72 , goes one step further. The tribunal ruled that the Polish constitution takes precedence over the treaties that constitute the primary law of the European Union 73 . In other words, the primacy of European law, one of the main pillars of European integration, inherited from ECJ’s Costa v. Enel decision in 1964, is undermined.

Even the courts of the most pro-European Member States sometimes shake up the European legal order, built upon the foundations of the case law of the CJEC and then the CJEU. In a decision of 5 May 2020, the German Constitutional Court stated that the ECB had exceeded its mandate with its bond purchase programme, even though this policy had been vetted by the CJEU. This decision indirectly challenged the principle of the primacy of European law, as recalled in a statement by the President of the European Commission 74 . With regard to France, the Constitutional Council has recently (and for the first time) given content to a ‘principle inherent to the constitutional identity of France’ by integrating into it the prohibition on delegating ‘the exercise of public force to private persons’. The Council took this step in order to review the legislative provisions transposing a EU directive which are limited to drawing the necessary consequences from its unconditional and precise provisions 75 .

The Polish ruling is to be distinguished from the efforts of the other Member States to adapt their national constitutions to European law, with a view to eliminating any conflict. In France, this was the case of successive constitutional amendments and the enactment of Title XV of the Constitution, more particularly of Article 88-1, the interpretation of which was the basis for the indirect assertion of the principle of the primacy of EU law within the constitutional review of the proposed Treaty establishing a Constitution for Europe 76 . The refusal of the Constitutional Council to review the legal acts transposing European directives 77 , with the sole exception of those that are incompatible with the principles inherent in the French constitutional identity 78 , also highlights the adaptation of national legal systems to the founding principles of European law.

The internal primacy of European law is a sine qua non condition of the EU’s international normative power.

III. The relevance and limits of normativity as an instrument of power in the 21st century

Beyond the obstacles and threats mentioned above, there are more fundamental questions about the drawbacks, sustainability and limits of EU’s position as an international normative power.

Among the drawbacks, the first is the criticism that Europe is using regulation as a stop-gap measure to counter the technological and economic successes of the US and China. One naturally thinks here of the American reactions to the European Commission’s offensives against Big Tech through competition law and taxation. Although Europe has now scored points in these two areas in international and US fora, the idea that normative power cannot make up for the European technological and industrial weakness remains valid.

A second and more damaging drawback for Europe is the risk of the EU imposing virtuous rules on itself and on its businesses and citizens without being followed by its closest competitors, resulting in distortions of competition to its own detriment. Take the international sanctions regime, or, an even more relevant example, the climate transition and the strategic battle underway over the taxonomy of corporate extra-financial information. The European choice of ‘double materiality’ for the assessment and reporting of the environmental footprint 79 and the consideration of all issues of corporate social responsibility (CSR) contrast with the international approach, which favours simple materiality and climate aspects alone. This will handicap European companies by subjecting them to more stringent requirements.

The sustainability of the European normative influence in the international sphere is also uncertain, as the relative economic and demographic weight of the European Union and its domestic market shrinks compared to the rise of large emerging countries, led by China and India. Since the size of the potential market is the primary incentive for international businesses to comply with the standards governing that market, they are likely to prefer to apply the less demanding standards of a larger market.

Finally, one may wonder whether a strategy of power (or strategic autonomy) based on the norm as a substitute for force does not participate in a historical tendency of the European project to define itself by its values and its virtue to the detriment of its interests, and thereby to deny itself any geopolitical awareness and affirmation. This tendency is laudable and was relevant in the liberal and internationalist moment of the last decades of the 20th century, when the European integration could hope to serve as a model for world governance. But the turn of the 21st century unfortunately dashed these hopes and marked the return of geopolitics and power politics, a regression that the EU was slow to perceive, and of which it has only very recently begun to draw the consequences. This delay is undoubtedly not accidental, since the European geopolitical assertion depends on the resolution of the differences, contradictions and conflicts of interest between its Member States, which have so far hindered its attempts to build a common foreign policy and defense.

Let there be no mistake: normative power is essential in the 21st century, where technological advances, particularly in artificial intelligence and biotechnology, increasingly require legal and ethical safeguards. Europe has a key role to play in defending its humanist values against Chinese authoritarianism and US economic liberalism. But it will only be able to do this if it integrates further, strengthens its industrial and technological potential, and acquires a strategic mindset and military capability.

Notes

  1. With the collaboration of Martin Méric.
  2. See, L. Cohen-Tanugi, L’influence normative de l’Union européenne : une ambition entravée (Les notes de l’IFRI, n° 40, Paris, IFRI, 2002).
  3. See, F. Duchêne, “The European Community and the uncertainties of Interdependence”, in M. Kohnstamm, et W. Hager (eds.), A Nation Writ Large? Foreign Policy Problems Before the European Community, Mac Millan, Basingstoke, 1973.
  4. See, Dictionnaire Larousse, ‘Influence’, ed. 2021.
  5.  See, Z. Laïdi, ‘The Normative Empire: the unintended consequences of European Power’, 2008, p. 3. 
  6.  See, A. Bradford, ‘The Brussels Effect’, Northwestern University Law Review, Vol. 107, No. 1, 2012; A. Bradford, ‘The European Union in a globalised world: the “Brussels effect”’, Revue européenne du droit, Paris: Groupe d’études géopolitiques, March, 2021, 2, p. 75.
  7.  See, L. Cohen-Tanugi, L’influence normative de l’Union européenne : une ambition entravée, p. 11.
  8.  Article 344 of the Treaty on the Functioning of the European Union.
  9.  CJEC, case 6/64, 15 July 1964, Costa v/ E.N.E.L.
  10.  CJEC, case 11/70, 17 December 1970, Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel. 
  11.  CJEC, case 26/62, 5 February 1963, Van Gend & Loos c/ Netherlands fiscal administration.
  12.  Articles 256 and 267 of the Treaty on the Functioning of the European Union.
  13.  See, Federico Mancini, ‘The Making of a Constitution for Europe’, Common Market Law Review, vol. 26, n° 4, 1989.
  14.  Articles 2 and 3 of the Treaty on European Union.
  15.  Article 2 of the Treaty on European Union.
  16.  Article 7 of the Treaty on European Union.
  17.  Charter of Fundamental Rights of the European Union of 7 December 2000.
  18.  Article 6.1 of the Treaty on European Union.
  19.  The free movement of goods (Articles 28 et seq. of the Treaty on the Functioning of the European Union), of persons (Article 45 of the Treaty on the Functioning of the European Union), right of establishment (Article 49 of the Treaty on the Functioning of the European Union), freedom to provide services (Article 56 of the Treaty on the Functioning of the European Union) and freedom of movement of capital (Article 63 of the Treaty on the Functioning of the European Union).
  20.  Article 3 of the Treaty on the Functioning of the European Union.
  21.  CJEU, C-89/95, 27 September 1988, the joined cases ‘wood pulp’.
  22.  Regulations No. 4064/89 of 21 December 1989 and No. 139/2004 of 20 January 2004 on the control of concentrations between undertakings (‘the EC Merger Regulation’).
  23.  European Commission, ‘Mergers: Commission starts investigation for possible breach of the standstill obligation in Illumina / GRAIL transaction’, press release, 20 August 2021. Accessible via : https://ec.europa.eu/commission/presscorner/detail/en/ip_21_4322 
  24.  Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.
  25.  CJEU, gr. ch., C-131/12, 13 May 2014, Google Spain SL and Google Inc. v Agencia Espanola de Proteccion de Datos, para. 88.
  26.  Article 3 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). 
  27.  CJEU, gr. ch., C-311/18, Data Protection Commissioner v Maximillian Schrems and Facebook Ireland, 16 July 2020, known as ‘Max Schrems II’.
  28.  CJEU, gr. ch., C-362/14, Max Schrems v Data Protection Commissioner, 6 October 2015, known as ‘Max Schrems I’.
  29.  CJEU, gr. ch., C-311/18, Data Protection Commissioner v Maximillian Schrems and Facebook Ireland, 16 July 2020, para. 185.
  30.  Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe.
  31.  Directive 2015/2193 of the European Parliament and of the Council of 25 November 2015 on the limitation of emissions of certain pollutants into the air from medium combustion plants. 
  32.  Directive 2012/18/EU of the European Parliament and of the Council of 4 July 2012 on the control of major-accident hazards involving dangerous substances, amending and subsequently repealing Council Directive 96/82/EC. 
  33.  Directive 2012/19/EU of the European Parliament and of the Council of 4 July 2012 on waste electrical and electronic equipment (WEEE). 
  34.  Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds, amended by Regulation (EU) 2019/1010 of the European Parliament and of the Council of 5 June 2019 on the alignment of reporting obligations in the field of legislation related to the environment.
  35.  For a list of the European policies and legislations relating to environmental protection and the fight against climate change, see https://eur-lex.europa.eu/summary/chapter/20.html?expand=230807,2020#arrow_2020
  36.  European Parliament resolution of 10 March 2021 with recommendations to the Commission on corporate due diligence and corporate accountability (2020/2129 (INL)).
  37.  See, C. Coslin, L. Naidoo, M. Renard, ‘Duty of Care and Vigilance in Human Rights Matters: From an International Impulse to European Implementations’, Revue européenne du droit, Paris: Groupe d’études géopolitiques, September, 2020, no. 1, p. 71.
  38.  Dutch Child Labour Due Diligence Act, 14 May 2019.
  39.  Law no. 2017-399 of 27 March 2017 on the duty of vigilance of parent companies and ordering companies.
  40.  German Bill for a ‘Supply Chain Act’ (Sorgfaltspflichtengesetz).
  41.  See, Article 2.3 of the Recommendations for drawing up a directive of the European Parliament and of the Council on corporate due diligence and corporate accountability, annexed to European Parliament resolution of 10 March 2021 with recommendations to the Commission on corporate due diligence and corporate accountability (2020/2129 (INL)).
  42.  Article 3 of the Treaty on the Functioning of the European Union.
  43.  On the dispute resolution model developed in the framework of the CETA agreement, see Articles 8.18 et seq. of the Comprehensive and Economic Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part. 
  44.  Chapters 8, 23 and 24 of the Comprehensive and Economic Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part.
  45.  Articles 8.18 et seq. of the Comprehensive and Economic Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part.
  46.  Articles 8.28 et seq. of the Comprehensive and Economic Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part.
  47.  Council of the European Union, Negotiating directives for a Convention establishing a multilateral court for the settlement of investment disputes, 12981/17, 20 March 2018, paras. 6-7.
  48.  Council of the European Union, Negotiating directives for a Convention establishing a multilateral court for the settlement of investment disputes, 12981/17, 20 March 2018, para. 10.
  49.  California Consumer Privacy Act (CCPA) of 2018 [1798.100 – 1798.199.100].
  50.  Articles 3 and 4 of the Treaty on the Functioning of the European Union.
  51.  Article 47 of the Treaty on European Union.
  52.  Article 113 of the Treaty on the Functioning of the European Union.
  53.  Article 115 of the Treaty on the Functioning of the European Union.
  54.  Article 155 of the Treaty on the Functioning of the European Union.
  55.  Article 207.4 of the Treaty on the Functioning of the European Union.
  56.  CJEU, Opinion C-1/94 of 15 November 1994 – Competence of the Community to conclude international agreements on services and the protection of intellectual property – Procedure under Article 228(6) of the EC Treaty.
  57.  See, L. Cohen-Tanugi, L’influence normative de l’Union européenne : une ambition entravée,pp. 29-30 and Appendix.
  58.  Article 1 of the Council Decision of 17 November 2003 on the accession of the European Community to the Food Code Commission, 2003/822/EC.
  59.  Regulation (EU) 1025/2012 of the European Parliament and of the Council of 25 October 2012 on European standardisation.
  60.  See, A. Gargeyas, ‘China’s ‘Standards 2035’ Project Could Result in a Technological Cold War’, The Diplomat, 18 September 2021. Retrieved October 14, 2021: https://thediplomat.com/2021/09/chinas-standards-2035-project-could-result-in-a-technological-cold-war/ 
  61.  See the ministerial circular of 26 July 2017 on controlling the flow of regulatory texts and their impact, which prohibits, as a matter of principle, any measure that goes beyond the minimum requirements of the directive, unless this is the subject of a choice assumed and confirmed by the Prime Minister’s office.
  62.  Article 288 of the Treaty on the Functioning of the European Union.
  63.  See, J-M. Sauvé, ‘La territorialité du droit. Introduction’, the Inter-Networks Meeting (Franco-American, Franco-Brazilian and Franco-Chinese) on the theme ‘The internationalisation of law: pathology or metamorphosis of the legal order?’, Collège de France, 10-12 April 2012 ; K. Berger, P. Lellouche, Information report on the extraterritoriality of US legislation, 5 October 2016.; R. Gauvain, Restoring the sovereignty of France and Europe and protecting our companies from laws and measures with extraterritorial reach, report submitted to the French Prime Minister on 26 June 2019.
  64.  Article 5 of Council Regulation (EC) 2271/96 of 22 November 1996 protecting against the effects of the extraterritorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom, the so-called ‘EU Blocking Statute’.
  65.  OECD, Phase 3 report on France’s implementation of the OECD Anti-Bribery Convention, October 2012.
  66.  Law No. 2016 – 1691 of 9 December 2016 on transparency, the fight against corruption and the modernisation of economic life, known as ‘Sapin II’.
  67.  Club des juristes, Report – For a European compliance law, November 2020. Accessible via: https://www.leclubdesjuristes.com/wp-content/uploads/2020/11/compliance_FR_def_WEB.pdf 
  68.  Article 83.1 of the Treaty on the Functioning of the European Union.
  69.  Article 4 of the Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office.
  70.  Article 2 of the Treaty on European Union.
  71.  Article 7 of the Treaty on European Union.
  72.  CJEU, Case C-791/19, 15 July 2021, Commission v. Poland.
  73.  C. Chatignoux, ‘La justice polonaise défie l’UE sur la primauté du droit européen’, Les Echos, 7 October 2021.
  74.  Statement by President Von der Leyen, 10 May 2020. Accessible via: https://ec.europa.eu/commission/presscorner/detail/fr/STATEMENT_20_846 
  75.  Constitutional Council, Decision No. 2021-940 QPC of 15 October 2021, Air France.
  76.  Constitutional Council, Decision No. 2004-505 DC of 19 November 2004, para. 12.
  77.  Constitutional Council, Decision No. 2004-496 DC of 10 June 2004, Law for confidence in the digital economy, para. 9.
  78.  Constitutional Council, Decision No. 2006-540 DC of 27 July 2006, Law on copyright and related rights in the information society, para. 19.
  79.  Simple materiality is defined as the analysis of the impact of environmental, social and governance (ESG) risks on the company (‘outside-in’). Double materiality combines the analysis of ESG risks on the company (‘outside-in’) and the analysis of the company’s impact on the environment and society (‘inside-out’). 
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Laurent Cohen-Tanugi, Europe as an international normative power: state of play and perspectives, Dec 2021,

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