Legislative approximation and application of EU law in the Eastern neighbourhood of the European Union

Legislative Approximation and

Application of EU Law in the Eastern

Neighbourhood of the European Union

This book explores the exportation and application of European Union

legislation beyond EU borders. It clarifies the means and instruments of the

voluntary application of the EU’s norms by third countries and analyses in

detail the process of legislative approximation between the EU and its East

European neighbours. It also assesses the extent to which the EU is success￾ful in promoting its legal standards abroad.

The first part of the book addresses the EU’s mechanisms and instru￾ments promoting the export of its own laws and practices to other countries.

Key issues include the post-Lisbon constitutional basis for the EU’s engage￾ment with its Eastern neighbours (Art. 8 TEU); the different methods of

acquis export and the impact of a new generation of Association Agreements

providing for the establishment of Deep and Comprehensive Free Trade

Areas (DCFTAs) and, ultimately, a Neighbourhood Economic Community

(NEC) between the EU and its Eastern partners.

The second part of the book includes substantive country reports,

authored by leading academics from the countries concerned, that analyse

the process of legislative approximation and application of EU law in the

Eastern Partnership countries and Russia. While currently these countries

are not working towards full EU membership, the EU encourages them to

approximate and converge their legislation with the EU acquis. The book

also offers a unique picture of current practice of the application of EU law

by judiciaries in the countries of the Eastern Partnership and Russia.

The book concludes with reflections on the multi-faceted character of

legislative approximation and the challenges surrounding the application

of EU law in the EU’s Eastern neighbourhood. The conclusions reached are

highly informative as to the effectiveness of present and future EU external

regional policies aimed at the promotion of EU common values and EU

legislation into the legal orders of third countries.

Peter Van Elsuwege is Professor in EU Law at Ghent University Law School,

Belgium.

Roman Petrov is Jean Monnet Chair in EU Law at the National University of

Kyiv-Mohyla Academy, Ukraine.

Routledge Research in EU Law

Available titles in this series include:

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Melanie Smith

EU External Relations and Systems of Governance

The CFSP, Euro-Mediterranean Partnership and Migration

Paul James Cardwell

The European Constitution, Welfare States and Democracy

The Four Freedoms vs. National Administrative Discretion

Christoffer C. Eriksen

EU External Relations Law and the European Neighbourhood Policy

A Paradigm for Coherence

Bart Van Vooren

The Evolving EU Counter-terrorism Legal Framework

Maria O’Neill

The Early Warning System for the Principle of Subsidiarity

Constitutional Theory and Empirical Reality

Philipp Kiiver

European Perspectives on Environmental Law and Governance

Suzanne Kingston

The Tangled Complexity of the EU Constitutional Process

The Frustrating Knot of Europe

Giuseppe Martinico

Criminal Law and Policy in the European Union

Samuli Miettinen

Local Government in Europe

The ‘Fourth Level’ in the EU Multi-Layered System of Governance

Carlo Panara and Michael R. Varney

New Governance and the European Strategy for Employment

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Human Rights and Minority Rights in the European Union

Kirsten Shoraka

The Legitimacy of the European Union through Legal Rationality

Free Movement of Third Country Nationals

Richard Ball

Turkey’s Accession to the European Union

The Politics of Exclusion?

Edel Hughes

Forthcoming titles in this series include:

The Legal Order of the European Union

The Institutional Role of the European Court of Justice

Timothy Moorhead

Kadi on Trial

A Multifaceted Analysis of the Kadi Judgment

Matej Avbelj, Filippo Fontanelli and Giuseppe Martinico

The Governance of the European Union and the Internal-External Nexus

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Legislative Approximation and

Application of EU Law in the

Eastern Neighbourhood of the

European Union

Towards a Common Regulatory Space?

Edited by

Peter Van Elsuwege and Roman Petrov

First published 2014

by Routledge

2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN

and by Routledge

711 Third Avenue, New York, NY 10017

Routledge is an imprint of the Taylor & Francis Group, an informa business

© 2014 Peter Van Elsuwege and Roman Petrov

The right of Peter Van Elsuwege and Roman Petrov to be identified as editors

of this work has been asserted by them in accordance with sections 77 and 78

of the Copyright, Designs and Patents Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced

or utilised in any form or by any electronic, mechanical, or other means,

now known or hereafter invented, including photocopying and recording,

or in any information storage or retrieval system, without permission in

writing from the publishers.

Trademark notice: Product or corporate names may be trademarks or

registered trademarks, and are used only for identification and

explanation without intent to infringe.

British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library

Library of Congress Cataloging-in-Publication Data

A catalog record has been requested for this book

ISBN: 978-0-415-64043-5 (hbk)

ISBN: 978-0-203-79917-8 (ebk)

Typeset in New Baskerville by

FiSH Books Ltd, Enfield.

Contents

Notes on contributors x

Preface by Marc Maresceau xv

Foreword by Kostiantyn Yelisieiev xvii

Acknowledgements xxi

Table of cases xxii

List of abbreviations xxix

1 Setting the scene: legislative approximation and

application of EU law in the Eastern neighbourhood

of the European Union 1

PETER VAN ELSUWEGE AND ROMAN PETROV

PART 1

The process of legislative approximation and application

of EU law beyond the EU borders: instruments and

mechanisms 11

2 Anatomy of EU norm export towards the neighbourhood:

the impact of Article 8 TEU 13

CHRISTOPHE HILLION

3 Differentiating the methods of acquis export:

the case of the Eastern neighbourhood and Russia 21

AARON MATTA

4 The issue of values 46

DIMITRY KOCHENOV

5 The EU–Ukraine Deep and Comprehensive Free Trade

Area: a coherent mechanism for legislative approximation? 63

GUILLAUME VAN DER LOO

6 Differentiated integration and the prospects of a

Neighbourhood Economic Community between the

EU and its Eastern partners 89

SIEGLINDE GSTÖHL

7 Between dream and reality: challenges to the legal

rapprochement of the Western Balkans 108

ADAM ŁAZOWSKI AND STEVEN BLOCKMANS

PART 2

The experience of legislative approximation and application

of EU law in the EU’s Eastern neighbourhood:

country reports 135

8 Legislative approximation and application of EU law

in Ukraine 137

ROMAN PETROV

9 Legislative approximation and application of EU law

in Moldova 159

ANNA KHVOROSTIANKINA

10 Legislative approximation and application of EU law

in Georgia 179

GAGA GABRICHIDZE

11 Legislative approximation and application of EU law

in Armenia 191

NARINÉ GHAZARYAN AND ANNA HAKOBYAN

12 Legislative approximation and application of EU law

in Azerbaijan 215

NARINÉ GHAZARYAN

13 Legislative approximation and application of EU law

in Belarus 228

MAKSIM KARLIUK

viii Contents

14 Legislative approximation and application of EU law

in Russia 246

PAUL KALINICHENKO

Concluding remarks 261

PETER VAN ELSUWEGE AND ROMAN PETROV

Index 265

Contents ix

Notes on contributors

Steven Blockmans is a Senior Research Fellow and the head of the EU

foreign policy unit of the Centre for European Policy Studies (CEPS). He

is Professor of EU External Relations Law and Governance at the

University of Amsterdam (part-time), a Visiting Professor at the University

of Leuven, and a co-founder of the Centre for the Law of EU External

Relations (CLEER). For the past 15 years, he has combined his academic

work with consultancy activities and vocational training. He has worked on

numerous technical assistance projects in Southeastern Europe and was

a long-term legal expert in the framework of an EU-sponsored project in

support of the Ministry of European Integration of Albania (2007–9). He

is a member of the editorial boards of the Serbian Review of European Law

and the Croatian Yearbook of European Law and Policy.

Gaga Gabrichidze is Professor of Public International Law and EU Law at the

New Vision University in Tbilisi. From 2008 to 2011, he held the Jean

Monnet Chair in European Law at the Tbilisi State University. He earned

a PhD from the Tbilisi State University (2005) and also holds a Master in

European Law from the Europa-Institut of Saarland University, Germany

(2000). He had several visiting research fellowships at Saarland University,

the University of Frankfurt and the University of Vienna. His research

focuses on EU constitutional law, as well as legal approximation and

migration law. He is a member of the editorial board of the Georgian Law

Review.

Nariné Ghazaryan is Lecturer at Brunel University, London. Her research

interests lie in the area of EU external relations law. She has authored a

forthcoming book on the European Neighbourhood Policy and the

democratic values of the European Union (Hart Publishing, 2014).

Sieglinde Gstöhl is Director of the Department of EU International

Relations and Diplomacy Studies at the College of Europe in Bruges,

Belgium, and has been fulltime Professor at the College since 2005. From

1999 to 2005 she was Assistant Professor of International Relations at the

Institute of Social Sciences at Humboldt University, Berlin. She holds a

PhD in Political Science as well as an MA in International Relations from

the Graduate Institute of International and Development Studies in

Geneva and an MA in Public Affairs (lic.rer.publ. HSG) from the

University of St. Gallen. She was, inter alia, researcher at the Liechtenstein￾Institut in Bendern, Liechtenstein, and at the Center for International

Affairs at Harvard University. Her research interests include: EU trade

policy and external representation, theories of regional integration and

of international relations, global governance, international political

economy, diplomatic training and small states.

Anna Hakobyan is Lecturer at Yerevan State University and Chair for Euro￾pean and International Law at the Center for European Studies. She

teaches and publishes in the field of EU external relations, with a focus

on external trade law and European Neighbourhood Policy. She has

obtained her LLM in European Law from University College London and

is currently undertaking her PhD at Yerevan State University.

Christophe Hillion is Professor of European Law at the University of Leiden,

Guest Professor of European Integration Law at the University of Stock￾holm and Senior Researcher at the Swedish Institute for European Policy

Studies (SIEPS). He is also Visiting Professor at the European Studies

Institute at MGIMO, Moscow. He previously held academic posts in the

law departments of the University of Cambridge, University College

London and at the College of Europe (Bruges/Natolin). He was educated

at the University of Rennes (DEA), the College of Europe (MA) and the

University of Leiden (PhD). He co-founded the Centre for the Law of EU

External Relations (CLEER) in The Hague, and chairs the Wider Europe

Network, devoted to the study of EU policies towards third European

states. His research focuses on EU enlargement, external relations and

constitutional law. He is member of the editorial boards of the Common

Market Law Review, the European Foreign Affairs Review and the Ukrainian

Journal of European Studies.

Paul Kalinichenko holds a Doctorate Degree in Law (Kutafin Moscow State

Law Academy – MSLA, 2011) and a PhD in International and European

Law (Candidate of Jurisprudence, MSLA, 2002). He joined the EU Law

Chair of the MSLA in 2000. In 2012 he was appointed Professor of the

EU Law Chair of the MSLA (prof. Kashkin Research School – Jean

Monnet Chair). He is a Visiting Professor of the European Study Institute

at MGIMO (Moscow, 2006) and a coordinator of the Research Centre for

European Law at the Immanuel Kant Baltic Federal University (Kalinin￾grad, 2012). His research activities essentially focus on EU economic law,

EU environmental law and EU external relations law. Specific attention is

devoted to the legal aspects of Russia–EU relations. Paul Kalinichenko is

engaged as a legal advisor in European affairs of the Ministry of Education

and Science of Russia (2010) and as a legal advisor in European law of

the Eurasian Economic Commission (2012).

Notes on contributors xi

Maksim Karliuk holds an LLM in European Law (College of Europe, Bruges,

2011) and a specialist degree in International and European Law

(Belarusian State University, 2010). He is a PhD researcher at the

Belarusian State University in Minsk where he also teaches a special

course on EU external relations law. He is currently CIPE–Atlas Corps

Think Tank LINKS Fellow at the Cato Institute in Washington, DC;

researcher at the Gutenberg Chair at École National d’Administration in

Strasbourg and analyst at the Belarusian Institute for Strategic Studies in

Vilnius. His research activities focus on regulatory impact assessment,

legal approximation, Eurasian integration and EU external relations law.

Anna Khvorostiankina holds a PhD in Theory and History of State and Law

(Legislation Institute of the Parliament (Verkhovna Rada) of Ukraine,

2012); Second Level Master in Advanced Studies in European and

Transnational Law (University of Trento, 2006); and an LLM degree in

Jurisprudence (National University of Kyiv-Mohyla Academy, Ukraine,

2005). She currently works for the National University of Kyiv-Mohyla

Academy, Ukraine as an Associate Professor lecturing courses on EU law,

theory of law and constitutional law. Her research interests include

approximation of legislation of third countries with EU law, recent

developments in judicial argumentation in the post-Soviet countries,

particularities of theory and practice of the rule of law in countries in

transition.

Dimitry Kochenov is Professor of EU Constitutional Law at the Department

of European and Economic Law of Groningen University. He holds an

LLM from the Central European University in Budapest and a PhD from

Groningen. His research focuses on EU external relations law (with a

particular emphasis on EU enlargements and overseas territories) and

EU citizenship and equality law. Professor Kochenov publishes widely and

was a visiting scholar in a number of institutions worldwide, including

Osaka Graduate School of Law, York University Toronto and UNAM

Mexico. He was also Emile Noël Fellow in Residence at the NYU Law

School. His recent books include European Union’s Shaping of the Interna￾tional Legal Order (co-edited with Fabian Amtenbrink, Cambridge

University Press, 2013) and Europe’s Justice Deficit? (co-edited with Gráinne

de Búrca and Andrew Williams, Hart Publishing, 2014).

Adam Łazowski is a Reader in Law at the School of Law at the University of

Westminster (London). He obtained a Masters degree in 1999 and a PhD

in 2001 from the Faculty of Law of the University of Warsaw. Between 1999

and 2003, he lectured at the University of Warsaw. During the following

two years, he worked as a senior researcher in European law at the T.M.C.

Asser Institute (The Hague). He is editor of The Application of EU Law in

the New Member States: Brave New World (T.M.C. Asser Press, 2010) and (with

Steven Blockmans) The European Union and Its Neighbours: A Legal Appraisal

of the EU's Policies of Stabilisation, Partnership and Integration (T.M.C. Asser

xii Notes on contributors

Press, 2006) and has published extensively on the application of EU law

in Poland (amongst others in Common Market Law Review, European Law

Review and European Constitutional Law Review).

Marc Maresceau studied at Ghent University, the Johns Hopkins University,

Bologna and the Institut de Hautes Études Internationales, University of

Geneva and was Leverhulme Fellow at the University of Edinburgh. At

Ghent University he teaches EU law and institutions. He is Director of the

European Institute of Ghent University, holds a Jean Monnet Chair ad

personam and is coordinator of the Ghent University Jean Monnet Centre

of Excellence. He also teaches at the Free University of Brussels (VUB)

and the College of Europe (Natolin) and has held Visiting Chairs at

various universities, including Paris II, Bordeaux IV, Rennes I, King’s

College London, and the Hebrew University of Jerusalem. Many of his

publications concentrate on the legal and political aspects of EU external

relations and on EU enlargement.

Aaron Matta is interested in two main areas of research: EU external

relations law and international criminal law. He holds a PhD in Law (EUI,

2012); his PhD thesis, entitled ‘Understanding and Assessing the EU–

Russia Legal approximation Process – The case Study of Competition

Law’, explores the results of the legislative approximation process and

economic integration between the EU and Russia. He also completed an

MA in International Relations (Sussex University, 2006) where he wrote

a dissertation dealing with the evolution of international criminal law and

the struggle between the concepts of international order and justice. He

also holds a BA in International Law and an LLM in EU law (MGIMO￾University, 2002 and 2004). Aaron Matta has worked at the International

Court of Justice, the European Commission and the International

Criminal Court and currently works at the Asser Institute as a Senior

Researcher and Academic programme coordinator of the Centre for the

Law of EU External Relations (CLEER).

Roman Petrov holds an LLM in EU Law (Durham University, 1998) and a

PhD in law (National Academy of Science of Ukraine, 2000; Queen Mary,

University of London, 2005). He conducted post-doctoral research as Max

Weber Fellow at the European University Institute (Italy, 2006–8) and had

visiting research fellowships at the University of Heidelberg, the University

of Oxford and Ghent University. Dr. Petrov is founder and first elected

President of the Ukrainian European Studies Association and currently he

is Jean Monnet Chair in EU Law and Head of the Jean Monnet Centre of

Excellence at the National University of Kyiv-Mohyla Academy in Ukraine.

His areas of research and teaching include: EU law, EU external relations

law; approximation and harmonisation of legislation in the EU; rights of

third country nationals in the EU and legal aspects of regional integration

in the post-Soviet area.

Notes on contributors xiii

Guillaume Van der Loo is a PhD candidate at the European Institute of

Ghent University. He holds a Master degree in European Studies (Ghent

University, 2009) and a Master of Advanced Studies in European Law

(LLM) (Ghent University, 2010). He also studied at the University of

Firenze (2007–8) in the framework of the Erasmus programme. As a PhD

candidate for the Special Research Fund (BOF) of Ghent University, he

is preparing a PhD that examines the possibilities and limits of EU inte￾gration without EU membership, with Ukraine as a case study. His specific

research interests are the EU trade policy, the EU’s external energy policy

towards its Eastern neighbours and EU–Russia trade relations.

Peter Van Elsuwege is Professor of European Union Law at Ghent University.

His research activities essentially focus on the law of EU external relations.

Specific attention is devoted to the legal framework of the relations

between the EU and its East European neighbours. He is also the academic

coordinator of a Jean Monnet Module on ‘The legal dimension of EU

external relations’ and an affiliated member of the Centre for the Law of

EU External Relations (CLEER) and the Centre for Russian International,

Socio-Political and Economic Studies (CERISE).

Kostiantyn Yelisieiev is Representative of Ukraine to the European Union

since June 2010. He is advisor to the President of Ukraine – Commissioner

of Ukraine for Foreign Policy and Integration Processes since May 2013.

Mr. Yelisieiev acted as head and Commissioner of the Ukrainian dele￾gation to the negotiations with the EU on the Association Agreement.

From October 2007 until June 2010 he occupied the office of Deputy

Minister for Foreign Affairs of Ukraine. Mr. Yelisieiev holds the diplomatic

rank of Ambassador Extraordinary and Plenipotentiary.

xiv Notes on contributors