Membership of the European Internal Market without being an EU Member State
Alfred E. Kellermann
Preface: Harmonization of legislation as a tool in shaping common spaces between Russia and the European Union The entire architecture of cooperation between Russia and the EU should be changed in the future. The implementation of road map or road maps currently going through adjustment and intended to provide for the establishment of the four common spaces will be of pivotal significance for the development of relations between the parties. These spaces include common European economic space, common space of freedom, security and justice, common space of external security and common space of research and education including culture.
However, to achieve this goal and make the common spaces operational, one needs a solid foundation of comparable laws and similar law application practices within the European Union and Russia. That can be accomplished through approximation and harmonization of rules up to the point of enabling all legal subjects in the EU and Russia, individuals, legal entities and public interest actors alike, to act within a friendly and homogenous legal framework.
Until recently, law harmonization concepts have not been developed seriously in Russia. Common approach to stock-taking of the harmonization phenomenon is missing. The same is true for both our legal science and political science. As a rule, Russian authors view law harmonization from the angle of correlation between international and national law and between implementation models for international law provisions within the legal systems of individual states. In this context, they identify the following adjustment schemes between international and national law: transformation, reception, incorporation and reference. In a more general sense harmonization is defined as removal of inconsistencies between the law of different levels in order to ensure a coherent nature of the national legal system.
The Western and Central European experts traditionally view approximation as one of the integration tools applied among other in building their common market of proven reliability and efficiency. Harmonization in a broader sense is thus construed either as establishment of prerequisites for the adoption and application by competent authorities in different countries of laws with similar effect on the recipients, or reduction of regulatory differences, or joint evolution of two or more countries towards shared standards of conduct and legal means to provide for them. The notion of harmonization is most often used with pragmatic purposes to better describe processes pursuing the shaping of a homogenous cross-border legal framework between the member-states of European integration associations with a view to full or partial inclusion of the third countries into it. As they are offering such view on harmonization, these experts for the most part issue from the needs and requirements of the European Communities and the experience made available through the years of their functioning.
Naturally, while discussing the use of law harmonization tools to create common spaces between EU and Russia, one should take account of the particular situation. For Russia, the EU law acts as an external legal system with no hierarchical differences between it and legal systems of the Member-States. Harmonization therefore is interpreted as convergence, i.e. mutual advance towards a certain desirable legal reality. For the EU countries, acquis communautaire is supranational. It is viewed as an end product of the convergence process also offered for external consumption. The harmonization of the EU law with the legal systems of third countries is thus interpreted as its reception by their legal systems.
These differences in approach entail the need for a study and application of the widest possible range of harmonization schemes. A demand for different selections thereof may arise depending on the codification level, maturity and practicability of laws governing selected areas of relations within the society, their maturity and the presence of international standards to be complied with by both EU and Russia’s legal systems and, finally, the properties of the regulated subject. Besides, the choice of scheme is affected by the significance of the respective regulated area in terms of securing the quality of life, social peace, national sovereignty and security, the interests of domestic producers, etc.
In the areas where the EU law is most advanced, while the Russian one has been virtually missing because of the comparatively recent choice in favor of the free market, the reception of the EU law would prove to be useful. That should certainly be done with due regard to national distinctions, requirements and traditions. In the areas where Russian law has been rapidly developing over the recent years, one might consider its fine-tuning and testing of its compliance with the EU rules. In other fields one of the most effective forms of the harmonization of laws between Russia and EU should be contractual unification and approximation of regulatory framework: establishment of common rules through international treaties, subject to incorporation in the country’s legal system, concluded to overcome differences in regulating the particular group of relations. Such international treaties could from time to time include self-executing rules. In other cases they may identify the framework of either proper conduct or future legal provisions, or a certain outcome, with methods and tools to achieve it left upon the discretion of the parties. Such kind of harmonization is especially promising in terms of creating a compatible legal environment (particularly, in criminal and civil law) for fighting terrorism, organized crime, illegal drugs and psychedelics trafficking, of narcotics and money laundering. It could well apply to controlling migration flows, providing legal assistance, cooperation of judiciary, police and border control authorities, mutual recognition and enforcement, introduction of visa-free regime, unification of customs rules and gradual transition to application of the four underlying freedoms of the common market to Russia-EU relations, etc.
Some experts believe that model norms and paralegal means of unified regulation are one of the possible ways of law harmonization between Russia and EU. Application of different regulatory documents developed especially for harmonization purposes would enable us to add extra value to jointly established common legal space by making it denser and richer. Without being, in substance, legal rules in the traditional sense, such regulation means would simplify and accelerate harmonization processes.
The ambitious task of building the common spaces requires a considerate and thorough approach to the choice of various harmonization forms. The study of the international experience of harmonization is therefore of special importance. The analysis of individual countries’ experience would be extremely useful here along with the research into the progress of harmonization in different fields of law and benchmarking of international, supranational, cross-border and national rules.
The present report opens series of RECEP publications on harmonization issues. Quite sensibly, the first one in line is dedicated to the analysis of the experience of Norway and Switzerland as countries living by the EU law and yet remaining outside the Communities; retaining their national distinctions and widely applying the entire spectrum of harmonization methods.
M.L. Entin,
RECEP Leading Expert,
Doctor of Legal Science, Professor of MGIMO University
Published on 12 Jan 2005
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