POMFR Book review: Anu Bradford, The Brussels Effect: how the European Union rules the world (OUP 2020)
In the ‘Brussels Effect: how the European Union rules the world’ Bradford described how EU regulations impact standards around the world through the process of unilateral regulatory globalization. The book develops on from Bradford’s highly influential earlier article.
‘Territorial extension’ is described by Scott as the practice of enabling the EU ‘to govern activities that are not centered upon the territory of the EU and to shape the focus and content of third country and international law.’ I have described ‘rule-transfer’ as ‘a means or process by which EU legal rules are adopted in third country legal orders’ and showed how EU rules move and are adopted abroad.
There is a significant challenge in formulating EU global action in law and its effects. Many authors diverge on its precise delineation as a subject field and also as a methodological question. The EU is not a unified or homogenous global actor. This is particularly the case with respect to some of the most complex topics of global governance such as migration, data, the environment and financial services, where the EU seeks to have global effects and lead global change despite, among other things, asymmetric competence or weak institutional formulations. The precise movement of EU rules beyond borders is also highly contested as an idea across disciplines.
Bradford’s account of the Brussels Effect is structured into three sections: I, theory, II, casestudies and III assessment as to whether it is beneficial (ch. 8) and its future (ch. 9). The casestudies traverse market competition, digital economy, consumer health and safety and the environment.
One of the most important chapters is Ch. 1, where Bradford outlines the Evolution of the EU as a global regulatory power using the Brussels effect. The Brussels Effect is underpinned by five elements- market size, regulatory capacity, stringent standards, inelastic targets and non-divisibility. I would contend that none of this is entirely robust or irrefutably scientific- but this does not somehow detract from its force as a compelling narrative of law, politics and power. International organisations that the EU is party to or seeks to join etc and next generation trade agreements of the EU (eg with regulatory cooperation) are not carefully inbuilt into the argument. However, ultimately, Bradford’s account is deservedly famous because of the tone thereof, not accepting its crisis dimensions of EU actions or inactions or omissions or incompleteness to be dominant as its narrative.
Arguably, the Brussels Effect has two major features, firstly, a narrative of law, politics and power which is compelling and highly accessible and secondly, as Bradford herself suggested was required, a positive narrative on the EU globally, which despite its many challenges, complex formulations, unusual institutions and shifting is arguably highly successful global power.
In Ch. 5 as to the digital economy (ch. 5) Bradford shows how social media tech giants in the US of EU law principles, from hate speech to the GDPR. She engages in an interesting reflection albeit inconclusive reflection on why the Brussels Effect and China are a difficult fit, i.e. where China takes ostensibly much EU law e.g. GDPR or has started to acknowledge the right to be forgotten. China arguably constitutes a complex casestudy because of the place of institutions, enforcement and the complexity of its market economy as to the State.
Ch. 8 has a thoughtful account of whether the Brussels Effect is ‘beneficial’ and engages in some important reflections on whether EU rules are protectionist. She has an interesting reply to this relying upon extensive empirical work as to EU competition enforcement, particularly where she shows how many US companies are the winners of cases where complaints are filed with the Commission (p. 243). There are rich discussions by Bradford on whether the Brussels Effect amounts to regulatory imperialism (countering the work on Zielonka), arguing how the EU’s role in climate change serves as a good benevolent example thereof. She also has an interesting taxonomy of foreign governments responses to the Brussels Effect and what can be done, focussing upon the US, using the example of age-long disputes between the EU and US before the WTO (p. 258), although it (the US) is hardly the conventional example and it remains to be seen if this is a realistic view thereof beyond the US as the EU develops more trade defence instruments and a more evolved view of a less than liberal global trading order.
There are significant challenges ahead for the Brussels Effect written pre-COVID-19, where China (in particular in Ch. 9) and Brexit were some of the key issues raised. Will a Beijing Effect replace the Brussels effect she asks? Not yet, is her response, where China seems unlikely to become a source of global regulatory standards anytime soon, where its regulatory capacity and willingness to elevate the protection of consumers and the environment in pursuit of economic growth is not increasing at the same rate of its GDP. One of the most blind spots for EU law and the Brussels effect is arguably Brexit- and vice versa- if EU law has such reach and effects, why not just retain it? Perhaps for many this will remain a mystery of Brexit rather than the Brussels Effect- for now.
Ultimately, it is the clarity, simplicity and novelty of expressing a contrarian view- that the crisis ridden Euro-saddled EU could be a superpower if viewed through its laws. It is noticeably cited with much praise by the former Ambassador to the EU Anthony Gardner in his new book Stars with Stripes (Palgrave, 2020). This says a lot about the force of EU rules across the transatlantic and the nature of the power of EU laws- timidly framed- that are accepted by so many- from Bradford’s manifold examples to Facebook and foreign diplomats.