The EU as a Global Regulator for Environmental Protection: A Legitimacy Perspective

Ioanna Hadjiyianni’s book makes a timely and systematic contribution to the study of the EU’s global regulatory power, through the analysis of the legitimacy challenges posed by internal environmental measures with extraterritorial implications (IEMEIs). The book carefully maps and analyses the EU’s use of IEMEIs, puts forward an original legitimacy framework in order to characterise the legitimacy gaps they entail, and assesses the role of both EU and WTO law in addressing them.

IEMEIs are an increasingly wide-spread expression of the EU’s global regulatory power. By conditioning access to the EU market to the respect of given environmental requirements, they exploit the EU’s market power to address global environmental issues, with the effect of influencing processes, conducts, and regulatory approaches abroad. The author clearly shows that, while representing a novel and promising approach to address transboundary and polycentric environmental issues, IEMEIs also present several elements of ambiguity, in particular with regard to their legitimacy vis-á-vis third country actors. On the one hand, the EU’s actions as a ‘green leader’ might mask a protectionist agenda; on the other hand, being unilateral, internal measures, IEMEIs might result in the externalisation of the costs of dealing with environmental problems towards other, often developing, countries. A further layer of complexity is represented by the fact that IEMEIs operate at the intersection of multiple legal regimes (EU law, public international law, WTO law, and national law), which all contribute to shaping their operation.

In order to expound the legitimacy challenges posed by IEMEIs and to assess if and to what extent law can contribute to addressing them, the book adopts a tripartite (descriptive, normative, and doctrinal) approach.

Part I first identifies and characterises the object of inquiry, offering an account of the different types of IEMEIs and of the regulatory mechanisms through which they operate. It then develops the normative framework within which the legitimacy challenges presented by IEMEIs are embedded. Building on a survey of legitimacy theories developed with regard to internal and global exercises of regulatory powers, Hadjiyianni sets out an original legitimacy framework capable of accounting for the peculiarities of IEMEIs. In particular, she detects and characterises three types of legitimacy gaps, defined in terms of accountability, representation, and justice (entailing both a procedural and a distributive dimension), and identifies common overarching norms and mechanisms which have the potential of addressing them (based on accountability, due process, justice, transparency, participation, procedural fairness and judicial review).

The core assumption tested by Hadjiyianni is that law can play a two-fold legitimising function with regard to the exercise of the EU’s global regulatory power through IEMEIs, which entails both an enabling and a constraining dimension. Law can legitimise it, by legally enabling and normatively justifying the adoption of IEMEIs, and can discipline it, by controlling and constraining its deployment. The book assesses, from a doctrinal standpoint, if and how such potential is realised in practice with regard to the previously described legitimacy gaps. In particular, it focuses on the two most relevant legal regimes at whose intersection IEMEIs operate: the EU’s, that is, the legal system in which IEMEIs originate (Part II), and the WTO’s, namely, the legal system governing the relations between the EU and its trade partners (Part III).

Through a careful analysis of the legal mechanisms and doctrines in place at both EU and WTO level, the author convincingly argues that law’s legitimising potential is best realised through a ‘double interplay’: not only between its enabling and constraining function, but also between the two legal regimes considered.

To conclude, the book offers a nuanced and comprehensive conceptualisation of IEMEIs. While acknowledging their potential as an emerging instrument of global environmental governance, it warns against the legitimacy-based pitfalls that might hinder their operation. Critically, Hadjiyianni shows that, while both enabling and constraining mechanisms are available, the latter are significantly less developed in practice. This ‘constraint deficit’ results, in particular, in a failure to address justice (and especially distributive justice)-related concerns, for example when developing countries and vulnerable groups are affected. Whether and how law could address such failure is the main question that the book leaves open for further research to investigate.

Marta Morvillo is a post-doctoral researcher at the Amsterdam Centre for European Law and Governance (University of Amsterdam). Her current research explores how constitutional principles can enhance the democratic legitimacy of expert-based decision-making in the EU.