University of Groningen. Explaining Legal Transplants Kviatek, Beata

Transcription

1 University of Groningen Explaining Legal Transplants Kviatek, Beata IMPORTANT NOTE: You are advised to consult the publisher's version (publisher's PDF) if you wish to cite from it. Please check the document version below. Document Version Publisher's PDF, also known as Version of record Publication date: 2015 Link to publication in University of Groningen/UMCG research database Citation for published version (APA): Kviatek, B. (2015). Explaining Legal Transplants: Transplantation of EU Law into Central Eastern Europe. [Groningen]: University of Groningen. Copyright Other than for strictly personal use, it is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), unless the work is under an open content license (like Creative Commons). Take-down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. Downloaded from the University of Groningen/UMCG research database (Pure): For technical reasons the number of authors shown on this cover page is limited to 10 maximum. Download date:

2 Explaining Legal Transplants Transplantation of EU Law into Central Eastern Europe Beata Kviatek a

3 Explaining Legal Transplants Transplantation of EU Law into Central Eastern Europe Beata Kviatek ISBN: Cover design: Dariusz Kwiatek Cover image: Painting Stained Glass, tempera on paper (2015) by Barbara Kwiatek (eight years), Photo by Dariusz Kwiatek aolf Legal Publishers (WLP) Postbus AH Oisterwijk The Netherlands All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission of the publisher. Whilst the authors, editors and publisher have tried to ensure the accuracy of this publication, the publisher, authors and editors cannot accept responsibility for any errors, omissions, misstatements, or mistakes and accept no responsibility for the use of the information presented in this work. Beata Kviatek/WLP 2015

4 Explaining Legal Transplants Transplantation of EU Law into Central Eastern Europe Proefschrift ter verkrijging van de graad van doctor aan de Rijksuniversiteit Groningen op gezag van de rector magnificus prof. dr. E. Sterken en volgens besluit van het College voor Promoties. De openbare verdediging zal plaatsvinden op donderdag 21 mei 2015 om 12:45 uur door Beata Kviatek geboren op 15 september 1973 te Vilnius, Litouwen

5 Promotores Prof.mr.dr. J. H. Jans Prof. dr. J. de Ridder Beoordelingscommissie Prof. mr. E. F. Stamhuis Prof. dr. H. H.B. Vedder, LLM Prof. dr. R. Vilpišauskas

6 The great end of life is not knowledge but action Thomas Henry Huxley ( ) Technical Education

7

8 Acknowledgement This book was made possible because of the University Talent Grant that was provided to me by the Ubbo Emmius Fund, for which I am very grateful. It is the result of my research on legal transplants and socio-legal change at the Centre for Law, Administration and Society of the Faculty of Law at the University of Groningen, one of the best and oldest universities in Western Europe, founded as early as in I am also grateful for my former Alma Mater Universitas Vilnensis, Vilnius University, one of the oldest and most famous universities in Eastern and Central Europe, founded in 1579, and, especially, the Institute of International Relations and Political Science, which prepared me for the international academic career. I am most grateful to my two promotors, Professor Jacobus de Ridder and Professor Jan H. Jans, who offered the most valuable academic guidance and support during the whole process of writing. I will be missing intense intellectual conversations with Ko, during which we were discussing all possible issues in science and not only, forgetting the flow of time, the outside world, and risking to be locked by a security officer. I am exceptionally thankful to the first readers of this book, Professor Evert F. Stamhuis, Professor Hans H.B. Vedder, and Professor Ramūnas Vilpišauskas, who meticulously went through every sentence and reference of this lengthy work. I would like to thank my former colleagues at the Department of Constitutional Law, Administrative Law and Public Administration for their support and friendship. I remember with pleasure the long-lasting academic sessions carried every year in May or June on one of the most beautiful Dutch islands called Schiermonnikoog. We used to stay at the same, almost three hundred years old, Hotel van der Werff, which amazing history deserves a separate study. I am thankful to all research fellows of the Centre for Law, Administration and Society who shared their ideas during the inspirational research seminars on Legal Transplants, led by Professor Evert F. Stamhuis and Professor Jacobus de Ridder, as well as during enriching seminars on Law in Context with invited international legal scholars, led by Professor John Griffiths. I am especially thankful to my paranymphs Albertjan Tollenaar, my very best Dutch friend, and Hanna Tolsma, my very best Frisian friend, for their ultimate friendship and support. Finally, this book would have been impossible without unconditional and continuous support of my loved ones, for whom I dedicate this book: my dearest parents, who supported all my choices, including the one when I decided to switch to social sciences after studying architecture in the most prestigious Vilnius Academy of Arts, and the one when I decided leave my native Lithuania in order to pursue research in Groningen; my dear children, whose greatest love gives me so much strength; and my dear husband, my real mate in life.

9

10 Explaining Legal Transplants Table of Contents Abstract...19 Summary...21 CHAPTER 1 INTRODUCTION Chapter 1 Contents Reasons for This Research Conceptual Lenses & Interdisciplinarity Research Objectives The Research Question How to Research? Explanation Within Different Research Approaches Key Attributes of (Modern) Critical Realism Critical Realism for Development of Explanatory Theory Methodological Considerations Qualitative Comparative Analysis Research Strategy: Overview of Main Phases...41 PART I...45 ANALYSIS OF EXISTENT KNOWLEDGE ON LEGAL TRANSPLANTS CHAPTER 2 ANALYSIS OF LEGAL SCHOLARSHIP ON LEGAL TRANSPLANTS...47 Chapter 2 Contents Introduction Legal Transplants: the Origins Watson s Approach for Comparative Scholarship A Critique by Legrand: the Impossibility of Legal Transplants Defending Legal Transplants Watson s Reply to Legrand Talking at Cross-Purposes or Playing a Straw-Man? Weak and Strong Watson: an Attempt to Rehabilitate Watson Legal Transplants Approach and a Social Theory of Law

11 Table of Contents Watson s Claim on the Impossibility of a Social Theory of Law A Critique on Watson s Claim on the Impossibility of Social Theory The Legal Transplants Concept Many Faces of Legal Transplants Heuristic Assessment of Legal Transplants Metaphors Medical Transplant Botanical Transplant Alternative Conceptions From Concept to Model: a Review of Theorisations Academic Suggestions on Conditions for Legal Transplantation Watson: Indifference to Culture Legrand: Cultural Engagement Otto Kahn-Freund: Different Cultural Proximity of Rules Empirical Scholarship on Conditions for Legal Transplantation Milhaupt and Pistor: Legal Demand Örücü: Post-Transposition Tuning Interdisciplinary Suggestions Cotterrell: Inspiration from Max Weber Twining: Inspiration from Everett Rogers Concluding Remarks...79 CHAPTER 3 ANALYSIS OF POLITICAL SCIENCE LITERATURE ON TRANSPLANTATION...83 Chapter 3 Contents Introduction The Variety of Studies on Transplantation Analytical Review of Explanations Diffusion Literature Lesson Drawing Social Learning Policy Transfer Concluding Remarks

12 Explaining Legal Transplants PART II ANALYTICAL FRAMEWORK EMPIRICAL RESEARCH STRATEGY CHAPTER 4 ANALYTICAL FRAMEWORK FOR ANALYSIS OF LEGAL TRANSPLANTATION Chapter 4 Content Introduction: Developing the Analytical Framework Defining Theoretical Assumptions Process of Transfer Conditions Object of Transfer Conditions Recipient System Conditions When Did Conditions Have the Effect? The Classification of Conditions CHAPTER 5 RESEARCH STRATEGY FOR EMPIRICAL INVESTIGATION & SELECTION OF CASE STUDIES Chapter 5 Content Research Strategy for Empirical Investigation Criteria for Choosing the Empirical Research Strategy Case Study as an Empirical Research Strategy The Explanatory Case Study Research Strategy Research Designs for Empirical Case Studies The Mode of Analysis The Rigour of the Case Study Selection of Cases Introduction The Logic of Selection of Cases for Investigation and Comparison Five Arguments for Focusing on Competition Policy Criteria for Defining Subgroups of Countries Selection of Country Cases for Investigation Preliminary External Comparison of Poland and Lithuania Differences in Past (Soviet) Experience Differences in the Method of Economic Transition Differences in Socio-Economic Structure and Institutional Setting

13 Table of Contents Differences in Political System Differences in Legal Culture Differences in Integration to the European Union PART III EMPIRICAL CASE STUDIES AND ANALYSIS OF FINDINGS CHAPTER 6 THE PROCESS OF TRANSFER Chapter 6 Contents Introduction Transplantation of Law and the EU Enlargement The Early Period The European Unresponsiveness and Aloofness The First Trade and Co-operation Agreements The Start of the PHARE Programme and EBRD The Europe Agreements Pre-Accession Copenhagen Criteria and Other Membership Conditions The Pre-Accession Strategy and Related Instruments Commission s Questionnaire and Opinions Accession Making Support More Effective Assessing Progress The Accession Negotiations The Substance of Approximation Requirement The Concept of Legal Approximation in the EU The Legal Basis for the Approximation Requirement Approximation Commitments Under the Europe Agreements The Scope of Approximation Approximation Rules The Deadline for Bringing Inline National Legislation Approximation After the Conclusion of the Accession Negotiations The Approximation Requirement in the Field of Competition Policy

14 Explaining Legal Transplants 6.4. Conclusion The EU Enlargement Policy and the System of Support and Control The EU Approximation Requirement CHAPTER 7 THE OBJECT OF TRANSFER: EU COMPETITION POLICY Chapter 7 Contents Introduction Competition Policy Provisions in Europe Agreements Competition Policy Provisions in the White Paper EU Competition Policy and State Aid Control The Origins and Main Features Role and Objectives Areas of Implementation: Common vs. National Interests Relationship Between EU law and National Competition Laws EU Competition Policy in the Period of Transfer EU Competition Policy as the Object of Transfer CHAPTER 8 TRANSPLANTATION TO POLAND Chapter 8 Contents Introduction Integration to the EU and Legal Approximation The Early Period Overview of Political and Economic Relations First Institutional Arrangements Early Approximation Steps Pre-Accession Development of Institutions for Integration The Governmental Action for Approximation The Legislative Process Accession Further Development of Institutions The Governmental Action for Approximation The Legislative Process

15 Table of Contents 8.3. Polish Competition Law Before Transplantation Competition Policy State Aid The Approximation Commitment in the Field of Competition Competition Policy Provisions in the Europe Agreement The Approximation Requirement for Competition Policy Discourse on the Approximation Requirement Discourse on the Scope of Approximation The Problem of Making References to the Acquis Communautaire What Was Transplanted in the Field of Competition Policy? Pre-Accession Institutions Competition Policy State Aid Accession Institutions Competition Policy State Aid What Conditions Were Important? The Early Period Pre-Accession Accession CHAPTER 9 TRANSPLANTATION TO LITHUANIA Chapter 9 Contents Introduction Integration to the EU and Legal Approximation The Early Period Overview of Political And Economic Relations First Institutional Arrangements The Early Approximation Steps Pre-Accession Setting up the Institutions for Integration

16 Explaining Legal Transplants The Governmental Action for Approximation Approximation Activities The Legislative Process Accession Further Development of Institutions The Governmental Action for Approximation The Legislative Process Situation Prior to the Start of Transplantation of the Acquis Lithuania s Economy During the Soviet Time Re-Establishment of the Independent State Development of National Governance Structures Economic Reforms and the Development of Competition Policy The Approximation Commitment in the Field of Competition Competition Policy Provisions in the Europe Agreement The Approximation Requirement for Competition Policy Discourses on the Approximation Commitment The Essence of the Approximation Requirement The Issue of Direct Applicability and Direct Effect The Scope of the Approximation Commitment The Issue of Economic Suitability of EU Law The Position of the Treaty Within the Lithuanian Legal System The Legal Issues of the Treaty s Implementation The Problem of Making References to the Acquis Communautaire What Was Transplanted in the Field of Competition Policy? Pre-Accession Institutions Competition Policy State Aid Accession Institutions Competition Policy State Aid What Conditions Were Important? The Early Period

17 Table of Contents Pre-Accession Accession PART IV FINAL CONCLUSIONS CHAPTER 10 TRANSPLANTATION TO POLAND AND LITHUANIA COMPARED: ESTABLISHING DIFFERENCES Chapter 10 Contents Introduction Development of Relationships with the European Union Development of National Coordination Institutions Development of Approximation Activities Organisation of Approximation Activities Amendments to the Legislative Process Development of National Discourses on Approximation Discourse on Approximation Commitment Discourse on the Scope of Approximation Official Clarifications on the Need for Approximation Practice and Perceptions in Making References to EU law Concluding Remarks CHAPTER 11 THE CASE OF EU COMPETITION POLICY AND STATE AID CONTROL: TRANSPLANTATION TO POLAND AND LITHUANIA COMPARED Chapter 11 Contents Introduction The Object of Transfer Conditions The Approximation Requirement in the Field of Competition Policy Development of Competition Policy in Lithuania and Poland Development of State Aid Control in Lithuania and Poland A Comparison of Sets of Necessary Conditions That Shaped the Transplantation of EU Competition Policy and State Aid Control in Lithuania and Poland The Early Period Pre-Accession

18 Explaining Legal Transplants Accession Concluding Remarks CHAPTER 12 THEORISING AND EXPLAINING TRANSPLANTATION OF EU LAW TO ASPIRANT COUNTRIES: LEARNING FROM THE CASES OF LITHUANIA AND POLAND Chapter 12 Contents Introduction The Decisive Events and the Necessary Conditions The Process of Transfer Related Conditions The Approximation Requirement The EU System of Control and Support The Decisive Events for the Legal Transplantation Process The Necessary Conditions in Explaining the Legal Approximation The National Approximation Commitment Participation in the Accession Partnerships The Deviant Case of Lithuania The Main Causes Problems of Understanding & Communication Confusion About the Essence of the Approximation Requirement Vague Formulation of the Approximation Requirement The Missing Remedy: National Reasoning for the Need to Approximate Real and Perceived Legal Issues The Problem of International Treaties in the National Law (Mis)Perception About Making References to EU law Shortcomings of Organisational Structure (Mis)coordination of Integration and Approximation Organisation of Approximation Activities Adjustment to the Legislative Process The General Lack of Public Administration Experience The Stress of Accession: Time-Pressure, Workload, and Trade-Offs Final Conclusion

19 Table of Contents BIBLIOGRAPHY Primary Sources Cases Legislation Secondary Sources

20 Explaining Legal Transplants Abstract What conditions drive or impede the transfer and reception of laws and how? In other words, what is the social explanation of legal transplantation one of the most common forms of legal change? The answers to these questions are important not only for social and legal scholars, but also for designers of legal reforms. This book presents an interdisciplinary attempt to explain the legal transplantation process by identifying conditions that shaped transplantation of EU regulatory rules to Central Eastern Europe. Based on a critical review of the existent knowledge about legal transplantation and similar phenomena (policy transfer, social learning, lesson drawing, and diffusion), the author develops an analytical framework, which aids in distinguishing the legal transplantation shaping conditions. The research includes case studies on the object of transfer, the process of transplantation, and two recipient countries - Lithuania and Poland. Using a comparative method, the author establishes the determining importance of institutional conditions, such as organisation of approximation activities, as well as ideational conditions, such as development of national discourses on the need and scope of legal approximation. Differently, structural and psychological conditions, often identified in the literature as determining the course and outcome of legal transplantation, appeared to be secondary. Indeed, in Lithuania, a deficient organisation of approximation activities, in combination with political-administrative instability, and the weak national argument for early adoption of acquis, impeded the general process of legal approximation, despite the presence of strong external and internal political incentives. The accumulated delay in approximation of national legislation, together with the growing pressure for being on time, resulted in the erection of Potemkin villages. However, in the field of competition policy and state aid control, different sets of institutional and ideational conditions to those in the general process were established. Here the main impediments in the approximation process were caused by activities of interest groups and state s protectionism. It is concluded that legal transplantation phenomena are better explained by arguments relying on institutional and ideational logic, rather than on structural or psychological. 19

21