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): http://www.rug.nl/research/portal. For technical reasons the number of authors shown on this cover page is limited to 10 maximum. Download date: 09-03-2019
Explaining Legal Transplants Transplantation of EU Law into Central Eastern Europe Beata Kviatek a
Explaining Legal Transplants Transplantation of EU Law into Central Eastern Europe Beata Kviatek ISBN: 9789462402249 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 313 5060 AH Oisterwijk The Netherlands E-Mail: info@wolfpublishers.nl www.wolfpublishers.com 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
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
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
The great end of life is not knowledge but action Thomas Henry Huxley (1825-1895) Technical Education
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 1614. 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.
Explaining Legal Transplants Table of Contents Abstract...19 Summary...21 CHAPTER 1 INTRODUCTION....29 Chapter 1 Contents...30 1.1. Reasons for This Research...31 1.2. Conceptual Lenses & Interdisciplinarity...32 1.3. Research Objectives...32 1.4. The Research Question...33 1.5. How to Research?...33 1.5.1. Explanation Within Different Research Approaches...33 1.5.2. Key Attributes of (Modern) Critical Realism...35 1.5.3. Critical Realism for Development of Explanatory Theory...37 1.5.4. Methodological Considerations...38 1.5.5. Qualitative Comparative Analysis...40 1.6. 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...48 2.1. Introduction...49 2.2. Legal Transplants: the Origins...50 2.3. Watson s Approach for Comparative Scholarship...52 2.4. A Critique by Legrand: the Impossibility of Legal Transplants...55 2.5. Defending Legal Transplants...56 2.5.1. Watson s Reply to Legrand...56 2.5.2. Talking at Cross-Purposes or Playing a Straw-Man?...58 2.5.3. Weak and Strong Watson: an Attempt to Rehabilitate Watson...59 2.6. Legal Transplants Approach and a Social Theory of Law...60 9
Table of Contents 2.6.1. Watson s Claim on the Impossibility of a Social Theory of Law...60 2.6.2. A Critique on Watson s Claim on the Impossibility of Social Theory...60 2.7. The Legal Transplants Concept...62 2.7.1. Many Faces of Legal Transplants...62 2.7.2. Heuristic Assessment of Legal Transplants Metaphors...63 2.7.2.1. Medical Transplant...63 2.7.2.2. Botanical Transplant...64 2.7.3. Alternative Conceptions...65 2.8. From Concept to Model: a Review of Theorisations...68 2.8.1. Academic Suggestions on Conditions for Legal Transplantation...69 2.8.1.1. Watson: Indifference to Culture...69 2.8.1.2. Legrand: Cultural Engagement...70 2.8.1.3. Otto Kahn-Freund: Different Cultural Proximity of Rules...70 2.8.2. Empirical Scholarship on Conditions for Legal Transplantation...72 2.8.2.1. Milhaupt and Pistor: Legal Demand...72 2.8.2.2. Örücü: Post-Transposition Tuning...73 2.8.3. Interdisciplinary Suggestions...75 2.8.3.1. Cotterrell: Inspiration from Max Weber...75 2.8.3.2. Twining: Inspiration from Everett Rogers...76 2.9. Concluding Remarks...79 CHAPTER 3 ANALYSIS OF POLITICAL SCIENCE LITERATURE ON TRANSPLANTATION...83 Chapter 3 Contents...84 3.1. Introduction...85 3.2. The Variety of Studies on Transplantation...86 3.3. Analytical Review of Explanations...88 3.3.1. Diffusion Literature...88 3.3.2. Lesson Drawing...93 3.3.3. Social Learning...96 3.3.4. Policy Transfer...98 3.4. Concluding Remarks...101 10
Explaining Legal Transplants PART II...103 ANALYTICAL FRAMEWORK EMPIRICAL RESEARCH STRATEGY CHAPTER 4 ANALYTICAL FRAMEWORK FOR ANALYSIS OF LEGAL TRANSPLANTATION...105 Chapter 4 Content...106 4.1. Introduction: Developing the Analytical Framework...107 4.2. Defining Theoretical Assumptions...107 4.3. Process of Transfer Conditions...114 4.4. Object of Transfer Conditions...114 4.5. Recipient System Conditions...115 4.6. When Did Conditions Have the Effect?...120 4.7. The Classification of Conditions...121 CHAPTER 5 RESEARCH STRATEGY FOR EMPIRICAL INVESTIGATION & SELECTION OF CASE STUDIES...125 Chapter 5 Content...126 5.1. Research Strategy for Empirical Investigation...127 5.1.1. Criteria for Choosing the Empirical Research Strategy...127 5.1.3. Case Study as an Empirical Research Strategy...129 5.1.4. The Explanatory Case Study Research Strategy...131 5.1.5. Research Designs for Empirical Case Studies...132 5.1.6. The Mode of Analysis...134 5.1.7. The Rigour of the Case Study...136 5.2. Selection of Cases...138 5.2.1. Introduction...138 5.2.2. The Logic of Selection of Cases for Investigation and Comparison...138 5.2.3. Five Arguments for Focusing on Competition Policy...140 5.2.4. Criteria for Defining Subgroups of Countries...141 5.2.5. Selection of Country Cases for Investigation...143 5.2.6. Preliminary External Comparison of Poland and Lithuania...146 5.2.6.1. Differences in Past (Soviet) Experience...146 5.2.6.2. Differences in the Method of Economic Transition...148 5.2.6.3. Differences in Socio-Economic Structure and Institutional Setting...148 11
Table of Contents 5.2.6.4. Differences in Political System...149 5.2.6.5. Differences in Legal Culture...151 5.2.6.6. Differences in Integration to the European Union...153 PART III...155 EMPIRICAL CASE STUDIES AND ANALYSIS OF FINDINGS CHAPTER 6 THE PROCESS OF TRANSFER...157 Chapter 6 Contents...158 6.1. Introduction...159 6.2. Transplantation of Law and the EU Enlargement...160 6.2.1. The Early Period...160 6.2.1.1. The European Unresponsiveness and Aloofness...160 6.2.1.2. The First Trade and Co-operation Agreements...161 6.2.1.3. The Start of the PHARE Programme and EBRD...162 6.2.1.4. The Europe Agreements...163 6.2.2. Pre-Accession...165 6.2.2.1. Copenhagen Criteria and Other Membership Conditions...165 6.2.2.2. The Pre-Accession Strategy and Related Instruments...167 6.2.2.3. Commission s Questionnaire and Opinions...169 6.2.3. Accession...171 6.2.3.1. Making Support More Effective...172 6.2.3.2. Assessing Progress...173 6.2.3.3. The Accession Negotiations...174 6.3. The Substance of Approximation Requirement...177 6.3.1. The Concept of Legal Approximation in the EU...177 6.3.2. The Legal Basis for the Approximation Requirement...180 6.3.3. Approximation Commitments Under the Europe Agreements...181 6.3.4. The Scope of Approximation...182 6.3.5. Approximation Rules...184 6.3.6. The Deadline for Bringing Inline National Legislation...185 6.3.7. Approximation After the Conclusion of the Accession Negotiations...185 6.3.8. The Approximation Requirement in the Field of Competition Policy...187 12
Explaining Legal Transplants 6.4. Conclusion...189 6.4.1. The EU Enlargement Policy and the System of Support and Control...190 6.4.2. The EU Approximation Requirement...192 CHAPTER 7 THE OBJECT OF TRANSFER: EU COMPETITION POLICY...195 Chapter 7 Contents...196 7.1. Introduction...197 7.2. Competition Policy Provisions in Europe Agreements...197 7.3. Competition Policy Provisions in the White Paper...198 7.4. EU Competition Policy and State Aid Control...200 7.4.1. The Origins and Main Features...200 7.4.2. Role and Objectives...201 7.4.3. Areas of Implementation: Common vs. National Interests...202 7.4.4. Relationship Between EU law and National Competition Laws...204 7.5. EU Competition Policy in the Period of Transfer...205 7.6. EU Competition Policy as the Object of Transfer...208 CHAPTER 8 TRANSPLANTATION TO POLAND...213 Chapter 8 Contents...214 8.1. Introduction...215 8.2. Integration to the EU and Legal Approximation...216 8.2.1. The Early Period...216 8.2.1.1. Overview of Political and Economic Relations...216 8.2.1.2. First Institutional Arrangements...217 8.2.1.3. Early Approximation Steps...218 8.2.2. Pre-Accession...219 8.2.2.1. Development of Institutions for Integration...220 8.2.2.2. The Governmental Action for Approximation...221 8.2.2.3. The Legislative Process...223 8.2.3. Accession...225 8.2.3.1. Further Development of Institutions...226 8.2.3.2. The Governmental Action for Approximation...227 8.2.3.3. The Legislative Process...232 13
Table of Contents 8.3. Polish Competition Law Before Transplantation...233 8.3.1. Competition Policy...233 8.3.2. State Aid...236 8.4. The Approximation Commitment in the Field of Competition...237 8.4.1. Competition Policy Provisions in the Europe Agreement...237 8.4.2. The Approximation Requirement for Competition Policy...239 8.4.3. Discourse on the Approximation Requirement...240 8.4.4. Discourse on the Scope of Approximation...243 8.4.5. The Problem of Making References to the Acquis Communautaire...245 8.5. What Was Transplanted in the Field of Competition Policy?...247 8.5.1. Pre-Accession...247 8.5.1.1. Institutions...247 8.5.1.2. Competition Policy...249 8.5.1.3. State Aid...251 8.5.2. Accession...252 8.5.2.1. Institutions...252 8.5.2.2. Competition Policy...254 8.5.2.3. State Aid...255 8.6. What Conditions Were Important?...258 8.6.1. The Early Period...259 8.6.2. Pre-Accession...263 8.6.3. Accession...267 CHAPTER 9 TRANSPLANTATION TO LITHUANIA...269 Chapter 9 Contents...270 9.1. Introduction...271 9.2. Integration to the EU and Legal Approximation...272 9.2.1. The Early Period...272 9.2.1.1. Overview of Political And Economic Relations...272 9.2.1.2. First Institutional Arrangements...274 9.2.1.3. The Early Approximation Steps...275 9.2.2. Pre-Accession...276 9.2.2.1. Setting up the Institutions for Integration...276 14
Explaining Legal Transplants 9.2.2.2. The Governmental Action for Approximation...278 9.2.2.3. Approximation Activities...280 9.2.2.4. The Legislative Process...281 9.2.3. Accession...285 9.2.3.1. Further Development of Institutions...286 9.2.3.2. The Governmental Action for Approximation...289 9.2.3.3. The Legislative Process...296 9.3. Situation Prior to the Start of Transplantation of the Acquis...299 9.3.1. Lithuania s Economy During the Soviet Time...299 9.3.2. Re-Establishment of the Independent State...300 9.3.3. Development of National Governance Structures...301 9.3.4. Economic Reforms and the Development of Competition Policy...302 9.4. The Approximation Commitment in the Field of Competition...304 9.4.1. Competition Policy Provisions in the Europe Agreement...304 9.4.2. The Approximation Requirement for Competition Policy...306 9.4.3. Discourses on the Approximation Commitment...307 9.4.3.1. The Essence of the Approximation Requirement...307 9.4.3.2. The Issue of Direct Applicability and Direct Effect...308 9.4.3.3. The Scope of the Approximation Commitment...308 9.4.4. The Issue of Economic Suitability of EU Law...309 9.4.5. The Position of the Treaty Within the Lithuanian Legal System...309 9.4.6. The Legal Issues of the Treaty s Implementation...312 9.4.7. The Problem of Making References to the Acquis Communautaire...312 9.5. What Was Transplanted in the Field of Competition Policy?...316 9.5.1. Pre-Accession...316 9.5.1.1. Institutions...316 9.5.1.2. Competition Policy...317 9.5.1.3. State Aid...318 9.5.2. Accession...319 9.5.2.1. Institutions...320 9.5.2.2. Competition Policy...321 9.5.2.3. State Aid...324 9.6. What Conditions Were Important?...325 9.6.1. The Early Period...325 15
Table of Contents 9.6.2. Pre-Accession...327 9.6.3. Accession...330 PART IV...333 FINAL CONCLUSIONS...333 CHAPTER 10 TRANSPLANTATION TO POLAND AND LITHUANIA COMPARED: ESTABLISHING DIFFERENCES...335 Chapter 10 Contents...336 10.1. Introduction...337 10.2. Development of Relationships with the European Union...339 10.3. Development of National Coordination Institutions...343 10.4. Development of Approximation Activities...352 10.4.1. Organisation of Approximation Activities...352 10.4.2. Amendments to the Legislative Process...355 10.5. Development of National Discourses on Approximation...361 10.5.1. Discourse on Approximation Commitment...361 10.5.2. Discourse on the Scope of Approximation...362 10.5.3. Official Clarifications on the Need for Approximation...363 10.5.4. Practice and Perceptions in Making References to EU law...364 10.6. Concluding Remarks...365 CHAPTER 11 THE CASE OF EU COMPETITION POLICY AND STATE AID CONTROL: TRANSPLANTATION TO POLAND AND LITHUANIA COMPARED...367 Chapter 11 Contents...368 11.1. Introduction...369 11.2. The Object of Transfer Conditions...370 11.3. The Approximation Requirement in the Field of Competition Policy...373 11.4. Development of Competition Policy in Lithuania and Poland...375 11.5. Development of State Aid Control in Lithuania and Poland...380 11.6. A Comparison of Sets of Necessary Conditions That Shaped the Transplantation of EU Competition Policy and State Aid Control in Lithuania and Poland...382 11.6.1. The Early Period...382 11.6.2. Pre-Accession...384 16
Explaining Legal Transplants 11.6.3. Accession...387 11.7. Concluding Remarks...389 CHAPTER 12 THEORISING AND EXPLAINING TRANSPLANTATION OF EU LAW TO ASPIRANT COUNTRIES: LEARNING FROM THE CASES OF LITHUANIA AND POLAND...393 Chapter 12 Contents...394 12.1. Introduction...395 12.2. The Decisive Events and the Necessary Conditions...396 12.2.1. The Process of Transfer Related Conditions...396 12.2.1.1. The Approximation Requirement...396 12.2.1.2. The EU System of Control and Support...397 12.2.2. The Decisive Events for the Legal Transplantation Process...397 12.2.3. The Necessary Conditions in Explaining the Legal Approximation...398 12.2.3.1. The National Approximation Commitment...398 12.2.3.2. Participation in the Accession Partnerships...399 12.3. The Deviant Case of Lithuania...400 12.4. The Main Causes...403 12.4.1. Problems of Understanding & Communication...403 12.4.1.1. Confusion About the Essence of the Approximation Requirement...403 12.4.1.2. Vague Formulation of the Approximation Requirement...404 12.4.1.3. The Missing Remedy: National Reasoning for the Need to Approximate...405 12.4.2. Real and Perceived Legal Issues...406 12.4.2.1. The Problem of International Treaties in the National Law...406 12.4.2.2. (Mis)Perception About Making References to EU law...407 12.4.3. Shortcomings of Organisational Structure...408 12.4.3.1. (Mis)coordination of Integration and Approximation...408 12.4.3.2. Organisation of Approximation Activities...409 12.4.3.3. Adjustment to the Legislative Process...409 12.4.3.4. The General Lack of Public Administration Experience...410 12.4.4. The Stress of Accession: Time-Pressure, Workload, and Trade-Offs...411 12.5. Final Conclusion...413 17
Table of Contents BIBLIOGRAPHY...418 Primary Sources...418 Cases...418 Legislation...419 Secondary Sources...432 18
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