Yale European Graduate Fellows Conference Journal 2022

PublishedbytheEuropeanStudiesCouncilatthe

PublishedbytheEuropeanStudiesCouncilatthe

Whitney&BettyMacMillanCenterforInternational&AreaStudies Whitney&BettyMacMillanCenterforInternational&AreaStudies ofYaleUniversity ofYaleUniversity

Overview Overview

Youngresearchersfromaroundtheworldgatheredforthe3rdannualEuropeanStudiesGraduate Youngresearchersfromaroundtheworldgatheredforthe3rdannualEuropeanStudiesGraduate Fellowsconferencetoexploresomeofthemostcriticalsocial,political,economic,andculturalconcerns Fellowsconferencetoexploresomeofthemostcriticalsocial,political,economic,andculturalconcerns cconfrontingEuropetoday.Theconferencewasorganizedbyagraduatestudentorganizingcommittee onfrontingEuropetoday.Theconferencewasorganizedbyagraduatestudentorganizingcommittee aandhostedbytheEuropeanStudiesCouncilatYaleUniversity'sMacMillanCenter.Theconference, ndhostedbytheEuropeanStudiesCouncilatYaleUniversity'sMacMillanCenter.Theconference, tthemed"EuropeataCrossroadsofthePastandFuture,"wastheresultofayear-longjointeffortthat hemed"EuropeataCrossroadsofthePastandFuture,"wastheresultofayear-longjointeffortthat brought together 34 graduate students and academics from 25 universities across the world. brought together 34 graduate students and academics from 25 universities across the world. Throughoutthetwo-dayvirtualseries,presentersprovidedtheirmultidisciplinaryperspectivesonthe Throughoutthetwo-dayvirtualseries,presentersprovidedtheirmultidisciplinaryperspectivesonthe mostseriousproblemsnowconfrontingEurope,Russia,andEurasia.Russia'sfull-scalewaragainst mostseriousproblemsnowconfrontingEurope,Russia,andEurasia.Russia'sfull-scalewaragainst Ukraine,whichbeganinFebruary2022andbecamethebloodiestinEuropesincetheendofWorld Ukraine,whichbeganinFebruary2022andbecamethebloodiestinEuropesincetheendofWorld WarII,madetheplanningandexecutionoftheconferenceextraordinary.Thehighlightofthe WarII,madetheplanningandexecutionoftheconferenceextraordinary.Thehighlightofthe cconferencewasthekeynoteaddressbyMaryE.Sarotte,Marie-JoséeandHenryR.KravisDistinguished onferencewasthekeynoteaddressbyMaryE.Sarotte,Marie-JoséeandHenryR.KravisDistinguished ProfessorofHistoricalStudies(JohnsHopkinsSchoolofAdvancedInternationalStudies)titled ProfessorofHistoricalStudies(JohnsHopkinsSchoolofAdvancedInternationalStudies)titled ""NATO,Europe,andRussia." NATO,Europe,andRussia."

Currently,EuropeandEurasiaareenduringarguablythemostchallengingerasincetheendofWorld Currently,EuropeandEurasiaareenduringarguablythemostchallengingerasincetheendofWorld WarIIin1945.Therefore,conferencesanddiscussionssuchasthoseheldduringtheannualEuropean WarIIin1945.Therefore,conferencesanddiscussionssuchasthoseheldduringtheannualEuropean StudiesGraduateFellowsconferenceareavitalelementconsideringthecurrentcrisesinEuropefrom StudiesGraduateFellowsconferenceareavitalelementconsideringthecurrentcrisesinEuropefrom ttheviewpointsofdiverseacademicfields.Youngscholars,whowillshortlydeterminethefutureoftheir heviewpointsofdiverseacademicfields.Youngscholars,whowillshortlydeterminethefutureoftheir rrespectivefieldsand,indeed,ofEurope,mustbeprovidedwithampleopportunitiesforinteractionand espectivefieldsand,indeed,ofEurope,mustbeprovidedwithampleopportunitiesforinteractionand discussion. discussion.

ThisyearcelebratedthefourthanniversaryoftheEuropeanStudiesFellowsnetworkatYaleUniversity, ThisyearcelebratedthefourthanniversaryoftheEuropeanStudiesFellowsnetworkatYaleUniversity, aaneffortthathasfosteredagrowingcommunityofjuniorresearchersacrosstheinstitutionandnow neffortthathasfosteredagrowingcommunityofjuniorresearchersacrosstheinstitutionandnow iincludesoverninetystudents.Whilerecentglobaleventshaveunquestionablyalteredtheworldaswe ncludesoverninetystudents.Whilerecentglobaleventshaveunquestionablyalteredtheworldaswe knowit,wehopethatthisrecentconferencewillstimulatefutureinter-disciplinarycooperationand knowit,wehopethatthisrecentconferencewillstimulatefutureinter-disciplinarycooperationand ccooperativeresearchendeavorsonmodernEurope.Weappreciatetheparticipationofallpresentersand ooperativeresearchendeavorsonmodernEurope.Weappreciatetheparticipationofallpresentersand membersoftheInternationalAllianceforResearchUniversitiesinthisextremelyremarkableoccasion. membersoftheInternationalAllianceforResearchUniversitiesinthisextremelyremarkableoccasion.

With Withsincereappreciationtoalltheparticipantsoftheconferencefromthemembersofthethe sincereappreciationtoalltheparticipantsoftheconferencefromthemembersofthethe PlanningCommittee: PlanningCommittee:

Participants by Panels Participants by Panels

Roundtable on The Future of Climate Action in the EU Roundtable on The Future of Climate Action in the EU

The European Union (EU) finds itself at a crucial juncture with regard to climate change and The European Union (EU) finds itself at a crucial juncture with regard to climate change and climate policymaking. Recent EU legislation has established ambitious targets towards the climate policymaking. Recent EU legislation has established ambitious targets towards the lowering of greenhouse gas emissions most notably, a goal for the Union to become lowering of greenhouse gas emissions most notably, a goal for the Union to become climate-neutral by the year 2050. Such a target will require drastic shifts to EU society and climate-neutral by the year 2050 Such a target will require drastic shifts to EU society and demand competitive technological innovations to offset the Union’s current reliance on fossil demand competitive technological innovations to offset the Union’s current reliance on fossil fuels This panel hosts three climate scholars from different disciplines to participate in a fuels. This panel hosts three climate scholars from different disciplines to participate in a roundtable discussion and share their viewpoints on the challenges and opportunities facing roundtable discussion and share their viewpoints on the challenges and opportunities facing the EU as it moves towards its ambitious 2050 goal of climate-neutrality. There will be an the EU as it moves towards its ambitious 2050 goal of climate-neutrality. There will be an opportunity for the panelists to respond to questions from the audience. opportunity for the panelists to respond to questions from the audience.

Chair: Holly Harris Chair: Holly Harris

Holly Harris is a MA candidate in European & Russian Studies at Yale. She Holly Harris is a MA candidate in European & Russian Studies at Yale She completed her undergraduate studies at the University of Notre Dame where I completed her undergraduate studies at the University of Notre Dame where I double majored in Political Science and Spanish with a minor in Portuguese double majored in Political Science and Spanish with a minor in Portuguese and Brazilian Studies A combination of university coursework, study abroad and Brazilian Studies. A combination of university coursework, study abroad experiences in Germany and Spain, and internships at both the International experiences in Germany and Spain, and internships at both the International Rescue Committee and the U.S. Mission to the EU in Brussels, Belgium have Rescue Committee and the U.S. Mission to the EU in Brussels, Belgium have developed her curiosity about international affairs with a focus on the developed her curiosity about international affairs with a focus on the European Union. Her senior thesis discussed role of capital, immigration, and European Union Her senior thesis discussed role of capital, immigration, and political influence in forming public attitudes towards support for the European political influence in forming public attitudes towards support for the European Union in light of the Refugee Crisis of 2015 Her research interests at Yale Union in light of the Refugee Crisis of 2015. Her research interests at Yale center around EU policymaking, particularly as it relates to migration and center around EU policymaking, particularly as it relates to migration and immigrant integration immigrant integration.

Andrzej Ancygier Andrzej Ancygier

Andrzej Ancygier is a senior energy and climate policy analyst at Climate Andrzej Ancygier is a senior energy and climate policy analyst at Climate Analytics, a non-profit climate science and policy institute in Berlin He has a Analytics, a non-profit climate science and policy institute in Berlin. He has a particular focus on European energy and climate policy as well as transition particular focus on European energy and climate policy as well as transition towards a low-carbon economy and has been dealing with the European towards a low-carbon economy and has been dealing with the European energy and climate policy since 2008. He contributes to the Climate Action energy and climate policy since 2008 He contributes to the Climate Action Tracker by qualitative and quantitative assessment of climate policies of some Tracker by qualitative and quantitative assessment of climate policies of some of the biggest emitters, with the main focus on the EU As a political scientist, of the biggest emitters, with the main focus on the EU As a political scientist, his work also includes analyzing the impact of different policy instruments in his work also includes analyzing the impact of different policy instruments in the energy sectors on the CO2 emissions Before joining Climate Analytics, the energy sectors on the CO2 emissions. Before joining Climate Analytics, he was a Dahrendorf Research Fellow at the Hertie School of Governance, he was a Dahrendorf Research Fellow at the Hertie School of Governance, looking into the dynamics shaping Polish-German cooperation in the area of looking into the dynamics shaping Polish-German cooperation in the area of energy and climate. In addition, he has also been teaching about the EU energy and climate In addition, he has also been teaching about the EU environmental policy as well as social environmental movements at the Berlin environmental policy as well as social environmental movements at the Berlin subsidiary of the New York University and Freie Universität Berlin European subsidiary of the New York University and Freie Universität Berlin European Studies Program Ancygier studied international relations at the University of Studies Program. Ancygier studied international relations at the University of Wrocław in Poland and holds a PhD in political science from the Freie Wrocław in Poland and holds a PhD in political science from the Freie Universität in Berlin. Universität in Berlin.

Roundtable on The Future of Climate Action in the EU Roundtable on The Future of Climate Action in the EU

Danae Kyriakopoulou Danae Kyriakopoulou

Danae Kyriakopoulou is Senior Policy Fellow at the Grantham Research Danae Kyriakopoulou is Senior Policy Fellow at the Grantham Research Institute on Climate Change and the Environment at the London School of Institute on Climate Change and the Environment at the London School of Economics and Political Science. She leads the Institute’s policy work on Economics and Political Science She leads the Institute’s policy work on climate and economic development This includes the joint analysis and climate and economic development. This includes the joint analysis and engagement programme on international finance and climate action hosted engagement programme on international finance and climate action hosted by LSE and the Brookings Institution, and the World Bank Group and by LSE and the Brookings Institution, and the World Bank Group and International Monetary Fund High-Level Advisory Group (HLAG) on International Monetary Fund High-Level Advisory Group (HLAG) on Sustainable and Inclusive Recovery and Growth. She has held roles in Sustainable and Inclusive Recovery and Growth She has held roles in various sustainability industry initiatives including the Official Monetary and various sustainability industry initiatives including the Official Monetary and Financial Institution Forum (OMFIF), the Central Banks and Supervisors Financial Institution Forum (OMFIF), the Central Banks and Supervisors Network for Greening the Financial System (NGFS), the London Stock Network for Greening the Financial System (NGFS), the London Stock Exchange Group’s Future of Sustainable Data Alliance (FoSDA) and the Exchange Group’s Future of Sustainable Data Alliance (FoSDA) and the European Mortgage Federation’s Energy Efficiency Mortgages Initiative European Mortgage Federation’s Energy Efficiency Mortgages Initiative (EEMI). Previously, she was also Managing Economist at the Centre for (EEMI) Previously, she was also Managing Economist at the Centre for Economics and Business Research She has also served as Senior Economics and Business Research. She has also served as Senior Economic Adviser for Africa and Greater China for the Institute of Chartered Economic Adviser for Africa and Greater China for the Institute of Chartered Accountants in England and Wales, and as an Economist at the Bank of Accountants in England and Wales, and as an Economist at the Bank of Greece Kyriakopoulou holds a BA in Philosophy, Politics and Economics and Greece. Kyriakopoulou holds a BA in Philosophy, Politics and Economics and an MSc in Economics for Development from the University of Oxford. an MSc in Economics for Development from the University of Oxford.

Marco Siddi Marco Siddi

Marco Siddi is an assistant professor at the University of Cagliari in Italy, Marco Siddi is an assistant professor at the University of Cagliari in Italy, senior research fellow at the Finnish Institute of International Affairs, and senior research fellow at the Finnish Institute of International Affairs, and adjunct professor at both the University of Helsinki and Tampere University in adjunct professor at both the University of Helsinki and Tampere University in Finland He focuses primarily on EU-Russia relations, European energy and Finland He focuses primarily on EU-Russia relations, European energy and climate policy, and European identity and memory politics He has published climate policy, and European identity and memory politics. He has published in some of the most renowned peer-reviewed journals in his research field, in some of the most renowned peer-reviewed journals in his research field, including the Journal of European Public Policy, Geopolitics, Europe-Asia including the Journal of European Public Policy, Geopolitics, Europe-Asia Studies, Politics and International Politics Previously, he was a Marie Curie Studies, Politics and International Politics. Previously, he was a Marie Curie fellow at the University of Edinburgh and DAAD fellow at the Institute of fellow at the University of Edinburgh and DAAD fellow at the Institute of European Politics (IEP) in Berlin Siddi holds a PhD in Politics from the European Politics (IEP) in Berlin. Siddi holds a PhD in Politics from the University of Edinburgh, an MA in International Studies from the Vienna University of Edinburgh, an MA in International Studies from the Vienna School of International Studies and a BA in History and German from Oxford School of International Studies and a BA in History and German from Oxford University University.

Panel II: Panel II: Raceontologies Raceontologies

The theory of raceontologies proposed by Anthropologists Jonathan Rosa and Vanessa Diaz The theory of raceontologies proposed by Anthropologists Jonathan Rosa and Vanessa Diaz (2020) argues that white supremacy is reinforced and reproduced by institutions The authors (2020) argues that white supremacy is reinforced and reproduced by institutions The authors propose an attention to institutional racism as a process that involves the “construction, propose an attention to institutional racism as a process that involves the “construction, coordination, circulation, surveillance, and, frequently, overdetermination of racialized models of coordination, circulation, surveillance, and, frequently, overdetermination of racialized models of personhood and broader materialities ” At a moment when the United States is reckoning with personhood and broader materialities.” At a moment when the United States is reckoning with its legacy of institutional racism and white supremacy, how do European nations reconcile with its legacy of institutional racism and white supremacy, how do European nations reconcile with their own raceontologies? their own raceontologies?

This panel aims to explore case studies and approaches from various humanistic, social- This panel aims to explore case studies and approaches from various humanistic, socialscientific, and legal perspectives. We invite proposals that raise the following, or similar, scientific, and legal perspectives. We invite proposals that raise the following, or similar, questions: How do institutions in the EU structure actions and processes that reproduce questions: How do institutions in the EU structure actions and processes that reproduce Europe’s racism(s) through bureaucratic establishments, policies, and procedures? How do Europe’s racism(s) through bureaucratic establishments, policies, and procedures? How do these processes trigger the constructions of borders, surveillance, and circulation of racialized these processes trigger the constructions of borders, surveillance, and circulation of racialized subjects? How do these internal tensions affect the relations between the EU and the outside subjects? How do these internal tensions affect the relations between the EU and the outside world? world?

Co-Chair: Knar Abrahamyan Co-Chair: Knar Abrahamyan

Knar Abrahamyan is a Ph D candidate in Music Theory at Yale Her Knar Abrahamyan is a Ph.D. candidate in Music Theory at Yale. Her dissertation explores opera as a colonial technology of rule in Soviet Armenia dissertation explores opera as a colonial technology of rule in Soviet Armenia and Kazakhstan. Her research interests include intersections between music and Kazakhstan Her research interests include intersections between music and philosophy, animal studies, and sound studies. Before coming to Yale, and philosophy, animal studies, and sound studies Before coming to Yale, Knar completed a master’s in music theory at the Indiana University Jacobs Knar completed a master’s in music theory at the Indiana University Jacobs School of Music She also holds bachelor’s degrees in music and School of Music. She also holds bachelor’s degrees in music and communications, as well as a master’s in piano performance from Lee communications, as well as a master’s in piano performance from Lee University In 2015-16, Knar pursued a Fulbright Fellowship in Moscow, where University. In 2015-16, Knar pursued a Fulbright Fellowship in Moscow, where she conducted research on Russian theoretical approaches to the music of she conducted research on Russian theoretical approaches to the music of Shostakovich. In her free time, she enjoys painting, running, and thinking Shostakovich In her free time, she enjoys painting, running, and thinking about ways to incorporate environmental stewardship into teaching and day- about ways to incorporate environmental stewardship into teaching and dayto-day activities She has recently inaugurated the Hadrut Educational to-day activities She has recently inaugurated the Hadrut Educational Summer Camp for children in her native Artsakh, Armenia Summer Camp for children in her native Artsakh, Armenia.

Co-Chair: Faith Macharia Co-Chair: Faith Macharia

Faith is a PhD student in the joint African American Studies and Faith is a PhD student in the joint African American Studies and Sociocultural Anthropology program at Yale. Sociocultural Anthropology program at Yale Research interests: Research interests: transnational migrations; Africans in Europe, specifically Spain and Italy; transnational migrations; Africans in Europe, specifically Spain and Italy; ethnographic methods; citizenship and identity ethnographic methods; citizenship and identity.

Panel II: Panel II: Raceontologies Raceontologies

Iris del Pino García Saavedra Iris del Pino García Saavedra

Iris is a PhD candidate at Complutense University of Madrid and one of the cohort Iris is a PhD candidate at Complutense University of Madrid and one of the cohort 3 scholars 3 scholars of Europaeum Scholars Programme The main goal of her doctoral of Europaeum Scholars Programme The main goal of her doctoral research is to identify the impact that the securitarian approach of migrations is research is to identify the impact that the securitarian approach of migrations is having on the European Union’s migration governance, identifying failures in the having on the European Union’s migration governance, identifying failures in the protection of the fundamental rights of migrants in the E.U., with a special focus on protection of the fundamental rights of migrants in the E.U., with a special focus on children. children

Originally from the Canary Islands, she holds a degree in Political Science since Originally from the Canary Islands, she holds a degree in Political Science since 2020, and a master’s degree in the European Union and the Mediterranean since 2020, and a master’s degree in the European Union and the Mediterranean since 2021, both at Complutense University of Madrid Recently, she has also deepened 2021, both at Complutense University of Madrid. Recently, she has also deepened her knowledge in the E U with a course at the Diplomatic School of Spain Iris is her knowledge in the E.U. with a course at the Diplomatic School of Spain. Iris is committed to the promotion of human rights and the idea of progress, both values committed to the promotion of human rights and the idea of progress, both values that guide her career. that guide her career.

Rebecca Issai Okine Rebecca Issai Okine

Rebecca Issai Okine is a Master’s student at the University of Luxembourg. Ms Rebecca Issai Okine is a Master’s student at the University of Luxembourg Ms Okine studied Okine studied Law at the University of Luxembourg and spent an exchange Law at the University of Luxembourg and spent an exchange semester for European Law at the University of Maastricht (NL) before eventually semester for European Law at the University of Maastricht (NL) before eventually returning and changing paths. She graduated with a Bachelor’s degree in returning and changing paths She graduated with a Bachelor’s degree in European Cultures - English Studies from the University of Luxembourg Not European Cultures - English Studies from the University of Luxembourg Not wanting to quit a winning team, Ms Okine decided to stay in Luxembourg to pursue wanting to quit a winning team, Ms Okine decided to stay in Luxembourg to pursue a Master’s degree in European Governance Her research interests are the impact a Master’s degree in European Governance. Her research interests are the impact of transnational social movements on political behaviour as well as the importance of transnational social movements on political behaviour as well as the importance and role of women in politics, especially BIPOC women Currently, Ms Okine also and role of women in politics, especially BIPOC women. Currently, Ms Okine also works as a student research assistant at the Centre for Contemporary and Digital works as a student research assistant at the Centre for Contemporary and Digital History (C2DH) in Luxembourg. History (C2DH) in Luxembourg.

Alena Zelenskaia is a research assistant and a PhD student in Anthropology at the Alena Zelenskaia is a research assistant and a PhD student in Anthropology at the Ludwig Maximilian University of Munich, Germany. In the project, developed at the Ludwig Maximilian University of Munich, Germany In the project, developed at the Cooperative Research Center “Cultures of Vigilance”, Alena focuses on practices Cooperative Research Center “Cultures of Vigilance”, Alena focuses on practices and strategies of the EU border making towards marriage migrants from Third and strategies of the EU border making towards marriage migrants from Third countries and ways how the migrants and their spouses undo the borders Due to countries and ways how the migrants and their spouses undo the borders. Due to the changed environment of the fieldwork during the pandemic, besides the the changed environment of the fieldwork during the pandemic, besides the traditional ethnographic methods of interview and participant observation, Alena traditional ethnographic methods of interview and participant observation, Alena has also undertaken thematic discourse-analysis of Facebook groups and TV- has also undertaken thematic discourse-analysis of Facebook groups and TVShows. Her training (BA from the Southern Federal University, Russia) and Shows Her training (BA from the Southern Federal University, Russia) and experience in journalism has vastly contributed to it. experience in journalism has vastly contributed to it

Alena Zelenskaia Alena Zelenskaia

Panel

III: Panel III:

Whose Europe?

Judicial Conversations in a changing Union Whose Europe? Judicial Conversations in a changing Union

Since its inception, the European Union (EU) relied on courts to assert its authority and enforce Since its inception, the European Union (EU) relied on courts to assert its authority and enforce EU law At a moment when the European Union is facing a series of (existential) crises from EU law At a moment when the European Union is facing a series of (existential) from the sovereign debt and “refugee” crisis to the rule of law and Brexit national and supranational the sovereign debt and “refugee” crisis to the rule of law and Brexit national and supranational judges adopt various approaches and attitudes toward this assertion, ranging from allyship to judges adopt various approaches and attitudes toward this assertion, ranging from allyship to hesitance or even resistance Time and again, courts’ influence on the EU legal order effective hesitance or even resistance. Time and again, courts’ influence on the EU legal order effective or potential has come to the fore. In an ever-changing Union, it is crucial to understand the role or potential has come to the fore In an ever-changing Union, it is crucial to understand the role of courts, both within and outside the EU, beyond that of rule-appliers and to recognize their of courts, both within and outside the EU, beyond that of rule-appliers and to recognize their influence as foundational actors in democracy and rule-of-law-building. What triggers judicial influence as foundational actors in democracy and rule-of-law-building. What triggers judicial cooperation? What prompts backlash? Do either domestic courts or the European Court of cooperation? What prompts backlash? Do either domestic courts or the European Court of Justice have the “upper hand” when it comes to shaping policy-making? How can the EU Justice have the “upper hand” when it comes to shaping policy-making? How can the EU maintain its claim to autonomy and supremacy with or without the support of domestic maintain its claim to autonomy and supremacy with or without the support of domestic judiciaries? How do these internal tensions affect the relations between the EU and the outside judiciaries? How do these internal tensions affect the relations between the EU and the outside world? world?

This panel aims to address these and other questions by fostering a discussion on various This panel aims to address these and other questions by fostering a discussion on various instances of court interactions with, within, and beyond the EU. instances of court interactions with, within, and beyond the EU.

Co-Chair: Antoine De Spiegeleir Co-Chair: Antoine De Spiegeleir

Antoine trained in law and philosophy in Belgium and Switzerland. He Antoine trained in law and philosophy in Belgium and Switzerland. He specialized in international law and European law, with a particular focus on specialized in international law and European law, with a particular focus on he role of the European Union on the global plane and interactions between he role of the European Union on the global plane and interactions between nternational, European, and domestic legal orders Antoine is currently an nternational, European, and domestic legal orders Antoine is currently an LLM candidate at Yale Law School, where he co-chairs the YLS European LLM candidate at Yale Law School, where he co-chairs the YLS European Law Association, among other things Law Association, among other things.

Co-Chair: Lena Riemer Co-Chair: Lena Riemer

Lena studied law at Humboldt University Berlin with a focus on public Lena studied law at Humboldt University Berlin with a focus on public international law. Currently, she pursues her PhD at Freie University Berlin in international law Currently, she pursues her PhD at Freie University Berlin in the field of international migration and asylum law. She works as deputy the field of international migration and asylum law. She works as deputy managing director at the international and interdisciplinary graduate school managing director at the international and interdisciplinary graduate school “Human Rights under Pressure” at Freie University Berlin. Her research “Human Rights under Pressure” at Freie University Berlin Her research interests lie mainly in the area of international criminal law, migration and interests lie mainly in the area of international criminal law, migration and asylum and human rights The topic of her thesis is “the prohibition of asylum and human rights The topic of her thesis is “the prohibition of collective expulsion in public international law”. Her thesis explores the collective expulsion in public international law” Her thesis explores the extraterritorial applicability and the exact scope of protection of the extraterritorial applicability and the exact scope of protection of the prohibition on a global level. In her free time, she does legal counseling for prohibition on a global level In her free time, she does legal counseling for asylum seeker. asylum seeker.

Marcin Barański Marcin Barański

Marcin Barański is a Postdoctoral Researcher at the DynamInt Graduate Sch Marcin Barański is a Postdoctoral Researcher at the DynamInt Graduate Sch the Law Faculty of Humboldt-Universität in Berlin, Germany He holds a P the Law Faculty of Humboldt-Universität in Berlin, Germany He holds a P Law from the European University Institute in Florence, Italy, an LLM from Law from the European University Institute in Florence, Italy, an LLM from Law School (Class of 2019), and an M A in Law from the University of Wa Law School (Class of 2019), and an M.A. in Law from the University of Wa Poland. Marcin’s research interests include European and compa Poland. Marcin’s research interests include European and compa constitutional law and theory, and general jurisprudence. His current p constitutional law and theory, and general jurisprudence His current p focuses on the complex nature of European federalism and the recent confl focuses on the complex nature of European federalism and the recent confl authority between the Court of Justice of the European Union and EU Me authority between the Court of Justice of the European Union and EU Me State Apex Courts State Apex Courts.

Carvalho Felipe Carvalho

Felipe is a PhD Candidate in Public Law at University of Coimbra, holds a Masters'

Felipe is a PhD Candidate in Public Law at University of Coimbra, holds a Masters' in International and European Law, and is the co-founder and Editor-in-chief of the in International and European Law, and is the co-founder and Editor-in-chief of the Brazilian Journal of Law and Religion (ReBraDiR). He has published in the Brazilian Journal of Law and Religion (ReBraDiR). He has published in the Cambridge Human Rights Law Journal, Mexican Yearbook of International Law, Cambridge Human Rights Law Journal, Mexican Yearbook of International Law, Latin America Journal of Law and Religion, and others. Latin America Journal of Law and Religion, and others

Mavrouli Roïla Mavrouli

Roïla Mavrouli is a Postdoctoral Research Fellow at CNRS and HEC Paris in the Roïla Mavrouli is a Postdoctoral Research Fellow at CNRS and HEC Paris in the field of public and field of public and European law. After finishing her PhD at the University Paris European law After finishing her PhD at the University Paris Nanterre in cotutelle with the University of Luxembourg, she held a position of Nanterre in cotutelle with the University of Luxembourg, she held a position of junior lecturer (ATER) at the University Paris 3 Sorbonne Nouvelle with a specific junior lecturer (ATER) at the University Paris 3 Sorbonne Nouvelle with a specific focus on European law (citizenship, migration and justice), environmental law and focus on European law (citizenship, migration and justice), environmental law and international human rights’ law (ECHR) She has worked as a lawyer (Athens Bar international human rights’ law (ECHR). She has worked as a lawyer (Athens Bar Association) and has been an active volunteer with various asylum law Association) and has been an active volunteer with various asylum law associations focusing on migration law and fundamental rights in Paris and in associations focusing on migration law and fundamental rights in Paris and in Luxembourg. She has pursued traineeships at the GISTI and at the Court of Luxembourg She has pursued traineeships at the GISTI and at the Court of Justice of the European Union and has worked with legal experts on the Justice of the European Union and has worked with legal experts on the Charterpedia project focusing on fundamental rights within the EU (FRA). Her Charterpedia project focusing on fundamental rights within the EU (FRA) Her interests are in the fields of constitutional law, legal theory and European law interests are in the fields of constitutional law, legal theory and European law where she focuses on the tension between “illiberalism” on the one hand, and the where she focuses on the tension between “illiberalism” on the one hand, and the liberal emphasis on the apolitical, neutral nature of law, on the other By examining liberal emphasis on the apolitical, neutral nature of law, on the other. By examining the potential democratic regressions, she looks into the legal changes of a populist the potential democratic regressions, she looks into the legal changes of a populist approach of constituent power in order to identify the future of constitutionalism approach of constituent power in order to identify the future of constitutionalism. She is currently working on the new EU instruments for the protection of the rule of She is currently working on the new EU instruments for the protection of the rule of law. Her research pursues an internal connexion between the three major crises – law Her research pursues an internal connexion between the three major crises –sovereign debt, migration and rule of law – seemingly intertwined into Europe’s sovereign debt, migration and rule of law – seemingly intertwined into Europe’s “crisis of values”. “crisis of values”

Panel III: Whose Europe? Judicial Conversations in a changing Union Panel III: Whose Europe? Judicial Conversations in a changing Union

Felipe

Roïla

Panel IV: Panel IV: Open Procurement, Corruption and State Capture: Administrative Open Procurement, Corruption and State Capture: Administrative

Reforms and their Efficacy in Europe Reforms and their Efficacy in Europe

Public procurement is generally considered to be especially vulnerable to corruption for Public procurement is generally considered to be especially vulnerable to corruption for developed and developing countries alike. In recent years, multiple corruption scandals developed and developing countries alike In recent years, multiple corruption scandals specifically related to procurement have plagued European nations, and invoked distrust in specifically related to procurement have plagued European nations, and invoked distrust in government integrity. According to Transparency International’s Global Corruption Barometer- government integrity. According to Transparency International’s Global Corruption BarometerEU 2021, the trend for expedited awards of contracts due to the immediate need for medical EU 2021, the for expedited awards of contracts due to the immediate need for medical equipment in the COVID-19 crisis has increased the risk of mismanagement; resulting in 52% of equipment in the COVID-19 crisis has increased the risk of mismanagement; resulting in 52% of EU respondents mistrusting “that government contracts are allocated in a competitive manner”. EU respondents mistrusting “that government contracts are allocated in a competitive manner” This panel will focus on the Open Procurement initiatives, the need for transparency in This panel will focus on the Open Procurement initiatives, the need for transparency in contracting and the efficacy of the Tenders Electronic Daily platform in curbing administrative contracting and the efficacy of the Tenders Electronic Daily platform in curbing administrative corruption and state capture Proposals are invited to address how lacunae in the existing corruption and state capture. Proposals are invited to address how lacunae in the existing anticorruption reforms may be addressed, government accountability in contracting and public- anticorruption reforms may be addressed, government accountability in contracting and publicprivate partnerships in Europe to combat corruption, as well as other related topics private partnerships in Europe to combat corruption, as well as related topics

Chair: Amy Basu Chair: Amy Basu

Amy Basu is a PhD student in Political Science at Yale University Her primary Amy Basu is a PhD student in Political Science at Yale University. Her primary research interests lie in the political economy of state capacity development, research interests lie in the political economy of state capacity development, bureaucracy in mature and emerging economies, and gender representation bureaucracy in mature and emerging economies, and gender representation in advanced democracies (particularly those of Western Europe). Currently, in advanced democracies (particularly those of Western Europe). Currently, she is working on a project to construct a formal theory of the adoption of she is working on a project to construct a formal theory of the adoption of gender quotas in advanced democracies. gender quotas in advanced democracies

Alessandro Archetti Alessandro Archetti

essandro Archetti is a first year MSc students of Politics and Policy ssandro Archetti is a first year MSc students of Politics and Policy alysis at Bocconi University. Prior to this he graduated in Economics and alysis at Bocconi University Prior to this he graduated in Economics and cial Sciences at Bocconi University He is a curious economic passionate cial Sciences at Bocconi University. He is a curious economic passionate eply interested in the topics of international trade and political economy. eply interested in the topics of international trade and political economy s research interests range from, quantitative models of politicians’ research interests range from, quantitative models of politicians’ havior, mechanism design, governance institutions, as well as trying to havior, mechanism design, governance institutions, as well as trying to alyze the complex issues raised by the economic interdependence of alyze the complex issues raised by the economic interdependence of untries Finally, he currently works as research assistant at Centre for untries. Finally, he currently works as research assistant at Centre for plied Research on International Markets, Banking, Finance and plied Research on International Markets, Banking, Finance and gulation (Baffi-CAREFIN) at Bocconi University, focusing on the gulation (Baffi-CAREFIN) at Bocconi University, focusing on the mpetitiveness of firms in the global economy mpetitiveness of firms in the global economy.

Panel IV: Open Procurement, Corruption and State Capture Panel IV: Open Procurement, Corruption and State Capture

Reforms and their Efficacy in Europe Reforms and their Efficacy in Europe

Elisa Armaroli Elisa Armaroli

Elisa Armaroli is an ambitious and hard-working student enrolled in the Politics and Elisa Armaroli is an ambitious and hard-working student enrolled in the Politics and Policy Analysis MSc in Bocconi University. She is thoroughly interested in policy- Policy Analysis MSc in Bocconi University She is thoroughly interested in policymaking, international economy and its societal impact She acquired a BSc in making, international economy and its societal impact She acquired a BSc in Economics and Finance in Bocconi, in which she cultivated her interest in financial Economics and Finance in Bocconi, in which she cultivated her interest in financial macroeconomics, monetary economics and public policy Throughout her macroeconomics, monetary economics and public policy. Throughout her school and university years she has been engaged in internships in order to apply school and university years she has been engaged in internships in order to apply her knowledge into practice and acquire professional skills. Currently she is part of her knowledge into practice and acquire professional skills Currently she is part of the Bocconi Political Academy Association, in which she conducts research and the Bocconi Political Academy Association, in which she conducts research and writes articles for the Italian press. writes articles for the Italian press

Ludovico Campagnolo Ludovico Campagnolo

udovico Campagnolo is a Master’s student in the LSE-Bocconi Double Degree udovico Campagnolo is a Master’s student in the LSE-Bocconi Double Degree i European and International Public Policy and Politics During his entire academ European and International Public Policy and Politics. During his entire academ career he has challenged himself trying to master and link multiple fields o career he has challenged himself trying to master and link multiple fields o knowledge. Thus, he has investigated moral philosophy, but also internationa knowledge Thus, he has investigated moral philosophy, but also internationa relations, public policy and labor economics, engaging every time in evidenc relations, public policy and labor economics, engaging every time in evidenc based discussions with bri ht h l d t d t At th ti h based discussions with bri ht h l d t d t At th ti h fascinated by the possibility fascinated by the possibility discover new perspectives i discover new perspectives i the theory of the state to pub the theory of the state to pub

Kirill Ryabtsev is currently a Kirill Ryabtsev is currently a Amsterdam with an interes Amsterdam with an interes formation and abuse of do formation and abuse of do from the LL B in Intern from the LL B in Interna Gron Gron Europ Europ Chief Chief Stanf Stanf

Andri Andri progr progr law. S law S the U the U Unive Unive in Int in Int her b her b

Panel V: Panel V: Europe and Energy Europe and Energy

Europe’s reliance on energy imports is currently omnipresent in the news. Nordstream II is Europe’s reliance on energy imports is currently omnipresent in the news Nordstream II is feared to make Germany too reliant on Russian gas The French government regards nuclear feared to make Germany too reliant on Russian gas. The French government regards nuclear power as a green source of energy, much to the dislike of the new German government (which power as a green source of energy, much to the dislike of the new German government (which includes the Green party) and its plans to shut down all nuclear power plants this year The EU’s includes the Green party) and its plans to shut down all nuclear power plants this year. The EU’s goal to reach zero greenhouse emissions by 2050 requires its members to rethink their energy goal to reach zero greenhouse emissions by 2050 requires its members to rethink their energy supplies Managing an EU-wide energy transition will require more than just one alternative supplies Managing an EU-wide energy transition will require more than just one alternative source of energy, but also no small amount of diplomacy. This panel will look at approaches source of energy, but also no small amount of diplomacy. This panel will look at approaches required to make the energy transition work; how this can be achieved with consensus among required to make the energy transition work; how this can be achieved with consensus among EU members; the role of Russian gas; the eventual comeback of nuclear energy; and ask if EU members; the role of Russian gas; the eventual comeback of nuclear energy; and ask if Europe is going through an energy transition or crisis. Europe is going through an energy transition or crisis

Chair: Claude Ewert Chair: Claude Ewert

Claude Ewert is a third-year PhD student at the Faculty of History at the Claude Ewert is a third-year PhD student at the Faculty of History at the University of Cambridge and a member of Wolfson College His PhD University of Cambridge and a member of Wolfson College. His PhD dissertation is looking at EC-USSR relations from 1973 to 1991, under the dissertation is looking at EC-USSR relations from 1973 to 1991, under the supervision of Dr Mark B. Smith, senior lecturer at King’s College. Claude supervision of Dr Mark B. Smith, senior lecturer at King’s College. Claude Ewert holds a Bachelor’s and Master’s degree from the University of Ewert holds a Bachelor’s and Master’s degree from the University of Luxembourg. His BA thesis looked at Luxembourgish relations with the Soviet Luxembourg His BA thesis looked at Luxembourgish relations with the Soviet Union in the immediate post-war period from 1944 to 1956, and his MA thesis Union in the immediate post-war period from 1944 to 1956, and his MA thesis dealt with EEC-USSR relations from 1958 to 1972 He worked as a student dealt with EEC-USSR relations from 1958 to 1972. He worked as a student research assistant for both the Centre for Contemporary and Digital History research assistant for both the Centre for Contemporary and Digital History ( DH) and the Institute of History (IHIST) at the University of Luxembourg. (C2DH) and the Institute of History (IHIST) at the University of Luxembourg.

Marc Dorpema Marc Dorpema

c Dorpema is a candidate in the History PhD program at NYU He is c Dorpema is a candidate in the History PhD program at NYU He is rested in the intersection of capitalism and the environment, with a rested in the intersection of capitalism and the environment, with a stantive focus, for now, on Eurocapitalism in the long 1970s, on which he stantive focus, for now, on Eurocapitalism in the long 1970s, on which he thesis. You can find some of his work in the European i hi thesis You can find some of his work in the European y, Europe-Asia Studies, and the Journal of European y, Europe-Asia Studies, and the Journal of European .

Chenchen Hao Chenchen Hao

Chenchen Hao, PhD candidate, Peking University Due to her interest in Chenchen Hao, PhD candidate, Peking University Due to her interest in international economics and politics, she is currently focusing on Russia’s international economics and politics, she is currently focusing on Russia’s energy policy and its international impact Her research includes various of energy policy and its international impact. Her research includes various of IPE topics such as the Nord Stream system project and the energy power of IPE topics such as the Nord Stream system project and the energy power of Russia, EU and the U.S.. As a native speaker of Chinese, she is also fluent Russia, EU and the U.S.. As a native speaker of Chinese, she is also fluent in both English and Russian since her undergraduate major is Russian and in both English and Russian since her undergraduate major is Russian and She got her master’s degree at Peoples’ Friendship University of Russia. She got her master’s degree at Peoples’ Friendship University of Russia

Panel V: Europe and Energy Panel V: Europe and Energy

Francesca Leucci Francesca Leucci

Francesca Leucci is a PhD candidate at Bologna, Rotterdam, and Hamburg Francesca Leucci is a PhD candidate at Bologna, Rotterdam, and Hamburg Universities (European Doctorate of Law and Economics) She gained her first Universities (European Doctorate of Law and Economics). She gained her first legal degree in Italy and her second LL M in Economic Analysis of European Law legal degree in Italy and her second LL.M. in Economic Analysis of European Law at the College of Europe in Bruges After training as a lawyer at the Public Attorney at the College of Europe in Bruges. After training as a lawyer at the Public Attorney and as a judge assistant at the Administrative Local Court, she was admitted to the and as a judge assistant at the Administrative Local Court, she was admitted to the Italian Bar and she worked as an intern in the Legal Office of the Italian Antitrust Italian Bar and she worked as an intern in the Legal Office of the Italian Antitrust Authority. Her doctoral project focuses on the Law and Economics of Authority Her doctoral project focuses on the Law and Economics of Environmental Damage Assessment, with a special focus on remedies for Environmental Damage Assessment, with a special focus on remedies for environmental liability She is also temporary expert for Eklipse, currently working environmental liability. She is also temporary expert for Eklipse, currently working on the impact assessment of projects on biodiversity (no net loss) through the on the impact assessment of projects on biodiversity (no net loss) through the concept of ecosystem services. Her research interests concern environmental concept of ecosystem services. Her research interests concern environmental (public and private) law, tort law and the economic analysis of torts. (public and private) law, tort law and the economic analysis of torts

Panel VI: Panel VI: The Age of (Un)Peace in Europe’s East The Age of (Un)Peace in Europe’s East

Europe’s reliance on energy imports is currently omnipresent in the news Nordstream II is Europe’s reliance on energy imports is currently omnipresent in the news. Nordstream II is feared to make Germany too reliant on Russian gas. The French government regards nuclear feared to make Germany too reliant on Russian gas. The French government regards nuclear power as a green source of energy, much to the dislike of the new German government (which power as a green source of energy, much to the dislike of the new German government (which includes the Green party) and its plans to shut down all nuclear power plants this year The EU’s includes the Green party) and its plans to shut down all nuclear power plants this year. The EU’s goal to reach zero greenhouse emissions by 2050 requires its members to rethink their energy goal to reach zero greenhouse emissions by 2050 requires its members to rethink their energy supplies Managing an EU-wide energy transition will require more than just one alternative supplies. Managing an EU-wide energy transition will require more than just one alternative source of energy, but also no small amount of diplomacy. This panel will look at approaches source of energy, but also no small amount of diplomacy This panel will look at approaches required to make the energy transition work; how this can be achieved with consensus among required to make the energy transition work; how this can be achieved with consensus among EU members; the role of Russian gas; the eventual comeback of nuclear energy; and ask if EU members; the role of Russian gas; the eventual comeback of nuclear energy; and ask if Europe is going through an energy transition or crisis. Europe is going through an energy transition or crisis

Co-Chair & Presenter: Maksimas Milta Co-Chair & Presenter: Maksimas Milta

Maksimas Milta is a master’s student in the European and Russian Studies Maksimas Milta is a master’s student in the European and Russian Studies program Originally from Lithuania, he joined Yale with a professional career program. Originally from Lithuania, he joined Yale with a professional career tracking at the intersection of higher education management, policy analysis, tracking at the intersection of higher education management, policy analysis, and media. For eight years, Maksimas worked at the European Humanities and media For eight years, Maksimas worked at the European Humanities University, Vilnius-based Belarusian University-in-Exile, leading University, Vilnius-based Belarusian University-in-Exile, leading communications and development At Yale, Maksimas continues to study the communications and development At Yale, Maksimas continues to study the role of higher and civic education in countering the despotic regimes and role of higher and civic education in countering the despotic regimes and developing practical tools and policy frameworks to offset the democratic developing practical tools and policy frameworks to offset the democratic backlash. backlash.

Maksimas holds a bachelor’s degree in Cultural Heritage (cum laude) from the Maksimas holds a bachelor’s degree in Cultural Heritage (cum laude) from the European Humanities University and a master’s degree in Political Sciences European Humanities University and a master’s degree in Political Sciences from Vilnius University During that time, he served as Vice President at the from Vilnius University During that time, he served as Vice President at the Lithuanian National Union of Students and as an elected representative at the Lithuanian National Union of Students and as an elected representative at the European Students’ Union European Students’ Union.

Panel VI: Panel VI: The

of (Un)Peace in Europe’s East The Age of (Un)Peace in Europe’s East

Age

Co-Chair & Presenter: Yevhenii Monastyrskyi Co-Chair & Presenter: Yevhenii Monastyrskyi

Yevhenii Monastyrskyi is a MA candidate in European & Russian Studies at Yevhenii Monastyrskyi is a MA candidate in European & Russian Studies at Yale. Yale He is a Luhansk (eastern Ukraine) native historian of the Soviet Union He is a Luhansk (eastern Ukraine) native historian of the Soviet Union and a sociologist. Before the outbreak of the war, he was studying history at and a sociologist Before the outbreak of the war, he was studying history at he Luhansk Taras Shevchenko National University. After fleeing his he Luhansk Taras Shevchenko National University After fleeing his hometown in October 2014, he studied at the Ukrainian Catholic University hometown in October 2014, he studied at the Ukrainian Catholic University Lviv), and he was a visiting assistant in research at Yale University In 2018, Lviv), and he was a visiting assistant in research at Yale University. In 2018, he was a Global Dialogues Fellow at The New School for Social Research he was a Global Dialogues Fellow at The New School for Social Research New York). Since 2015 he has conducted more than 20 qualitative New York). Since 2015 he has conducted more than 20 qualitative esearches on the experience and life of IDPs in Ukraine as well as the esearches on the experience and life of IDPs in Ukraine as well as the everyday experience of Ukrainian citizens living close to the frontline for everyday experience of Ukrainian citizens living close to the frontline for various international and domestic organizations (UNDP, USAID, UN Women, various international and domestic organizations (UNDP, USAID, UN Women, CRC, Danish Refugee Council, People in Need, etc ) most recent are CRC, Danish Refugee Council, People in Need, etc.) most recent are covering IDPs wellbeing during the pandemic and perceptions and covering IDPs wellbeing during the pandemic and perceptions and expectations of the peacebuilding initiatives in Ukraine. Before coming to Yale, expectations of the peacebuilding initiatives in Ukraine. Before coming to Yale, he was a research lead at War Childhood Museum Ukraine, simultaneously he was a research lead at War Childhood Museum Ukraine, simultaneously leading education reform support at the EU-funded program “House of leading education reform support at the EU-funded program “House of Europe”, and serving as head of research for Charitable Foundation Europe”, and serving as head of research for Charitable Foundation “Stabilisation Support Services” “Stabilisation Support Services”.

John Helferich John Helferich

John N.T. Helferich is a doctoral candidate in International Relations at St. John N T Helferich is a doctoral candidate in International Relations at St Antony’s College, Oxford. His research focuses on contemporary security Antony’s College, Oxford. His research focuses on contemporary security and defence cooperation in the European Union and is funded by the and defence cooperation in the European Union and is funded by the Konrad-Adenauer-Foundation. Prior to coming to Oxford, he conducted Konrad-Adenauer-Foundation Prior to coming to Oxford, he conducted research on research on issues relating to the harmonisation of European arms export issues relating to the harmonisation of European arms export control practices at Sciences Po, Paris. control practices at Sciences Po, Paris

Eka Khorbaladze Eka Khorbaladze

baladze is PhD student in political science and a Fox Fellow visiting baladze is PhD student in political science and a Fox Fellow visiting ersity from Lomonosov Moscow State University Her field of ersity from Lomonosov Moscow State University. Her field of tion is political problems of international relations, global and ion is political problems of international relations, global and evelopment, topic of research - modern trans-regional integration evelopment, topic of research - modern trans-regional integration

She is a ‘citizen ambassador’ who works to deepen ties between . She is a ‘citizen ambassador’ who works to deepen ties between Miss Eka has participated in more than 145 international and local Miss Eka has participated in more than 145 international and local onferences and educational projects, and has more than 35 onferences and educational projects, and has more than 35 publications Beside academic direction Miss Eka is actively publications Beside academic direction Miss Eka is actively n varied programs which are connected with youth activities and n varied programs which are connected with youth activities and ng She is a representative of Russia at Global Youth Parliament ng. She is a representative of Russia at Global Youth Parliament al Law Thinkers Society, and expert at World Impact Alliance. l Law Thinkers Society, and expert at World Impact Alliance

Panel VI: The Age of (Un)Peace in Europe’s East Panel VI: The Age of (Un)Peace in Europe’s East

Anđela Mićanović Anđela Mićanović

Anđela Mićanović is a PhD Candidate at the Institute of Political Sc

Anđela Mićanović is a PhD Candidate at the Institute of Political Sc University of Luxembourg She earned her MA in political science University of Luxembourg. She earned her MA in political science studies) from the University of Heidelberg (2017-2018), and her BA studies) from the University of Heidelberg (2017-2018), and her BA science and international relations as the best social science stude science and international relations as the best social science stude University of Montenegro (2013-2017). During her BA studies, she University of Montenegro (2013-2017) During her BA studies, she exchange years at the Institute for International Studies (American U exchange years at the Institute for International Studies (American U Washington DC (2014-2015), and at the Institut für Politische Wiss Washington DC (2014-2015), and at the Institut für Politische Wiss Heidelberg (2016- 2017) Owing it to her academic excellence, Anđe Heidelberg (2016- 2017). Owing it to her academic excellence, Anđe several national awards and international scholarships several national awards and international scholarships.

Prior to joining the University of Luxembourg as a Doctoral Rese Prior to joining the University of Luxembourg as a Doctoral Rese worked in the public sector (Government of Montenegro, Pa worked in the public sector (Government of Montenegro, Pa Montenegro) and international organizations (European Union Delega Montenegro) and international organizations (European Union Delega Nations) in Montenegro. Such professional experience reinforced he Nations) in Montenegro Such professional experience reinforced he the Europeanization in the Southeast Europe (SEE), geopolitics a the Europeanization in the Southeast Europe (SEE), geopolitics a authoritarianism and democratization authoritarianism and democratization. Anđela works with enthusiasm on her research, which aims to examine the Anđela works with enthusiasm on her research, which aims to examine the political, institutional and geopolitical (f)actors which influenced the EU process of political, institutional and geopolitical (f)actors which influenced the EU process of decision making and adoption of strategies for SEE that (in)directly contributed to decision making and adoption of strategies for SEE that (in)directly contributed to democratic backsliding and the rise of right-wing populism in the region. Lessons democratic backsliding and the rise of right-wing populism in the region Lessons learned and recommendations made will be portable across regions and will serve learned and recommendations made will be portable across regions and will serve the EU in the process of future European Neighborhood Policy evaluation and the EU in the process of future European Neighborhood Policy evaluation and making Her PhD project has been supported by the Luxembourg National making. Her PhD project has been supported by the Luxembourg National Research Fund (FNR) under the supervision of Prof Dr Josip Glaurdić Research Fund (FNR) under the supervision of Prof. Dr Josip Glaurdić.

Papers by Panels Papers by Panels

II: Raceontologies II: Raceontologies

Co-Chairs: Co-Chairs: Knar Abrahamyan Knar Abrahamyan (Yale University) and (Yale University) and Faith Macharia Faith Macharia (Yale University) (Yale University)

Faculty Discussant: Faculty Discussant: Dr. Lauren Woodard Dr. Lauren Woodard, Postdoctoral Associate and Lecturer (Yale University) , Postdoctoral Associate and Lecturer (Yale University)

Iris del Pino García Iris del Pino García Saavedra Saavedra (Complutense University of Madrid, Spain) (Complutense University of Madrid, Spain)

Rebecca Issai Okine Rebecca Issai Okine (University of Luxembourg) (University of Luxembourg)

Alena Zelenskaia Alena Zelenskaia (Ludwig-Maximilian University, Germany) (Ludwig-Maximilian University, Germany)

THE SECURITISATION OF EUROPEAN MIGRATION GOVERNANCE: THE SECURITISATION OF EUROPEAN MIGRATION GOVERNANCE:

EFFECTS ON EU IMMIGRATION, ASYLUM AND CROSS-BORDER POLICY EFFECTS ON EU IMMIGRATION, ASYLUM AND CROSS-BORDER POLICY

Iris del Pino García Saavedra (Complutense University of Madrid) Iris del Pino García Saavedra (Complutense University of Madrid)

In recent decades, European migration governance has developed from a securitarian recent decades, European migration governance has developed from a securitarian approach, which has approach, which has changed the way migration flows are perceived. Gradually, the ‘migration-security binomial’ (Ferrero- changed the way flows perceived. Gradually, the ‘migration-security binomial’ (FerreroTurrión, 2017) has been introduced into national security agendas, especially after the attacks of 11 Turrión, 2017) has been introduced into national agendas, especially after the attacks of 11 September 2001. Since then, the identification of threats to national security in migratory flows has been September 2001 Since then, the identification of threats to national security in migratory flows has been gradually consolidated in the discursive model and in migration policy, affecting their management. gradually consolidated in the discursive model and in migration policy, affecting their management

In what follows, we will try to identify the effects that this phenomenon has on the perception of migrants, what follows, we will try to identify the effects that this phenomenon has on the perception of migrants, assessing whether it could contribute to the perpetuation of a certain institutional racism in the European whether could contribute to the perpetuation of a certain institutional in the European Union. Union.

WHAT IS THE SECURITISATION OF MIGRATION GOVERNANCE? WHAT IS THE SECURITISATION OF MIGRATION GOVERNANCE?

The concept on which this paper pivots, securitisation, refers to ‘the process by which perceptions of The concept on which this paper pivots, securitisation, refers to ‘the process by which perceptions of security problems emerge and evolve as a result of discursive acts’ (Ferrero-Turrión, 2017) The problems emerge and evolve as a result of discursive acts’ (Ferrero-Turrión, 2017). The securitisation of European migration governance is an incipient style of political discourse whereby securitisation of European migration governance is an incipient style of political discourse whereby perceptions of migration have been skewed towards distrust and reluctance. This ‘association made perceptions of migration been skewed distrust and reluctance This ‘association made between migration and threat leads European states to understand migration policies from a securitarian between migration and threat leads European states to understand migration policies from a securitarian perspective. In other words, the means and resources allocated to the management of migratory flows are perspective. In other words, the means and resources allocated to the management of migratory flows are in line with military and police needs, so that an issue of a purely humanitarian and social nature becomes line with military and police needs, so that an issue of a purely humanitarian and social nature becomes an area of defence and interior ministry areas’ (Mártinez, 2020) an of defence and ministry areas’ (Mártinez, 2020).

Within the framework of the contribution made by the Copenhagen School in this regard, we will consider Within the of the contribution made by the Copenhagen School in this regard, we will consider that securitisation ‘is part of the illocutionary act of saying security based on the approaches of John that securitisation ‘is part of the illocutionary act of saying security based on the approaches of John Austin's speech act theory’ (Arellano, 2018). According to this, we accept that the ‘political use, including Austin's speech act theory’ (Arellano, 2018). According to this, we accept that the ‘political use, including the manipulation of terrorist attacks, that has been made of the migratory process has resulted in a growing the manipulation of terrorist attacks, that has been made of the migratory process has resulted in a growing distrust of the different within Western societies’ (Ferrero-Turrión, 2017) distrust of the different within Western societies’ (Ferrero-Turrión, 2017).

THE SECURITISATION OF EUROPEAN MIGRATION GOVERNANCE: THE SECURITISATION OF EUROPEAN MIGRATION GOVERNANCE: EFFECTS ON EU IMMIGRATION, ASYLUM AND CROSS-BORDER POLICY EFFECTS ON EU IMMIGRATION, ASYLUM AND CROSS-BORDER POLICY

Iris del Pino García Saavedra (Complutense University of Madrid) Iris del Pino García Saavedra (Complutense University of Madrid)

Thus, in this process, the role of in this process, the role of symbolic politics stands out, as it constitutes a key element through politics stands out, as constitutes a key element through which a collective ideology is gradually moulded, centred on the ‘securitisation and transformation of the which a collective ideology is gradually moulded, centred on the ‘securitisation and transformation of the logics and mechanisms of control and surveillance of migrations’ (Pererira and Domenech, 2021). logics and mechanisms of control and surveillance of migrations’ (Pererira and Domenech, 2021)

Hence, authors such as Didier Bigo, belonging to the Paris school, refer to securitisation as ‘a political Hence, authors such Didier Bigo, belonging to the Paris school, refer to securitisation as ‘a political technology, used as a mode of governmentality by various institutions to play with unease’ (Pererira and technology, used a mode of governmentality by to play with unease’ (Pererira and Domenech, 2021). Domenech, 2021).

In essence, this type of securitarian discourse is based on confronting the view of migrants as ‘them’ In essence, this type of securitarian discourse is based on confronting the view of migrants as ‘them’ versus ‘us’, with ‘them’ being a potential threat to our status quo and security. It is important to consider versus ‘us’, with ‘them’ being a potential threat to our status quo and security. It is important to consider the effects that the pervasiveness of this discourse can have on Western society, especially in fostering the effects that the pervasiveness of this discourse have on Western society, especially in fostering rejection and institutional racism, as ‘racist discourse is also characterised by a general strategy of positive rejection and institutional racism, ‘racist discourse is also characterised by a general of positive self-representation and negative presentation of the other at all levels of text and speech’ (Dijk, 2006). self-representation and negative of other at all levels of text and (Dijk, 2006).

By institutional racism, we mean the organised discursive practices of elites that perpetuate prejudice and By institutional racism, we mean the organised discursive practices of elites that perpetuate prejudice and discrimination in society by gradually influencing collective thinking. Racism is not innate, but learned, discrimination in society by gradually influencing collective thinking. Racism is not innate, but learned, and is mainly learned from public discourse (Dijk, 2006) In that sense, policies play a fundamental role in and is mainly learned from public discourse (Dijk, 2006). In that sense, policies play a fundamental role in projecting influential discourses projecting influential discourses.

‘Most studies on racism focus on forms of discrimination and exclusion, or on prejudices and ideologies, ‘Most studies on racism focus on forms of discrimination and exclusion, or on prejudices and ideologies, and tend to ignore the fundamental role of language, discourse, and communication in modern societies, and tend to ignore the fundamental role of language, discourse, and communication in modern societies, also in the reproduction of racism. Politics and policies of whatever kind, moreover, are expressed, also in the reproduction of racism. Politics and policies of whatever kind, moreover, are expressed, promoted, or practised as forms of text and speech’ (Dijk, 2006) For this reason, the incipient style of promoted, or practised as forms of text and speech’ (Dijk, 2006). For this reason, the incipient style of securitarian discourse is closely linked to the imaginary representation that society constructs of migrants, securitarian discourse closely linked the imaginary representation that society constructs of migrants, with its reflection in migration policies being the first piece that triggers this process. In what follows, we with its reflection in migration policies being the piece that this process. In what follows, we will look at the effects that this discourse has had on the development of the policies that make up the will look at the effects that this discourse has had on the development of the policies that make up the European Union's migration governance in order to assess how these policies contribute to the rejection of European Union's migration governance in order to assess how these policies contribute to the rejection of migrants, perceiving them as a threat. migrants, perceiving them as a threat.

WHAT ARE THE CONSEQUENCES OF SECURITISATION FOR EUROPEAN MIGRATION

WHAT ARE THE CONSEQUENCES OF SECURITISATION FOR EUROPEAN MIGRATION GOVERNANCE? GOVERNANCE?

The main policies that make up the European Union's migration governance are migration policy, asylum The main policies that make up the European Union's migration governance are migration policy, asylum policy and cross-border policy. The close link between the migratory phenomenon and the right to asylum policy and cross-border policy. The close link between the migratory phenomenon and the right to asylum means that the normative and factual development of their respective policies is often carried out jointly. that the normative and factual development of their respective policies often carried jointly. And, superimposed on this, the use of external action as a strategy to contain migratory flows at source And, superimposed on this, the use of external as a strategy to contain migratory flows source means that cross- border policy plays a third role in migration governance. means cross- plays a third role in migration governance.

THE SECURITISATION OF EUROPEAN MIGRATION GOVERNANCE: THE SECURITISATION OF EUROPEAN MIGRATION GOVERNANCE: EFFECTS ON EU IMMIGRATION, ASYLUM AND CROSS-BORDER POLICY EFFECTS ON EU IMMIGRATION, ASYLUM AND CROSS-BORDER POLICY

Iris del Pino García Saavedra (Complutense University of Madrid) Iris del Pino García Saavedra (Complutense University of Madrid)

The inexorable link between The link these three dimensions obliges us to observe their development in tandem, obliges us to observe in tandem, without being able to completely compartmentalise their contents. without being able to compartmentalise their contents

Based on a previous study of the main milestones marking the normative development of these three Based on a previous study of the main milestones marking the normative development of these three policies, summarised in the following table, we have identified the two main effects that the securitisation policies, summarised in the following table, we have identified the two main effects that the securitisation of migration governance has entailed: the externalisation of borders and the promotion of negative of migration governance has entailed: the externalisation of borders and the of negative connotations surrounding the idea of migrant. surrounding the idea of migrant.

It can be deduced from the content of these norms and agreements that ‘since the 1990s, It can be deduced from the content of these norms and agreements that ‘since the 1990s, but especially but especially since the beginning of the 2000s, there has been a greater concern in the European Union for a stronger since the beginning of the 2000s, there has been a greater concern in the European Union for a stronger control of migratory flows, associating it with a pure question of security’ (Mártinez, 2020) control of migratory flows, associating with a pure question of security’ (Mártinez, 2020).

From the measures presented to achieve this objective, we can classify two main groups of measures, both From the measures presented to achieve this objective, we can two main groups of measures, both employing cooperation with non-EU states as the main strategy for managing immigration to Europe. On employing cooperation with non-EU states as the main strategy for managing immigration to Europe On the one hand, measures that have been designed to have long-term effects and address the structural the one hand, measures that have been designed to have long-term effects and address the structural causes that motivate migration. These would be those that seek to promote the development of the causes that motivate migration. These would be those that seek to promote the development of the economies of the states of origin economies of the states of origin.

THE SECURITISATION OF EUROPEAN MIGRATION GOVERNANCE: THE SECURITISATION OF EUROPEAN MIGRATION GOVERNANCE: EFFECTS ON EU IMMIGRATION, ASYLUM AND CROSS-BORDER POLICY EFFECTS ON EU IMMIGRATION, ASYLUM AND CROSS-BORDER POLICY

Iris del Pino García Saavedra (Complutense University of Madrid) Iris del Pino García Saavedra (Complutense University of Madrid)

And, on the other hand, those short-term measures that create a blockage at the And, on the other hand, those short-term measures that create a blockage at the gates of Europe through gates of Europe through cooperation with neighbouring states. The aim of this second group of measures is to ‘delegate the control cooperation with neighbouring states. The aim of this second group of measures is to ‘delegate the control of migratory flows to the main transit countries on the African continent, to create filter zones around of migratory flows to the main transit countries on the African continent, to create filter zones around Europe and, theoretically, to deter immigration’ (Gabrielli, 2012). Europe and, theoretically, to deter immigration’ 2012).

This implies the use of a strategy called externalisation of borders, whereby controls and containment

This implies the use of a strategy called externalisation of borders, whereby controls and mechanisms on migratory movements are not carried out at Europe's territorial borders, but in third mechanisms on migratory movements are not carried out at Europe's territorial borders, but in third countries (Mártinez, 2020). This allows the flow to stop before it even reaches European borders, countries (Mártinez, 2020). This allows the to stop before it even reaches European borders, contributing to their security. This trend over the course of the current century ‘has been consolidated as contributing to their security This trend over the course of the current century ‘has been consolidated as one of the priority objectives of EU policy’ (López-Sala, 2006). This is done mainly through a continuous one of the priority objectives of EU policy’ (López-Sala, 2006). This is done mainly through a continuous effort to adopt bilateral and multilateral agreements to involve third countries in management, transferring effort to adopt bilateral and multilateral agreements to involve third countries in management, transferring to them the pressure to manage the migratory phenomenon in the first instance them the pressure to manage the migratory phenomenon in the first instance.

It is worth noting that this second group of measures raises suspicions regarding their commitment to the It is worth noting that this second group of measures raises suspicions regarding their commitment to the defence of migrant’s rights. For although the mechanisms proposed to address cross-border cooperation in defence of migrant’s rights For although the mechanisms proposed to address cross-border cooperation in this area are presented as measures that respect human rights and seek to address the causes that motivate this area are presented as measures that respect human rights and seek to address the causes that motivate migration, the truth is that these actions are accompanied by mechanisms whose effectiveness lies in migration, the truth is that these actions accompanied by mechanisms whose effectiveness lies in containing migration, rather than preventing it from happening. Delegating control to these states containing migration, rather than preventing it from happening. Delegating control to these states considerably dilutes the effectiveness of the protection granted in their territories. In other words, the fact considerably dilutes the effectiveness of the protection granted in their territories. In other words, the fact that the European Union's external action tends to increasingly involve third states in migration control that the European Union's external action tends to increasingly third states in migration control also leads to a lack of protection of migrant’s fundamental rights because of this delegation. also leads to a lack of protection of migrant’s fundamental rights because of this delegation.

At the discursive level, the main effect that this gradual securitisation of migration policies has had is to At the discursive level, the effect that this gradual securitisation of migration policies has had to foster the link between migrants and instability, encouraging negative connotations that are increasingly foster the link between migrants and instability, negative connotations that are increasingly entrenched in the collective ideology. This is something in which many European political parties are entrenched in the collective ideology. This something in which many European political parties are particularly involved. involved.

The development of immigration, asylum and cross-border policies over the last decades has deepened The development of immigration, asylum and cross-border policies over the last decades has deepened this phenomenon, placing as a central objective the need to contain the arrival of migrants before they this phenomenon, placing a central objective the need contain the arrival of migrants before they even reach the European border, because they are perceived as a threat This has set a precedent for reach the European border, because they are perceived as a threat. This has a precedent for prejudice and xenophobia. Ultimately, this is institutional behaviour sustained over time, the effects of prejudice and xenophobia. Ultimately, this institutional behaviour sustained over the effects of which result in exclusion. which result in exclusion.

CONCLUSIONS CONCLUSIONS

This paper has pointed to the relationship between the securitarian approach, by which the policies This paper has pointed to the relationship between the securitarian approach, by which the policies shaping European migration governance have been developed, with the externalisation of borders and the shaping European migration governance have been developed, with the externalisation of borders and the perpetuation of institutional racism. perpetuation of institutional racism.

THE SECURITISATION OF EUROPEAN MIGRATION GOVERNANCE: THE SECURITISATION OF EUROPEAN MIGRATION GOVERNANCE: EFFECTS ON EU IMMIGRATION, ASYLUM AND CROSS-BORDER POLICY EFFECTS ON EU IMMIGRATION, ASYLUM AND CROSS-BORDER POLICY

Iris del Pino García Saavedra (Complutense University of Madrid) Iris del Pino García Saavedra (Complutense University of Madrid)

We have identified that the way in which the management of migration flows has been approached in the We that way in which the management of flows has been approached in European Union since the beginning of the 21st century has promoted the view of migrants as 'them' European Union since the beginning of the 21st century has promoted the view of migrants as 'them' versus 'us', with 'them' being a potential threat to our status quo and security. This discourse of positive versus 'us', with 'them' being a potential threat to our status quo and security. This discourse of positive self-representation and negative presentation of the other has been followed by the development of self-representation and negative presentation of the other has been followed by the development of immigration, asylum and cross-border policies that have tended to have as their main objective the control immigration, asylum and cross-border policies that have tended to have as their main objective the control of migratory flows, delegating this to third buffer states of migratory flows, delegating this to third buffer states.

Therefore, the development of migration governance points to the existence of discursive practices that Therefore, the development of migration governance points to the existence of discursive practices that perpetuate prejudice and discrimination in Western society, gradually influencing the collective ideology. perpetuate prejudice and discrimination in Western society, gradually influencing the collective ideology. If we accept this premise, we can consider that the securitisation of migration governance in the European If we accept this premise, we can consider that the securitisation of migration governance in the European Union responds to the logic of institutional racism Union responds to the logic of institutional racism.

For this reason, we encourage academia to explore this idea in greater depth, in order to stimulate a debate For this reason, we encourage academia to explore idea in greater depth, in order to stimulate a debate from which to propose new ways of managing migration that do not encourage rejection of immigrants. from which to propose new ways of managing migration that do not encourage rejection of immigrants

REFERENCES REFERENCES

Arellano, M D R , 2018 Securitización como supervivencia, securitización como actos del habla: crítica Arellano, M. D. R., 2018. Securitización como supervivencia, securitización como actos del habla: crítica a la Escuela de Copenhague. a la Escuela de Copenhague. Revista Latinoamericana de Estudios de Seguridad Revista Latinoamericana de Estudios de Seguridad, Issue 22, pp. 58-69. Issue 22, pp. 58-69.

Dijk, T. A. v., 2006. Discurso de las élites y racismo institucional. Dijk, T A v , 2006 Discurso de las élites y racismo institucional Medios de comunicacion e Medios de comunicacion e iinmigración nmigración, pp. 15-34. , pp. 15-34.

Ferrero-Turrión, R , 2017 Ferrero-Turrión, R., 2017. Las migraciones internacionales, percepción y realidad. Un análisis desde la Las internacionales, percepción y realidad. Un análisis desde la perspectiva de la seguridad de la seguridad.. Monografías 152 ed. Madrid: Escuela Superior de las Fuerzas Armadas. Monografías 152 ed. Madrid: Escuela Superior de las Fuerzas Armadas.

Gabrielli, L., 2012. En: Gabrielli, L , 2012 En: El codesarrollo a debate El codesarrollo a debate. Granada: Comares, pp. 47-58. Granada: Comares, pp 47-58

López-Sala, A M , 2006 López-Sala, A. M., 2006. CIDOB: POLÍTICA MIGRATORIA E INMIGRACIÓN

IRREGULAR A TRAVÉS CIDOB: POLÍTICA MIGRATORIA INMIGRACIÓN IRREGULAR TRAVÉS

DE EMBARCACIONES: el caso del archipiélago canario

EMBARCACIONES: el caso del archipiélago [En línea] . [En línea] Available at: https://www.raco.cat/index.php/AnuarioCIDOBInmigracion/article/view/355912/447879 at: https://www.raco.cat/index.php/AnuarioCIDOBInmigracion/article/view/355912/447879 [Último acceso: 11 mayo 2021]. [Último acceso: 11 mayo 2021]

Mártinez, D. H., 2020. LA POLÍTICA DE LA UNIÓN EUROPEA HACIA EL MAGREB Y SAHEL: Mártinez, D. H., 2020. LA POLÍTICA DE LA UNIÓN EUROPEA HACIA MAGREB Y SAHEL: externalización de fronteras y securitización de migraciones externalización de fronteras y securitización de migraciones. ACTAS IV CONGRESO INTERNACIONAL ACTAS IV CONGRESO INTERNACIONAL DE GLOBALIZACIÓN, ÉTICA Y DERECHO: LOS DESAFÍOS DE LA GLOBALIZACIÓN, ÉTICA Y DERECHO: LOS DESAFÍOS DE LA GLOBALIZACIÓN: RESPUESTAS DESDE AMÉRICA LATINA Y LA UNIÓN EUROPEA GLOBALIZACIÓN: RESPUESTAS DESDE AMÉRICA LATINA Y LA UNIÓN EUROPEA, pp. 78-95. , pp. 78-95.

THE SECURITISATION OF EUROPEAN MIGRATION GOVERNANCE: THE SECURITISATION OF EUROPEAN MIGRATION GOVERNANCE:

EFFECTS ON EU IMMIGRATION, ASYLUM AND CROSS-BORDER POLICY EFFECTS ON EU IMMIGRATION, ASYLUM AND CROSS-BORDER POLICY

Iris del Pino García Saavedra (Complutense University of Madrid) Iris del Pino García Saavedra (Complutense University of Madrid)

Pererira y Domenech, 2021. Pererira y Domenech, 2021. Pensar las migraciones contemporáneas: Securitización de Pensar las migraciones contemporáneas: Securitización de las migraciones las migraciones.. Córdoba: TeseoPress Córdoba: TeseoPress.

Sánchez y Gálvez, 2006. La crisis de los cayucos. La Agencia Europea de Fronteras-Frontex y el control Gálvez, 2006. La crisis de los cayucos. La Agencia Europea de Fronteras-Frontex control marítimo de la inmigración clandestina. marítimo de la clandestina Tiempo de paz Tiempo de paz, Issue 83, pp. 19-30. , Issue 83, pp 19-30

Santacruz, B. P., 2021. Repositorio Comillas - Santacruz, B. P., 2021. Repositorio Comillas - La externalización del control de fronteras en el Nuevo La externalización del control de fronteras en el Nuevo Pacto sobre Migración y Asilo de la Unión Europea Pacto sobre Migración y Asilo de la Unión Europea [En línea] . [En línea]

Available at: Available at: https://repositorio.comillas.edu/xmlui/bitstream/handle/11531/47730/TFG%20%20Plaza%20Santacruz%2c%20Belen.pdf?sequence=1&isAllowed=y [Último acceso: enero 2022]. %20Plaza%20Santacruz%2c%20Belen pdf?sequence=1&isAllowed=y [Último acceso: enero 2022]

‘Far from Innocent’: Luxembourg, The National Action Plan against ‘Far from Innocent’: Luxembourg, The National Action Plan against Racism and Racism and The EU Anti-Racism Action Plan 2020-2025 The EU Anti-Racism Action Plan 2020-2025

Introduction Introduction

The Summer of 2020 was a wake-up call for the European Union since for the longest time, the EU did The Summer of 2020 was a wake-up call for the European Union for the longest time, the EU did not want to acknowledge that it has racism issues on its continent However, when the Black Lives Matter want to acknowledge that it has racism issues on its continent. However, when the Black Lives Matter protests also started on European territory, it was not only in solidarity with the Black American also started on European territory, it was only in solidarity with Black American community but also to fight systemic racism in their own countries. With the EU’s motto being “Unity in community but also to fight systemic racism in their own countries With the EU’s motto being “Unity in Diversity”(1), EU Commission President, Ursula von der Leyen, strives to make this a reality by speaking Diversity”(1), EU Commission President, Ursula von der Leyen, strives to make this a reality by speaking of structural racism - a first for a European institution to acknowledge its existence - and building a “truly of structural racism - a first for a European institution to acknowledge its existence - and building a “truly anti-racist Union” before introducing in September 2020 the European Anti-Racism Plan 2020-2025.(2) Union” before introducing in September 2020 the European Anti-Racism Plan 2020-2025.(2) Part of this plan is for Member States to adopt a National Action Plan against Racism Luxembourg Part of this plan is for Member States to adopt National Action Plan against Racism. Luxembourg vouched on two different occasions - 2001 UN WCAR(3) and adopting a Parliamentary motion in July vouched on two different occasions - 2001 UN WCAR(3) and adopting a Parliamentary motion in 2020 - to adopt this action plan, yet in March 2022, Minister for Family Affairs, Integration and the 2020 - to adopt this action plan, yet in March 2022, Minister for Family Affairs, Integration and the Greater Region, Corinne Cahen, insists that Luxembourg does not need one, since it has its 2018 National Greater Region, Corinne Cahen, insists that Luxembourg does not need one, since it has its 2018 National Action Plan for Integration. Action Plan for Integration.

This paper will first present the EU Anti-Racism Plan 2020-2025 and its importance in the current This paper will first present the EU Anti-Racism Plan 2020-2025 and its importance in the current climate while in a second part, using Luxembourg as an example, examine what makes an effective climate while in a second part, using Luxembourg as an example, examine what an effective National Action Plan against Racism and its need. National Action Plan against Racism and its need.

Rebecca Issai Okine (University of Luxembourg) Rebecca Issai Okine (University of Luxembourg)

‘Far from Innocent’: Luxembourg, The National Action Plan against ‘Far from Innocent’: Luxembourg, The National Action Plan Racism and Racism and The EU Anti-Racism Action Plan 2020-2025 The EU Anti-Racism Action Plan 2020-2025

European Anti-Racism Action Plan (EU ARAP) European Anti-Racism Action Plan (EU ARAP)

The European Commission announced on September 19th 2020 a five-year anti-racism action plan, the The European Commission announced on September 19th 2020 a five-year anti-racism action plan, the EU ARAP, which recognises the need for legislative procedures to address the core problems of structural ARAP, which recognises the need for legislative procedures to address the problems of structural racism in the European Union The EU has legislation in place that prohibits discrimination based on the in the European Union. The EU has legislation in place that prohibits discrimination based on the grounds of racial or ethnic backgrounds, such as the CFR(4) or the Treaties, same as a Racial Equality of racial or as the CFR(4) or the Treaties, same as a Equality Directive and other EU laws to actively combat racism, hate speech and racial discrimination.(5) Yet more Directive and other EU laws to combat racism, hate speech and racial discrimination.(5) Yet more than half of Europeans say discrimination is common in their country and the statistics only reinforce their than half of Europeans say discrimination is common in their country and the statistics only reinforce their statement. The European Union Agency for Fundamental Rights (FRA) conducted studies which showed statement. The European Union Agency for Fundamental Rights (FRA) conducted studies which showed that “45% of people of North African descent, 41% of Roma, 39% of people of Sub-Saharan African that “45% of people of North African descent, 41% of Roma, 39% of people of Sub-Saharan African descent and 11% of Jews have felt discriminated against in Europe”.(6) Therefore, more action from the descent and 11% of Jews have felt discriminated against in Europe”.(6) Therefore, action from the EU is needed to address the Union's chronic disparities. EU needed to address Union's disparities.

The EU ARAP has five focus areas to effectively tackle racism in the European Union. First, using The EU ARAP has five focus areas to effectively tackle racism in the European Union. First, using legislation to combat racism and racial discrimination.(7) The European Commission will conduct an legislation to combat racism and racial discrimination.(7) The European Commission will conduct an extensive review of existing legal frameworks around inclusion and anti-discrimination.(8) Second, review of existing legal frameworks around inclusion and anti-discrimination.(8) Second, confronting racism in daily life and by individuals, beyond the law.(9) confronting racism in daily life and by individuals, beyond the law.(9)

This entails equal access to employment, education, health, and housing, preventing discrimination by law This entails equal access to education, health, and housing, preventing discrimination by law enforcement and recognising hazards in new technologies.(10) Next is addressing the core problems of enforcement and recognising hazards in new technologies.(10) Next is addressing the core problems of structural racism.(11) This means “using the right data and changing policies; combating stereotypes and structural racism.(11) This means “using the right data and changing policies; combating stereotypes and raising awareness of relevant history” (12) The Commission heavily relies on the FRA to separate their raising awareness of relevant history”.(12) The Commission heavily relies on the FRA to separate their data based on race or ethnic background when conducting surveys for trustworthy results as well as data based on race or ethnic background when conducting surveys for trustworthy results well as collaborating with the media, civic society and representatives of individuals from racial or ethnic collaborating with the media, society and representatives of individuals from racial or ethnic minorities to take steps addressing racial and ethnic stereotypes. Then, “a framework for delivery: minorities to take steps racial and ethnic stereotypes Then, “a framework for delivery: harnessing EU tools to their full extent”.(13) harnessing EU tools to their full extent” (13)

Rebecca Issai Okine (University of Luxembourg) Rebecca Okine (University of Luxembourg)

‘Far from Innocent’: Luxembourg, The National Action Plan against ‘Far from Innocent’: Luxembourg, The National Action Plan Racism and Racism and The EU Anti-Racism Action Plan 2020-2025 The EU Anti-Racism Action Plan 2020-2025

Issai Okine (University of Luxembourg) Rebecca Okine (University of Luxembourg)

This area establishes “National action plans; mobilisation at regional This area establishes “National action plans; mobilisation at regional and local levels; mainstreaming” to and local levels; mainstreaming” to attend everyone’s interests, regardless of racial or cultural background.(14) And finally, the EU is taking attend interests, regardless of racial or cultural background (14) And the EU is positive action by listening, learning, and acting.(15) The Commission aims to provide a good example in positive action by listening, and acting (15) The Commission aims to provide a good example in terms of diversity and inclusiveness.(16) terms of diversity and inclusiveness (16)

Carolin Müller writes in her article that “in order to be effective, the [EU ARAP] needs to be more critical Carolin Müller writes in her article that “in order to be effective, the [EU ARAP] needs to be more critical of previous legislation and its application of intersectionality as a conceptual framework”.(17) This explains of previous legislation and its application of intersectionality as a conceptual framework”.(17) This explains why the Commission, through the EU ARAP, tries to hone in on Member States and placing them at the core why the Commission, through the EU ARAP, tries to hone in on Member States and placing them at the core of the fight against racism by asking them to adopt a National Action Plan against Racism. of the fight against racism by asking them to adopt a National Action Plan against Racism.

National Action Plan against Racism (NAPAR) National Action Plan against Racism (NAPAR)

The first mention of a NAPAR was during the 2001 UN WCAR where it was recommended to the The first mention of a NAPAR was during the 2001 UN WCAR where it was recommended to the participating countries through the Conference’s Declaration and Programme of Action to “develop or participating countries through the Conference’s Declaration and Programme of Action to “develop or elaborate national action plans to promote diversity, equality, social justice, equality of opportunity and the elaborate national action plans to promote diversity, equality, social justice, equality of opportunity and the participation of all”.(18) Member States play a crucial role in the fight against racism and discrimination, participation of all” (18) Member States play a crucial role in the fight against racism and discrimination, encouraging diversity and having a responsibility to guarantee the full implementation and administration of encouraging diversity and having a responsibility to guarantee the full implementation and administration of EU law at the national level.(19) Therefore, a NAPAR has shown to be an effective tool for Member States to EU law at the national level (19) Therefore, a NAPAR has shown to be an effective tool for Member States to respond to racial injustice and racism while simultaneously tailoring actual steps to their specific situations. to racial injustice and racism while simultaneously tailoring actual steps to their situations (20) (20)

Based on a report from 2020 by the FRA, about 15 of the EU’s Member States have already started work Based on report from 2020 by the FRA, about 15 of the EU’s Member States have already started work on a NAPAR in 2019 (21) Luxembourg is not among them but rather hides behind its “fairy tale image of an on a NAPAR in 2019.(21) Luxembourg is not among them but rather hides behind its “fairy tale image of an international, multilingual country in which 47% of the population are foreigners from 170 nationalities” international, multilingual country in which 47% of the population are foreigners from 170 nationalities” where there simply are no problems.(22) Yet, to Luxembourg’s disbelief, FRA’s 2018 study showed that where there simply are no problems.(22) Yet, to Luxembourg’s disbelief, FRA’s 2018 study showed that about 50% of BIPOC in Luxembourg were discriminated against in the last 12 months.(23) Member of about 50% of BIPOC in Luxembourg were discriminated against in the last 12 months.(23) Member of Parliament, Sven Clement, stated that “[i]f there’s a lack of awareness, how can there be an approach to a Parliament, Sven Clement, stated that “[i]f there’s a lack of awareness, how can there be an approach to a solution?”.(24) Which is why MP Clement not only spoke of systemic racism but introduced the motion of a solution?” (24) Which is why MP Clement not only spoke of systemic racism but introduced the motion of a NAPAR in Parliament in July 2020 which was adopted with 56 MPs voting in favour and four against.(25) NAPAR in Parliament in July 2020 which was adopted with 56 MPs voting in favour and four against (25)

Rebecca

‘Far from Innocent’: Luxembourg, The National Action Plan against ‘Far from Innocent’: Luxembourg, The National Action Plan Racism and Racism and The EU Anti-Racism Action Plan 2020-2025 The EU Anti-Racism Action Plan 2020-2025

Rebecca Issai Okine (University of Luxembourg) Rebecca Okine (University of Luxembourg)

A NAPAR aims to “tackle racism through targeted measures and actions, in close

A NAPAR aims to “tackle racism through targeted measures and actions, in close cooperation with cooperation with different key stakeholders, in policy discussions, design and implementation”.(26) The Commission created a different key stakeholders, in policy discussions, design and implementation” (26) The Commission created a specific subgroup, consisting of EU Member States’ and Norway representatives, which is to draft guidelines subgroup, consisting of EU Member States’ and Norway representatives, which is to draft guidelines on the key principles and aspects that must be included in successful NAPARs.(27) The principles that the on the key and aspects that must be included in successful NAPARs (27) The principles that the subgroup has created are the following eight: has created are the eight:

1. “Recognise and encourage diversity, equity and equality.

1. “Recognise and encourage diversity, equity and equality.

2. Ensure that EU legal and policy frameworks and other commitments derived from 2. Ensure that EU and policy frameworks and other commitments derived from international obligations are fully embedded and implemented at national level international obligations are fully embedded and implemented at national level.

3 Identify and tackle potential manifestations of structural racism and their impact 3. Identify and tackle potential manifestations of structural racism and their impact.

4 Set specific and achievable objectives in national action plans 4. Set specific and achievable objectives in national action plans.

5 Establish measures tackling racism in a holistic approach by ensuring 5. Establish tackling racism in a holistic approach by ensuring coordination and mainstreaming of anti-racism actions in policies at national, coordination and mainstreaming of anti-racism actions in policies national, regional and local levels regional and local levels.

6 Ensure that engagement, active participation and transparency are guiding 6. Ensure that engagement, active participation and transparency are guiding principles and inform the design and implementation of national action plans principles and inform the design and implementation of national action plans.

7. Collect and use equality and hate crime data to ensure evidence-based

7. Collect and use equality and hate crime data to ensure evidence-based policymaking. policymaking.

8. Duly consider proper monitoring and/or evaluation of national action plans.”(28) 8. Duly consider proper monitoring and/or evaluation of national action plans.”(28)

It is important to note that NAPARs are not ‘one-size fits all’ but that they need to be individually created to It is important to note that NAPARs are not ‘one-size fits all’ but that they need to be individually created to fit the country’s situation. As their name says, these principles are meant to guide national governments fit the country’s situation As their name says, these principles are meant to guide national governments regarding each step of the plan. regarding each step of the plan

The EU Commission highly encourages its Member States to adopt a NAPAR by the end of 2022 and to The EU Commission highly encourages its Member States to adopt a NAPAR by the end of 2022 and to “ensure that civil society representatives and equality bodies are involved in the design, implementation and “ensure that civil society representatives and bodies are involved in the design, and evaluation”(29) of NAPARs. of NAPARs

National Action Plan against Racism vs National Action Plan for Integration (NAP Integration) National Action Plan against Racism vs National Action for Integration (NAP Integration)

A NAPAR is an obligation for Member States which leaves leeway to national governments.

A NAPAR is not an obligation for Member States which leaves leeway to national governments.

‘Far from Innocent’: Luxembourg, The National Action Plan against ‘Far from Innocent’: Luxembourg, The National Action Plan Racism and Racism and The EU Anti-Racism Action Plan 2020-2025 The EU Anti-Racism Action Plan 2020-2025

Rebecca Issai Okine (University of Luxembourg) Rebecca Okine (University of Luxembourg)

The Luxembourgish Minister for Family Affairs, Integration and the Greater Region, Corinne Cahen, did not The Luxembourgish Minister for Family Affairs, Integration and the Greater Region, Corinne Cahen, did not only in a national press conference on March 8th 2022 but also during the 2022 European Anti-Racism only in a national press conference on March 8th 2022 but also the 2022 European Anti-Racism Summit two weeks later state that Luxembourg will only have a National Action Plan for Integration “that Summit two weeks later state that Luxembourg will only have a National Action Plan for Integration “that addresses issues related to the high population diversity and the fight against all form of discrimination”.(30) addresses issues related to the diversity and the fight against all form of discrimination” (30) At the same Summit, Cahen proclaimed that “the fight against racism and all forms of discrimination is a At the same Summit, proclaimed that “the fight against racism and all forms of discrimination is a priority for the priority for the Luxembourgish government”(31) yet the Integration National Action Plan is supposed to lead Luxembourgish government”(31) yet Integration National Action supposed to lead this fight focusing on discrimination. Before continuing as to why a National Action Plan for Integration fight focusing on discrimination. Before as to a National Action Plan for Integration cannot replace one against Racism, first an introduction to said action plan. replace one against Racism, first an introduction to said action plan.

Adopted in 2018, the NAP Integration “provides a general, strategic and sustainable framework for the Adopted in 2018, the NAP Integration “provides a general, strategic and sustainable framework for the implementation of integration policy”(32) which focuses on two areas of policies First, it concentrates on implementation of integration policy”(32) which focuses two areas of policies. First, it on integrating all non-Luxembourgers into Luxembourg’s society and second, it contributes to receiving and integrating all non-Luxembourgers into Luxembourg’s society and second, it contributes to receiving and socially supporting asylum seekers The goals of the NAP Integration are also clearly laid out: “The fight socially supporting asylum seekers. The goals of the NAP Integration also clearly laid out: “The fight against discrimination, the promotion of diversity and equal opportunities” (33) Hence, the NAP Integration against discrimination, the promotion of diversity and equal opportunities”.(33) Hence, the NAP Integration does not deal with racism or combating it, but only with discrimination and integration does not deal with or combating it, but only with discrimination and integration.

As stated, the NAPAR’s main goal is the fight against racism but the NAP Integration lacks essential As stated, the NAPAR’s main goal is the fight against racism but the NAP Integration lacks essential elements laid out by the EU Anti-Racism Summit, the UN WCAR, European NGOs and lastly by the people elements laid out by the EU Anti-Racism Summit, the UN WCAR, European NGOs and lastly by the people to qualify as a NAPAR. to qualify as a NAPAR.

First, the 2018 NAP Integration does not include a single definition of racism. If it is to discard the demand First, the 2018 NAP Integration does not include a single definition of racism If it is to discard the demand for a NAPAR, it needs to include definitions of racism and its different forms, such as structural, historical, for a NAPAR, it needs to include definitions of racism and its different forms, such as structural, historical, institutional or individual, all of which BIPOC experience.(34) Yet also, for an action plan that focuses on institutional or individual, all of which BIPOC experience (34) Yet also, for an action plan that focuses on integration and fighting discrimination, the NAP Integration does not provide definitions for both of these integration and fighting discrimination, the NAP Integration does not provide definitions for both of these either, meaning that there is a lack of clarity as to what falls under their scope. Second, according to either, meaning that there is a lack of clarity as to what falls under their scope Second, according to Luxembourgish feminist and antiracist association Lëtz Rise Up, the NAP Integration needs to define detailed feminist and antiracist association Lëtz Rise Up, the NAP Integration needs to define detailed objectives, develop programs and actions to reach said objectives but from the angle of the Right to Equality develop programs and actions to reach said objectives but from the angle of the Right to Equality and especially from a racial non-discrimination view point.(35) Currently, the NAP Integration has two areas and especially from a racial non-discrimination view point.(35) the NAP Integration has two areas of action: action:

1. “RECEPTION: Develop mechanisms to facilitate the reception and integration of applicants for 1. “RECEPTION: Develop facilitate of applicants international protection international protection

2 INTEGRATION: Facilitating the participation of non-Luxembourgers in society”(36)

2. INTEGRATION: Facilitating the participation of non-Luxembourgers in society”(36)

‘Far from Innocent’: Luxembourg, The National Action Plan against ‘Far from Innocent’: Luxembourg, The National Action Plan against Racism and Racism and The EU Anti-Racism Action Plan 2020-2025 The EU Anti-Racism Action Plan 2020-2025

Rebecca Issai Okine (University of Luxembourg) Rebecca Issai Okine (University of Luxembourg)

Each of the two areas contains objectives and measures to attain integration goals but they are Each of the two areas contains objectives and measures to attain integration goals but they not from a point from a point of view that would be sensitive to racism Instead of being a statement of purpose or a list of current priorities, of view that would be sensitive to racism. Instead of being a statement of purpose or a list of current priorities, NAPARs should incorporate explicit policy objectives and measurable progress indicators, which the NAP NAPARs should incorporate explicit policy objectives and measurable progress indicators, which the NAP Integration does not do. The third element adds to the second one since it demands for structural anti-racist Integration does do. The third element adds to the second one since it demands for structural measures that are established by the Luxembourgish government and do not fall under the responsibility of measures that are established by the Luxembourgish government and do not fall under the responsibility of society.(37) These actions include but are not limited to effectively measuring and assessing racial society.(37) These actions include but are not limited to effectively measuring and assessing racial discrimination in the criminal justice sector. Only after discovering its existence and extent in criminal justice discrimination in the criminal justice sector. Only after discovering its existence and extent in criminal justice administration and operation, is it possible, with the judiciary administration, to create anti-discrimination administration and operation, is it possible, with the judiciary administration, to create anti-discrimination monitoring units.(38) Another action is that judges, lawyers and other justice officials are required to monitoring units (38) Another action is that judges, lawyers and other justice officials are required to participate in training programs aimed at preventing racial or xenophobic bias and ensuring a fair and participate in training programs aimed at preventing racial or xenophobic bias and ensuring a fair and impartial implementation of the law.(39) A third action is the inclusion of Luxembourg's colonial history in impartial implementation of the law (39) A third action is the inclusion of Luxembourg's colonial history in school curricula.(40) Not only does this represent an improvement but it also teaches the acknowledgment of school curricula (40) Not only does this represent an improvement but it also teaches the acknowledgment of colonial faults and that Luxembourg is not innocent. The final action is to build teachers’ understanding of colonial faults and that Luxembourg is not innocent The final action is to build teachers’ understanding of structural racism to be aware of their own racial bias.(41) This should lead to them encouraging racialised structural racism to be aware of their own racial bias (41) This should lead to them encouraging racialised students, particularly those of African origin, to pursue higher education. students, particularly those of African origin, to pursue education

If the NAP Integration can implement these elements, then Luxembourg can continue its narrative of not If the NAP Integration can implement these elements, then Luxembourg continue its narrative of not needing a NAPAR. Eventually, there is an official call for projects for 2022(42), hinting at a reform of the needing a NAPAR. Eventually, there is an official call for projects for 2022(42), hinting at a reform of the existing NAP Integration but its success relies solely on the Ministry of Family Affairs, Integration and the existing NAP Integration but its success relies solely on the Ministry of Family Affairs, Integration and the Greater Region taking the recommendations seriously. Greater Region taking the recommendations seriously.

Conclusion Conclusion

The EU ARAP was created with the intention of fighting (structural) racism and racial discrimination The EU ARAP was created with the intention of fighting (structural) racism and racial discrimination within the European Union. It showed that the EU understood that change for the better needed to be made. As within the European Union It showed that the EU understood that change for the better needed to be made As of how the EU ARAP operates, meaning its five focus areas, EU Member States are the driving force, of how the EU ARAP operates, meaning its five focus areas, EU Member States are the driving force, especially through a NAPAR that they are highly encouraged to establish. The advantage of a NAPAR is that especially through a NAPAR that they are highly encouraged to establish The advantage of a NAPAR is that it is customisable to each country’s situation with the EU Commission’s subgroup’s guidelines as a reference it is customisable to each country’s situation with the EU Commission’s subgroup’s guidelines as a reference point. While 15 Member States have already instigated a NAPAR in 2019, Luxembourg is not among those. point While 15 Member States have already instigated a NAPAR in 2019, Luxembourg is not among those Despite having adopted a Parliamentary motion in July 2020, Minister Cahen insists that Luxembourg has no Despite having adopted a Parliamentary motion in July 2020, Minister Cahen insists that has no need for a NAPAR since it has a NAP Integration. However, integration cannot solve the problem of racism need for a NAPAR since it has a NAP Integration However, integration cannot solve the problem of racism but rather shifts the blame of racism onto the victims - BIPOC in Luxembourg. Additionally, the NAP but rather shifts the blame of racism onto the victims - BIPOC in Luxembourg the NAP Integration that Luxembourg has is not equipped to tackle racism, at least not in its current form. Not having a Integration that Luxembourg not equipped to at least not in its current form. Not having a NAPAR basically hinders the EU’s plans for the Union, since it wants to end racism in the EU through its NAPAR basically hinders the EU’s plans for the Union, since it wants to end racism in EU its Member States’ national governments but Luxembourg, by not creating a NAPAR, rejects the EU’s Member States’ national governments by not creating a NAPAR, rejects EU’s objectives. The success of the fight against racism with the EU ARAP is inevitably linked to the success of a objectives. The success of the fight against racism with the EU ARAP is inevitably linked to the success of a NAPAR, and if Minister Cahen does not recognise this and sticks to a NAP Integration, then Luxembourg has NAPAR, and if Minister Cahen does recognise this and sticks to a NAP Integration, then Luxembourg has not only failed its Black and POC residents, but also the European Union not only failed its Black and POC residents, but also the European Union.

‘Far from Innocent’: Luxembourg, The National Action Plan against ‘Far from Innocent’: Luxembourg, The National Action Plan Racism and Racism and The EU Anti-Racism Action Plan 2020-2025 The EU Anti-Racism Action Plan 2020-2025

Rebecca Issai Okine (University of Luxembourg) Rebecca Issai Okine (University of Luxembourg)

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Rebecca Issai Okine (University of Luxembourg) Rebecca Okine (University of Luxembourg)

The Hidden Racialization of Marriage Migrants The Hidden Racialization of Marriage Migrants Through Bureaucratic Practices in Europe Through Bureaucratic Practices in Europe

Alena Zelenskaia (Ludwig-Maximilian University, Germany) Alena Zelenskaia (Ludwig-Maximilian University, Germany)

Special Research Centre “Cultures of Vigilance”, SFB 1369 of the German Research Foundation Special Research Centre “Cultures of Vigilance”, SFB 1369 of the German Research Foundation Institute for European Ethnology and Cultural Analysis of Ludwig Maximilian Institute for European Ethnology and Cultural Analysis of Ludwig Maximilian University of Munich, Germany University of Munich, Germany

Anatoly, a descendant of ethnic Germans living in Ukraine, decided that he would like to emigrate to Anatoly, a descendant of ethnic Germans living in Ukraine, decided that he would like to emigrate to Germany in 2001 He recalls the moment when he submitted the documents necessary for this move: “[A Germany in 2001. He recalls the moment when he submitted the documents necessary for this “[A consular officer at the German Embassy in Kyiv] looked through the documents and said that I should apply consular officer at German in Kyiv] looked through the documents and said that I should apply only with the children and not include my wife into the application. Why? She explained that my wife was not only with the children and not include my wife into the application. Why? She that my wife was not German and she was half-Gipsy! Because of her we might all not get allowed [into Germany]”. The woman at German and she was half-Gipsy! Because of her we might all not get allowed [into Germany]” The woman at the embassy advised Anatoly to divorce his “half-Gipsy” wife, to whom he had been married for over 15 the embassy advised Anatoly to divorce his “half-Gipsy” wife, to whom he had been married for over 15 years, to facilitate his own emigration Astonishingly, Anatoly, submitted to this recommended act of years, facilitate his own emigration. Astonishingly, Anatoly, submitted to this recommended act of subjugation, and, following the advice he received, divorced his wife for the sake of his planned emigration. subjugation, and, following the advice he received, divorced his wife for the sake of his planned emigration.

This example clearly illustrates how the practices of control with regards to both migration and the conjugal This example clearly illustrates how the practices of control with regards to both migration and the conjugal life of migrants were formulated based on existing prejudices against people with mixed racial backgrounds, life of migrants were formulated based on existing prejudices against people with mixed racial backgrounds, as well as against those of a Sinti and Roma background, two ethnic groups that have long been portrayed as as well as against those of a Sinti and Roma background, two ethnic groups that have long been portrayed as “suspect” in many European countries (see Yuval-Davis, Wemyss & Cassidy 2017) It is hard to imagine that “suspect” in many European (see Yuval-Davis, Wemyss & Cassidy 2017). It is hard to imagine that in 2001, long after the horrors of the Holocaust, such scandalous comments relating to the ethnicity or race of 2001, long after the horrors of the Holocaust, such scandalous relating to the ethnicity race of a migrant could be uttered. Many believe Europe to be a space that is post-racial, color-blind, egalitarian, and a could be Many believe Europe to be a space that is post-racial, color-blind, egalitarian, and multicultural (Lewis 2013). It had been stated that the mere term “race” has been symbolically evicted from multicultural (Lewis 2013) It had been stated that the mere term “race” has been symbolically evicted from continental Europe, displaced “to an ‘elsewhere’ that was the USA and the UK” (Roig 2016: 613). However, continental Europe, displaced “to an ‘elsewhere’ that was the USA and the UK” (Roig 2016: 613) However, this positive self-image of European societies runs counter to the structures, discourses, practices, and this positive self-image of European societies runs counter to the structures, discourses, practices, and experiences based on racialization that exist within this space and which very much continue to persist within experiences based on racialization that exist within this space and which very much continue to persist within it Scholars suggest that the European space is one which is “race-mute” (Lavanchy 2014) rather than “race- it. Scholars suggest that the European space is which is “race-mute” (Lavanchy 2014) rather than “raceblind”, in which the notion of race is substituted with other less historically-loaded terms such as nationality, in which the notion of race is substituted other less historically-loaded terms as nationality, ethnicity, culture, and religion (Roig 2016: 613). The summer of 2020 saw a striking acknowledgment of ethnicity, culture, and religion (Roig 2016: 613) The summer of 2020 saw a striking acknowledgment of several European countries’ racist pasts: thousands of people in Paris, Berlin, Frankfurt, Rome, Brussels, several European countries’ racist pasts: thousands of people in Paris, Berlin, Frankfurt, Rome, Brussels, Milan and many other cities across Europe protested in solidarity with the US Black Lives Matter movement Milan and many other cities across Europe protested in solidarity with the US Black Lives Matter movement against inequality, white supremacy and racism These mass demonstrations highlighted the existence of a against inequality, white supremacy and racism. These mass demonstrations highlighted the of a muted colonial legacy within Europe and called for more political awareness with regards to racism and muted colonial legacy within Europe and called for more political awareness with regards to and racialization. racialization.

Structural racial discrimination in Europe reveals itself through the increasing securitization of migrants and

Structural racial discrimination in Europe reveals itself through the increasing securitization of migrants and migratory practices (Orsini et al. 2021). Immigration policies and the manifold bureaucratic procedures migratory practices (Orsini et al. 2021). Immigration policies and the manifold bureaucratic procedures migrants go through reproduce formations of white superiority, manifested in privileged access to the migrants go through reproduce formations of white superiority, manifested in privileged access the territories of the European states and the states’ resources Among all categories of migration, control over of the European states and the states’ resources. Among all categories of migration, control marriage migration appears to be the most moralized and contested issue of biopolitics and belonging marriage migration appears to be the most moralized and contested of biopolitics and belonging (Bonjour and Kraler 2015). The practices of civil registrar offices, where marriages between nationals and (Bonjour and Kraler 2015) The practices of civil registrar offices, marriages between nationals and non-nationals are not only officiated over, but also evaluated and where permission to marry is either granted non-nationals are not only officiated over, but also evaluated and where permission to marry is either granted or denied, and of the foreign consulates, where marriage or denied, and of the foreign consulates, where marriage

The Hidden Racialization of Marriage Migrants Through Bureaucratic Practices in Europe

The Hidden Racialization of Marriage Migrants Through Bureaucratic Practices in Europe

Alena Zelenskaia (Ludwig-Maximilian University, Germany)

Alena Zelenskaia (Ludwig-Maximilian University, Germany)

migrants are filtered and selected (FitzGerald 2019), as well as notions of love (Maskens 2021) enacted migrants are filtered and selected (FitzGerald 2019), as well as notions of love (Maskens 2021) enacted by the by the border agents, construct the state framework that produces white nations. State institutions and their actors, border agents, construct the state framework that produces white nations State institutions and their actors, thus, embody border control and systematic racism, understood as “a social system of meanings, organized thus, embody border control and systematic racism, understood as “a social system of meanings, organized around morphology and ancestry on three interrelated levels – physical, social and material” (Lavanchy 2014: around morphology and ancestry on three interrelated levels – physical, social and material” (Lavanchy 2014: 7). 7)

This paper addresses the racialized controlling practices exercised with regards to marriage migrants at various This paper addresses the racialized practices exercised regards to marriage migrants at various bureaucratic bodies across Europe. It seeks to unveil the institutional production of hidden racialization and bureaucratic bodies across Europe. It seeks to unveil institutional of and “privileged whiteness” in the context of “making race absent”. The analysis is based on the review of whiteness” in context “making race absent”. The analysis based on review of secondary sources, i.e. research articles about marriage/family migration in Western European countries, as secondary sources, i.e. research articles about marriage/family migration in Western European as well as on the examination of ethnographic interviews with marriage migrants from five post-Soviet countries well as on the examination of ethnographic interviews with marriage migrants from five post-Soviet countries (Russia, Ukraine, Belarus, Uzbekistan and Kyrgyzstan), which were conducted in Germany between August (Russia, Ukraine, Belarus, Uzbekistan and Kyrgyzstan), which conducted in Germany between August 2020 and March 2021 2020 and March 2021.

Marriage Migration as a Security Concern Marriage Migration a Security Concern

Jef Huysmans determined three main fields of securitization of migration in general – internal security, Jef Huysmans determined three main fields of securitization of migration in general – internal security, cultural identity, and welfare state (Huysmans 2006) These categories cannot be neatly disentangled and cultural identity, and welfare (Huysmans 2006). These categories cannot be neatly disentangled and interplay often exists between them, still, one of the main issues relating to the securitization of family interplay often exists between them, still, one of the main issues relating to the securitization of family migration is the protection of the cultural identity of a given nation-state. From conservative and radical migration is the protection of the cultural identity of a given nation-state. From conservative and radical perspectives, multicultural society threatens social cohesion and weakens ethnic boundaries. Binational perspectives, multicultural society threatens social cohesion and weakens ethnic boundaries. Binational marriages and especially transnational marriages, i.e. marriages that take place ‘within established, marriages and especially transnational marriages, i.e. marriages that take place ‘within established, transnational communities’ (Williams 2012: 24), raise concerns among the defenders of a nation-state. transnational communities’ (Williams 2012: 24), raise concerns among the defenders of a nation-state Migrants pursuing the family migration path, challenge the idea of an imagined national community and of ‘a Migrants pursuing the family migration path, challenge the idea of an imagined national community and of ‘a good family’ that produces new members of a national society of a particular kind (Moret et al. 2019: 3). good family’ that produces new members of a national society of a particular kind (Moret et al 2019: 3) Without having been invited, non-citizen migrant spouses and family members from different states gain Without having been invited, non-citizen migrant spouses and family members from different states gain permission to enter a state and reside in its territory. Even despite the more restrictive policies on permission to enter a state and reside in its territory Even despite the more restrictive policies on naturalization across some European countries, marriage migration provides relatively easy access to national naturalization across some European countries, marriage migration provides relatively easy access to national citizenship and migrant legality (Andrikopoulos 2019: 14). citizenship and migrant legality (Andrikopoulos 2019: 14)

While the externalization of migration control practices allow for the filtering out of undesired migrants as far While externalization of control practices allow for the out of undesired migrants as far as, and as early as, possible, strict marriage migration policies are implemented by many nation states to as, and as early as, strict marriage migration policies are by many states to answer “integration concerns” (Charsley et al. 2016: 5), whereas ‘integration often carries strong normative answer “integration concerns” (Charsley al. 2016: 5), whereas ‘integration often carries strong normative connotations of a desired end goal, such as a narrow conception of socio-cultural belonging’ (ibid: 6) Above of a desired end goal, such as a narrow conception of socio-cultural belonging’ (ibid: 6). Above all, these policies include pre-integration (Gutekunst 2015) language tests, increasing income requirements all, these policies include pre-integration (Gutekunst 2015) language tests, increasing requirements (joint income is often disregarded), ‘combine-attachment’ rules, and extended probationary periods Empirical (joint income is often disregarded), ‘combine-attachment’ rules, and extended probationary periods. Empirical research on marriage migration to Europe shows that many of these formal requirements are rooted in fear, as research on marriage migration to Europe shows that many of these formal requirements are rooted in fear, as are the discriminative border practices implemented by bureaucrats, which are based on biases against non- the discriminative border practices implemented by bureaucrats, which based on biases against European ethnicities, European ethnicities,

The Hidden Racialization of Marriage Migrants Through Bureaucratic Practices in Europe

The Hidden Racialization of Marriage Migrants Through Bureaucratic Practices in Europe

Alena Zelenskaia (Ludwig-Maximilian University, Germany) Alena Zelenskaia (Ludwig-Maximilian University, Germany)

gender, and the religious backgrounds of migrants, especially those practicing Islam (see Garcés-Mascareñas gender, and the religious backgrounds of migrants, especially those practicing Islam (see Garcés-Mascareñas & Penninx 2016: 4; & Penninx 2016: 4; Bonjour & de Hart 2013: 63). Bonjour & de Hart 2013: 63)

Border Bureaucracy of “Race-Mute” Societies Border Bureaucracy of “Race-Mute” Societies

“Race”, although being a rejected, contested category in Europe since the Second World War (Balkenhol and “Race”, although being a contested category in Europe since the Second World War (Balkenhol and Schramm 2019), also represents one of the markers of national belonging. Couples comprised of European Schramm also represents one of the markers of national belonging Couples comprised of European nationals and African, Arab or Asian partners raise suspicion among civil servants and are often exposed to nationals and African, Arab or Asian partners raise suspicion among civil servants and are often exposed to various forms of discrimination. Helga Eggebø (2013) and Maïté Maskens (2015) view the notion of various of discrimination. Helga Eggebø (2013) and Maïté Maskens (2015) view the of (in)compatibility as pivotal for the work of the civil servants evaluating the authenticity of cross-border (in)compatibility as pivotal for the work of the civil servants evaluating the authenticity of cross-border marriagesin Norway and Belgium, respectively. (In)compatibility with national ideals may refer to any socio- marriagesin Norway and Belgium, respectively. with ideals may refer to any economic or ethnocultural discrepancies, but in the first place it is linked to the perceived physical or ethnocultural discrepancies, but in the first place it is linked to the perceived physical dissimilarities of partners In Lavanchy’s fieldwork, all “mixed-couples” cases were marked as “problematic” dissimilarities of partners. In Lavanchy’s fieldwork, all “mixed-couples” cases were marked as “problematic” by the bureaucrats, bringing to mind the politics of eugenics aimed at the protection of whiteness (at all costs) by the bureaucrats, bringing to mind the politics of eugenics aimed at the protection of whiteness (at all costs) or classic narratives of salvation (“naïve European women” versus “dangerous” brown men) classic narratives of salvation (“naïve European women” “dangerous” brown men).

Although the official list of sham marriage criteria (Eggebø 2010; Maskens 2018) does not include any Although the official list of sham marriage criteria (Eggebø 2010; Maskens 2018) does include any elements connected with couples’ appearances as something to be wary of, Maskens points out, that “beauty” elements connected with couples’ appearances as something to be wary of, Maskens points out, that “beauty” seems to be “particularly important in guiding the decisions of the civil registrars” (2018: 77) She illustrates seems to be “particularly important in guiding the decisions of the civil registrars” (2018: 77). She illustrates this with a case of a 25-year-old bride from the Ivory Coast and a Belgian groom, whose marriage was not this with a case of a 25-year-old bride from the Ivory Coast and a Belgian groom, whose marriage was not recognized by the Belgian authorities due to the fact that the man was “in his sixties and paunchy”. Scheel and recognized by the Belgian authorities due to the fact that the man was “in his sixties and paunchy”. Scheel and Gutekunst (2019) found that European consular officers assess the unions between young men from Morocco Gutekunst (2019) found that European consular officers assess the unions between young men from Morocco and older women from Europe in a similar way. The judgements are officially characterized by the and older women from Europe in a similar way. The judgements are officially characterized by the implementation of the age gap bias. At the same time this statement made by the head of the visa section implementation of the age gap bias At the same time this statement made by the head of the visa section marks this fixation on appearance: “Sometimes [couples] even provide hot pictures. It can get quite disgusting. marks this fixation on appearance: “Sometimes [couples] even provide hot pictures It can get quite disgusting Who wants to see an old lady half-naked with a champagne bottle in her hand?” (ibid: 10). Who wants to see an old lady half-naked with a champagne bottle in her hand?” (ibid: 10)

The perceived visible differences as key indicators of incompatibility reflect the gender norms and stereotypes The perceived visible differences as key indicators of incompatibility reflect the gender norms and stereotypes prevalent in Western society (mixed-aged relationships or arranged marriages are often judged to be far from in Western society or arranged marriages are often judged to be far from ideal) as well as “report social beliefs about the race” (Lavanchy 2014: 6). Scheel and Gutekunst (2019) ideal) as well as “report social beliefs about the race” 6) Scheel and Gutekunst (2019) established that by enacting gendered and racialized stereotypes, German consular officers have developed the established that by enacting gendered and racialized stereotypes, German consular officers have developed the social construct of bezness – a narrative which depicts North African men as deceivers exploiting the feelings social construct of bezness – a which depicts North men as deceivers exploiting feelings of naïve European women. Similar racialized premises underlying the registrars’ work detecting ‘sham naïve European women. Similar racialized premises underlying the registrars’ work marriages’ make a clear-cut distinction between men from Africa and white Swiss women (Lavanchy 2014: marriages’ make a clear-cut distinction between men from and white Swiss women (Lavanchy 2014: 15) Orsini et al (2021) discovered that white and non-white migrant spouses were treated differently during 15). Orsini al. (2021) discovered that white and non-white migrant spouses were treated differently during various administrative procedures migrants are forced to go through in Belgium For example, white migrants, various administrative procedures migrants are forced go through in Belgium. For example, white migrants, arriving from the U S , did not need to attend integration courses from the U.S., did need to attend courses. However, it is not only those migrants who are white who experience privileged treatment However, it is not only those migrants who are white who privileged treatment.

The Hidden Racialization of Marriage Migrants Through Bureaucratic Practices in Europe The Hidden Racialization of Marriage Migrants Through Bureaucratic Practices in Europe

Alena Zelenskaia (Ludwig-Maximilian University, Germany)

Alena Zelenskaia (Ludwig-Maximilian University, Germany)

A statement A statement made by a CSU member (published in Laura Block’s article “‘(Im-)proper’ members with made by a CSU member (published in Laura Block’s “‘(Im-)proper’ members with ‘(im-)proper’ families?“) highlights this: “If a businessman comes to Germany with his Japanese wife, the ‘(im-)proper’ highlights this: “If a businessman comes to Germany with his Japanese wife, the [language requirement] does not apply, because no integration deficits exist in this context” (2019: 10). [language requirement] does not apply, because no integration deficits exist in this context” (2019: 10) Japanese and South Koreans, while being visually dissimilar to Europeans, are not regarded as a incompatible Japanese and South Koreans, while being visually dissimilar to Europeans, are not regarded as a incompatible Other Lavanchy argues that in family migration policies nationality “constitutes a legitimated idiom of Other. Lavanchy argues that in family migration policies nationality “constitutes a legitimated idiom of racialization in a race-mute context and reinforces othering processes based on tacit racialized premises” racialization in a context and reinforces othering processes based on tacit racialized premises” (2014: 4). Nationality has, thus, become the marker of a perceived polarization between the wealthy North and (2014: 4). Nationality has, thus, marker of a perceived polarization between the wealthy North and the poor South. the poor South

Raceless Racism: The “Other” Whites Raceless Racism: The “Other” Whites

Many Russian-speaking migrants racially do not differ from the majority of Europeans, and like East Many Russian-speaking migrants racially do differ from the majority of Europeans, and like East Europeans “enjoy the higher status bestowed upon them by virtue of being white and European” (Fox, Europeans “enjoy the status bestowed upon them by virtue of being white and European” (Fox, Moroşanu & Szilassy 2015). Some of the accounts given by the Russian participants in my study detailed Moroşanu & Szilassy 2015) Some of the accounts given by the Russian participants in my study detailed experiences similar to those of US or Japanese citizens. Toma (30), a well-educated, wealthy, blue-eyed and experiences similar to those of US or Japanese citizens Toma (30), a well-educated, wealthy, blue-eyed and blonde woman married to Jan, a 36-year-old German described their first joint visit to the relevant blonde woman married to Jan, a 36-year-old German described their first joint visit to the relevant immigration authority in Berlin, shortly after her arrival from Russia and their marriage as follows: immigration authority in Berlin, shortly after her arrival from Russia and their marriage as follows:

“I heard a lot about it from my female friends, who lived in Germany and were invited to our wedding. They “I heard a lot about it from female friends, who lived in Germany and were invited to our wedding. They went through all circles of [bureaucratic] hell. [...] psychologically I was ready for something similar [...] went all circles of [bureaucratic] hell. [...] I was ready something similar [...] And then [the officer in charge] asked me something. I responded with something, I answered. She asked me: And then [the officer in charge] asked me something. I responded with something, I answered. She asked me: “Wait a moment, do you know German? Can you speak it?”. I answered that I just [started to learn] German, “Wait a moment, do you know German? Can you speak it?” I answered that I just [started to learn] German, I spoke a little bit. [...] The officer told me that she was astonished that I could catch on the fly, then she I spoke a little bit. [...] The officer told me that she was astonished that I could catch on the fly, then she liberated me from the integration course and issued the work permit immediately liberated me from the integration course and issued the work permit immediately. Nonetheless, before moving to Berlin, Toma went through a long interview at a German consulate in Russia, Nonetheless, before moving to Berlin, Toma went a long interview at a German in Russia, an experience that she found humiliating as the questions she had had to answer indicated that the authorities an experience that she found humiliating as the questions she had had to answer indicated that the authorities suspected that their marriage might be a sham one. This is how Yulia (27) described the process of applying suspected that their marriage might be a sham one This is how Yulia (27) described the process of applying for a guest visa at a German consulate in a Russian city in 2019 to visit her then- boyfriend and now husband: for a guest visa at a German consulate in a Russian city in 2019 to visit her then- boyfriend and now husband: “ they called me from the consulate and started to ask very strange questions [...] [they said] “[our] Consul “...they called from the consulate and started to ask strange questions [...] [they said] “[our] Consul is concerned with your appearance on your [application] photo, he wants to ask some questions relating to concerned with appearance on [application] photo, he wants to ask relating to your intention to stay in Germany. You are divorced, single, good- looking and applying for a tourist visa. Do to stay in Germany. You are divorced, single, good- looking and applying for a tourist visa. Do you have plans to work illegally?”. you have plans to work illegally?”

Yulia did not recall the exact questions but stressed that they were suggestive and hinted that the authorities Yulia did not recall the exact questions but stressed that they were suggestive and hinted that the authorities were afraid that she was moving to Germany to work as a prostitute Such interrogation goes beyond routine afraid that she was moving to Germany to work as a prostitute. Such interrogation goes beyond routine search practices aimed at weeding out potential illegal workers, it reflects the marginalization of Russian search practices aimed at weeding out potential illegal workers, it reflects the marginalization of Russian women as underprivileged and socially disadvantaged. Interviews with civil servants support this point of women as and socially disadvantaged. Interviews with servants support this point view. Even today, women from former Soviet states are still derogatively labelled as “catalogue brides”, who view Even today, women from former Soviet states are still labelled as “catalogue brides”, who “marry (white) German men they meet online” and framed as “victims” (Block 2019: 4). “marry (white) German men they meet online” and framed as “victims” 2019: 4)

The Hidden Racialization of Marriage Migrants Through Bureaucratic Practices in Europe The Hidden Racialization of Marriage Migrants Through Bureaucratic Practices in Europe

Alena Zelenskaia (Ludwig-Maximilian University, Germany) Alena Zelenskaia (Ludwig-Maximilian University, Germany)

Interestingly, the whiteness of the German men referred to in this quotation Interestingly, the whiteness of the German men referred to in this quotation confronts a different “other” confronts a different “other” whiteness, namely that of the white Russian-speaking women, creating a distinction between the two as if they whiteness, namely that of the white Russian-speaking women, creating a distinction between the two as if they were somehow phenotypically different. were somehow phenotypically different

The above-mentioned cases of Russian-speaking marriage migrants demonstrate that whites are categorized The above-mentioned cases of Russian-speaking marriage migrants demonstrate that whites are categorized according to (and within the confines of) existing inequalities of power and wealth. The cultural according to (and within the confines of) existing inequalities of power and wealth The cultural incompatibility and Otherness of migrants stemming from the CIS countries is rarely formulated through race, incompatibility and Otherness of migrants stemming from the CIS countries is rarely formulated through race, as in Anatoly’s case, but, instead, based on ideas of “underprivileged” class, “traditional” gender roles, as in Anatoly’s case, but, instead, based on ideas of “underprivileged” class, “traditional” gender roles, sexuality, language or the controversial notion of “culture”. sexuality, language or the controversial notion of “culture”

References: References:

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Balkenhol, M. & Schramm, K. 2019. Doing race in Europe: contested pasts and contemporary practices. Balkenhol, M & Schramm, K 2019 Doing race in Europe: contested pasts and contemporary practices Social Anthropology Social Anthropology 27 (4). https://doi.org/10.1111/1469-8676.12721 27 (4) https://doi org/10 1111/1469-8676 12721

Block, L 2019 ‘(Im-)proper’ members with ‘(im-)proper’ families? – Framing spousal migration policies in Block, L. 2019. ‘(Im-)proper’ members with ‘(im-)proper’ families? – Framing spousal migration policies in Germany Germany. Journal of Ethnic and Migration Studies Journal of Ethnic and Migration Studies doi: 10 1080/1369183X 2019 1625132 . doi: 10.1080/1369183X.2019.1625132

Bonjour, S. and B. de Hart. 2013. A proper wife, a proper marriage: Constructions of “us” and “them” in Bonjour, S and B de Hart 2013 A proper wife, a proper marriage: Constructions of “us” and “them” in Dutch family migration policy. Dutch family migration policy. European Journal of Women’s Studies European Journal of Women’s Studies 20 (1): 61–76. doi: 20 (1): 61–76. doi: 10.1177/1350506812456459 10 1177/1350506812456459

Bonjour, S and A Kraler 2015 Introduction: Family Migration as an Integration Issue? Policy Perspectives Bonjour, S. and A. Kraler. 2015. Introduction: Family Migration as an Integration Issue? Policy Perspectives and Academic Insights. Academic Insights. Journal of Family Issues of Family Issues 36 (11): 1407–32. doi: 10.1177/0192513X14557490 36 (11): 1407–32. doi: 10.1177/0192513X14557490

Charsley, K. et al. 2016. Marriage Migration and Integration. Report, Bristol, UK: University of Bristol. Charsley, K. et al. 2016. Marriage Migration and Integration. Report, Bristol, UK: University of Bristol. URL: http://www.bristol.ac.uk/ethnicity/projects/mmi/ URL: http://www.bristol.ac.uk/ethnicity/projects/mmi/

Eggebø, H. 2013. A Real Marriage? Applying for Marriage Migration to Norway. Eggebø, H. 2013. A Real Marriage? Applying for Marriage Migration to Norway. Journal of Ethnic and Journal of Ethnic and Migration Studies Migration Studies 39 (5): 773-789. doi: 10.1080/1369183X.2013.756678 39 (5): 773-789 doi: 10 1080/1369183X 2013 756678

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FitzGerald, D.S. 2019. Remote control of migration: theorizing, territoriality, shared coercion, and deterrence. FitzGerald, D S 2019 Remote control of migration: theorizing, territoriality, shared coercion, and deterrence Journal of Ethnic and Migration Studies Journal of Ethnic and Migration Studies: 1-19. doi: 10.1080/1369183X.2020.1680115 : 1-19 doi: 10 1080/1369183X 2020 1680115

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The Hidden Racialization of Marriage Migrants Through Bureaucratic Practices in Europe

The Hidden Racialization of Marriage Migrants Through Bureaucratic Practices in Europe

Alena Zelenskaia (Ludwig-Maximilian University, Germany) Alena Zelenskaia (Ludwig-Maximilian University, Germany)

Gutekunst, M. 2015. „Die müssen sich integrieren!“ Zum Integrationsimperativ im Kontext des Gutekunst, M 2015 „Die müssen sich integrieren!“ Zum Integrationsimperativ im Kontext des ‚Ehegattennachzugs‘ eine Suche in Marokko [„They should be integrated! The integration- imperative in eine in Marokko [„They be integrated! The integration- in the context of marriage migration]. movements. the context of marriage migration] movements Journal für kritische Migrations- und Grenzregimeforschung für kritische Migrations- und Grenzregimeforschung 1: 1-15. http://movements-journal.org/issues/01.grenzregime/18.gutekunst– integrationsimperativ- 1: 1-15 http://movements-journal org/issues/01 grenzregime/18 gutekunst– integrationsimperativehegattennachzug-marokko.html ehegattennachzug-marokko.html

Huysmans, J 2006 Huysmans, J. 2006. The Politics of Insecurity The Politics of Insecurity London: Routledge . London: Routledge. Lavanchy, A. 2014. How does “race” matter in Switzerland? Lavanchy, A 2014 How does “race” matter in Switzerland? Working Papers MAPS Working Papers MAPS, 7. Maison d’analyse des , 7 Maison d’analyse des processus sociaux, Neuchatel, Switzerland. URL: https://doc.rero.ch/record/210431 processus sociaux, Neuchatel, Switzerland URL: https://doc rero ch/record/210431

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Maskens, M. 2015. Bordering Intimacy. The Fight against Marriages of Convenience in Brussels. The The Cambridge Journal of Anthropology Cambridge Journal of Anthropology 33 (2): 42–58 doi:10 3167/ca 2015 330205 33 (2): 42–58. doi:10.3167/ca.2015.330205

Maskens, M. 2018. Screening for Romance and Compatibility in the Brussels Civil Registrar Office. In Maskens, M 2018 Screening for Romance and Compatibility in the Brussels Civil Registrar Office In Intimate Mobilities. Sexual Economies, Intimate Mobilities. Sexual Economies, Marriage and Migration in a Disparate World Marriage and Migration in a Disparate World, ed. Ch. Groes and N. , ed. Ch. Groes and N. T. Fernandez, 74-100. New York: Berghahn Books. T Fernandez, 74-100 New York: Berghahn Books

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III: Whose Europe? Judicial Conversations in a changing Union III: Whose Europe? Judicial Conversations in a changing Union

Co-Chairs: Co-Chairs: Antoine De Spiegeleir Antoine De Spiegeleir (Yale Law School) and (Yale Law and Lena Riemer Lena Riemer (Yale Law School) (Yale Law School)

Faculty Discussant: Faculty Discussant: Professor Dr. Dr. Dr. Angelika Nußberger Professor Dr. Dr. Dr. Angelika Nußberger, Director of the Institute for , Director of the Institute for Eastern European Law and Comparative Law, University of Cologne; International Judge at the Eastern European Law and Comparative Law, University of Cologne; International Judge at the Constitutional Court of Bosnia and Herzegovina Constitutional Court of Bosnia and Herzegovina

Marcin Barański Marcin Barański (Humboldt-Universität, Berlin, Germany) (Humboldt-Universität, Berlin, Germany) Felipe Carvalho Felipe Carvalho (University of Coimbra, Portugal) (University of Coimbra, Portugal) Roïla Mavrouli Roïla Mavrouli (CNRS, The French National Centre for Scientific Research) (CNRS, The French National Centre for Scientific Research)

Introduction: Whose Europe? Judicial Conversations in a Changing Union Introduction: Whose Judicial Conversations in a Changing Union

Antoine De Spiegeleir (Yale Law School) & Lena Riemer (Yale Law School) Antoine De Spiegeleir (Yale Law School) & Lena Riemer (Yale Law School)

Since its inception, the European Union (EU) has relied on courts to assert its authority and Since its inception, the European Union (EU) has relied on courts to assert its authority and enforce EU law. enforce EU law. At a moment when the EU is facing a series of (existential) crises from the sovereign debt and the At a moment when the EU is facing a series of (existential) crises from the sovereign debt and the “migration” crisis to Brexit and democratic backsliding—national and supranational judges adopt various “migration” crisis to Brexit and democratic backsliding—national and supranational judges adopt various approaches and perspectives toward this assertion of authority. These approaches and perspectives range from and perspectives toward this assertion of authority. These and perspectives range from allyship to hesitance or even resistance. allyship to hesitance or even resistance

Time and again, the influence of courts on the EU legal order practical or potential has come to the fore. In Time and again, the influence of on the EU legal order practical or potential has come to the fore. In an ever-changing Union, it is crucial to understand the role of courts, both within and outside the EU, within an ever-changing Union, it is crucial to understand the role of courts, both within and outside the EU, within the judicial system and beyond. Part of this inquiry relates to courts’ influence as foundational actors in the judicial system and beyond. Part of this inquiry relates courts’ influence as foundational actors in democracy- and rule-of-law-building. What triggers judicial cooperation? What prompts backlash? Do either democracy- and rule-of-law-building What triggers judicial cooperation? What prompts backlash? Do either domestic courts or the European Court of Justice (1) have the “upper hand” in shaping policy-making? How domestic courts or the European Court of Justice have the “upper hand” in shaping policy-making? How can the EU maintain its claim to autonomy and supremacy with or without the support of domestic judiciaries? can the EU maintain its claim to autonomy and supremacy with or without the support of domestic judiciaries? How do these internal tensions affect the relations between the EU and the outside world? How do these internal tensions affect the relations between the EU and the outside world?

The Panel we convened on May 13, 2022, during the Third Annual International Conference of the European The Panel we convened on May 13, 2022, during the Third Annual International Conference of the European Studies Graduate Fellows at Yale University, aimed to address these and other questions. Its goal was to foster Studies Graduate Fellows at Yale University, aimed to address these and other questions Its goal was to foster a discussion on various instances of court interactions with, within, and beyond the EU. We heard from three a discussion on various instances of court interactions with, within, and beyond the EU We heard from three insightful panelists who each offered an original viewpoint on the topic: Marcin Barański from Humboldt insightful panelists who each offered an original viewpoint on the topic: Marcin Barański from Humboldt Universität Berlin, Germany; Roila Mavrouli from the Centre national de la recherche scientifique (CNRS), Universität Berlin, Germany; Roila Mavrouli from the Centre national de la recherche scientifique (CNRS), France; and Felipe Augusto Carvalho from Universidade de Coimbra, Portugal We also heard, with much France; and Felipe Augusto Carvalho from Universidade de Coimbra, Portugal. We also heard, with much delight, from Professor Dr. mult. Angelika Nußberger. Former Judge and Vice-President of the European delight, from Professor Dr. mult. Angelika Nußberger. Former Judge and Vice-President of the European Court of Human Rights (among many other exceptional postings), Professor Nußberger brought in an expert Court of Human Rights (among many other exceptional postings), Professor in an expert and experience-based perspective for which we are most grateful. and experience-based perspective for which we are most grateful

The following compilation consists of a revised version of the Conference papers of our three panelists. In the The following compilation of a revised version of the Conference papers of our three panelists. In the first paper, entitled first paper, entitled Recent Authority Conflicts Between the Court of Justice of the European Union and EU Recent Authority Conflicts Between the Court of Justice of the European Union and EU Member State Constitutional Courts (2020-2022) Member State Constitutional Courts (2020-2022), Marcin Barański takes us through the crux of judicial , Marcin Barański takes us through the crux of judicial dialogues between the European Court of Justice and domestic apex courts of EU Member States in recent between the European Court of Justice and domestic apex courts of EU Member States in recent years. years

1 We use “European Court of Justice” as a general phrase to refer jointly to the General Court of the European Union and the Court of Justice of 1 We use “European Court of Justice” as a general phrase to refer jointly to the General Court of the European Union and the Court of Justice of the European Union the European Union

Introduction: Whose Europe? Judicial Conversations in a Changing Union

Introduction: Whose Judicial Conversations in a Changing Union

In doing so, he draws particularly on In doing he draws particularly on the case study of the ground-breaking judgment of the German Federal the case study of the ground-breaking judgment of the German Federal Constitutional Court relating to the European Central Bank’s Public Sector Purchase Program and its Court relating to European Central Bank’s Sector Purchase Program its aftermath, and he assesses the struggle for the final word between the domestic and regional levels and its aftermath, and he assesses the for the final between the domestic and regional levels and its consequences beyond the national sphere. consequences beyond the national sphere

In The Arsenal of a New Regime in Europe: After Hungary and Poland, Romania Enters the Illiberal Game The Arsenal of a New in Europe: After and Poland, Enters the Illiberal Game,, Roïla Mavrouli continues this conversation by focusing specifically on the recent Opinion of Advocate Roïla Mavrouli continues this conversation by focusing specifically on the recent Opinion of Advocate General Collins in the case C-430/21 on the effect of the decisions of the Constitutional Court of Romania. Collins in case C-430/21 on effect of of the Constitutional Court of Romania. Throughout her contribution, she broadens our gaze on the ongoing constitutional liberal democracy crisis and Throughout her contribution, she broadens our gaze on the ongoing constitutional liberal crisis and its implications for judicial conversations. its implications for judicial conversations

Finally, Felipe Augusto Carvalho takes us from the vertical dialogue between apex domestic courts and the Finally, Felipe Augusto Carvalho takes us from the vertical dialogue between apex domestic and the European Court of Justice to the horizontal dialogue between the European Court of Justice and the European European Court of Justice to the horizontal dialogue between the European Court of Justice and the European Court of Human Rights at the crossroads between two profoundly related but nonetheless distinct legal Court of Human Rights at the between two profoundly related nonetheless distinct legal systems: the EU and the Council of Europe. In his Ph.D., Felipe specializes in freedom of religion, which is systems: the EU and the of Europe In his Ph.D., Felipe specializes in freedom of religion, which is the topic he illuminated for us. More specifically, the topic he illuminated for us More specifically, Whose Religious Freedom? Assessing the Strasbourg and Whose Religious Freedom? Assessing the Strasbourg and Luxembourg Jurisprudences Luxembourg Jurisprudences examines two dimensions of the freedom of religion as they are addressed in the examines two dimensions of the freedom of religion as they are addressed in the case law of these two courts: religious proselytism and the usage of religious symbols in the workplace case law of these two courts: religious proselytism and the usage of religious symbols in the workplace. We hope the dialogue we held on May 13, 2022, and the following written submissions will foster even more We hope the dialogue we on May 13, 2022, and the written submissions will even more attention for judicial conversations with, within, and beyond the EU among students and practitioners of EU attention for judicial conversations with, within, and beyond the EU among students and practitioners of EU law. Yet we must guard against fetishizing courts, as lawyers often do. Ultimately, the search for difficult law Yet we must guard against fetishizing courts, as lawyers often do. Ultimately, the search for difficult equilibria between often seemingly irreconcilable approaches to profoundly complex legal issues, such as the equilibria between often seemingly irreconcilable approaches to profoundly complex legal issues, such as the independence of the judiciary from political overreach or the primacy of EU law over domestic constitutional independence of the judiciary from political overreach the primacy of EU law over domestic constitutional law, will eventually contribute to the coming about of better law for better societies At play is more than law, will eventually contribute to the about of better law for better societies. At play is more than merely abstract principles. Often, these tensions result in coercion and harm to individuals and communities in merely abstract principles. Often, these result in coercion and harm to individuals and communities in the here and now. the here and now

On this note, we would like to thank our three panelists and our Faculty Discussant for their On this note, we would like to thank our three panelists and our Faculty Discussant for their contributions and pleasant collaboration We very much look forward to the next opportunity to work with contributions and pleasant collaboration. We very much look forward to the opportunity work with them and anybody else interested in examining, in good faith, some of the most pressing legal issues of our them and anybody else interested in examining, good faith, some of the most pressing legal issues of ttime. ime.

Recent Ultra Vires Conflicts between the Court of Justice of the European Union and EU Recent Ultra Vires Conflicts between the Court of Justice of the European Union and EU

I. Introduction I. Introduction

Member

State Constitutional Courts Member State Constitutional Courts

Marcin Barański (Humboldt-Universität, Berlin, Germany)

Marcin Barański (Humboldt-Universität, Berlin, Germany)

The relationship between the Court of Justice of the European Union (CJEU) and the highest EU Member The relationship between the Court of Justice of the European (CJEU) and the highest Member State courts has always been complex For, from the very outset of the EU legal integration process, both the State has always been complex. For, from the very of the EU legal integration process, both the CJEU and Member State apex courts have been consistently advancing their competing claims to ultimate CJEU and Member State apex courts been consistently advancing competing to ultimate interpretive authority and legal supremacy of, respectively, EU and national constitutional law. interpretive and supremacy of, respectively, EU and national constitutional law

Antoine De Spiegeleir (Yale Law School) & Lena Riemer (Yale Law School)

Antoine De Spiegeleir (Yale Law Lena Riemer (Yale Law

Recent Ultra Vires

Conflicts

between the Court of Justice of the European Union and EU Recent Ultra Vires Conflicts between the Court of Justice of the European Union and EU Member State Constitutional Courts Member State Constitutional Courts

Marcin Barański (Humboldt-Universität, Berlin, Germany) Marcin Barański (Humboldt-Universität, Berlin, Germany)

There is neither need nor room to recount the There is neither need nor room to recount the (pre-)history of judicial clashes arising from these competing (pre-)history of judicial clashes arising from these competing claims. Suffice it to say that at the core of the disagreement is the final say over the grounds, scope, and claims. Suffice it to say that at the core of the disagreement is the final say over the grounds, scope, and potential limits of EU law’s validity and applicability across the Member States, notably in case of conflict potential limits of EU law’s validity and applicability across the Member States, notably in case of conflict with the latter’s constitutional norms. Hence, as has been observed by Neil MacCormick, it may happen that with the latter’s constitutional norms Hence, as has been observed by Neil MacCormick, it may happen that the CJEU “interprets [EU] law so as to assert some right or obligation as binding in favour of a person within the CJEU “interprets [EU] law so as to assert some right or obligation as binding in favour of a person within the jurisdiction of [an apex Member State] Court, while that Court in turn denies the validity of such a right or the jurisdiction of [an apex Member State] Court, while that Court in turn denies the validity of such a right or obligation in terms of [this Member State’s] Constitution,”(2) on account of the latter’s supremacy. Or, more obligation in terms of [this Member State’s] Constitution,”(2) on account of the latter’s supremacy Or, more specifically, following Alexander Somek, one could imagine a scenario in which the CJEU “upholds a following Alexander Somek, one could imagine a scenario in which the CJEU “ a challenged piece of Union legislation because the legislature validly exercised powers that have been challenged piece of Union legislation because the legislature validly exercised powers that been conferred on it by the Treaty [...] [and] at the same time, a national constitutional court [...] find[s] that this conferred on it by the Treaty [...] [and] at the same time, a national constitutional court [...] find[s] that this same legislature acted in excess of its powers ... [and then declares] the Union act void.”(3) same legislature acted in excess of its powers ... [and then declares] the Union act void.”(3)

Despite – or, as some have argued,(4) precisely because of – the coexistence of these competing yet unsettled Despite – or, as some have argued,(4) precisely because of – the coexistence of these competing yet unsettled authority claims, both the CJEU and EU Member State apex courts have striven to avoid a standoff damaging authority claims, both the CJEU and EU Member State apex courts have striven to avoid a standoff damaging their legal authority. Accordingly, even when suggesting that the CJEU came or might soon come close to their legal authority. Accordingly, even when suggesting that the CJEU came or might soon come close to overstepping its jurisdictional boundaries, national apex courts have generally(5) refrained from flatly overstepping its jurisdictional boundaries, national apex courts have generally(5) refrained from flatly rejecting or nullifying the CJEU decisions, which they had found controversial. Or, that was the case up until rejecting or nullifying the CJEU decisions, which they had found controversial Or, that was the case up until the May 5, 2020, decision of the German Federal Constitutional Court (FCC) on the constitutionality of the the May 5, 2020, decision of the German Federal Constitutional Court on the constitutionality of the European Central Bank’s (ECB) European Central Bank’s Public Sector Purchase Program (PSPP) Public Sector Purchase Program (PSPP).(6) Therein, having clearly signaled Therein, having clearly signaled its reservations towards the CJEU’s broad understanding of ECB powers in the past,(7) the FCC declared both its reservations towards the CJEU’s broad understanding of ECB powers in the past,(7) the FCC declared both the aforesaid program and the CJEU’s ruling (8) upholding it to be the aforesaid program and the CJEU’s ruling (8) upholding it to be ultra vires ultra vires – i.e., exceeding the scope of – i.e., exceeding the scope of one’s legal powers – and hence inapplicable in Germany. one’s legal powers – and hence inapplicable in Germany.

II. The II. The PSPP PSPP Moment Moment

To fully understand the background of the To fully understand the background of the PSPP PSPP dispute, one would need to delve deeply into the Treaty rules dispute, one would need to delve deeply into the Treaty rules governing the functioning of the European Monetary Union (EMU) and the constraints they impose upon the governing the functioning of the European Monetary Union (EMU) and the constraints they impose upon the ECB’s law- and policy-making powers.(9) and powers.(9)

2 2 Neil MacCormick, Neil MacCormick, The Maastricht-Urteil: Sovereignty Now The Maastricht-Urteil: Sovereignty Now, 1 Eur. L. J. 259, 265 (1995). , 1 Eur L J 259, 265 (1995)

3 3 Alexander Somek, Alexander Somek, Monism: A Tale of the Undead Monism: A Tale of the Undead, in Matej Avbelj & Jan Komárek eds , CONSTITUTIONAL , in Avbelj & Jan Komárek eds , CONSTITUTIONAL PLURALISM IN THE EUROPEAN UNION AND BEYOND (Hart Publishing 2012), 356 (adding that “in the classical IN THE UNION AND (Hart Publishing 2012), (adding “in the nineteenth century US American scenario this matches the case where a state supreme or appellate court US scenario this matches case where a state supreme or appellate court challenges the authority of the US Supreme Court to rule on an issue on the ground that such a ruling would challenges the authority US Supreme Court to on an issue on ground a ruling would involve an excess of federal powers ” an excess of powers ” Id ) )

4 That, in a nutshell, has been one of the central claims advanced by the proponents of the so-called theories of

4 That, in a nutshell, has been one of the central claims advanced by the proponents of the so-called theories of constitutional pluralism in Europe (cf. MacCormick, constitutional pluralism in Europe (cf MacCormick, supra supra note 2). For useful introduction, see Avbelj & Komarek, note 2) For useful introduction, see Avbelj & Komarek, supra supra note 3, 1-15 note 1-15.

5 It should be noted that, historically, two CJEU decisions had already been declared ultra vires in the Czech Republic should be noted that, historically, two decisions had already declared vires in Czech (Pl ÚS 5/12, ÚS 5/12, Slovak Pensions XVII Slovak Pensions XVII [2012]) and Denmark (Case 15/2014, [2012]) and (Case 15/2014, Dansk Industri ex parte Ajos Industri ex parte , [2016]), , [2016]), respectively Yet, for a number of reasons, these cases had quickly become moot, and neither had caused the stir respectively Yet, a of reasons, had quickly moot, and had caused stir that we saw in May 2020 that we saw in May 2020

6 2 BvR 859/15 ( 6 2 BvR 859/15 (PSPP PSPP) [2020]. ) [2020]

7 Cf BVerfG, 2 BvR 2728/13 (OMT) [2016]

7 Cf BVerfG, 2 BvR 2728/13 (OMT) [2016]

8 C-493/17, Weiss and others others, [2018] , [2018].

9 See in particular Article 123 (1) TFEU on the prohibition of monetary financing of Eurozone Member States by the ECB in particular 123 (1) on prohibition of monetary financing Eurozone States the ECB.

Recent Ultra Vires Conflicts between the Court of Justice of the European Union and EU

Recent Ultra Vires Conflicts between the Court of Justice of the European Union and EU Member State Constitutional Courts Member State Constitutional Courts

Marcin Barański (Humboldt-Universität, Berlin, Germany)

Marcin Barański (Humboldt-Universität, Berlin, Germany)

In a nutshell, in its a nutshell, in its highly controversial decision, the FCC found that, by granting the ECB too broad highly controversial decision, the FCC found that, by granting the ECB broad discretion, the CJEU had failed to properly scrutinize PSPP’s conformity with the EMU framework, which, in discretion, the CJEU had failed to properly scrutinize PSPP’s conformity with the EMU framework, which, in turn, amounted to a manifest violation of the EU principle of proportionality, and thereby, of the principle of turn, amounted to a manifest violation of the principle of proportionality, and thereby, of the principle of conferral (10) Having thus established that both the ECB and the CJEU had acted in excess of their powers, conferral.(10) Having thus established that both the ECB and the CJEU had acted in of their powers, (11) the FCC held that such “ultra vires act[s] [...] ha[ve] no binding effect in relation to German constitutional (11) the FCC held that such “ultra vires act[s] [...] ha[ve] no binding effect in relation to German constitutional organs, administrative authorities and courts” and that, for the foregoing reasons, said institutions the organs, administrative authorities and courts” and that, for the foregoing reasons, said institutions the German Bundesbank included “may participate neither in the[ir] development nor in thei[ir] German Bundesbank included “may participate neither in the[ir] development nor in thei[ir] implementation, execution or operationalization.”(12) To avoid a sudden withdrawal of the German implementation, execution or operationalization.”(12) To avoid a sudden withdrawal of the German Bundesbank from said programs, the FCC postponed the entry of its decision into force by three months. Yet, Bundesbank from said programs, the FCC postponed the entry of its decision into force by three months Yet, despite the CJEU’s decision to the contrary,(13) the German Court obliged the German authorities to take the despite the CJEU’s decision to the contrary,(13) the German Court obliged the German authorities to take the necessary steps to ensure that an adequate (or, to be more precise, stricter) proportionality review of the latter necessary steps to ensure that an adequate (or, to be more precise, proportionality review of the latter be conducted by the ECB and its results be communicated to Germany. be conducted by the ECB and its results be communicated to Germany As one could have imagined, the FCC’s decision was immediately met with fierce criticism from the CJEU, As one could have imagined, the FCC’s decision was immediately met with fierce criticism from the CJEU, (14) which considered it to be a direct attack on its interpretive authority and the core principles of EU law’s (14) which considered it to be direct attack on its interpretive authority and the core principles of EU law’s primacy Furthermore, following the lapse of the three-month transitional period, several applicants submitted primacy. Furthermore, following the lapse of the three-month transitional period, several applicants submitted another series of complaints to the FCC They argued that the ECB and German authorities had failed to another series of complaints to the FCC. They argued that the ECB and German authorities had failed to satisfy the requirements laid out in its May 5, 2020, and asked the Court to enjoin the Bundesbank from satisfy the requirements laid out in its May 5, 2020, and asked the Court to enjoin the Bundesbank from continuing to participate in PSPP.(15) Eventually, the FCC rejected these follow-up complaints as unfounded, continuing to participate in PSPP.(15) Eventually, the FCC rejected these follow-up complaints as unfounded, holding that the proportionality review had been satisfactorily conducted by the ECB and communicated to the holding that the proportionality review had been satisfactorily conducted by the ECB and communicated to the German government. This, however, did not stop the European Commission from initiating (the eventually German government. This, however, did not stop the European Commission from initiating (the eventually discontinued) Treaty infringement proceedings against Germany for breach of EU law.(16) discontinued) Treaty infringement proceedings against Germany for breach of EU law (16)

III The Aftermath of PSPP III. The Aftermath of PSPP

The German ruling could not have gone unnoticed in other EU Member States: notably those which, over the

The German ruling could not have gone unnoticed in other EU Member States: notably those which, over the last couple of years, have been notoriously clashing with the EU over the questions of democracy, the rule of last couple of years, have been notoriously clashing with the EU over the questions of democracy, the rule of law, and judicial independence. Perhaps unsurprisingly, the heavily criticized Polish Constitutional law, and judicial independence Perhaps unsurprisingly, the heavily criticized Polish Constitutional Tribunal(17) (PCT) was the first to explicitly take a cue from was the first to explicitly take a cue from PSPP PSPP by declaring two CJEU rulings by declaring two CJEU rulings ultra vires ultra vires on July 14 and October 7, 2021, respectively. Following its Polish counterpart, the Romanian Constitutional on July 14 and October 7, 2021, respectively Following its Polish counterpart, the Romanian Constitutional Court (RCT) has also recently signaled its willingness to play the Court (RCT) has also recently signaled its willingness to play the ultra vires ultra vires card(18) in response to a card(18) in response to a contested CJEU ruling(19) declaring certain parts of the RCT’s prior case law as running afoul of Romania’s contested CJEU ruling(19) declaring certain parts of the RCT’s prior case law as running afoul of Romania’s EU legal obligations. EU legal obligations

10 See PSPP, supra PSPP, supra note 6, headnotes 4-6 note 6, headnotes 4-6.

11 Cf. Somek, 11 Cf Somek, ssupra upra note 3. note 3

12 12 PSPP, supra supra note 6, headnote 10 note 6, headnote 10.

13 See 13 See ssupra upra note note Error! Bookmark not defined Error! Bookmark not defined..

14 See CJEU Press Release No 58/20 of May 8, 2020, available at:

14 See CJEU Press Release No 58/20 of May 8, 2020, available at: https://curia europa eu/jcms/upload/docs/application/pdf/2020-05/cp200058en.pdf https://curia europa eu/jcms/upload/docs/application/pdf/2020-05/cp200058en.pdf

15 See 2 BvR 1651/15, 2 BvR 2006/15 ( 15 See 2 BvR 1651/15, 2 BvR 2006/15 (The PSPP Order The PSPP Order) [2021] ) [2021]

16 See The EU Comission’s Formal Letter of Notice to Germany of June 9, 2021 The EU Comission’s Formal Letter of to Germany of June 9, 2021

7 For discussion, see e g , Stanisław Biernat,

7 For discussion, see e g , Stanisław Biernat, How Far Is It from Warsaw to Luxembourg and Karlsruhe: The Impact of the PSPP Judgment on Poland, How Far Is It from Warsaw to Luxembourg and Karlsruhe: The Impact of the PSPP Judgment on Poland, 21 Ger L J 21 Ger L J 1104 (2020) (arguing that, since the 2015 reforms and series of controversial judicial appointments to the PCT, said institution has been remaining “politically (2020) (arguing that, since the 2015 reforms and series of controversial judicial appointments to the said institution has been “politically dependent” upon the Polish government) dependent” upon the Polish government)

18 Curtea Constituțională a României, Press Release of December 23, 2021 Constituțională a României, Press Release of December 2021.

19 C-357/19 19 C-357/19 Euro Box Promotion and Others Euro Box Promotion and Others [[2021]. 2021]

Recent

Ultra Vires Conflicts

between the Court of Justice of the European Union and EU Member State Constitutional Courts Member State Constitutional Courts

Recent Ultra Vires Conflicts between the Court of Justice of the European Union and EU

Marcin Barański (Humboldt-Universität, Berlin, Germany) Marcin Barański (Humboldt-Universität, Berlin, Germany)

Whereas the first PCT order(20) drew some scholarly attention and criticism, it was its second Whereas the first PCT order(20) drew some scholarly attention and criticism, it was its second ultra ultra vires vires decision that caused a stir comparable to (if not bigger than) the German one. For, in response to a series of decision that caused a comparable (if not bigger than) the German one. For, in response to series of CJEU decisions on the Polish reforms of the judiciary, in K 3/21, the PCT held that several TEU provisions, as CJEU decisions on the Polish reforms of the judiciary, in 3/21, the PCT held that several TEU provisions, as interpreted by the CJEU, were incompatible with several articles of the Polish Constitution interpreted by the CJEU, were incompatible with several articles of the Polish Constitution insofar as insofar as in the the Polish Court’s view they (i) allowed for Polish Court’s they (i) allowed for ultra vires ultra action by EU institutions, (ii) challenged the principles action by EU institutions, (ii) challenged the principles of national constitutional supremacy, sovereignty, and democracy; and (iii) empowered ordinary Polish courts of national constitutional supremacy, sovereignty, and democracy; and (iii) empowered ordinary Polish courts to review and set aside core elements of the recently introduced and highly contested legislation on the Polish review and aside elements of the recently introduced and highly contested legislation on the Polish judicial system (21) judicial system.(21)

Contrary to what has been asserted by several commentators, the Polish Case K 3/21 neither held the Contrary to what has been asserted by several commentators, the Polish Case K 3/21 neither held the aforementioned TEU articles unconstitutional on their face, nor rejected the principle of primacy of EU law as aforementioned TEU articles unconstitutional on their face, nor rejected the principle of primacy of EU law as such.(22) However, the PCT clearly refused to accept the CJEU’s claim of exclusive and ultimate authority such.(22) However, the PCT clearly refused to accept CJEU’s claim of exclusive and ultimate over the interpretation and application of EU law. For, analogous to over the interpretation and application of EU law For, analogous to PSPP PSPP,(23) K 3/21 held that should the ,(23) K 3/21 held that should the CJEU interpretations of given Treaty provisions be found to amount to CJEU interpretations of given Treaty provisions be found to amount to ultra vires ultra vires acts, they would no longer acts, they would no longer be covered by the principle of EU law’s primacy and considered binding at the national level.(24) This is be covered by the principle of EU law’s primacy and considered binding at the national level (24) This is because, for both the FCC and the PCT, the scope and, more importantly, limits of the transfer of sovereign because, for both the FCC and the PCT, the scope and, more importantly, limits of the transfer of sovereign powers to the Union are ultimately governed by Member State constitutional law, not EU law; and hence, powers to the Union are ultimately by Member State constitutional law, not EU law; and hence, pace pace the CJEU’s claim to primacy, insurmountable conflicts between these two bodies of law must be the CJEU’s claim to primacy, insurmountable conflicts between these two bodies of law must be resolved in favor of the former, on account of the supremacy of national constitutions. resolved in favor of the former, on account of the supremacy of national constitutions

IV Appeasement and Escalation IV. Appeasement and Escalation

Yet, despite these similarities between Yet, despite these similarities between PSPP PSPP and K 3/21,(25) one should not fail to notice one crucial and K 3/21,(25) one should not fail to notice one crucial difference regarding the aftermath of the decisions in Poland and Germany. difference regarding the aftermath of the decisions in Poland and Germany 20 Trybunał Konstytucyjny, P 7/20, (2021) Therein, PCT quashed, on 20 Trybunał Konstytucyjny, P 7/20, (2021) Therein, PCT quashed, on ultra vires grounds ultra vires grounds, a CJEU interim order in C 791/19 R (2020) which, in , a CJEU interim order in C 791/19 R (2020) which, in brief, called for suspension of the activities of the heavily criticized, new Disciplinary Chamber of the Polish Supreme Court Interestingly, the day brief, called for suspension of the activities of the heavily criticized, new Disciplinary Chamber of Supreme Court. Interestingly, the day after, the CJEU issued the final decision in C 791/19 in which again, to state it very briefly — it declared the core elements of the Polish after, CJEU the decision in C 791/19 in again, to state it very briefly it the core elements of the Polish disciplinary regime applicable to judges (the new Chamber included) were in breach of Article 19(1) TEU principle of judicial independence disciplinary regime applicable to judges (the new Chamber included) were in breach of Article TEU principle of judicial independence 21 The above is a very short and imperfect summary of the PCT’s holding. For the latter’s official English translation, along with an additional

21 The above is a very short and imperfect summary of the PCT’s holding. For the latter’s official English translation, along with an additional Press Release by the PCT, see trybunal.gov.pl/en/news/press-releases/after-the-hearing/art/11664-ocena-zgodnosci-z-konstytucja-rp-wybranych- Press Release by the PCT, see trybunal.gov.pl/en/news/press-releases/after-the-hearing/art/11664-ocena-zgodnosci-z-konstytucja-rp-wybranychprzepisow-traktatu-o-unii-europejskiej przepisow-traktatu-o-unii-europejskiej

22 See 22 See supra supra note 21, point 9 (clearly recognizing the direct applicability and primacy of EU law over statutes, yet only within the scope of the note 21, (clearly recognizing the direct applicability and primacy of EU law over statutes, only within the scope of the [EU] conferred competences) [EU] conferred competences).

23 See 23 PSPP, supra PSPP, supra note 6, para 163 (finding that, since the CJEU’s Weiss decision, note 6, para. 163 (finding that, since the Weiss decision, supra supra note 6, “exceeds the judicial mandate deriving from 6, “exceeds the judicial deriving from Art. 19(1) ...” TEU, “the CJEU has thus acted ultra vires, which is why ... [said decision] has no binding force in Germany.”) Art. 19(1) ...” TEU, “the CJEU has thus ultra vires, which is why ... [said decision] has binding force in Germany.”)

24 Cf. e.g., 24 Cf e.g., supra supra note 21, points 11 ( stating that, under the Polish Constitution, “EU law is applied directly, taking note 21, points 11 ( stating that, under the Polish Constitution, “EU law is applied directly, taking precedence precedence in the case of a in the case of a conflict with statutes, conflict with statutes, only within the scope of the conferred competences” only within the scope of the conferred competences” (emphasis added)) and 18 (clarifying that, in the PCT’s view, “the (emphasis added)) and 18 (clarifying that, in the PCT’s view, “the deriving of the CJEU’s competences to control the functioning and organisational structure of the judicial system in an EU Member State from deriving of the CJEU’s to control the functioning and organisational structure of the judicial system in an EU Member State from Article 19(1) ... TEU constitutes an example of creating new competences on the part of the CJEU”)

Article 19(1) TEU constitutes an of creating new competences on the part of the CJEU”). 25 At this point, it should be stressed that this paper does purport to offer a comprehensive assessment of the analyzed ultra vires decisions and 25 At point, it should be stressed this paper purport to offer a comprehensive assessment of analyzed vires and their rationales Rather, the focus is on the title authority conflicts or clashes between the analyzed courts and on how they manifest themselves in Rather, is on authority conflicts or clashes the analyzed courts on how they themselves in the latter’s recent case law Furthermore, as regards the similarities and differences between recent law Furthermore, as regards the similarities differences between PSPP PSPP and K 3/21, it should be stressed that they only and K 3/21, it should stressed they only relate to these decisions and reasoning underpinning them, as opposed to the Courts who issued them. In any event, this paper does not purport to relate to these decisions and reasoning underpinning them, as opposed to the Courts who issued them In any event, this paper does not purport to claim that one should treat the PCT and the FCC as institutions equally well and faithfully discharging their constitutional functions For a claim that one should treat the PCT and the FCC as institutions equally well and faithfully discharging their constitutional functions For a compelling critique of the current PCT’s compelling critique of the current PCT’s modus operandi, modus operandi, see Biernat, see Biernat, supra supra note 17 note 17

Recent

Ultra Vires Conflicts

between the Court of Justice of the European Union and EU Recent Ultra Vires Conflicts between the Court of Justice of the European Union and EU Member State Constitutional Courts Member State Constitutional Courts

Marcin Barański (Humboldt-Universität, Berlin, Germany) Marcin Barański (Humboldt-Universität, Berlin, Germany)

Whereas in both countries, there have been attempts to further challenge EU law (and CJEU decisions) on Whereas in both countries, there have been attempts to further challenge EU law (and CJEU decisions) on ultra vires grounds, the German FCC, on at least two occasions, proved quite unwilling to do so. The Polish ultra vires grounds, the German FCC, on at least two occasions, proved quite unwilling to do so. The Polish Constitutional Tribunal, on the contrary, seems to be eager to adopt an even more expansive understanding of Constitutional Tribunal, on the contrary, seems be eager to adopt an even more expansive understanding of the ultra vires doctrine First of all, it did not hesitate to extend it to various decisions of the European Court of the ultra vires doctrine. First of all, did hesitate to extend it various decisions of the European Court of Human Rights arising out of complaints against the Polish reforms of the judiciary.(26) For, on March 10, Human Rights arising of complaints against the Polish reforms of the judiciary.(26) For, on March 10, 2022, the PCT declared Article 6(1) of the Convention upon which said ECtHR decisions had been based (the 2022, the PCT declared Article 6(1) of the Convention upon said decisions had been based (the right to a fair trial and public hearing by right to a fair trial and public hearing by an independent and impartial tribunal established by law an independent and impartial tribunal established by law) partly ) partly incompatible with selected provisions of the Polish Constitution.(27) Secondly, coming back to EU law and incompatible with selected provisions of the Polish Constitution.(27) Secondly, coming back to EU law and CJEU decisions interpreting it, currently, there are two cases pending before the PCT in which the applicant CJEU decisions interpreting currently, there are two cases pending before the PCT in which the applicant Attorney General/Minister of Justice is seeking to challenge: (i) the EU Rule of Law Conditionality Attorney General/Minister of Justice is seeking to challenge: (i) the EU Rule of Law Conditionality Regulation which the CJEU has very recently upheld,(28) and (ii) CJEU’s Article 279 TEU power to impose Regulation which the CJEU has very recently upheld,(28) and (ii) CJEU’s Article 279 TEU power to impose penalty payments for failure to fulfill its decisions regarding the Supreme Court Disciplinary Chamber.(29) penalty payments for failure to fulfill its decisions the Court Disciplinary Chamber.(29) Should the PCT unlike its German counterpart follow the applicants’ position in these cases, this would Should the PCT unlike its German counterpart follow the applicants’ position in these cases, this would signal their wish to become, to use Andreas Volkskuhle’s term,(30) a national signal their wish to become, to use Andreas Volkskuhle’s term,(30) a national Superrevisionsinstanz Superrevisionsinstanz over EU over EU and Convention law. and Convention law.

V. More Conflicts Ahead? V. More Conflicts Ahead?

At first glance, the situation looks as follows: In Poland, there is a serious and open confrontation between the At first glance, the situation looks as follows: In Poland, there is a serious and open confrontation between the CJEU and the PCT, which may very soon escalate into a full-scale conflict; on the contrary, in Germany, there CJEU and the PCT, which may very soon escalate into a full-scale conflict; on the contrary, in Germany, there have been clear signs of appeasement on both sides. In particular, the European Commission decided to drop have been clear signs of appeasement on both sides. In particular, the European Commission decided to drop its case against Germany despite having previously argued that the FCC’s rejection of said its case against Germany despite having previously argued that the FCC’s rejection of said PSPP PSPP complaints complaints had been insufficient to mitigate the consequences of its prior had been insufficient to mitigate the consequences of its prior ultra vires ultra decision. For, as the Commission decision. For, as the Commission aptly pointed out that “the [ out that “the [Weiss Weiss] judgment of the [CJEU] and the grounds on which it is based continue to be ] judgment of the [CJEU] and the grounds on which it is based continue to be deprived, in Germany, of the legal effects granted by virtue of the Union Treaties.”(31) And even though deprived, in Germany, of the legal effects granted by virtue of the Union Treaties.”(31) And even though German authorities “have avoided an German authorities “have avoided an actual actual disruption of the implementation of the [ECB’s] PSPP Decision,” disruption of the implementation of the [ECB’s] PSPP Decision,” the assault on the CJEU’s interpretive authority by the FCC’s initial decision “remain[ed] unaffected by those the assault on the CJEU’s interpretive authority by the FCC’s initial decision “remain[ed] unaffected by those developments ”(32) developments.”(32)

26 26 See See, in particular, , in particular, Reczkowicz v Poland Reczkowicz v Poland [2021], Xero Flor v Poland [2021], and Advance Pharma Ltd. v. Poland (2022) [2021], Xero Flor v Poland [2021], and Advance Pharma Ltd. v. Poland (2022)

27 See Trybunał Konstytucyjny, K 7/21 (2022), English translation available at:

27 See Trybunał Konstytucyjny, K 7/21 (2022), English translation available at: https://trybunal gov pl/en/hearings/judgments/art/11820-dokonywanie-na-podstawie-art-6-ust-1-zd-1-ekpcz- https://trybunal gov pl/en/hearings/judgments/art/11820-dokonywanie-na-podstawie-art-6-ust-1-zd-1-ekpczprzez-sady-krajowe-lub-miedzynarodowe-oceny-zgodnosci-z-konstytucja-i-ekpcz-ustaw-dotyczacych-ustrojuprzez-sady-krajowe-lub-miedzynarodowe-oceny-zgodnosci-z-konstytucja-i-ekpcz-ustaw-dotyczacych-ustrojusadownictwa-wlasciwosci-sadow-oraz-ustawy-dotyczacej-krajowej-rady-sadownictwa sadownictwa-wlasciwosci-sadow-oraz-ustawy-dotyczacej-krajowej-rady-sadownictwa .

Note the PCT’s reliance on the aforesaid insofar as formula which, again, does not declare unconstitutional the entire Note PCT’s reliance on the aforesaid insofar as formula which, again, does not declare unconstitutional the entire Article 6(1) ECHR (yet alone Poland’s membership in the Convention system), yet clearly purports to create some Article 6(1) ECHR (yet Poland’s membership in Convention system), yet clearly purports to create some domestic legal “gateways” from the aforesaid ECtHR decisions. domestic legal “gateways” from the aforesaid ECtHR decisions

28 28 Cf Cf. Trybunał Konstytucyjny, K 1/22 (pending). Trybunał Konstytucyjny, K 1/22 (pending)

29 29 Cf Cf Trybunał Konstytucyjny, K 8/22 (pending) Trybunał Konstytucyjny, K 8/22 (pending)

30 Andreas Voßkuhle, 30 Andreas Voßkuhle, Constitutional Court: The Dilemma of Law and Politics Constitutional Court: Dilemma of Law and Politics, 64 Osteuropa-Recht 481 (2019) , 64 Osteuropa-Recht 481 (2019).

31 31 See See, The Formal Letter of Notice, , Formal Letter of Notice, supra supra note 16, at 3 note 16, 3.

32 Id 32 Id

Recent Ultra Vires Conflicts between the Court of Justice of the European Union and EU Recent Ultra Vires Conflicts between the Court of Justice of the European Union and EU Member State Constitutional Courts Member State Constitutional Courts

Marcin Barański (Humboldt-Universität, Berlin, Germany) Marcin Barański (Humboldt-Universität, Berlin, Germany)

Leaving aside the Commission’s justifications for dropping the case against Germany, the Leaving aside the Commission’s justifications for dropping the case against Germany, the question remains question remains whether the current appeasement will be long-lasting. What can bring (at least a partial) response to that whether the current appeasement will be long-lasting. What can bring (at least a partial) response to that question is the FCC’s verdict on the constitutional complaint against the decision of the German Federal question is the FCC’s verdict on the constitutional complaint against the decision of the German Federal Labour Court implementing the CJEU’s ruling in the Labour Court implementing the CJEU’s ruling in the Egenberger Egenberger(33) case. (33) case. Egenberger Egenberger concerned the scope concerned the scope of the so-called religious ethos exemption in EU employment law; notably in light of the general EU principle of the so-called religious ethos exemption in EU employment law; notably in light of the EU principle of anti-discrimination on the one hand, and both EU and German constitutional provisions on religious of anti-discrimination on the one hand, and both EU and German constitutional provisions on religious freedom and church autonomy on the other hand.(34) In a nutshell, the balance struck by the CJEU in this freedom and church autonomy on the other hand.(34) In a nutshell, the balance struck by the CJEU in this respect has been thought not only to be controversial on EU law grounds, but also to be in direct conflict with respect has been thought only to be controversial on EU law grounds, but also to be in direct conflict with some fundamental principles of German constitutional law.(35) In particular, it seems as though, in order to some fundamental principles of German constitutional law.(35) In particular, seems though, in order to avoid another open clash with the CJEU, the FCC will need to revisit certain important aspects of its case law avoid another open clash with the CJEU, the FCC will need to revisit certain important aspects of its case law on church autonomy, so as to limit the latter’s scope with a view to accommodating the CJEU’s understanding on church autonomy, so as to limit the latter’s scope with a view to the understanding of the Treaty principle of anti-discrimination.(36) of the Treaty principle of anti-discrimination.(36)

Whether the plaintiffs in the Whether the plaintiffs in the Egenberger Egenberger complaint will be successful remains yet to be seen. What is crucial, complaint will be successful yet to be seen. What is crucial, however, is that the German FCC is by no means renouncing its ultimate power to, should the circumstances however, is that the German FCC is by no means renouncing its ultimate to, should the circumstances require it, engage in require it, engage in ultra vires ultra review of EU law. And this, as has been explained earlier, is something the review of EU law. And this, as has been explained earlier, is something the European Court has been consistently and forcefully opposing in its case law.37 Hence, whether the observed European Court has been consistently and forcefully opposing in its case law.37 Hence, whether the observed appeasement will remain a long-lasting feature of the FCC-CJEU relationship seems to depend on two factors: appeasement will remain a long-lasting feature of the FCC-CJEU relationship seems to depend on two factors: The German Court’s willingness to refrain from exercising its residual power of review of EU law on the one The German Court’s willingness to refrain from exercising its residual power of review of EU law on the one hand and the CJEU’s (but also other EU institutions’) willingness to accommodate at least the most salient hand and the CJEU’s (but also other EU institutions’) willingness to accommodate at least the most salient jurisdictional concerns advanced by its Member State counterparts As for the competing claims to legal jurisdictional concerns advanced by its Member State counterparts. As for the competing claims legal authority and supremacy in the EU, they are unlikely to become conclusively settled in either Court’s favor authority and supremacy in the EU, they are unlikely to become conclusively settled in either Court’s favor soon; all of which means that one should not rule out the possibility of further judicial clashes and ultra vires soon; all of which means that one should not rule out the possibility of further judicial clashes and ultra vires decisions by Germany’s top court in the near future. decisions by Germany’s top court in the near future 33 C-414/16 [2018] 33 C-414/16 [2018].

34 Cf Articles 136 – 141 of the German Basic Law, granting churches a wide discretion in this regard 34 Cf Articles 136 – 141 of the German Basic Law, granting churches a wide discretion in this regard 35 For discussion, see Martijn van den Brink, 35 For discussion, see Martijn van den Brink, When can religious employers discriminate? The scope of the religious When can religious employers discriminate? The scope of the religious ethos exemption ethos exemption iin n EU law EU law, 1 European Law Open 89–112 (2022). 1 European Law Open 89–112 (2022) 36 See van den Brink, 36 See van den Brink, supra supra note 35. note 35 37 37 See See CJEU Press Release, CJEU Press Release, supra supra note note Error! Bookmark not defined.. Error! Bookmark not defined..

The arsenal of a new regime in Europe: after Hungary and Poland, Romania enters the The arsenal of a new regime in Europe: after Hungary and Poland, Romania enters the illiberal game: The Advocate General’s Opinion on Romania and the independence of the judiciary (38) illiberal game: The Advocate General’s Opinion on Romania and the independence of the judiciary (38)

I. Introduction I. Introduction

Roïla Mavrouli (CNRS, The French National Centre for Scientific Research)

Roïla Mavrouli (CNRS, The French National Centre for Scientific Research)

Defining the European Union as a Defining the European Union as a sui generis sui generis institution does not mean that one can ignore the fact that institution does not mean that one can ignore the fact that European integration takes place in a legal world of sovereign states. This fact confers a particular meaning European integration takes place in a legal world of sovereign states. This fact confers a particular meaning upon European integration and brings about certain limitations(39) These limitations are subject to a legal European integration and brings about certain limitations(39). These limitations are subject to a legal discourse and are determined by actual political events. However, the EU has so long faced many different discourse and are determined by actual political events. However, the EU has so long faced many different crises (economic and financial, migratory, rule of law) that were not to be addressed in the context of crises (economic and financial, migratory, rule of law) that were not to be addressed in the context of European integration. Nonetheless, the topical rule of law crisis seems to unlock the legitimacy problems European integration Nonetheless, the topical rule of law crisis seems to unlock the legitimacy problems inherent to the European project(40) and connects the situation with the low degree of integration. The inherent to the European project(40) and connects the situation with the low degree of integration. The political output of the EU handling the crises through the efficiency of its methods disguises its problematic political output of the EU handling the crises through the efficiency of its methods disguises its problematic legitimacy and creates a considerable distrust of the traditional institutional setting. Nowadays, the Member legitimacy and creates a considerable distrust of the traditional institutional setting. Nowadays, the Member states are striking back through states are striking back through ultra vires ultra challenges of the EU competencies and/or democratic backsliding. challenges of the EU competencies and/or democratic backsliding.

The critique of the EU being an institution of “good governance” engrained in its form of constitutionalism is The critique of the EU being an institution of “good governance” engrained in its form of constitutionalism is obvious through the recent waves of de-Europeanisation resulting in the rule of law crisis. Some Member obvious through the recent waves of de-Europeanisation resulting in the rule of law crisis. Some Member states such as Hungary and Poland have been classified as being “illiberal” while being members of the states such as Hungary and Poland have been classified as being “illiberal” while being members of the European Union This is on the grounds of their having refused to accept the relocation of refugees as well as Union. This is on the grounds of their having refused to the relocation of refugees as well as for their having undermined the independence of the judicial system. Even if such manifestations of for their having undermined the independence of the judicial system. Even if such manifestations of illiberalism are increasingly frequent, illiberalism cannot shape the panorama of the European polity. This is illiberalism are increasingly illiberalism cannot shape the panorama of the European polity. This is because it goes against the prerequisite of abiding by the rule of law that is required to join the EU. Despite because it goes against the prerequisite of abiding by the rule of law that is required to join the EU Despite the plethora of mechanisms - legal, political, and techno-managerial - used by the EU in order to tackle the the plethora of mechanisms - legal, political, and techno-managerial - used by the EU in order to tackle the rule of law crisis, it seems that the EU institutions and legal scholars will dwell upon a solution for much rule of law crisis, it that the EU and legal scholars will dwell upon a solution for much longer This article will focus on a recent CJEU AG Opinion concerning another EU Member State – other longer. This article will focus on a CJEU AG Opinion concerning another EU Member State – other than the usual suspects – showing signs of illiberalism. The hypothesis lies in assessing the EU polity-makers’ than the usual suspects – showing signs of illiberalism. The hypothesis lies in the EU polity-makers’ ambitions to create an economic Union of rights without initially focusing on democracy and the rule of law. ambitions to create an economic Union of rights focusing on democracy and the rule of law. If the rule of law was originally missing from the founding treaties, how can it become an enforceable value If the rule of law was originally missing from the founding treaties, how can it become an enforceable value for the Member States? for the Member States?

II The spectre

of illiberalism within the EU II. The spectre of illiberalism within the

The recent Opinion (OP) of the Advocate General (AG) on the independence of the judiciary in Romania, The recent Opinion (OP) of the General (AG) on the of the in Romania, published on 20 January, 2022, demonstrates that a spectre is haunting Europe: Illiberalism. published on 20 January, 2022, demonstrates that a spectre is haunting Europe: Illiberalism

38 This research is part of the MEDROI project (ANR-21-CE41-0004-01). 38 This research is part of the MEDROI (ANR-21-CE41-0004-01)

39 C Möllers, “Constitutional State of the European Union”, in 39 C Möllers, “Constitutional State of the European Union”, in Globalisation and governance International problems Globalisation and governance International problems,, European solutions, ed R Schültze, Cambrdge, p 243 European solutions, ed R Schültze, Cambrdge, p 40 J H H Weiler, “Europe in crisis – On ‘political messianism’, ‘legitimacy’, and the ‘rule of law’”, 40 J. H.H. Weiler, in crisis – On ‘political messianism’, ‘legitimacy’, and ‘rule of law’”, Singapore Journal Singapore of Legal Studies of Legal Studies, 2012, p 248-268 , 2012, p 248-268

The arsenal of a new regime in Europe: after Hungary and Poland, Romania enters the The arsenal of a new regime in Europe: after Hungary and Poland, Romania enters the illiberal game: The Advocate General’s Opinion on Romania and the independence of the judiciary illiberal game: The Advocate General’s Opinion on Romania and the independence of the judiciary

Roïla Mavrouli (CNRS, The French National Centre for Scientific Research)

Roïla Mavrouli (CNRS, The French National Centre for Scientific Research)

Advocate General Collins published his OP in the preliminary ruling of the Court of Advocate General Collins published his OP in the preliminary ruling of the Court of Justice of the European Justice of the European Union (ECJ) in relation to case C-430/21 on the effect of the decisions of the Constitutional Court of (ECJ) in relation case C-430/21 on the effect of the decisions of the Constitutional Court of Romania The request for a preliminary ruling from the Romanian Court of Appeal of Craiova focuses on the Romania. The request for a preliminary ruling from the Romanian Court of Appeal of Craiova focuses on the question of whether a national judge may be prevented from examining the conformity with EU law of a question of whether a national judge may be examining the conformity EU law of a provision of national law that has been found to be constitutional by a judgment of the Constitutional Court of provision of national law that has been found to be constitutional by a judgment of the Constitutional Court of that Member State and, where it does so, whether it may be subject to prosecution and disciplinary sanctions. that Member State and, where it does so, whether it may be subject to prosecution and disciplinary sanctions

Romania is not the first Member State raising doubts about a potential democratic backsliding and an Romania is not the first Member State raising doubts about potential democratic backsliding and an undermining of the independence of the judiciary. The request for a preliminary ruling from the Romanian undermining of the independence of the judiciary. The request for preliminary ruling from the Romanian Court of Appeal of Craiova follows a series of the rule of law violations with regard to the independence of Court Appeal of Craiova follows a series of the rule of law violations with regard the independence of the judiciary. Before Romania, the recent matters relating to the rule of law violations and the independence of the judiciary Before Romania, the recent matters to the rule of law violations and the independence of the judiciary have brought two other Member States before the ECJ to contest EU law. Hungary and Poland the judiciary have brought two other Member States before the ECJ to contest EU law Hungary and Poland have violated the rule of law and undermined EU primacy through national legislation on the grounds of have violated the rule of law and undermined EU primacy through national legislation on the grounds of constitutional identity, which could be illiberal However, illiberalism cannot become part of any constitutional identity, which could be illiberal. However, illiberalism cannot become part of any constitutional identity as democracy is by definition liberal On 8 April 2020, the ECJ ruled that Poland must constitutional identity as democracy by definition liberal. On 8 April 2020, the ECJ ruled that Poland immediately suspend the application of the national provisions on the powers of the Disciplinary Chamber of suspend the application of provisions on the powers of the Chamber of the Supreme Court with regard to disciplinary cases concerning judges(41). Similarly, the 2018 efforts by the the Supreme Court with regard to disciplinary cases concerning judges(41) Similarly, the 2018 efforts by the Hungarian government to reform the courts fit within a broader push to capture the Hungarian judiciary (42). Hungarian government to reform the courts fit within a broader push to capture the Hungarian judiciary (42)

With regard to the identification of constitutional identity, the ECJ considers that the direct effect and primacy With regard to the identification of constitutional identity, the ECJ considers that the direct effect and primacy of Community law have an inherent superiority over national law and, therefore, over constitutional norms of Community law have an inherent over national law and, therefore, constitutional norms. The almost unilateral manifestation of the absolute authority of Community law is counterbalanced by many The almost of the absolute of Community law is counterbalanced by many expressions of the preservation of the national identity and culture of Member States and by their respect for expressions of the preservation of the national identity and culture of Member States and by their respect for institutional and procedural autonomy. In that respect, the rise of illiberal values on the grounds of an illiberal institutional and procedural autonomy In that respect, the rise of illiberal values on the grounds of an illiberal identity seems to be incompatible with article 2 TEU. The evolution of the importance of values relating to the identity seems to be incompatible with article 2 TEU. The evolution of the importance of values relating to the rule of law within the EU is characterized by a sequence of measures and mechanisms (political and judicial), rule of law within the EU is characterized by sequence of and mechanisms (political and judicial), such as the new rule of law conditionality incorporated in Regulation 2020/2092 – drafted in order to address such as the new rule of law conditionality incorporated in Regulation 2020/2092 – drafted in order to address the ineffectiveness of the article 7 TUE mechanism in the case of Hungary and Poland. Romania’s of 7 TUE mechanism in the case Hungary and Poland. Romania’s Constitutional Court interpretation focusing on the constitutional identity to disapply EU law raises concerns Constitutional Court interpretation focusing on the constitutional to disapply EU law raises concerns regarding the effectiveness of all these measures taken against the rule of law violations. If Romania does not regarding the effectiveness of all these measures taken against the rule of law violations If Romania does not seem to learn its lesson after Hungary and Poland, what more can be done to put an end to the rule of law seem to learn its lesson after Hungary and Poland, what more can be done to put an end to the rule of law crisis? crisis?

1. Breaching the principle of independence of the judiciary contained in European Union law: grounding lack 1. Breaching the principle of independence of judiciary in European Union law: grounding lack of independence on the constitutional identity of Article 4(2) TEU? of on the constitutional of Article 4(2) TEU? Eurosceptics regard the theoretical framework of the concept of constitutional identity as a regional avatar of Eurosceptics regard the theoretical framework of the concept of constitutional identity as a regional avatar of the globalization process. the globalization process.

41 See case C-619/18, 41 See case C-619/18, Commission v Poland Commission v Poland (Independence of the Supreme Court) and case C-791/19 R, Order of the (Independence of Supreme Court) and case C-791/19 R, Order Court (Grand Chamber) of 8 April 2020. Court (Grand Chamber) of 8 April 2020 42 See V. Z. Kazai and A. Kovács, “The Last Days of the Independent Supreme Court of Hungary?”, 42 See V Z Kazai and A Kovács, “The Last of the Independent Supreme Court of Hungary?”, VerfBlog VerfBlog, 2020/10/13. , 2020/10/13

The arsenal of a new regime in Europe: after Hungary and Poland, Romania enters the The arsenal of a new regime in Europe: after Hungary and Poland, Romania enters the illiberal game: The Advocate General’s Opinion on Romania and the independence of the judiciary illiberal game: The Advocate General’s Opinion on Romania and the independence of the judiciary

Roïla Mavrouli (CNRS, The French National Centre for Scientific Research) Roïla Mavrouli (CNRS, The French National Centre for Scientific Research)

In France, the constitutional requirement of national In France, the constitutional requirement of national transposition of European directives, according to the transposition of European directives, according to the Constitutional Council, ‘cannot go against a rule or principle inherent to the constitutional identity of France, Constitutional Council, ‘cannot go against a rule or principle inherent to the constitutional identity of France, unless the constituent has agreed to it’. In Germany, we find the same spirit of jurisprudence in the unless the has agreed it’. In Germany, we find the spirit of jurisprudence in the Constitutional Court’s ruling on 30 June 2009 on the Lisbon Treaty. Article 4(2) TEU, while part of the Constitutional Court’s ruling on 30 June 2009 on the Lisbon Treaty. Article 4(2) TEU, while part of the European founding treaty, nevertheless energizes a need for identity on the part of those Member States that European founding treaty, nevertheless a need for identity on the part of those Member States that are today constantly demanding derogations at the national constitutional level. The need for identity, which are today constantly derogations at the national constitutional level The need for some associate with the need to protect constitutionally guaranteed rights and freedoms, goes back to some associate with the need to protect constitutionally guaranteed rights and freedoms, goes back to Germany’s first questioning of the European legal order during the ‘Solange saga’, which put the relationship Germany’s first questioning of the European legal order during the ‘Solange saga’, which put the relationship between national constitutional rights into perspective and EU law. between national constitutional rights into perspective and EU law.

The subject is as topical now as it has ever been in view of recent decisions of the ECJ resulting in either the The subject is as topical now as has ever been in view of recent decisions of the ECJ resulting in either the vindication of the constitutional identity of the Member States in question or an of the constitutional identity of the Member States in question or an ultra vires ultra vires control. The AG’s control The AG’s OP on the independence of the judiciary concerns a certain RS, who was convicted following criminal OP on the independence of the judiciary concerns a certain RS, who was convicted following criminal proceedings in Romania and claimed that his rights of defence had been violated. A previous ECJ ruling of 18 proceedings in Romania and claimed that his rights of defence had been violated. A previous ECJ ruling of 18 May 2021 held that national law providing for the establishment of a section within the Public Prosecutor’s May 2021 held that national law providing for the establishment of a section within the Public Prosecutor’s Office for the investigation of offences committed within the judicial system (SIIJ) is contrary to EU law, Office for the investigation of offences committed within the judicial system (SIIJ) contrary to EU law, since its establishment is not accompanied by specific guarantees identified by the Court nor justified by its establishment not accompanied by specific identified by the Court nor justified by objective and verifiable imperatives relating to the proper administration of justice. However, on 8 June 2021, objective and imperatives relating to the proper administration of justice. However, on 8 June 2021, the Constitutional Court of Romania, in its judgment No 390/2021, noted that the provisions at issue were the Constitutional Court of Romania, in its judgment No 390/2021, noted that the provisions at issue were constitutional and saw no reason to depart from them. In particular, Article 148(2) of the Romanian constitutional and saw no reason to depart from them. In particular, Article 148(2) of the Romanian Constitution provides for the primacy of EU law over contrary provisions of national law; however, this Constitution provides for the primacy of EU law over contrary provisions of national law; however, this principle cannot suppress or negate national constitutional identity. The AG points out that claims of national principle cannot suppress or negate national constitutional identity. The AG points out that claims of national identity must respect the common values referred to in Article 2 TEU and not – as the Constitutional Court of identity must respect the common values referred to Article 2 TEU and – as the Constitutional Court of Romania did – remind national courts that they are not entitled to examine the conformity with EU law of a Romania did – remind national courts that they are not entitled to examine the conformity with EU law of a national provision which has been found to be constitutional by a judgment of the Constitutional Court, national provision which has been found to be constitutional by a judgment of the Constitutional Court, namely its judgment No 390/2021. In the case in question, the Constitutional Court itself has not identified namely its judgment No 390/2021. In the case in question, the Constitutional Court itself has not identified what aspect of national identity the judgment in the Asociaţia ‘Forumul Judecătorilor din România’ case what aspect of national identity the judgment the Asociaţia ‘Forumul Judecătorilor din România’ case impinges upon According to AG Collins, in a case such as the present one, the national court, if necessary, upon. According to AG Collins, in a case such as the present one, the national court, if necessary, must disregard the judgments of a higher court or even a constitutional court, if it considers that those disregard the judgments of a higher or even a constitutional court, if it considers that those provisions do not comply with EU law (§62). provisions do not with EU law (§62)

2. Advocate General’s Opinion in line with the recent judgments on the rule of law violations: the unlawful

2. Advocate General’s Opinion in line with the recent judgments on the rule of law violations: the unlawful ruling of the Romanian Constitutional Court ruling of the Romanian Constitutional Court

The AG’s OP is in line with all previous ECJ judgments on the rule of law violations confirming that national The AG’s OP in line with all previous ECJ judgments on the rule of law violations confirming that national courts must be in a position “to exercise their functions autonomously, without being subject to any courts must be in a position “to exercise their functions autonomously, without being subject to any hierarchical constraint or subordinated to any other body, and without taking orders or instructions from any hierarchical constraint or subordinated to any other body, and without taking orders or instructions from any source whatsoever” (§81). source whatsoever” (§81).

The arsenal of a new regime in Europe: after Hungary and Poland, Romania enters the The arsenal of a new regime in Europe: after Hungary and Poland, Romania enters the illiberal game: The Advocate General’s Opinion on Romania and the independence of the judiciary illiberal game: The Advocate General’s Opinion on Romania and the independence of the judiciary

For this reason, the AG finds that the For this reason, the AG finds that the Romanian Constitutional Court unlawfully assumed its authority in Romanian Constitutional Court unlawfully assumed its authority in breach of the second subparagraph of Article 19(1) TEU, in breach of the principle of primacy of EU law in breach of the second subparagraph of Article 19(1) TEU, in breach of the principle of primacy of EU law in breach of the fundamental requirement of an independent judiciary. breach of the fundamental of an independent judiciary. According to AG Collins, the principle of the independence of the judiciary, read in conjunction with Article 2 According to AG Collins, the principle of the independence of the judiciary, read in conjunction with Article 2 TEU and Article 47 of the Charter of Fundamental Rights, precludes a provision or practice of national law TEU and Article 47 of Charter Fundamental Rights, precludes a or practice of national law under which national courts are not empowered to examine the conformity with EU law of a national under which national courts are not empowered to examine the conformity with EU law of a national provision which has been declared constitutional by a judgment of the Member State’s Constitutional Court. provision which has been declared constitutional by a judgment of the Member State’s Constitutional Court This same principle precludes the initiation of disciplinary proceedings and sanctions against a judge This same principle precludes the initiation of disciplinary proceedings and sanctions against a judge undertaking such an examination of conformity with EU law It is evident that the Romanian Constitutional undertaking such an examination of conformity with law. It evident that the Romanian Constitutional Court’s interpretation clashes with EU law and deprives national judges of their duty to examine conformity Court’s interpretation clashes with EU law and deprives national judges of their duty to examine conformity with EU law. All state organs – such as the national courts, including national constitutional courts, and with EU law. All state organs – as the national courts, including constitutional courts, and administrative authorities – are called upon to apply EU law(43) (§58). administrative authorities – are called upon to EU law(43) (§58)

In his OP, he points out that there is no need to consider Article 19(1) TEU and Article 2 TEU separately In his OP, he points out that there is no need to consider Article 19(1) TEU and Article 2 TEU separately because the guarantee of independence is inherent in the task of adjudication (§69). because the guarantee of independence is inherent in the task of adjudication (§69).

III A constitutional liberal democracy crisis: The lesson is not learned III. A constitutional liberal democracy crisis: The lesson learned

The OP of AG Collins on the independence of the judiciary in Romania recalls the recent rule of law crisis. The OP of AG Collins on the independence of the judiciary in Romania recalls recent rule of crisis. The usual suspects in this regard are Hungary and Poland – Member States that are often accused of The usual suspects in this are Hungary and Poland – Member States that are often accused of undermining the principle of primacy and violating the independence of the judiciary, the core criterion of the undermining the principle of primacy and violating the independence of the judiciary, the core criterion of the rule of law enshrined in Article 2 TEU. However, the Romanian case seems to indicate that the rule of law rule of law enshrined in Article 2 TEU. However, the Romanian case seems to indicate that the rule of law crisis is not limited to the usual two suspects mentioned above The AG’s OP appeared in a period crisis not limited to the usual two suspects mentioned above. The AG’s OP appeared in a period characterised by what some legal scholars have called the rise of illiberal democracies in Europe(44) Even characterised by what some legal scholars have called the rise of illiberal democracies in Europe(44). Even though the EU has long been criticised for having serious democratic shortcomings(45), the strong and vibrant though the EU has long been criticised for having serious the strong and vibrant way EU institutions have reacted to rule of law violations – primarily by creating new legal and political way EU institutions have reacted to rule of law violations – by creating new and political instruments – aims to end such violations(46). instruments – aims to end such violations(46)

The silence regarding democratic discourse within the EU has been replaced by over-exertion in an attempt to The silence regarding democratic discourse within the EU has been replaced by over-exertion an to combat illiberal values combat illiberal values.

What is striking about the Romanian case is that the creation of new EU mechanisms to fight against the rise What is about the Romanian case is that the creation of new EU mechanisms to against the rise of illiberalism has not resulted in any lesson being learned by the other Member States. of illiberalism has not resulted in any lesson being learned by the other Member States

43 See C-355/19, 43 See C-355/19, Asociaţia Forumul Judecătorilor din România Asociaţia Forumul Judecătorilor din România ((§223). §223)

44 L. Pech, and K. L. Scheppele , ‘Illiberalism Within: Rule of Law Backsliding in the EU’, (2017) Cambridge Yearbook

44 L Pech, and K L Scheppele , ‘Illiberalism Within: Rule of Law Backsliding in the EU’, (2017) Cambridge Yearbook of European Legal Studies, vol 19, p 3-47 of Legal Studies, vol 19, 3-47

45 K L Scheppele, L Pech, S Platon, ‘Compromising the Rule of Law while Compromising on the Rule of Law’, 45 K L Scheppele, L Pech, S Platon, ‘Compromising the Rule of while Compromising on the Rule of Law’, VerfBlog, 2020/12/13, available at: https://verfassungsblog de/compromising-the-rule-of-law-while-compromising- , 2020/12/13, available at: https://verfassungsblog.de/compromising-the-rule-of-law-while-compromisingon-the-rule-of-law/ on-the-rule-of-law/

46 L Fromont and A Van Wayenberge, “Trading Rule of Law for Recovery? The New EU strategy in the post-Covid 46 L Fromont A Van Wayenberge, “Trading Rule Law for Recovery? New EU strategy in the post-Covid era”, era”, European Law Journal European Law Journal, forthcoming 2022. forthcoming 2022

46 For general analysis of the tools: A. Jakab et D. Kochenov (eds.),

46 For general analysis of the tools: A Jakab et D Kochenov (eds.), The enforcement of EU law and values: ensuring The enforcement of EU law and values: ensuring member states’ compliance member states’ compliance (OUP, 2017); J -W Müller, ‘Should the EU Protect Democracy and the Rule of Law inside (OUP, 2017); J -W Müller, ‘Should the EU Protect Democracy and the Rule of Law inside Member States?’ (2015) 21 European Law Journal, p 141 Member States?’ (2015) 21 European Journal, p. 141.

Roïla Mavrouli (CNRS, The French National Centre for Scientific Research) Roïla Mavrouli (CNRS, The French National Centre for Scientific Research)

The arsenal of a new regime in Europe: after Hungary and Poland, Romania enters the The arsenal of a new regime in Europe: after Hungary and Poland, Romania enters the illiberal game: The Advocate General’s Opinion on Romania and the independence of the judiciary illiberal game: The Advocate General’s Opinion on Romania and the independence of the judiciary

In other words, instead of trying to put an end to illiberal values, Member States do not In other words, instead of trying to put an end to illiberal values, Member States do not seem to disapprove of seem to disapprove of EU primacy being undermined by Hungary and Poland. History has demonstrated that while the rule of law EU primacy being undermined by Hungary and Poland History has demonstrated that while the rule of law institutions can function as a decisive check on the arbitrariness of executive power, they alone cannot prevent institutions can function as a decisive check on the arbitrariness of executive power, they alone cannot prevent authoritarianism;(47) only democracy has the power to do so. Nevertheless, the extremely concerning illiberal authoritarianism;(47) only has the power to do so Nevertheless, the concerning illiberal wave of populist political parties has an anti-European tendency and goes even further in their confrontation wave of populist political parties has an anti-European tendency and goes even further in their confrontation with the EU; it frontally assaults core EU values while internally dismantling constitutional democracy. The with EU; it frontally core EU while internally dismantling constitutional The rise of authoritarianism in Central and Eastern Europe is reminiscent of the dramatic events in Europe in the of authoritarianism in Central and Eastern Europe reminiscent of dramatic in Europe in twentieth century. Even if the EU is seeking an appropriate solution to illiberalism, there are still reasons to be century. Even if the EU is seeking an appropriate solution to illiberalism, there are still reasons to be worried about certain leaders’ attacks on liberal democracy(48) For liberal democracy to succeed, worried about certain leaders’ attacks on liberal democracy(48). For liberal democracy to succeed, constitutional liberalism must enjoy the same prestige and importance as ‘electoral democracy’(49) constitutional liberalism must enjoy the same and importance as ‘electoral democracy’(49).

IV. Conclusion IV Conclusion

The EU is certainly an entity consisting of different value systems and forms of allegiance, marked by The EU certainly an entity consisting of different value systems and forms of allegiance, marked by pluralism and conflicting views of the common good For it to function, some modicum of a common will has pluralism and conflicting views of the common good. For it to function, some modicum of a common will has to be articulated(50) Since the EU enlargement, this common will has been subject to the democratic principle be articulated(50). Since the enlargement, this common will has been subject the democratic principle and the rule of law, a vital prerequisite for all future Member States Nonetheless, this common topos did not and the rule of law, a vital prerequisite for all future Member States. Nonetheless, this common topos did exist at the founding of the treaties(51) The words democracy, human rights, and the rule of law were absent at the founding of the treaties(51). The words democracy, human rights, and the rule of law absent from the Schuman Declaration In other words, democracy and the rule of law were simply not part of the from the Schuman Declaration. In other words, democracy and the rule of law were simply part of the original vision of European integration(52). If the EU holds to a system of rights that underpin the forms of original vision of European integration(52). If the EU holds to a system of rights that underpin the forms of constitutional democracy that are found in (western) Europe, this is currently compromised by the rule of law constitutional democracy that are found in Europe, this is currently compromised by the rule of law crisis. Be that as it may, the recent mechanisms in combating illiberalism resort to ‘conditionality’, namely crisis. Be that as it may, the recent mechanisms in combating illiberalism resort to ‘conditionality’, namely economic sanctions imposed on those Member States who do not comply with the rule of law criterion. economic sanctions imposed on those Member States who do not comply with the rule of law criterion. Nonetheless, ‘outcasting(53)’ the usual suspects through ‘conditionality’ would result in trading the rule of Nonetheless, ‘outcasting(53)’ the usual suspects through ‘conditionality’ would result in trading the rule of law for the European budget(54). law for the European budget(54)

The conditionality mechanism cut funds awarded to the Member States in case of an established violation of The conditionality mechanism cut funds awarded to the Member States of an established violation of the rule of law by those States(55) In this respect, the new rule of law conditionality Regulation and its the rule of law by those States(55). In this respect, the new rule of law conditionality Regulation and its restricted application to those violations which endanger the budget and/or restricted application to those violations which endanger the budget and/or

47 B. Bogaric, “The two faces of populism: Between authoritarian and democratic populism”, 47 B. Bogaric, “The two faces of Between authoritarian and democratic populism”, German Law Journal Journal, 2019, 20, p. 390–400 , 2019, 20, p. 390–400.

48 P. Blokker, ‘Populist Counter-Constitutionalism, Conservatism, and Legal Fundamentalism’ (2019) 48 P. Blokker, ‘Populist Counter-Constitutionalism, Conservatism, and Legal (2019) European Constitutional Law Review European Law Review vol. 15, n° 3 vol. 15, n° 3

49 B. Bogaric, “A crisis of constitutional democracy in post-Communist Europe :’Lands in-between’ democracy and authoritarianism”, 49 B Bogaric, “A crisis of constitutional democracy in post-Communist Europe :’Lands in-between’ democracy and authoritarianism”, International Journal of Constitutional Law International Journal of Constitutional Law, 2015, vol. 13, Issue 1, p. 219–245. , 2015, vol. 13, Issue 1, p. 219–245

50 E O Eriksen, J E Fossum, “Europe in Search of Legitimacy: Strategies of Legitimation Assessed”, 50 E O Eriksen, J E Fossum, “Europe in Search of Legitimacy: Strategies of Assessed”, International Political Science Review International Political Science Review (2004), vol 25, n° 4, p. 443 (2004), vol 25, n° p. 443.

51 See the Schuman declaration 51 See Schuman declaration.

52 J. H.H. Weiler, 52 J. H.H. Weiler, loc. cit loc. cit., p. 260 ., p. 260

53 O. A. Hathaway et S. J. Shapiro, 53 O. A. Hathaway et S. J. Shapiro, The internationalists: how a radical plan to outlaw war remade the world The internationalists: how a radical plan to outlaw war remade the world, New York , New York Simon & Schuster, 2017, p. 330. Simon & Schuster, 2017, p. 330

54 See the new rule of law conditionality regulation Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 54 See the new rule of law conditionality regulation Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget December 2020 on a general regime of conditionality for the protection of the Union budget

55 R Mavrouli, “The dark relationship between the rule of law and liberalism The new ECJ decision on the Conditionality Regulation”, 55 R. Mavrouli, “The relationship rule of law and liberalism. The new ECJ on the Regulation”, European Papers Papers, vol. 7, 2022, n° 1, European Forum, Insight of 2 June 2022, p. 275-286. , vol. 7, 2022, n° 1, European Forum, Insight of 2 2022, p. 275-286.

Roïla Mavrouli (CNRS, The French National Centre for Scientific Research) Roïla Mavrouli (CNRS, The French National Centre for Scientific Research)

interests of the EU is iconic(56) Therefore, the rule of law crisis is inextricably linked to the EU’s interests of the EU is iconic(56). Therefore, the rule of law crisis inextricably linked to the EU’s problematic legitimacy, eroding since the euro crisis and leading to an open contestation of EU policies. In problematic legitimacy, euro crisis to an open contestation of EU In addition to this, the Commission’s reluctance to handle the rule of law violations(57) leaves room for Member addition to this, the Commission’s reluctance to handle the rule of law violations(57) leaves room for Member states such as Romania – other than Hungary and Poland – to defy the independence of justice through a states such as Romania – other than Hungary and Poland – to defy the independence of justice through a judicial dialogue. judicial dialogue.

Whose Religious Freedom? Assessing the Strasbourg and Luxembourg Jurisprudences Whose Religious Freedom? Assessing the Strasbourg and Luxembourg Jurisprudences

Felipe Augusto Carvalho (University of Coimbra, Portugal) Felipe Augusto Carvalho (University of Coimbra, Portugal)

I. Introduction I. Introduction

The European Court of Human Rights (ECtHR), sitting in Strasbourg, has jurisdiction over the forty-seven The European Court of Human Rights (ECtHR), sitting Strasbourg, has jurisdiction the forty-seven European countries of the Council of Europe It rules on individual or State applications alleging violations of European countries of the Council of Europe. It rules on individual or State applications alleging violations of the rights set out in the European Convention on Human Rights. The Court of Justice of the European Union rights set in European Convention on Human Rights. The Court of Justice of the European Union (CJEU) has jurisdiction over the twenty-seven Member States, and is based in Luxembourg. Its mandate is to has jurisdiction over the twenty-seven Member States, and is based in Luxembourg. Its mandate is to ensure compliance with EU law and rules on interpreting and applying the treaties establishing the European ensure compliance with EU law and rules on interpreting and applying the treaties establishing the European Union. The most important religious freedom guarantee enforced by the ECtHR is Article 9 of the European Union. The most important religious freedom guarantee enforced by the ECtHR is Article 9 of the European Convention on Human Rights (ECHR) In 2000, the European Union adopted the Charter of Fundamental Convention on Human Rights (ECHR). In 2000, the European Union adopted the Charter of Fundamental Rights of the European Union Article 10 of the Charter echoes Article 9 of the Convention while adding an Rights of the European Union. Article 10 of the Charter echoes Article 9 of the Convention while adding an express conscientious objection clause. express conscientious objection clause.

This paper analyzes how these two Courts have ruled on domestic laws and practices restricting religious This paper analyzes how these two Courts have ruled on domestic laws and practices restricting religious freedom and to which extent the differences in approach to the limitations of this right, along with the freedom and to which extent the differences in approach to the limitations of this right, along with the framework on the effectiveness of their decisions, can affect religious minorities and influence church-state framework on the effectiveness of their decisions, can affect religious minorities and influence church-state relations The research focuses on two areas within the scope of religious freedom, the first is religious relations. The research focuses on two areas within the scope of religious freedom, the first is religious proselytism, and the second is the usage of religious symbols in the workplace. proselytism, and the second usage of religious symbols in the workplace.

II. Religious Proselytism II Religious Proselytism

1 Definition of Proselytism 1. Definition of Proselytism

Since there is no stated definition of “proselytism” in international law, a working definition of proselytism is Since there no stated of “proselytism” in international law, a working definition of proselytism adopted for the purposes of this present paper: “expressive conduct undertaken with the purpose of trying to for the purposes of this present paper: “expressive conduct undertaken with the purpose of trying to change the religious beliefs, affiliation, or identity of another”.(58) It stresses that proselytism is intentional, change the religious beliefs, affiliation, or identity of another”.(58) It stresses that proselytism is intentional, undertaken with a particular goal in view, and does not necessarily entail a religion to the agent/source. undertaken with a particular goal in view, and does not necessarily entail a religion to the agent/source.

56 See Judgment of the Court (Full Court) of 16 February 2022, Case C-156/21, See Judgment of Court (Full Court) of 16 February 2022, Case C-156/21, Hungary v European Parliament and Hungary v European Parliament Council of the European Union Council of the European Union, ECLI:EU:C:2022:97 , ECLI:EU:C:2022:97

57 See the instructions of the Commission to Poland for the dissolution of the disciplinary system for judges and the

57 See the instructions of the Commission to for the dissolution of the disciplinary system for judges and the restoration of illegally suspended judges. The Polish government accepted to conform with these obligations restoration of illegally suspended judges The Polish government accepted to conform with these obligations within its Recovery plan to finally obtain money from the EU Recovery and Resilience Facility. A.Krzysztoszek, within its Recovery plan to finally obtain money from the EU Recovery and Resilience Facility. A.Krzysztoszek, “Poland to soon receive EU recovery funds after striking deal with Commission”, “Poland to soon receive EU recovery funds after striking deal with Commission”, EURACTIV EURACTIV pl, 17/05/2022 pl, 17/05/2022

58 Stahnke, T (1999) Proselytism and the Freedom to Change Religion in International Human Rights Law, Stahnke, T. (1999) Proselytism and the Freedom to Religion in International Human Rights Law, BYU Law Review, 251, 255 BYU Law Review, 251, 255.

The arsenal of a new regime in Europe: after Hungary and Poland, Romania enters the The arsenal of a new regime in Europe: after Hungary and Poland, Romania enters the illiberal game: The Advocate General’s Opinion on Romania and the independence of the judiciary illiberal game: The Advocate General’s Opinion on Romania and the independence of the judiciary

Roïla Mavrouli (CNRS, The French National Centre for Scientific Research) Roïla Mavrouli (CNRS, The French National Centre for Scientific Research)

Whose Religious Freedom? Assessing the Strasbourg and Luxembourg Jurisprudences

Whose Religious Freedom? Assessing the Strasbourg and Luxembourg Jurisprudences

Felipe Augusto Carvalho (University of Coimbra, Portugal)

Felipe Augusto Carvalho (University of Coimbra, Portugal)

Although unusual, proselytism includes attempts to persuade individuals to abandon their Although unusual, proselytism includes attempts to persuade individuals abandon their current religious current religious beliefs or affiliation without necessarily replacing them with those of the agent Heiner Bielefeldt adds a “non- beliefs or affiliation without necessarily replacing them with those of the agent. Bielefeldt adds a “noncoerciveness” element to the definition, in the sense of “try to convert others by means of non-coercive coerciveness” element to the definition, in the sense of “try to convert others by means of non-coercive persuasion” (59) persuasion”.(59)

It is worth mentioning that in proselytizing religions, sharing the faith is a religious duty rather than a matter is worth mentioning that in proselytizing religions, sharing the faith is a religious duty rather than of choice(60). Therefore, given the centrality of proselytism in many religious traditions, conflicts are likely to of choice(60). Therefore, given the centrality of proselytism in many religious traditions, conflicts are likely to arise when that component of the religious practice is excluded or undermined. arise when that component of the religious practice is excluded or undermined.

2. Proselytism in International Law 2. Proselytism in Law

The right to proselytize is encompassed within the scope of Freedom of Religion or Belief (FoRB as a The right to proselytize is encompassed within the scope of Freedom of Religion or Belief (FoRB as a shorthand) in international law and is inevitably intertwined with other human rights, like freedom of shorthand) in international law and is inevitably intertwined with other human rights, like freedom of association, freedom of conscience, and the principles of tolerance and pluralism (61) The International freedom of conscience, and the principles of tolerance and pluralism.(61) The International Covenant on Civil and Political Rights and the ECHR refer to “teaching” as a form of “manifestation” of Covenant on Civil and Political Rights and the ECHR refer to “teaching” a form of “manifestation” of religion (62) If that were not the case, the “freedom to change [one’s] religion or belief”, which is part of religion.(62) If that were the case, the “freedom change [one’s] religion or belief”, which part of Article 18 of the Universal Declaration of Human Rights, would be likely to remain a dead letter It is also a Article 18 of the Universal Declaration of Human Rights, would be likely to remain a dead letter. also a precious asset for atheists or agnostics and for the unconcerned (63) precious asset for atheists or agnostics and for the unconcerned.(63)

The right to try to convert others through non-coercive persuasion is one component of the right to conversion The right to try to convert others through non-coercive persuasion is one component of the right to conversion but falls into the but falls into the forum externum forum externum, the right to manifest one’s religion or belief Unlike the , the right to manifest one’s religion or belief. Unlike the forum internum forum internum, the , the communicative dimensions of religious freedom do not enjoy absolute protection(64), and the state can communicative dimensions of religious freedom do not enjoy absolute protection(64), and the state can impose limitations. However, any restrictions must meet all the criteria set out in Article 18 (3) of the impose limitations. However, any restrictions must meet all the criteria set out in Article 18 (3) of the International Covenant on Civil and Political Rights and Article 9 (2) of the European Convention on Human International Covenant on Civil and Political Rights and Article 9 (2) of the European Convention on Human Rights. Rights.

Domestic law might seek to protect individuals considered in some sense vulnerable against inappropriate Domestic law might seek to protect individuals considered in some sense vulnerable against inappropriate pressure to change a religious belief. As a result, the international courts are often called on to decide whether pressure to change a religious belief As a result, the international courts are often called on to decide whether an alleged interference was or was not justified in particular circumstances. This is determined according to a an alleged interference was or was not justified in particular circumstances This is determined according to a three-part test by which the Court assesses whether the action was (1) prescribed by law, (2) had a legitimate three-part test by which the Court assesses whether the action was (1) prescribed by law, had a legitimate aim, and (3) was necessary in a democratic society.(65) aim, and (3) was necessary in a democratic society (65)

59 Bielefeldt, H. (2017). 59 Bielefeldt, H. (2017) Freedom of Religion or Belief: Thematic Reports of the UN Special Rapporteur 2010 – 2016 Freedom of Religion or Belief: Thematic Reports of the UN Special Rapporteur 2010 – 2016, 109. , 109 60 Riveiro, J. & Moutouh, H (2006) 60 Riveiro, J. & Moutouh, (2006) Liberdades Públicas, Liberdades Públicas, 523-524 523-524

61 Machado, J. (2021) Liberdade Religiosa numa Comunidade Constitucional Inclusiva, 2 ed. Gestlegal

61 Machado, J. (2021) Liberdade Religiosa numa Comunidade Constitucional Inclusiva, 2 ed. Gestlegal

62 The American Convention explicitly states in Article 12(1) that the right to freedom of religion includes the freedom 62 The Convention explicitly states in Article 12(1) that the right to freedom of includes to “disseminate one’s religion or beliefs” to one’s religion or beliefs”

63 Human Rights Committee, general comment No. 22 (1993) on the right to freedom of thought, conscience and 63 Human Rights Committee, general comment No. 22 (1993) on the right to freedom of thought, conscience and religion, para. 2. religion, para. 2

64 Bielefeldt, H. (2017). 64 Bielefeldt, H. (2017) Freedom of Religion or Belief Freedom of Religion or Belief... op. cit.,114 ... op. cit.,114

65 Murdoch, J. (2012). Protecting the right to freedom of thought, conscience and religion under the European 65 Murdoch, J. (2012). Protecting the right to freedom of thought, conscience and religion under the European Convention on Human Rights, 35 Convention on Human Rights, 35.

Whose Religious Freedom? Assessing the Strasbourg and Luxembourg Jurisprudences Whose Religious Freedom? Assessing the Strasbourg and Luxembourg Jurisprudences

Felipe Augusto Carvalho (University of Coimbra, Portugal) Felipe Augusto Carvalho (University of Coimbra, Portugal)

3. Proselytism in the ECtHR and CJEU 3 Proselytism in the ECtHR and CJEU

A Leading case on religious proselytism was A case on religious proselytism was Kokkinakis v. Greece Kokkinakis v. Greece, which dealt with the criminalization of , which dealt with the criminalization of proselytism in Greece. Mr. Kokkinakis, a Jehova’s Witness, was convicted and arrested over an act of proselytism in Greece. Mr. Kokkinakis, a Jehova’s Witness, was convicted arrested over an act of “proselytism”, something criminalized under Greek constitutional and criminal law. He and his wife engaged “proselytism”, something under Greek and He and his wife engaged in a religious discussion with Mrs Kyriakaki’s at her home, and her husband, a cantor at an Orthodox Church, a religious discussion with Mrs. Kyriakaki’s at her home, and her husband, a cantor at an Orthodox Church, informed the police As a result, the Kokkinakis were arrested informed the police. As a result, the Kokkinakis were arrested. They were found guilty of attempting “[ ] to proselytize ( ) by taking advantage of their inexperience, their They found guilty of “[...] to proselytize (...) by taking advantage of their inexperience, their low intellect, and their naivety In particular, they went to the home of Mrs Kyriakaki (...) and told her they low intellect, and their naivety. In particular, they went to the home of Mrs. Kyriakaki (...) and told her they brought good news; by insisting in a pressing manner, they gained admittance to the house and began to read a brought good news; by insisting in a pressing manner, they gained admittance to the house and began to read a book from the Scriptures ( ), encouraging her by means of their judicious, skillful explanations ( ..) to change book from the Scriptures (...), encouraging her by means of their judicious, skillful explanations (...) to change her Orthodox Christian beliefs” (1993, para 9) her Orthodox Christian beliefs” (1993, para. 9).

The ECtHR reasoned that Greece’s ban on proselytism had a foundation in the law and may have served the The ECtHR reasoned that Greece’s ban on proselytism had foundation the law and may have served the legitimate aim of protecting the rights and freedoms of others. Nevertheless, under the circumstances of the legitimate aim of protecting the rights and freedoms of others. Nevertheless, under the circumstances of the case, the ban could not be deemed necessary in a democratic society. Therefore, the majority’s decision was case, the ban could not be deemed necessary in a democratic society. Therefore, the majority’s decision was based on factual particularities and legitimated the law itself as providing the certainty and foreseeability based on factual particularities and legitimated the law itself as providing the certainty and foreseeability required to guide potential infringers. required to guide potential infringers.

Although in Mr. Kokkinakis favor, the decision was not celebrated as a major victory for freedom of religion Although in Mr Kokkinakis favor, the decision was not celebrated as a major victory for freedom of religion or belief, most scholars received it as a failure of the Court to take FoRB seriously. Five years later, the or belief, most scholars received it as a failure of the Court to take FoRB seriously Five years later, the ECtHR found no violation of Article 9 rights when military officers were convicted for proselytizing their ECtHR found no violation of Article 9 rights when military officers were convicted for proselytizing their subordinates. In this case ( subordinates. In this case (Larissis and others v. Greece Larissis and others v. Greece), the officers were Pentecostal Christians; their ), the officers were Pentecostal Christians; their subordinates were Greek Orthodox. The Court argued that “the hierarchical structures which are a feature of subordinates were Greek Orthodox The Court argued that “the hierarchical structures which are a feature of life in the armed forces may influence every aspect of the relations between military personnel, making it life in the armed forces may influence every aspect of the relations between military personnel, making it difficult for a subordinate to rebuff a superior-ranked individual’s approaches or withdraw from a difficult for a subordinate to rebuff a superior-ranked individual’s approaches or withdraw from a conversation initiated by him. Thus, what would in the civilian world be seen as an innocuous exchange of conversation initiated by him Thus, what would in the civilian world be seen as an innocuous exchange of ideas that the recipient is free to accept or reject, may, within the confines of military life, be viewed as a form ideas that the recipient is free to accept or reject, may, within the confines of life, be viewed as a form of harassment or the application of undue pressure in abuse of power” (1998, para. 51). of harassment or the application of undue pressure in abuse of power” para. 51)

Turning into Luxembourg’s decisions, in 2018, a group of Jehovah’s Witnesses challenged a Finnish privacy Turning into Luxembourg’s decisions, in 2018, a group of Jehovah’s Witnesses challenged a Finnish privacy law that prohibited them from keeping unregistered personal data gathered during their door-to-door visits. law that prohibited them from keeping unregistered personal data gathered during their door-to-door visits. The Finnish national court eventually asked the CJEU to determine whether the data collected in door-to-door The Finnish national court eventually asked the CJEU to determine whether the data collected in door-to-door evangelism fell under the umbrella of the privacy directive and whether the Jehovah’s Witness could be evangelism fell under the umbrella of the privacy directive and whether the Jehovah’s Witness could be considered a data controller and, therefore, subject to the EU Directive. considered a data controller and, therefore, subject to the EU Directive. The Court stated ( The Court stated (Tietosuojavaltuutettu Tietosuojavaltuutettu case) that European Union Data Protection Directive must be case) that European Union Data Protection Directive must be interpreted as meaning that the collection of personal data by members of a religious community in the course interpreted as meaning that the collection of personal data by members of a religious community in the course of door-to-door preaching and the subsequent processing of those data does not fall under the exemptions to of door-to-door preaching and the subsequent processing of those data does not fall under the exemptions to the scope provided by the first or second item of that article. the scope provided by the first or second item of that article.

In sum, the Court decided that keeping notes about the families and private parties they visited during the In sum, the Court decided that keeping notes about the families and private parties they visited during the proselytism endeavors did not amount to “personal data,” such as diaries; therefore, the data protection rules proselytism endeavors did not amount “personal data,” such as diaries; therefore, the data protection rules applied to the Jehovah’s Witnesses’ proselytizing activities applied to the Jehovah’s Witnesses’ proselytizing activities.

Whose Religious Freedom? Assessing the Strasbourg and Luxembourg Jurisprudences Whose Religious Freedom? Assessing the Strasbourg and Luxembourg Jurisprudences Felipe Augusto Carvalho (University of Coimbra, Portugal) Felipe Augusto Carvalho (University of Coimbra, Portugal)

Following the decision, the religious community was not exempt from compliance with the EU directive Following the decision, the religious community was not exempt from compliance with the EU directive because the data were collected as part of their missionary work because the data collected as part of their missionary work.

4. Religious Symbols 4 Religious Symbols

The extent to which employees can express themselves religiously at work or be excused from certain The extent to which employees express themselves religiously work or be excused from certain employment duties for religious reasons remains controversial (66) In the domain of religious symbols in the employment duties for religious reasons remains controversial.(66) In the domain of religious symbols in the workplace, claims of religious discrimination tend to focus on clothing, jewelry, and other accessories that an workplace, claims of religious discrimination tend to focus on clothing, jewelry, and other that an employer forbids his or her employee to wear The CJEU dealt with some cases on the use of the Islamic employer forbids his or her employee to wear. The CJEU dealt with some cases on the of the Islamic headscarf in the workplace ( headscarf in the workplace (Achbita and Bougnaoui Achbita and Bougnaoui, 2017) In both, Muslim female employees were ordered , 2017). both, Muslim female employees ordered to remove the apparel while at work More recently, in 2021, the Court sparked controversy with the judgment the apparel while at work. More recently, in 2021, the Court sparked controversy with the judgment iin n IX v Wabe eV IX v Wabe eV and and MH Müller Handels GmbH v MJ MH Müller Handels GmbH v IX and MJ were employed as special needs caregivers . IX and MJ employed as special needs caregivers and sales assistants, respectively The employers held the view that wearing a headscarf for religious purposes and sales assistants, respectively. The employers held the view that wearing a headscarf for religious purposes did not correspond to the policy of political, philosophical, and religious neutrality pursued with regard to did not correspond to the policy of political, philosophical, and religious neutrality pursued with regard to parents, children, and third parties The Court ruled that employers can ban workers from observing religious parents, children, and third parties. The Court ruled that employers can ban workers from observing religious symbols, including headscarves, to maintain a neutral image in front of their customers However, the symbols, including headscarves, to maintain a neutral image in front of their customers. However, the employers must make sure that the prohibition applies in a general and undifferentiated way; otherwise, it will employers must make sure that the prohibition applies in a general and undifferentiated way; otherwise, it will constitute direct discrimination under the EU Equal Treatment Framework Directive. constitute direct discrimination under the EU Equal Treatment Framework Directive. Likewise, prohibitions on the wearing of religious symbols have given rise to complaints addressed to the Likewise, prohibitions on the wearing of religious symbols have given rise to complaints addressed to the Strasbourg Court under Article 9 In 2013, the ECtHR delivered its judgment in the case of Strasbourg Court under Article 9. In 2013, the ECtHR delivered its judgment in the case of Eweida and Others Eweida and Others v the United Kingdom v. the United Kingdom This case involved four applicants who claimed that they had suffered unlawful . This case involved four applicants who claimed that they had suffered unlawful discrimination on the grounds of religion In particular, Ms Eweida was a Christian working in a customer discrimination on the grounds of religion. In particular, Ms. Eweida was a Christian working in a service role who wore a small visible cross around her neck She was told by the employer (British Airways) service role who wore a small visible cross around her neck. She was told by the employer (British Airways) that the cross was a breach of the company’s uniform policy, and she was offered a non-customer facing role that the cross was a breach of the company’s uniform policy, and she was offered a non-customer facing role iinstead. nstead.

The Court held that there was no evidence that the wearing of other, previously authorized items of religious The Court held that was no wearing of other, previously authorized items of religious clothing, such as turbans and hijabs, by other employees had any negative impact on the company’s brand or such as turbans and hijabs, by other employees had any negative on the company’s brand or image. Without evidence of any real encroachment on the interests of others, the domestic authorities failed to image. Without evidence of any real encroachment on the interests of others, the domestic authorities failed to protect the applicant’s right to manifest her religion, in breach of the obligation under Article 9 of the protect the applicant’s right to manifest her religion, in breach of the obligation under Article 9 of the Convention Convention.

On the other hand, when assessing the decision not to renew the contract of employment of a hospital social On the other hand, when assessing the decision to renew the contract of employment of a hospital social worker because of her refusal to stop wearing the Muslim veil ( worker because of her refusal stop wearing the Muslim veil (Ebrahimian v. France Ebrahimian v. France), the Court decided to ), the Court decided to give precedence to the requirement of neutrality and impartiality of the state, and found that there was no give precedence the requirement of neutrality and impartiality of the state, and found that there was no possibility of reconciling the applicant’s religious convictions with the obligation to refrain from manifesting possibility of reconciling the applicant’s religious convictions with the obligation refrain from manifesting them. In them. In Türk v. Germany Türk v. Germany, the ECtHR will soon decide on the refusal of a private hospital - run by a protestant , the ECtHR will soon decide on the refusal of a private hospital - run by a protestant foundation - to continue employing a nurse after she had returned from a period of leave and declared that she foundation - to continue employing a nurse after she had returned from a period of leave and declared that she would wear a headscarf at work for religious reasons The case was communicated to the Government in would wear a headscarf at work for religious reasons. The case was communicated to the Government in September 2018 September 2018.

66 Carvalho, F. (2020). Religious Freedom, Sabbath and Public Administration: Towards Harmonizing Solutions

66 Carvalho, F. (2020). Religious Freedom, Sabbath and Public Administration: Towards Harmonizing Solutions. Cambridge Human Rights Law Journal Human Rights Law Journal, 1, 69-90; Santos Júnior, A. (2013) , 1, 69-90; Júnior, (2013). Liberdade Religiosa e Contrato de Trabalho Liberdade Religiosa e de Trabalho. Impetus . Impetus.

Whose Religious Freedom? Assessing the Strasbourg and Luxembourg Jurisprudences Whose Religious Freedom? Assessing the Strasbourg and Luxembourg Jurisprudences Felipe

Augusto Carvalho (University of Coimbra, Portugal) Felipe Augusto Carvalho (University of Coimbra, Portugal)

5 Assessing the Courts’ jurisprudence 5. Assessing the Courts’ jurisprudence

The Strasbourg Court has issued much more substantial case law on FoRB than the Luxembourg one, which is The Strasbourg Court has issued much more substantial case law on FoRB than the one, which is naturally expected for a human rights-focused Court. However, since the first case in 1993 ( naturally expected for a human rights-focused Court However, since the first case in 1993 (Kokkinakis Kokkinakis), the ), the ECtHR has missed the chance to provide a coherent response about the extent to which restrictions on ECtHR has missed the chance to provide a coherent response about the extent to which restrictions on proselytism are in accordance with the Convention. Moreover, the Court has drawn a distinction between proselytism are in accordance with the Convention. Moreover, the Court has drawn a distinction between “proper” and “improper” proselytism but has not defined what acts of proselytism constitute an illegitimate “proper” and “improper” proselytism but has not defined what acts of proselytism constitute an illegitimate exercise of FoRB. of FoRB.

Since 2017, however, the Luxembourg Court has issued landmark decisions on FoRB, and has exchanged the Since 2017, however, the Luxembourg Court has issued landmark decisions on FoRB, and has exchanged the “margin of appreciation” for decisions that touch on longstanding church-state relations in the European “margin of appreciation” for decisions that touch on longstanding church-state relations in the European Union The lack of a legal framework for proselytism is likely to be filled by the Luxembourg Court in the Union. The lack of legal framework for proselytism likely to be filled by the Luxembourg Court in the coming cases For instance, whether the very principle of applying a criminal statute to proselytism is coming cases. For instance, whether the very principle of applying criminal statute to proselytism compatible with Article 9 of the Convention or Article 10 of the Charter is a question still unanswered in the with Article 9 of the Convention or Article 10 of the is a question still unanswered in the realm of international human rights law. realm of international human rights law

Having compared the case law in the field of religious symbols in the workplace, we argue that the Having compared the case law in the field of religious symbols in the workplace, we argue that the Luxembourg Court has been less accommodating to religious freedom claims by religious minorities than the Luxembourg Court has been less accommodating religious freedom claims by religious minorities than the Strasbourg Court However, the non-consensual approaches by both raise the question of whether the Strasbourg Court. However, the non-consensual approaches by both the question of whether the “neutrality” impact of a headscarf, cross pendant, or other religious- themed clothing outweighs the right of an “neutrality” impact of a cross pendant, or religious- themed clothing outweighs the right of an employee to manifest his/her religion, especially in workplaces that (aim to) reflect increasing ethnic and to manifest his/her religion, especially in that (aim to) reflect increasing ethnic and religious diversity. religious diversity

Unlike the European Court of Human Rights, the Court of Justice has a distinctive feature; its decisions Unlike the European Court of Human Rights, the Court of Justice has a distinctive feature; its decisions immediately bind all EU Member States and preempt conflicting local laws.(67) The Court of Justice has immediately bind all EU Member States and preempt conflicting local laws.(67) The Court of Justice has often started with relevant ECtHR case law, picking up where the ECtHR left off and then casting its rulings started with relevant ECtHR case law, picking up the ECtHR left off and then casting its rulings in the “hard law” terms with which it operates. If this pattern continues, the CJEU will play an increasingly in the “hard law” terms with which it operates If this pattern continues, the CJEU will play an vital role in redefining religious freedom protections and shaping religion-state relations in Europe. vital role in redefining religious freedom protections and shaping religion-state relations in Europe

67 Pin, A & Witte Jr, J (2020) Meet the new boss of religious freedom: new cases of the Court of Justice the European Union. European Union Texas International Law Journal Texas International Law Journal, 55 (2), 223. , 55 (2), 223

67 Pin, A & Witte Jr, J (2020) Meet the new boss of religious freedom: The new cases of the Court of Justice of the

IV: Open Procurement, Corruption and State Capture: IV: Open Procurement, Corruption and State Capture: Administrative Reforms and their Efficacy in Europe Administrative Reforms and their Efficacy in Europe

Chair: Chair: Amy Basu Amy Basu (Yale University) (Yale University)

Faculty Discussant: Faculty Discussant: Susan Rose-Ackerman Susan Rose-Ackerman, Henry R. Luce Professor Emeritus of Law and , Henry R Luce Professor Emeritus of Law and Political Science (Yale University) Political Science (Yale University)

Alessandro Archetti Alessandro Archetti (Bocconi University, Italy); (Bocconi University, Italy); Elisa Armaroli Elisa Armaroli (Bocconi University, Italy); (Bocconi University, Italy); and and Ludovico Campagnolo Ludovico Campagnolo (London School of Economics, UK) (London School of Economics, UK)

Kirill Ryabtsev Kirill Ryabtsev (Vrije Universiteit Amsterdam, the Netherlands) and (Vrije Universiteit Amsterdam, the and Andrijana Zivic Andrijana Zivic (Utrecht (Utrecht University, the Netherlands) University, the

Corruption in public procurements: Corruption in public procurements: rent-seeking over ESI funds rent-seeking over ESI funds

Alessandro Archetti (Bocconi University, Italy); Elisa Armaroli (Bocconi University, Italy); and Alessandro Archetti (Bocconi University, Italy); Elisa Armaroli (Bocconi University, Italy); and Ludovico Campagnolo (London School of Economics, UK) Ludovico Campagnolo (London School of UK)

Introduction Introduction

The European Commission (EC) allocates regularly almost EUR300 bn to the member States in the form of The European Commission allocates regularly almost EUR300 bn to the member States in the form of European Structural Development (ESI) funds, which focus on research and innovation, digital technologies, European Structural Development (ESI) funds, which focus on research and innovation, digital technologies, low-carbon economy, sustainability, and small businesses. ESI funds consist of five categories(1): European low-carbon economy, sustainability, and small businesses ESI funds consist of five categories(1): European regional development fund (ERDF), which also supports territorial cooperation; European social fund (ESF) regional development fund which also supports territorial cooperation; European social fund sustaining employment and investments in human capital; Cohesion fund (CF) related to transport and sustaining employment and investments in human capital; Cohesion fund (CF) related to transport and environment in countries with a lower-than-average Gross National Income (GNI) per person; European environment in countries with a lower-than-average Gross National Income per person; European agricultural fund for rural development (EAFRD); European maritime and fisheries fund (EMFF) supporting agricultural fund for rural development (EAFRD); European maritime and fisheries fund (EMFF) supporting inhabitants and economies of coastal areas (European Commission). inhabitants and economies of coastal areas (European Commission)

In the period 2014-2020, the funds were given by the EC to the member States through partnership the period 2014-2020, the funds given by the EC the member States through partnership agreements; each country, with the guidance and advice of the Commission, was required to prepare a plan agreements; each country, with the guidance and advice of the Commission, was required to prepare plan establishing how the amount received would have been spent during the funding period. The aforementioned establishing how the amount received would have been spent during the funding period. The aforementioned agreements led to the creation of various country-specific investment programmes with the objective to agreements led to the creation of various country-specific investment programmes with the objective to channel the funds to the different regions(2). channel the funds to the different regions(2). The receiving States are required to report regularly on the progress made in the implementation and The receiving States are required to report regularly on the progress made in the implementation and achievement of the undertaken objectives, and to supervise the conformity of the activities through a control achievement of the undertaken objectives, and to supervise the conformity of the activities through a control system managed by the States’ authorities themselves. The European Union is committed to safeguard the system managed by the States’ authorities themselves The European Union is committed to safeguard the regularity of the expenditures, and the fight against corruption and the perpetuation of any illegal activities regularity of the expenditures, and the fight against corruption and the perpetuation of any illegal activities executed through the usage of the funds (European Commission, 2015). Nonetheless, we question whether this executed through the usage of the funds (European Commission, 2015) Nonetheless, we question whether this is the correct strategy to tackle these irregularities, as evidence suggests that corruption still abides. is the correct strategy to tackle these irregularities, as evidence suggests that corruption still abides

Along these lines, we claim a positive correlation between the amount of funds given to EU countries and Along these lines, we claim a positive correlation between the amount of funds given to EU and their level of corruption The foundation of this relationship is likely to be identified in the moral hazard their level of corruption. The foundation of this relationship is likely to be identified in the moral hazard problem; politicians, as utility-maximisers agents, have more incentives to seize parts of the funds when the problem; politicians, as utility-maximisers agents, have more incentives to seize parts of the funds when the available amount is more conspicuous. available amount is more conspicuous.

1 https://ec europa eu/info/funding-tenders/funding-opportunities/funding-programmes/overview-funding-

1 https://ec europa eu/info/funding-tenders/funding-opportunities/funding-programmes/overview-fundingprogrammes/european-structural-and-investment-funds programmes/european-structural-and-investment-funds

2 https://ec.europa.eu/regional-policy/sources/docgener/guides/blue-book/blueguide-en.pdf

2 https://ec europa eu/regional-policy/sources/docgener/guides/blue-book/blueguide-en pdf

Corruption in public procurements: rent-seeking over ESI funds Corruption public procurements: rent-seeking over ESI funds

Alessandro Archetti (Bocconi University, Italy); Elisa Armaroli (Bocconi University, Italy); and Alessandro Archetti (Bocconi University, Italy); Elisa Armaroli (Bocconi University, Italy); and Ludovico Campagnolo (London School of Economics, UK) Ludovico Campagnolo (London School of Economics, UK)

Therefrom, it is of high importance to investigate the issue of corruption in public procurement Therefrom, it of high to investigate the corruption in procurement in the context in context of ESI funds. A further insight in the current situation will support authorities and policymakers in fighting of ESI funds A further insight in the current situation will support authorities and policymakers in fighting corruption and misallocation of money given with the unique scope of promoting development and corruption and misallocation of money given with the unique scope of promoting development and iinnovation. nnovation.

Models of Decentralisation Models of Decentralisation

Supporting decentralised mechanism, existing literature claims that the efforts to elude control by top-level Supporting decentralised mechanism, existing literature claims that the efforts to elude control by top-level administrators increases proportionally to their attempt to keep subordinates in check; Downs’ “law of administrators increases proportionally to their attempt to keep subordinates in check; Downs’ “law of counter-control” implies that increasingly larger organisations have a weaker central control (Downs, 1967). counter-control” implies that increasingly larger organisations have a weaker central control (Downs, 1967). Thus, bureaucracies end up defeating their initial purpose (McCue et al 2015), and this constitutes a clear-cut Thus, bureaucracies end up defeating their initial purpose (McCue et al. 2015), and this constitutes a clear-cut rationale for the delegation of public procurement allocation from the central authority to the local level rationale for the delegation of public allocation from the central authority to the local level. Decentralisation improves responsiveness to end-users, and reduces both obstacles to the provision of services Decentralisation improves to end-users, and both obstacles to the provision of services and bureaucratic hindrances (Osborne-Gaebler, 1992; Osborne-Plastrik, 1997). In short, efficiency and and bureaucratic hindrances (Osborne-Gaebler, 1992; Osborne-Plastrik, 1997) In short, efficiency and flexibility are greatly enhanced by decentralisation practices, in theory but most importantly in practice flexibility are greatly enhanced by decentralisation practices, in theory but most importantly in practice (Milosalvjević et al., 2016). (Milosalvjević et al., 2016).

Nevertheless, there are numerous drawbacks to the process of decentralisation of public procurements, mainly Nevertheless, there are numerous drawbacks to the process of decentralisation of public procurements, mainly coming from the trade-off between flexibility and efficiency, and the level of control the country, or the coming the trade-off between flexibility and and level control the country, or the Union, can exert (Schwartz, 2010). The issue is further exacerbated by the relative lack of expertise and Union, can exert (Schwartz, 2010) The issue is further exacerbated by the relative lack of expertise and technology of local authorities, which might entail the need to train the personnel or to augment existing technology of local authorities, which might entail the need to train the personnel or to augment existing infrastructure (Prud’homme, 1995). infrastructure (Prud’homme, 1995). When deciding upon the level of decentralisation, one must not only take into account this trade-off, but also When deciding the level of decentralisation, only take into account this trade-off, but also consider that the overall effect on corruption and rent-seeking behaviour is ambiguous. On the one hand, consider that the overall effect on corruption and rent-seeking behaviour is ambiguous. On the one hand, giving more power and tasks to local authorities heightens the general efficiency of spending; on the other, more power and to authorities heightens the general of spending; on the other, control and accountability are endangered (Schwartz, 2010). Since this dilemma has no definite answer, control and accountability are endangered (Schwartz, 2010) Since this dilemma has no definite answer, whether to decentralise public procurement or not is ultimately a political decision. whether to decentralise public procurement or not is ultimately a political decision.

For Picci (2007), the aforementioned drawbacks can be limited by investigating and producing statistics to Picci (2007), the aforementioned drawbacks be limited by investigating and producing statistics to grasp the extent of rent-seeking behaviour, which is one of the principal sources of corruption. Instead grasp the of rent-seeking behaviour, which is one of the principal sources of corruption. Instead following D’Amico (2021), sophisticated local politicians respond more to local voters, favorishing the funds (2021), sophisticated local respond more to local voters, favorishing the funds misuse for national-level purposes. misuse for national-level purposes

Persson and Tabellini (2000) predict that only when elections are approaching politicians refrain from Persson and Tabellini (2000) predict that only when elections are approaching politicians refrain from extracting resources and distort the general welfare, as they have an incentive to appear competent and be re- extracting and distort the general welfare, as they have an competent and be reelected This relationship is vital in policy debates, although often promoted with anecdotal evidence (Rossi, elected. This relationship is vital policy debates, although often promoted with anecdotal evidence (Rossi, 2006; Hessami, 2014), and despite the amount of misappropriated funds being relatively small when 2006; Hessami, 2014), and despite amount of misappropriated funds being relatively small when compared to the total tax revenues (Persson-Tabellini, 2000). compared to the total tax revenues (Persson-Tabellini, 2000)

Corruption in public procurements: Corruption public procurements: rent-seeking over ESI funds rent-seeking over ESI funds

Alessandro Archetti (Bocconi University, Italy); Elisa Armaroli (Bocconi University, Italy); and Alessandro Archetti (Bocconi University, Italy); Elisa Armaroli (Bocconi University, Italy); and Ludovico Campagnolo (London School of Economics, UK) Ludovico Campagnolo (London School of Economics, UK)

Empirical results provide additional insight on the matter; in particular a pivotal contribution Empirical results provide additional insight on the matter; in particular a pivotal contribution by Brollo et al by Brollo et al. (2013) demonstrates that an exogenous windfall of resources (e g , foreign aid, federal transfers, etc ) increases (2013) demonstrates that an exogenous windfall of (e.g., foreign aid, federal transfers, etc.) increases corruption, since politicians have less difficulties in appropriating such resources without disappointing voters corruption, since politicians have less difficulties in appropriating such without disappointing voters. In general, not only an exogenous increase in the funds available for spending may foster misappropriations general, not only an exogenous increase in the funds available for spending may foster misappropriations by local political agents, but also a “voracity effect” is documented; the more a country becomes corrupt, the by local political agents, but also a “voracity effect” is documented; the more a country becomes corrupt, the higher the foreign aid it receives (Alesina-Weder, 2002). higher the foreign aid it receives (Alesina-Weder, 2002).

At the European level, public procurements constitute around 14% of EU-GDP and 29% of total public At the European procurements constitute around 14% of EU-GDP and 29% of total public expenditures (EU-Commission, 2017); clearly, the EU encourages such decentralisation in as many fields of expenditures (EU-Commission, 2017); clearly, the EU encourages such decentralisation in as many fields of public procurements as possible among member States and promotes it among third countries (COM 2003-615 public procurements as possible among member States and promotes it among third countries (COM 2003-615 final) At the same time, it aims to closely monitor the allocation of procurements through a variety of final). At the same time, it aims to closely monitor the allocation of procurements through a variety of institutions, also cooperating with the OECD Anti-Corruption-Integrity unit also cooperating with the OECD Anti-Corruption-Integrity unit. Domestically, the EU fosters decentralisation especially when it allocates its Structural Funds; however, given Domestically, the EU fosters decentralisation especially when allocates its Structural Funds; however, given that these funds are essentially an exogenous windfall of government revenues towards the poorest regions of that these funds essentially an exogenous windfall of government revenues towards the poorest regions of the Union, they lend themselves particularly well to be captured by local politicians Nevertheless, there is a the they lend themselves particularly well to be captured by local politicians. Nevertheless, there remarkable lack of relevant literature in this specific field remarkable lack of relevant literature in this specific field. Some case and regional studies investigate whether the relationship outlined above exists under particular Some case and regional studies investigate whether the relationship outlined above exists under particular circumstances. For instance, De Angelis et al. (2018) show that in absence of EU payments to Southern Italy, circumstances. For instance, De Angelis et al. (2018) show that in absence of EU payments to Southern Italy, white collar crimes would have been 4% lower. Dimulescu and Doroftei (2015) exploit the temporary white collar crimes would have been 4% lower. Dimulescu and Doroftei (2015) exploit the temporary suspension of European programmes in Romania in 2012 to estimate that on average 13% of the total value of suspension of European programmes in Romania in 2012 to estimate that on average 13% of the total value of EU transfers is lost. EU transfers is lost

Data and Methodology Data and Methodology

The main goal of this paper is to provide evidence on the rent-seeking behaviour of politicians in the EU, to The main goal of this paper is to provide evidence on the rent-seeking behaviour of politicians in the EU, to understand whether an increase in the number of ESI funds given to a country relates to higher corruption understand whether an increase in the number of ESI funds given to a country relates to higher corruption levels. Moreover, it investigates whether higher corruption leads to a change in the quantity of funds given in levels Moreover, it investigates whether higher corruption leads to a change in the quantity of funds given in the following instalment. the following instalment

Firstly, we extracted the number of funds given to each member State in the period 2014-2020 and the total Firstly, we extracted the number of funds given to each member State in the period 2014-2020 and the total amount of finances, obtained by summing up the amount decided by the EU and National co-financing from amount of finances, obtained by summing up the amount decided by the EU and National co-financing from the European Commission Website(3) Secondly, we used the IDEA-Democracies-Indices Data (4) to obtain the European Commission Website(3). Secondly, we used the IDEA-Democracies-Indices Data (4) to obtain two main indexes of in-stitutional quality. The first is the Absence of Corruption Index (AOC), denoting the two main indexes of in-stitutional quality. The first is the Absence of Corruption Index (AOC), denoting the extent towhich the executive and public administration do not abuse their office for personal gain. This extent towhich the executive and public administration do not abuse their office for personal gain. This measure aggregates 5 indicators: public sector corrupt exchanges, public sector theft, executive embezzlement measure aggregates 5 indicators: public sector corrupt exchanges, public sector theft, executive embezzlement and theft, executive bribery, and corrupt exchanges and corruption. The second index is the Impartial- and theft, executive bribery, and corrupt exchanges and corruption. The second index is the ImpartialAdministration-Index (IAI), that concerns how fairly and predictably Administration-Index (IAI), that concerns how fairly and predictably 3 3 https://cohesiondata ec europa eu/2014-2020-Finances/ESIF-2014-2020-Finance-Implementation- https://cohesiondata ec europa eu/2014-2020-Finances/ESIF-2014-2020-Finance-ImplementationDetails/99js-gm52 Details/99js-gm52 4 4 http://gapm io/ddemocrix -idea http://gapm io/ddemocrix -idea

Corruption in public procurements: rent-seeking over ESI funds Corruption public procurements: rent-seeking over ESI funds

Alessandro Archetti (Bocconi University, Italy); Elisa Armaroli (Bocconi University, Italy); and Alessandro Archetti (Bocconi University, Italy); Elisa Armaroli (Bocconi University, Italy); and Ludovico Campagnolo (London School of Economics, UK) Ludovico Campagnolo (London School of Economics, UK)

political decisions are implemented; it includes two main indexes, the AOC and the Predictable are implemented; it includes two main indexes, AOC and the Predictable Enforcement Index, i.e., the extent to which the executive and public officials enforce law in a predictable way. Index, i e , the extent to which the executive and public officials enforce law in a predictable way. Lastly, we aggregated these 4 variables into a panel dataset with year and country. Lastly, we aggregated these 4 variables into a panel dataset with year and country.

Results Results

The average amount of AOC (??) and IAI (??) given to all member States is decreasing over-time. In the The average amount of AOC (??) and IAI (??) given to all member is decreasing In the period 2014-2020 the IAI index decreased on average more than 0.19% per year (??), showing the presence of period 2014-2020 the IAI index decreased on average more than 0.19% per year (??), showing the presence of political opportunism and supporting our hypothesis of rent-seeking behaviour. political opportunism and supporting our hypothesis of rent-seeking behaviour The continuously negative relation suggests also that the risk of moral hazard increases as institutional quality The continuously negative relation suggests also that the risk of moral hazard increases as institutional quality decreases Nonetheless, no causal relation can be inferred, meaning that the decrease in institutional fairness decreases. Nonetheless, no causal relation can be inferred, meaning that the decrease institutional fairness may not be solely related to the increasing EU investment through ESI funds may not be solely related the increasing EU investment through ESI funds.

To investigate the relationship between the number of ESI funds and the quality of institutions, we used a To investigate the relationship between the number of ESI funds and the quality of institutions, we used a different approach. Following the official text and commentaries of the 2014-2020 ESI funds (??), we split our different approach Following the official text and commentaries of the 2014-2020 ESI funds (??), we split our sample into 2 regions based on the development level: more developed areas, such as Spain, France, Italy, sample into 2 regions based on the development level: more developed areas, such as Spain, France, Italy, Germany, Luxembourg, Belgium, Netherlands, United-Kingdom, Austria, Denmark, and Sweden and less Germany, Luxembourg, Belgium, Netherlands, United-Kingdom, Austria, Denmark, and Sweden and less developed areas comprising the rest of EU countries The threshold to be considered developed a GDP per developed areas the rest of EU countries. The threshold to be considered developed a GDP per capita higher than the 90% of the EU-27 countries average. This division allows comparison of countries with capita than the 90% of the EU-27 countries average. This allows comparison of with similar economic characteristics and similar amount of ESI funds received, without disturbing outliers. similar economic characteristics and similar amount of ESI funds received, without disturbing outliers

We use the Pearson’s R correlation coefficient to test the significance of the relation between Absence of We use the Pearson’s R correlation coefficient to test the significance of the relation between Absence of Corruption and the Number of ESI funds for each year and country. Then we use the scatter plot to show the Corruption and the Number of ESI funds for each year and country. Then we the plot to show the distribution of data, and a linear fit to underline the trend. distribution of data, and a linear fit to underline the trend.

For more developed countries (??) the value of the Pearson’s R correlations is strongly negative and For more developed countries (??) the value of the Pearson’s R correlations is strongly negative and significant; meaning that the more the quantity of funds, the lower the level of AOC, thus a higher level of significant; meaning that the more the quantity of funds, the lower the level of AOC, thus a higher level of corruption. The same results hold when we use the PW index to investigate the relationship between IAI and corruption. The same results hold when we use the PW index to investigate the relationship between IAI and the number of ESI funds; in this case the higher the number of ESI funds the lower the impartiality of the number of ESI funds; in this the higher the number of ESI funds the lower the impartiality of iinstitutions nstitutions.

In less developed countries (??) the PW index shows a negative relationship between AOC, IAI, and the In less developed countries (??) the PW index shows a negative relationship between AOC, IAI, and the number of the ESI funds. Therefore, also in poorer countries the higher the number of ESI funds, the higher number of the ESI funds Therefore, also in poorer countries the higher the number of ESI funds, the higher the level of corruption and the lower the impartiality of politicians. However, in this case both the level of the level of corruption and the lower the impartiality of politicians. However, in this case both the level of significance and the magnitude are much lower, pointing to potential exogenous factors driving the data significance and the magnitude are much lower, pointing to potential exogenous factors driving the data.

Given the statistical concern and the limitations of the model, we cannot consider these results as proper concern and the of the model, we cannot consider these as proper empirical evidence to evaluate a causal relationship; nonetheless, the results highlight a clear trend in the data, empirical evidence to evaluate a causal relationship; nonetheless, the results highlight a clear trend in the data,

confirming our hypothesis on the politicians’ behaviour. confirming our hypothesis on the politicians’ behaviour

Corruption in public procurements: Corruption public procurements: rent-seeking over ESI funds rent-seeking over ESI funds

Alessandro Archetti (Bocconi University, Italy); Elisa Armaroli (Bocconi University, Italy); and Alessandro Archetti (Bocconi University, Italy); Elisa Armaroli (Bocconi University, Italy); and Ludovico Campagnolo (London School of Economics, UK) Ludovico Campagnolo (London School of Economics, UK)

Finally, we collapse the data to obtain the average number of ESI funds and the average Finally, we collapse the data obtain the average number of ESI funds and the average AOC per year, to AOC per year, to investigate whether an increment in corruption is correlated to a change in the amount of ESI Funds given in whether an increment in corruption correlated to a change in the of ESI Funds given in the following instalment. following instalment. In the figure (??) we can observe that the average number of funds planned has been increasing between 2014 In the figure (??) we can observe that the average number of funds planned has been increasing between 2014 and 2015 but remained constant later on, while the mean of both AOC and IAI indexes has decreased strongly and 2015 but remained constant later on, while the mean of both AOC and IAI indexes has decreased strongly in the first period, suggesting higher corruption level and lower institutional quality. However, in 2018, both in the first period, suggesting higher corruption level and lower institutional quality. However, in 2018, both AOC and IAI aggregate levels rise, implying that limited financing by the EU and no new funds implemented AOC and IAI aggregate levels rise, implying that limited financing by the EU and no new funds implemented are accompanied by an increase in the quality of institutions and a decrease in rent-seeking behaviour Finally, accompanied by an in the quality of and a decrease in rent-seeking behaviour. Finally, when the average ESI funds slightly increase, the institutional quality decreases again. To better analyse the when the average ESI funds slightly increase, the institutional quality decreases again. To better analyse the “voracity effect” we should have a longer time horizon, comparing the data displayed with the one for the “voracity effect” we should have a longer time horizon, comparing the data with the one for the period 2021-2027. period 2021-2027

Conclusions Conclusions

This paper emphasises the presence of a negative correlation between institutional quality and the allocation of This paper emphasises the presence of a negative between institutional quality allocation of ESI funds throughout the EU, aiming to kickstart a wider discussion on the lacklustre mechanisms to prevent ESI funds throughout the EU, aiming to kickstart a wider discussion on the lacklustre mechanisms to prevent misappropriation of structural funds. misappropriation of structural funds

Such topic is particularly relevant, firstly because Next Gen EU is by far the largest transfer programme the Such topic is particularly relevant, firstly because Next Gen EU is by far the largest transfer programme the Union has ever designed, and also because the EU has hastened the public procurement procedures to face the has ever designed, and also because the EU has hastened the public procurement procedures to face the recession caused by the pandemic (2020/C 108 I/01), possibly heightening the risk of corruption. The caused by the pandemic (2020/C 108 I/01), possibly heightening the risk of corruption. The evidence provided shows the potential shortcomings of EU guidelines against moral hazard entailed by public evidence provided the potential shortcomings of EU guidelines against moral hazard entailed by public procurement, eventually running contrary to EU objectives; thus, the results of this paper could be helpful for procurement, eventually running contrary to EU thus, the results of this paper could be helpful for the EC when planning the implementation of new funds. the EC when planning the implementation of new funds

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Corruption

in public procurements: Corruption public procurements: rent-seeking over ESI funds rent-seeking over ESI funds

Alessandro Archetti (Bocconi University, Italy); Elisa Armaroli (Bocconi University, Italy); and Alessandro Archetti (Bocconi University, Italy); Elisa Armaroli (Bocconi University, Italy); and Ludovico Campagnolo (London School of Economics, UK) Ludovico Campagnolo (London School of Economics, UK)

Corruption

in public

procurements:

Corruption public procurements: rent-seeking over ESI funds rent-seeking over ESI funds

Alessandro Archetti (Bocconi University, Italy); Elisa Armaroli (Bocconi University, Italy); and Alessandro Archetti (Bocconi University, Italy); Elisa Armaroli (Bocconi University, Italy); and Ludovico Campagnolo (London School of Economics, UK) Ludovico Campagnolo (London School of Economics, UK)

Corruption

in public procurements: Corruption public procurements: rent-seeking over ESI funds rent-seeking over ESI funds

Alessandro Archetti (Bocconi University, Italy); Elisa Armaroli (Bocconi University, Italy); and Alessandro Archetti (Bocconi University, Italy); Elisa Armaroli (Bocconi University, Italy); and Ludovico Campagnolo (London School of Economics, UK) Ludovico Campagnolo (London School of Economics, UK)

BLOCKCHAIN IN E-TENDERING SYSTEMS: A NEW ANTI-CORRUPTION BLOCKCHAIN IN E-TENDERING SYSTEMS: A NEW ANTI-CORRUPTION TECHNIQUE OR A FALSE HOPE TECHNIQUE OR A FALSE HOPE

Kirill Ryabtsev (Vrije Universiteit Amsterdam) and Andrijana Zivic (Utrecht University, the Netherlands) Kirill Ryabtsev (Vrije Universiteit Amsterdam) and Andrijana Zivic (Utrecht University, the Netherlands)

I. INTRODUCTION I. INTRODUCTION

Public procurement is an extremely profitable field for the parties involved, making it highly exposed to Public procurement is an extremely profitable field for the parties involved, making it highly exposed to corruption. It forms approximately 20% of the global and 14% of the European Union (hereinafter, ‘EU’) corruption It forms approximately 20% of the global and 14% of the European Union (hereinafter, ‘EU’) GDPs.(1) Additionally, tendering has a predominant impact on the general economic well-being of the GDPs (1) Additionally, tendering has a predominant impact on the general economic well-being of the European citizens because it is largely present in such sectors as transport, education, and healthcare.(2) As a European citizens because it is largely present in such sectors as transport, education, and healthcare (2) As a response to that issue, the EU has established several initiatives, such as the Tenders Electronic Daily response to that issue, the EU has established several initiatives, such as the Tenders Electronic Daily eTendering platform, that seek to digitalize the process of public procurement.(3) To improve the tendering eTendering platform, that seek to the process of public To improve the process’s transparency, all EU Member States must incorporate e-tendering systems that allow all parties transparency, all EU Member must incorporate e-tendering systems that allow all parties involved to submit tenders online and make the bidding and listing publicly available. However, it can be involved to submit tenders online and make the and listing publicly available. However, it can be argued that these transparency measures were insufficient to effectively tackle the corruption in public argued that transparency measures were insufficient to tackle the corruption in public procurement due to the data quality barriers present in the system.(4) In that respect, the data silos around due to the data quality barriers present in the system.(4) In that respect, the data around internal procurement procedures remain one of the key struggles in identifying fraud in tendering and holding procurement remain one of key struggles in identifying fraud in tendering and holding the government accountable (5) Additionally, due to the heterogeneity and unstructured nature of the available the accountable.(5) Additionally, due the heterogeneity and unstructured nature of the available data, citizens are unable to understand the exact rationale behind public officials’ decision-making in data, citizens are unable to understand the exact rationale behind public officials’ decision-making tendering (6) Consequently, there is a risk that the present system not only continues to allow the corruption’s tendering.(6) Consequently, there a risk that the present system not only to allow the corruption’s prosperity but also distorts public trust in the public procurement as a whole prosperity but also distorts public trust in the public procurement as a whole.

This article argues that building tendering platforms on blockchain technology is an effective way to tackle the This article argues that building tendering platforms on blockchain technology is an effective way to tackle the above-mentioned challenges and decrease corruption in public procurement by strengthening transparency and above-mentioned challenges and decrease corruption in public procurement by strengthening transparency and thereby improving the public officials’ accountability.(7) Indeed, due to its technological architecture, improving the officials’ accountability (7) Indeed, due to its technological architecture, blockchain is a very transparent, trustworthy, and easily auditable system that can record and store all the data blockchain is a very transparent, trustworthy, and easily auditable system that can record and store all the data during the tendering process.(8) Furthermore, blockchain can promote equality among tender participants by during the process.(8) Furthermore, blockchain can promote equality among tender participants by ensuring that all of them have access to the same type and amount of information.(9) ensuring that all of them have access to the same type and amount of information.(9)

1 European Commission, Internal Market, Industry, Entrepreneurship and SMEs: Public Procurement (

1 European Commission, Internal Market, Industry, Entrepreneurship and SMEs: Public Procurement European European Commission Commission, 2022) https://ec.europa.eu/growth/single-market/public-procurement_en accessed 25 April 2022; World , 2022) https://ec.europa.eu/growth/single-market/public-procurement_en accessed April 2022; World Bank, ‘Global Public Procurement Database: Share, Compare, Improve!’ ( Bank, ‘Global Public Procurement Database: Share, Compare, Improve!’ (World Bank World Bank, 23 March 2020) https:// , 23 March 2020) https:// www.worldbank.org/en/news/feature/2020/03/23/global-public-procurement-database-share-compare-improve accessed www.worldbank.org/en/news/feature/2020/03/23/global-public-procurement-database-share-compare-improve accessed 25 April 2022 25 April 2022

2 OECD, ‘Public Procurement for Sustainable and Inclusive Growth: Enabling reform through evidence and peer reviews’

2 ‘Public Procurement for Sustainable and Inclusive Growth: Enabling reform through evidence and peer reviews’ (2020) OECD 9 (2020) 9.

3 TED eTendering, ‘What is TED eTendering?’ ( 3 TED eTendering, ‘What is TED eTendering?’ TED eTendering TED eTendering, 2022) , 2022) https://etendering.ted.europa.eu/general/page.html?name=home accessed 25 April 2022. https://etendering.ted.europa.eu/general/page.html?name=home accessed 25 April 2022.

4 Ahmet Soylu and others, ‘Data Quality Barriers for Transparency in Public Procurement’ (2022) 13 Information 1, 3.

4 Ahmet Soylu and others, ‘Data Quality Barriers for Transparency in Public Procurement’ (2022) 13 Information 1, 3.

5 ibid 2. 5 ibid 2

6 ibid 3 6 ibid 3

7 Bertrand Maltaverne, ‘What Can Blockchain Do for Public Procurement?’ (

7 Bertrand Maltaverne, ‘What Can Blockchain for Public Procurement?’ (Public Spending Forum Public Spending Forum, 28 September , 28 2017) http://www.publicspendforum.net/blogs/bertrand-maltaverne/2017/08/28/blockchain-technology-public- 2017) http://www.publicspendforum.net/blogs/bertrand-maltaverne/2017/08/28/blockchain-technology-publicprocurement/?utm content=buffer0e59e&utm medium=social&utm_source=twitter.com&utm_campaign=buffer procurement/?utm content=buffer0e59e&utm medium=social&utm_source=twitter.com&utm_campaign=buffer accessed 25 April 2022 accessed 25 April 2022

8 Raquel Carvalho, ‘Blockchain and Public Procurement’ (2019) 6 European Journal of Comparative Law and

8 Raquel Carvalho, ‘Blockchain and Public Procurement’ (2019) 6 European Journal of Comparative Law and Governance 187, 193 Governance 187, 193

9 World Economic Forum and Inter-American Development Bank, ‘Exploring Blockchain Technology for Government

9 World Economic Forum and Inter-American Development Bank, ‘Exploring Blockchain Technology for Government Transparency: Blockchain-Based Public Procurement to Reduce Corruption’ (2020) World Economic Forum 20. Blockchain-Based Public Procurement to Reduce Corruption’ (2020) World Economic

BLOCKCHAIN IN E-TENDERING SYSTEMS: A NEW ANTI-CORRUPTION BLOCKCHAIN IN E-TENDERING SYSTEMS: A NEW ANTI-CORRUPTION TECHNIQUE OR A FALSE HOPE TECHNIQUE OR A FALSE HOPE

Kirill Ryabtsev (Vrije Universiteit Amsterdam) and Andrijana Zivic (Utrecht University, the Netherlands) Kirill Ryabtsev (Vrije Universiteit Amsterdam) and Andrijana Zivic (Utrecht University, the Netherlands)

Bearing in mind the importance of the public procurement field and the technological features of blockchain, Bearing in mind the importance of the procurement and technological features of blockchain, this article will seek to answer the following research question: to what extent the use of blockchain this article will seek answer the following research question: what extent use of technology in public procurement platforms contributes to reducing corruption in public procurement in the in reducing corruption in in EU by improving transparency and increasing government accountability? Accordingly, this paper will first EU by improving transparency and increasing government accountability? Accordingly, this paper will first provide the reader with an overview of blockchain technology, its architecture, and its functioning Secondly, provide the reader with an overview of blockchain technology, its architecture, and its functioning. Secondly, it will elaborate upon how the blockchain’s features can assist with combating corruption in public will elaborate upon how the blockchain’s features assist with combating corruption in public procurement and evaluate the key benefits of this approach and evaluate the key benefits of this approach.

II. PROCUREMENT TRANSPARENCY THROUGH BLOCKCHAIN II PROCUREMENT TRANSPARENCY THROUGH BLOCKCHAIN

II.1. II.1. Blockchain Technology: An Overview Blockchain Technology: An Overview

To start with, it should be noted that blockchain is a distributed ledger technology that allows all its members To start with, it should be noted that blockchain is a distributed ledger technology that allows all its members to engage in peer-to-peer transactions online.(10) All information and data are stored among all blockchain to engage in peer-to-peer transactions online (10) All information and data are stored among all blockchain members, and the validity of each transaction is ensured by cryptographic means.(11) Furthermore, members, and the validity of each transaction is ensured by cryptographic means.(11) Furthermore, information regarding all transactions is stored in the blockchain open-access database forever and cannot be information regarding all transactions is stored in the blockchain open-access database forever and cannot be deleted or changed. (12) Moreover, blockchain network is almost utterly immutable to cyberattacks. (13) deleted or changed (12) Moreover, blockchain network is almost utterly immutable to cyberattacks (13) Lastly, it should be noted that the technological architecture of blockchain ensures that no individual member it should be noted that the technological architecture of blockchain ensures that no individual member of its network is capable of exercising decisive control over its operations.(14) of its network is capable of exercising decisive control over its operations (14)

It should also be underlined that blockchains can be placed in different categories according to the permission should also be underlined that blockchains can be placed in different categories according to the permission model they are based on. This concept describes which type of users can join its network and take part in the model they are based on. This concept describes which type of users can join its network and take part in the blockchain ecosystem’s activities.(15) Accordingly, there are three major categories of blockchain permission blockchain ecosystem’s activities.(15) Accordingly, there are three major categories of blockchain permission models: (1) a permissionless blockchain, (2) a permissioned blockchain (3) a private blockchain. The scope of models: (1) a permissionless blockchain, (2) a permissioned blockchain (3) a private blockchain. The scope of this paper only covers the permissioned blockchain as, due to its technological features, this permission model this paper only covers the permissioned blockchain as, due to its technological features, this permission model is the most suitable one to be used in public procurement. Such a type of blockchain allows everyone to join is the most suitable one to be used in public procurement Such a type of blockchain allows everyone to join its ecosystem but requires an identity verification process.(16) Moreover, all network members have special its ecosystem but requires an identity verification process (16) Moreover, all network members have special permission to engage in only a specific type of activity. Thus, while some members of this blockchain can permission to engage in only a specific type of activity Thus, while some members of this blockchain can solely read the information stored in the network, others have the right to add new sets of data to it. As a solely read the information stored in the network, others have the right to add new sets of data to it As a result, blockchains that follow a permissioned model would allow the public to oversee how the procurement result, blockchains that follow a permissioned model would allow the public to oversee how the procurement process is happening but, at the same time, only let stakeholders directly involved in tendering to write on its process is happening but, at the same time, let stakeholders involved in tendering to write on its lledger. edger

10 Kahina Khacef and Guy Pujolle, ‘Secure Peer-to-Peer Communication Based on Blockchain ’(2019) Web, Artificial

10 Kahina Khacef and Guy Pujolle, ‘Secure Peer-to-Peer Communication Based on Blockchain ’(2019) Web, Artificial Intelligence and Network Applications 10 Intelligence and Network Applications 10

11 ibid 11 ibid

12 Josh Lake, ‘Understanding cryptography’s role in blockchains ’( Josh Lake, ‘Understanding role in blockchains ’(CompariTech CompariTech, 10 April 2019) , 10 2019) https://www.comparitech.com/crypto/cryptography-blockchain/ accessed 25 April 2021. https://www.comparitech.com/crypto/cryptography-blockchain/ accessed 25 April 2021.

13 Werner Vermaak, ‘Why Nobody Can Hack a Blockchain ’(

13 Werner Vermaak, ‘Why Nobody Can a ’(CoinMarketCap CoinMarketCap, 9 December 2020) , 9 December 2020) https://coinmarketcap.com/alexandria/article/why-nobody-can-hack-a-blockchain accessed 25 April 2021. https://coinmarketcap.com/alexandria/article/why-nobody-can-hack-a-blockchain accessed 25 April 2021.

14 Kevin Werbach, 14 Kevin Werbach, The Blockchain and the New Architecture of Trust The Blockchain and the New Architecture of Trust (MIT Press 2018) 96. (MIT Press 2018) 96

15 Shobhit Seth, ‘Public, Private, Permissioned Blockchains Compared ’(

15 Shobhit Seth, ‘Public, Private, Permissioned Blockchains Compared ’(IInvestopedia nvestopedia, 11 January 2021) , 11 2021) https://www.investopedia.com/news/public-private-permissioned-blockchains-compared/ accessed 25 April 2021. accessed 25 April

16 Jake Frankenfield, ‘Permissioned Blockchains’ ( Jake Frankenfield, ‘Permissioned Blockchains’ (IInvestopedia nvestopedia, 30 June 2020) , 30 June 2020) https://www.investopedia.com/terms/p/permissioned-blockchains.asp accessed 25 April 2021. https://www.investopedia.com/terms/p/permissioned-blockchains.asp accessed 25 April

BLOCKCHAIN IN E-TENDERING SYSTEMS: A NEW ANTI-CORRUPTION BLOCKCHAIN IN E-TENDERING SYSTEMS: A NEW ANTI-CORRUPTION TECHNIQUE OR A FALSE HOPE TECHNIQUE OR A FALSE HOPE

Kirill Ryabtsev (Vrije Universiteit Amsterdam) and Andrijana Zivic (Utrecht University, the Netherlands) Kirill Ryabtsev (Vrije Universiteit Amsterdam) and Andrijana Zivic (Utrecht University, the Netherlands)

The last technical concept that must be touched upon is smart contracts. These contracts are created The last technical concept that must be touched upon is smart contracts. These contracts are created on top of on top of the blockchain architecture and are self-executing.(17) This automation feature of a smart contract is provided the blockchain architecture and are self-executing (17) This automation feature of a smart contract is provided by the “if/when, then” algorithm embedded in its code.(18) As a result, as soon as a specific contract condition by the “if/when, then” algorithm embedded in its code (18) As a result, as soon as a specific contract condition or set of conditions is satisfied, the smart contract will be autonomously executed, and neither of the parties or set of conditions is satisfied, the smart contract will be autonomously executed, and neither of the parties would be able to preclude this from happening. Identification of whether the conditions in question are would be able to preclude this from happening Identification of whether the conditions in question are satisfied is made by oracles - algorithms that collect and process external information that is inaccessible to satisfied is made by oracles - algorithms that collect and process external information that is inaccessible to the software of a smart contract.(19) Importantly, after a smart contract has been concluded, it is no longer the software of a smart contract (19) Importantly, after a smart contract has been concluded, it is no possible to alter its terms and conditions.(20) possible to alter its terms and conditions (20)

I 2 Employment in Public Procurement

I.2. Employment in Public Procurement

The modern European legal framework on public procurement is predominantly based on two legal The modern legal framework on public procurement is predominantly based on two legal instruments: Directive 2014/24/EU on public procurement and Directive 2014/55/EU on electronic invoicing Directive 2014/24/EU on public procurement and 2014/55/EU on electronic invoicing. (21) Accordingly, these directives fostered the digital transformation of European public procurement by (21) Accordingly, these directives fostered the digital transformation of European public procurement by making the implementation of e-tendering platforms in each EU Member State mandatory.(22) In that respect, making the implementation of e-tendering platforms in each EU Member State mandatory.(22) In that respect, it should be noted that modern e-tendering is divided into two key stages.(23) it should be noted that modern e-tendering is divided into two key stages.(23)

The first e-procurement stage covers the following processes:(24) The first e-procurement stage covers the following processes:(24)

(1) Preliminary preparations for tender’s initiation by the contracting agency, including reaching out (1) Preliminary preparations tender’s initiation by contracting agency, reaching out to the potential bidders; to the potential bidders;

(2) Initiating tenders by the agency via publication of electronic notices; (2) Initiating tenders by the agency via publication of electronic

(3) Start of an actual e-tendering, when tender-related documentation must be accessible (3) Start of an actual e-tendering, when tender-related documentation must be accessible electronically to all the tender applicants in a non-discriminatory manner Tender applicants electronically to all the tender applicants in a non-discriminatory manner. Tender applicants should submit their offers electronically should submit their offers electronically.

The second e-procurement stage is concerned with the following actions:(25) The second e-procurement concerned with the following actions:(25)

17 Bhabendu Kumar Mohanta and others, ‘An Overview of Smart Contract and Use Cases in Blockchain Technology ’ Bhabendu Kumar Mohanta and others, ‘An of Smart Contract and Use Cases in Blockchain (2018) 9th International Conference on Computing, Communication and Networking Technologies 1. (2018) 9th International Conference on Computing, Communication and Networking Technologies

18 Tatsuya Sato and Yosuke Himura, ‘Smart-Contract Based System Operations for Permissioned Blockchain’ (2018) 9th Tatsuya Sato and Yosuke Himura, ‘Smart-Contract Based System Operations for Permissioned (2018) 9th

IFIP International Conference on New Technologies, Mobility and Security (NTMS) 3; Andrew Edmondson, ‘If (this)

IFIP International Conference New Technologies, Mobility and Security (NTMS) 3; Andrew Edmondson, ‘If (this) then: pay me! | First looks at Ethereum smart contracts ’( then: pay me! | First looks at Ethereum smart contracts ’(Medium Medium, 29 November 2018) , 29 November 2018) https://medium.com/@dru edmondson/if-this-then-pay-me-first-looks-at-ethereum-smart-contracts-635bbb62ffb1 https://medium.com/@dru edmondson/if-this-then-pay-me-first-looks-at-ethereum-smart-contracts-635bbb62ffb1 accessed 25 April 2021 accessed 25 April 2021

19 Kamran Mammadzada and others, ‘Blockchain Oracles: A Framework for Blockchain-Based Applications ’(2020) Kamran Mammadzada and others, ‘Blockchain Oracles: A Framework for Blockchain-Based ’(2020)

Business Process Management: Blockchain and Robotic Process Automation Forum 13, 21.

Business Process Management: Robotic Process Automation Forum 13, 21.

20 Lennart Ante, ‘Smart Contracts on the Blockchain – A Bibliometric Analysis and Review ’(2020) 10 BRL Working

20 Lennart Ante, ‘Smart Contracts on Blockchain – A Bibliometric Analysis Review ’(2020) 10 BRL Working Paper Series 5-6. Paper Series 5-6

21 Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and

21 Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC [2014] OJ L 94; Directive 2014/55/EU of the European Parliament and of the Council of repealing Directive 2004/18/EC [2014] OJ L 94; Directive 2014/55/EU of the European Parliament and of the Council of

16 April 2014 on electronic invoicing in public procurement [2014] OJ L 133. April 2014 on electronic invoicing in public procurement [2014] OJ L 133.

22 European Commission, ‘Communication from the European Commission to the European Parliament, the Council, the European Commission, ‘Communication from European Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions: End-to-end e-procurement to modernise public European Economic and Social the Committee of Regions: End-to-end e-procurement to modernise public administration’ (2013) COM(2013) 453 final 3 (2013) COM(2013) 453 final 3

23 Ewa Prałat, ‘Public e-procurement tools in European Union’ (2019) 58 Nieró wnoś ci Społeczne a Wzrost Gospodarczy

23 Ewa Prałat, ‘Public e-procurement tools in European Union’ (2019) 58 Nieró wnoś ci Społeczne a Wzrost Gospodarczy 188, 190 188, 190

24 ibid 24 ibid

25 ibid 191 ibid 191.

BLOCKCHAIN IN E-TENDERING SYSTEMS: A NEW ANTI-CORRUPTION BLOCKCHAIN IN E-TENDERING SYSTEMS: A NEW ANTI-CORRUPTION TECHNIQUE OR A FALSE HOPE TECHNIQUE OR A FALSE HOPE

Kirill Ryabtsev (Vrije Universiteit Amsterdam) and Andrijana Zivic (Utrecht University, the Netherlands) Kirill Ryabtsev (Vrije Universiteit Amsterdam) and Andrijana Zivic (Utrecht University, the Netherlands)

(1) Assessment of the bids by the agency, with a specific focus on their economic and societal Assessment of the bids by the agency, with a specific focus on their economic and societal benefits, and benefits, and awarding the winning party with a contract; the winning party with a contract;

(2) Conclusion and subsequent monitoring of a contract between an agency and the winning party through Conclusion and subsequent monitoring of a contract between an agency and the winning party through digital means; means;

(3) Preparation by the agency of an electronic order; (3) Preparation by the agency of an electronic order;

(4) Issuance of an electronic invoice by the winning party; (4) Issuance of an by the winning party;

(5) Making an electronic payment by the agency for the goods and services provided by the winning party. (5) an electronic payment by the agency for the goods and services provided by the winning party.

This strong focus on digitalization clearly reflects that the Commission seeks to strengthen transparency and This strong focus on digitalization clearly reflects that the Commission seeks to strengthen transparency and accountability within public procurement and, consequently, fight the corruption involved in it.(26) The accountability within public procurement and, consequently, fight the corruption involved in it (26) The above-described e-procurement system indeed succeeded in partially achieving this noble goal. Nevertheless, above-described e-procurement system indeed succeeded in partially achieving this noble goal Nevertheless, it was unable to free it from these fraudulent activities completely. The two key reasons for this partial failure it was unable to free it from these fraudulent activities completely The two key reasons for this partial failure are the present data silos concerning internal public procurement procedures and the data quality barriers in are the present data silos concerning internal public procurement procedures and the data quality barriers in the system.(27) Accordingly, there is still a pressing issue of accessibility to some tendering data for the the system (27) Accordingly, there is still a pressing issue of accessibility to some data for the procurement stakeholders. Henceforth, the room for unpunished corruption in the field remains. In that regard, procurement stakeholders Henceforth, the room for unpunished corruption in the field remains In that it should be noted that fraudulent activities in public procurement are mainly concerned with favoring a it should be noted that fraudulent activities in public procurement are mainly concerned with favoring a specific tender applicant by the public authority through, for instance, unfair bid evaluations or fraud in tender applicant by the public authority for instance, unfair bid evaluations or fraud in contractual obligations. (28) Therefore, this article argues that the employment of blockchain can assist the obligations. (28) Therefore, this argues that the employment blockchain can assist the Commission in strengthening its anti-corruption efforts by further increasing the transparency of the tendering Commission in its anti-corruption by further increasing transparency the tendering process. The 4 following reasons emphasize its ability to do so. process. The 4 reasons emphasize its ability to do so.

First of all, the fact that blockchain technology does not allow anyone to silently alter the procurement data First of all, the fact that blockchain technology does not allow anyone to silently alter the procurement data that has already been entered into its ledger makes it a highly reliable archive.(29) If there is an attempt to that has already been entered into its ledger makes it a highly reliable archive (29) If there is an attempt to modify information stored on a blockchain, the ledger will automatically identify it and make it visible to the modify information stored on a blockchain, the ledger will automatically identify it and make it visible to the entire network. This specifically precludes public officials from manipulating the procurement process entire network This specifically precludes public officials from manipulating the procurement process through record tampering.(30) For instance, the absence of centralized control over the blockchain network through record tampering (30) For instance, the absence of centralized control over the blockchain network will make it practically impossible to change the deadline for bid submissions, adjust the evaluation criteria in will make it practically impossible to change the deadline for bid submissions, adjust the evaluation criteria in favor of a specific party, or modify the terms and conditions of an already awarded contract. favor of a party, or modify the terms and conditions of an already awarded contract

Second of all, the blockchain cryptographic keys would preclude anyone involved in public procurement from Second of all, the blockchain cryptographic keys would preclude anyone involved in public procurement from accessing sensitive information about the tender applicants without obtaining their prior consent (31) accessing sensitive information about the tender applicants without obtaining their prior consent.(31) Blockchain can therefore guarantee the confidentiality and security of the documents uploaded into the e- Blockchain can therefore guarantee the confidentiality and security of the documents uploaded into the procurement system. (32) procurement system. (32)

26 Javier Miranzo Díaz, ‘A Taxonomy of Corruption In EU Public Procurement’ (2017) 4 European Procurement & Public

Javier Miranzo Díaz, ‘A Taxonomy of Corruption In EU Public 4 European Procurement & Public

Private Partnership Law Review 383, 384-385 Private Partnership Law Review 383, 384-385

27 Soylu and others (n 4) 3. 27 Soylu and others (n 4) 3

28 OECD, ‘Preventing Corruption in Public Procurement’ (2016) OECD 6

28 OECD, ‘Preventing Corruption in Public Procurement’ (2016) OECD 6

29 Asif Akram, ‘Trust, Privacy and Transparency with Blockchain Technology in Logics ’(2018) Mediterranean

29 Asif Akram, ‘Trust, and Transparency with Blockchain Technology in Logics ’(2018) Mediterranean Conference on Information Systems 3 Conference on Information 3

30 Victoria L Lemieux, ‘Blockchain and Recordkeeping: Editorial’ (2021) 10 Computers 1, 2. Victoria L Lemieux, ‘Blockchain and Editorial’ 10 Computers 1, 2.

31 Jenny Alexandra Triana Casallas and others, ‘Smart Contracts with Blockchain in the Public Sector’ (2020) 6

Jenny Alexandra Triana Casallas and others, ‘Smart Contracts in the Public Sector’ (2020) 6 International Journal of Interactive Multimedia and Artificial Intelligence 63, 70. Interactive Multimedia and Artificial Intelligence 63, 70. 32 ibid. 32 ibid

BLOCKCHAIN IN E-TENDERING SYSTEMS: A NEW ANTI-CORRUPTION BLOCKCHAIN IN E-TENDERING SYSTEMS: A NEW ANTI-CORRUPTION TECHNIQUE OR A FALSE HOPE TECHNIQUE OR A FALSE HOPE

Kirill Ryabtsev (Vrije Universiteit Amsterdam) and Andrijana Zivic (Utrecht University, the Netherlands) Kirill (Vrije Universiteit Amsterdam) Andrijana Zivic (Utrecht University, the Netherlands)

Public officials will not be able to manipulate the procurement process by disclosing data on other tender Public officials will be able to manipulate the process by disclosing data on other tender participants to a selected applicant and, resultantly, providing it with an unfair competitive advantage participants a selected applicant and, resultantly, providing with an unfair competitive advantage. Therefore, building e-procurement systems on blockchain technology would also strengthen equality among Therefore, building e-procurement systems on blockchain technology would also strengthen equality among the tender applicants the tender applicants.

Third of all, through the smart contracts feature of the blockchain, it becomes possible to automate the Third of all, through the smart contracts feature of the blockchain, it becomes possible to automate the procurement procedures, thus significantly freeing it from human bias.(33) A smart contract can move the procurement procedures, thus significantly freeing it from human bias (33) A smart contract can move the procurement process from one stage to the next according the conditions incorporated into its code.(34) This procurement process one stage to the next according conditions incorporated into its code.(34) This can be, for example, a specific number of days that have to pass or the number of tender applicants that have can be, for example, a specific number of that pass or the number of tender applicants that have to submit their bids through the system. After the condition in question is fulfilled, the smart contract will to submit their bids through system. the condition in question is smart contract will automatically remove the option of adding new bids and move forward to the assessment stage. Similarly, automatically remove the option of adding new bids and move forward to the assessment stage. Similarly, when the tender selection criteria are not too complex, the decision over which applicant wins the tender can when the tender selection criteria are not too complex, the decision over which applicant wins the tender can also be made within the framework of a smart contract (35) Therefore, such a self-executing e-procurement also be made within the framework of a smart contract. (35) Therefore, such a self-executing e-procurement system will preclude governmental officials from exercising an undue influence on how the procurement system will preclude governmental officials from exercising an undue influence on how the process is happening is happening.

Lastly, it should be noted that as the data on the blockchain ledger cannot be changed or deleted and remain Lastly, it should be noted that as the data on the blockchain ledger cannot be changed or deleted and remain available to every member of the network, it becomes almost impossible for the corruption’s perpetrators to available to every member of the network, it becomes almost impossible for the corruption’s perpetrators to conceal their crime. (36) Indeed, this blockchain feature enables the procurement stakeholders, such as tender conceal their crime Indeed, this blockchain feature enables the procurement stakeholders, such as tender applicants and citizens, to recognize corruption within the system easier and hold those responsible for it applicants and citizens, to recognize corruption within the system easier and hold those responsible for it accountable.(37) It is therefore arguable that an increased risk of being identified and prosecuted can accountable.(37) It is therefore arguable that an increased risk being and prosecuted can disincentivize public officials from engaging in such illegal activities. officials engaging in such illegal activities.

III. CONCLUSION III. CONCLUSION

In conclusion, this article has presented the reader with a brief explanation of what blockchain technology is In conclusion, this article has presented the reader with a brief explanation of what blockchain technology is and which of its technological characteristics can be of interest to the field of public procurement. It explained and which of its technological characteristics can be of interest to the field of public procurement. It explained the notion of a permission model and the concept of a smart contract. Furthermore, this article has discussed the notion of a permission model and the concept of a smart contract Furthermore, this article has discussed the two stages of the modern e-procurement system and why the present framework remained insufficient to the two stages of the modern e-procurement system and why the present framework remained insufficient to eliminate corruption in this field. eliminate corruption in this field

Against this background, this essay has attempted to answer whether the use of blockchain technology in Against this background, this essay has attempted answer whether the use of blockchain technology in public procurement platforms contributes to reducing corruption in public procurement in the EU by public procurement platforms contributes to reducing corruption in public in the by improving transparency and increasing government accountability In that respect, it has answered this improving transparency and increasing government accountability. In that respect, has answered this question affirmatively and identified 4 ways how permissioned blockchain technology can indeed contribute question affirmatively and identified 4 ways how permissioned blockchain technology can indeed contribute to fighting corruption in tendering to fighting corruption tendering.

33 Tim Weingärtne and others, ‘Prototyping a Smart Contract Based Public Procurement to Fight Corruption’ (2021) 10 Tim Weingärtne others, ‘Prototyping a Smart Based Public Procurement to Fight Corruption’ (2021) Computers 1, 7 Computers 1, 7

34 ibid 7-8 34 ibid 7-8

35 J J Deshpande and others, ‘Permissioned blockchain based public procurement system ’(2020) 1706 Journal of Physics:

35 J J Deshpande and others, ‘Permissioned blockchain based public procurement system ’(2020) 1706 Journal of Physics: Conference Series 1, 7 Conference Series 1, 7

36 Chan Yang, ‘Is There a Role for Blockchain for Enhancing Public Procurement Integrity?’ (2019) OECD Global Anti-

36 Chan Yang, ‘Is There a Role for Blockchain for Enhancing Public Procurement Integrity?’ (2019) OECD Global AntiCorruption & Integrity Forum 4 Corruption & Integrity Forum 4.

37 ibid 5 ibid 5.

BLOCKCHAIN IN E-TENDERING SYSTEMS: A NEW ANTI-CORRUPTION BLOCKCHAIN IN E-TENDERING SYSTEMS: A NEW ANTI-CORRUPTION TECHNIQUE OR A FALSE HOPE TECHNIQUE OR A FALSE HOPE

Kirill Ryabtsev (Vrije Universiteit Amsterdam) and Andrijana Zivic (Utrecht University, the Netherlands) Kirill Ryabtsev (Vrije Universiteit Amsterdam) and Andrijana Zivic (Utrecht University, the Netherlands)

Accordingly, it precludes public officials from secretly it precludes public officials from secretly adjusting tender-related information on its ledger. It adjusting tender-related information on its ledger It also ensures that confidential information regarding a tender applicant is secured via cryptographic means, also ensures that confidential information regarding a tender applicant is secured via cryptographic means, thus preventing it from being shared with its competitors. Moreover, smart contracts can automate some thus preventing it from being shared with its competitors. Moreover, smart contracts can automate some procurement procedures to diminish the possibility of any undue influence on them by governmental officials procurement procedures to diminish the possibility of any undue influence on them by governmental officials. Lastly, the transparent technological architecture made it nearly impossible for members of the corruption Lastly, the transparent technological architecture made nearly impossible for members of the corruption schemes to conceal them. schemes to conceal them.

BIBLIOGRAPHY BIBLIOGRAPHY

Primary Sources: Primary Sources: Secondary Law: Secondary Law: Directive 2014/55/EU of the European Parliament and of the Council of 16 April 2014 on electronic invoicing Directive of the European Parliament and of the Council of 16 April 2014 on electronic invoicing in public procurement [2014] OJ L 133 in public procurement [2014] OJ L 133

Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC [2014] OJ L 94 procurement and repealing Directive 2004/18/EC [2014] OJ L 94

Soft Law: Soft Law: European Commission, ‘Communication from the European Commission to the European Parliament, the European Commission, ‘Communication from the European Commission the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions: End-to-end e- Council, the European Economic and Social Committee and the Committee of Regions: End-to-end eprocurement to modernise public administration’ (2013) COM(2013) 453 final procurement to modernise administration’ (2013) COM(2013) 453 final Secondary Sources: Secondary Sources: Books: Books: Werbach K, Werbach K, The Blockchain and the New Architecture of Trust The Blockchain and the New Architecture of Trust (MIT Press 2018) (MIT Press 2018)

Journal Articles: Journal Articles:

Soylu A and others, ‘Data Quality Barriers for Transparency in Public Procurement ’(2022) 13 Information 1 Soylu A and others, ‘Data Quality Barriers for Transparency in Public Procurement ’(2022) 13 Information 1 Carvalho R, ‘Blockchain and Public Procurement’ (2019) 6 European Journal of Comparative Law and R, ‘Blockchain and Procurement’ (2019) European Journal of Comparative Law Governance 187 Governance 187

Mammadzada K and others, ‘Blockchain Oracles: A Framework for Blockchain-Based Applications ’ Mammadzada K and others, ‘Blockchain Oracles: A Framework for Blockchain-Based Applications ’ (2020) Business Process Management: Blockchain and Robotic Process Automation Forum 13 (2020) Business Process Management: Blockchain and Robotic Process Automation Forum 13 Prałat E, ‘Public e-procurement tools in European Union’ (2019) 58 Nieró wnoś ci Społeczne a Wzrost Prałat E, ‘Public e-procurement tools in European Union’ (2019) 58 Nieró wnoś ci Społeczne a Wzrost Gospodarczy 188 Gospodarczy 188

Díaz JM, ‘A Taxonomy of Corruption In EU Public Procurement’ (2017) 4 European Procurement & Public Díaz JM, ‘A Taxonomy of Corruption In EU Public Procurement’ (2017) 4 European Procurement & Private Partnership Law Review 383 Private Partnership Law Review 383

Lemieux VL, ‘Blockchain and Recordkeeping: Editorial’ (2021) 10 Computers 1

Lemieux VL, ‘Blockchain and Recordkeeping: Editorial’ (2021) 10 Computers 1

Casallas JAT and others, ‘Smart Contracts with Blockchain in the Public Sector’ (2020) 6 International Casallas JAT and others, ‘Smart Contracts with Blockchain in the Public Sector’ (2020) 6 International Journal of Interactive Multimedia and Artificial Intelligence 63 Journal of Multimedia and Artificial Intelligence 63

Weingärtne T and others, ‘Prototyping a Smart Contract Based Public Procurement to Fight Corruption’ Weingärtne T and others, ‘Prototyping a Smart Contract Based Public Procurement to Fight Corruption’ (2021) 10 Computers 1 (2021) 10 Computers 1

Deshpande JJ and others, ‘Permissioned blockchain based public procurement system ’(2020) 1706 Journal of Deshpande JJ and others, ‘Permissioned blockchain based public procurement system ’(2020) 1706 Journal of Physics: Conference Series 1 Physics: Conference Series 1

BLOCKCHAIN IN E-TENDERING SYSTEMS: A NEW ANTI-CORRUPTION BLOCKCHAIN IN E-TENDERING SYSTEMS: A NEW ANTI-CORRUPTION TECHNIQUE OR A FALSE HOPE TECHNIQUE OR A FALSE HOPE

Kirill Ryabtsev (Vrije Universiteit Amsterdam) and Andrijana Zivic (Utrecht University, the Netherlands) Kirill Ryabtsev (Vrije Universiteit Amsterdam) and Andrijana Zivic (Utrecht University, the Netherlands)

Blogs: Blogs:

Maltaverne B, ‘What Can Blockchain Do for Public Procurement?’ ( Maltaverne B, ‘What Can Blockchain Do for Public Procurement?’ (Public Spending Forum Public Spending Forum, 28 September , 28 September 2017) http://www.publicspendforum.net/blogs/bertrand-maltaverne/2017/08/28/blockchain-technologyhttp://www publicspendforum net/blogs/bertrand-maltaverne/2017/08/28/blockchain-technologypublic-procurement/?utm content=buffer0e59e&utm medium=social&utm source=twitter.com&utm ca public-procurement/?utm medium=social&utm source=twitter com&utm ca mpaign=buffer accessed 25 April 2022 mpaign=buffer accessed 25 April 2022

Websites Websites::

European Commission, Internal Market, Industry, Entrepreneurship and SMEs: Public Procurement European Commission, Internal Market, Industry, Entrepreneurship and SMEs: Public Procurement (European Commission, 2022) https://ec europa eu/growth/single-market/public-procurement en (European Commission, 2022) https://ec.europa.eu/growth/single-market/public-procurement en accessed 25 April 2022 accessed 25 April 2022

World Bank, ‘Global Public Procurement Database: Share, Compare, Improve!’ (World Bank, 23 World Bank, ‘Global Public Procurement Database: Share, Compare, Improve!’ (World Bank, 23 March 2020) https:// www.worldbank.org/en/news/feature/2020/03/23/global-public-procurement- March https:// www.worldbank.org/en/news/feature/2020/03/23/global-public-procurementdatabase-share-compare-improve accessed 25 April 2022 database-share-compare-improve accessed 25 April 2022

TED eTendering, ‘What is TED eTendering?’ (TED eTendering, 2022)

TED eTendering, ‘What is TED eTendering?’ eTendering, 2022) https://etendering.ted.europa.eu/general/page.html?name=home accessed 25 April 2022 https://etendering ted europa eu/general/page html?name=home accessed 25 April 2022

Lake J, ‘Understanding cryptography’s role in blockchains ’(CompariTech, 10 April 2019)

Lake J, ‘Understanding cryptography’s role in blockchains ’(CompariTech, 10 April https://www.comparitech.com/crypto/cryptography-blockchain/ accessed 25 April 2021 https://www comparitech com/crypto/cryptography-blockchain/ accessed 25 April 2021

Vermaak W, ‘Why Nobody Can Hack a Blockchain ’(CoinMarketCap, 9 December 2020)

Vermaak W, ‘Why Nobody Can Hack a Blockchain December https://coinmarketcap.com/alexandria/article/why-nobody-can-hack-a-blockchain accessed 25 April 2021 https://coinmarketcap com/alexandria/article/why-nobody-can-hack-a-blockchain accessed 25 April 2021

Seth S, ‘Public, Private, Permissioned Blockchains Compared ’(Investopedia, 11 January 2021) S, ‘Public, Private, Permissioned Blockchains Compared 11 January https://www.investopedia.com/news/public-private-permissioned-blockchains-compared/ accessed accessed 25 April 2021 25 April 2021

Frankenfield J, ‘Permissioned Blockchains’ (Investopedia, 30 June 2020) J, ‘Permissioned Blockchains’ (Investopedia, 30 June 2020) https://www.investopedia.com/terms/p/permissioned-blockchains.asp accessed 25 April 2021 https://www.investopedia.com/terms/p/permissioned-blockchains.asp accessed 25 April 2021

Edmondson A, ‘If (this) then: pay me! | First looks at Ethereum smart contracts ’(Medium, 29 Edmondson A, ‘If (this) then: pay me! | First looks Ethereum smart contracts ’(Medium, 29 November 2018) https://medium com/@dru edmondson/if-this-then-pay-me-first-looks-at- November 2018) https://medium.com/@dru edmondson/if-this-then-pay-me-first-looks-atethereum-smart-contracts-635bbb62ffb1 accessed 25 April 2021 ethereum-smart-contracts-635bbb62ffb1 accessed 25 April 2021

Reports: Reports:

OECD, ‘Public Procurement for Sustainable and Inclusive Growth: Enabling reform through OECD, ‘Public Procurement for Sustainable and Inclusive Growth: Enabling reform through evidence and peer reviews’ (2020) OECD evidence and peer reviews’ (2020) OECD

World Economic Forum and Inter-American Development Bank, ‘Exploring Blockchain Technology

World Economic Forum and Inter-American Development Bank, ‘Exploring Blockchain Technology for Government Transparency: Blockchain-Based Public Procurement to Reduce Corruption’ (2020) for Government Transparency: Blockchain-Based Public Procurement to Reduce Corruption’ (2020)

World Economic Forum World Economic Forum

OECD, ‘Preventing Corruption in Public Procurement’ (2016) OECD OECD, ‘Preventing Corruption in Public Procurement’ (2016) OECD

BLOCKCHAIN IN E-TENDERING SYSTEMS: A NEW ANTI-CORRUPTION BLOCKCHAIN IN E-TENDERING SYSTEMS: A NEW ANTI-CORRUPTION TECHNIQUE OR A FALSE HOPE TECHNIQUE OR A FALSE HOPE

Kirill Ryabtsev (Vrije Universiteit Amsterdam) and Andrijana Zivic (Utrecht University, the Netherlands)

Kirill Ryabtsev (Vrije Universiteit Amsterdam) and Andrijana Zivic (Utrecht University, the Netherlands)

Conference Papers: Conference Papers:

Khacef K and Pujolle G, ‘Secure Peer-to-Peer Communication Based on Blockchain’ (2019) Web, Khacef K and Pujolle G, ‘Secure Peer-to-Peer Communication Based on Blockchain’ (2019) Web, Artificial Intelligence and Network Applications Artificial Intelligence and Network Applications

Mohanta KB and others, ‘An Overview of Smart Contract and Use Cases in Blockchain Technology’ Mohanta KB and others, ‘An Overview of Smart Contract and Use Cases in Blockchain Technology’ (2018) 9th International Conference on Computing, Communication and Networking Technologies (2018) 9th International Conference on Computing, Communication and Networking Technologies

Sato T and Himura Y, ‘Smart-Contract Based System Operations for Permissioned Blockchain’ Sato T and Himura Y, ‘Smart-Contract System Operations for Blockchain’ (2018) 9th IFIP International Conference on New Technologies, Mobility and Security (NTMS) (2018) 9th IFIP International Conference on New Technologies, Mobility Security (NTMS)

Akram A, ‘Trust, Privacy and Transparency with Blockchain Technology in Logics ’(2018) Akram A, ‘Trust, Privacy and Transparency with Blockchain Technology in Logics ’(2018)

Mediterranean Conference on Information Systems Mediterranean Conference on Information Systems

Yang C, ‘Is There a Role for Blockchain for Enhancing Public Procurement Integrity?’ (2019) OECD Yang C, ‘Is There a Role for Blockchain for Enhancing Public Procurement Integrity?’ (2019) OECD Global Anti-Corruption & Integrity Forum Global Anti-Corruption & Integrity Forum

Working Papers: Working Papers:

Ante L, ‘Smart Contracts on the Blockchain – A Bibliometric Analysis and Review ’(2020) 10 BRL Ante L, ‘Smart Contracts on the Blockchain – A Bibliometric Analysis and Review 10 BRL Working Paper Series Working Paper Series

V: Europe and Energy V: Europe and Energy

Faculty Discussant: Faculty Discussant: Professor Dr Marc Ringel Professor Dr Marc Ringel, Professor of Energy Economics (Nürtingen- , Professor of Energy Economics (NürtingenGeislingen University, Germany) Geislingen University, Germany)

Marc Dorpema Marc Dorpema (New York University) (New York University)

Chenchen Hao Chenchen Hao (Peking University, China) (Peking University, China)

Francesca Leucci Francesca Leucci (Università di Bologna, Italy) (Università di Bologna, Italy)

Fossil Fuels, Legitimacy, War: European Energy Dependence in the Age of Fossil Fuels, Legitimacy, War: European Energy Dependence in the Age of Climate Change Climate Change Marc Dorpema (New York University) Marc Dorpema (New York University)

The Russian invasion of Ukraine has been a spectacle of impotence in parts of Europe. The Russian invasion of Ukraine has been a spectacle of impotence in parts of Europe Germany in particular Germany in stands out for its meekness. Slow to approve weapons transfers, the sanctions it supported were toothless: stands out for its meekness Slow to approve weapons transfers, the sanctions it supported were toothless: Russian energy continues to pour into Germany, and German money into Russia. In fact, the European Union Russian energy continues to pour into Germany, and German money into Russia. In fact, the European Union has been even slower to wean itself off Russian oil than initially projected, as inertia, long-term contracts, and has been even slower to wean itself off oil than initially projected, as inertia, long-term contracts, and cynicism suture the patchwork of global energy flows.(1) To better understand the systemic nature of this cynicism the patchwork of global energy flows.(1) To better understand the systemic of this energy entrapment it is helpful to revive what has become known as the “long 1970s.” Two echoes in energy entrapment it helpful revive what become known as the “long 1970s.” Two echoes in particular demand closer scrutiny. particular demand closer scrutiny

1 Grant Smith, “JPMorgan Sees Risk of $185 Oil if EU Acts Quickly on Russia Ban,”

1 Grant Smith, “JPMorgan Sees Risk of $185 Oil if EU Acts Quickly on Russia Ban,” Bloomberg Bloomberg, 19 April , 19 April 2022, https://www.bloomberg.com/news/articles/2022-04-19/oil-may-hit-185-if-eu-speedily-bans- 2022, https://www bloomberg com/news/articles/2022-04-19/oil-may-hit-185-if-eu-speedily-bansrrussian-oil-jpmorgan-says. ussian-oil-jpmorgan-says

Chair: Chair: Claude Ewert Claude Ewert, University of Cambridge , University of Cambridge

Fossil Fuels, Legitimacy, War: European Energy Dependence in the Age of Climate Change

Fossil Fuels, Legitimacy, War: European Energy Dependence in the Age of Climate Change

Marc Dorpema (New York University) Marc Dorpema (New York University)

It is pivotal, first, to understand the nature of the respective challenges For the It is pivotal, first, to understand the nature of the respective challenges. For the problems in both situations problems in both situations go much deeper than mere energy dependence. Rather, the very legitimacy of the “West’s” growth model has go much deeper than mere energy dependence. Rather, the very legitimacy of the “West’s” growth model has been chipped away at by a multidimensional shock, first of international challenges from the South and been chipped away at by a multidimensional shock, first of international challenges from the South and internal ineffectiveness, now of climate change, Russia, and China. The second reverberation is Europe’s internal ineffectiveness, now of climate change, Russia, and China. The second reverberation is Europe’s response to these challenges. How does the coherence and unity of Europe’s current response compare to that response to these challenges. How does the coherence and unity of Europe’s current response compare to that of half a century ago? What does this tell us about the state of the European project? Lessons for the most of half a century ago? What does this tell us about the state of the European project? Lessons for the most adequate response to today’s problems lie not so much in the European Communities’ fractious answer to the adequate response to today’s problems lie not so much in the European Communities’ fractious answer to the 1973 oil shock, but in how they attempted to confront another challenge: the accelerating away of Japan and 1973 oil shock, but in how they attempted to confront another challenge: the accelerating away of Japan and the United States in the high-technology sector, and the industrial challenge from the “Asian Tiger” the United States in the high-technology sector, and the industrial challenge from the “Asian Tiger” economies. economies

LEGITIMACY AND KNOWLEDGE IN THE LONG 1970S LEGITIMACY AND KNOWLEDGE IN THE LONG 1970S

Confronted with a newly confident OPEC, European countries became painfully aware that their prosperity Confronted with a newly confident OPEC, European countries became aware that their prosperity depended on a well they not only had no control over, but about which they also knew very little. Oil majors on a well they not had no control over, but about which they also knew very little Oil majors (the “Seven Sisters”) and petro states were the only ones who had insights into stocks, exports, and imports.(2) (the “Seven Sisters”) and petro states were the ones who had insights into stocks, exports, and imports (2) While this allowed large fossil fuel companies to “manufacture” an oil crisis in the US, it also meant that the While this large fossil fuel companies to “manufacture” an oil crisis in the US, it also meant that the Dutch, burdened by a complete embargo because of their support for Israel, continued to receive oil.(3) It was Dutch, by a complete embargo because of their support for Israel, continued to receive oil.(3) It was the oil companies, as the chairman of Shell made clear to British Prime Minister Harold Wilson after the oil as chairman of Shell made British Prime Minister Harold Wilson after the latter’s attempt to pressure him into prioritizing deliveries to Britain, who decided who would receive how latter’s attempt to pressure him into deliveries to Britain, who decided who would receive how much oil (4) much oil.(4)

This presented a dual shock to the Western model of “embedded liberalism” that had appeared to promise This presented dual shock to the Western model of “embedded liberalism” that had appeared to promise unlimited growth First, since this growth had depended on energy it was harrowing to experience energy unlimited growth. First, since this growth had depended on energy it was harrowing experience energy dependence through OPEC’s wielding of the “energy weapon,” rather than merely being aware of the dependence through OPEC’s wielding of the “energy weapon,” rather than merely being aware of the possibility (5) Second, it was crucial that this threat came not only from other sovereign states, but from possibility.(5) Second, it was crucial that this threat came only from other sovereign states, but from multinational oil companies that now appeared as states of their own, although with the benefit of being multinational oil companies that now appeared states of their own, although with the benefit of being “objects” of international law, rather than “subjects,” and thus difficult to grasp (6) As the US Center for “objects” of international law, rather than “subjects,” and thus difficult grasp.(6) As the US Center for Science in the Public Interest put it in a 1974 pamphlet, the oil majors were “world empires” far more Science in the Public Interest put in 1974 pamphlet, the oil majors were “world empires” far more powerful than the likes of GM and Ford, since the former controlled the “life-blood of the modern world.”(7) powerful than the likes of GM and Ford, since the former controlled the “life-blood of the modern world.”(7) Across the Atlantic, influential figures like British labor economist Stuart Holland and future President of the Across the Atlantic, influential figures like British labor economist Stuart Holland and future President of the European Commission Jacques Delors detected the emergence of what they called the “mesoeconomic European Commission Jacques Delors detected the emergence of what they called the “mesoeconomic sector,” a powerful, difficult to regulate set of multinational companies that did not “respond to overall sector,” a powerful, difficult to regulate set of multinational companies that did not “respond to overall demand management by public authorities” and upset the relationship between government and market. (8) demand management by public authorities” and upset the relationship between government and market

2 Rüdiger Graf, Oil and Sovereignty: 2 Rüdiger Graf, Oil and Sovereignty: Peto-Knowledge and Energy Policy in the United States and Western Europe in the 1970s Peto-Knowledge and Energy Policy in the United States and Western Europe in 1970s, trans Alex , trans Alex Skinner (Oxford: Berghahn, 2018), 336. Skinner (Oxford: Berghahn, 2018), 336

3 Timothy Mitchell, 3 Timothy Mitchell, Carbon Democracy: Political Power in the Age of Oil Carbon Democracy: Political Power in the Age of Oil (London: Verso, 2011). (London: Verso, 2011)

4 Duco Hellema, Cees Wiebes, and Toby Witte, 4 Duco Hellema, Cees Wiebes, and Toby Witte, The Netherlands and the Oil Crisis: Business as Usual, The Netherlands and the Oil Crisis: Business as Usual, translated by Murray Pearson translated by Pearson (Amsterdam: Amsterdam University Press, 1998) (Amsterdam: Amsterdam University 1998).

5 Graf, 5 Graf, Oil and Sovereignty and Sovereignty.

6 Erika R George, “Incorporating Rights: Empire, Global Enterprise, and Global Justice,” 6 R George, “Incorporating Rights: Empire, Global Enterprise, and Global Justice,” University of St Thomas Law Journal University of St Thomas Law Journal 10, no 4 (Spring 10, no 4 (Spring 2013): 917-59 2013): 917-59

7 Cited in Graf, 7 Cited in Graf, Oil and Sovereignty Oil and Sovereignty, 340. , 340

8 Franco Archibugi, Jacques Delors and Stuart Holland, ‘The International Crisis,’ in 8 Franco Archibugi, Jacques Delors and Stuart Holland, ‘The International Crisis,’ in Beyond Capitalist Planning Beyond Capitalist Planning,, ed. Holland (Oxford: Blackwell, 1978), 167-69 ed. Holland (Oxford: Blackwell, 1978), 167-69

Fossil Fuels, Legitimacy, War: European Energy Dependence in the Age of Climate Change

Fossil Fuels, Legitimacy, War: European Energy Dependence in the Age of Climate Change

Marc Dorpema (New York University) Marc Dorpema (New York University)

This tension between energy dependence and legitimacy is a key aspect of the “Capitalocene ” In fact, 63% This tension between energy dependence and legitimacy is a key aspect of the “Capitalocene.” fact, 63% “of the cumulative fossil fuel emissions between 1751 and 2010 can be traced to 90 corporations in the “of the cumulative fossil fuel emissions between 1751 and 2010 can be traced 90 corporations in the business of extracting fossil fuels.”(9) business of extracting fossil fuels.”(9)

These realizations constitute a rarely studied part of what Patrick Kupper has called the “1970er These realizations constitute a rarely studied part of what Patrick Kupper has called the “1970er Diagnose,” which shone a spotlight on looming ecological disaster – a slide onto the “hockey stick,” as the Diagnose,” which shone a spotlight on looming ecological disaster – a slide onto the “hockey stick,” as the stunning emissions graphs have been called.(10) In the US, which has been far less dependent on energy stunning emissions graphs have been called (10) In the US, which has been far less dependent on energy imports than its allies across the pond, the predominant response was the further commodification of nature, imports than its allies across the pond, the predominant response was the further commodification of nature, most visibly through the creation of carbon credits. In Germany, on the other hand, the process led to most visibly through the creation of carbon credits In Germany, on the other hand, the process led to “Ecological Modernization” and the idea that energy prices should be politically controlled, also because this “Ecological Modernization” and the idea that energy prices should be politically controlled, also because this could steer incentives for innovation.(11) The deregulation of energy markets that characterized the 1990s, could steer incentives for innovation (11) The deregulation of energy markets that characterized the 1990s, however, has made price controls difficult. It was also in this period that Russia clawed its way into the however, has made price controls difficult It was also in this period that Russia clawed its way into the German market, as Thane Gustafson has elucidated.(12) German market, as Thane Gustafson has elucidated (12)

But Ecological Modernization has failed to satisfy Germany’s security and energy needs In all, Russia But Ecological Modernization has failed to satisfy Germany’s security and energy needs. In all, Russia provides 30% of Germany’s oil, gas, and coal. Anti-nuclear sentiments, which emerged in the 1970s, remain provides 30% of Germany’s oil, gas, and coal. Anti-nuclear sentiments, which emerged the 1970s, remain potent unlike in France, where nuclear covers just over 40% of energy needs, the same amount renewables potent unlike in France, where nuclear covers just over 40% of energy needs, the same amount renewables supply in Denmark (IEA). (13) While governments now possess immense knowledge on matters of energy supply in Denmark (IEA). (13) While governments now possess immense knowledge on matters of energy through, for instance, the IEA, which was set up in response to OPEC’s challenge, acting on this wealth of through, for instance, the IEA, which was set up in response to OPEC’s challenge, acting on this wealth of information has proved difficult. information has proved difficult.

SANCTIONS, DISCORD,

AND

EUROPEAN

RESPONSES TO GLOBAL SHOCKS

SANCTIONS, DISCORD, AND EUROPEAN RESPONSES TO GLOBAL SHOCKS

When OPEC ratcheted up oil prices fourfold in December 1973 after experimenting with monthly production When OPEC ratcheted up oil prices fourfold in December 1973 after experimenting with monthly production cuts and full embargoes on countries deemed particularly hostile to Arab interests in the wake of the Yom cuts and full embargoes on countries deemed particularly hostile to Arab interests in the wake of the Yom Kippur War, Europe was stunned if not entirely surprised (14) Although we now know that oil continued to Kippur War, Europe was stunned if entirely surprised. (14) Although we now know that oil continued flow and the scarcities governments prepared for were more imagined than real, a coherent response had flow and the governments prepared for were more imagined than real, a coherent response had immediately to be found (15) Because of the intimate connection between energy, growth, and legitimacy immediately to be found.(15) Because of the intimate connection between energy, growth, and legitimacy sketched above, however, attempts at formulating a unified European strategy proved elusive sketched above, however, attempts at formulating a unified European strategy proved elusive.

The question was whether countries – namely the Netherlands – should bear the pain alone, or if pooling The question was whether countries – namely the Netherlands – should bear the pain alone, or if pooling and sharing resources would not lessen the burden of scarcity in an acceptable trade-off against individual and sharing resources would not lessen the burden of scarcity in an acceptable trade-off against individual member state sovereignty, the operations of the “free” market, and the degree of ire OPEC countries would member state sovereignty, the operations of the “free” market, and degree of ire OPEC would unleash on those supporting the Dutch. on those supporting the

9 Andreas Malm, “Who Lit This Fire? Approaching the History of the Fossil Economy,”

9 Andreas Malm, “Who Lit This Fire? Approaching the History of the Fossil Economy,” Critical Historical Critical Historical Studies Studies 3, no. 2 (Fall 2016): 220-21 3, no. 2 (Fall 2016): 220-21

10 Patrick Kupper, “‘Die 1970er’ Diagnose,”

10 Patrick Kupper, “‘Die 1970er’ Diagnose,” Archiv für Sozialgeschichte Archiv für 43 (2003): 325-48 43 (2003): 325-48.

11 Stephen Gross, “Energy Economics After the Oil Shock in America and West Germany: The Rise of

11 Stephen Gross, “Energy the Shock in America and West Germany: The Rise of Ecological Modernization,” Ecological Modernization,” Journal of Modern History of Modern History ((forthcoming) forthcoming)

12 Thane Gustafson, 12 Thane Gustafson, The Bridge: Natural Gas in a Divided Europe The Bridge: Natural Gas in a Divided Europe (Cambridge, MA: Harvard University (Cambridge, MA: Harvard University Press, 2020). Press, 2020)

13 International Energy Agency, “Countries and Regions,” accessed 19 April 2022,

13 International Energy Agency, “Countries and Regions,” accessed 19 April 2022, https://www.iea.org/countries

14 European governments in fact had received stark warnings about the potential use of the “oil weapon”

14 European governments in fact received stark warnings the potential use of the “oil for some years. Hellema et al., some years. et al., Business as Usual Business as Usual, 47 , 47

15 Hellema et al., Business As Usual; Mitchell, 15 Hellema et al., Business As Usual; Mitchell, Carbon Democracy Carbon Democracy

Fossil Fuels, Legitimacy, War: European Energy Dependence in the Age of Climate Change

Fossil Fuels, Legitimacy, War: European Energy Dependence in the Age of Climate Change

Marc Dorpema (New York University) Marc Dorpema (New York University)

The latter were ardent supporters of a free market in oil, and their Atlanticist The latter were ardent supporters of a free market in oil, and their Atlanticist leanings entailed a weariness of leanings entailed a weariness of French proposals both for producer-consumer dialogues and a more French proposals both for producer-consumer dialogues and a more dirigiste dirigiste steering of the oil market, which of the oil market, which would have constituted an unacceptable “politicization” of a tradeable commodity to The Hague. When prices constituted an unacceptable of a tradeable commodity to The Hague. surged and production was cut in October, however, the Netherlands reversed course, and advocated and production was cut in October, however, the Netherlands reversed course, and advocated supranational sharing schemes, an endeavor in which it was at least on paper supported by Germany and supranational sharing schemes, an endeavor in which it was at least on paper supported by Germany and Belgium, both of which depended on the port of Rotterdam for a substantial part of their energy imports. This Belgium, both of which depended on the port of Rotterdam for a substantial part of their energy imports. This support, however, was never voiced in public.(16) support, however, was never voiced public.(16)

Ultimately, no help materialized, and by December the Netherlands no longer sought sharing arrangements, Ultimately, no help materialized, and December no longer sought sharing arrangements, which the Commission had suggested in October. The Dutch had realized that theirs was the “most energy- the Commission had in October The Dutch had realized that theirs was the “most energyrich country in Europe” and in surprisingly good shape. (17) No coherent energy policy materialized, although rich country in Europe” and in surprisingly good shape (17) No coherent energy policy materialized, although Commission directives had mandated the maintenance of a 65-day emergency supply from 1 January 1971, Commission directives had mandated the maintenance of a 65-day emergency supply from 1 January 1971, which was increased to 90 days at the start of 1974.(18) Only in 1998, in fact, did the Commission pass its which was increased to 90 days the of 1974.(18) Only in 1998, in fact, did the Commission pass its first, competition-oriented gas directive (19) first, competition-oriented gas directive.(19)

The response to Putin’s war on Ukraine, although not without its disappointments, has been considerably The response to Putin’s war on Ukraine, although not without its disappointments, has been considerably more potent than that to the challenges of OPEC in the 1970s. Of course, there are substantial differences in more potent than that to the challenges of OPEC in the 1970s Of course, there are substantial differences in the nature of the challenge: OPEC asserted long-ignored rights to its own resources, while Putin is sacrificing the nature of the challenge: OPEC asserted long-ignored rights to its own resources, while Putin is sacrificing “the 21st-century Russian economy to raise a faux double-eagle over the Dnieper,” in the process causing “the 21st-century Russian economy to raise a faux double-eagle over the Dnieper,” in the process causing untold misery to both Ukrainians and Russians.(20) In response, both the rapidity and the scale, if not the untold misery to both Ukrainians and Russians.(20) In response, both the rapidity and the scale, if the substance, of sanctions has been unprecedented. of unprecedented.

But sanctions, as Nicholas Mulder has recently shown, are rarely successful.(21) In fact, rather than But sanctions, as Nicholas Mulder has recently shown, are rarely successful.(21) In fact, rather than constitute an alternative to war, they are themselves a continuation – or prelude – to the physical fighting they constitute an alternative to war, they are themselves a continuation – or prelude – to the physical fighting they seek to halt or prevent Liane Hewitt, in reviewing Mulder’s monograph, has perceptively noted that they seek to halt or prevent. Liane Hewitt, in reviewing Mulder’s monograph, has perceptively noted that they “provided a way for states to transfer the act of killing from soldiers to technocrats writing governments “provided way for states to transfer the act of killing from soldiers ... to technocrats writing governments orders.”(22) This is particularly true because Russia’s oil revenues are only increasing as prices continue to orders.”(22) This is particularly true because Russia’s oil revenues are only increasing as prices continue to soar, financing Putin’s military operations. Meanwhile, the plight of Russian citizens unconnected to the war soar, financing Putin’s military operations Meanwhile, the of Russian citizens unconnected to the war worsens, while Ukrainians are dying. worsens, while Ukrainians are dying

TOWARDS A NEW INDUSTRIAL POLICY TOWARDS A NEW INDUSTRIAL POLICY

16 Hellema et al , 75-92 16 Hellema et al , 75-92

17 Ibid , 99 17 Ibid , 99

18 18 OJ L OJ L 308, 23 December 1968, 14-16; OJ L 228, 16 August 1973, 1-2 308, 23 December 1968, 14-16; OJ L 228, 16 August 1973, 1-2.

19 19 OJ L OJ L 204, 21 July 1998, 1-12 204, 21 July 1998, 1-12.

20 Mike Davis, “Thanatos Triumphant,” 20 Mike Davis, “Thanatos Triumphant,” Sidecar, 7 March 2022 , 7 March 2022

21 Nicholas Mulder, 21 Nicholas Mulder, The Economic Weapon: The Rise of Sanctions as a Tool of Modern War The Economic Weapon: The Rise of Sanctions as a Tool of Modern War (New Haven, (New Haven,

CT: Yale University Press, 2022).

CT: Yale University Press, 2022)

22 Liane Hewitt, “The Paradoxes of Liberal Peacekeeping,”

22 Liane Hewitt, “The Paradoxes of Liberal Peacekeeping,” Tocqueville 21 Tocqueville 21, 1 March 2022, , 1 March 2022, https://tocqueville21 com/books/the-paradoxes-of-liberal-peacekeeping/ https://tocqueville21.com/books/the-paradoxes-of-liberal-peacekeeping/.

Fossil Fuels, Legitimacy, War: European Energy Dependence in the Age of Climate Change

Fossil Fuels, Legitimacy, War: European Energy Dependence in the Age of Climate Change Marc Dorpema (New York University) Marc Dorpema (New York University)

For an early attempt at what is really needed today it is For an early attempt at what is really needed today is helpful to remember European attempts at a common helpful remember European attempts at common industrial policy that emerged in the 1970s as a response to the “shock of the global.”(23) Airbus is perhaps industrial policy that emerged in the 1970s as a response to the “shock of the global.”(23) Airbus perhaps the best-known of these programs, but European industrial collaboration (EIC) also engendered the Tornado best-known of these programs, European industrial collaboration (EIC) also engendered the Tornado fighter jet, the Ariane launcher, and the Joint European Torus (JET) nuclear experiment, to name but a few. In fighter jet, the Ariane launcher, and the Joint European Torus (JET) nuclear experiment, to name but a few In fact, at £30.6m the British contribution to the European Space Agency (ESA) was among its most costly fact, at £30 6m the British contribution to the European Space Agency (ESA) was among its most costly subscriptions to international organizations in 1978-79, topping its £24.073m contribution to NATO in the subscriptions to international organizations in 1978-79, topping its £24.073m contribution to NATO in the same period by a considerable margin, though it should be noted that the amount almost equalizes once all same period by a considerable margin, though should be noted that the amount almost equalizes once all NATO-related fees are added up (24) NATO-related fees are added up.(24)

It is these types of European industry programs that the current situation demands, both to disentangle It is these types of European industry programs that the current situation demands, both to disentangle Europe (and Germany in particular) from dependence on Russia, and to even begin to avert the disasters Europe (and Germany in particular) from dependence on Russia, and to even begin to avert the disasters spelled out in the most recent IPCC report. As Agora Energiewende suggests, the EU should create a new spelled out in the most recent IPCC report. As Agora Energiewende suggests, the EU should create a new EUR 100bn Energy Sovereignty Fund along the lines of NextGenEU – which, crucially, was financed by EUR 100bn Energy Sovereignty Fund along the lines of NextGenEU – which, crucially, was financed by issuing common debt – to “flank” the set of 15 “priority actions” it has identified for REPowerEU, the issuing common debt – to “flank” the set of 15 “priority actions” it has identified for REPowerEU, the forthcoming European Commission plan to regain energy sovereignty.(25) If its actions are adopted, the EU European Commission plan to regain energy sovereignty.(25) If its actions are adopted, EU could “reduce fossil gas consumption by 1200 TWh,” or 80 percent of Russian gas mports by 2027.(26) In could “reduce fossil gas consumption by 1200 TWh,” or percent of Russian gas mports by In fact, the necessary legal framework for sections of the Agora plan is already in place through regulations that fact, the necessary legal framework for sections of the Agora plan is already in place through regulations that make up part of the Energy Community acquis.(27) But implementation has been painfully slow, and wind- make up part of the Energy Community acquis.(27) But implementation has been painfully slow, and windturbine deployment has been “heading in the wrong direction” since 2011.(28) The vast continent-wide project turbine deployment has been “heading in the wrong direction” since 2011.(28) The vast continent-wide project of energy efficiency measures, as well as heat pump, wind and solar PV installation Agora envisions requires of energy efficiency as well as heat pump, wind and solar PV installation Agora envisions requires not just a unified European response, but “huge parts of European society to become much more savvy and just a unified European response, but “huge parts of European society to much more savvy and expert in all things energy.”(29) People, in other words, must become more aware of their embeddedness in expert in all energy ”(29) People, in other words, must become more aware of their embeddedness in the global patchwork of energy. For only once we understand its thread count and our location in the pattern the global patchwork of energy For only once we understand its thread count and our location in the pattern are we able to begin unravelling. are we able to begin unravelling.

23 Niall Ferguson, Charles S Maier, Erez Manela and Daniel J. Sargent, eds. T

23 Niall Ferguson, Charles S Maier, Erez and Daniel J. Sargent, eds. The Shock of the Global: The he Shock of Global: The 1970s in Perspective 1970s in Perspective (Cambridge, MA: Harvard University Press, 2011). (Cambridge, MA: Harvard University Press, 2011)

24 Ian Gilmour to Geoffrey Howe, “British Subscriptions to International Organisations,” 3 December

24 Ian Gilmour to Geoffrey Howe, “British Subscriptions to International Organisations,” 3 December 1979, National Archive, FCO 33/4177, “UK Contribution to Council of Europe ” National Archive, FCO “UK Contribution to Council of Europe ”

25 Adam Tooze, “Heat Pumps for Energy Sovereignty – Europe’s Options in the Face of Putin’s War,”

25 Adam Tooze, “Heat Energy – Europe’s Options in the Face Putin’s War,” Chartbook #105 #105, 28 March 2022, https://adamtooze substack com/p/chartbook-105-heat-pumps-for- , 28 2022, https://adamtooze.substack.com/p/chartbook-105-heat-pumps-forenergy?s=r Matthias Buck et al , “Regaining Europe’s Energy Sovereignty: 15 Priority Actions for energy?s=r Matthias et al , “Regaining Europe’s Energy Sovereignty: Priority Actions for REPowerEU,” Agora Energiewende, March 2022, https://static.agora- REPowerEU,” Agora Energiewende, March 2022, https://static.agoraenergiewende.de/fileadmin/Projekte/2021/2021 07 EU GEXIT/253 Regaining-Europes-Energy- energiewende de/fileadmin/Projekte/2021/2021 07 EU GEXIT/253 Regaining-Europes-EnergySovereignty WEB pdf Sovereignty WEB pdf

26 Buck et al , “Regaining Sovereignty,” 9 26 Buck et al , Sovereignty,” 9

27 OJ L 328/1, 21 December 2018, online: https://eur-lex.europa eu/legal-

27 OJ L 328/1, 21 December 2018, https://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32018R1999&from=EN content/EN/TXT/PDF/?uri=CELEX:32018R1999&from=EN

28 Tooze, “Heat Pumps ” 28 Tooze, “Heat Pumps ”

29 Ibid. 29 Ibid

Abstract Abstract

There an Energy Crisis in Europe? Causes and Prospects Is

an Energy Crisis Europe? Causes and Prospects

Chenchen Hao (Peking University, China) Chenchen Hao (Peking University, China)

Since early 2022, the Russia-Ukraine conflict has affected Europe in various aspects The EU once united Since early 2022, the Russia-Ukraine conflict has affected Europe in aspects. The EU united by energy cooperation is now faced with a so-called “energy crisis”. However, with the existing production by energy cooperation is now faced with a so-called “energy crisis”. However, with existing production capacity and different policies, the “crisis” may not come that bad. Despite external factors, the EU’s capacity and different the “crisis” may not come that bad. Despite external factors, the EU’s equipment, institutions, and perceptions also contribute to its energy shortage. Starting from these aspects, equipment, institutions, and perceptions also contribute to its energy shortage Starting from these aspects, strengthen domestic collaboration between governments, enterprises and the public and then the EU is hopeful strengthen domestic collaboration between governments, enterprises and the public and then the EU is hopeful to deal with this energy crisis successfully and eventually fulfill the energy transition. deal with this energy crisis successfully and eventually fulfill the energy transition.

I. Introduction I.

The energy issue has been a major concern for European Union (EU) countries in recent years. Those EU The energy issue has been a major concern for European Union (EU) countries in recent years Those EU countries, which were united by energy cooperation (especially in coal and steel) 70 years ago, have now countries, which were united by energy cooperation (especially in coal and steel) 70 years ago, have now come to a standstill in collaboration also because of the energy issue Their different energy policies and come to a standstill in collaboration also because of the energy issue. Their different energy policies and governance have led to different energy structures, and thus distinctions in deciding energy relationships with governance have led different energy structures, and thus distinctions in deciding energy relationships with Russia. For its energy security, the EU has been planning to reduce the energy imports from Russia to ease its Russia. For its energy security, EU has been planning to reduce the energy imports Russia to ease its energy dependence on Russia, but it seems to be experiencing slow progress. The Russia-Ukraine conflict energy dependence on Russia, but it seems to be experiencing slow progress The Russia-Ukraine conflict since early 2022 has significantly diminished the political trust between Russia and EU countries. For the EU, since early 2022 has significantly diminished the political trust between Russia and EU countries For the EU, it must get rid of the energy dependence on Russia, but in a short time, it is impossible to find a “second it must get rid of the energy dependence on Russia, but in a short time, it is impossible to find a “second Russia” All these factors have led to the widespread talk of an energy crisis in Europe And the soaring Russia”. All these factors have led to the widespread talk of an energy crisis in Europe. And the soaring energy prices are a strong testament to this point of view So, is there an energy crisis in Europe? What has energy prices a strong to this point of view. So, there an energy in Europe? What has brought Europe to the current situation? And for Europe, where will the future lie? These questions are the Europe to the current situation? And Europe, where will the questions are the focus of this article, and the answers to them will be crucial not only for the EU but also for the world energy focus of this article, and the answers to them will be crucial not for the EU but also for the world energy pattern. pattern

II Is Europe in an Energy Crisis? II. Is Europe in an Energy Crisis?

The term “Energy Crisis” is explained by Collins English Dictionary as “a shortfall in or interruption to the The “Energy Crisis” is explained by Collins Dictionary as “a shortfall in or interruption to the provision of energy supplies”.(1) Looking back into history, the three oil crises in the late 20th century were provision of energy supplies” (1) Looking back into history, the three oil crises in the late 20th century were all caused by sudden disruptions in oil supply that led to a spike in international oil prices, thus causing a all caused by sudden disruptions in oil supply that led to a spike in international oil prices, thus causing a serious impact on the global economy. Then, what about the supply and demand of energy worldwide today? serious impact on the global economy. Then, what about the supply and demand of energy worldwide today? Taking natural gas for instance, it can be seen from Fig. 1 that, despite the upward trend in both production Taking natural gas for instance, it can be seen from Fig. 1 that, despite the upward trend in both production and consumption of natural gas, the production is sufficient to cover the consumption in most cases and there and of natural the production is sufficient to cover the consumption in most cases and there is no persistent global supply shortage. In Fig. 2, the production and consumption of oil over the last decade no persistent global supply shortage. In Fig. 2, the production and consumption of oil over the last decade also follow this trend. Therefore, in terms of existing production capacity only, there is not yet a massive also follow this trend Therefore, in terms of existing production capacity only, there is not yet a massive worldwide shortage of oil and gas. Considering the global energy market, the aggregate supply basically meets worldwide shortage of oil and gas Considering the global energy market, the aggregate supply basically meets the aggregate demand. the aggregate demand.

1 1 Energy crisis definition and meaning | Collins English Dictionary Energy crisis definition and meaning | Collins English Dictionary (n d ) Collins Dictionaries Retrieved June 30, (n d ) Collins Dictionaries Retrieved June 30, 2022, from https://www.collinsdictionary.com/dictionary/english/energy-crisis 2022, from https://www collinsdictionary com/dictionary/english/energy-crisis

Is

There

Is There an Energy Crisis in Europe? Causes and Prospects Is There an Energy Crisis Europe? Causes and Prospects

Chenchen Hao (Peking University, China) Chenchen Hao (Peking University, China)

Most of the previous energy crises were turmoil caused by geopolitical conflicts And that is why since the Most of the previous energy crises were turmoil caused by geopolitical conflicts. And that is why the Russia-Ukraine conflict, due to the rise in oil and gas prices, the phrase “Europe is in an energy crisis” has conflict, due to rise in oil and gas prices, the phrase “Europe in an energy become so widespread. However, it should be noticed that previous energy crises have often been “sudden” become so widespread However, it should be noticed that previous energy crises have often been “sudden” and “severe” in the sense that energy supply countries take the initiative to cut off their energy supplies. and “severe” in the sense that energy supply countries take the initiative to cut off their energy supplies Although it cannot be ruled out that Russia would fully use the “energy weapon” and cut off its gas supply to Although it cannot be ruled out that Russia would fully use the “energy weapon” and cut off its gas supply to Europe, Russia does have been reducing its energy supply to Europe However, just as Europe cannot find a Europe, Russia does have been reducing its energy supply to Europe. However, just as Europe cannot find a “second Russia” in a short time, Russia also needs time to develop its energy export markets And Europe has “second Russia” in a short time, Russia also needs time to develop its energy markets. And Europe has always been an important export market for Russian energy. The long-standing pipeline trade has led to a always an important export market for Russian energy. The long-standing trade has led to a strong interdependence between the two sides. In the case of natural gas (Fig. 3), if the energy supply to strong interdependence between the two sides In the case of natural gas (Fig. 3), if the energy supply to Europe was cut, exports to countries like India would require transportation in the form of liquefied natural Europe was cut, exports to countries like India would require transportation in the form of liquefied natural gas (LNG). That means Russia needs secondary processing of the gas instead of just delivering it through the gas (LNG). That means Russia needs secondary processing of the gas instead of just delivering it through the pipeline, which undoubtedly increases Russia’s cost of producing gas pipeline, which undoubtedly increases Russia’s cost of producing gas.

Is There an Energy Crisis in Europe? Causes and Prospects Is There an Energy Crisis in Europe? Causes and Prospects

Chenchen Hao (Peking University, China) Chenchen Hao (Peking University, China)

In addition, although countries will make different choices in their energy policies In addition, although countries will make different choices in their energy policies to protect their interests, to protect their interests, the energy crisis will impact the order of the global energy market and harm various economies At present, the energy crisis will impact the order of the global energy market and harm various economies. At present, the worldwide energy cooperation and dialogue mechanisms are still functioning, and the communication the worldwide energy cooperation and dialogue mechanisms are still functioning, and the channels between Russia and the EU are not completely closed, so the situation in Europe may usher in a new channels between Russia and the EU not completely closed, so the situation in Europe may usher in a new tturnaround urnaround.

The energy shortage and soaring energy prices in Europe today are not so much an energy crisis or a The energy shortage and soaring energy prices in Europe today are not so much an energy crisis or a precursor, but rather a microcosm of the normalization of energy shortage in the low-carbon era. As a strong precursor, but rather a microcosm of the normalization of energy in the low-carbon era As a strong advocate of environmentalism and low-carbon society, the EU has been accelerating its energy transition, and advocate of environmentalism and low-carbon society, the EU has been accelerating its energy transition, and the share of power generation from renewable energy sources such as wind, hydro, and solar energy in the the share of power generation from renewable energy sources such as wind, hydro, and solar energy in the overall energy mix is continuously increasing. However, compared to traditional fossil energy, these new overall energy mix continuously increasing. However, to traditional fossil energy, these new energy sources are often more sensitive to climate and natural conditions. Once there are problems with energy sources are more sensitive to climate and natural conditions. Once there are with renewable energy supply due to extreme weather, or sudden geopolitical events like the Russia-Ukraine renewable energy supply due to extreme or sudden geopolitical events like the Russia-Ukraine conflict, the energy shortages will become more severe, and price increases for oil and gas will follow. conflict, the energy shortages will become more severe, and increases for oil and gas will follow.

Although in general, the “energy crisis” in Europe does make European countries suffer and threatens the Although in general, the “energy crisis” in Europe does make European countries suffer and threatens the global energy market and even global economic stability, just as every coin has its two sides, it may also bring global energy market and even global economic stability, just as every coin has its two sides, it may also bring a “new opportunity” for European countries to coordinate energy issues and drive the EU to accelerate its a “new opportunity” for European countries to coordinate energy issues and drive the EU to accelerate its energy transition. energy transition

III Why is Europe in This Situation?

III. Why is Europe in This Situation?

Many argue that Europe's energy shortage is due to external causes. The first and foremost reason is the Many argue that Europe's energy shortage is due to external causes The first and foremost reason is the reduction of Russia’s supplies. There have been reviews like “European natural gas futures hit new highs as reduction of Russia’s supplies There have been reviews like “European natural gas futures hit new highs as Russian output dips”(2) and “European gas prices soar after Gazprom halts supplies to Poland and Russian output and “European gas prices soar after Gazprom halts supplies to Poland and Bulgaria”(3) .

2 2 European natural gas futures hit new highs as Russian output dips European natural gas futures hit new highs as Russian output dips (2021, September 7) World Oil RetrievedJune 30, 2022, from (2021, September 7) World RetrievedJune 30, 2022, from https://www worldoil com/news/2021/9/7/european-natural-gas-futures-hit-new-highs-as-russian-output-dips https://www worldoil com/news/2021/9/7/european-natural-gas-futures-hit-new-highs-as-russian-output-dips

3 Astrasheuskaya, N (2022, April 27) 3 Astrasheuskaya, N (2022, April 27) European gas prices soar after Gazprom halts supplies to Poland and Bulgaria European gas prices soar after Gazprom halts supplies to and Bulgaria

Financial Times Financial Times Retrieved June 30, 2022, from https://www ft com/content/a2eea1a1-f72a-43c4-aa93-4e5477b5ead4 Retrieved June 30, 2022, from https://www ft com/content/a2eea1a1-f72a-43c4-aa93-4e5477b5ead4

Is There an Energy Crisis in Europe? Causes and Prospects Is There an Energy Crisis Europe? Causes and Prospects

Chenchen

Hao (Peking University, China) Chenchen Hao (Peking University, China)

Even the Even the International Energy Agency has claimed that “Russia is orchestrating Europe’s gas crisis, says International Energy Agency has claimed that “Russia orchestrating Europe’s gas crisis, says energy agency boss”(4) . Besides, Asia’s rush for LNG and the frequent occurrence of extreme natural energy agency boss”(4) . Besides, Asia’s rush for LNG and the frequent occurrence of extreme natural disasters have also been considered the external causes of Europe's energy shortage. Meanwhile, some disasters have also been considered the external causes of Europe's energy shortage. Meanwhile, some scholars believe that Europe's current energy crisis is more of an inevitable result of market reform programs scholars believe that Europe's current energy crisis is more of an inevitable result of market reform programs by European governments rather than outcomes of external factors.(5) In fact, Europe's current energy by European governments rather than outcomes of external factors.(5) In fact, Europe's current energy shortage situation is triggered by a confluence of external and internal factors.(6) But compared with the many shortage situation is triggered by a confluence of external and internal factors (6) But compared with the many uncontrollable external factors, discussing the internal factors that triggered the energy shortage in Europe uncontrollable external factors, discussing the internal factors that triggered the energy shortage in Europe may be more enlightening for the European governments. may be more enlightening for the European governments

Overall, the energy shortage in Europe is constrained by three factors: equipment, institutions, and Overall, the energy shortage in Europe is constrained by three factors: equipment, institutions, and perceptions perceptions.

In terms of equipment, the pipeline trade between Russia and Europe since the Soviet era has left Europe In terms of equipment, the pipeline trade between Russia and Europe since the Soviet era has left Europe with a lack of LNG-related infrastructure. For example, Germany did not have an LNG receiving terminal on with a lack of LNG-related infrastructure For example, Germany did not have an LNG receiving terminal on its territory until then, and its construction cycle is three to five years. In other words, even if Germany could its territory until then, and its construction cycle is three to five years In other words, even if Germany could find an alternative gas supplier to Russia, the lack of supporting infrastructure limits Germany's options and find an gas to Russia, the lack of supporting infrastructure limits Germany's options and prevents it from moving away from the energy dependence on Russia in a short time. prevents it from away from the energy dependence on Russia in a short time.

In terms of institutions, the EU's three main goals in the energy sector are “decarbonization, marketization terms of institutions, the EU's three main goals in the energy sector are “decarbonization, marketization and energy security”. However, the specific policies to achieve these three goals are often contradictory when and energy security”. However, the specific policies to achieve these three goals are often contradictory when implemented.(7) Once the EU does not find a balance between the three, energy shortages will follow. implemented.(7) Once the EU does not find a balance between the three, energy shortages will follow.

For the radical decarbonization, the EU's aggressive new energy policies have made its energy system less For the decarbonization, EU's aggressive new energy policies have made its energy system resilient and more vulnerable. In response to the global climate problem, the EU has been committed to resilient and more vulnerable. In response to the global climate problem, the EU has been committed to enacting various policies to promote energy transition While these policies have made some achievements, enacting various policies to promote energy transition. While these policies have made some achievements, energy companies lack confidence in fossil energy investment, so funds are transferred to new energy energy companies lack confidence fossil energy so funds transferred to new energy investments However, the development and technology of new energy are not advanced enough to fill the gap investments. However, the development and technology of new energy are not advanced enough to fill the gap left by fossil energy, which will increase the vulnerability of the existing energy system At the same time, the left by fossil which will the vulnerability of the existing energy system. At the same the EU's low carbon policy will make more companies choose less carbon-intensive gas, further stimulating the EU's low carbon policy will make more companies choose less carbon-intensive gas, further stimulating the rise of natural gas demand rise of natural gas demand.

The EU’s marketization of natural gas has caused dramatic volatility in natural gas prices.(8) While the The EU’s marketization of natural gas has caused dramatic volatility in natural gas prices (8) While the “decarbonization” has led to a significant increase in Europe’s demand for natural gas in recent years, the EU's “decarbonization” has led to a significant increase in Europe’s demand for natural gas in recent years, the EU's marketization has reinforced the impact of the relationship between supply and demand on natural gas prices has reinforced the impact of relationship between supply on natural gas and increased the riskiness of the European gas market. and increased riskiness of the European gas market.

4 Ambrose, J. (2022, January 12)

4 Ambrose, J. (2022, 12) Russia is orchestrating Europe’s gas crisis, says energy agency boss Russia is orchestrating Europe’s gas crisis, says energy agency boss. The . The Guardian. Retrieved June 30, 2022, from https://www.theguardian.com/business/2022/jan/12/russia-europe-gas- Guardian. Retrieved June 30, 2022, from https://www.theguardian.com/business/2022/jan/12/russia-europe-gascrisis-international-energy-agency-boss

5 Bordoff, J. (2022, February)

5 Bordoff, J. February). Don’t Blame Putin for Europe’s Energy Crisis Don’t Blame Putin Europe’s Energy Crisis. Foreign Policy . Foreign Policy.

6 Popkostova, Y. (2022, January)

6 Popkostova, Y. January) Europe’s Energy Crisis Conundrum: Origins, impact and way forward Europe’s Energy Crisis Conundrum: Origins, impact way forward (No. 2) (No. 2)

European Union Institute for Security Studies BRIEF.

European Union Institute for Security Studies BRIEF

7 Moshenets, I. (2021). THE POLITICAL CONTESTATION OF NORD STREAM PROJECT:

7 Moshenets, I. (2021). THE POLITICAL CONTESTATION OF NORD STREAM PROJECT: MULTIDIMENSIONAL ANALYSIS MULTIDIMENSIONAL ANALYSIS Scientific Journal of Polonia University Scientific Journal of Polonia University, 45(2), 208-218 , 45(2), 208-218

8 Bordoff, J. (2022, February)

8 Bordoff, J. (2022, February) Don’t Blame Putin for Europe’s Energy Crisis Don’t Blame Putin Europe’s Energy Crisis. Foreign Policy . Foreign Policy

Is There an Energy Crisis in Europe? Causes and Prospects Is There an Energy Crisis in Europe? Causes and Prospects

Chenchen Hao (Peking University, China) Chenchen Hao (Peking University, China)

Although the EU's initial push for gas marketization reform has somehow shifted the European gas market Although the EU's initial push for gas marketization reform has somehow shifted the European gas market from the traditional Russian monopoly to a competitive and international one, increasing the European energy from the traditional Russian monopoly to a competitive and international one, increasing the European energy companies’ bargaining power with Russia (9) and benefiting EU countries in terms of gas prices, this has also companies’ bargaining power with Russia and benefiting EU countries in terms of gas prices, this has also made it costly for them to attract more gas supplies when demand exceeds supply in the gas market. made it costly for them to attract more gas supplies when demand exceeds supply in the gas market

As for energy security, increasing the diversity of energy imports, reducing energy dependence on Russia, As for energy security, increasing the diversity of energy imports, reducing energy dependence on Russia, and maintaining its energy security has always been the important direction of the EU's energy policy and maintaining its energy security has always been the important direction of the EU's energy policy. However, on the one hand, due to the different degrees of energy dependence on Russia (Fig 4) and the However, on the hand, due to the different degrees of energy dependence on Russia (Fig. 4) and the different energy structures and resource endowments of each country, it is always difficult to reach a different energy structures and resource endowments of each country, always difficult to reach a consensus within the EU, so the reform initiatives become difficult and the corresponding energy policies lack consensus within the EU, so the reform initiatives become difficult and the corresponding energy policies lack coherence. On the other hand, with the general rise in global energy demand, the EU's choice to maintain its coherence. On the other hand, with the general rise in global energy demand, the EU's choice to maintain its energy security and reduce energy trade with Russia will inevitably entail greater economic costs. energy security and reduce energy trade with Russia will inevitably entail greater economic costs.

At the conceptual level, the response to the energy crisis cannot rely solely on the efforts of the government At the conceptual level, the response the energy crisis cannot rely solely on the efforts of the government but requires the synergy of the government, energy companies and the public On the one hand, as an but requires the synergy of the government, energy and the public. On the one hand, as an important part of the energy market, European energy companies are often unable to play a role in energy part of the energy market, European companies are often unable play a role in energy market turmoil, and the energy security relies more on governments to maintain through diplomatic means market turmoil, and the energy security relies on governments maintain through diplomatic means. Although the property rights system affects the country’s methods of maintaining energy security and the cost Although the property rights system affects the country’s methods of maintaining energy and the cost of government disposal (10), most European energy companies are privately owned and have high autonomy, of government disposal (10), European energy are privately owned and have high autonomy, making it difficult for the government to use their power to curb rising domestic energy prices and protect the making it difficult for the government to use their power to curb rising domestic energy prices and protect the country's energy supply country's energy supply. 9 Jingyun, F (2018) Analysis on the game of natural gas pricing power between Russia and Europe (俄欧天然⽓ 9 Jingyun, F (2018) Analysis on the game of natural gas pricing power between Russia and Europe (俄欧天然⽓ 定价

Is There an Energy Crisis in Europe? Causes and Prospects Is There an Energy Crisis Europe? Causes and Prospects

Chenchen Hao (Peking University, China) Chenchen Hao (Peking University, China)

But the government can still strengthen the supervision of But the government can still strengthen the supervision of enterprises to change their concept so that they can enterprises to change their concept so that they can play a greater role in the energy market turmoil On the other hand, the response to the crisis cannot be play greater role in the energy market turmoil. On the other hand, the response to the crisis cannot be achieved without the cooperation of the public. Starting from the demand side and promoting people’s energy achieved the cooperation of the public. Starting from demand side and promoting people’s energy use efficiency can also improve the supply-demand relationship to some extent. use efficiency can also improve the relationship to some extent

IV. Where Will the Future Lie? IV. Where Will the Future Lie?

Indeed, due to the limited nature of global fossil fuels, energy shortages are bound to occur someday in the Indeed, due the limited nature of global fossil fuels, energy shortages are bound to occur someday in the future, if not now. Against this background, today's energy crisis will bring stronger impetus for further if not now. Against this background, today's energy crisis will bring stronger impetus for further energy transition and energy reform in the EU. Although the EU is difficult now on the road to the energy energy transition and energy reform in the EU the EU is difficult now on the road to the energy transition and “energy crisis” is so frequent, the EU’s active attempts in the energy transition and energy transition and “energy crisis” is so frequent, the EU’s active attempts in the energy transition and energy independence are more important themselves. With the EU’s efforts, the share of renewable energy in the independence are more important themselves. With the EU’s efforts, the share of renewable energy in the overall energy structure has been increasing, and carbon emissions have been effectively controlled. Then, overall energy structure has been increasing, and carbon emissions have been effectively controlled. Then, how can Europe improve the existing situation further? According to the three constraints of artifacts, how Europe improve the situation further? According to the three constraints of artifacts, institutions and perceptions mentioned above, it may be possible to start improving from these three aspects. institutions and mentioned above, may be possible to start improving from these aspects. In the short term, starting from the institutional level, strengthen the supervision of domestic energy In the short term, starting from the institutional level, strengthen the supervision of domestic energy companies through the institution system and improve the ability to collaborate between government and companies through the institution system and improve the ability to collaborate between government and enterprises to respond to the crisis, while considering the energy transition and building the resilience of the enterprises to respond to the crisis, while considering the energy transition and building the resilience of the domestic energy system to give confidence to fossil energy investors Besides, it is important to establish the domestic energy system to give confidence to fossil energy investors. Besides, it important to establish the sequence of the objectives of energy reforms within the EU to ensure institutional coherence in energy of the objectives of energy reforms within the EU ensure institutional coherence in energy reforms. In the medium and long term, for equipment, the EU should strengthen the construction of LNG In the medium and term, equipment, EU should strengthen the construction of LNG receiving terminals, supporting infrastructure and energy storage facilities, as well as the interconnection of receiving terminals, supporting infrastructure and energy storage facilities, as well as the interconnection of energy infrastructures within Europe. At the conceptual level, the EU should strengthen domestic energy infrastructures within Europe At the conceptual level, the EU should strengthen domestic collaboration between governments, enterprises, and the public, increase the international diversity of natural collaboration between governments, enterprises, and the public, increase the international diversity of natural gas imports (11) , strengthen cooperation with other countries in the field of new energy and accelerate the gas imports (11) , strengthen cooperation with other countries in the field of new energy and accelerate the development of related technologies Although the road to energy transition is long and difficult, still with the development of related technologies. Although the road to energy transition is long and difficult, still with the concerted efforts, the European Union once united by energy will be renewed and Europe will be revitalized! concerted efforts, European Union once by energy will be renewed and Europe will be revitalized!

11 International Energy Agency (2022, March 3) A 10-Point Plan to Reduce the European Union’s Reliance on A 10-Point Plan to Reduce the Union’s Reliance on Russian Natural Gas – Analysis Russian Natural Gas – IEA Retrieved June 30, 2022, from https://www iea org/reports/a-10-point-plan- . IEA. Retrieved 30, 2022, from https://www.iea.org/reports/a-10-point-plantto-reduce-the-european-unions-reliance-on-russian-natural-gas o-reduce-the-european-unions-reliance-on-russian-natural-gas

11 International Energy Agency (2022, March 3)

Is Clean Energy Really Clean? Is Clean Energy Really Clean?

The Challenge of No Net Loss in the EU Energy Transition The Challenge of No Net Loss in the EU Energy Transition

Francesca Leucci (Università di Bologna, Italy) Francesca Leucci (Università di Bologna, Italy)

Abstract Abstract

The need to transit to cleaner sources of energy has never been so urgent as in present times. EU Member The need to transit to cleaner sources of energy has never been so urgent as in present times EU Member States are rapidly undergoing regulatory changes to speed up administrative procedures and grant permits for States are rapidly undergoing regulatory changes to speed up administrative procedures and grant permits for producing solar and wind energy. While this is happening at an unprecedented pace, the parallel mandate of producing solar and wind energy. While this is happening at an unprecedented pace, the parallel mandate of the EU in terms of biodiversity protection needs to be taken into account in order to minimise negative the EU in terms of biodiversity protection needs to be taken into account in order to negative impacts of renewable energy projects and preserve the healthy status of habitats and species throughout of renewable energy projects and preserve the healthy status of habitats and species throughout Europe This is not a less important task considering the key role of biodiversity for human and ecological Europe. This not less important task considering the key role of biodiversity for human and ecological health. Indeed, the EU already committed to halt the loss of biodiversity loss with its Biodiversity Strategy of health. Indeed, the EU already committed to halt loss of biodiversity loss its Biodiversity Strategy of 2020 and that mandate has been renovated under the Biodiversity Strategy 2030. The aim of this paper is 2020 and that mandate been renovated under the Biodiversity Strategy 2030 The aim of this paper is therefore threefold. First, it wishes to illustrate how the European Commission envisages the EU No Net Loss therefore threefold First, it wishes to illustrate how the European Commission envisages the EU No Net Loss initiative within the framework of the Biodiversity Strategy. Secondly, it investigates whether and how this initiative within the framework of the Biodiversity Strategy Secondly, it investigates whether and how this goal is currently integrated in the decision-making of projects for clean energy production, with a special goal is currently integrated in the decision-making of projects for clean energy production, with a special focus on offshore wind farms. The EU has indeed issued mitigation hierarchy guidelines to align transition to focus on offshore wind farms. The EU has indeed issued mitigation hierarchy guidelines to align transition to clean energy and biodiversity conservation Yet, their non-binding nature further sharpened by scientific clean energy and biodiversity conservation. their non-binding nature further sharpened by scientific uncertainty might hamper the search of no net loss in the energy transition In light of that, the third aim of might hamper the search of net loss in the energy transition. In light of that, the third aim of this paper is to propose possible ways forward, such as more research on the state of ecosystems, on this paper to propose possible forward, such as research on the state of ecosystems, on biodiversity hotspots and more training for decision-makers, including judges. biodiversity hotspots and for decision-makers,

Rationale Rationale

Offshore wind farms (OWFs) can significantly alter local ecological functions by reshuffling species

Offshore wind farms can significantly alter local ecological functions by reshuffling species distribution patterns1 and provoking marine habitat losses, disturbances and degradation. Scientists have distribution patterns1 and provoking marine habitat losses, disturbances and degradation Scientists have particularly analysed patterns of attraction, avoidance and habitat use at different spatial scale (wind farm- particularly analysed patterns of attraction, avoidance and habitat use at different spatial scale farmscale, turbine-scale and micro-habitat scale) and across various ecosystem components (marine mammals, scale, turbine-scale and micro-habitat scale) and across various ecosystem components (marine mammals, seabirds, fish and benthic invertebrates). Based on these studies, marine mammals (e.g., the harbor porpoises seabirds, fish and benthic invertebrates) Based on these studies, marine mammals (e g , the harbor porpoises Phocoena phocoena Phocoena phocoena) have been shown to avoid areas with excessive sound levels, such as OWF construction ) have been shown to avoid areas with excessive sound levels, such as OWF construction areas and especially pile driving locations (2). Likewise, seabirds change their habits due to visual disturbance areas and especially pile driving locations (2) Likewise, seabirds change their habits due to visual disturbance induced by the turbines and the high rate of collision-induced mortality (May 2015). On the other hand, induced by the turbines and the high rate of collision-induced mortality (May 2015) On the other hand, certain species of fish (e.g., harbor seals certain species of fish (e g , harbor seals Phoca vitulina Phoca vitulina) are more attracted by growing amounts of food close ) are more attracted by growing amounts of food close to turbines. While the existence of attraction and avoidance seems to be unavoidable, the extent of associated to turbines While the existence of attraction and avoidance seems to be unavoidable, the extent of associated ecological consequences down the food web through small scale effects on habitat use and provision depends ecological consequences down the food web through small scale effects on habitat use and provision depends on the size of wind farms. Clearly, the larger the farm’s size, the higher the avoidance and attraction effects. on the size of wind farms Clearly, the larger the farm’s size, the higher the avoidance and attraction effects Moreover, adjacent OWFs are likely to produce substantial cumulative impacts on species distribution patterns Moreover, OWFs are likely to produce substantial cumulative impacts on species distribution patterns (3). In addition, migrating birds are at risk of collision with wind turbines when flying at rotor height (4) and (3) In addition, migrating birds are at risk of collision with wind turbines when flying at rotor and further environmental responses of soft sediment fish might arise in specific sites (5). further environmental responses of soft sediment fish might arise in specific sites (5)

1 Degraer et al. Environmental Impacts of Offshore Wind Farms in the Belgian Part of the North Sea, 2021.

1 Degraer et al. Environmental Impacts of Offshore Wind Farms in the Belgian Part of the North Sea, 2021.

2 It seems indeed that lacking mitigation measures, marine mammals risk to be killed, injured and disturbed by 2 seems indeed lacking mitigation measures, marine mammals risk to be killed, injured disturbed by high levels of underwater sound during pile driving (Rumes & Zupan, ibid 20ss) high levels of underwater sound during pile driving (Rumes & Zupan, ibid 20ss)

3 Ibid 7 3 Ibid 7

4 Studies found that the risk of collision is specifically high at night, under worser weather conditions and during migration. Idling wind turbines

4 Studies found that the risk of collision is specifically high at night, under worser weather conditions and during Idling wind turbines when the flux of birds exceeds certain thresholds showed considerable improvements in the number of collisions (Brabant et al., ibid 47ss) when the flux of birds exceeds certain thresholds showed considerable improvements in the number of collisions (Brabant et al., ibid 47ss)

5 See Van Hoey, G. et al., 2021 5 Van Hoey, G. et al., 2021

Is Clean Energy Really Clean? Is Clean Energy Really Clean?

The Challenge of No Net Loss in the EU Energy Transition The Challenge of No Net Loss in the EU Energy Transition

Francesca Leucci (Università di Bologna, Italy) Francesca Leucci (Università di Bologna, Italy)

Unluckily, all these effects have been poorly investigated. Information Unluckily, all these effects have investigated. Information about them can be only achieved after about them can be achieved many years of monitoring over permitted farms. Moreover, mitigation measures that should internalize many years of monitoring over farms. Moreover, mitigation measures that should internalize environmental costs of renewable energies are not always compulsory. With this contribution I wish to unveil environmental of renewable energies are not always compulsory. With this contribution I wish unveil the current legal framework in the EU, assess whether the transition to climate neutrality is also in line with the current legal framework in the EU, assess whether the transition to climate neutrality is also in line with biodiversity goals and suggest how the convergence between these goals might be improved biodiversity goals and suggest how the between these goals might be improved.

The global consequences of biodiversity loss The global consequences of biodiversity loss

First and foremost, the reader should be made aware of what biodiversity means for scientists Biodiversity First and foremost, the reader should be made aware of what biodiversity for scientists. Biodiversity can be defined as the diversity of life on Earth (Isbell 2010) or the variety within and between all species of can be defined as the diversity of life on Earth (Isbell 2010) or the variety within and between all species of plants, animals and micro-organisms and the ecosystems in which they interact It consists of richness plants, animals and micro-organisms and the ecosystems which they interact. It of richness (quantity), evenness (equity in richness) and diversity (composition of species, groups and ecosystems) While (quantity), evenness (equity richness) and diversity (composition of species, groups and ecosystems). While there is increasing evidence that biodiversity is declining throughout the globe, scientists proved the linkage there is increasing evidence that biodiversity is declining throughout the globe, scientists proved the linkage between biodiversity and healthy functioning of ecosystems (Naeem et al 2009) (6), hence implying that a between biodiversity and healthy functioning of ecosystems (Naeem al. 2009) (6), hence implying that a loss in biodiversity is likely to negatively affect either the ecosystem productivity or stability. For this reason, loss in biodiversity is likely to negatively affect either the ecosystem productivity or stability. For this reason, maintaining biodiversity has become so crucial and it can be pursued by facilitating certain natural processes, maintaining biodiversity has become so crucial and it can be pursued by facilitating certain natural processes, such as resource partitioning (McKane et al. 2002) (7), by implementing specific human actions (e.g., creation such as resource partitioning et al. 2002) (7), by implementing specific human actions (e.g., creation of biodiversity hotspots, parks) or halting anthropogenic processes that can determine considerable of biodiversity hotspots, parks) or halting anthropogenic processes that can determine considerable biodiversity loss, such as land use change, exotic species invasions and climate change (Butchart et al. 2010, biodiversity loss, such as land use change, exotic species invasions and climate change et al 2010, Chapin et al. 2000) (8). Chapin et al 2000) (8)

The EU Biodiversity Strategy The EU Biodiversity Strategy

Preliminarily, it must be pointed out that the European Commission (EC) is among all European institutions Preliminarily, it must be pointed out that the European Commission (EC) is among all European institutions the one playing an active role in developing the EU’s overall strategy, designing (proposing laws) and the one playing an active role in developing the EU’s overall strategy, designing (proposing laws) and monitoring the implementation of policies (Article 17, Treaty on European Union, TEU). Every five years, at monitoring the implementation of policies (Article 17, Treaty on European Union, TEU) Every five years, at the beginning of a new Commission term, the President of the EC also determines the political priorities for the beginning of a new Commission term, the President of the EC also determines the political priorities for the upcoming term (9). Then, the Commission sets down an annual work programme to convert priorities into the upcoming term (9) Then, the Commission sets down an annual work programme to convert priorities into concrete policies. However, the path towards the adoption of a new policy or law is quite long (10) and it concrete policies However, the path the adoption of a new policy or law is quite long (10) and it usually starts with a roadmap, followed by an impact assessment to examine the potential economic, social usually starts a roadmap, followed by an impact assessment to examine the potential economic, social and environmental consequences of that proposal, a public consultation to gather inputs from the public and and consequences of that proposal, a public consultation to inputs the and stakeholders, and a final Communication. If, in the end, the EC decides that a legislative action is needed, then a Communication. in the end, the EC decides that a legislative action needed, then a formal legislative procedure is launched, which also involves the EU Parliament and Council as co- a formal legislative procedure is launched, which also involves the EU Parliament and Council as collegislators egislators.

6 Particularly, scientists have carried out lab experiments to test whether a change in some components of

6 Particularly, scientists have carried out lab experiments to test whether a change in some components of biodiversity, such as the number of species, can affect specific properties of ecosystem functioning. They biodiversity, such as the number of can affect specific properties of ecosystem functioning. They concluded that the ecosystem stability is a function of species richness, composition and genetic diversity (Naeem concluded that the ecosystem stability is a function of species richness, composition and genetic diversity (Naeem et al 2009) et al. 2009).

7 Resource partitioning means that species use different resources. For instance, in the tundra different plant

7 Resource partitioning means that species use different resources. For instance, in the tundra different plant species coexist because they use different sources of nitrogen or they use the same source but at coexist because they use different sources of nitrogen or they use the same source but at

8 These have been considered to be the most influential among the anthropogenic pressures that can influence 8 have been considered to be most among anthropogenic pressures can influence biodiversity biodiversity

9 The six EC’s priorities for 2019-2024 can be seen at https://ec europa eu/info/strategy en. They include, for 9 six priorities 2019-2024 can be seen at https://ec europa eu/info/strategy en. include, for instance, the Green Deal, the digital age and democracy the Green Deal, the digital age and democracy 10 https://ec europa eu/info/law/law-making-process/planning-and-proposing-law en https://ec europa eu/info/law/law-making-process/planning-and-proposing-law en

Is Clean Energy Really Clean? Is Clean Energy Really Clean?

The Challenge of No Net Loss in the EU Energy Transition The Challenge of No Net Loss in the EU Energy Transition

Francesca

Leucci (Università di Bologna, Italy)

Francesca Leucci (Università di Bologna, Italy)

EU laws might take the shape of a EU laws might take the shape of a binding or non-binding act. Binding acts are ‘regulations’, which must be binding or act acts are ‘regulations’, which must be applied to the entire EU, and ‘directives’, setting out binding goals while leaving Member States free to applied to the entire EU, and ‘directives’, setting out binding goals while leaving Member States free to choose how to reach them. Non-binding acts are ‘decisions’ addressed to specific cases and choose how to reach them acts are ‘decisions’ addressed to specific cases and ‘recommendations’ to countries’ authorities, both adopted by the EC. to countries’ authorities, adopted by In view of halting and reversing the biodiversity loss, the European Commission in 2011 adopted the so-called In view of halting and reversing the biodiversity loss, the European Commission in 2011 ‘Biodiversity Strategy to 2020’. It mentioned the need to establish green infrastructures and restore at least ‘Biodiversity Strategy 2020’. It to establish green and restore at least 15% of degraded ecosystems by 2020 (Target 2). That was in line with the previous objectives of both the of degraded by 2020 (Target 2). That was in line with the previous objectives of both the Habitats and the Birds Directive provisions (maintaining the favourable conservation status of species, habitats Habitats and the Birds Directive provisions (maintaining the favourable conservation status of species, habitats and birds) but it wished to enlarge their scope to all ecosystems The new ‘Biodiversity Strategy 2030’ has and birds) but it wished to enlarge their scope to all ecosystems. The new ‘Biodiversity Strategy 2030’ has been adopted in May 2020 to restate and reinforce previous commitments It distinguishes itself from the been adopted May 2020 to restate and reinforce previous commitments. It distinguishes itself from the previous Communication of 2011 by establishing a Trans-European Nature Network of protected areas to previous Communication of 2011 by establishing a Trans-European Network of protected areas to cover 30% of EU land and EU seas, a EU Nature Restoration Plan with binding targets (11) and a set of cover 30% of EU land and seas, a EU Nature Restoration Plan with binding targets (11) and a of measures to enable a ‘transformative change’(12) which includes better tracking, knowledge base and to enable a ‘transformative change’(12) which includes better tracking, knowledge base and financing The overarching goal of the EU Biodiversity Strategy 2030 is to prioritize biodiversity throughout financing. The overarching goal of the EU Biodiversity Strategy 2030 to prioritize biodiversity throughout the other EU policies, including economic recovery from the pandemic and external actions. The figure below the other EU policies, including economic recovery from the pandemic and external actions. The figure below summarises the main steps in the EU biodiversity policies. summarises the main steps in the EU biodiversity policies.

The No Net Loss Initiative The No Net Loss Initiative

Within the 2011 EU Biodiversity Strategy to 2020, Action 7 was meant to support Target 2 (restoring Within the 2011 EU Biodiversity Strategy to 2020, Action 7 was meant to support Target 2 (restoring biodiversity) by ensuring ‘ by ensuring ‘ no net loss of biodiversity and ecosystem services no net loss of biodiversity and ecosystem services’ , and, more specifically, through ’ , and, more the development of a methodology to assess the impact of EU-funded projects, plans and programmes on the development of a methodology to assess the impact of projects, plans and programmes on biodiversity (Action 7.a). biodiversity (Action 7.a). ‘No net loss’ means that “ ‘No net loss’ means that “ a loss of biodiversity in one geographically or otherwise identified area needs to be a loss of biodiversity in one geographically or otherwise identified area needs to be counterbalanced by a gain elsewhere, so that impairments of existing biodiversity are avoided counterbalanced by a gain elsewhere, so that impairments of existing biodiversity are avoided” (13). After the ” (13) After the release of the 2011 Strategy, both the EU Council and the EU Parliament gave particular impetus to the “No release of the 2011 Strategy, both the EU Council and the EU Parliament gave particular impetus to the “No Net Loss” (NNL) principle. Particularly, the former invited the Commission to prepare the envisaged initiative Net Loss” (NNL) principle Particularly, the former invited the Commission to prepare the envisaged initiative on NNL by considering existing experiences in the Member States, launching in-depth discussions with on NNL by considering existing experiences in the Member States, launching in-depth discussions with stakeholders and laying the foundations for a common approach (14). stakeholders and the foundations for a common approach (14)

11 Their adoption was scheduled in March 2021, but it was postponed to June 2021 due to the recent war outbreak.

11 Their adoption was scheduled in March 2021, but it was postponed to 2021 due to the recent war outbreak.

12 This expression was launched by the IPBES Global Assessment of 2019.

12 This expression was launched by the Global Assessment of 2019.

13 Draft Conclusions of the Council of the EU, 18374/11, p. 8, footnote 12.

13 Draft Conclusions of the Council of EU, 18374/11, p. 8, footnote 12.

14 Ibid p. 8, par. 20 14 Ibid p. 8, par. 20

Is Clean Energy Really Clean? Is Clean Energy Really Clean?

The Challenge of No Net Loss in the EU Energy Transition The Challenge of No Net Loss in the EU Energy Transition

Francesca Leucci (Università di Bologna, Italy)

Francesca Leucci (Università di Bologna, Italy)

In the wake of that, a NNL Working In wake of that, a NNL Working Group produced reports on ‘Scope and objectives of the no net loss Group produced reports on ‘Scope and objectives of the no net loss initiative’ and a public consultation was held in 2014 (15). Later on, in 2019 the Commission published a initiative’ and a public was in 2014 (15). Later on, in 2019 Commission a Guidance on the integration of ecosystems and their services into decision-making on the integration of ecosystems and their services into decision-making that, based on the that, based on the widevariety of benefits flowing from natural resources to humans, provided the tools to assess and integrate widevariety of flowing natural resources to provided the tools to assess and integrate these benefits in policy-making. Indeed, various policies might help achieve the NNL. these benefits in policy-making. Indeed, various might help NNL.

The most common approach is to set it as a goal when designing projects (e.g., oil and gas pipeline, windfarm, The most common approach is to set it as a goal when designing projects (e.g., oil and gas pipeline, windfarm, dam, highway or housing development). In addition, companies might try to achieve the goal along the value dam, highway or housing development). In addition, companies might try to achieve the goal along the value chain or by diversifying their portfolios. chain or by diversifying their portfolios

The mitigation hierarchy The mitigation hierarchy

When it comes to projects, the convergence between climate neutrality and biodiversity conservation should When it comes to the between climate neutrality and biodiversity conservation should be pursued from the very early stages of project development Scientists specifically recommend to follow a be pursued from the early stages of project development. Scientists specifically recommend to follow a rigorous approach in the decision-making, better known as Mitigation Hierarchy (hereinafter, MH) or ‘avoid- rigorous approach in the decision-making, better known as Mitigation Hierarchy (hereinafter, MH) or ‘avoidreduce-restore-compensate’, where: reduce-restore-compensate’, where: a) ‘avoidance’, as first step, refers to all measures taken to avoid impacts from the outset, such as avoiding a) ‘avoidance’, as first step, refers to all taken to avoid impacts from the outset, such as avoiding areas with sensitive species or threatened habitats; areas with sensitive species threatened habitats; b) ‘minimisation’, as second step, concerns the reduction of duration, intensity and extent of negative impacts b) ‘minimisation’, as second step, concerns the reduction of duration, intensity and extent of negative impacts that cannot be fully avoided; that cannot be fully avoided; c) ‘restoration’ is the rehabilitation of degraded ecosystems as a result of impacts that cannot be either avoider c) ‘restoration’ is the rehabilitation of degraded ecosystems as a result of impacts that cannot be either avoider or minimized; or minimized; d) lastly, ‘compensation’ or ‘offset’ refers to the measures taken to compensate residual adverse consequences d) lastly, ‘compensation’ or ‘offset’ refers to the measures taken to compensate residual adverse consequences that could not be avoided, minimized and restored. that could not be avoided, minimized and restored

The figure below illustrates how the various steps play a role in order to reduce the diminution in biodiversity The figure below illustrates how the various steps play a role in order to reduce the diminution in biodiversity value (BBOP 2018): value (BBOP

15 https://ec.europa.eu/environment/nature/biodiversity/nnl/results en.htm 15 https://ec.europa.eu/environment/nature/biodiversity/nnl/results en.htm

Is Clean Energy Really Clean? Is Clean Energy Really Clean?

Francesca Leucci (Università di Bologna, Italy)

Francesca Leucci (Università di Bologna, Italy)

Each bar in the figure refers to a possible policy implementing a certain combination of steps, Each bar in the figure refers to a possible policy a certain combination of steps, ranging from a ranging from a zero implementation of the MH (first bar on the left, max impact on biodiversity value) to offsetting with zero of the MH (first bar on the left, max impact on biodiversity value) to with additional conservation actions (last bar on the right, no net loss with further biodiversity gain). Between these additional conservation actions (last bar on the right, no net loss further biodiversity gain) Between these two extremes, there might be a wide variety of policies that progressively reduce the impact on biodiversity by two extremes, be a variety of that progressively impact on biodiversity by adopting only avoidance measures or avoidance plus minimisation measures, or even by combining adopting only measures or avoidance plus minimisation measures, or even by avoidance, minimisation and restoration. Indeed, all these measures allow to preserve and maintain more minimisation and restoration. Indeed, all measures allow to preserve and maintain more biodiversity value (vertical axis). biodiversity value (vertical axis). To sum up, the goal of the MH is to help policy-makers with wiser land-use planning and commissioning of To sum up, the goal of the MH to help policy-makers with wiser land-use planning and commissioning of infrastructures and also project developers with managing risk Therefore, it makes sense to clarify its role for infrastructures and also project developers with managing risk. Therefore, it makes sense to clarify its role for the development of offshore wind farms that can potentially threaten biodiversity the development of offshore wind farms that can potentially threaten biodiversity.

OWFs at the crossroad between biodiversity and climate change OWFs at the crossroad between biodiversity and climate change

The MH has been originally recommended by scientists and endorsed by the EC through The MH has been originally recommended by and endorsed by the EC through non- binding non- binding acts, acts, such as the 2011 guidance on wind energy and Natura 2000 (16) However, given the considerable such as the 2011 guidance on wind energy and Natura 2000 (16). However, given the considerable development of EU policies on renewable energy, especially wind energy at sea, the EC revised that guidance development of EU policies on renewable especially wind energy at sea, the EC revised that guidance in 2020 (17) The new document has been added to the series of sector-specific guidelines for developing 2020 (17). The new document has been added to the series of sector-specific guidelines for developing energy facilities and non-energy extractive industries in accordance with EU Nature legislation, namely the facilities and non-energy extractive industries in accordance with EU Nature legislation, namely the Birds and Habitats Directive (18) The goal is to gather the knowledge available about the impact of Birds and Habitats Directive (18). The goal to gather the knowledge available about the impact of windfarms on biodiversity and provide good practices to address it Its focus is on pre-construction, windfarms on biodiversity and provide good practices to address it. Its focus on pre-construction, construction, operation and decommissioning of electricity generation The guidance particularly stresses the construction, operation and decommissioning of electricity generation. The guidance particularly stresses the need to address biodiversity concerns in the early stages of project assessment, especially in spatial planning. need to address biodiversity concerns in the early stages of project assessment, especially in spatial planning. Ideally, spatial plans should list suitable locations based on their ecological risk and, in this way, help foresee Ideally, spatial plans should list suitable locations based on their ecological risk and, in this way, help foresee specific mitigation measures when projects occur in high-ecological-risk areas. Moreover, wildlife sensitivity specific mitigation measures when projects occur in high-ecological-risk areas. Moreover, wildlife sensitivity maps could be used to identify areas where wind energy farms should be avoided. For instance, sensitivity maps could be used to identify areas where wind energy farms should be avoided. For instance, sensitivity maps for birds and bats have been employed in Greece, Belgium and UK (19). Other useful tools consist of maps for birds and bats have been employed in Greece, Belgium and UK (19) Other useful tools consist of combining wind energy with other land use activities to enhance biodiversity and a wide variety of mitigation combining wind energy with other land use activities to enhance biodiversity and a wide variety of mitigation measures to minimise disturbance. Notwithstanding the number of tools to reduce the impact of wind farms on measures to minimise disturbance Notwithstanding the number of tools to reduce the impact of wind farms on biodiversity, some issues seem still to undermine the achievement of NNL. biodiversity, some issues seem still to undermine the achievement of NNL

First, scientists reported that lack of adequate knowledge on biodiversity is highly likely to hinder the scope of First, scientists reported that lack of adequate knowledge on biodiversity highly likely hinder the scope of strategic environmental assessments that anticipate decisions on projects construction (Tucker et al 2020, strategic environmental assessments that anticipate decisions on projects construction (Tucker et al. 2020, p 34) From this point of view, Belgium seems to have the longest time series of data on the environmental p.34). From this point of Belgium to have the longest time series of data on the environmental impact of offshore wind farms given that its monitoring programme started when the first wind turbine was impact of offshore wind farms given that its monitoring programme started when the first wind turbine was constructed in 2008 (Degraer et al. 2021). Coupled with the former issue, lack of baseline data on the constructed in 2008 (Degraer et al. 2021). Coupled with the former issue, lack of baseline data on the assessment of spatial plans can seriously hinder the quality of the assessment (20). assessment of spatial plans can seriously hinder the quality of the assessment (20).

16 European Commission, Directorate-General for Environment,

16 European Commission, Directorate-General for Environment, Wind energy developments and Natura 2000 : Wind energy developments and Natura 2000 : guidance document guidance document, Publications Office, 2013 , Publications Office, 2013

17 European Commission, 17 European Commission, Commission notice Guidance document on wind energy developments and EU nature Commission notice Guidance document on wind energy developments and EU nature llegislation, egislation, 18.11.2020 C(2020) 7730 final 18.11.2020 C(2020) 7730 final.

18 For an overview, see https://ec.europa.eu/environment/nature/natura2000/management/guidance_en.htm

18 For an overview, see https://ec.europa.eu/environment/nature/natura2000/management/guidance_en.htm

19 2020 Guidance document (note 17) p. 46 ss 19 2020 Guidance document (note 17) p. 46 ss

20 https://ec.europa.eu/environment/nature/knowledge/ecosystem_assessment/index_en.htm 20 https://ec.europa.eu/environment/nature/knowledge/ecosystem_assessment/index_en.htm

The Challenge of No Net Loss in the EU Energy Transition The Challenge of No Net Loss in the EU Energy Transition

Is Clean Energy Really Clean? Is Clean Energy Really Clean?

The Challenge of No Net Loss in the EU Energy Transition The Challenge of No Net Loss in the EU Energy Transition

Francesca Leucci (Università di Bologna, Italy)

Francesca Leucci (Università di Bologna, Italy)

Secondly, most of the applicable guidelines are of non-binding nature For this reason, their Secondly, most of the applicable guidelines are of non-binding nature. For this their application relies application relies on the discretion of developers, the existence of local land use laws implementing them and, eventually, the on the discretion of developers, the existence of local land use laws implementing them and, eventually, the interpretation of the judiciary, including the EU Court of Justice interpretation of the judiciary, including the EU Court of Justice. Thirdly, the above mentioned guidelines refer to protected areas and protected species They do not address Thirdly, the above mentioned guidelines refer to protected and protected species. They do not address the compatibility of wind farms with the ecosystem health on a large scale Yet, given the insufficient the compatibility of wind farms with the ecosystem health on a large scale. Yet, given the insufficient ecosystem services mapping throughout the EU, it is plausible that these guidelines should be applied even ecosystem services mapping throughout the EU, it is plausible that these guidelines should be applied even outside the boundaries of Natura 2000 sites as a precaution in face of uncertainty about the likely range of any outside the boundaries of Natura 2000 sites as a precaution in face of uncertainty about the likely range of any disturbance effect. disturbance effect.

The way forward The way forward

Offshore renewable energy represents an essential part of the EU’s energy transition towards a fully Offshore renewable energy represents an essential part of the EU’s energy transition towards a fully decarbonised economy. In 2018, the EU adopted the revised Renewable Energy Directive setting a legally decarbonised economy In 2018, the EU adopted the revised Renewable Energy Directive setting a legally binding target of minimum 32% of energy production from renewable sources by 2030. Wind energy accounts binding target of minimum 32% of energy production from renewable sources by 2030 Wind energy accounts for the highest share of clean energy in the EU and it is expected to reach 21% of total power generation by for the share of clean energy in the EU and it is expected to reach 21% of total power generation by 2030 (IRENA study 2018). However, in order to be in line with the EU biodiversity goals for 2030, the 2030 (IRENA study 2018) However, in order to be in line with the EU biodiversity goals for 2030, the transition should take into proper account biodiversity risks. The mitigation hierarchy provides a concrete tool transition should take into proper account risks The mitigation provides a concrete tool to let climate and biodiversity goals converge in the context of expanding offshore renewable energy projects. to climate and biodiversity goals converge in context of expanding offshore renewable energy Yet, its non-binding nature, further sharpened by scientific uncertainty and lack of data on the state of Yet, its non-binding nature, further sharpened by scientific uncertainty and lack data on the of ecosystems, might hamper the pursuit of no net loss in the energy transition. In order to improve consistency hamper the pursuit of no net loss in energy In order to improve consistency between biodiversity conservation and climate neutrality, three main interconnected solutions could be between biodiversity conservation and climate neutrality, three main interconnected solutions could be proposed proposed.

First, mapping the state of ecosystems and natural capital, also with the help of artificial intelligence, would First, mapping the state of ecosystems and natural capital, also with the help of artificial intelligence, would provide better data when developing projects That requires more funding, expertise and investments in provide better data when developing projects. That requires funding, expertise and investments research Specifically targeted EU subsidies and national efforts would contribute to faster progress towards research. Specifically targeted subsidies and national efforts would contribute to faster progress towards this direction this direction.

Secondly, the non-binding nature of EU guidance on no net loss could be overcome by the availability of best Secondly, the non-binding nature of EU guidance on no net loss could be overcome by the availability of best practices, combined with more accurate interpretations of environmental impact assessment laws by agencies practices, combined with more accurate interpretations of environmental impact assessment laws by agencies and judges. Some countries already adopted land-use planning laws requiring more rigorous investigations and judges. Some countries already adopted land-use planning laws requiring more rigorous investigations (Belgium, UK) and they could represent a good example for the other countries still lagging behind. At the (Belgium, UK) and they could represent a good example for the other countries still lagging behind. At the same time, judges and agencies would need to be more competent on biodiversity values; more training of same time, judges and agencies would need to be more competent on biodiversity values; more training of national judges would possibly help increase their expertise in this domain. national judges would possibly help increase their expertise in this domain. Lastly, uncertainty in biodiversity conservation would need to be counterbalanced by policies aimed at Lastly, uncertainty in biodiversity conservation would need to be counterbalanced by policies aimed at ensuring better protection of areas with higher biodiversity value, such as ‘hotspots’. Hotspot is a term coined ensuring better protection of areas with higher biodiversity value, such as ‘hotspots’ Hotspot is a term coined by Myers in 1988 to identify 10 tropical rain forests containing an estimated 13% of all plant diversity in just by Myers in 1988 to identify 10 tropical rain forests containing an estimated 13% of all plant diversity in just 0.2% of our planet’s land area. Although scientists progressively discover new hotspots, more research is 0 2% of our planet’s land area Although scientists progressively discover new hotspots, more research is needed, especially in the marine environment. needed, especially in the marine environment

Is Clean Energy Really Clean? Is Clean Energy Really Clean?

The Challenge of No Net Loss in the EU Energy Transition The Challenge of No Net Loss in the EU Energy Transition

Francesca Leucci (Università di Bologna, Italy)

Francesca Leucci (Università di Bologna, Italy)

Indeed, it is quite acknowledged in science that reduced carbon sinks and it quite in science that carbon sinks and increased greenhouse gas emissions greenhouse gas emissions are clearly raising the value of biodiversity hotspots. are clearly raising value of biodiversity hotspots. In conclusion, better information when assessing energy projects, combined with trained decision-makers In conclusion, better information when assessing energy projects, combined with trained decision-makers (including the judiciary) and more precise data on key biodiversity areas might trigger the alignment between (including the judiciary) and more precise data on key biodiversity areas might trigger the alignment between transition to clean energy and biodiversity conservation in EU policies and national laws across the EU clean energy and biodiversity in EU policies and national laws the EU.

References References

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Chapin, F. S. et al. Consequences of changing biodiversity. Nature 405, 234–242 (2000). Chapin, F S et al Consequences of changing biodiversity Nature 405, 234–242 (2000) Isbell, F I , Polley, H W , & Wilsey, B J Biodiversity, productivity, and the temporal stability of Isbell, F. I., Polley, H. W., & Wilsey, B. J. Biodiversity, productivity, and the temporal stability of productivity: Patterns and processes Ecology Letters 12, 443–451 (2009) productivity: and processes. Ecology Letters 12, 443–451 (2009).

Forest Isbell (2010) Causes and Consequences of Biodiversity Declines. Nature Education Knowledge

Forest Isbell (2010) Causes and Consequences of Biodiversity Declines Nature Education Knowledge 3(10):54 3(10):54

May, R F A unifying framework for the underlying mechanisms of avian avoidance of wind turbines, Biol May, R. F. A unifying framework for the underlying mechanisms of avian avoidance of wind turbines, Biol. Cons 190 (2015) Cons. 190 (2015).

McKane, R. B. et al. Resource-based niches provide a basis for plant species diversity and dominance in arctic McKane, R B et al Resource-based niches provide a basis for plant species diversity and dominance in arctic tundra. Nature 415, 68–71 (2002). Nature 415, (2002).

Naeem, S. et al. eds. Biodiversity, Ecosystem Functioning, and Human Wellbeing: An Ecological and Naeem, S. et al. eds. Biodiversity, Ecosystem Functioning, and Human Wellbeing: An Ecological and Economic Perspective. Oxford, UK: Oxford University Press, (2009). Economic Perspective. Oxford, UK: Oxford University Press, (2009).

Vitousek, P. M. et al. Human domination of Earth's ecosystems. Science 277, 494–499 (1997). Vitousek, P. M. et al. Human of Earth's ecosystems. Science 277, 494–499 (1997).

Degraer, S., Brabant, R., Rumes, B. & Vigin, L. (eds). Environmental Impacts of Offshore Wind Farms in the Degraer, S., Brabant, R., Rumes, B. & Vigin, L. (eds). Environmental Impacts of Offshore Wind Farms in the Belgian Part of the North Sea: Attraction, avoidance and habitat use at various spatial scales. Memoirs on the Belgian Part of the North Sea: Attraction, avoidance and habitat use at various spatial scales. Memoirs on the Marine Environment. Brussels: Royal Belgian Institute of Natural Sciences, OD Natural Environment, Marine Marine Environment Brussels: Royal Belgian Institute of Natural Sciences, OD Natural Environment, Marine Ecology and Management, 104 pp. (2021) Ecology and Management, 104 pp (2021)

Van Hoey, G , Bastardie, F , Birchenough, S , De Backer, A , Gill, A , de Koning, S , Hodgson, S , Mangi Van Hoey, G., Bastardie, F., Birchenough, S., De Backer, A., Gill, A., de Koning, S., Hodgson, S., Mangi Chai, S , Steenbergen, J , Termeer, E , van den Burg, S , Hintzen, N , Overview of the effects of offshore wind Chai, S., Steenbergen, J., Termeer, E., van den Burg, S., Hintzen, N., Overview of the effects of offshore wind farms on fisheries and aquaculture, Publications Office of the European Union, Luxembourg, 99 pp (2021) farms on fisheries and aquaculture, Publications Office of the European Union, Luxembourg, 99 pp. (2021)

Tucker, G M , Quétier, F & Wende, W Guidance on achieving no net loss or net gain of biodiversity and Tucker, G.M., Quétier, F. & Wende, W. Guidance on achieving no net loss gain of biodiversity and ecosystem services Report to the European Commission, DG Environment on Contract ecosystem services. Report to the European Commission, DG Environment on Contract ENV.B.2/SER/2016/0018, Institute for European Environmental Policy, Brussels, (2020). ENV.B.2/SER/2016/0018, Institute for European Environmental Policy, Brussels, (2020).

Is Clean Energy Really Clean? Is Clean Energy Really Clean?

The Challenge of No Net Loss in the EU Energy Transition The Challenge of No Net Loss in the EU Energy Transition

Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora.

Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora

Directive 2009/147/EC on the conservation of wild birds; codified version of Directive 79/409/EEC. Directive 2009/147/EC on the conservation of wild birds; codified version of Directive 79/409/EEC

Communication on our life insurance, our natural capital: an EU biodiversity strategy to 2020, Communication on our life insurance, our natural capital: an EU biodiversity strategy to 2020, COM(2011) 244 final COM(2011) 244 final.

Draft Conclusions of the Council of the EU, 18374/11 Draft Conclusions of the Council of the EU, 18374/11 http://data.consilium.europa.eu/doc/document/ST-18374-2011-INIT/en/pdf http://data consilium europa eu/doc/document/ST-18374-2011-INIT/en/pdf

European Commission, Directorate-General for Environment, European Commission, Directorate-General for Environment, Wind energy developments and Wind energy developments and Natura 2000 : guidance document Natura 2000 : document, Publications Office, 2013, https://data.europa.eu/doi/10.2779/98894 , Publications Office, 2013, https://data.europa.eu/doi/10.2779/98894

Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 Directive 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources, in OJ L 328, 21.12.2018. on the promotion of the use of energy from renewable sources, in OJ 328, 21.12.2018.

Guidance on the integration of ecosystems and their services into decision-making, Brussels, on the integration of ecosystems and their services into decision-making, Brussels, 18 7 2019 SWD(2019) 305 final 18.7.2019 SWD(2019) 305 final.

European Commission, Commission notice Guidance document on wind energy developments European Commission, Commission notice Guidance document on wind energy developments and EU nature legislation, 18.11.2020 C(2020) 7730 final and EU nature legislation, 18 11 2020 C(2020) 7730 final https://ec.europa.eu/environment/nature/natura2000/management/docs/wind farms en.pdf https://ec europa eu/environment/nature/natura2000/management/docs/wind farms en pdf

Scientific reports Scientific reports

EU and IRENA (2018), Renewable Energy Prospects for the European Union, available at EU and IRENA Renewable Energy Prospects for the European Union, available at https://www.irena.org/publications/2018/Feb/Renewable-energy-prospects-for-thehttps://www irena org/publications/2018/Feb/Renewable-energy-prospects-for-theEU#:~:text=February%202018&text=The%20Executive%20Summary%20of%20the,potentia EU#:~:text=February%202018&text=The%20Executive%20Summary%20of%20the,potentia ll%20to%20use%20more%20renewables. %20to%20use%20more%20renewables

Everaert (2018) Wind farm sensitivity map for birds and bats in Flanders (Belgium) Everaert (2018). Wind farm sensitivity map for birds and bats in Flanders (Belgium). Presentation at workshop to prepare an instructional toolkit outlining the development and workshop to prepare an instructional toolkit outlining the development and implementation of Wildlife Sensitivity Mapping to inform renewable energy deployment in the implementation of Wildlife Sensitivity Mapping to inform renewable energy deployment in the EU, 22/10/2018, Brussels, Belgium. EU, 22/10/2018, Brussels, Belgium.

Business and Biodiversity Offsets Programme (BBOP). 2018. Working for Biodiversity Net Business and Biodiversity Offsets Programme (BBOP). 2018. Working for Biodiversity Net Gain: An Overview of the Business and Biodiversity Offsets Programme (BBOP) 2004– Gain: An Overview of the Business and Biodiversity Offsets Programme (BBOP) 2004–2018 Washington, D C Available from https://www forest- 2018. Washington, D.C. Available from https://www.foresttrends org/bbop pubs/overview2018 trends.org/bbop pubs/overview2018

IPBES (2019): Global assessment report on biodiversity and ecosystem services of the IPBES (2019): Global assessment report on biodiversity and ecosystem services of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services. E. S. Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services E S Brondizio, J. Settele, S. Díaz, and H. T. Ngo (editors). IPBES secretariat, Bonn, Germany. Brondizio, J Settele, S Díaz, and H T Ngo (editors) IPBES secretariat, Bonn, Germany 1148 pages. https://doi.org/10.5281/zenodo.3831673 1148 pages https://doi org/10 5281/zenodo 3831673

Francesca Leucci (Università di Bologna, Italy) Francesca Leucci (Università di Bologna, Italy) EU Law EU Law

VI:

The Age of (Un)Peace in Europe’s East VI: The Age of (Un)Peace in Europe’s East

Co-Chairs: Co-Chairs: Maksimas Milta Maksimas Milta (Yale University) and (Yale University) and Yevhenii Monastyrskyi Yevhenii Monastyrskyi (Yale University) (Yale University)

Faculty Discussant: Faculty Discussant: Dr. Olena Lennon Dr. Olena Lennon, Adjunct Professor of Political Science and National , Adjunct Professor of Political Science and National Security (University of New Haven) Security (University of New Haven)

John Helferich John Helferich (University of Oxford) (University of Oxford)

Eka Khorbaladze Eka Khorbaladze (Yale University) (Yale University)

Anđela Mićanović Anđela Mićanović (University of Luxembourg) (University of Luxembourg)

Maksimas Milta Maksimas Milta (Yale University) (Yale University)

Yevhenii Monastyrskyi Yevhenii Monastyrskyi (Yale University) (Yale University)

Zero Hour Yet To Come? EU Defence Integration After the Ukraine Invasion Zero Hour Yet To Come? EU Defence Integration After the Ukraine Invasion

John Helferich (University of Oxford) Helferich (University of Oxford) Introduction Introduction

Next year will mark the 25th anniversary of the St Malo Summit, during which the United Kingdom and Next year will mark the 25th anniversary of the St Malo Summit, during which the United Kingdom and France launched defence cooperation in the European Union. Since the St. Malo breakthrough, the EU’s France launched defence cooperation in the European Union Since the St Malo breakthrough, the EU’s Common Security and Defence Policy (CSDP) Common Security and Defence Policy (CSDP) has been steadily reformed, however, the purposes and drivers has been steadily reformed, however, the purposes and drivers of of CSDP CSDP and its relationship with NATO remain opaque.(1) Much of this ambiguity is due to the fact that and its relationship with NATO remain opaque.(1) Much of this ambiguity is due to the fact that there has been no existential security threat in Europe since the end of the Cold War, which has given rise to a there has been no existential security threat in Europe since the end of the Cold War, which has given rise to a gap between rhetoric and political reality, academically known as the “capability-expectations gap”(Hill gap between rhetoric and political reality, academically known as the “capability-expectations gap”(Hill 1993). 1993)

For the transatlantic community, Russia’s invasion of Ukraine now represents a watershed moment in which For the transatlantic community, Russia’s invasion of Ukraine now represents a watershed moment in which long-held principles are being challenged This article draws on the war in Ukraine to reflect on existing long-held principles are being challenged. This article draws on the war in Ukraine to reflect on theories of EU defence integration in IR, particularly those that fall within the realm of neorealism theories of EU defence integration in IR, particularly those that fall within the realm of neorealism. Transatlantic defence policy is currently moving so fast that it is hardly possible to draw final conclusions Transatlantic defence policy currently moving so fast that it is hardly possible to draw final conclusions. However, by comparing the nature of this crisis and the initial responses to it with those considered to have However, by comparing the nature of this and the initial responses to it with those considered to have driven previous transformations of EU defence, it may be possible to shed new light on existing theories I driven previous transformations of EU defence, it may be possible to shed new light on existing theories. I argue that Russia’s invasion of Ukraine has so far reinforced the notion that EU defence integration is argue that Russia’s invasion of Ukraine has so far reinforced the notion that EU defence integration is primarily a response to ontological threats to the ethos of the European community from within, rather than primarily a response to ontological threats to the ethos of the European community from within, rather than material threats from without. material threats from without.

EU defence in time EU in time

CSDP CSDP institutions have developed over two major transformation phases Between 1998 and 2004, European have developed over two major transformation phases. Between 1998 and 2004, European states first brought defence policy under the EU umbrella after the Balkan wars provided an opportunity to states first brought defence policy under the EU umbrella after the Balkan wars provided an opportunity to overcome long-standing resistance to Europeanisation, particularly in the UK. As a result, member states overcome long-standing resistance to Europeanisation, particularly in the UK. As a result, member states agreed to continuously harmonise defence planning through joint initiatives and to conduct crisis response agreed to continuously harmonise defence planning through joint initiatives and to conduct crisis response under the EU aegis (Howorth 2014) The objectives associated with under the EU aegis (Howorth 2014). The objectives associated with CSDP CSDP were set out in the were set in the European European Security Strategy Security Strategy published in 2003, which emphasised that published 2003, which emphasised that CSDP CSDP would remain strictly intergovernmental would remain strictly intergovernmental and that it would complement, not undermine, NATO (2) and that it would complement, not undermine, NATO.(2)

1 CSDP was originally named 1 CSDP was named European Security and Defence Policy European Defence Policy (ESDP) but later renamed in the 2009 Lisbon Treaty (ESDP) but later renamed in the 2009 Treaty.

2 The first transformation phase was completed with the establishment of the 2 The first transformation phase was completed with establishment of European Defence Agency European Defence Agency ((EDA) EDA) in 2004 - an institution dedicated to coordinating member states’ efforts, such as the first EU peacekeeping in 2004 an institution dedicated to coordinating member states’ efforts, as the EU peacekeeping mission in North Macedonia; See European Security Strategy “A secure Europe In A Better World”: mission in North Macedonia; See European Security Strategy “A secure Europe In A Better World”: https://www.consilium.europa.eu/media/30823/qc7809568enc.pdf .

https://www consilium europa eu/media/30823/qc7809568enc pdf

Zero Hour Yet To Come? EU Defence Integration After the Ukraine Invasion Zero Hour Yet To Come? EU Defence Integration After the Ukraine Invasion

John Helferich (University of Oxford) John Helferich (University of Oxford)

Introduction Introduction

Next year will mark the 25th anniversary of the St Malo Summit, during which the United Kingdom and Next year will mark the 25th anniversary of the St Malo Summit, during which the United Kingdom and France launched defence cooperation in the European Union Since the St Malo breakthrough, the EU’s launched defence cooperation in the Union. Since the St. Malo breakthrough, the EU’s Common Security and Defence Policy (CSDP) Common Security and Defence Policy (CSDP) has been steadily reformed, however, the purposes and drivers has been steadily reformed, however, the purposes and drivers of CSDP CSDP and its relationship with NATO remain opaque.(1) Much of this ambiguity is due to the fact that and its relationship with NATO remain opaque.(1) this ambiguity is due to fact that there has been no existential security threat in Europe since the end of the Cold War, which has given rise to a there has been no existential security threat in Europe since the end of the Cold War, which has given rise to a gap between rhetoric and political reality, academically known as the “capability-expectations gap”(Hill gap between rhetoric and political reality, academically known as the “capability-expectations gap”(Hill 1993) 1993).

For the transatlantic community, Russia’s invasion of Ukraine now represents a watershed moment in which For the transatlantic community, Russia’s invasion of Ukraine now represents a watershed moment in which long-held principles are being challenged. This article draws on the war in Ukraine to reflect on existing long-held principles are being challenged This article draws on the war in Ukraine to reflect on existing theories of EU defence integration in IR, particularly those that fall within the realm of neorealism. theories of EU defence integration in IR, particularly those that fall within the realm of neorealism Transatlantic defence policy is currently moving so fast that it is hardly possible to draw final conclusions. Transatlantic defence is moving so fast that it is to draw final conclusions However, by comparing the nature of this crisis and the initial responses to it with those considered to have However, by comparing the nature of this crisis and the initial responses to it with those considered to have driven previous transformations of EU defence, it may be possible to shed new light on existing theories. I previous transformations of EU defence, it may be possible to shed new on existing theories I argue that Russia’s invasion of Ukraine has so far reinforced the notion that EU defence integration is argue Russia’s invasion of has so far reinforced the that EU defence is primarily a response to ontological threats to the ethos of the European community from within, rather than a response ontological threats to ethos of the European community from within, rather material threats from without.

EU defence in time EU defence in time

CSDP CSDP institutions have developed over two major transformation phases. Between 1998 and 2004, European institutions developed over two major transformation phases Between 1998 and 2004, European states first brought defence policy under the EU umbrella after the Balkan wars provided an opportunity to states first under the EU umbrella Balkan wars provided an opportunity to overcome long-standing resistance to Europeanisation, particularly in the UK. As a result, member states overcome long-standing to Europeanisation, particularly in the UK. As a result, member states agreed to continuously harmonise defence planning through joint initiatives and to conduct crisis response to continuously harmonise defence planning through joint to conduct crisis response under the EU aegis (Howorth 2014). The objectives associated with under the EU aegis (Howorth 2014) The objectives associated with CSDP CSDP were set out in the were set out in the European European Security Strategy Security Strategy published in 2003, which emphasised that published in 2003, which emphasised that CSDP CSDP would remain strictly intergovernmental would remain strictly and that it would complement, not undermine, NATO.(2) and that it would complement, not undermine, NATO (2)

After this initial breakthrough, more than a decade of stagnation followed. Despite the failed Libya After this initial breakthrough, more than a decade of stagnation followed. Despite the failed Libya intervention and Russian attacks on Georgia and Crimea, there was little institutional progress during this intervention and Russian attacks on Georgia and Crimea, there was little institutional progress during this period, which was overshadowed by the financial crisis.(3) which was by the financial crisis.(3)

1 CSDP was originally named 1 CSDP was originally named European Security and Defence Policy European and Defence Policy (ESDP) but later renamed in the 2009 Lisbon Treaty (ESDP) but later renamed in the 2009 Lisbon Treaty

2 The first transformation phase was completed with the establishment of the 2 The first transformation phase was completed with the establishment of the European Defence Agency European Defence Agency ((EDA) EDA) in 2004 - an institution dedicated to coordinating member states’ efforts, such as the first EU peacekeeping in 2004 - an institution dedicated to coordinating member states’ efforts, as the EU peacekeeping mission in North Macedonia; See European Security Strategy “A secure Europe In A Better World”: mission in North Macedonia; See European Security Strategy “A secure Europe In A Better World”: https://www consilium europa eu/media/30823/qc7809568enc pdf https://www europa eu/media/30823/qc7809568enc pdf

3 Notable exceptions are the establishment of EU battlegroups in 2007, which have never been deployed as

3 Notable exceptions are the establishment of EU battlegroups in 2007, which have never been deployed as well as the 2009 Directives on defence procurement and transfers. well as the 2009 Directives on defence procurement and transfers

Zero Hour Yet To Come? EU Defence Integration After the Ukraine Invasion Zero Hour Yet To Come? EU Defence Integration After the Ukraine Invasion

John Helferich (University of Oxford) John Helferich (University of Oxford)

It was only in 2016, against the backdrop of the election of Donald Trump and Brexit that the It was only in 2016, against the backdrop of the election of Donald Trump and Brexit that the second second transformation was initiated. Between 2016 and 2020, EU member states broke a long-standing taboo: They transformation was initiated Between 2016 and 2020, EU member states broke a long-standing taboo: They began to supranationalise parts of their military planning by establishing a began to supranationalise parts of their military planning by establishing a European Defence Fund (EDF European Defence Fund (EDF) ) under the auspices of the European Commission, which for the first time has the right to use the EU budget to under the auspices of the European Commission, which for the first time has the right to use the EU budget to invest in defence research (Sweeney and Winn 2020).(4) invest in defence research and Winn 2020) (4)

The The EDF EDF, and other initiatives were launched as part of the 2016 Defence Package, which was accompanied , and other initiatives launched part of the 2016 Defence Package, which was accompanied by a so-called Global Strategy (5) In the document, the EU uses unprecedentedly assertive rhetoric to work by a so-called Global Strategy.(5) In the document, the EU uses unprecedentedly assertive rhetoric to work towards building a ‘strategically sovereign defence union’ Although the somewhat dysfunctional institutions towards building a ‘strategically sovereign defence union’. Although the somewhat dysfunctional institutions of the launch phase were reformed in this latest period, the discrepancy between capabilities and expectations of the launch phase were reformed in this latest period, the discrepancy between capabilities and expectations was not reduced On the contrary, since member states have never defined the concept of “strategic autonomy” was not reduced. On the contrary, member states have never defined the concept of “strategic autonomy” and the resources allocated to it are far below what a conventional understanding of autonomy would imply, and the resources allocated to are far below what a conventional understanding of autonomy would imply, the gap has actually widened. the gap has actually widened.

Theoretical debate Theoretical debate

Within academia, EU defence integration has raised a strange conundrum, which challenges the main research Within academia, EU defence integration has raised a strange conundrum, which challenges the main research programmes in IR. First, there is no historical comparison to 27 countries pooling sovereignty over national programmes in IR. First, there is no historical comparison to 27 countries pooling sovereignty over national security in an international organisation that goes beyond a traditional alliance. This led to the debate being security in an international organisation that goes beyond a traditional alliance. This led to the debate being awkwardly situated at the nexus of alliance theory, international organisations, and IPE. (6) awkwardly situated at the nexus of alliance theory, international organisations, and IPE. (6)

Initial attempts to shed led on the phenomenon were further complicated by the fact that all major paradigms

Initial attempts to shed led on the phenomenon were further complicated by the fact that all major paradigms had attempted to explain the absence of defence integration (Ojanen 2002). Until the early 1990s, security and had attempted to explain the absence of defence integration (Ojanen 2002) Until the early 1990s, security and defence were considered to be the last bastion of national sovereignty, which scholars assumed would remain defence were considered to be the last bastion of national sovereignty, which scholars assumed would remain outside the EU system unless there was a credible existential threat.(7) After St. Malo, however, these theories outside the EU system unless there was a credible existential threat (7) After St Malo, however, these theories had to be abruptly updated, whereby scholars came to rather different conclusions about the nature of the had to be abruptly updated, whereby scholars came to rather different conclusions about the nature of the project and its underlying motivations. While many resigned themselves to the claim that EU defence was too project and its underlying motivations While many resigned themselves to the claim that EU defence was too unique to fit into any of the existing paradigms, scholars of the neorealist strand took up the issue and unique to fit into any of existing paradigms, scholars of the neorealist strand took up the issue developed testable theories. developed testable Neorealism and CSDP Neorealism and CSDP

The two most prominent analyses applying neo-realism to EU defence integration draw inferences by The two prominent analyses applying neo-realism EU defence draw inferences by combining ideas about the international and the European state systems (Posen 2006; Jones 2007). ideas about international and the European systems (Posen 2006; Jones 2007). Accordingly, CSDP was caused after the end of the Cold War produced a shift from bipolarity to unipolarity Accordingly, CSDP was caused after the end of the Cold War produced a shift from bipolarity to unipolarity.

4 Furthermore, an initiative called Permanent Structured Cooperation (PESCO) was activated under which

4 Furthermore, an initiative called Permanent Structured Cooperation (PESCO) was activated under which member states make legally binding commitments to defence spending and capability development. member states make legally binding commitments to defence spending and capability development

5 See “A Global Strategy for the European Union’s Foreign And Security Policy”

5 See “A Global Strategy for the European Union’s Foreign And Security Policy” https://eeas.europa.eu/archives/docs/top stories/pdf/eugs review_web.pdf https://eeas.europa.eu/archives/docs/top stories/pdf/eugs review_web.pdf

6 Moreover, CSDP is about the institutionalisation of military planning at the supranational level, which

6 Moreover, CSDP is about the institutionalisation of military planning at level, which challenges traditional understandings of statehood under anarchy (Weiss 2011, 3) challenges traditional understandings of statehood under anarchy (Weiss 2011, 3).

7 In brief, realism treated security and defence as part of states’ raison d’être which they are unwilling to bargain

7 In brief, realism security and defence as part states’ d’être which they are unwilling to bargain away; liberal-intergovernmentalism suggested that integration in high politics would not amount to much, away; liberal-intergovernmentalism suggested that integration in high politics would not amount to much, except in the unlikely event that national interests converge across nation states and even neo-functionalism, except in the unlikely event that national interests converge across nation states and even neo-functionalism, which predicts that spill-over effects will lead to closer integration assumed that this will take place in de- which predicts that spill-over effects will lead to closer assumed that this will take place in depoliticised areas of “low politics” rather than in security and defence politicised areas “low rather than in security defence

Zero Hour Yet To Come? EU Defence Integration After the Ukraine Invasion Zero Hour Yet To Come? EU Defence Integration After the Ukraine Invasion

John

Helferich (University of Oxford) John Helferich (University of Oxford)

When the US emerged as the uncontested hegemon, European states invested in CSDP as an attempt to When the US emerged as the uncontested hegemon, European states invested in CSDP as an attempt to `balance the hegemon (Posen 2006, 150). The logic behind this argument, which both Posen and Jones `balance the (Posen 2006, 150) The logic behind this argument, which both Posen and Jones embrace is that the EU wanted to limit US influence internationally while at the same time mitigating the embrace that the EU wanted to limit US influence while at the same time mitigating threat of being abandoned. Evidence for these claims was derived from the reduction in US troops stationed in threat being abandoned. claims was derived from the reduction in US troops stationed in Europe as well as disagreements in NATO over interventions in the Balkans and the Middle East. Europe as well as disagreements in NATO over interventions in Middle East.

An additional factor which Jones (2007) derives from the composition of the European state system is that EU An additional factor which Jones (2007) derives from the composition of the European state system that EU cooperation allowed smaller states to “bind Germany and ensure long-term peace on the continent” (11) cooperation allowed smaller states to “bind Germany and long-term peace on the continent” (11). Accordingly, it is argued that the UK and France were suddenly open to building EU defence institutions, Accordingly, it is argued that the UK and France were suddenly open to building EU defence institutions, fearing that Germany might try to dominate Europe militarily again after it reunified in 1990 fearing that Germany might dominate Europe militarily again after reunified in 1990.

Neorealist views have been criticised on theoretical as well as empirical grounds (Howorth and Menon 2009) Neorealist views have been criticised on theoretical as well as empirical grounds (Howorth and Menon 2009). Theoretically, the balancing argument falls short in explaining why European states balance against both the Theoretically, the balancing argument falls short in explaining why European states balance against both the US and Germany given their rather different positions in the international system. Empirically, none of the US and Germany given their rather different positions in the international system. Empirically, none of the well-known security policies in line with traditional balancing during the Cold War were directly observable, well-known security policies in line with traditional balancing during the Cold War were directly observable, but instead governments across Europe continued to emphasise NATO as their main security guarantor (ibid.). but instead governments across Europe continued to emphasise NATO as their main security guarantor (ibid.). (8) Nonetheless, in contrast to many other theoretical strands, neorealists produced testable claims, which can Nonetheless, in contrast to many other theoretical strands, neorealists produced testable claims, which can be applied to comparable cases, such as the impact of the war in Ukraine. be applied to comparable cases, such as the impact of the war in Ukraine

Revisiting structural explanations Revisiting structural explanations

One of the first observations about Russia’s invasion is that it brought “the West” back together. NATO has One of the first observations about Russia’s invasion is that it brought “the West” back together NATO has displayed a unity not seen in decades as members quickly agreed on military support for Ukraine, sanctions a unity not seen in decades as members agreed on military support for Ukraine, sanctions for Russia, and the strengthening of the Eastern flank in central Europe. After years of gradual withdrawal, the for Russia, and the strengthening of the Eastern flank in central Europe After years of gradual withdrawal, the US has now increased its troops on European soil by 12,000 again, reaching a total of almost 100 000 troops. has now increased its troops on European soil by 12,000 again, reaching a total of almost 100 000 troops (9) (9)

In light of this renewed American commitment to European security, the neorealist “balancing” hypothesis In light of this renewed American commitment European security, neorealist “balancing” hypothesis would expect EU defence to disintegrate as allied countries are incentivised to hide behind the American would expect EU defence to disintegrate as allied countries are incentivised to hide behind the American shield again While the US has provided more resources to support Ukraine than all major European allies shield again. While the US has provided more resources support Ukraine than all major European allies combined, the argument of renewed European bandwagoning (or freeriding) seems misguided combined, the of renewed European bandwagoning (or freeriding) misguided.

First, European states went ahead as planned with the publication of the long awaited “Strategic Compass” on European states went ahead as planned with the publication of the long awaited “Strategic Compass” on 21 March 10 The document sets out objectives in the field of security and defence to be reached by 2030 and 21 March.10 The document objectives in the field of security and defence to be reached by 2030 and provides an analysis of the EU’s strategic environment Posen’s 2006 argument that Europe provides an analysis of the EU’s strategic environment. Posen’s 2006 argument that Europe

8 Moreover, Jones’ argument does not explain why Britain and France decided to bind Germany only eight

8 Moreover, Jones’ argument does not explain why Britain and decided to Germany only eight years after reunification, and Posen derives motives from possible future outcomes, i e from the fact that years after reunification, and Posen derives motives from possible future outcomes, i e from fact that CSDP could become a challenge to US hegemonic power it is inferred that it is motivated by that CSDP could become a challenge to US hegemonic power it is inferred it is motivated by that 9See:https://www.newsweek.com/army-considers-sending-national-guard-troops-eastern-europe-1699159 9See:https://www newsweek com/army-considers-sending-national-guard-troops-eastern-europe-1699159

10 See “A Strategic Compass for Security and Defence - For a European Union that protects its citizens, 10 See “A Strategic Compass for Security and Defence - For a European Union that protects its citizens, values and interests and contributes to international peace and security” values and interests and contributes to international peace and security” https://data consilium europa eu/doc/document/ST-7371-2022-INIT/en/pdf https://data.consilium.europa.eu/doc/document/ST-7371-2022-INIT/en/pdf .

Zero Hour Yet To Come? EU Defence Integration After the Ukraine Invasion Zero Hour Yet To Come? EU Defence Integration After the Ukraine Invasion

John Helferich (University of Oxford) John Helferich (University of Oxford)

“will prove to be a less docile ally of the US in a decade or two” is not “will prove to be a less docile ally of the US in a decade or two” is not substantially supported by the substantially supported by the Strategic Strategic Compass Compass, since one of its main aims is to reinforce the EU’s strategic partnership with NATO, “which , since one of its main aims is to reinforce the EU’s strategic partnership with NATO, “which remains the basis of collective defence of its members”(Posen 2006, 186). remains the basis of collective defence of its members”(Posen 2006, 186).

While official documents are only a moderately reliable indicator, it is also significant that several European While official documents are only a moderately reliable indicator, is also significant that several European states have recently committed to renewing their air forces with the American F-35 fighter jet, which also runs states have recently committed their forces with the American fighter jet, which also runs counter to any notion of autonomy or balancing given the long-term dependencies involved in such a any notion of autonomy or balancing given the long-term dependencies involved in such a procurement We have further seen the announcement of a complete turn-around in military affairs in procurement. We have further the announcement of a complete turn-around military affairs in Germany (Zeitenwende) In response to the Ukraine invasion the government of Olaf Scholz launched a Germany (Zeitenwende). In response the Ukraine invasion the government of Olaf Scholz launched a “special fund” of €100bn, which shall be anchored in the country’s basic law If Germany pursues its plans to “special fund” of €100bn, which shall be anchored the country’s basic law. If Germany pursues its plans to revitalise the Bundeswehr by spending more than 2% of GDP on defence, its defence budget will significantly revitalise the Bundeswehr by spending than 2% of GDP on defence, its defence budget will significantly exceed that of France and the UK (11) exceed that of and the UK.(11)

The German The German Zeitenwende Zeitenwende ties into Jones’ second argument about British and French fears of German military ties into Jones’ second argument about British and French fears of German military domination. At this stage, however, there is little evidence that France or the UK want to thwart German domination At this stage, however, there is little evidence that France or the UK want to thwart German ambitions or perceive them as a security dilemma. On the contrary, Germany has been sharply criticised for its ambitions or perceive them as a security dilemma On the contrary, Germany has been criticised for its lack of engagement and leadership in the Ukraine war. Similarly, there is no indication that Germany intends lack of engagement and leadership in the Ukraine war Similarly, there is no indication that intends to shed the shackles of EU institutional cooperation in order to bring its power to full fruition. to shed the shackles of EU institutional cooperation in order to bring its power to full fruition.

Below neorealism’s radar Below neorealism’s radar

The analysis suggests that neorealist claims about the drivers of EU integration are so far not reflected in The analysis suggests that neorealist claims about the drivers of EU are so far not reflected in European’s responses to Russia’s invasion. It appears that the sui generis character of the EU does indeed defy European’s responses to Russia’s invasion. It appears that the sui generis of the EU does indeed defy the neorealist axiom of material determinism under anarchy. However, this does not mean that the realist view neorealist axiom of material determinism under anarchy. However, this does mean that the realist view is per se wrong. Theoretically, neorealism serves to highlight the competitive dimension of is per se wrong. Theoretically, neorealism serves to highlight the competitive dimension of CSDP CSDP and NATO and NATO as well as potential extreme points of this relationship. While the categories of “balancing”, “buckpassing” as well as potential extreme points of this relationship. the categories of “balancing”, “buckpassing” and “bandwagonning” are insufficiently specified in the EU context, in a general sense they help to describe and “bandwagonning” are insufficiently specified in the EU context, in a general sense they help to describe the ways in which EU member states have acted in the face of foreign-security challenges. ways in EU states have acted in the face of foreign-security challenges. Indeed, the inability of neorealism to explain EU defence integration may simply be due to the fact that Indeed, the inability of neorealism explain EU defence integration may simply be due to the fact that CSDP CSDP is beyond the theory’s scope beyond the theory’s scope. CSDP CSDP may best be classified as “noise” in the neorealist worldview, i e , may best be classified as “noise” in the neorealist worldview, i.e., cooperative efforts that states undertake in peacetime, but which are insignificant for the balance of power cooperative efforts that states undertake in peacetime, but which are insignificant for the balance of power. Validation for that claim comes from the fact that the cooperative defence efforts of 27 states have neither Validation for that claim from the fact that the cooperative defence efforts of 27 states have neither altered the regional nor the global balance of power. With neorealism on the sidelines, the question remains altered the regional the global balance of power. With neorealism on the sidelines, the question remains though how to conceptualise the drivers of EU defence integration? though how to conceptualise the drivers of EU defence integration?

Defence integration as anxiety control? Defence as

An alternative may provide an ontological security (OS) perspective (Kinnvall and Mitzen 2017). It suggests alternative may provide an ontological security (OS) perspective (Kinnvall and Mitzen 2017). It suggests that EU defence integration is mostly an exercise of introspection during times when the ethos of the that EU defence integration is mostly an exercise of introspection during times when the ethos of the community is under existential threat - not its territorial integrity.(12) The theory is community is under existential threat - not its territorial integrity.(12) The theory is

11 See https://www.gmfus.org/news/early-assessment-germanys-zeitenwende-security-policy 11 See https://www.gmfus.org/news/early-assessment-germanys-zeitenwende-security-policy

12 The term ethos refers to “the constitutive values and norms that define the collective identity of the 12 The ethos refers to “the constitutive values and norms that define collective identity community – who “we” are, what “we” stand for and how “we” differ from others”(Schimmelfennig 2003, community – who “we” are, what “we” and how “we” differ from others”(Schimmelfennig 2003,

Zero Hour Yet To Come? EU Defence Integration After the Ukraine Invasion Zero Hour Yet To Come? EU Defence Integration After the Ukraine Invasion

John Helferich (University of Oxford) John Helferich (University of Oxford) based on the observation that if CSDP constantly falls short of everyone’s expectation, maybe based on the observation that if CSDP constantly falls short of expectation, maybe effectively effectively addressing material threats is not the main purpose of EU defence cooperation? (Bickerton 2011). In fact, the material threats is not the main purpose of EU defence cooperation? (Bickerton 2011) In fact, the invasion of Ukraine is the first crisis after the Cold War that poses an existential security threat to the EU and invasion of Ukraine is first crisis after the War that poses an existential threat to EU and its people. The events underlying the two existing defence transformations, however, are best conceived as OS its people. The events underlying the two existing defence transformations, however, are best conceived as OS crisis, which undermined the fundamental values and thus legitimacy of the European community.(13) crisis, undermined the fundamental and thus legitimacy of the European community.(13)

To illustrate, the Balkan wars represented an OS crisis, as the EU had just been gloriously established in 1992, To illustrate, the Balkan wars represented an OS crisis, as the EU had just been gloriously established in 1992, only to wake up to a genocide in its heartland which it failed to prevent. To maintain the legitimacy of the only to wake up to a genocide in its heartland which it failed to prevent. To maintain the legitimacy of the Union as well as a positive sense of self, the antidote was to build defence institutions. Defence lends itself Union as well as a positive sense of self, the antidote was to build defence institutions Defence lends itself particularly well for such psychological exercises as it is closely tied to the EU’s foundational myth of particularly well for such psychological exercises as it is closely tied to the EU’s foundational myth of preventing war on the European continent.(14) preventing war on the European continent (14)

In a similar vein, Donald Trump and Brexit created an OS crisis as the former fundamentally undermined the In similar vein, Donald Trump and Brexit created an OS crisis as the former fundamentally undermined the transatlantic relationship, whereas the latter attacked the idea of an ever-expanding Union Both notions have transatlantic relationship, whereas the latter attacked the idea of an ever-expanding Union. Both notions have been core elements of the EU’s ethos and again, European leaders had to signal to their publics (and been core elements of the EU’s ethos and again, European leaders had to signal to their publics (and themselves) that the project will eventually triumph Consequently, a new round of speech acts led to the themselves) that the project will eventually triumph. Consequently, new round of speech acts led to the second transformation, driven primarily by cooperation for its own sake and only secondarily by concrete second transformation, driven primarily by cooperation for its own sake and only secondarily by concrete external security concerns. external security concerns.

Compared to neo-realism, the OS lens is less parsimonious as one first needs to identify what the ethos of the Compared to neo-realism, OS lens is less parsimonious as one first needs to what the of the European community is at given time. As a baseline, the EU is an integral part of the “liberal order”, which is European community is at given As a baseline, EU is an part of order”, which characterised by “democratic peace” - the non-violent resolution of conflicts between democracies and characterised by “democratic peace” - the non-violent resolution of conflicts between democracies and multilateralism However, the scope and shape of each of these norms can change with the experiences of the multilateralism. However, the scope and shape of each of these norms can change with the experiences of the community (Adler and Barnett 1998) As such, internal divisions and failed interventions have pulled - not community (Adler and Barnett 1998). As such, internal divisions and failed interventions have pulledonly the EU - but also the West of its moral high horse This has disillusioned publics and reduced only the EU - but also the West of its moral high horse. This has disillusioned publics and reduced expectations for the EU to be a normative conversion machine and peacemaker As a result, the Russian for the EU to be a normative machine and peacemaker. As a result, the Russian invasion has not triggered an OS crisis because the expectation to prevent war in Ukraine are not very high for invasion has not triggered an OS crisis because the to prevent war in Ukraine not very high for the EU given that Ukraine is not a candidate country and closely associated with Russian influence Since the EU given that Ukraine is not candidate country and closely associated with influence. Since territorial defence falls within NATO's remit, the Ukraine war is unlikely to trigger a third transformation, territorial defence falls within NATO's remit, the Ukraine war unlikely to trigger a third transformation, unless it leads to substantial attacks on the core identity of today’s EU unless leads substantial attacks on the core identity of today’s EU.

Conclusion Conclusion

This article asked whether neo-realist explanations of EU defence cooperation have gained new relevance with This article asked whether neo-realist explanations of EU defence cooperation have gained new relevance with the invasion of Ukraine. Evidence from the first phase of the war provides little validation for such claims, but the invasion of Ukraine. Evidence from the first phase of the war provides little validation for such claims, but instead highlights problems associated instead highlights problems associated

7) While core members diverge with regard to the purposes, norms, interests, and outlooks they associate

7) While core members diverge regard to purposes, norms, interests, and outlooks they associate with these organisations, their membership unites them in some shared form of self organisations, their membership unites them in form of self

13 An ontological security crisis is a situation in which aspects of the social and physical world that a given

13 An ontological security crisis is a situation in which aspects of the social and physical world that a given community relies on are destabilised or threatened to a point that self-narratives are called into question and relies on are destabilised or threatened to a point that self-narratives are called into question and community routines can no longer be sustained In such situations, states seek ontological security by routines can no longer be sustained In such situations, states seek ontological security by reasserting routines or appealing to comfortable narratives about the future (Giddens 1991, 3) reasserting routines or appealing to narratives about the future (Giddens 1991, 3).

14 Furthermore, any dysfunctionalities resulting from such “cooperation for its own sake” are usually not

14 Furthermore, any dysfunctionalities resulting from such “cooperation for its own sake” are usually not felt by the general public felt by the general public

Zero Hour Yet To Come? EU Defence Integration After the Ukraine Invasion Zero Hour Yet To Come? EU Defence Integration After the Ukraine Invasion

John Helferich (University of Oxford) John Helferich (University of Oxford)

with approaches that conceive of EU defence as the result of purely rational behaviour shaped by power and with approaches that conceive of defence as the result of purely rational behaviour shaped by power and tthreat hreat. The outlined OS perspective sheds light on the qualitative differences between the Ukraine war and the The outlined OS perspective sheds light on the qualitative differences between the Ukraine war and the crises, which underlie previous EU defence transformations. It suggests that defence integration was primarily crises, which underlie previous EU defence transformations. It suggests that defence integration was primarily internally motivated to restore ontological security in the Union, which is so closely tied to the identity of core internally motivated to restore ontological security in the Union, which is so closely tied to the identity of core European countries. European countries.

Nonetheless, the debate about neorealism indicates that EU cooperation has not reached a level where it would Nonetheless, the debate about indicates that EU cooperation has not reached a level where really alter the international balance of power. As realists suggest, this would probably require disengagement really alter the international balance of power. As realists suggest, this would probably require disengagement of the US coupled with an existential shock “Zero hour” where the EU turns into a fully-fledged supranational of the US coupled with an existential shock. “Zero hour” where the EU turns into a fully-fledged supranational defence union is thus not in sight Moreover, for this to happen CSDP will likely not be a necessary condition, defence union thus in sight. Moreover, for this to happen CSDP will likely not be a necessary condition, but an intervening factor at best but an intervening factor at best.

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China’s Role in East Europe’s Security Architecture: the Case of South China’s Role in East Europe’s Security Architecture: the Case of South Caucasus

Abstract Abstract

University) Eka Khorbaladze (Yale University)

Eka Khorbaladze (Yale

The article seeks to reveal the role of China in East Europe’s security architecture, particularly, in South The article seeks to reveal the role of China in East Europe’s security architecture, in South Caucasus region. The author examines the key interests of Chinese foreign policy in the region, and argues Caucasus region The author examines the key interests of Chinese foreign policy in the region, and argues that nowadays China stands apart from security issues, and mainly deepens cooperation with Caucasus states that nowadays China stands apart from security issues, and mainly deepens cooperation with Caucasus states in the sphere of economy However, China’s growing role in global affairs, and increasing great power in the sphere of economy. However, China’s growing role global affairs, and increasing great power competition might affect China’s attitude to security agenda in East of Europe in mid-terms perspective, competition might affect China’s attitude security agenda in East of Europe in mid-terms perspective, taking into account the strategic importance of the South Caucasus as one of the transport corridors of Chinese into account the strategic of the South Caucasus as one of transport corridors of Chinese Belt and Road Initiative. Belt and Road Initiative

Introduction Introduction

A series of political events that led to the collapse of the USSR, the cessation of the existence of the

A series of political events that led to the collapse of the USSR, the cessation of the of the socialist system and self-determination of the states of the South Caucasus region, led to the acquisition of the socialist system and self-determination of the states of the South Caucasus region, led to the of the Caucasian direction as one of the priorities in the foreign policies of Russia, the US, the EU and others. Caucasian direction as one of priorities in the foreign Russia, US, EU

This was explained not only by the important strategic position of the Caucasus, but also by the fact that This was explained not only by the important strategic position of the Caucasus, but also by the fact that significant sources of oil and gas were discovered in this region (Caspian shelf). Since that time, the significant sources of oil and gas were discovered in this region (Caspian shelf) Since that time, the Caucasian-Caspian region began to claim the role of one of the largest suppliers of energy raw materials to the Caucasian-Caspian region began to claim the role of one of the largest suppliers of energy raw materials to the world market world market.

John Helferich (University of Oxford) John Helferich (University of Oxford)

Countries Caucasus Countries

China’s Role in East Europe’s Security Architecture: the Case of South Caucasus Countries China’s Role in East Europe’s Security Architecture: the Case of South Caucasus Countries

Eka Khorbaladze (Yale University) Eka Khorbaladze (Yale University)

Explored oil reserves in the Caspian shelf amounted to 12 billion tons of Explored oil reserves in the Caspian shelf amounted to 12 billion tons of standard fuel (according to the standard fuel (according to the Azerbaijani authorities, there are at least 3 billion tons of undiscovered hydrocarbons in their sector of the Azerbaijani authorities, there are at least 3 billion tons of undiscovered hydrocarbons in their sector of the Caspian coast)(1). Caspian coast)(1).

In addition to energy raw materials, the region is also source of other materials: iron, copper and In addition to energy raw materials, the region is also source of other materials: iron, copper and chromium, chlorides, phosphates, asbestos, etc. Moreover, almost 90% of the world's sturgeon stocks are chromium, chlorides, phosphates, asbestos, etc Moreover, almost 90% of the world's sturgeon stocks are concentrated in the Caspian Sea, which, together with black caviar, make up a significant part of the exports of concentrated in the Caspian Sea, which, together with black caviar, make up a significant part of the exports of the Caspian countries the Caspian countries.

As a result, the Caucasus-Caspian region acquired the status of an important strategic hub of world As a result, the Caucasus-Caspian region acquired the status of an strategic hub of world geopolitics, in which interests of the largest Western countries led by the United States, as well as Russia and in which interests the largest Western led by the States, as as Russia and later China, were concentrated. Thus, importance of the South Caucasus is determined not only by natural later China, were concentrated Thus, importance of the South Caucasus is determined not only by natural resources but also by the clash of opposing geopolitical interests (NATO expansion vs. the interests of Russia, resources but also by the clash of opposing geopolitical interests expansion vs the interests of Russia, the EU vs. the EAEU, the factor of Iran, Turkey, etc.). The South Caucasus is of great importance for the the EU vs. the EAEU, the factor of Iran, Turkey, etc.). The South Caucasus is of great importance for the energy security of the EU as a transport corridor through which up to 10% of oil imports from Europe pass energy security of the as a transport corridor through which up to 10% of oil imports from Europe pass. The EU is also actively involved in the region within the framework of the Eastern Partnership(2) and The EU is also actively involved in the region within the framework of the Eastern Partnership(2) and Transport Corridor Europe-Caucasus-Asia (TRACECA) projects(3). The changing balance of power in the Transport Corridor Europe-Caucasus-Asia (TRACECA) projects(3). The changing of power in the Black Sea and Russian-Turkish geopolitical dominance in the South Caucasus is another important dimension Black Sea and Russian-Turkish geopolitical dominance in the South Caucasus is another important dimension to be considered. Therefore, the South Caucasus remains one of the main fault lines between Russia and the to be considered Therefore, the South Caucasus remains one of the main fault lines between Russia and the West, and more recently between Turkey and Russia. West, and more recently between Turkey and Russia.

China’s foreign policy in South Caucasus region

China’s foreign policy in South Caucasus region

In comparison with other states that have certain goals of participation in the Caucasian geopolitics, the In comparison with other states that have certain goals of participation in the Caucasian People’s Republic of China (PRC) has little historical experience in geopolitical contacts with Caucasus states. People’s Republic of China (PRC) has little historical experience in geopolitical contacts with Caucasus states However, China intends to change this situation in the near future and seeks to give a new impetus to relations However, China intends to change this situation in the near future and seeks to give a new impetus to relations with the states of the region. The PRC is involved in geopolitical relations by virtue of an objective process, with the states of the region. The PRC is involved in geopolitical relations by virtue of an objective process, the contours of which are already beginning to emerge the contours of which are already beginning to emerge.

Today, the main goal of China's foreign policy is to promote the creation of a renewed system of Today, the main goal of China's foreign policy is promote the creation of a renewed system of international relations, in which it holds one of the key positions. China is striving for a position on the world relations, in which it holds one the key positions. is for a on the stage in which it could not be isolated or be an object of pressure, and pretends its interests to be taken into stage in which it could not be isolated or be an of pressure, and pretends its interests to be taken into account by other participants of “geopolitical games”. account by other participants of “geopolitical games”

China seeks to deepen economic ties with South Caucasus states which involves reducing the possibility of China seeks to deepen economic ties with South Caucasus states which involves reducing the possibility of the penetration of pan-Turkism and Islamic fundamentalism into China, as well as the fight against various the penetration of pan-Turkism and Islamic fundamentalism into China, as well as the fight against various ideologies within the country by improving socio-economic indicators in the states of the region. ideologies within the country by improving socio-economic indicators in the states of the region.

Beijing's interest in the South Caucasus also lies in the creation of a stable economic basis which over time Beijing's interest in South Caucasus also lies in creation of a stable basis which over time will allow China to come closer to the markets of Europe. Based on its convictions, China, in the context of will allow China to come closer to the markets of Europe Based on its convictions, China, in the context of pragmatism, considers the territory from the Black Sea to Central Asia as an adequate investment of its pragmatism, considers the territory from the Black Sea to Central Asia as an adequate investment of its economic resources. economic resources.

1 Elif Hatun Onal-Kilicbeyli, Elnur Hasan Mikail2, and Hakan Çora, “Caspian region: a focus on 1 Hatun Onal-Kilicbeyli, Elnur Hasan Mikail2, Hakan Çora, “Caspian region: a focus on Azerbaijan – oil, natural gas, environment and resource management”, 2020, https://www.e3s- Azerbaijan – oil, natural gas, environment and resource management”, 2020, https://www e3sconferences.org/articles/e3sconf/pdf/2021/20/e3sconf emmft2020 01017.pdf conferences org/articles/e3sconf/pdf/2021/20/e3sconf emmft2020 01017.pdf

2 Eastern Partnership, https://eeas europa eu/diplomatic-network/eastern-partnership en

2 Eastern Partnership, https://eeas eu/diplomatic-network/eastern-partnership en

3 TRACECA, http://www traceca-org org/en/about-traceca/

3 TRACECA, http://www.traceca-org.org/en/about-traceca/

China’s Role in East Europe’s Security Architecture: the Case of South China’s Role in East Europe’s Security Architecture: the Case of South Caucasus Countries Caucasus Countries

Eka Khorbaladze (Yale University) Eka Khorbaladze (Yale University)

In terms of politics, it is complicated task for Chinese foreign policy to In terms of politics, it complicated task for Chinese foreign policy infiltrate such specific relations as infiltrate such specific relations as Russian-Armenian, American-Georgian and Turkish-Azerbaijani ties In a broader dimension, China also Russian-Armenian, American-Georgian and Turkish-Azerbaijani ties. In a broader dimension, China also deviates from direct participation in setting or changing the security architecture in the region. Although, deviates from direct participation in setting or changing the architecture in the region. considering the growing role of China in modern international relations, a gradual increase of China’s considering the growing role of China in modern international relations, a gradual increase of China’s contribution in this sphere is not excluded. The PRC has repeatedly stated its desire to build a multipolar contribution in this sphere is not excluded. The PRC has repeatedly stated its desire to build a multipolar world, one of the poles of which China itself will be. In this regard, the South Caucasus represents a zone for world, one of the poles of which China itself will be. In this regard, the South Caucasus represents a zone for Beijing, in which it, along with the United States, Russia, the EU, Turkey and Iran, will need to establish itself Beijing, in which it, along with the United States, Russia, the EU, Turkey and Iran, will need establish itself in order not to allow others to take control of this region. in order not to allow others take control of this region.

In the foreign policy dimension, China is a global force for the South Caucasian republics as permanent In the foreign dimension, China a global force for South Caucasian republics as permanent member of the UN Security Council. Over and above, China's non-bloc status, which is not part of either the member of the UN Security Council Over and above, China's non-bloc status, which is not part of either the NATO or the CSTO, gives it an additional field for foreign policy maneuver in relations with the countries NATO or the CSTO, gives it an additional field for foreign policy maneuver in relations with the countries of the South Caucasus. of the South Caucasus.

As already noted, China is a kind of newcomer to Caucasian geopolitics, therefore it is not burdened by the As already noted, China a kind of to Caucasian geopolitics, therefore burdened by the problems existing in the region and does not bear any political and historical responsibility for their problems in the region and does not bear any political and historical responsibility for their appearance. Beijing, of course, uses this circumstance and distances itself as much as possible from appearance. Beijing, of course, uses this circumstance and distances itself as much as possible from involvement in political problems, primarily in the processes of settling existing conflicts in the region. This involvement in political problems, primarily in the processes of existing conflicts in the region. This does not mean that China does not make statements regarding the settlement of the South Caucasian conflicts. does not mean that China does not make statements regarding the settlement of the South Caucasian conflicts But in these statements, the main emphasis is placed exclusively on a peaceful settlement, without any But in these statements, the main emphasis is placed exclusively on a peaceful settlement, without any comments on the territorial integrity or the right of peoples to self-determination (the principles to which the comments on the territorial integrity or the right of peoples self-determination (the principles which the opposing sides appeal) sides appeal).

China’s relations with Azerbaijan, Armenia and Georgia China’s relations with Armenia and Georgia

With three states of the South Caucasus, China is mainly developing cooperation in the field of logistics, With three states of the South Caucasus, China is mainly developing cooperation in the field of logistics, infrastructure, trade and digitalization. infrastructure, trade and digitalization.

Currently, Azerbaijan is China's largest trading partner among the countries of the South Caucasus China Currently, Azerbaijan is China's largest trading partner among the countries of the South Caucasus. China has provided Baku with significant investments in projects of the transit, digital, natural and non-oil sectors has provided Baku with significant investments projects of the digital, natural and non-oil sectors. As China develops its overland trade route under the Belt and Road Initiative (BRI), it is investing in the As China develops its overland trade route under the Belt and Road Initiative (BRI), is investing in modernization of Baku’s port and the Baku-Tbilisi-Kars railway. In parallel, Beijing signed an $821 million modernization of Baku’s port and the Baku-Tbilisi-Kars In Beijing signed an $821 million economic package with Baku to expand its influence in the non-oil sectors(4). The deal includes the economic package with Baku to expand its influence in the non-oil sectors(4) The deal includes the development of chemical industrial parks, agricultural industrial parks and greenhouse complexes. In addition, development of chemical industrial parks, agricultural industrial parks and greenhouse complexes. In addition, with the assistance of China, within the framework of the Azerbaijani Digital Hub initiative, an Asian- with the assistance of China, within the framework of the Azerbaijani Digital Hub initiative, an AsianEuropean telecommunications corridor will be created, complementing the Digital Silk Road, connecting European telecommunications corridor will be created, complementing the Digital Silk Road, connecting Mumbai and Frankfurt through Azerbaijan. Mumbai and Frankfurt through Azerbaijan.

In recent years, China has become Armenia's second largest trading partner. In addition to providing In recent years, China has become Armenia's second largest trading partner In addition to providing millions of dollars of economic assistance, China is investing in transportation, logistics units and the millions of dollars of economic assistance, China is investing in transportation, logistics units and the healthcare sector. Since 2020, the post-war reality and the changing balance of power in the region have healthcare sector. Since 2020, the post-war reality and the changing balance of power in the region have created new opportunities to work on varied projects created new opportunities to work on varied projects.

4 Azerbaijan and China Sign $800 Million Economic Package: The Geo-Economic Implications,

4 Azerbaijan and China Sign $800 Million Economic Package: The Implications, Eurasia Daily Monitor, 2019, https://jamestown org/program/azerbaijan-and-china-sign-800- Eurasia Daily Monitor, 2019, https://jamestown org/program/azerbaijan-and-china-sign-800million-economic-package-the-geo-economic-implications/ million-economic-package-the-geo-economic-implications/

China’s Role in East Europe’s Security Architecture: the Case of South Caucasus Countries China’s Role in East Europe’s Security Architecture: the Case of South Caucasus Countries

Eka Khorbaladze (Yale University) Eka Khorbaladze (Yale University)

For instance: North-South Corridor(5), a For instance: North-South Corridor(5), a highway connecting Iran with Georgian seaports on the Black Sea highway connecting Iran with Georgian seaports on the Black Sea via Armenia; a railway linking Iran with Russia via Armenia and Georgia(6); and transit links between Armenia; railway linking Iran with Russia via Armenia and Georgia(6); and transit links between Azerbaijan and Turkey via Armenia represent clear points of contact for Beijing, Yerevan, Moscow, Ankara and Turkey Armenia clear points of contact for Beijing, Yerevan, Moscow, Ankara and Tehran(7). Therefore, these initiatives can accelerate the integration of these transit routes into the BRI and Tehran(7) Therefore, these initiatives can accelerate the integration of these transit routes into the BRI and deepen China's involvement, as well as increase of China's influence and role in the South Caucasus. and deepen China's involvement, as well as increase of China's influence and role in the South Caucasus

Given Georgia's growing capacity as a transit country, China has provided significant resources for Given Georgia's growing capacity as a transit country, China has provided significant resources for strategic and infrastructure projects Since the early 2000s, Beijing has invested in Georgia's hydroelectric strategic and infrastructure projects. Since the early 2000s, Beijing has invested in Georgia's hydroelectric power plants, land transportation networks, railways, seaports and industrial free zones In May 2017, Beijing plants, land networks, railways, seaports and industrial free zones. In May 2017, Beijing signed a free trade agreement with Tbilisi, making Georgia the first and only country in the region to conclude signed a free trade agreement with Tbilisi, making Georgia the first and only country in the region such a deal(8). The agreement covers 17 components, including trade, intellectual property rights, as well as e- such a deal(8) The agreement covers 17 components, intellectual property rights, as well as ecommerce and the environment. commerce and the environment

In terms of unrecognized or partially recognized republics of the South Caucasus, the main bet in the terms of unrecognized or partially recognized republics of the South Caucasus, the main bet in the development of relations Chinese side places on the resource of private entrepreneurship, which is not development of relations Chinese side places on the resource of private entrepreneurship, which not burdened by any political obligations of Beijing. burdened by any political obligations of Beijing.

Conclusion Conclusion

The rational implementation of China’s national interests allows Beijing to pursue a positive and inclusive

The rational implementation of China’s national interests allows Beijing to pursue a positive and inclusive policy throughout the South Caucasus, which has a positive effect on its foreign policy reputation. The policy throughout the South Caucasus, which has a positive effect on its foreign policy reputation. The manifestation of a strategic convergence of regional autocracies, supported by Chinese technological and manifestation of a strategic convergence of regional autocracies, supported by Chinese technological and financial power, highlights the importance of the South Caucasus as a critical crossroad and offers a financial highlights the importance of the South Caucasus as a critical crossroad and offers a significant institutional framework and authoritarian alternative to what other players offer for regional institutional framework and what other players offer for regional development. It also creates a fault line in the wider Black Sea region where struggle between competing development It also creates a fault line in the wider Black Sea where between competing ideologies and infrastructure projects will unfold with great intensity. The growing geo-economic influence of ideologies and infrastructure projects will unfold with great intensity. The growing geo-economic influence of China in the East of Europe gradually will affect security architecture as well. Although China is still betting China in the East of Europe gradually will affect security architecture as well. Although China is still betting on the economic component, due to the great power competition (the strategic rivalry between Beijing and on the economic component, due to the great power competition (the strategic rivalry between Beijing and Washington), Beijing's political influence is likely to extend to the South Caucasus region. Washington), Beijing's political influence likely to extend to the South Caucasus region.

The future of creation of updated security architecture in Eastern Europe will be a complex and lengthy The future of creation of updated security architecture in Eastern Europe will be a complex and process, and will be mostly determined by external influence and the regional balance of power. Even if China process, and will be mostly determined by external influence and the regional balance of power Even if China today stands apart from this process, it might have to change its attitude to gain foothold in one of strategically today stands apart from this process, it might have to change its attitude to gain foothold in one of strategically important regions of the world. important regions of the world.

5 Armenia’s North-South Highway Linking Europe with Iran, Dubai, and India, Silk Road

5 Armenia’s North-South Highway Linking Europe Iran, Dubai, and India, Silk Briefing, https://www.silkroadbriefing.com/news/2018/07/03/armenias-north-south-highway- Briefing, https://www silkroadbriefing com/news/2018/07/03/armenias-north-south-highwayllinking-europe-iran-dubai-india/ inking-europe-iran-dubai-india/

6 Iran Seeks to Reroute North-South Transport Corridor to Armenia, Away From Azerbaijan,

6 Iran Seeks to Reroute North-South Corridor to Armenia, Away From Azerbaijan, Eurasia Daily Monitor, 2021, https://jamestown org/program/iran-seeks-to-reroute-north-south- Daily Monitor, 2021, https://jamestown.org/program/iran-seeks-to-reroute-north-southttransport-corridor-to-armenia-away-from-azerbaijan/ ransport-corridor-to-armenia-away-from-azerbaijan/

7 Nakhchivan rail plans promise to rewire Caucasus connections, 2021, 7 rail plans promise to rewire Caucasus connections, 2021, https://eurasianet org/nakhchivan-rail-plans-promise-to-rewire-caucasus-connections https://eurasianet org/nakhchivan-rail-plans-promise-to-rewire-caucasus-connections

8 Free Trade regime with People’s Republic of China, FreeTradeZone.ge,

8 Free Trade regime with People’s Republic of China, FreeTradeZone ge, https://www freetradezone ge/georgia-china-free-trade-agreement https://www freetradezone ge/georgia-china-free-trade-agreement

China’s Role in East Europe’s Security Architecture: the Case of South China’s Role in East Europe’s Security Architecture: the Case of South Caucasus Countries Caucasus Countries

Eka Khorbaladze (Yale University) Eka Khorbaladze (Yale University)

Sources Sources

1 Elif Hatun Onal-Kilicbeyli, Elnur Hasan Mikail2, and Hakan Çora, “Caspian region: a focus on Azerbaijan

1. Elif Hatun Onal-Kilicbeyli, Elnur Hasan Mikail2, and Hakan Çora, “Caspian region: a focus on Azerbaijan

– oil, natural gas, environment and resource management”, 2020, https://www.e3s- oil, natural gas, environment and management”, 2020, https://www.e3sconferences.org/articles/e3sconf/pdf/2021/20/e3sconf_emmft2020_01017.pdf conferences.org/articles/e3sconf/pdf/2021/20/e3sconf_emmft2020_01017.pdf

2. Eastern Partnership, https://eeas.europa.eu/diplomatic-network/eastern-partnership_en

2 Eastern Partnership, https://eeas europa.eu/diplomatic-network/eastern-partnership_en

3 TRACECA, http://www traceca-org org/en/about-traceca/

3. TRACECA, http://www.traceca-org.org/en/about-traceca/

4. Azerbaijan and China Sign $800 Million Economic Package: The Geo-Economic Implications, Eurasia

4. Azerbaijan and China Sign $800 Million Economic Package: The Geo-Economic Implications, Eurasia Daily Monitor, 2019, Daily Monitor, 2019, https://jamestown.org/program/azerbaijan-and-china-sign-800-million-economic-package-the-geo-economichttps://jamestown org/program/azerbaijan-and-china-sign-800-million-economic-package-the-geo-economiciimplications/ mplications/

5 Armenia’s North-South Highway Linking Europe with Iran, Dubai, and India, Silk Road Briefing, 5. Armenia’s North-South Highway Linking Europe with Iran, Dubai, and India, Silk Road Briefing, https://www.silkroadbriefing.com/news/2018/07/03/armenias-north-south-highway-linking-europe-iran-dubaihttps://www.silkroadbriefing.com/news/2018/07/03/armenias-north-south-highway-linking-europe-iran-dubaiiindia/ ndia/

6. Iran Seeks to Reroute North-South Transport Corridor to Armenia, Away From Azerbaijan, Eurasia Daily

6. Iran Seeks to Reroute North-South Transport Corridor to Armenia, Away From Azerbaijan, Eurasia Daily Monitor, 2021, https://jamestown.org/program/iran-seeks-to-reroute-north-south-transport-corridor-to- Monitor, 2021, https://jamestown.org/program/iran-seeks-to-reroute-north-south-transport-corridor-toarmenia-away-from-azerbaijan/ armenia-away-from-azerbaijan/

7. Nakhchivan rail plans promise to rewire Caucasus connections, 2021, https://eurasianet.org/nakhchivan-

7 Nakhchivan rail plans promise to rewire Caucasus connections, 2021, https://eurasianet.org/nakhchivanrail-plans-promise-to-rewire-caucasus-connections rail-plans-promise-to-rewire-caucasus-connections

8 Free Trade regime with People’s Republic of China, FreeTradeZone.ge,

8. Free Trade regime with People’s Republic of China, FreeTradeZone.ge, https://www freetradezone ge/georgia-china-free-trade-agreement https://www.freetradezone.ge/georgia-china-free-trade-agreement

Crisis in NATO’s backyard: Confronting Montenegrin divisions Crisis in NATO’s backyard: Confronting Montenegrin divisions

Introduction Introduction

In the midst of the crisis produced by the war in Ukraine, a small South-East European country – a NATO In the midst of crisis by the war in Ukraine, a small South-East European country – a NATO member state and a front-runner in negotiations with the EU – copes with political fluctuations and member state and a front-runner in negotiations with the EU – copes with political fluctuations and economic hardships, which resulted in a delayed and indecisive response to the Russian aggression in economic hardships, which resulted in a delayed and indecisive response to the Russian aggression in Ukraine and made it vulnerable to external influence. Ukraine and made it vulnerable to external influence.

Owing it to its geopolitical position in the Adriatic Sea, Montenegro has always been on the crossroad of Owing it to its geopolitical position in the Adriatic Sea, Montenegro has always been on the crossroad of two worlds. On the one hand, the country cherishes close historical and economic relations with Russia, two worlds. On the one hand, the country close and economic relations with Russia, further intensified after regaining independence in 2006. On the other hand, Montenegro is also on a pro- further intensified after regaining independence in 2006. On the other hand, Montenegro is also on a proWestern path that includes NATO and EU membership. Regardless of its pro-Western path, Montenegro Western path that includes NATO and EU membership. Regardless of its pro-Western path, Montenegro imposed sanctions on Russia only six weeks after the Russian aggression on Ukraine began. imposed sanctions on Russia only six weeks after the Russian aggression on Ukraine began. Why have there Why have there been delays to Montenegrin Russia sanctions? How is the war in the European East going to affect been delays to Montenegrin Russia sanctions? How is the war in the European East going to affect Montenegro, which has already been coping with ethnic divisions? which has already been coping with ethnic divisions?

While the West is focused on finding a solution for the conflict in Ukraine that had been announced, and While the West is focused on finding a solution for the conflict in Ukraine that had been announced, and yet somehow never expected, many fail to see that potentially violent turmoil is now taking place in a small yet somehow never expected, many fail to see that potentially violent turmoil is now taking place in a small Balkan country – a NATO member – which is coping with political crisis without a government in place. Balkan country – a NATO member – which is coping with political crisis without a government in place. The aim of this paper is to explain the nature of the political divide in Montenegro, its dependence on The aim of this paper is to explain the nature of the political divide in Montenegro, its dependence on outside influence, as well as the nature of its interaction with the ongoing crisis in Ukraine. The paper will outside influence, as well as the nature of its with the ongoing crisis in Ukraine. The paper will also evaluate the prospects of the situation developing into a security threat not only for the region, but also also evaluate the prospects of situation developing into a security not only for the also for the EU and NATO member states. It will also argue for a swift and decisive diplomatic action by NATO for the EU and NATO member states It will also argue for a swift and decisive action by NATO and the EU, before we witness a return to the violence that accompanied the breakup of Yugoslavia. and the EU, before we witness a return to the violence that accompanied the breakup of Yugoslavia

Brief overview of the political situation in Montenegro Brief overview of the political situation Montenegro

a. External Dependence a. External

Montenegro is a small(1) multi-religious(2) and multi-ethnic(3) Mediterranean country, located on the Balkan Montenegro is a small(1) multi-religious(2) and Mediterranean country, located on the Balkan Peninsula. Due to its geopolitical and strategic position, Montenegro always stood between the East and the Peninsula. Due to its geopolitical and strategic position, Montenegro always stood between the East and the West Relations between Montenegro and Russia date back to the 18th century, when Montenegro regularly West. Relations between Montenegro and Russia date back to the 18th century, when Montenegro regularly received financial assistance and political protection from Russia With Russian strong influence, Montenegro received financial assistance and political protection from Russia. With Russian strong influence, Montenegro gained independence in 1878, and Russia acknowledged the restoration of Montenegrin independence and the gained independence in 1878, and Russia acknowledged restoration of Montenegrin independence and the split-up with Serbia in 2006. Russians began to heavily invest in Montenegro, to buy property and to travel to with Serbia in 2006 Russians began to heavily invest in Montenegro, to buy property and to travel to the country. In 2010, the share of Russian tourists in Montenegro was 15.3%, while in 2021 it grew to 17.7% the country In 2010, the share of Russian tourists in Montenegro was 15.3%, while in 2021 it grew to 17.7% (Statistical Office, 2010, 2021), making Russia an important economic factor in the country whose one-quarter (Statistical Office, 2010, 2021), making Russia an important economic factor in the country whose one-quarter (22 2% in 2019(4), Central Bank of Montenegro) of GDP is dependent on tourism (22.2% in 2019(4), Central Bank of Montenegro) of GDP dependent on tourism.

1 620 029 inhabitants (Statistical Office, 2011), 13 812 km2

1 inhabitants (Statistical Office, 2011), 13 812 km2.

2 Orthodox Christians (72%), Muslim (15 9%), Catholics (3.44%), and others

2 Orthodox Christians (72%), Muslim (15 9%), Catholics (3.44%), and others

3 Montenegrins (45%), Serbs (28.7%), Bosniaks (8.6%), Albanians (4.9%), Croats (0.97%), and others.

3 Montenegrins (45%), Serbs (28 7%), Bosniaks (8 6%), Albanians (4.9%), Croats (0.97%), and others

4 Data for 2021 are pending, and 2020 is not comparable given the COVID-19 pandemic and travel bans across the world.

4 Data for 2021 are pending, and 2020 is not comparable given the COVID-19 pandemic and travel bans across the world

Anđela Mićanović (University of Luxembourg) Anđela Mićanović (University of Luxembourg)

Crisis in NATO’s backyard: Confronting Montenegrin divisions Crisis in NATO’s backyard: Confronting Montenegrin divisions

Anđela Mićanović (University of Luxembourg) Anđela Mićanović (University of Luxembourg)

In 2009, however, Montenegro applied for a membership in NATO Following the Russian annexation of In 2009, however, Montenegro applied for a membership in NATO. Following the of Crimea in 2014, Podgorica imposed sanctions on Russia, aligning its foreign policy with the EU’s. As a Crimea in 2014, Podgorica imposed sanctions on aligning its foreign policy with the EU’s. As a response, for a short time period, the Russian Government put Montenegro on the list of “enemy” countries. In response, for a short time period, the Russian Government put Montenegro on the list of “enemy” countries. In 2016, prior to the parliamentary elections, Montenegro faced an attempted coup allegedly plotted by two 2016, prior to the parliamentary elections, Montenegro faced an attempted coup allegedly plotted by two leaders of the opposition Democratic Front (DF). Russian and Serbian citizens were also involved and charged leaders of the opposition Democratic Front (DF). Russian and Serbian citizens were also involved and charged with a string of offenses including terrorism and organized crime. with a string of offenses including terrorism and organized crime

The population has been divided over its support for NATO Mostly the Serbian minority, supported by the The population has been divided over its support for NATO. Mostly the Serbian minority, supported by the pro-Serbian political actors and the Serbian Orthodox Church, advocated against the membership (37% pro-Serbian political actors and the Serbian Orthodox Church, advocated against the membership (37% against in 2016) (Damar, 2016) Their attitudes were influenced by historical ties to Russia, the NATO against in 2016) (Damar, 2016). Their attitudes influenced by historical to Russia, the NATO intervention in the Federal Republic of Yugoslavia (i e Serbia and Montenegro) in 1999, leading to significant intervention in the Federal Republic of Yugoslavia (i.e. Serbia and Montenegro) in 1999, leading to significant casualties, as well as their nostalgic sentiment towards the state union with Serbia However, the government casualties, as well as their nostalgic sentiment towards the state union with Serbia. However, the government set the parliament to decide on the matter, and Montenegro joined the alliance in 2017, sparkling yet another the parliament to decide on the matter, and Montenegro joined the alliance in 2017, sparkling yet another division in the Montenegrin state division in the Montenegrin state.

b. Nature of Current Divisions b Nature of Divisions

A further major escalation of tensions was noted in 2020, prior to and following the parliamentary elections A further major escalation of tensions was noted in 2020, prior to and following the parliamentary elections. Extended boycotts of the parliament, an unsuccessful attempt at electoral reform, including a blockade of Extended boycotts of the parliament, an unsuccessful attempt at electoral reform, including a blockade of the judiciary and the lack of expected reforms produced dissatisfaction among citizens. The elections were, the judiciary and the lack of expected reforms produced dissatisfaction among citizens. The elections were, additionally, decisively influenced by Serbia, which financially supported Serbian organizations in the additionally, decisively influenced by Serbia, which financially supported Serbian organizations in the country, claiming that the Serbian minority was being disenfranchised in Montenegro. It resulted in country, claiming that the Serbian minority was being disenfranchised in Montenegro. It resulted in dramatic displays of Serbian nationalism across the country. In line with that rhetoric, the Serbian Orthodox dramatic displays of Serbian nationalism across the country In line with that rhetoric, the Serbian Orthodox Church played a major role in uniting the Orthodox and mostly Serbian population in Montenegro, inspiring Church played a major role in uniting the Orthodox and mostly Serbian population in Montenegro, inspiring them to vote. Three years after joining NATO, and after thirty years in power, the western-oriented them to vote Three years after joining NATO, and after thirty years in power, the western-oriented Democratic Party of Socialists (DPS) and its coalition partners lost the elections, and pro-Russian DF Democratic Party of Socialists and its coalition partners lost the elections, and pro-Russian DF became part of the governing majority. The new government was composed of eleven ideologically became part of the governing majority The new government was composed of eleven ideologically opposed political parties. They were all united over one goal – to dethrone the DPS, given their long hold opposed political parties They were all united over one goal – to dethrone the DPS, given their long hold on power, and the alleged involvement of a number of its high-ranking officials in criminal activities. on power, and the alleged involvement of a number of its officials in criminal activities Such a turn in domestic politics strongly influenced the pro-Western course of the country and destabilized it Such turn in domestic politics strongly influenced the pro-Western course of the country and destabilized it by intensifying ethnic tensions. More importantly for the EU and NATO, the new Montenegrin government by intensifying ethnic tensions. More importantly for the EU and NATO, the new Montenegrin government gained access to the security sector, making sensitive NATO information vulnerable to external influence. gained access to the security sector, making sensitive NATO information vulnerable to external influence. Consequently, at the beginning of February – right before the breakout of the war in Ukraine, Montenegro's Consequently, at the beginning of February – right before the breakout of the war in Ukraine, Montenegro's government collapsed in a no-confidence vote. The acting President of the Parliament from DF continues to government collapsed in a no-confidence vote. The acting President of the Parliament from DF continues to block the work of the institution by not calling for a voting session to approve the new government. The block the work of the institution by not calling for a voting session to approve the new government The deadlock in decision making is further destabilizing the country, which finally joined its NATO allies in deadlock in decision making is further destabilizing the country, which finally joined its NATO allies in sanctioning Russia’s aggression only six weeks after the Russian invasion commenced. sanctioning Russia’s aggression only six weeks after the Russian invasion commenced

This delay was a result of a couple of factors: (1) some political actors constituting the outgoing government This delay was a result of a couple of factors: (1) some political actors constituting the outgoing government coalition being close to Russia, (2) local elections in three municipalities being held in March, which is why coalition being close Russia, (2) local elections three municipalities being held in March, which why parties feared a loss of citizen support, and (3) the government being concerned about economic hardships parties feared a loss of citizen support, and (3) the government being concerned about hardships subsequent to the alienation of Russian tourists subsequent to the alienation of Russian tourists.

Crisis in NATO’s backyard: Confronting Montenegrin divisions Crisis in NATO’s backyard: Confronting Montenegrin divisions

c Montenegro – the next Ukraine?

c. Montenegro the next Ukraine?

While Putin tries to depict Ukraine as one person’s (Vladimir Lenin) creation, emphasizing that Ukraine is While Putin tries to depict Ukraine as one person’s (Vladimir Lenin) creation, emphasizing that Ukraine is “an inalienable part of our (Russian) own history, culture and spiritual space” (Putin, 2022), similar rhetoric “an inalienable part of our (Russian) own history, culture and space” 2022), similar rhetoric can be found in Montenegro. A segment of political representatives of the Serbian minority claim that can be found in Montenegro. A segment of political representatives of the Serbian minority claim that Montenegrin history and culture have always been tied to Serbian heritage, neglecting a long Montenegrin Montenegrin history and culture always tied to Serbian neglecting a Montenegrin past and the fact that both Montenegro and Serbia were recognized at the same time as independent states past and the fact Montenegro and Serbia were recognized at the same time as independent states at the Berlin Congress in 1878. This narrative is also coming from Serbian political and academic circles, the Berlin Congress in 1878. This narrative also coming from Serbian political and academic circles, including the former Minister of Defense and Interior, Aleksandar Vulin, where it can often be heard that including the former Minister of Defense and Interior, Aleksandar Vulin, where it can often be heard that the “artificial Montenegrin nation” should be reunited with Serbia, as it belongs to the cultural and historical the “artificial Montenegrin nation” should be reunited with Serbia, as belongs to the cultural and historical Serbian heritage Such rhetoric was recently manifested by the metropolitan of the Serbian Orthodox Serbian heritage. Such rhetoric was recently manifested by the metropolitan of the Serbian Orthodox Church in Montenegro, Joanikije Micovic, who said that events in Ukraine came as a result of atheism and Church in Montenegro, Joanikije Micovic, who said that events in Ukraine came as a result of atheism and that “Montenegro is projected to be the Little Ukraine” (Micovic, 2022) that “Montenegro is projected to be the Little Ukraine” (Micovic, 2022).

Security threat to Europe and NATO: A spillover effect Security threat to Europe and NATO: A spillover effect

Montenegro is facing a threefold challenge at the moment Firstly, the country is coping with the internal Montenegro is facing a threefold challenge at the moment. Firstly, the country is coping with the internal political divide and growing ethnic tensions, which are causing a blockage in the decision-making process political divide and growing ethnic tensions, which causing a blockage the decision-making process and keeping it from moving forward in the EU integration process Secondly, Montenegro is dealing with and keeping from moving forward in the EU integration process. Secondly, Montenegro is dealing with economic hardships exacerbated by the Ukrainian crisis, which are expected to be further intensified after economic hardships exacerbated by the Ukrainian crisis, which are expected to be further intensified after the peak tourist season ends. Finally, the country is at the crossroads of the ongoing regional geopolitical the peak tourist season ends. Finally, the country is at the crossroads of the ongoing regional geopolitical turmoil, supported by conflicting interests of the East and the West. turmoil, supported by conflicting interests of the East and the West.

As a result of the world economic crisis, the inflation rate in Montenegro increased to 9.7% in March 2022 As a result of world economic crisis, the inflation rate in Montenegro to 9.7% in March 2022 (as compared to 1.99% in 2021), while consumer prices rose 3.4% (Trading Economics, 2022). The country (as compared 1.99% in 2021), while consumer prices rose 3.4% (Trading Economics, 2022). The country is struggling to import enough quantities of food, and it is expected that it will suffer even more in the struggling to import enough quantities of food, and it is expected that will suffer even more the absence of Russian and Ukrainian tourists Economic hardships are further intensified with Serbia’s absence of Russian and Ukrainian tourists. Economic hardships are further intensified with Serbia’s decision to stop the imports of oil, corn, and wheat flour to Montenegro The outgoing Prime Minister, decision to stop the imports of oil, corn, and wheat flour to Montenegro. The outgoing Prime Minister, Zdravko Krivokapic, recently explained that Serbia was attempting to extort Montenegrin accession in the Zdravko Krivokapic, recently explained that Serbia was attempting to extort Montenegrin accession in the Open Balkan Initiative(5), which Montenegro considers to be a security threat(6), as well Open Balkan Initiative(5), which Montenegro considers to be a security threat(6), well. Serbia has been providing significant support to Montenegrin Serbs, and it is openly supporting the Bosnian Serbia has been significant support to Montenegrin Serbs, and it is supporting the Bosnian Serb Leader, Milorad Dodik, who is raising tensions in the already unstable Bosnia and Herzegovina. It is Serb Leader, Milorad Dodik, who is raising tensions in the already unstable Bosnia and Herzegovina It is very likely that, by creating hotspots in the region, official Belgrade is trying to construct an advantage for very likely that, by creating hotspots in the region, official Belgrade is trying to construct an advantage for its negotiations with Kosovo, demonstrating its strength to the EU and NATO, while at the same time its negotiations Kosovo, demonstrating its to EU and NATO, while at same time maintaining close cooperation with Russia and China. The ultimate goal may be to resolve the issue of maintaining close cooperation Russia and The ultimate goal may be resolve the issue of Kosovo's territorial integrity - possibly by dividing the territory into Serb and Kosovo parts - while, on the Kosovo's integrity - possibly by dividing the territory into and Kosovo parts - while, on other hand, offering its withdrawal from Bosnia and Herzegovina and Montenegro. other hand, offering its withdrawal from Bosnia and Herzegovina and Montenegro.

5 The Open Balkan Initiative is an economic zone of Albania, North Macedonia and Serbia

5 The Open Balkan Initiative is an economic zone of Albania, North Macedonia and Serbia

6 Leaders of B&H, Kosovo, and Montenegro claim that the Initiative represents a security threat, as Serbia is attempting to ”realize their nationalist

6 Leaders of B&H, Kosovo, and Montenegro claim that the Initiative represents a security threat, as Serbia is attempting to ”realize their nationalist project by camouflaging the destruction with some kind of a story about theregional cooperation” (Djukanovic, 2022) On the other hand, the project by camouflaging destruction with some a story about cooperation” (Djukanovic, 2022). On other hand, the leaders of the three countries that make up the Open Balkan Initiative claim that their goal is leaders of the three countries that make up the Open Balkan Initiative claim their goal is to integrate the region, and that it represents "a big step towards membership in the European Union" (Rama, 2022) to integrate the region, and it represents "a big step towards membership in the European Union" (Rama, 2022)

Anđela Mićanović (University of Luxembourg) Anđela Mićanović (University of Luxembourg)

Crisis in NATO’s backyard: Confronting Montenegrin divisions Crisis in NATO’s backyard: Confronting Montenegrin divisions

Anđela Mićanović (University of Luxembourg) Anđela Mićanović (University of Luxembourg)

Serbia has been providing significant support to Montenegrin Serbs, and it is openly supporting the Bosnian Serbia has been providing significant support to Montenegrin Serbs, and openly supporting the Bosnian Serb Leader, Milorad Dodik, who is raising tensions in the already unstable Bosnia and Herzegovina. It is very Serb Leader, Milorad Dodik, who is raising tensions in the already unstable Bosnia and Herzegovina. is very likely that, by creating hotspots in the region, official Belgrade is trying to construct an advantage for its likely that, by creating hotspots in the region, official Belgrade is trying to construct an advantage for its negotiations with Kosovo, demonstrating its strength to the EU and NATO, while at the same time negotiations with Kosovo, demonstrating its strength to the EU and NATO, while at the same time maintaining close cooperation with Russia and China. The ultimate goal may be to resolve the issue of maintaining close cooperation with Russia and China. The ultimate goal may be to resolve the issue of Kosovo's territorial integrity - possibly by dividing the territory into Serb and Kosovo parts - while, on the Kosovo's territorial integrity - possibly by dividing the territory into Serb and Kosovo parts - while, on the other hand, offering its withdrawal from Bosnia and Herzegovina and Montenegro. other hand, offering its withdrawal from Bosnia and Herzegovina and Montenegro

While Serbian neighbors continue to accuse the Serbs of attempts to revive the “Greater Serbia” project While Serbian neighbors continue to accuse the Serbs of attempts revive the “Greater Serbia” project (dating back to 1844 (7)), through encouraging separatist tendencies in the Republika Srpska part of Bosnia (dating back 1844 (7)), through separatist tendencies in the Republika Srpska part of Bosnia and Herzegovina and in Montenegro, politics in Bosnia and Herzegovina remains ineffective and tense The and Herzegovina and in Montenegro, politics in Bosnia and Herzegovina remains ineffective and tense. The rejection of North Macedonian NATO bid that resulted in open hostilities in 2017 (the country joined NATO rejection of North Macedonian NATO bid that resulted in open hostilities in 2017 (the country joined NATO in March 2020 after the naming dispute with Greece was resolved), boosted by nationalist sentiments between in March 2020 after the naming dispute with Greece was resolved), boosted by nationalist between the Macedonians and the Albanian ethnic minority, showed how easy it is to start a new conflict in the the Macedonians and the Albanian ethnic minority, showed how easy is to start a new conflict in the Balkans by dragging many regional parties into it and eventually spilling over throughout the region and Balkans by dragging many regional parties into it and eventually spilling over throughout the region and Europe. The current Montenegrin foreplay, therefore, must be addressed in a timely and diplomatic manner, Europe. The current Montenegrin foreplay, therefore, must be addressed in a timely and diplomatic manner, preventing tensions from escalating. preventing tensions from escalating.

Conclusion Conclusion

Sparks of conflict have been raging in Montenegro and the Western Balkans region for a long time, and the Sparks of conflict have been raging in Montenegro and the Western Balkans region for a long time, and the war in Ukraine could light the fire. This paper advocates for more determined diplomatic action and the war in Ukraine could light the fire. This paper advocates for more determined diplomatic action and the strengthening of Europe’s alliance with Montenegro, providing a brief analysis of the political situation and strengthening of Europe’s alliance with Montenegro, providing a brief analysis of the political situation and portraying the potential for tensions in the region to escalate. portraying the potential for tensions in the region to escalate

Extending to Montenegro, which borders five other Balkan nations, the NATO alliance gained a nearly Extending to Montenegro, which borders five other Balkan nations, the NATO alliance gained a nearly contiguous border along the Adriatic coast (only 25 km belongs to Bosnia and Herzegovina). Also, the contiguous border along the Adriatic coast (only 25 km belongs to Bosnia and Herzegovina) Also, the alliance managed to build a ring around other Balkan non-member states: Bosnia and Herzegovina, Serbia, alliance to build a ring around other Balkan non-member states: Bosnia and Herzegovina, Serbia, and Kosovo. This way, NATO and the US extended control over Balkan states and strengthened their and Kosovo This way, NATO and the US extended control over Balkan states and strengthened their influence. However, the Montenegrin Western orientation thus far cost the country economically, while the However, the Montenegrin Western orientation thus far cost the country economically, while the public is still divided between the East and the West. The Montenegrin NATO accession in 2017 was not is still between East the West. The Montenegrin NATO accession in 2017 was not welcomed in Russia, which may additionally strike by intensifying tensions and instabilities in this NATO welcomed in Russia, may additionally strike by intensifying tensions and instabilities in this NATO country, through its domestic political allies. Such a scenario could have a spillover effect in the region, and its domestic allies. a scenario could have a spillover effect in and create yet another hotspot for the EU, and consequently for NATO, making it harder to fight on multiple yet another hotspot for the EU, and consequently for NATO, making it harder to fight on multiple fronts fronts.

Given the current global and geopolitical turmoil and changes in the world order, the need for stabilization of

Given the current global and geopolitical turmoil and changes in the world order, the need for stabilization of Europe, which is plunging into another large-scale conflict, as well as the fact that four NATO member states Europe, which is plunging into another large-scale conflict, as well as the fact that four NATO member states are located in the Western Balkans (Albania, Croatia, Montenegro, and North Macedonia), the US and NATO are located in the Western Balkans (Albania, Croatia, Montenegro, and North Macedonia), the US and NATO need a prompt revision of their strategic policy towards the region and, especially, its member state need a prompt revision of their strategic towards the region and, especially, its member state Montenegro. Montenegro

7 Garasanin, Načertanije – the programme of Serbian foreign and national policy at the end of 1844

7 Garasanin, Načertanije – the programme of Serbian foreign and national policy at the end of 1844

Crisis in NATO’s backyard: Confronting Montenegrin divisions Crisis in NATO’s backyard: Confronting Montenegrin divisions

Anđela Mićanović (University of Luxembourg) Anđela Mićanović (University of Luxembourg)

Together with the EU, NATO needs to strengthen its presence and diplomatic activities Together with the NATO needs to strengthen its presence and diplomatic activities in Montenegro, as in Montenegro, as well as to support Montenegrin efforts to ensure economic stability and independence from the East well as to support Montenegrin efforts economic stability and independence from the East. Otherwise, a reactive approach when a “powder keg" explodes could bring conflict in the midst of the NATO Otherwise, a reactive approach when a “powder keg" explodes could bring conflict in the midst of the NATO alliance. alliance.

BIBLIOGRAPHY BIBLIOGRAPHY

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RTRS, 2022. Rama: • RTRS, 2022 Rama: Otvoreni Balkan, jer ne možemo više da čekamo EU Otvoreni Balkan, jer ne možemo više da čekamo EU, available at: , available at: https://lat.rtrs.tv/vijesti/vijest.php?id=454452 https://lat rtrs tv/vijesti/vijest php?id=454452

, available at: https://www.youtube.com/watch?v=M2vnh2fmLE0&t=84s , available at: https://www.youtube.com/watch?v=M2vnh2fmLE0&t=84s

Youtube, 2022, Youtube, 2022, Intervju predsjednika Crne Gore Mila Đukanovića za albansku MCN TV Intervju predsjednika Crne Gore Mila Đukanovića za albansku MCN TV, available at: , available at: https://www.youtube.com/watch?v=3wdyOZmUn c https://www.youtube.com/watch?v=3wdyOZmUn c

Predsednika Aleksandra Vučića Srpskoj Poseta Predsednika Aleksandra Vučića Srpskoj

The Trans-Atlantic Cooperation in Implementation of Economic Sanctions against Russia

The Trans-Atlantic Cooperation in Implementation of Economic Sanctions against Russia

Maksimas Milta ( Maksimas Milta (Yale University) Yale University)

The goal of the paper is to explain patterns of international cooperation among Trans-Atlantic partners (United The goal of the paper explain patterns of international cooperation among Trans-Atlantic (United States, European Union, United Kingdom, Canada) in imposing sanctions against Russia Three case events, States, European Union, United Kingdom, Canada) in imposing sanctions against Russia. Three case events, serving as triggers for introduction of sanctions, will be assessed: the aftermath of 2008 Russia’s war in serving as triggers for introduction of sanctions, will be assessed: the aftermath of 2008 Russia’s war Georgia, 2014 Annexation of Crimea and Proxy war in Ukraine, and 2022 Russia’s war in Ukraine What is Georgia, 2014 Annexation of Crimea and Proxy war in Ukraine, and 2022 Russia’s war Ukraine. What is the number of actors that join in sanctions? Which actors impose the sanctions? Which forum is used to the number of actors that join in sanctions? Which actors impose the sanctions? Which forum is used coordinate sanction imposition? These are some of the questions that describe the outcomes revealed in the coordinate sanction imposition? These are some of the questions that describe the outcomes revealed in the paper. paper.

Given that each of the instances involved (1) a unilateral uncoordinated military intervention by Russia against Given involved (1) a unilateral uncoordinated military intervention by Russia against its neighboring state and de facto incorporating new territories to its realm; (2) was justified by Russia as a its neighboring state and de incorporating new territories to its realm; (2) was justified by Russia as a response to its alleged security concerns; (3) constituted an element of larger geopolitical competition with the response to its alleged security concerns; (3) constituted an element of larger geopolitical competition with the West (most notably, EU and US), all three cases provide a consistent environment for exploring aspects of West (most notably, EU and US), all three cases provide a consistent environment for exploring aspects of international cooperation in respond to Russia’s aggression It must be acknowledged that each of the international cooperation respond to Russia’s aggression. It must be acknowledged that each of the intervention-sanction episodes posses a deep dependency between them, thus many causal factors come into intervention-sanction episodes a deep dependency between them, thus many causal factors come into play when addressing the puzzle play when addressing the puzzle.

This process-tracing, cause-of-effect paper looks at explanations of the specifics of coalition-building, This process-tracing, cause-of-effect paper looks at explanations of the specifics of coalition-building, partnership, and coordination in imposing sanctions. Driven by the intuition and existing practice of and coordination in imposing sanctions Driven by the intuition and existing practice of international cooperation in introduction of sanctions against Russia during the past 14 years, following international cooperation in introduction of sanctions against Russia during the past 14 years, following hypotheses are explored: are

1)Drive by domestic constituencies 1)Drive by domestic constituencies

2)Security concern 2)Security concern

3)Pressure by the United States 3)Pressure by the United States

4)Rational learning 4)Rational learning

Also, a salami-slicing approach to the growing consolidation of introduction of economics sanctions against Also, a salami-slicing approach to the growing consolidation of introduction of sanctions against Russia is applied Ultimately, the framing device of the paper is “why was Ukraine the decisive break in the Russia is applied. Ultimately, the framing device of the paper “why was Ukraine the decisive break in the previous pattern of international cooperation in imposing sanctions against Russia?” previous pattern of international cooperation in imposing sanctions against Russia?”

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11)Romanova, T (2016) Sanctions and the Future of EU–Russian Economic Relations In Europe-Asia

11)Romanova, T. (2016). Sanctions and the Future of EU–Russian Economic Relations. In Europe-Asia Studies (Vol. 68, Issue 4, pp. 774–796). Studies (Vol. 68, Issue 4, pp. 774–796).

12) Siegel, D. (2022). FROM OLIGARCHS TO OLIGARCHY. In World Affairs (pp. 1-36). D (2022) FROM OLIGARCHS TO OLIGARCHY. In World Affairs (pp. 1-36)

13)Veebel, V., & Markus, R. (2015). Lessons from the EU-Russia sanctions 2014-2015. B 13)Veebel, V , & Markus, R (2015) Lessons from the EU-Russia sanctions 2014-2015. Baltic Journal of altic Journal of Law & Politics Law & Politics, 2015 vol. 8, iss. 1, p. 165-194. , 2015 vol. 8, iss. 1, p. 165-194.

14)Welt, C , Archick, & K , Nelson, R M , Rennack, D E (2022) 14)Welt, C., Archick, & K., Nelson, R. M., Rennack, D. E. (2022) US sanctions on Russia: Economic US on Economic iimplications mplications Washington, DC: Congressional Research Service . Washington, DC: Congressional Research Service.

15)Zarate, J. (2013). 15)Zarate, J. (2013). Treasury's war: The unleashing of a new era of financial warfare Treasury's The unleashing of a new era of financial warfare. Hachette UK. . UK.

16)Zheng, H. (2020). Fragile interdependence: the case of Russia-EU relations. In Cambridge Review of H (2020) Fragile the case of Russia-EU relations In Review of International Affairs (Vol. 34, Issue 6, pp. 818–836). International Affairs (Vol 34, Issue 6, pp.

The Trans-Atlantic Cooperation in Implementation of Economic Sanctions against Russia The Cooperation in Implementation of Economic Sanctions against Russia

For Every Broken Life: Issue of Post-War Compensations for Ukraine For Every Broken Life: Issue of Post-War Compensations for Ukraine (historical (historical retrospective and institutional peculiarities) retrospective and institutional peculiarities)

Yevhenii

Monastyrskyi ( Yevhenii Monastyrskyi (Yale University) Yale University)

Wars are costly. For more than 200 years, conquerors have charged reparations and indemnities Wars are costly. For more than 200 years, conquerors have charged reparations and indemnities on conquered on conquered nations to help pay the bill. Reparations have varied from massive to tiny, paid to cancelled, but the nations to help pay the bill. Reparations have varied from massive to tiny, paid to cancelled, but the consequences have almost always been harsh. Reparations are massive cash flows that affect every aspect of consequences have almost always been harsh. Reparations are massive cash flows that affect every aspect of the political economy, yet they are little understood. Large-scale reparations fell out of favor politically when the political economy, yet they are little understood Large-scale reparations fell out of favor politically when German interwar reparations were blamed for the 1930s economic collapse and bankruptcy. They, however, German interwar reparations were blamed for the 1930s economic collapse and bankruptcy They, however, did not disappear. did not disappear

War reparations may take a variety of forms. The most common kind – is in monetary. However, reparations War reparations may take a variety of forms The most common kind – is in monetary However, reparations have included the transfer of precious commodities such as gold and silver, natural resources such as oil, the have included the transfer of precious commodities such as gold and silver, natural resources such as oil, the transfer of industrial assets, intellectual property, and restitution for specific injuries. These kinds of transfers transfer of industrial assets, intellectual property, and restitution for specific injuries These kinds of transfers are often controlled by treaties made as part of a peace settlement. Repayment of reparations is often are often controlled by treaties made as part of a peace settlement Repayment of reparations is often contingent on the withdrawal of occupying military, or it is paid in anticipation of re-occupation, motivating contingent on the withdrawal of occupying or it is paid in anticipation of re-occupation, motivating the debtor to pay. Official monetary reparations are easy to track historically since they are recorded in to pay. monetary reparations are easy to they are recorded in treaties. Illegal flows, theft, and confiscations are more difficult to understand. Consider the transfer of treaties. flows, theft, and confiscations are more difficult to Consider the transfer of intellectual property and scientific know-how as a kind of retaliation, but without apparent attribution. property and scientific as a kind of retaliation, without apparent attribution.

The history of reparations is as old as humanity itself. War is a more common historical phenomena than The history of reparations is as old as humanity itself. War is a more common historical phenomena than peaceful coexistence, and such extended periods of conditional quiescence as we have seen after 1945 are an peaceful coexistence, and such extended periods of conditional quiescence as we have seen after 1945 are an exception to broad historical patterns. exception to broad historical patterns

More often than not, wars end with a fairly clear picture of who won and who lost. At the same time, conflicts More often than not, wars end with a fairly clear picture of who won and who lost At the same time, conflicts are invariably accompanied by the mobilization and spending of vast economic resources. As a result, are invariably accompanied by the mobilization and spending of vast economic resources As a result, someone must make up for the monetary and symbolic losses. Of course, the loser is always the one who pays, someone must make up for the monetary and symbolic losses Of course, the loser is always the one who pays, but such payments were just recently formalized. Reparations, as codified in the 1919 Versailles Peace Treaty, but such payments were just formalized Reparations, as codified in the Versailles Peace Treaty, were viewed as a financial innovation in the reparation of states for globally unjust conduct at the time. The were viewed as a financial innovation in the reparation of states for unjust conduct at the time The phrase "compensation," which would not become common until the early 1990s, was not used at the time. The "compensation," not become common until the 1990s, was not used at the time The goal of the reparations institution, established more than a century ago, was to try to replace the relatively of the institution, more a century ago, was to try to replace the voluntaristic system of "countertributions" that existed before to World War I. Reparations were viewed as a system of that existed before to War I. Reparations were viewed as a more "civilized" device that was designed to keep the losing party from becoming a hostage to the victor's more "civilized" that was the losing party from becoming a hostage to victor's avarice. In other words, reparations became created as a notion referring to compensation for damages. avarice. In other words, reparations became created as a notion referring compensation for damages.

Whatever dismal the legal rules may sound, especially international law, especially when we are talking about Whatever dismal the legal rules may sound, especially international law, especially when we are talking about concepts formed decades, if not centuries ago, they do exist. And, in this case, as in the rest of the problem, concepts formed decades, if not centuries ago, they do exist And, in this case, as in the rest of the problem, history is on Ukraine's side. Historically, under international law, a State that infringes another's right is history is on Ukraine's side Historically, under international law, a State that infringes another's right is obligated to provide " appropriate compensation" or " reasonable reparation" to the victim State, in addition to obligated to provide " appropriate compensation" or reasonable reparation" to the victim State, in addition to providing guarantees against recurrence and assurances in favor of the wrongful conduct's cessation(1). providing guarantees against recurrence and assurances in favor of the wrongful conduct's cessation(1) According to Article 50 of the 1949 Geneva Convention I, Article 51 of the 1949 Geneva Convention II, and According to Article 50 of the 1949 Geneva Convention I, Article 51 of the 1949 Geneva Convention II, and Article 147 of the 1949 Geneva Convention relative to the Protection of Civilian Persons in Times of War (the Article 147 of the 1949 Geneva Convention relative to the Protection of Civilian Persons in Times of War (the Fourth Convention), " extensive destruction and appropriation of property, not justified by military necessity Fourth Convention), " extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly" constitute grave breaches. and carried out unlawfully and wantonly" constitute grave breaches.

1 Eminue, O. (1999). “Enforcement of the Iraqi-United Nations 1991 Gulf War Cease-fire Agreement”. Nigerian Journal of International Affairs, 25(1):1-19 Journal of International Affairs, 25(1):1-19

1 Eminue, O. (1999). “Enforcement of the Iraqi-United Nations 1991 Gulf War Cease-fire Agreement”. Nigerian

For Every Broken Life: Issue of Post-War Compensations for Ukraine

For Every Broken Life: Issue of Post-War Compensations for Ukraine (historical (historical retrospective and institutional peculiarities) retrospective and institutional peculiarities)

Yevhenii

Monastyrskyi ( Yevhenii Monastyrskyi (Yale University) Yale University)

Also, the same Also, the same Geneva Convention's Article 53, which deals with seized territory, stating that the Occupying Geneva Convention's Article 53, which deals with seized territory, stating that the Occupying Power is prohibited from destroying real or personal property belonging to private persons, the State, other Power is prohibited from destroying real or personal property belonging to private persons, the State, other public authorities, or social or cooperative organizations, unless necessary for military operations(2). Article public authorities, or social or cooperative organizations, unless necessary for military operations(2). Article 23(g) of the 1907 Hague Regulations specifically bans, among other things, harming or taking the enemy's 23(g) of the 1907 Hague Regulations specifically bans, among other things, harming or taking the enemy's property unless such destruction or seizure is needed by the necessities of war(3). Extensive damage and property unless such destruction or seizure is needed by the necessities of war(3) Extensive damage and seizure of property that are not justified by military necessity and are done illegally and wantonly constitute seizure of property that are not justified by military necessity and are done illegally and wantonly constitute war crimes in international armed conflict, according to Article 8(2)(a)(iv) of the 1998 ICC Statute(4). In war crimes in international armed conflict, according to Article 8(2)(a)(iv) of the 1998 ICC Statute(4) In international military operations, damaging or capturing the enemy's property is considered a war crime under international military operations, damaging or capturing the enemy's property is considered a war crime under Article 8(2)(b)(xiii). The wide ban suggests that it is permissible to destroy enemy property when the Article 8(2)(b)(xiii) The wide ban suggests that it is permissible to destroy enemy property when the conditions of war require it(5). Furthermore, the United Nations Treaty Series, 75: 287 of 1949, forbids conditions of war require it(5) Furthermore, the United Nations Treaty Series, 75: 287 of 1949, forbids "extensive damage and seizure of property carried out illegally and indiscriminately" and compensates for and seizure of property carried out illegally and indiscriminately" and compensates for requisitioned property(6). requisitioned property(6). However, the problem with international legal regulations is that they frequently lack enforcement systems or However, the with international regulations is that they frequently lack enforcement or are extremely bureaucratic, making them easily blocked by the permanent members of the United Nations are extremely bureaucratic, making them blocked by the permanent of the United Nations Security Council The good news is that there is a modern precedent for an institutional effort to obtain fair Security Council. The good news that there a modern precedent for an institutional effort to obtain fair reparations reparations.

Modern Mechanism: United Nations Compensation Commission

Modern Mechanism: United Nations Compensation Commission

Iraq invaded Kuwait on August 2, 1990. The Gulf War started on January 16, 1991, after a series of Iraq invaded Kuwait on August 2, 1990 The Gulf War started on January 16, 1991, after a series of resolutions by the United Nations Security Council (UNSC) condemning the invasion, demanding withdrawal, resolutions by the United Nations Security Council (UNSC) condemning the invasion, demanding withdrawal, and imposing an arms embargo and economic sanctions. On March 2, 1991, the United Nations Security and imposing an arms embargo and economic sanctions On March 2, 1991, the United Nations Security Council passed Resolution 686, urging Iraq to follow previous judgments and accept its responsibility under Council passed Resolution 686, urging Iraq to follow previous judgments and accept its responsibility under international law for losses, damages, and injuries caused by its invasion and occupation of Kuwait(7). Iraq international law for losses, damages, and injuries caused by its invasion and occupation of Kuwait(7) Iraq agreed to comply with Resolution 686 the following day. Iraq is liable under international law for any direct agreed to comply with Resolution 686 the following day Iraq is liable under international law for any direct loss, damage, including environmental damage and natural resource depletion, or injury to foreign loss, damage, including environmental and natural resource depletion, or to foreign governments, nationals, and corporations because of Iraq's illegal invasion and occupation of Kuwait, and of Iraq's invasion and occupation of Kuwait, according to UN Security Council Resolution 687(8). The same resolution created a fund to reimburse according UN Security Council Resolution 687(8). The same resolution created a fund reimburse claimants for these losses and requested that the Secretary-General present ideas for its implementation. claimants for these losses and requested that the Secretary-General present ideas for its implementation.

On May 2, 1991, the Secretary-General the Report of the Secretary-General Pursuant proposed the United On May 2, 1991, the Secretary-General the Report of the Secretary-General Pursuant proposed the United Nations Compensations Commission (UNCC) in accordance with paragraph 19 of Security Council Nations Compensations Commission (UNCC) in accordance with paragraph 19 of Security Council Resolution 687(9) The conventional method to reparations has been for the vanquished to pay a lump amount Resolution 687(9). The conventional method to reparations has been for the vanquished pay a lump amount to be distributed by a sovereign victor to be distributed by a sovereign victor.

2 https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=74DEE157D151F7EAC12563

2 CD0051BE1B ]] 3 https://ihl-databases.icrc.org/ihl/WebART/195-200033?OpenDocument 3 https://ihl-databases.icrc.org/ihl/WebART/195-200033?OpenDocument

4 https://legal.un.org/icc/statute/99 corr/cstatute.htm

4 https://legal.un.org/icc/statute/99 corr/cstatute.htm

5 Ibid 5 Ibid

6 https://treaties.un.org/doc/Publication/UNTS/Volume%2075/volume-75-I-973-English.pdf 6 https://treaties.un.org/doc/Publication/UNTS/Volume%2075/volume-75-I-973-English.pdf

7 http://unscr.com/en/resolutions/686 7 http://unscr.com/en/resolutions/686

8 http://unscr.com/en/resolutions/687 8

9 https://uncc.ch/sites/default/files/attachments/S-22559%20%5B1991%5D 0.pdf 9 https://uncc.ch/sites/default/files/attachments/S-22559%20%5B1991%5D 0.pdf

For

Every

Broken Life: Issue of Post-War

Yevhenii

Compensations for

Ukraine For Every Broken Life: Issue of Post-War

Compensations

for Ukraine (historical (historical retrospective and institutional peculiarities) retrospective and institutional peculiarities)

Monastyrskyi ( Yevhenii Monastyrskyi (Yale University) Yale University)

The size of the payment was often The size of the payment was often linked to the harshness of the penalty and the ability to pay. Distribution linked to the harshness of the penalty and the ability to pay. Distribution was often a political process, and the beneficiaries might vary substantially was often a political process, and the beneficiaries might vary substantially. The UNCC was founded by the UNSC in line with Chapter VII of the UN Charter, with the intention of The UNCC was founded by the UNSC in line with Chapter VII of the UN Charter, with the intention of serving as a "subsidiary organ" of the Council, performing administrative, financial, legal, and policy serving as a "subsidiary organ" of the Council, performing administrative, financial, legal, and policy tasks(10) The UNCC's main organ was its 15-member Governing Council, which was made up of UNSC tasks(10). The UNCC's main organ was its 15-member Governing Council, which was made up of UNSC representatives at the time and whose primary functions were to establish guidelines on major issues (e g , representatives the and whose primary functions were establish guidelines on major issues (e.g., claim categories, definition of "direct loss," requirements for the presentation of claims, procedures to settle claim categories, definition of "direct loss," requirements for the presentation of claims, procedures to settle disputed claims)(11) and make final decisions on the claims brought before them(12) The UNCC's particular disputed claims)(11) and make final decisions on the claims brought before them(12). The UNCC's particular and distinctive function, as well as the circumstances surrounding its formation, have all had a significant and distinctive function, as well the circumstances surrounding its formation, have all had a significant impact on how it was established and how it operates. There are two critical concerns. On the one hand, there impact on how it was established and how it operates. There are two critical concerns. On the one hand, there was a need to process an exceptionally large number of claims with the greatest impartiality, transparency, was a need to process an exceptionally large number of claims with the greatest impartiality, transparency, and fairness possible. Simultaneously, it was vital that the claims be processed swiftly and properly so that the and fairness possible. Simultaneously, it was vital that the claims be processed swiftly and properly so that the Commission could fulfil its function of compensating qualifying claimants. Other aspects of the Commission's Commission could fulfil its function of compensating qualifying claimants. Other aspects of the Commission's structure as an institution reflect these concerns, as well as the need for mechanisms intended to achieve these structure as an institution reflect these concerns, as well as the need for mechanisms intended to achieve these objectives. objectives It is worth mentioning that the Commission has received almost 3 million compensation claims totalling more It is worth mentioning that the Commission has received almost 3 million compensation claims totalling more than 300 billion USD in purported value. By the time the Commission's work was completed in February than 300 billion USD in purported value By the time the Commission's work was completed in February 2022, Iraq had paid out little more than 50 billion USD(13). This significant disparity between the size of the 2022, Iraq had out little more than 50 billion USD(13) This significant disparity between the size of the payment request and the compensation paid is also due to the fact that not all requests were granted, and only payment request and the compensation is also due to the fact that not all requests were granted, and only a little more than a year was allowed for their collection, and they were divided into different categories, so a little more than a year was for their collection, and they were into different categories, so the payments were not distributed evenly. payments were not distributed evenly. Iraq's reparations are the largest ever paid in terms of a percentage of output. The reparations-to-GDP ratio of Iraq's reparations are the largest ever in terms of a percentage of The reparations-to-GDP of more than 400% in 1991 alone attests to a complete output collapse, but even in absolute terms, Iraqi more than 400% in 1991 alone attests to a complete collapse, even in absolute terms, Iraqi restitution is enormous, at over 50 billion USD. However, to comprehend the uniqueness of the Iraqi restitution enormous, at over 50 billion USD. However, to comprehend the uniqueness of the Iraqi circumstance, two key considerations must be addressed today First and foremost, the Iraqi economy has been circumstance, two key considerations must be addressed today. First and foremost, the Iraqi economy has been isolated With the formation of the United Nations Compensation Commission to manage reparations, Iraq isolated. With the formation of the United Nations Compensation Commission to Iraq was effectively shut off from the global economy The second critical issue is the use of hitherto unknown was effectively shut off from the global economy. The second critical issue the of hitherto unknown legal tools in Iraqi reform Iraqi oil assets abroad were exempted from creditor seizure as part of UN legal tools Iraqi reform. Iraqi oil assets abroad were exempted from creditor seizure part of UN Resolution 1483(14) Resolution 1483(14).

What do we need to prove Russia is liable? What do we need to prove Russia is liable?

It should be noted that the United Nations Compensation Commission has an extremely complex and It should be noted that the United Nations Compensation Commission has an extremely complex and bureaucratic structure for processing compensation requests, and the institution's establishment in Ukraine bureaucratic structure for processing compensation requests, and the institution's establishment in Ukraine does not imply that the Ukrainian state and people will simply issue a conditional "bill" to the Russian does not imply that the Ukrainian state and people will simply issue a conditional "bill" to the Russian Federation that must be paid in some way. As stated at the outset, such a method of collecting compensation that must be paid in some way. As stated at outset, such a method of collecting compensation for war losses is a remnant of the past. war a remnant of the past.

9 https://uncc.ch/sites/default/files/attachments/S-22559%20%5B1991%5D 0.pdf

9 https://uncc.ch/sites/default/files/attachments/S-22559%20%5B1991%5D 0.pdf

10 https://uncc.ch/sites/default/files/attachments/S-22559%20%5B1991%5D 0.pdf

10 https://uncc.ch/sites/default/files/attachments/S-22559%20%5B1991%5D 0.pdf

11 Ibid 11 Ibid.

12 Ibid Ibid.

13 https://www.reuters.com/world/middle-east/iraq-pays-last-chunk-524-billion-gulf-war-reparations-un-2022-02-09/ https://www.reuters.com/world/middle-east/iraq-pays-last-chunk-524-billion-gulf-war-reparations-un-2022-02-09/ 14 http://unscr.com/en/resolutions/1483 14 http://unscr.com/en/resolutions/1483

For Every Broken Life: Issue of Post-War Compensations for Ukraine

For Every Broken Life: Issue of Post-War Compensations for Ukraine (historical (historical retrospective and institutional peculiarities) retrospective and institutional peculiarities)

Yevhenii Monastyrskyi ( Yevhenii Monastyrskyi (Yale University) Yale University)

UN Security Council Resolution 687 legally establishes Iraq's liability by "reaffirming" the

UN Security Council Resolution 687 legally establishes Iraq's liability by "reaffirming" the country's country's international legal obligation to pay for environmental damage and resource depletion caused by Iraq's international legal obligation to pay for environmental damage and resource depletion caused by Iraq's invasion and occupation of Kuwait. Iraq's commitment to compensate Kuwait for losses caused by the invasion and occupation of Kuwait. Iraq's commitment to compensate Kuwait for losses caused by the unlawful use of force against Kuwait is often seen as an application of state responsibility law. Some believe unlawful use of force against Kuwait is often seen as an application of state responsibility law Some believe that the Commission symbolizes the international community's commitment to the concepts of state that the Commission symbolizes the international community's commitment to the concepts of state responsibility(15). According to the International Notion Commission's definition of the concept of state responsibility(15) According to the International Notion Commission's definition of the concept of state liability, any globally incorrect conduct triggers a state's international responsibility(16). Two requirements liability, any globally incorrect conduct triggers a state's international responsibility(16) Two requirements must be met to establish state liability: an action traceable to the state and a violation of a necessary legal must be met to establish state liability: an action traceable to the state and a violation of a necessary responsibility owed by that state(17). Unfortunately, there is no reference in the UN General Assembly responsibility owed by that state(17) Unfortunately, there is no reference in the UN General Assembly resolutions of March 2, 2022(18) and March 24, 2022(19) that defines the Russian Federation as the party resolutions of March 2, 2022(18) and March 24, 2022(19) that defines the Russian Federation as the party liable for any damages on Ukrainian territory. In other words, there is an odd situation in which, by the time liable for any damages on Ukrainian territory In other words, there is an odd situation in which, by the time the UN General Assembly adopted the resolutions, it was already known about the violations of international UN Assembly adopted it was already known about violations of international humanitarian law and the destruction on Ukrainian territory, but none of the resolutions included a paragraph humanitarian law and the destruction on Ukrainian none of the resolutions included a paragraph blaming the Russian Federation. In the future, if Ukraine is to be reimbursed via the UNCC institution, such a blaming the Russian Federation. In future, if is be reimbursed UNCC institution, a thesis must be introduced in the field of official UN resolutions However, as previously stated, the UNCC thesis must be introduced in the field of official UN resolutions. However, as previously stated, the UNCC system is as bureaucratic as everything else in the UN However, the current war's unusual character provides system as bureaucratic as everything else in the UN. However, the current war's unusual character provides a fertile ground for innovation in international law The UN, as an organization, is now through a "moment of a fertile ground for innovation international law. The UN, as an organization, is now through a "moment of truth" - a massive conflict that has destroyed both the post-International War II world security system and truth" - a massive conflict that has destroyed both the post-International War II world security system and contradicted the "end of history" that Western Europe and North America have foolishly continued to believe contradicted the "end of history" that Western Europe and North America have foolishly continued to believe. Unfortunately, history is not done because "the mole of history digs slowly, but it digs well" - and what famed Unfortunately, history is done because "the mole of history digs slowly, but it digs well" - and what famed political scientist Francis Fukuyama referred to as "the end of history" turned out to be nothing more than a political scientist Francis Fukuyama referred to as "the end of history" turned to be nothing more than a brief interlude brief interlude. That is why the Kyiv School of Economics, and the Ministry of Economy of Ukraine are already calculating That is why the Kyiv School of Economics, and the Ministry of Economy of Ukraine are already calculating the damage caused by the Russian Federation (with the help of volunteers from the Center for Economic the damage caused by the Russian Federation (with the help of volunteers from the Center for Economic Strategy, Dragon Capital, Anti-Corruption Staff, Institute of Analysis and Advocacy, Transparency Strategy, Dragon Capital, Anti-Corruption Staff, Institute of Analysis and Advocacy, Transparency International Ukraine, Prozorro.Sale and Prozorro). The overall amount of direct verified damages has already International Ukraine, Prozorro.Sale and Prozorro). The overall amount of direct verified damages has already surpassed the whole amount of compensation given by Iraq to Kuwait as of May 2, 2022, and amounted to surpassed the whole amount of compensation given by Iraq to Kuwait as of May 2, 2022, and amounted to almost 92 billion USD. Simultaneously, when direct and indirect losses are added together, Ukraine's overall almost 92 billion USD Simultaneously, when direct and indirect losses are added together, Ukraine's overall losses surpass 600 billion USD(20). losses surpass 600 billion USD(20) Fortunately, we do not live in the 1800s, when reparations were often willingly and "by sight" set by the Fortunately, we do not live in the 1800s, when reparations were often willingly and "by sight" set by the victor, and the facts presented above already serves as a strong basis for the future restoration of justice. victor, and the facts presented above already serves as a strong basis for the future restoration of justice Ukrainian state has the right to demand compensation for economic and infrastructure damage, as well as Ukrainian state has the right to demand compensation for economic and infrastructure damage, as well as compensation for physical and moral losses suffered by individual citizens - loss of property, business, forced compensation for physical and moral losses suffered by individual citizens - loss of property, business, forced displacement, refugees, deportations, and, worst of all, loss of life of close relatives. displacement, refugees, deportations, and, worst of all, loss of life of close relatives.

15 Proulx, V. (2016). Institutionalizing State Responsibility: Global Security and UN Organs. Proceedings of the ASIL

15 Proulx, V. (2016). Institutionalizing State Responsibility: Global Security and UN Organs. Proceedings of the ASIL Annual Meeting, 110, 212-215. doi:10.1017/S0272503700103015 Annual Meeting, 110, 212-215. doi:10.1017/S0272503700103015

16 https://legal.un.org/ilc/sessions/53/ 16 https://legal.un.org/ilc/sessions/53/

17 Ibid 17 Ibid.

18 https://documents-dds-ny.un.org/doc/UNDOC/LTD/N22/294/07/PDF/N2229407.pdf?OpenElement 18 https://documents-dds-ny.un.org/doc/UNDOC/LTD/N22/294/07/PDF/N2229407.pdf?OpenElement

19 https://documents-dds-ny.un.org/doc/UNDOC/GEN/N22/293/36/PDF/N2229336.pdf?OpenElement 19 https://documents-dds-ny.un.org/doc/UNDOC/GEN/N22/293/36/PDF/N2229336.pdf?OpenElement

20 https://kse.ua/russia-will-pay/ 20 https://kse.ua/russia-will-pay/

For Every Broken Life: Issue of Post-War Compensations for Ukraine For Every Broken Life: Issue of Post-War Compensations for Ukraine (historical (historical retrospective and institutional peculiarities) retrospective and institutional peculiarities)

Yevhenii Monastyrskyi ( Yevhenii Monastyrskyi (Yale University) Yale University)

The majority of these cases will not only be subject to The majority these cases will not be subject to investigation under the auspices of the International investigation under the auspices Criminal Court but will also be subject to investigation under the auspices of Today, more than 11 million Criminal Court but will also be subject to auspices of more than 11 million Ukrainians have fled their homes, with more than 5.7 million becoming refugees (having fled Ukraine's fled their homes, with more than 5.7 million becoming refugees (having fled Ukraine's borders)(21), resulting in the greatest refugee influx since World War II. All war crimes, crimes against borders)(21), resulting the greatest refugee influx since World War II. All war crimes, crimes against humanity, damage, and suffering imposed on Ukrainian residents must and will be paid for humanity, damage, and suffering imposed on Ukrainian residents and will be paid for. Ukraine must immediately initiate all essential preparation activities to (1) begin the work of the United Ukraine must immediately initiate all essential preparation to (1) begin the work of the United Nations Compensation Commission and (2) prepare adequate forms of compensation submission First and Nations Compensation Commission and (2) adequate forms of compensation submission. First and foremost, a UNCC mechanism must be submitted to the UN General Assembly The UN Security Council foremost, a UNCC mechanism must be submitted the UN General Assembly. The Security Council started this process thirty years ago, but it is now a dysfunctional institution In the case of Kuwait, we see the started this process thirty years ago, but it is now a dysfunctional institution. In the case of Kuwait, we the problem of bureaucratic stretching of processes for collecting data from citizens and processing information problem of bureaucratic stretching of processes for collecting data from citizens and processing information about public and private losses, not to mention such complex calculations as environmental compensation - in about public and private losses, to mention such complex calculations as environmental compensation - in the case of Kuwait, it was the bombing of oil fields, in the case of Ukraine, it was the destruction of chemical the case of Kuwait, it was the bombing of oil fields, in the case of Ukraine, it was the destruction of chemical plants, seizure of nuclear power plants, destruction of oil refineries, steel plants, as well as destruction of dest plants, seizure of nuclear power plants, destruction of oil refineries, steel plants, as well as destruction of dest

The UNCC is still in operation today, even though it just recently formally declared the conclusion of Iraq's The UNCC is still in operation today, even though it just recently formally declared the conclusion of Iraq's reparations to Kuwait. Despite the UN institutions' problematic and crusty character, as well as the emotive reparations to Kuwait Despite the UN institutions' problematic and crusty character, as well as the emotive critical arguments often offered both on public platforms and in private dialogues, the Organization may be a critical arguments often offered both on public platforms and in private dialogues, the Organization may be a vehicle for Ukraine to get compensation, since no alternative ready-made mechanism exists now. The UNCC vehicle for Ukraine to get compensation, since no alternative ready-made mechanism exists now The UNCC and the Special Tribunal for the Russian Government are potential global tools for restitution and justice for and the Special Tribunal for the Russian Government are potential global tools for restitution and justice for Ukraine, as well as a chance for the UN as an institution to demonstrate that it does not intend to repeat the Ukraine, as well as a chance for the UN as an institution to demonstrate that it does not intend to repeat the League of Nations' sad experience. League of Nations' sad experience 21 https://data2.unhcr.org/en/situations/ukraine 21 https://data2.unhcr.org/en/situations/ukraine