Europe's power surplus: legal empathy and the trade/regulation nexus

Abstract

The EU may not be a superpower, but it holds a "power surplus" when it comes to the trade-regulatory nexus. Because of the size of its market and its active regulatory policies, it has the capacity to influence regulatory developments globally. This paper engages with the strategic challenges posed by the deployment of such power surplus and argues that in order to be a responsible regulatory power and positively influence the multilateral agenda, the EU needs to develop a coherent overall approach to the external dimension of its regulatory policies. In this spirit, and in most cases, the EU would be ill advised to seek to "weaponize" its regulatory powers in pursuit of unrelated foreign policy goals. Instead, it should wield its power surplus to enhance the regulatory compatibility between its own and others' jurisdictions through cooperation rather than simply relying on passive market-based influence as implied by the so-called Brussels effect. In short, relying mainly on the Brussels effect is both too strong/weak. This is simply a way to be faithful externally to its commitment to multilateralism as reflected in Art 21 TEU The paper offers a typology of different forms of external EU regulatory impact, a discussion of the risks of either underuse or overuse of the regulatory power surplus, and a discussion of the 'good global governance" model implied by a principled geopolitical role. It moves on to discuss a unifying conceptual framework that aims at the operationalization externally of the concept of legal empathy. It concludes with six specific suggestions as to how the EU can best exercise its regulatory power.