Building a Case for the Study of European Union Law in India

By Kanad Bagchi, Faculty of Law, University of Oxford

Disclaimer: Occasionally, we all tend to become self-indulgent while making an attempt to reach out to a wider audience. It is an exercise, both in necessity and vanity, which inspired me to write this post, not as an expert in European Union law (“EU”), but as an EU law enthusiast.

The disclaimer aside, the rest of the post captures certain core elements of the EU, with the aim of demystifying one of the most sui generis institutional structures in the world with the hope that it will foster a bit more interest and research amongst the Indian law student fraternity.

The post does not however, seek to be a substitute for an academic paper, hence it contains only a disarranged set of pointers for the readers to pick up from where they can connect to.

What the EU is not!

Although the question at first brush seems counter intuitive, in the EU’s most recent internal struggles, an outsider is more susceptible to be exposed to the biases and prejudices against the EU as opposed to the unimaginable success that is has achieved over the decades.

In the last six years, there has been a lot of EU bashing in the media along with a deluge of criticism and skepticism in academia and policy circles, originating first against the backdrop of the continuing sovereign debt crisis (read my comments here & here) and more recently the refugee crisis (here & here).

Both these events have exposed the frailties of EU’s institutional structure, and to many perhaps is symbolic of falling a step back in the EU integration process. In this connection, it is not my suggestion that lingering discontent with the EU is absolutely without foundation.

However, the first step in any critical appraisal should involve a deeper understanding of the distinctiveness of the EU legal order, as opposed to conventional national or international systems of law.

What the EU is!

With a lineage dating back to 1945 and with resolute and continuing advance towards its founding goal of an ‘ever closer Union’, the EU has both ‘deepened’ and ‘widened’ its Union in ways which uncannily mirror several successful federal jurisdictions across the world.

The Member States of the EU today represent an institutional web, which is far more intrinsically wound together through a sovereign mechanism than what meets the eye of an indifferent observer.

Once believed to be simply an international organization, governed by a set of treaties, consisting of states with reciprocal obligations, it exists today as an epitome of the most pervasive devolution of sovereignty by countries, admitting of no such parallel across the world.

There is no realm of domestic law of the Member States which does not remain affected by EU law as of today, either completely subsumed by it, or as an imperative imposing equivalence of standards.

From business relations across states, to a common commercial policy, competition concerns, monetary policy, customs policy, common border arrangements, standards of human rights protection and of course the all encompassing ‘internal market’ of the EU now forms an indispensable part of all EU member state laws, from which there is no escape (watch Prof. Paul Craig’s incisive interview on this, here).

In that respect, each and every person residing in the EU, irrespective of their member state of domicile is acutely affected by EU law as it regulates ever more areas of their conduct.

Everything that one eats, to the toys one purchases, to the alcohol one consumes and the toilet paper one uses, essentially has to pass muster disparate EU regulations.

In various ways therefore, the EU presents a unique constitutional experiment, which struggles to find its place somewhere in between a single federal structure of law and a superimposed system of International law.

In my tryst with EU law so far, it has been fascinating to observe twenty-eight nations together under the same roof, in pursuit of both similar aims as well as conflicting interests, which made for a compelling study of both the continuity and constrains of the system.

In short, EU law can be a lot of fun!

Bringing the EU Closer to Home

One may ponder what possible relevance can EU law have with whatever one is studying in law school?

Well, imagine this – Twenty-eight states, twenty-four official languages, eight major religions, incessant separatist movements, five hundred million citizens and a raging cynicism.

That’s EU (Almost got you there!!) and studying/living in the heart of Europe, I have seen more divergence than convergence.

The EU integration process with its various pulls and pressures, mirrors that of the Indian Constitutional law process in ways which are more familiar than alien.

As one author put it not so long ago, “…both India and the EU are relatively young and fragile constructions which were originally created by elites and are still somewhat engaged in a process of creating and defining their collective identity.”

That apart, traditional constitutional studies relating to the division of competences between states and the union, judicial review of legislative and administrative acts, interpretation of fundamental rights and the internal market/trade and commerce clause to mention a few, provides a tremendous opportunity for research in comparative constitutional traditions.

Much of the work in the area has limited itself to a handful of known jurisdictions, like the United States, Australia, and Canada, whereas any veritable research concerning the EU remains woefully unexplored.

In certain allied legal disciplines, the interrelationship is more readily discernable than others, driven by a considerable amount of study and research, albeit mostly confined to the private sector (law firms). For instance, take the case of competition law.

Owing to the fact that our competition rules lean heavily towards the EU as opposed to the US antitrust laws, it will not be an exaggeration to observe that a definitive point of enquiry for competition teams across law firms in India are indeed, relevant competition norms in the EU.

Incidentally, I had my first brush with EU law when I was working as an intern in the competition team at a top tier law firm in Delhi, where a better part of the two weeks of my internship was spent conducting research on the EU Block Exemption Regulations.

In this connection, even the Competition Commission of India invariably refers to the European Commission notices and guidelines while passing orders under section 3 and 4 of the Competition Act, 2002.

Unsurprisingly therefore, officials from the CCI undertake periodic study and training visits to the European Commission and the engagement at the level of cooperation and enforcement has only intensified over the years.

Data Protection, a hot potato in today’s digital age, concerns and addresses a scary, yet more integrated and vulnerable world, which admits of no boundaries.

In this regard, India has been making strenuous advances towards churning out its own set of laws with respect to data protection claims and experts have long argued that the EU model represents a credible standard.

With an ever increasing transfer of data from India to EU Member States, satisfying conditions of adequacy of data protection ranks high in the government’s agenda and it is imperative that expert studies and research ought to be facilitated which can effectively apprehend the changing contours of the EU data protection regime (My analysis of the recent safe harbor decision of the ECJ).

And the list goes on!!

While there are potentially several other fields of convergence, like telecommunication laws, patent regimes (life sciences), banking supervision and stress analysis, I have taken the liberty to highlight only a few above, attempting to make the post shorter and more readable.

Suffice it to say that towards a comparative study of both these legal systems and their processes and mechanisms to deal with similar problems, I found that invariably, comparable models of regulations are at play in varying degrees.

With everything being said, it is not naive to suggest that increasingly, the dynamics of our relationship with different Member States of the EU is being developed and influenced somewhere else in Brussels, and what we see as change in some our own policies, are mere reflections of that practice.

Moreover, with an all encompassing and otherwise ambitious EU-India free trade agreement (FTA) gradually gathering pace, it is crucial that we are in a position to evaluate concessions in the light of shared economic and legal advancement.

Critical concerns such as tariff schedules, food quality standards, IPR commitments, banking regulations stand as potential areas of convergence and it is crucial that we are aware of where the script is being essentially written and are in a position to both assess and influence that process.

It is urged that in the realm of comparative studies, EU law and its related components be looked at with more emphasis, especially in law schools and other public research institutions.

In line with the recent trend of more and more students from India taking the route to the EU to undertake LL.M and other research degrees, I see this initiation as an excellent opportunity to bridge the gap between both worlds.

Kanad Bagchi ([email protected]) is an MSc Candidate in Law and Finance at the Faculty of Law, University of Oxford. Formerly he was a research assistant at Europa-Institut, Universität des Saarlandes, Germany.

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