In recent years, the EU has issued a series of foreign economic laws in order to adapt to the evolution of the international geopolitical landscape, from the regulations on foreign investment security review, foreign subsidies regulations, international public procurement tools, corporate sustainability due diligence law (**chain security law), anti-economic coercion tools, to the European Commission's "Economic Security Strategy" in June 2023. These new EU unilateral measures are far beyond the scope of the WTO rules, and are no longer only based on classic rules such as anti-dumping and anti-subsidy, but are forming a foreign economic law system that includes the Investment Supervision Law, the International Public Procurement Law, the Chain Law, and the Countermeasure Law. It is not difficult to see that the EU's foreign economic law has shown a major trend of transformation in terms of legislative purpose, regulatory tools, law-making paths and legal concepts.
The first is the change in the purpose of legislation and regulatory tools. In the past, the foreign economic law at the EU level was mainly the EU's foreign law, and the most commonly used tool was anti-dumping, and occasionally anti-subsidy tools and safeguard measures were used, and the defensive color was obvious. However, at present, there are many tools of EU foreign economic law, not only the frequent use of anti-dumping and countervailing tools, but also the introduction of new tools (international public procurement tools, anti-economic coercion tools) in addition to the classic tools, the creation of new EU international investment regulatory laws (foreign investment security review, foreign investment review), and the use of international competition policy tools (foreign subsidies regulations) and business and human rights tools (corporate due diligence law), etc., the purpose of these new tools is no longer only to seek freedom and fairness** , but incorporates considerations such as economic security, industrial policy, competition policy, human rights and environmental policy.
The second is the adjustment of the path of law-making. EU foreign economic law has in the past been rule-making under multilateral, regional or bilateral mechanisms. However, the current EU foreign economic law is more "self-oriented", increasingly implementing the EU's policy objectives through unilateral rules, and is trying to influence third countries through the "extraterritorial effects" of the EU's foreign economic law.
Finally, there is a change in the concept of legislation. This transformation is mainly reflected in the shift from the unilateral commitment of "market opening" under the Maastricht Treaty to the "reciprocal openness" and "selective openness" since the Lisbon Treaty, and from the "depoliticization" and "deregulation" of the past to the current "repoliticization" and "reregulation" through "economic security", reflecting the current competitiveness anxiety and protectionist tendencies of the EU.
At present, global economic and trade rules are in the midst of rapid change, which has accelerated the pace of transformation of the EU's foreign economic law to a certain extent. The WTO is no longer the core negotiation venue to promote the development of international rules, major economies are trying to fill the gap in the Doha Round through regional or plurilateral investment agreements, and Western economies led by the United States and the European Union are increasingly adopting unilateral measures or unilateral economic and trade legislation outside the multilateral system and international agreements.
In contrast to the U.S. strength-based approach to foreign economic sanctions, the EU's foreign economic law in transition tends to "pass normative force" rather than relying solely on strength to safeguard European interests and export European values. When introducing new unilateral rules in the areas of economic security, a level playing field and sustainable development, the EU not only needs to seek the inherent legitimacy of the new rules, but also is bound by the existing legal principles in the EU's basic treaties, such as the four principles of free movement in the internal market, the principle of non-discrimination and the principle of judicial remedies.
At the same time, under the traction of "strategic autonomy", the transformation of the EU's foreign economic law has not fully followed the United States. Prior to this, the United States rashly obstructed the appointment of WTO Appellate Body judges and launched a global war, imposing steel and aluminum safeguards and other restrictions on the EU, seriously damaging the EU's strategic and practical interests. In order to maintain its leadership in global rules and counter the unilateral hegemony of the United States, the EU has chosen to cooperate with China and India to encourage procedural reforms. In addition to waging a ** war, the United States has also openly threatened France and other EU member states, saying that "once they impose a digital tax on American companies, they will impose ** sanctions on these countries". The EU regards these practices of the United States as economic coercion, and in 2021 proposed legislation on anti-coercive tools, so that the EU or its member states can take countermeasures when they are subjected to economic coercion by third countries.
Needless to say, China's rapid development is also one of the main reasons for the transformation of the EU's foreign economic law, in the face of China's rapidly increasing global competitiveness and influence in the fields of new energy, artificial intelligence, digital economy, etc., the EU's foreign economic law has shifted from market openness to "reciprocal openness" and "selective openness", and integrates sustainable development (human rights and environmental protection), The level playing field and economic security strategy are the reasons for its policy shift in an effort to maintain the EU's economic and technological competitiveness in the face of global changes. In the EU's China-related policies under foreign economic law, factors such as competition, prevention, and confrontation are growing, resulting in a significant squeeze on the space for bilateral cooperation. It is not difficult to see that the transformation of the EU's foreign economic law is largely due to the EU's reorientation of China-EU relations.
Author: Ye Bin, Director of the European Union Law Research Office, Institute of European Studies, Chinese Academy of Social Sciences).
*:Economy**.