Afsj Rule-Making Methdologies: External Norm Primacy in the Post-Lisbon Legislative Cycle

The paper makes a claim for the benefits of tracing textual methodologies in studying EU rule-making in the broader scheme of understanding the relationship between internal and external EU action through law. It studies how external norms, i.e. understood predominantly as instruments of international law, including but not limited to conventions, agreements, treaties, agreements qua norms, ‘cascade’ and ‘internalise’ into EU rule-making in 17 proposed and adopted Directives in the post-Treaty of Lisbon in the Area of Freedom, Security and Justice, i.e. in the 2009-2014 legislative cycle. Much former Third Pillar law took external norms, for example, Council of Europe Conventions as its overarching inspiration and this remains an enduring feature of the AFSJ.

The paper shows how on the one hand, the EU almost always deploys what is terms here as ‘external norm’ primacy in Directives, yet on the other, how the EU mainly practices haphazard norm promotion in its rule-making. The paper demonstrates that there are considerable variations in expressions of conformity to external norms and compliance therewith that have not been the basis of systematic study in legal scholarship. It demonstrates how the use of external norms in EU rule-making is in effect an internalisation of those norms and equally an expression of external norms. Currently, the internationalisation of external norms is less haphazard than the external expression of norms. Rule-making practice gives no indicator of international political processes regarding EU participation but rather instead demonstrates EU willingness to set, lead or follow international best practice.