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Emilia Mišćenić · Aurélien Raccah
Editors

Legal Risks
in EU Law
Interdisciplinary Studies on Legal Risk
Management and Better Regulation in
Europe
Legal Risks in EU Law
ThiS is a FM Blank Page
Emilia Mišćenić • Aurélien Raccah
Editors

Legal Risks in EU Law

Interdisciplinary Studies on Legal Risk
Management and Better Regulation in Europe
Editors
Emilia Mišćenić Aurélien Raccah
Faculty of Law Law Faculty
University of Rijeka Catholic University of Lille
Rijeka, Croatia Lille, France

ISBN 978-3-319-28595-5 ISBN 978-3-319-28596-2 (eBook)

DOI 10.1007/978-3-319-28596-2

Library of Congress Control Number: 2016935495

© Springer International Publishing Switzerland 2016

This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of
the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations,
recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission
or information storage and retrieval, electronic adaptation, computer software, or by similar or
dissimilar methodology now known or hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this
publication does not imply, even in the absence of a specific statement, that such names are exempt
from the relevant protective laws and regulations and therefore free for general use.
The publisher, the authors and the editors are safe to assume that the advice and information in this
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authors or the editors give a warranty, express or implied, with respect to the material contained
herein or for any errors or omissions that may have been made.

Printed on acid-free paper

This Springer imprint is published by Springer Nature

The registered company is Springer International Publishing AG Switzerland
This project was executed by

Centre sur les Relations entre le Risque et le Droit (C3RD)

International and European Law School (IELS) of the Faculté

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Contributing Member of “Creative’Labs SHS” co-financed by the European Union

ThiS is a FM Blank Page
Preface

The Union of today is faced with numerous legal, economic, social and many other
risks that are seriously affecting its economic development as well as growth.
Excessive and inadequate legal regulation act restrictively upon the activity of
entrepreneurs on the market, on the one hand, and lowers the confidentiality of
consumers, on the other. This in turn affects the functioning of the Union’s internal
market and restrains economic growth of the European Union (EU) in comparison
to other important players on the global market. The consequences are reflected
upon societal prosperity. The features common to all social disturbances that are
taking place in the world today are, firstly, the fact that they are caused by
inadequate reactions to existing risks and, secondly, the fact that they affect the
world globally. The strong interdependence between the mentioned risks creates a
“magical circle” that is very difficult to break and leads to serious consequences,
which contribute to financial instability as well as economic crises. The Union’s
awareness of these risks is demonstrated in numerous communications, reports and
recommendations and particularly in the European Strategy for Smart, Sustainable
and Inclusive Growth (Europe 2020).1 Europe 2020 insists upon measures neces-
sary to achieve the so-called smart growth, meaning upon measures that are going
to strengthen knowledge and innovation as key drivers for future economic growth
as well as progress of the Union. It also emphasises sustainable growth and pro-
motes a more resource-efficient, greener and more competitive economy. Finally, it
promotes inclusive growth fostering a high-employment economy delivering social
and territorial cohesion. These are the three key ingredients necessary for Europe’s
social market economy of the twenty-first century.2 From a legal point of view,

1
Communication from the Commission, Europe 2020, A Strategy for Smart, Sustainable and
Inclusive Growth, COM (2010) 2020, Brussels, 3.3.2010.
2
Ibid., p. 3.

vii
viii Preface

these goals require a significant improvement of the existing Union’s regulatory

framework, the ineffectiveness of which presents one of the most important barriers
to the development of technology, industry and consequently of economic growth.
As rightly emphasised by the European Commission, in an era of globalisation, in
which barriers to movement of goods, services and people are falling, citizens
expect from legal regulations to ensure their safety and welfare, while businesses
expect that legal regulations enable a level playing field and boost competitive-
ness.3 However, if a regulatory framework across the Member States is scattered,
inconsistent, outdated or does not take the interests of its addressees adequately into
account, legal regulations may do exactly the opposite. It is precisely due to these
reasons that the Union insists upon the introduction of better or so-called smart
regulations in all affected areas of EU legislation. This belongs to one of the key
strategic goals of Europe 2020, according to which “to face up to the challenges we
face inside and outside Europe, policies, laws and regulations need to adapt to the
fast pace of technological change, to foster innovation, to protect the welfare and
safety of Europeans”.4
The book Legal Risks in EU Law addresses these serious issues from a horizontal
and interdisciplinary perspective by observing and analysing primarily legal and
consequently inseparable economic, societal, environmental and other risks in
different areas of EU legislation. Legal regulation is always enacted in a public
interest in order to achieve a variety of goals, such as to ensure a fair and
competitive market, to protect health, to provide safety, to stimulate innovations,
to preserve the natural environment, to protect climate, etc.5 Therefore, the inter-
disciplinary analysis of risks deriving from legal regulation in various fields is the
most appropriate approach to observe the legal risk issue from different angles. On
the other hand, the horizontal approach indicates that despite of the diversity of the
studied subject matters and EU policies as well as the differences in applied
research and writing methodology, all of the contributions tend to offer similar
results. It is common knowledge that legal regulation should deliver policies and
meet expectations of those to whom it is addressed, by taking into account all of the
effects the regulation might have on the addressee’s interests. This should include a
thorough examination of economic, social, environmental and other important
impacts of their legislative drafts.6 However, in today’s global society characterised
by an increasing speed of changes, fast technology and economic progress, this
seems to be a difficult task for lawmakers to achieve. Here is where the risk
management usually includes an invitation to all relevant stakeholders to engage

3
European Commission, Better Regulation—Simply Explained, available at: http://ec.europa.eu/
smart-regulation/better_regulation/documents/brochure/brochure_en.pdf, p. 3.
4
Ibid., p. 1.
5
Ibid., p. 3.
6
Wiener (2004), pp. 483–500.
Preface ix

in a public consultation or elaboration of independent reports, i.e. impact assess-

ments. Unfortunately, the decision to launch regulatory initiatives is very often
taken before the publication of impact assessment reports. Since a lawmaker does
not dispose with the expertise necessary to respond properly to developmental
challenges in specific regulatory fields, this results in regulations either offering
inadequate protection or restricting market freedom. As a consequence a legal risk
occurs that by its definition “commonly refers to a situation where the applicable
law does not provide for a predictable and sound solution” and “might also refer to
situations where the answer provided by the applicable law does not fit the market
reality, or where the law does unnecessarily complicates or burdens a transaction”.7
Bearing all that was said in mind, it is the primary mission of the authors
gathered under the single roof of the book Legal Risks in EU Law to identify and
analyse the causes as well as consequences of legal risks in regulatory frameworks
of various EU policies and beyond. Over several decades now, the Union has been
faced with numerous legal risks that are adversely affecting the functioning of the
EU and the development of EU law. Particularly, due to the constraints of the
principles of subsidiarity and proportionality, it is getting more and more difficult to
justify the Union’s authority to regulate in a variety of competence areas. Internal
market, consumer protection, social policy, foreign policy, environmental policy,
etc. are only some of the areas to which this book dedicates its chapters and
horizontally examines the Union’s approach to regulation and management of
legal risks. In doing so, the authors generally come to very similar conclusions
concerning the inability of the Union’s regulatory methods to respond properly to
existing legal and consequently economic and other existing risks and challenges.
Especially, approximation, i.e. harmonisation of different Member States’ laws as
the most extensively used means of EU legal regulation, at the end of the day
resulted in overregulation and further differences at national levels. New differ-
ences in legal regulation caused by the Union’s attempts to remove existing
regulatory differences between Member States affected the realisation of the
Union’s supreme goal of the establishment and proper functioning of the internal
market. Furthermore, discrepancies caused by departures in application and inter-
pretation of harmonised national regulatory frameworks across the Union seriously
affect the principle of effectiveness of EU law. This is getting even more compli-
cated by the fact that every single EU legal act has to be translated into 24 EU
official languages. Despite the principle of equal authenticity, according to which
all language versions of the same EU legal act are presumed to be authentic and to
have the same meaning, imperfections in legal translations often result in different
meanings of the same legal rules. Consequently, by managing legal risks deriving
from the diversity of Member States’ laws presenting barriers to trade and to the
Union’s economy, the Union actually produced new legal risks that need manage-
ment of their own. This serious failure contributed to the legal uncertainty of

7
UNIDROIT Explanatory Notes on Preliminary Draft Convention on Harmonised Substantive
Rules Regarding Securities Held With an n Intermediary, Rome, 2004, p. 7.
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