The European Union as a Global Producer of Transnational Law of Risk Regulation: A Case Study on Chemical Regulation

• Author: Marco Morpurgo
• Date: 01 November 2013
• Published date: 01 November 2013
• DOI: http://doi.org/10.1111/eulj.12065

The European Union as a Global Producer

of Transnational Law of Risk Regulation:

A Case Study on Chemical Regulation

Marco de Morpurgo*

Abstract: This paper aims to contribute to the understanding of the role of the EU in the

global production of transnational law of risk regulation (TNLRR). TNLRR is defined

as a harmonious, cross-jurisdictional regulatory environment that results from the cir-

culation of risk regulatory models among jurisdictions. The EU has adopted extensive

regulation to address health, safety, environmental and other risks. In many instances,

third countries have adopted the EU models when regulating their own industries and

markets. This paper argues that this pattern of circulation turns the EU regulatory

models into transnational models for risk regulation (TNLRR), and further illustrates

this thesis by using a case study on the global circulation of the EU ‘REACH’ Regula-

tion. The paper preliminarily concludes that the EU has been able to influence risk

regulatory policy worldwide by turning its own regulatory models into transnational

models, thus acting as a global producer of TNLRR.

I Introduction

This paper aims to contribute to the understanding of the role of the EU in the global

development of transnational law of risk regulation (TNLRR).

TNLRR is defined here as a cross-jurisdictional risk regulatory environment in

which two or more jurisdictions share a harmonious regulatory texture that is not

ascribable to any suprasystemic1entity or institution, but which derives instead from

the ‘horizontal’ circulation of a regulatory model from one jurisdiction (typically a

central and/or prestigious one) to the other(s).

The EU has adopted extensive regulation to address health, safety, environmen-

tal and other risks. In many instances, third countries worldwide have adopted

regulatory models that are largely inspired in the ones developed by the EU when

regulating their own industries and markets. This paper argues that this pattern of

* PhD Candidate, University of Milan; Visiting Research Fellow, Columbia Law School; LLM,

Harvard; MSc, IUC Turin. Email: demorpurgo@gmail.com. I would like to thank Mauro Bussani,

Cándido Garcia Molyneux, Francis Snyder and Jonathan B. Wiener for their helpful comments and

suggestions. This paper largely benefited from discussion and feedback at the 9th International Work-

shop for Young Scholars (WISH) on ‘The Future of Transnational Law: the EU, USA, China and the

BRICS’, held at the Peking University School of Transnational Law in Shenzhen, China, from 29

November to 1 December 2012.

1I prefer using the term ‘suprasystemic’, rather than ‘supranational’, to include reference to legal systems

that are not ‘national’.

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European Law Journal, Vol. 19, No. 6, November 2013, pp. 779–798.

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circulation turns the EU regulatory models into transnational models (ie TNLRR),

and suggests that the EU acts as a global producer of TNLRR.

This paper does not address the role that the EU plays in the creation of suprana-

tional law by means of international multilateral negotiations.2Nor does it address

the EU’s unilateral power to externalise its regulations through market mechanisms,

setting standards that are de facto abided by worldwide businesses adapting their

global production to the stricter EU standards.3Rather, it specifically explores the

idea that the horizontal diffusion of EU risk regulatory models on a global scale,

through the formal adoption of such models by other jurisdictions, turns the EU into

a global producer of TNLRR.

This paper, therefore, articulates a conception of TNLRR, drawing from the com-

parative law scholarship on legal transplants and identifying its peculiar mechanisms

of production (Section II); presents the thesis that the EU acts as a global producer of

TNLRR, by turning its own risk regulatory models into TNLRR (Section III); and

further illustrates this thesis by using a case study on chemical risk regulation, con-

cerning the global circulation of the EU regulatory model embedded in Regulation

(EC) 1907/2006 concerning the Registration, Evaluation, Authorization and Restric-

tion of Chemicals (REACH)4(Section IV).

Section V preliminarily concludes that, together with specific ideological, economic

and geopolitical reasons, the very EU’s efforts to promote its own risk regulatory

models on a global scale—as in the case of REACH—allow the EU to turn them into

TNLRR, suggesting that the EU acts as a global producer of TNLRR within the

dynamics that characterise normative production in today’s globalised world.

Before entering our discussion, I need to make two disclaimers concerning this

paper. First, although the paper seems to aspire to draw general conclusions on broad

trends from a single case study, I am aware that this is not possible,5and any

conclusions should be regarded as preliminary. Second, although this paper discusses

the circulation of legal models and uses the jargon of comparative law, I did not

intend to carry out any thorough comparative legal analysis. Rather, especially in

Section IV, my intent was purely to show a pattern of circulation characterising EU

law, without entering into comparative law questions such as identifying real analo-

gies and differences between different versions of a regulatory model, or questioning

the effectiveness of its transplant.

II Circulation of Legal Models and TNLRR

It comes as no surprise that legal models may circulate from one jurisdiction to

another. Legal transplants have always taken place, and they take place in virtually all

areas of the law. Countless examples could be mentioned: from the diffusion of

Roman law during ancient times,6or the global circulation of civil codes during the

2See, eg, S. Oberthür, ‘The Role of the EU in Global Environmental and Climate Governance’, in

M. Telò (ed), The European Union and Global Governance (Routledge, 2009), at 192.

3See A. Bradford, ‘The Brussels Effect’, (2012) 107 Northwestern University Law Review 1.

4[2006] OJ L396/1.

5See J.B. Wiener, ‘The Rhetoric of Precaution’, in J.B. Wiener, M.D. Rogers, J.K. Hammitt, P.H. Sand

(eds), The Reality of Precaution—Comparing Risk Regulation in the United States and Europe (RFF

Press, 2011), at 3, 24–25.

6For a critical approach, see P.G. Monateri, ‘Black Gaius—A Quest for the Multicultural Origins of the

“Western Legal Tradition”’, (1999) 51 Hastings Law Journal 479.

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