MPlegal

Published on LinkedIn,15.03.2025

A phenomenon (either in the social or in the natural sciences), once identified and brought to public attention, can take either one of two directions: it can stay as it is, admired or deplored depending on the viewer, but basically unaffected; or, something can be done about it, it can either be nudged and furthered, if deemed worth the effort, or it can be suppressed.

Little needs to be said by now as regards the so-called “Brussels Effect”, the magnetic, imitative influence exercised by new regulation released in the EU in other parts of the planet. Ever since it was first identified it has been hailed by regulators and legal scholars and deplored by economists and entrepreneurs within the context of a (fundamental, basic) confrontation that does not seem likely to subside any time soon.

1. My starting point(s)

Because this is a legal post written by a legal scholar, the Brussels Effect will be considered worth the effort to be nudged, so as for it to be furthered (on a few less subjective reasons, why I assess the phenomenon positively, see paragraph 6 below). In other words, I think that we, in the EU, need to do more in order to untap its potential (whatever that may be).

My second starting point, however, is that the EU is, for the moment, doing nothing at all specifically to further the Brussels Effect. Although theAI Act may soon join the GDPR in exercising global influence, thus solidifying the Brussels Effect, this may happen incidentally,  unintented by the EU, as part of its normal course of business. No specific measures, in Brussels or elsewhere in Europe, are taken specifically in order to help the Brussels Effect grow.

If this is, then, the case, what could be done about it? The action list that follows refers to each stakeholder in the regulatory sector: law schools, law publishers and editors, the courts, and, last but not least, governments; their order of appearance lists the less controversial proposals first.

2. Law publishers and editors to address the new publications’ bottleneck effect

This may be an empirical finding, but I imagine that most colleagues (after all, as said, this is a legal post written by a legal scholar) would agree that the publishing process in English-speaking legal journals focusing on EU law and digital technologies is both too slow and too difficult (or, if you prefer, highly selective). Too many scholars from all over the world compete for too few publishing spots in a handful of journals – in a process that takes months to complete.

In other words, what was twenty or thirty years ago a niche topic served well by a couple of reputable legal journals held alive by the efforts or one or two self-sacrificing colleagues is no longer a sustainable model to accommodate the (new papers’) tsunami result of the Brussels Effect.

While I am not someone who would exchange quality for quantity (even if this is a totally justifiable approach, too!) the bottleneck effect experienced today in journals focusing on EU law and digital technologies urgently needs to be addressed. If EU law publishers and editors wish to support the Brussels Effect by allowing to legal scholars from all over the world to present their best work on their pages, then the total number of these pages needs to increase exponentially. We urgently need more legal journals, on EU law, in English, maintained by well-organised groups of academics, taking advantage of the latest platform-submission technologies (therefore, yes, parallel submissions should not be a forbidden word in Europe any longer!).

3. Authors and editors to address the legal referencing issue

This is an older proposal, and little needs to said in that regard: it is a totally unacceptable condition for EU law to be referenced though US (Harvard, Chicago, etc.) referencing systems. The legal community needs to, urgently, react releasing a new EU-specific system and enforcing it on all EU publications.

4. Courts (and national governments) to address the legal fragmentation issue

The law is a notoriously (most likely, the only) fragmented science: whatever is practiced, taught and learned in one country most likely does not apply in any other. EU law is an exercise of legal imperialism, from this point of view: Napoleon’s grenadiers replaced by lawyers with laptops.

Whatever the case may be, since we are found in the middle of a legal experiment anyway, we should at least make the best out of it. National courts produce an immense wealth of case law on all topics affecting Europeans. This case law is both inaccessible to most, because it is written in national languages, as well as, undiscoverable, organised in national, custom numbering systems.

While the former can be resolved (with some help, perhaps, from AI) the latter is an already identified but still unresolved problem: although the EU has taken the first step, releasing the ECLI system, little use is made of it in practice, leading to huge loss of information. Courts ought to insist in its application on each and every one of their decisions – warranting, at the same time, that their decisions are findable by (and that they thus matter to) all Europeans.

5. Law schools (and national governments) to address the legal fragmentation issue

Law schools ought to become bilingual, at least when teaching and working on EU law. In an age of act-ification there is little reason to continue teaching (and writing legal analyses) on EU law in national languages, meaning accessible only to local students and scholars. Instead, English ought to become the lingua francain this regard.

There was a time, some thirty or forty years ago (most certainly prior to the introduction of the Single Market, but also shortly thereafter), when national analysis of EU law mattered, because EU law was in fact distilled into the national legal system, effected through national legislation.

However today this has changed. EU law is by now the first to produce legal texts in digital technologies’ relevant fields – not harmonizing national approaches any longer (admittedly, under an EU law brutality approach). The GDPR has been imprinted as such to the minds (and hearts!) of all Europeans. The same is the aim of the AI Act. This being the case, there is little excuse for law schools and national (legal scholar resources) to continue teaching, writing and learning in their respective national languages – because, quite simply, whatever any scholar anywhere in Europe now has to say about EU law interests and affects everybody, and needs to be heard, and understood, by everybody.

6. Why should we do anything at all?

The above, I think, need to be done if we wish to see the Brussels Effect furthered. However, other than my own personal (most likely biased, because I am lawyer) opinion, the point remains: Why should we do that? Why should we do anything at all? Especially, at times when over-regulation seems to be a severe EU-illness, as most recently claimed in Draghi’s report, and repeated by practically every businessman on both sides of the Atlantic?

The answer is simple: because this is who we are – and this is what we do. The EU is a legal experiment; it is law not money (at least for the time being) nor military power (as was the case in the past and may again become the case in the future) that lies at its basis.  While we may have a Single Market, it is in fact a legal Single Market, it is legal barriers that have been removed. We still have some time ahead of us until a money Single Market emerges.

Consequently, while some social engineering may be useful and recommended, a lot of it is not – it would not work. In other words, it is better for us to play to our strengths and live to fight another day in the sectors where we fall behind, than to completely change direction within the context of a, forced and artificial, top-down approach.

7. A concluding remark – what is already out there

The last sentence above, meaning the dislike for a top-down approach, betrays my views on what is already good out there, what has been already accomplished – and why money is, thus, not needed. A European successful online repository system is already in place: SSRN works well, and, I think, can be successfully complemented by Open Research Europe. Online platforms, such as ResearchGate, are also established and promising. Money is also, plentiful: the EU spends large sums in legal research, be it fundamental or applied. Research networks (in the likes of Erasmus+ or Eutopia) are already producing good results. Most importantly, however, the EU continues to produce solid regulatory texts that are placed at the forefront of global developments, boldly dealing with topics that no other legislator on the planet dares to go near. In other words, this is not a hopeless effort – far from it. What is only needed for the phenomenon to flourish is for it to be embraced and strengthened – this time, however, as part of a concrete EU-wide policy.