The EU’s ‘External Governance’ and Legislative Approximation by Neighbours: Challenges for the Classic Constitutional Templates

Abstract: In the framework of the European Neighbourhood Policy, the EU’s enlargement conditionality and pre-accession methodology have largely been extended to the new neighbours, with the rule transfer having been characterized as part of the EU’s ‘external governance’. The absence of accession prospects for these countries at the present stage makes this an intriguing case; the paper consequently seeks to explore the extent to which the EU rules are transferred, with a special focus on Ukraine. The analysis leads to an inquiry into an issue that has been largely missing in the voluminous literature on EU conditionality: the legitimacy of the approximation process from the national constitutional perspective. The paper contends that voluntary approximation of national legislation to external rules presents a novel challenge to the classic constitutional models that have emerged to accommodate international and EU rules within sovereign legal orders, and hence a search for new solutions is warranted.

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