Elaine Fahey

Does the Emperor have Financial Crisis Clothes? On the Legal basis of the European Banking Authority

The European Union institutional package launched in response to the financial crisis used Article 114 TFEU as its legal basis. The author explores the legal basis for one of the European Supervisory Authorities recently established – the European Banking Authority (EBA). The use of Article 114 TFEU, the main Treaty basis used to harmonise laws in order to further the internal market, as the foundation for the EBA, is considered in detail. A paradox of contemporary EU institutional law is assessed here, considering whether on the one hand, the EBA is functionally both too narrow and too broad as a matter of law, while on the other hand, it may prove to be central to restoring confidence in EU regulatory powers, rendering it ‘too big to fail,’ despite its slender foundations in Article 114 TFEU.

The EU's cybercrime and cyber-security rulemaking: mapping the internal and external dimensions of EU security

EU Security impacts significantly upon individuals and generates many questions of the rule of law, legal certainty and fundamental rights. These are not always central concerns for EU risk regulation, especially given that EU risk regulation has sought to draw close correlations between EU risk and market regulation. The relationship between internal and external security policies of the EU is both a descriptive and normative challenge, as much as it is for the regulation of risk. This phenomenon is evident in EU rule-making in the area of cyber policies, as a contemporary case study of the process of rule-making in both internal and external security as well as providing an insight into their specific relationship in its formulation and regulation of risk. Cyber regulation inherently necessitates multi-level risk regulation, employing international and supranational components and local enforcement. The paper explores that the link between the EU’s external and internal rule-making in cybercrime and cyber security is explicit in the rule-making The account examines how the distinction between external and internal security in contemporary EU law manifests itself in large-scale risk regulation and in particular, how the EU relies upon external norms to regulate risk.

A Postnational Marketplace: Negotiating the Transatlantic Trade and Investment Partnership (TTIP)

The Transatlantic Trade and Investment Partnership (TTIP), the new trade agreement between the EU and the US, has a great ambition: not only if measured by the size of the emergent market, but also the potential spill over of its regulatory standards to the global level. The cooperation between the partners is envisaged on an ongoing basis in a range of fields-such as pharmaceuticals, chemicals, public procurement or motor vehicles.The TTIP differs from the standard trade agreements. Not only by the size of the market it intends to create, or the potential spill over effect of its regulation, but foremost by the level of envisaged institutionalisation. While the negotiations themselves are ambitious in its scope, the most contentious and salient issues will be left as a future agenda to the new institutions of the TTIP, such as the Regulatory Cooperation Council with rule-making capacity.This raises a number of questions. First whether this agreement may be legitimately classified as a conventional international trade instrument at all, not least for the purposes of the procedures that apply to its approval and ratification, pursuant to Article 218 TFEU. Secondly, and more fundamentally, it poses the question as to who sets the normative agenda for these far-reaching negotiations and how this specific agenda reflects EU values and standards as an aspiring democracy. The paper considers who has set the normative agenda in the negotiation of the Transatlantic Trade and Investment Partnership (TTIP), reflecting upon both the actors and processes thereof. We focus on the questions of 1) participation in crafting the TTIP, 2) the role of knowledge in justifying this enterprise, 3) the objectives of the TTIP and 4) the institutions that should underpin it. We argue that the parliamentary legitimation, including approval and information rights, are inadequate in light of the institutionalisation processes which forms the goal of the TTIP.

Introduction: Institutionalisation beyond the nation state: new paradigms? Transatlantic relations: data, privacy and trade law

The chapter explores how we should understand the development of institutionalisation beyond the Nation State. It focusses largely but not exclusively upon a possibly ‘hard case’ of global governance, EU–US relations, long understood to be a non-institutionalised space, in light of recent legal and political developments in trade and data law. How should we reflect upon ‘progress’ as a narrative beyond the Nation State? What is the place of a bottom-up-led process? The lexicon and framework of institutionalisation is argued to be both an important and valuable one worthy of being developed out of the shadows of many disciplines. Institutionalisation may be the antithesis of the desired political outcome and simultaneously also the panacea for all harms. Contrariwise, it is a highly provocative lexicon in its own right for its capacity to provoke questions of sovereignty and sensitivity towards embedded institutionalised frameworks. Transatlantic relations provide a vivid multidisciplinary example of the relationship between institutionalisation and private power and quest for new forms of institutionalisation across a range of subjects. Exploring ‘de-institutionalisation’ may not capture adequately developments taking place between the EU and US in trade and data privacy. A broader context of extreme volatility in the global legal order is arguably also difficult to capture and pin down as to its specific temporal or conceptual elements. Strong internationalised institutionalisation appears to constitute the outcome of the ‘trade’ case study, whereas weak localised institutionalisation appears to constitute the outcome of the ‘data’ case study. Nonetheless, they both represent important evolving concepts of power, rights and authority beyond the State.

A transatlantic community of law: legal perspectives on the relationship between the EU and US legal orders

As a medium for communication between the EU and the USA, law has the ability to provide unique insights into the state of contemporary transatlantic relations. A Transatlantic Community of Law offers legal perspectives on the emerging institutional characteristics of transatlantic relations and contemporary rule-making in both trade and security. Making use of rule of law analysis which has hitherto not been conducted in transatlantic relations scholarship, it draws together EU law, governance and rule-making scholarship and offers new ways of thinking about the use of law and contemporary transatlantic institutions.

The subjects and objects of EU law: exploring a research platform

This edited volume explores how we frame the subjects and objects of contemporary European Union (EU) law. The inquiry as to the subjects and objects of public international law is one long scorned upon as fruitless (e.g. Higgins, 1994). Nevertheless, it is a more revealing inquiry in EU law, which has explicitly sought to differentiate itself as a new legal order of public international law with a distinctive framing of its subjects and objects. As the EU’s internal and external competences have evolved, significant changes surround the subjects and objects of contemporary EU law. It may increasingly capture a broader range of actors and interests, intentionally and otherwise. The subjects and objects of EU regulatory frameworks thus raise fundamental issues as to the rule of law as well as the EU’s legitimacy in the wider world. While there may be hundreds of years of work across disciples on the self as subject, the object as an entity often appears as a neglected field of inquiry. The EU treaties and EU law jurisprudence alike reveal a quantifiable panoply of interests, actors, objects and subjects, scattered across them. The collaborative research effort presented in this volume is linked to three primary motifs or considerations in how we frame the subjects and objects of EU law: transformations, the external-internal nexus and crises as to EU law. This edited volume confronts the question how should we understand the dialectic between the subjects and objects in contemporary EU law? Can the objects of EU law so readily become its subjects? What are the normative parameters of the shift from subject to object and object to subject? How are new narratives understood within this dialectic.

CETA and Global Governance Law: What Kind of Model Agreement Is It Really in Law?

The EU-Canada Economic and Trade Agreement (CETA) provides for the free movement of goods, persons and capital to various degrees and its depth and breadth remain to be seen, as a high profile next generation WTO plus Agreement. CETA may well become a model for future mega regionals, for reasons of its new model and scope. It is quite significant that CETA and the Transatlantic Trade and Investment Partnership (TTIP) are treated as related agreements. TTIP and TPP signified a shift towards the regulatory structures of the so-called mega regionals. The evolution of CETA as a survivor of a new form of second generation free trade agreement achieves all the more prominence for its efforts. As a result, while modest enough in relative terms in contrast with TTIP or CETA it is still an important effort to integrate developed legal orders and construct new configurations of global governance. This account thus considers the nature and substance of CETA. Section I the background to the CETA negotiations, ratification challenges, the aims and benefits of the text, followed by in Section II, detailed consideration of its legal provisions and Conclusions.

Addressing transatlantic regulatory barriers

This chapter proposes and assesses a legal regulatory recognition instrument to address non-tariff barriers to trade for goods and services in a US and EU transatlantic regional trade agreement. The procedure would make a factual determination that the underlying levels of protection sought to be guaranteed by the parties’ respective regulations are substantially equivalent. An equivalency finding would promote recognition by shifting the burden of proof to conformity assessment systems to demonstrate why they cannot be recognized as meeting the equivalent level of protection. The instrument as proposed would be made operable by private rights of action, accord representation to consumers’ interests, and retain certain political features as entrusted to a supervising trade agreement committee. A second part of the chapter considers the WTO aspects of such an equivalency instrument and determines that it may be employed on a preferential basis as long as any resulting final recognition is not limited to only goods or services of national origin.

Towards a transatlantic community of law

There is a still a discernible view in scholarship about the insignificance of law to transatlantic relations, as an ‘institutional-light’, ‘law-light’ unfixed scientific entity. However, many distinctive ‘interactions’ and rule-making exercises take place in contemporary times between the EU and US legal orders, for example, the development of the broad adoption of EU rules in the US, major EU-US rule convergence in data protection, an institutionalised Transatlantic Trade and Investment Partnership (TTIP) or even the EU intervening frequently before the US Supreme Court. Some of these developments are argued here to indicate the institutionalisation of transatlantic relations. Others are argued to indicate what is termed here as specific degrees of ‘proximity’ between the EU and US legal orders, i.e. closeness in instruments, structures or interactions, formal and informal, more specifically defined than a NATO-esque ‘Atlantic Area’. They (i.e. institutionalisation and close proximity) raise the question of the relationship between them as phenomena. Cumulatively, they form the basis for reflections here, by way of a future research agenda, on what the phenomenon of a ‘transatlantic community of law’ between the EU and US actually means in contemporary times. Recent developments also provokes a reflection upon to our understanding of the character of ‘real world’ interactions between legal orders and perhaps questions of their legitimacy. This account explores how law serves as a medium for communication between the two legal orders, sometimes outside of the strictly conventional bilateral context of EU-US agreements and conventional dispute resolution forums (termed here ‘non-bilateral’), only possible on account of the high quasi-institutionalisation of the relationship or at least very high proximity between the two legal orders. However, it is also shown here that there are boundaries or limitations on this proximity or closeness and major legitimacy questions also. For example, the limitations of mutual recognition in transatlantic justice cooperation are evident from an analysis of bilateral rule-making in security post 9/11. By contrast, in more recent times, the high proximity between the two legal orders results instead in more novel forms of bilateral rule-making, leading to the consideration of the movement of rules between the two legal orders in the phenomena of rule-transfer.

A Transatlantic Community of Law: Index

As a medium for communication between the EU and the USA, law has the ability to provide unique insights into the state of contemporary transatlantic relations. A Transatlantic Community of Law offers legal perspectives on the emerging institutional characteristics of transatlantic relations and contemporary rule-making in both trade and security. Making use of rule of law analysis which has hitherto not been conducted in transatlantic relations scholarship, it draws together EU law, governance and rule-making scholarship and offers new ways of thinking about the use of law and contemporary transatlantic institutions.