Abstract
More recently the role of the European regional regulator in the global regulatory space has attracted more attention, opening up a wider debate on the role of regional regimes in global regulation. In particular the slice of the debate relevant for this essay concerns the extent to which regional regulatory systems are drivers of differentiation and can be seen as obstacles of regulatory globalization or, on the contrary, are the pillars of a global system where multiple actors, organized around territorial or functional metrics, contribute to regulatory design and implementation.
I would like to thank Loic Azoulai and Laszlo Bruszt for comments received on earlier drafts. I would like to thank Federica Casarosa for research and editorial assistance. Responsibility for mistakes is mine.
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Notes
- 1.
See for a first attempt to systematize the development G De Burca and J Scott (eds), Constitutional change in EU. From uniformity to flexibility (Oxford, Hart Publishing, 2002). In their joint introduction the Authors state: ‘over the past ten years the paradigm (…) of uniformity, homogeneity and one-directional integration is gradually being replaced by one of flexibility, mixity and differentiation’, at 2.
- 2.
See Art 5 TFEU in relation to economic, employment and social policies.
- 3.
See F Cafaggi (ed), Quale armonizzazione per il diritto europeo dei contratti? (Padova, CEDAM, 2003) and, under the label of open method of approximation W van Gerven, ‘Bringing (Private) Laws Closer to Each Other at the European Level’ in F Cafaggi (ed), The institutional framework of European private law (Oxford, Oxford University Publishing, 2006) 39.
- 4.
See M Cappelletti, M Seccombe and J Weiler (eds), Integration Through Law: Methods, tools, and institutions (Berlin, de Gruyter, 1986).
- 5.
The principle is now clearly stated in Art 4 TEU.
- 6.
See F Cafaggi, ‘Private Regulation in European Private Law’ in A Hartkamp et al (eds), Towards a European civil code, 4th ed (Alphen aan den Rijn, Wolters Kluwer, 2011) 91.
- 7.
On the relationship between European private regulatory law and legislative competences see H-W Micklitz, ‘The forgotten dimension of private law’ in L Azoulai (ed), The Question of Competence in the European Union (Oxford, Oxford University Press, 2014) forthcoming.
- 8.
See F Cafaggi and A Janczuck, ‘Private regulation and legal integration: the European case’ (2010) 12 (3) Business and Politics 1.
- 9.
See below the illustration of the payment system failure. There the major question was the allocation of the costs of legal integration. Private actors were unable to find a workable solution and the Commission modified its role and the regulatory strategy moving away from private regulation.
- 10.
See A Janczuck, Private regulation and European integration, Doctoral thesis (Florence, European University Institute, 2011).
- 11.
See Cafaggi, ‘Private regulation in European Private law’, 91.
- 12.
See L Bruszt and R Holzhacker (eds), The Transnationalization of Economies, States, and Civil Societies (New York, Springer, 2010); M-L Djelic and K Sahlin-Anderson, Transnational Governance Institutional Dynamics of Regulation (Cambridge, Cambridge University Press, 2006); S Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton, Princeton University Press, 2006).
- 13.
See L Bruszt and G McDermott, ‘Integrating Rule Takers: Transnational integration regimes shaping institutional change in emerging market democracies’ (2012) 19 Review of International Political Economy 742.
- 14.
See F Snyder, ‘EMU— Integration and differentiation: Metaphor for European Union’ in P Craig and G de Burca (eds), The Evolution of EU Law, 2nd ed (Oxford, Oxford University Press, 2011) 687.
- 15.
For a broader analysis see F Cafaggi, New foundations of transnational private regulation (Malden, Wiley-Blackwell, 2011) 20Â ff.
- 16.
See Art 27.
- 17.
See Reg on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation), Art 38.
- 18.
See General Data Protection Regulation, Arts 42 and 43.
- 19.
See EASA, Bluebook, 6th ed (2011).
- 20.
Self-Regulation in the EU Advertising Sector: A report of some discussion among Interested Parties, www.easa-alliance.org/binarydata.aspx?type=doc&sessionId=j1gx2c45y1mw033hcifxnk55/DGSANCO_advertisingRT_report.pdf.
- 21.
See EASA, Best Practice Recommendation on Online Behavioural Advertising (2011), available at http://www.easa-alliance.org/page.aspx/386.
- 22.
See Dir 2000/31/EC on certain legal aspects of information society services, Arts 12-15 on Internet Service Providers’ liability.
- 23.
See MoU UPDATE.
- 24.
AG Cruz Villalón, Opinion of 26 November 2013, Case C-314/12 UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft GmbH, not yet reported.
- 25.
See SJ Henson and J Humphrey, ’The impacts of private food safety standards on the food chain and on the public standard-setting process’, Paper prepared for FAO/WHO, ALINORM 09/32/9D-PArt II, Codex Alimentarius Commission.
- 26.
See Commission communication, EU best practice for voluntary certification schemes for agricultural products and foodstuffs, 201/C 341/04 (hereinafter: EU Guidelines on voluntary certification).
- 27.
See EU Guidelines on voluntary certification, 7.1.
- 28.
See EU Guidelines on voluntary certification, 7.2.
- 29.
- 30.
See Decision of 30/7/2010, establishing the High Level Forum for a better functioning supply chain (2010/C 210/03) and vertical relationship in the food supply chain.
- 31.
See, for example Italy, Art 62.
- 32.
See Reg 260/2012 establishing technical and business requirements for credit transfers and direct debits in euro, recital 1.
- 33.
For a detailed analysis see A Janczuk, ‘Transnational private regulation and the payment system’, HIIL case study, presented in Florence, January 2012.
- 34.
Regulation on establishing technical requirements, recital 5.
- 35.
The new body, which will continue exercising standard setting functions, will present a different balance between European and Member States private bodies both on the banking, customers and the consumer sides. National bodies primarily will play a more relevant role rebalancing the regulatory power within a newly defined regulatory process.
- 36.
For a detailed analysis see Janczuk, Private regulation and European legal integration.
- 37.
See JHH Weiler, ‘The Transformation of Europe’ (1991) 100 The Yale Law Journal 2403; A Stone Sweet and M Shapiro, ‘The New Constitutional Politics of Europe’ (1994) 26 Comparative Political Studies 397; A Stone Sweet, ‘Constitutional Politics: The Reciprocal Impact of Lawmaking and Constitutional Adjudication’ in C Harlow and P Craig (eds), Lawmaking in the European Union (London, Sweet and Maxwell, 1998); K Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford, Oxford University Press, 2001).
- 38.
See Weiler, ‘The Transformation of Europe’.
- 39.
See A Stone Sweet, ‘The European Court of Justice’ in P Craig and G de Burca (eds), The evolution of EU law, 2nd ed (Oxford, Oxford University Press, 2011) 122, 131.
- 40.
- 41.
See F Cafaggi, ‘Private Law-Making and European Integration: Where do they meet? When do they conflict?’ in D Oliver, T Prosser and R Rawlings (eds), The regulatory State (Oxford, Oxford University Press, 2010); Cafaggi, ‘Private regulation and European private law’.
- 42.
Unlike in the public domain, where the internal market creation is almost always part of the legal basis, in the area of European private regulation integration, let alone harmonization is not necessarily the primary objective.
- 43.
See the debate generated by ECJ, judgment of 12 July 2012, case C-171/11 Fra.bo SpA v Deutsche Vereinigung des Gas- und Wasserfaches eV (DVGW) – Technisch-Wissenschaftlicher Verein, not yet reported. See R van Gestel and H-W Micklitz, ‘European Integration through Standardization. How judicial review is breaking down the club house of private standardization bodies’ (2013) 50 Common Market L.aw Review 145.
- 44.
Legal voluntariness is often mitigated by socio-economic factors that often make de facto binding the subscription to a de jure voluntary scheme. The limits of voluntariness and the degree of coercion imposed by private power on regulated entities has been addressed by increasing procedural requirement and standard setting procedures.
- 45.
An exception of the exception is represented by technical standards that, unless otherwise stated in legislation, remain voluntary even in presence of the delegation agreement between the European Commission, Cen and Cenelec (see Art 2 of Reg 1025/2012). Clearly, however, when compliance with technical standards ISO or CEN/CENELEC is required by sector specific legislation its adoption/compliance is mandatory. A question that remains open is the extent to which the general principles set forth therein are applicable to technical standards produced by non-recognized standard setting bodies or to private standards without a technical feature. See F Cafaggi, ‘Towards general principles for EU private standards?’, on file with the author.
- 46.
It should be said that the principle of supremacy does not translate into hierarchy even in the public domain as the Solange case law and the dialogue between the German Bundesverfassungsgericht and the Court of Justice shows.
- 47.
On the relationship between integration and disintegration see De Burca and Scott, ‘Introduction to Constitutional change in the EU’.
- 48.
On the relationship between free movement and competition law as limits to private autonomy see S Weatherill, ‘The elusive character of private autonomy in EU law’ in D Leczykiewicz and S Weatherill (eds), The involvement of EU law in private law relationship (Oxford, Hart Publishing, 2013) 9, in particular 10-15.
- 49.
See HIIL Final report, November 2013, available at www.privateregulation.eu.
- 50.
- 51.
See A Heritier and S Eckert, ‘New Modes of Governance in the Shadow of Hierarchy: Self-regulation by Industry in Europe’ (2008) 28 Journal of Public Policy 113.
- 52.
See case C-171/11, Fra.bo v DVGW.
- 53.
This approach has long standing roots. See case C-415/93 Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman [1995] ECR I-4921, para 86.
- 54.
See van Gestel and Micklitz, ‘European Integration through Standardization’, 175 where the authors claim that Fra.bo requires private bodies issuing technical standards to comply with constitutional law making standards.
- 55.
The general principles set forth in the EU Reg 1025/2012 concerning technical standardization should apply beyond technical standards and become the criteria against which compatibility with free movement is tested. Among the principles drawn from the code of practice drafted by WTO transparency, openness, consensus, independence and efficiency should inform procedural requirements and considered to have general applications.
- 56.
On the application of the principle of non discrimination to private parties see N Reich, ‘The impact of non discrimination principle in private autonomy’ in Leczykiewicz and Weatherill (eds), The involvement of EU law in private law relationship, 253 ff., emphasizing the necessity to include the collective dimension of discrimination that is the dominant feature in private regulation.
- 57.
When the standard setting body in practice regulates entry to a domestic market, Art 28 TFEU applies. See case C-171/11 Fra.bo v DVGW, paras 31Â f.
- 58.
The Court, unlike the AG, avoids speaking of direct or indirect horizontal effects but clearly admits the applicability of freedom of movement principles subject to two conditions. See case C-171/11 Fra.bo v DVGW, para 32.
- 59.
See AG Trstenjak, Opinion of 28 March 2012, Case C-171/11, Fra.bo v DVGW, paras 39 and 56. It becomes clear in the words of the AG that the private nature of the rule making body may justify restrictions of free movement when there is a conflict with fundamental rights like freedom of conduct a business and, I would add, freedom of association. The application of the principle of proportionality to private regulation would hence lead to a different balance from that which would be reached had the state been the regulator. See for a broader analysis concerning the application of the principle of proportionality to private regulation F Cafaggi, Rethinking private regulation in the European regulatory space (Aalphen an den Rijn, Kluwer, 2006) 3 ff.
- 60.
Case C-453/99 Courage Ltd v Bernard Crehan and Bernard Crehan v Courage Ltd and Others [2001] ECR I-6297.
- 61.
See V Trstenjak and E Beysen, ‘The growing overlap of fundamental freedoms and fundamental rights in the case-law of the CJEU’ (2013) 38 European Law Review 293.
- 62.
Incorporation by reference into European legislation takes place without a test or the request of specific requirements concerning both the governance and the structure of the regulatory process that has produced the incorporated standards. A different approach has been taken in the US. See Recommendation 5/2011 Incorporation by reference adopted by the Administrative Conference of the United States.
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Cafaggi, F. (2014). Does Private Regulation Foster European Legal Integration?. In: Purnhagen, K., Rott, P. (eds) Varieties of European Economic Law and Regulation. Studies in European Economic Law and Regulation, vol 3. Springer, Cham. https://doi.org/10.1007/978-3-319-04903-8_13
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