Abstract
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.
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Notes
- 1.
North (1990).
- 2.
Sassen (2017).
- 3.
‘Institutionalisation’, Oxford English Dictionary, 3rd edn. OUP 2016 (British English spelling employed throughout).
- 4.
Writing of its role aiming to produce state identity in the wake of colonisation: Resnik (2013), pp. 162, 163.
- 5.
- 6.
Soltys (2014), pp. 342, 362.
- 7.
Luppa et al. (2008), pp. 65, 78.
- 8.
E.g. Heclo (2008), p. 732.
- 9.
Katz and Crotty (2006), p. 206.
- 10.
Elgie and McMenamin (2008), pp. 255, 267.
- 11.
E.g., See Yearbook of International Organizations (BRILL, Hague), listing new organisations; ‘Continent of international law’ project accessed <http://www.isr.umich.edu/cps/coil/>; the Authority of International Institutions PICT-PICT Project on international courts and tribunals (PICT) available at <www.pict.picti.org>, accessed 1 June 2017.
- 12.
- 13.
- 14.
- 15.
See generally the conclusions of Goldmann (2017).
- 16.
- 17.
Smith (2004).
- 18.
Petrov (2010).
- 19.
Ibid.
- 20.
Stone-Sweet et al. (2001).
- 21.
They begin from the premise that the negotiators of the Treaty of Rome did not fully understand the kind of political space that would evolve. More recent study of the history of the sources of EU integration and the development of supremacy by the CJEU suggests otherwise. …Writing in the context of a sensitive EU policy field, some define the process of institutionalisation as the increased complexity of institutional action in that collective behaviours and choices are more detailed and closely linked thus applying to more situations: Smith (2004).
- 22.
- 23.
See Council conclusions on EU relations with the Swiss Confederation 93/17 (28 Feb 2017), available at <http://www.consilium.europa.eu/en/press/press-releases/2017/02/28-conclusions-eu-swiss-confederation/> accessed 1 June 2017; Council conclusions on a homogeneous extended single market and EU relations with Non-EU Western European countries (16 Dec 2014), available at <https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/er/146315.pdf> accessed 1 June 2017.
- 24.
- 25.
Article 14 of the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, as regards the replacement of Annex III (Mutual recognition of professional qualifications) thereto, 2011/467/EU [2011] OJ L 195/7; COM/2015/076 final. See to similar effect Council Decision (EU) 2015/771 of 7 May 2015, with the same legal bases.
- 26.
See Case C-247/09 Alketa Xhymshiti v Bundesagentur für Arbeit, EU:C:2010:698.
- 27.
- 28.
Fahey (2014b), Ch. 1.
- 29.
See further Peterson (2016), p. 383.
- 30.
Keohane (1984).
- 31.
- 32.
- 33.
Pollack and Shaffer (2001), p. 298.
- 34.
Pollack (2005).
- 35.
- 36.
- 37.
Fahey (2014a), p. 368.
- 38.
A dispute between the EU and US as to visa waiver arising from the failure of the US to recognise EU competences has escalated, with a threat being issued to revoke visa free travel for US citizens in the EU (De Capitani 2017).
- 39.
- 40.
- 41.
See Bignami and Charnovitz (2001).
- 42.
I.e. The European Parliament. Cf Jančić (2015), p. 334.
- 43.
For example, the EU-US Cybercrime and Cyber-security Working Group or the High Level Working Group on Jobs and Growth.
- 44.
- 45.
- 46.
- 47.
- 48.
- 49.
Zürn (2016); for example, holding open workshops for a broad range of private and public actors and publishing the lists of all of the participants: available at <http://www.enisa.europa.eu/activities/Resilience-and-CIIP/workshops-1/2012/eu-us-open-workshop> accessed 1 June 2017. See the EU’s use the email address: trade-ttip-transparency@ec.europa.eu; Twitter account; videos of civil society meetings.
- 50.
Shaffer (2016), pp. 1–7 (outlining: regulatory cooperation, harmonisation, mutual recognition of standards, mutual recognition of third party certifiers, horizontal and common approaches and horizontal and vertical regulatory dialogues).
- 51.
- 52.
21 March 2016 draft (in Article x1), ‘a high level of protection of inter alia public health, health and safety, animal welfare, the environment, consumers, social protection and social security, personal data and cyber security, cultural diversity and financial stability whilst facilitating trade and investment’.
- 53.
March 2016 draft, ibid.
- 54.
See Article 43 of the Directives for the negotiation on the Transatlantic Trade and Investment Partnership between the EU and US, 11103/13 DCL 1 (Brussels, 17 June, 2013): See Bartl and Fahey (2014).
- 55.
Arguably it envisaged an executive dominated structure of officials tasks with charting TTIP’s evolution, through an annual Regulatory Cooperation programme, to outline priorities, suggest new joint initiatives, with reviews only at ministerial level regularly, reporting to the EU-US Summit to legislators every two years, thereby skewing political accountability.
- 56.
E.g., natural or legal persons may jointly submit concrete and sufficiently substantiated proposal, including from public interest bodies (Article x 5 (2)).
- 57.
- 58.
A final EU Proposal for Institutional, General and Final Provisions was tabled in 2016. Mendes (2016).
- 59.
On its relationship with direct effect: Semertzi (2014), p. 1125.
- 60.
Kumm (2015).
- 61.
- 62.
- 63.
See ‘Press Release, CETA: EU and Canada Agree on New Approach on Investment in Trade Agreement’ (European Commission, 1 July 2016), available at <http://europa.eu/rapid/press-release_IP-16-399_en.htm> accessed 1 June 201. EU governments adopted a declaration on the signing of CETA on the multilateral investment court: Council doc. 13463/1/116 (27 Oct 2016).
- 64.
A publication consultation was organised by the European Commission in 2014 yielded an extraordinary bounty of interest, of approximately 150,000 replies, largely sceptical. Commission, ‘Online public consultation on investment protection and investor-to-state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership Agreement (TTIP)’, COM (2015) SWD 3 final.
- 65.
See ‘Press Release, EU Finalises Proposal for Investment Protection and Court System for TTIP’ (European Commission, 12 Nov 2015) available at <http://europa.eu/rapid/press-release_IP-15-6059_en.htm> accessed 1 June 2017.
- 66.
Commission, ‘Concept Paper: Investment in TTIP and Beyond: The Path for Reform’ available at <http://trade.ec.europa.eu/doclib/docs/2015/may/tradoc_153408.PDF> accessed 1 June 2017.
- 67.
For example, it sought to provide that the UNITRAL Rule on Transparency in Investor State Arbitration applied along with the Vienna Convention of the Law of Treaties.
- 68.
The European Parliament rejected a request by 89 MEPs to refer the investment chapter of the EU-Canada Comprehensive Economic and Trade Agreement (CETA) to the European Court of Justice (ECJ) for an opinion in November 2016 but Belgium appears likely to after Opinion 2/15 is issued by the CJEU. The European Parliament’s Legal Service then found no contradiction between CETA’s investment chapter and the EU Treaties. An even greater challenge is whether the concerns of the CJEU in its landmark opinion on EU accession to the ECHR, Opinion 2/13 are accurately reflected in the ‘legally scrubbed’ version of the CETA text and its additional interpretative provisions; See Opinion 2/13 Opinion of the Court (Full Court) of 18 December 2014 ECLI:EU:C:2014:2454. See Opinion 1/15 EU-Singapore ECLI:EU:C:2017:376 (16 May 2016).
- 69.
Joint Interpretative Instrument on the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union and its Member States Council doc. 13541/16 Brussels 27 October 2016.
- 70.
It is considering the following: Could it be set up of domestic and international courts on appellate level? How would the permanent dimension work or be funded and run? Is it canvassing: what are the difference between the bilateral ICS in CETA and a multilateral court? How do differences in membership, appointments, geographical balance, permanent, enforcement and cost allocations work?
- 71.
- 72.
Roberts (2017).
- 73.
- 74.
See the chapters of Titi and Garcia respectively in this volume.
- 75.
Cole and Fabbrini (2016), p. 220.
- 76.
Schwartz (2013), pp. 1996, 2009.
- 77.
Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the EU-U.S. Privacy Shield (notified under document C(2016) 4176); Case C-362/14 Schrems v Data Commissioner, EU:C:2015:650; Azoulai and Van der Sluis (2016), p. 1343.
- 78.
Where the principles went beyond the regulatory requirements prevailing in the US Still, the lack of a uniform body of privacy law or regulation and no specialised enforcement authorities still entailed that it was widely assumed that US law would not be regarded as ‘adequate’. Cf Schaffer (2002), pp. 29, 77.
- 79.
Commission Decision of 26 July 2000 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce, 2000/520/EC, OJ L 215 p 7). Article 25 of the Directive provided that Member States would prohibit all data transfers to a third country if the Commission did not find that they ensured an adequate level of protection.
- 80.
European Parliament Resolution of 23 October 2013 on the suspension of the TFTP agreement as a result of US National Security Agency surveillance (2013/2831(RSP)); European Parliament Resolution of 29 October 2015 on the follow-up to the European Parliament resolution of 12 March 2014 on the electronic mass surveillance of EU citizens (2015/2635(RSP)); European Parliament Resolution of 12 March 2014 on the US NSA surveillance programme, surveillance bodies in various Member States and their impact on EU citizens’ fundamental rights and on transatlantic cooperation in Justice and Home Affairs (2013/2188(INI)). Report on the Findings by the EU Co-chairs of the Ad Hoc EU-US Working Group on Data Protection’, Council document 16987/13, 27 November 2013; EU-US Justice and Home Affairs Ministerial Meeting of 18 November 2013, Council 16418/13, 18 November, 2013; Commission, ‘Rebuilding Trust in EU-US Data Flows’ COM (2013) 846 final; Commission, ‘Communication on the functioning of the safe harbour from the perspective of EU citizens and companies established in the EU’ COM (2013) 847 final.
- 81.
In Joined Cases C-293/12 & C-594/12 Digital Rights Ireland and Seitlinger and Others EU:C:2014:238; Cf C 131/12 Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González EU:C:2014:317.
- 82.
Case C-362/14 Schrems v Data Commissioner, EU:C:2015:650.
- 83.
See Statement of the Article 29 Working Party on the implementation of the judgment of the ECJ of 6 October 2015 in Case C-362/14 Schrems v Data Commissioner, EU:C:2015:650;
- 84.
- 85.
Barlow (1996).
- 86.
Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the EU-U.S. Privacy Shield (notified under document C(2016) 4176).
- 87.
Jourová and O’Reilly (2016).
- 88.
Article 29 Working Part Opinion 1/2016 on the EU-US Privacy Shield Draft Adequacy decision 13 April 2016 WP 238; European Data Protection Supervisor, Opinion on the EU-US Privacy Shield Adequacy Decision 30 May 2016, Opinion 4/2016 European Parliament Resolution on transatlantic data flows (26 May 2016) 2016/2727(RSP).
- 89.
Commission, ‘Proposal for a Council Decision on the signing, on behalf of the European Union, of an Agreement between the United States of America and the European Union on the protection of personal information relating to the prevention, investigation, detection, and prosecution of criminal offenses’ COM (2016) 238 final.
- 90.
It constitutes a de facto and de jure equivalent of an adequacy decision of the Commission pursuant to Article 5(3) of the Agreement, within the meaning of Article 25 of Directive 95/46 [1995] OJ L 281/31.
- 91.
Meijers Committee Note on the EU-US Umbrella Agreement CM 1613. The Meijers Committee has raised concerns as to the relationship between this superstructure and the existing EU-US Agreements (Europol, Eurojust, MLA, Bilateral MLA treaties, TFTP and PNR) with regard to the sustainability of an adequacy requirement.
- 92.
See Fahey (2013), p. 368.
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Fahey, E. (2018). Introduction: Institutionalisation beyond the Nation State: New Paradigms? Transatlantic Relations: Data, Privacy and Trade Law. In: Fahey, E. (eds) Institutionalisation beyond the Nation State. Studies in European Economic Law and Regulation, vol 10. Springer, Cham. https://doi.org/10.1007/978-3-319-50221-2_1
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