TTIP’s regulatory cooperation framework and its democratic implications

Posted by ACELG on 08/02/15
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by Marija Bartl

One of the issues on the agenda of the forthcoming workshop ‘Why TTIP? On its rationale, institutions and substantive areas”, taking place at the UVA on the 17th February 2015, are the democratic implications of TTIP’s regulatory cooperation framework. Alberto Alemmano, a visiting scholar of Access Europe and one of the most outspoken commentators on the topic, will present his ideas on regulatory cooperation (see, for instance, here), followed by rejoinders by several commentators (see programme).

Even if the TTIP would not have a set of institutions directly making law and thereby interfering with the regulatory process of the state parties (see Alemmano’s recent blog), two more indirect avenues are envisaged for shaping the respective domestic regulatory process. On the one hand, the TTIP will juridify certain ‘better regulation’ principles, such as transparency, consultation or impact assessment, thereby opening the  regulatory process to the gaze and input of the other state party and, more importantly, their stakeholders.  On the other hand, the TTIP will put in place a set of formal institutions (such as a Regulatory Council and sectorial committees, see here). Here regulators, experts and eventually trade officials will come together and, with the input of stakeholders, propose, first, a yearly (de)regulatory agenda for eliminating ‘behind the borders obstacles to trade’ and, second, socialize into using  similar regulatory techniques and methodologies.

The question that we aim to answer in this workshop is the following. If the purpose of the agreement is to change the ‘mindset’ of regulators (rather than produce formal law), what are the possible democratic implications thereof? In otherwords, what will be the broader discursive impact of the TTIP’s ‘light’ institutional structure on the democratic debate in both the EU and the US?

Dr. Marija Bartl works as assistant professor at the Centre for the Study of European Contract Law, University of Amsterdam, and as senior researcher at the Architecture of Post-National Rule-Making project.

 

EU Ombudsman puts pressure on the Commission to improve transparency of expert groups

Posted by ACELG on 02/02/15
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EU Ombudsman, Emily O’Reilly, has recently demanded improvements in the Commission’s practice of consulting Expert Groups. Among other things, the Ombudsman has demanded legally binding rules to improve transparency and a balanced composition of the Commission expert groups. This recent initiative is part of the Ombudsman’s ongoing investigation into the systemic issues of the Commission’s practice in this area, which was opened in May 2014. It also adds to the transparency demands already expressed by the European Parliament last year.

The key demands put forward by the Ombudsman are:

  • The adoption of a legally binding horizontal framework for expert groups modeled upon the framework used by Directorate General’s AGRI for civil dialogue groups
  • The publication of a call for applications for every expert group
  • Stronger links and consistency with the EU Transparency Register
  • The revision of the Commission’s conflict of interest policy to avoid potential conflict of interest of experts who are appointed in their personal capacity
  • The provision of better and more timely information about the expert groups

If realized, this would be an interesting new development on the way to concretizing the concept of good administration in the EU. It remains to be seen, however, whether the Commission will be willing to abandon its until present “soft” rule-making approach regarding the consultation of expert groups. Among ACELG researchers Dr. Joana Mendes has been advocating the hardening of rules on participation in Commission rule-making.

European Central Bank’s room for manoeuvre provisionally confirmed

Posted by ACELG on 19/01/15
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Last week saw a confirmation of the powers of the European Central Bank (ECB) to address the crisis with the delivery of the (non-binding) Opinion in a case before the Court of Justice of the European Union (CJEU, or European Court).

By René Smits

The Advocate General (AG) confirmed the wide discretion, which the ECB has when taking unconventional monetary policy measures. At the same time, the AG suggested the Court that the ECB be required, when implementing such measures, to be fully transparent in the reasons behind them (motivation requirement) and to respect the proportionality principle (the measures are to remain well within the limits of the necessary to obtain the stated goal). He warned that the ECB’s involvement in economic policy setting and monitoring should end in respect of Member States whose bonds the ECB would buy under such unconventional measures: an end to the troika (troixit). The AG addressed the relationship between the CJEU and the highest court of the largest Member State, which had referred the question to be decided by the European Court. The AG opinion should be seen against the background of a battle for supremacy of the law (Union versus State law), and a battle for the public’s mind in Germany on the need of unconventional measures, as well as their role in preserving the euro and the composition of the currency union. The Opinion will support the ECB in deciding on further unconventional monetary policy measures, and underlines the primacy of EU law.

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Reaction to Leonard Besselink’s ACELG Blog

Posted by ACELG on 06/01/15
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Thanks to Leonard Besselink for giving a fast, sensible and innovative approach to get the Union out of the quagmire created by the Court’s Opinion 2/13. He proposes an amending Protocol to the TEU, which will basically amend Article 6(2) of that Treaty by announcing that this accession will happen “notwithstanding” the Opinion of the Court, effectively setting it aside. However, that solution might be too radical for many in the EU Institutions and even the Member States.

By Pieter Jan Kuijper

How could one accommodate most, perhaps all, of the problems of the Court, without returning to the negotiating table, where the EU will once again meet some very unwilling negotiation partners? Of these certainly Russia by now will have become totally intractable. There is simply not much hope that it will agree to anything of the kind. Moreover, it would be the second time that the Union returns before its own Members and other Member States of the Council of Europe to ask them to help solve its problems (which, once again, are largely the problems of the Court). This is simply not a situation in which any negotiator should want to be put. The Union would be in an incredibly feeble position.

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Acceding to the ECHR notwithstanding the Court of Justice Opinion 2/13

Posted by ACELG on 24/12/14
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The Court’s Opinion may have shattered expectations. Who had thought that the revised accession agreement that was renegotiated by the EU and its Member States with the State Parties to the ECHR, after an initial rejection in the Council by the UK and France, would be dodged by the Court? After all, on all the points that the Court and its President had made known to the negotiators, namely the guaranteed ‘prior involvement’, the Court seemed to have been granted a privileged position, that has not been granted to any other court of any of the parties to the ECHR. Was the Court’s membership of the Council Committee in charge of supervising the negotiations on this and other points in vain?

By Leonard Besselink

It is too early to give an in-depth assessment of the position taken by the Court on various points. We do now know that we have to take the President seriously when he announced in the plenary debate at the closing session of the FIDE Conference 2014 powerfully:

“The Court is not a human rights court: it is the Supreme Court of the Union.”

It took this in a more literal way than could be expected, and gave a resounding: NJET.

What’s to do now?  Tobias Lock has suggested that ‘[i]t is clear that the drafters of the DAA will have to return to the negotiating table’. I respectfully disagree.

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A general regulation of administrative procedure for the European Union?

Posted by ACELG on 17/12/14
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Since the entry into force of the Treaty of Lisbon the passionate desire of the European Ombudsman and European Parliament is to create a regulation for administrative procedures for all European institutions. Unfortunately the legal basis for such a proposal is far from solid.

By Pieter van der Ploeg

Currently, rules on administrative procedures for EU institutions are scattered throughout a variety of sources of EU law. In primary law article 41 of the Charter of Fundamental Rights of the European Union establishes everyone’s right to fair and impartial administration. At the level of secondary law, administrative procedures are regulated per policy area in a variety of binding and nonbinding instruments. The prime example is Regulation 1/2003, which contains the Commission’s procedures on competition law. Last, the European Court of Justice has established several principles of good administration in its case law. So far the court has recognized the principle of non-discrimination, the principle of proportionality, the right to a hearing before an adverse decision is taken by a public authority, and several other principles.

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Ten Years of Decentralized EU Competition Law Enforcement – Success or Failure?

Posted by ACELG on 10/12/14
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Notes from the Fourth ACELG Annual Conference (November 14, 2014)

This year’s ACELG conference was dedicated to assessing one of the last decade’s most significant developments in EU competition law, namely the decentralization of its enforcement system. The conference offered unique benchmarks for evaluating the success of this reform by examining its various institutional and constitutional outcomes and their implications on the EU’s and its Member States’ legal orders.

By Or Brook

Ten years ago, Regulation 1/2003 decentralized the enforcement of EU competition law. The Regulation abolished the Commission’s previous monopoly on applying many of the EU competition rules and aimed to share the enforcement activities and responsibilities with the Member States’ national competition authorities (‘NCAs’) and national courts.

The shift from a supranational to a transnational and multiple-layered EU enforcement setting raised significant challenges relating to the new multi-level governance and the national actors’ administrative capacities. Nevertheless, Regulation 1/2003 contains very little guidance in this regard, and allows the Member States to choose the institutional embedding and accountability of their NCAs and national courts.

Against this background, the Fourth Annual ACELG conference offered unique perspectives for evaluating the new enforcement system’s success: while previous assessments primarily compared Regulation 1/2003’s outcomes to the Commission’s goals for decentralization (namely, enhancing the Commission’s possibility to set its enforcement priorities, ensuring effective supervision, and ensuring a uniform and coherent application of the competition rules), the conference offered three alternative institutional and constitutional benchmarks to guide the assessment, as described below.

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Will the Juncker Commission initiate unified Eurozone external representation?

As the response to the Eurozone sovereign debt crisis has shown, when push comes to shove, EU Member States are willing to accept a further transfer of powers to the European level. However, they are – understandably – not so keen on reforms that diminish their international stature. The long overdue consolidation of the Eurozone’s external representation, identified as one of the building blocks of a ‘genuine’ Economic and Monetary Union (EMU), was perpetually delayed under the Barroso Commission. EU Member States, it appears, are still not ready to accept this particular curtailment of their powers. This raises the question whether the new Juncker Commission will be able to seal the deal fifteen years after the Eurozone came into existence.

By Chris Koedooder


A ‘genuine EMU’ calls for unified external representation, says the Commission…

The consolidation of the Eurozone’s external representation is a comparatively minor step on the road towards a ‘genuine EMU’; nonetheless, it carries great symbolical significance. Presently, various EU Member States represent the Union in international financial institutions. A seat at the table in top-level international negotiations brings status, so naturally Member States are reluctant to give up their privileged positions (which often reflect post-WWII power relations rather than our current international economic order). For quite a while now, the Commission has hinted that at some point in the near future it will finally try to break the political impasse which has existed on the issue since 1998, when an initial Commission proposal was not followed up by the Council.

When the sovereign debt crisis was at its peak, Commission President Barroso argued on multiple occasions that a strengthening and consolidation of the Eurozone’s external representation should be pursued. Barroso appeared confident that the Eurozone Member States could be persuaded to give up their seats in the International Monetary Fund (IMF). He even announced that the Commission would present “before the end of 2013” a proposal “to establish a unified position to achieve an observer status of the [Eurozone] in the IMF executive board, and subsequently for a single seat”. As will be explained below, the latter is currently not legally possible.

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The EU says NO to ‘benefit tourists’: how fundamental is the status of Union citizenship?

On 11 November, the Court ruled in Dano that Member States can deny social assistance to EU citizens who do not work and are not looking for a job in the receiving state. That decision was applauded by both Germany and the UK. According to Cameron, the Court’s decision was “simple common sense”. But was it really?

By Annette Schrauwen

“Can the status of EU citizenship be relied upon against the economic difficulties of modern life?” This question marks the beginning of an advisory Opinion in a case before the European Court of Justice (the Court) involving German pensioners claiming a compensatory supplement in Austria, that was decided last year. [C-140/12, Brey] That decision did not receive as much media coverage as the decision in the Dano case did.

In this latter case, Elisabetta Dano, a Romanian living with her sister in Germany since 2010, is portrayed as the social benefit tourist par excellence. She has never worked in Germany and apparently was not looking for work. She applied for a social benefit and the German authorities refused her application. She challenged the refusal on grounds of EU law, notably free movement of persons and non-discrimination on the basis of nationality. Upon questions from the national judge, the CJEU ruled that Member States can exclude EU citizens in the position of Elisabetta Dano from access to the specific social benefits that Ms Dano had requested.

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Making the same mistake all over again: Juncker’s reshuffling of public health portfolios

Posted by ACELG on 25/09/14
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What did we learn from the BSE crisis? Remember how the European Commission was criticised for letting market concerns take precedence over public health protection? With the ongoing reshuffling of the Commission portfolios by President-elect Juncker, some major units for EU public health protection, such as ‘Health Technology and Cosmetics’, ‘Medicinal Products – Authorisations, European Medicines Agency’, and ‘Medical Products – Quality, Safety and Efficacy’, move from DG SANCO (Health) to DG Enterprise and Industry. The changes to the portfolios come without further explanation and after the deadline for the Parliament to ask written questions has passed. At the same time, the message sent to EU citizens seems to be that in the EU, public health is a means for economic interests rather than an end in and of itself.

By Anniek de Ruijter

In the years following the BSE-crisis increasingly public health portfolios were moved to the health commissioner and became the responsibility of DG SANCO. Important and major aspects of the European internal market such as the safety for pharmaceuticals, medical products and health technology were all moved to DG SANCO. With respect to pharmaceuticals, an important reason for putting DG SANCO in charge was that DG Enterprise failed to manage the 2009 H1N1 crisis with respect to the coordination and availability of vaccines. Thus it was recognized that public health specialists needed to work in tandem in such extremely difficult and multifaceted crises. This mirrors the situation in Member States, where one may find it difficult to find ministerial departments on economic and financial affairs in charge of the approval and safety of medicinal products.

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