EU Law-making Research Articles

Black boxes and open secrets: trilogues as ‘politicised diplomacy’

Why do EU actors promote secluded fora of decision making even as they have committed themselves to open and public lawmaking? How do they perceive and reconcile the ensuing tensions in practice? These questions, arising amidst growing public controversy, point to a blind spot in the scholarly agenda on EU lawmaking, which has overwhelmingly focused on the games institutions play. From an interpretivist perspective, we argue that rules are ‘made’ not by detached officials, but by practitioners puzzling out the meaning of their actions in their everyday experiences. Based on extensive interview material, the article captures trilogues as ‘politicised diplomacy’ and shows how they have become a ‘permeable institution’, shaped by dense flows of exchange between ‘insiders’ and ‘outsiders’. The article helps pinpoint to what extent and how trilogues challenge democratic norms; and it punctures the myth of trilogues as quiet politics dominated by producer interests.

The Dynamic Potential of European Union Health Law

Some understandings of European Union health law are based on a presumption of law as a static and closed system. This approach to the Union as a legal entity has important ramifications. The Union is a political system created by and subject to the rule of law. Its successes (and failures) are attributable to the legalisation of solving externalities and ensuring Member State solidarity, to gain benefits from integration. Member States, which create and sustain the Union by repeated acts of sovereign choice, choose to subject themselves to the rule of (Union) law. That protects both the Member States and the Union institutions (imperfectly, but nonetheless) from charges of illegitimacy. While recognising the benefits of such an approach to EU integration and lawmaking, we take the view that law also has an important dynamic potential. That dynamic potential is inherent in all law, for law is embodied in text, and always open to interpretation, as the external contexts that give legal text meaning in the real-world change through time. We trace the dynamic potential of Union health law, by looking at its legal basis, to its foundational Treaties and plot its trajectory going forward.

Cybersecurity of Medical Devices: Regulatory Challenges in the EU

This book chapter assesses the EU medical devices legal framework in light of the EU cybersecurity policy objectives and the complexity aspects inherently characterizing the healthcare sector. First, it outlines the core cybersecurity-related elements in the EU Medical Devices Regulation (MDR) and offers critical remarks on the Medical Device Coordination Group’s Guidance on medical device cybersecurity. Second, the chapter illustrates other relevant pieces of the EU legislation that become applicable in the context of medical devices’ cybersecurity, namely the NIS Directive, the Cybersecurity Act, the GDPR, the Radio Equipment Directive. Third, the chapter offers critical remarks concerning the possible regulatory challenges stemming from their interaction with the MDR. Here, the analysis finds that regulatory challenges persist due to regulatory specialization, possibly leading to regulatory overlapping, fragmentation risks, regulatory uncertainty and duplication. In its final section, the chapter provides recommendations for EU lawmakers dealing with the cybersecurity of medical devices in the EU.

Prikaz knjige: C. J. W. Baaij, “Legal Integration and Language Diversity. Rethinking Translation in EU Lawmaking”, Oxford University Press, 2018.

Book review: C. J. W. Baaij, “Legal Integration and Language Diversity. Rethinking Translation in EU Lawmaking”, Oxford University Press, 2018.

In the Shadow of Public Opinion: The European Parliament, Civil Society Organizations, and the Politicization of Trilogues

This article examines the relations between the European Parliament (EP) and civil society organizations (CSOs) in the EU’s legislative process. It focuses specifically on legislative trilogues, an informal institution bringing together the representatives of the EP, Council, and Commission in a secluded setting to conclude legislative agreements. Trilogues have become the modus operandi and an absolutely pivotal part of the EU law-making process: they are where the deals are made. While secluded decision-making offers plenty of opportunities for EU institutions to depoliticize law-making, we argue that trilogues have become politicized, partly from the relationship between the EP and CSOs. We flesh out this argument on the basis of insights from the politicization and the historical institutionalist literatures, advance two ideal types of trilogue politics, and explore these types on the basis of a preliminary examination of a comprehensive interview material.

The Right to Communications Confidentiality in Europe: Protecting Privacy, Freedom of Expression, and Trust

Abstract In the European Union, the General Data Protection Regulation (GDPR) provides comprehensive rules for the processing of personal data. In addition, the EU lawmaker intends to adopt specific rules to protect confidentiality of communications, in a separate ePrivacy Regulation. Some have argued that there is no need for such additional rules for communications confidentiality. This Article discusses the protection of the right to confidentiality of communications in Europe. We look at the right’s origins to assess the rationale for protecting it. We also analyze how the right is currently protected under the European Convention on Human Rights and under EU law. We show that at its core the right to communications confidentiality protects three individual and collective values: privacy, freedom of expression, and trust in communication services. The right aims to ensure that individuals and organizations can safely entrust communication to service providers. Initially, the right protected only postal letters, but it has gradually developed into a strong safeguard for the protection of confidentiality of communications, regardless of the technology used. Hence, the right does not merely serve individual privacy interests, but also other more collective interests that are crucial for the functioning of our information society. We conclude that separate EU rules to protect communications confidentiality, next to the GDPR, are justified and necessary.

Special Issue on the Legal Remedies and Implications from the Fosen-Linjen Case ∙ Damages in EU Public Procurement Law:

In the past the Court of Justice has sent contradictory signals on whether (a) the liability for breach of public procurement and concession rules is just one instance of the general doctrine of Member States liability for breach of EU law or, on the contrary, (b) it is regulated by special rules derived from the interpretation of Directive 89/665/EEC. The Fosen-Linjen saga shows that choosing one alternative over the other will generate very different outcomes in terms of liability. It is argued that relying on a fuzzy condition such as manifest and serious breach might end up leaving too much margin of choice to the national courts to the detriment of effective judicial protection and it is suggested that the matter is further addressed by the Court of Justice and possibly by the EU law-makers. Keywords: Remedies; Liability; Manifest and serious breach.

METHODOLOGY OF REGIONAL INTEGRATION

Traditional method of international law is consensual one. Regional integration needs special methodology. The article reveals peculiarities of different methods of regional integration (intergovernmental, Community method, method of open coordination). The examples of application of integration methods in practice of different regional organizations are given. The EU law-making process is characterized with regards to choice of the method of legal regulation. The integration process demands wider application of community methods of legal regulation. However, some mechanisms for balancing the interests of diverse actors of integration are necessary, including through interaction and codependence of the latter in supranational methodology of regional integration.

The CJEU’s Opinion 2/15 and the Future of EU Investment Policy and Law-Making

On 16 May 2017, the Court of Justice of the European Union (CJEU) issued its Opinion 2/15 on the requisite competence of the European Union to conclude the EU-Singapore Free Trade Agreement (EUSFTA) without additional ratification by the Member States’ parliaments. The decision produced implications that extend beyond the specific EU-Singapore relation by defining generally how far the exclusive EU competence of the Common Commercial Policy (CCP) under Article 207(1) TFEU stretches post-Lisbon. By ruling that all EUSFTA subjectmatters except non-direct forms of investments and investor-state dispute settlement (ISDS) fall within the scope of the CCP, the Court adopted a broad view that grants much leeway to EU institutions in exercising treaty-making powers exclusively.While this was clearly meant to simplify the internal division of competences and strengthen the EU’s role as a credible, reliable and unitary actor in external economic relations, the Case Review will highlight two negative side effects for the future of EU investment policy and law-making. It will argue that the Opinion negatively impacts the EU’s ability to use its unitary political weight to continue shaping the reformation of international investment law and incentivizes a discontinuation of concluding contemporary trade and investment issues jointly together in one comprehensive economic agreement.

MiFIR, EMIR e strumenti derivati: un esempio di Diritto Privato Regolatorio Europeo

L'articolo affronta il fenomeno dei contratti derivati nel contesto del Diritto Privato Regolatorio Europeo (Dpre). Dopo aver definito cosa si intende per DPRE, viene esaminata la definizione di strumento finanziario derivato nel diritto europeo, per poi passare all'analisi della legislazione europea post-crisi. Prendendo in considerazione i testi normativi europei che affrontano direttamente la materia dei contratti derivati, l'articolo vuole dimostrare come l'interesse del Legislatore europeo sia volto soprattutto all'adozione di standard uniformanti e al favorire l'accesso ai mercati (aspetto regolatorio del diritto privato), piuttosto che ad una disciplina armonizzata del contratto - incluso quello derivato - a livello continentale (diritto privato in senso stretto). Nonostante l'estrema tecnicità economico-finanziaria dell'argomento ne renda difficile un inquadramento in termini giuridici, il rapporto tra gli strumenti finanziari derivati e il diritto europeo pare essere un chiaro esempio di Diritto Privato Regolatorio Europeo.

The Right to Communications Confidentiality in Europe: Protecting Trust, Privacy, and Freedom of Expression

In the European Union, the General Data Protection Regulation (GDPR) provides comprehensive rules for the processing of personal data. In addition, the EU lawmaker intends to adopt specific rules to protect confidentiality of communications, in a separate ePrivacy Regulation. Some have argued that there is no need for such additional rules for communications confidentiality. This paper discusses the protection of the right to confidentiality of communications in Europe. We look at the right’s origins as a fundamental right to assess the rationale for protecting the right. We also analyse how the right is currently protected under the European Convention on Human Rights and under EU law. We show that the right to communications confidentiality protects three values: trust in communication services, privacy, and freedom of expression. The right aims to ensure that individuals and businesses can safely entrust communication to service providers. Initially, the right protected only postal letters, but it has gradually developed into a strong safeguard for the protection of confidentiality of communications, regardless of the technology used. Hence, the right does not merely serve individual privacy interests, but also other interests that are crucial for the functioning of our information society. We conclude that separate EU rules to protect communications confidentiality, next to the GDPR, are justified and necessary to protect trust, privacy and freedom and expression.

Is parliamentary attention to the EU strongest when it is needed the most? National parliaments and the selective debate of EU policies

When do parliaments debate European Union policies? Normative arguments suggest that debates enhance government accountability. Others warn of government bias, declining debate near elections, and parties avoiding Eurosceptic publics. Our conclusions are more differentiated. We argue that rank-and-file parliamentarians rather than leaders initiate debates. Political incentives guide their debate selection towards salient policies in the countries in which voters care most. However, where the motivation Eurosceptic publics provide and institutions facilitating rank-and-file agenda-setting are lacking, EU law-making and European Council priorities will raise little parliamentary attention. Analysis of original data, using a Bayesian and multilevel framework, lends credibility to our views. Claims of a government bias, election effects, or trends towards more debate are unlikely to hold in all countries.

National Parliaments in Subsidiarity Review: From Guardians to Partners

Abstract With a clear emphasis on substantive political value that national legislatures are able to bring to the EU legislative process, this paper attempts to overcome skepticism about deepening national parliaments’ direct involvement in the decision-making process at the European level. The role of national parliaments in advancing their subsidiarity concerns within European law-making may be strengthened through a more intensive political dialogue with the Commission, when the former acts not just as the ‘guardians’ of the subsidiarity principle (in the framework of the existing yellow and orange card schemes) but also as active contributors to the law-making process encouraging the Commission to leverage the so-called green card procedure. Complemented by the yellow and orange card provisions, it forms a three-element subsidiarity review mechanism perfectly capable of dealing with subsidiarity concerns of national parliaments at various stages of the EU law-making process, thus transforming the chambers from wardens into partners working together with the Commission to reshape EU legislative proposals for the sake of better regulation.

On the Way to an Anthroparchic Community of Law. The European Union as the Subject of Global Law

According to I. Pernice, the European Union has to be distinguished from an international organization for four reasons at least.First, there is no international organization where citizens have their own political representation and participate in the decision-making process. Second, direct legal action against individuals by directly applicable legislation does not happen. Third, the question of protection of fundamental rights against such ‘international’ power is not an issue. Last but not least, ‘no international organization provides for legal remedies of individuals against measures of that organization since there is no action having direct effect to the individual’. Therefore the author believes that the EU is an organization of citizens albeit having an appearance of an organization between states.Nevertheless one needs to remember that the European Union was founded as an intergovernmental organization by the European states on the principles of international law. That is why it has to be treated as a legal entity comprising the category of international organizations.Inasmuch as the role of individuals in the EU law-making process has been strengthened, their position was rather poor at the beginning of the European integration process. A direct right for individuals to submit a proposal for a legal act to the Commission is a great novelty not seen until now. Strengthening methods of democratic law-making by involving the European Parliament as well as national assemblies in the ordinary legislative procedure is again a fresh start. It is much the same with the system of judicial remedies differentiating the EU legal order from the horizontality of classical public international law.International law as a source of legitimacy for the European Union has always been and is still valid. Nonetheless the history of EU integration demonstrates the continuous evolution of that legal system. Therefore it is increasingly more difficult for lawyers to describe precisely what type of international organization and juridical entity this phenomenon is. It is all the more intricate while seeking a definition in the world of classical international law.An unravelling comes with Rafael Domingo’s theory as the European Union fulfils Domingo’s conditions to become an anthroparchic community of law. It happens through its legal order and participation of non-state actors in the law-making process. In such a case one can believe this juridical entity is also a subject in global law.European integration in the perspective of international law has been being widely analysed so one can easily find some critical papers in this field. This subject has also been examined by political scientists. ‘A sui generis political entity’ as a term defining the European Union is well established in the theory of international relations. Les hommes politiques go even further in their descriptions naming the European Union an unidentified political object (UPO) or the first non-imperial empire. Regrettably these terms cause more confusion than explanation.Despite the fact how descriptions assigned to the European Union are creative and diverse, agreement on what is the actual shape that the EU is taking is by no means easy. The size and functioning of the EU has been shaped and reshaped over the course of history. However the goal of an emerging ‘ever closer union’ is still in search of the paths of real and not ideal accomplishment. In fact, most institutional innovations bear some relation to past experience and borrow from it.

The European Parliament and economic governance: explaining a case of limited influence

ABSTRACTThis article studies the influence of the European Parliament (EP) in the reform of the EU’s economic governance. Descriptively, it aims to provide a systematic map of the negotiations of the Six- and the Two-Pack legislation, focusing on the key controversies between the co-legislators, and comparing the position of the EP with the Commission’s legislative proposals, the Council position and the final legislative output. The surprisingly limited influence of the EP – given its formal powers and the assessment made by most scholars – is then assessed through rational choice and sociological institutionalist perspectives. While the more favourable BATNA (best alternative to a negotiated agreement) of the Council could explain the outcome of the Two-Pack, and a norm of responsibility triggered by the crisis could account for the limited impact of the EP on the Six-Pack, the authors advance a different explanation. They suggest that in policy areas close to ‘core state powers’, such as budgetary surveillance, the member states still have a primary role to play. Despite the extension of codecision, the EP is expected to act within the boundaries that member states define. The authors’ policy-based explanation adds a new perspective on the study of the EP’s influence on EU law-making.

Human Rights in Public Procurement

The increased focus on sustainability in public procurement is reflected in the revised EU public procurement directives from 2014. However, even though the EU lawmakers have underlined the importance of enabling smart, inclusive and sustainable growth, and aspired to provide a tool box for contract authorities who would like to do so, the lack of clear guidance may lead to the scope of action not being used. It may even impede contracting authorities from taking human rights issues and sustainable development into account when procuring goods, services and works. This article analyses some of the developments and innovations in the public procurement Directive 2014/24/EU, hereunder technical specifications, life-cycle costing and exclusion, with the aim of commenting on obstacles and opportunities with regards to promoting human rights through the public procurement process. Keywords: Public procurement; Human rights; Life-cycle cost; Technical specifications; Fair trade

In search of transparency for EU law-making: Trilogues on the cusp of dawn

Who controls the information that is part of the EU legislative processes and is the process as a whole under control? This article explores the legal framework and the applicability of that framework to evolving informal practices by the three key institutions (EP, Council, Commission) involved in the EU legislative process. Given the legislative deadlock on an updated transparency regulation, there are challenges relating to the opacity of Council and Member State positions, legal advice and the so-called four-column documents, which are used to map out progress in interinstitutional negotiations. Currently, the institutions themselves keep control and adopt the relevant rules as a matter of internal (or interinstitutional) working arrangements. We argue that when the institutions exercise legislative functions they are in fact exercising highly political functions that define the fundamental policy choices of the Union’s action. This requires not only passive transparency in the form of access to documents but also proactive transparency by the institutions themselves.

European Regulatory Private Law Going Global? The Case of Product Governance

The article claims that contract law principles are being used by transnational financial regulation to set a world-wide (proto)normative framework regulating intra-firm processes. This practice comes close to the European Regulatory Private Law (ERPL) phenomenon already employed by the EU lawmaker in quite technical fields, such as banking and financial services law. After an overview explaining what it is meant by ERPL, the article discusses the new Product Governance rules under the Market in Financial Instrument Directive II, which may be viewed as the most recent example of ERPL. The article then provides a description of the normative production of the International Organization of Securities Commissions (IOSCO), also regarding product governance rules. The result of the author’s analysis seems to suggest that IOSCO has paved the way for a European approach to product governance which, overall, is coherent with the ERPL theory.

An academic perspective on the copyright reform

The recently proposed new Copyright Directive was released on 14 September 2016. It has been described by EU law-makers as the pillar of the copyright package promised by the European Commission (EC), to be delivered before the end of Mr. Juncker's mandate. In its Communication of 6 May 2015, the EC had stressed “the importance to enhance cross-border access to copyright-protected content services, facilitate new uses in the fields of research and education, and clarify the role of online services in the distribution of works and other subject-matter.” The proposed Copyright Directive is thus a key measure aiming to address two of these three issues. However it is not without shortfalls.We have therefore decided to publicly express our concerns and send an open letter to the European Commission, the European Parliament and the Council to urge them to re-assess the new provisions dealing with mandatory filtering of user-generated content in the light of the CJEU case law and the Charter of Fundamental Rights of the European Union.In a more extended statement, we examine in details the text of both the explanatory memorandum and the Directive itself.Our conclusions are:1. A comprehensive re-assessment of Article 13 and Recital 39 in the light of the Charter of Fundamental Rights of the European Union and the E-commerce Directive (in particular Article 15) including CJEU case law is needed, as the proposed Copyright Directive does not expressly address the issue of its compatibility with both of these texts.2. Recital 38 does not clarify the domain and effect of Article 13. Rather, it creates confusion as it goes against settled CJEU case law (relating to Articles 14 and 15 of the E-commerce Directive and Article 3 of the Infosoc Directive). Recital 38 should therefore be deleted or substantially re-drafted/re-phrased. If the EU wants to introduce a change in this regard it should clearly justify its choice. In any case, a recital in the preamble to a directive is not an appropriate tool to achieve this effect.We hope that this exercise will prove useful for the debate that has now begun both in the European Parliament and in the Council.

The European Citizens’ Initiative and the EU institutional balance: On realism and the possibilities of affecting EU lawmaking

The European Citizens’ Initiative (ECI) has been promoted as a way to strengthen citizens’ participation in EU lawmaking. Taking stock of the ECI’s first few years of operation, this article aims to identify the influence of the ECI on EU lawmaking and its position in the EU institutional triangle (Commission – European Parliament – Council). In particular, the article examines whether the ECI has shifted the EU institutional status quo vis-à-vis the Commission’s power of legislative initiative. It focuses on the first few ECIs that have managed to collect the necessary number of signatures to be formally considered by the Commission, and evaluates the Commission’s discretion to respond to these ECIs. It argues that there is currently a mismatch between, on one hand, the expectations of EU citizens from the ECI and, on the other hand, the ECI’s capacity to lead to legislative output. The article addresses the challenges that arise from this mismatch.