The Hungarian government is building a fence on the border with Serbia to keep out the ever-increasing flow of refugees to Europe. But just look at a map. Serbia represents a tiny slice of Hungary’s meandering southern border. If desperate asylum-seekers have traveled thousands of miles to get to Europe, a fence that runs for a little more than 100 miles won’t stop them. Why is Hungary building a small fence on a long border?
The fence will divert migrants toward Croatia or Romania on their way to final destinations in the wealthier parts of Europe. And that is precisely the point. [continue reading here]
Which level is better placed to
provide efficient data protection – the federal or the state level? This
question is topical both in the United States and in the European Union. In the
US, there are concerns regarding the increased fragmentation of American data privacy
law and the lack of relevant federal consolidation. In the EU, the proposed
General Data Protection Regulation (GDPR) supposed to replace the Directive of
1995 was met with opposition regarding
the “over-centralization of powers” in the European institutions.
Where do we stand with data protection in the EU and in the
US now? We are five years in after the EU Commission first announced its
initiative to work toward updating the framework European data protection law,
and over 207 amendments to the Commission’s proposal later (introduced only in the
version of the European Parliament; if we add the ones tabled by the
different Presidencies of the Council, the count would reach several
thousands). In an unprecedented move, at the end of July the European
Data Protection Supervisor issued his own amended version of the
Regulation ahead of the upcoming institutional trialogue…
In the meantime, the US has been drifting further away from
a comprehensive statutory scheme after a federal proposal for a Consumer
Bill of Rights failed to muster agreement twice, first in 2012 and
then in 2015. Current attempts to regulatestudent
privacy and to consolidate state data
breach notification laws on the federal level remain uncertain.
In short, the GDPR and US federal initiatives are seemingly
not winning hearts and minds. But they should have at least provoked your
curiosity by now. Here is how federal or EU regulation has the potential of
bringing a level of legal certainty beneficial to individuals and businesses
The Evils of Centralizing Data Protection: Myth or
Myth 1: The procedure for enacting US federal or European
law is slow and burdensome. Hence, the main fear of centralizing data
protection law is that it would bring regulatory ossification that stymies
Myth 2: Industry lobbies mobilize better on the federal or
the EU level. They push Congress or the EU institutions toward the
establishment of weak centralized legislation vis-à-vis private sector
regulation. The phenomenon, dubbed “defensive preemption”,
has been described regarding policy developments in the US environmental field
back in the 1980s. Strong lobbies tried to preempt environmental-friendly US
state laws by institutionalizing a low bar of federal protection.
The conventional wisdom is not entirely wrong. But it is
simplified and too often incomplete. Precisely because of the checks and
balances that slow down US federal or EU lawmaking, state regulation is a
necessary backstop for data protection law. The state legislatures can react
promptly to what are perceived by their constituents as digital threats. Some
of the state laws will provide imperfect protection and will possibly be too inflexible.
Federal or EU law oversight can evaluate and fix such regulatory failures.
In turn, centralized oversight does not need to translate
into weakening of the privacy protections. Federal or EU law can introduce
mechanisms that allow the law to respond to ongoing challenges. For example,
the GDPR establishes a one-stop-shop mechanism that aims to avoid forum
shopping. According to the one-stop shop principle, only one national Data
Protection Authority (DPA) is responsible for taking legally binding decisions
against a company (the responsible DPA is determined by the company’s main
establishment in the EU). However, some were concerned that businesses would
locate their main establishment in countries with a less onerous enforcement
approach. Despite question marks about the practical
implementation of this principle, the GDPR introduces a requirement for
co-operation between the national DPAs that significantly minimizes the risk of
a “race to the bottom”.
One way to avoid ossification is therefore by relying on
state standards and institutions to act as catalysts. An often-quoted example
is the first Californian law on breach notifications, now adopted under one
form or another in 47 of the US states. A similar case is the French idea of a “droit
à l’oubli” that now forms part of the case
law of the European Court of Justice and is a feature of the GDPR. If
the federal government or the EU legislator refrain from preempting state law
for a period of time, at least some of the higher standards of consumer or
fundamental rights protection introduced in at least some of the states are
likely to be voluntarily taken up by other states but also by the industry.
Privacy federalism can offer protections in the long run.
This article analyzes the differing perspectives that animate US and EU conceptions of privacy in the context of data protection. It begins by briefly reviewing the two continental approaches to data protection and then explains how the two approaches arise in a context of disparate cultural traditions with respect to the role of law in society. In light of those disparities, Underpinning contemporary data protection regulation is the normative value that both US and EU societies place on personal privacy. Both cultures attribute modern privacy to the famous Warren-Brandeis article in 1890, outlining a "right to be let alone." But decades passed before the impact of the article was felt. Both privacy and data protection are today part of the fundamental rights system of Europe, a component of the amalgamated constitution of the European Union. Both are part of the legislative and regulatory state at the national and federal level.
In an era in which the dominant narrative is that of an increasingly interconnected
world, Europe seems to be in the grip of a strong counter-narrative, with a call for nations and nationalism growing steadily over the last twenty-five
years. After the fall of the Berlin Wall, Europe’s borders were redrawn along increasingly
ethnic lines, with the collapse of the last multinational States within the
core of Europe (Czech and Slovak Republics), at its borders (Yugoslavia) or beyond
(USSR). A massive amount of literature in historical, political and sociological
science has focused on this phenomenon in recent years, but it has been
relatively neglected in legal scholarship. In European Union (EU) scholarship in
particular, many authors have preferred to focus on the challenges of a
post-national order, including the implications of the Member States’ surrender
of sovereignty and the gradual erosion of distinctively national claims. Elke
Cloots’ book on “National Identity in EU law” aims to fill this gap in the EU
New network member Piet Eeckhout (UCL), who will be a Senior Emile Noël Fellow at the Jean Monnet Center at NYU in the fall, has asked us to announce his new blog on EU matters: London-Brussels One Way or Return. His most recent post is entitled The Greek Crisis and the Dysfunctional European Political Space, which is cross-posted below. In the post, Piet argues that in the debates surrounding the Greek crisis we may be witnessing the creation of a truly European political space, and that this development underscores the importance -- and the controversial nature -- of EU institutional reform. The blog is available here.
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It has been sad to see the Greek crisis gathering pace, culminating in a Eurozone summit which, on condition of deep and intrusive reforms, allows Greece to remain in the Eurozone, and offers the perspective of another bailout. But no one is under any illusions that the crisis is resolved. It is clear that European integration has reached a very low point, judging by the acrimonious debates at all levels: official, media, and social media.
This post does not comment on substance but on process. If there is a silver lining to the crisis it is, in my view, the birth of a European political space. The long-living mantra that the EU suffers from a democratic deficit is well known. It is coupled with a profound scepsis about the potential for ever narrowing, let alone removing, that deficit: there is no European demos, only demoi. Democracy continues to be embedded in the nation-State, a conception most extensively articulated by the Bundesverfassungsgericht (German Constitutional Court) in its Maastricht and Lisbon judgments. To put it in less elevated terms: all politics are local. The EU’s main top-down attempt at instituting democracy at the EU level is tentative and has not worked well: the directly elected European Parliament is not a full sovereign parliament and its elections do not manage to transcend the local nature of State politics. The democracy sceptics consider that all this is evidence that there can be no real EU-wide political space. Notwithstanding decades of – one would almost forget – largely successful European integration, we all continue to live in countries which are too diverse to enable us all to engage in genuine European political debate. There is no European political space.
Or is there? For anyone who has followed the Greek crisis (and has not nearly everyone, to some degree?) it is difficult to deny that we have seen and are seeing a genuine European debate. It is a moral debate, about who is right and who is wrong; it is an economic debate, about the merits and flaws of the euro-project and of austerity policies; it is a social debate, about protection of people and solidarity; and it is a hard-core politics debate, on left and right, and on power structures. That is not to say that there is no national dimension to the debate. Views are clearly very different between creditor States and bail-out States, or, to simplify, between North and South. Indeed, the debate is way too nationalist in many ways. But a European debate it nonetheless is.
The conventional wisdom, delivered before anyone could really ponder the fine print of the Greek debt deal, is that Tsipras surrendered to the creditors in a humiliating defeat. His referendum and prior tenacity in negotiations proved futile,according to the predominant account that has emerged in the media and the twitter and blog worlds.
Wrong on all counts. And here's why.
It is well-understood that Greece's debt is un-repayable under any plausible economic scenario. But this is the reality that many European politicians cannot admit candidly in public, above all, Germany's politicians. With the imminent expiry of the last bailout program, Greece was faced with the predicament that, on the one hand, without more assistance, its banking system would collapse, yet a further bailout would do nothing meaningful to address the sustainability of its debt burden. At the same time, to distract their voters/taxpayers from the reality of the un-repayability of the debt the politicians, again above all Germany's, had to punish Greece, blaming its bad behavior for the crisis and imposing ever more onerous if irrational conditions. For the German political leaders, the calculation was that the people's satisfaction from seeing Greece punished and humiliated would be an effective Ersatz for the satisfaction of being repaid. (I will make no comment as to whether the politicians here rightly gauged the national character). Varoufakis and his colleagues were correct to see that at some point for the Germans, this exercise would only remain politically effective if Greece were given the ultimate punishment-removal from Europe. For Schaueble, the German Finance Minister, nothing was more appealing than the cleansing or purifying Europe of Greeks. The Greek Government knew that, once there was no longer a European community of fate fully including Greece,a profound geopolitical reorientation would be needed for Greece's economic and social survival.
Given Germany's leadership position in Europe, and effective veto on any positive solution, the Tsipras Government was faced with an almost impossible situation as the second bailout drew to a close. The only at all hopeful strategy was to try to change the longer term political dynamics so that debt unsustainability could finally be faced and directly addressed, and German influence somehow marginalized-but how to do so without courting short-term disaster?
Network member Anne Meuwese (Tilburg) has asked us to pass on an announcement regarding two academic vacancies at Tilburg Law School. The announcement is below, and further details can be obtained from Anne or here.
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The Department of Public Law, Jurisprudence and Legal History at Tilburg Law School has vacancies for two assistant professors, one in the field of History of International Law and another in the fields of General Jurisprudence/Constitutional Law.
Further information can be obtained here. The application deadline is September 13, 2015, and the first round of interviews will be held in late September. Envisaged starting date January 1, 2016, but negotiable.
In this post, new network member Pietro Faraguna (NYU & Trieste) offers a perspective on the interplay between the concepts of limits and limitlessness in the recent OMT decision.
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The Outright Monetary Transactions (OMT) program of the European Central Bank (ECB) is compatible with EU law. Also sprach the Court of Justice (ECJ).
outcome of the ECJ decision in the Gauweiler case comes as no surprise. It is
probably the most cautious option that the ECJ could have chosen: the ECB’s
authority is safe at the European level and at the same time the Federal
Constitutional Court of Germany (BVerfG) has been offered many reasons to be
able to sell the ECJ’s decision as a half—if not full—German victory. Concisely,
the decision is a masterpiece of judicial diplomacy!
let’s take a step back in the OMT saga. The OMT program had been announced by
the Governing Council of the ECB in the framework of the financially hot summer
in 2012, when the permanence of the euro had been questioned by the markets. The
ECB’s response to that financial turmoil had been its well-known “whatever it
takes” doctrine. “Within our mandate, the ECB is ready to do whatever it takes
to preserve the euro. And believe me, it will be enough” said the ECB’s President, Mario
Draghi, on July 26 2012 (reported here). The announcement of OMT was a piece of this
whatever-mosaic. “Whatever it takes,” even though “within our mandate,” plainly
signaled a no-limits approach from the ECB. And the limitlessness of the ECB
intervention was one of the biggest matters of concern in the “German view”. A
no-limits approach raised the prospect of unpredictable losses and
unpredictable consequences for the Member States’ budgets.
let’s take now one step forward to the decision of the ECJ. What is left of the
limitlessness of Draghi’s doctrine? Not so much.