Academic journal article Law and Contemporary Problems

Constitutional Aspects of Regulatory Coherence in TTIP: An EU Perspective

Academic journal article Law and Contemporary Problems

Constitutional Aspects of Regulatory Coherence in TTIP: An EU Perspective

Article excerpt

I

INTRODUCTION

Regulatory cooperation is far from new, and the transatlantic variety in particular has long been at the forefront of its development. (1) Approaching regulatory cooperation as an effort solely to harmonize or mutually recognize existing rules risks foregoing learning opportunities that cooperation provides through variation across legal systems. (2) With the need to adopt a dynamic approach to trade agreements (3) comes proceduralization of bilateral regulatory cooperation: not the rules themselves, but the procedures for producing them, become the object of cooperation. The compatibility of domestic structures for producing rules and regulation becomes crucial to the success of regulatory cooperation as a pathway to further economic integration. (4) Contemporary regulatory cooperation efforts in trade contexts are increasingly focused on minimizing future regulatory barriers through joint procedures in order to avoid freezing in time the results of regulatory trade agreements. Recent efforts to advance transatlantic regulatory cooperation have taken this procedural approach to the next level, as evidenced by the draft textual proposals for the regulatory coherence chapter of the Transatlantic Trade and Investment Partnership (TTIP) agreement, an envisaged free trade agreement being negotiated between the United States and the European Union (EU). It appears that TTIP will lean on the idea of a permanent bilateral regulatory cooperation mechanism. (5)

TTIP is not the first attempt at mutually streamlining procedures for the creation of regulation as a way to reduce regulatory barriers between the United States and the EU. (6) Negotiation texts published by the European Commission (EC) reveal some novel mechanisms being proposed for inclusion in TTIP, however. Instead of the usual joint-consultation forums, such as the Transatlantic Financial Services Regulatory Dialogue, the idea is to establish a Regulatory Cooperation Body (RCB) composed of senior regulators from both sides that prepares annual regulatory coordination programs. Another proposal concerns the establishment of sectoral working groups that will conceivably study the trade impact of more technical regulation in detail. (7) Rather than being viewed as a barrier to transatlantic regulatory cooperation, (8) as it was in the past, governance is now seen as a gateway to it. This may be due to the view that this "mega-regional" (9) agreement would not be accepted by the European Parliament without deferring decisions on controversial regulatory issues, which is what many provisions in the regulatory coherence chapter will effectively do.

At a time when many feel uncomfortable with the influence that international norms have on their domestic legal systems, (10) the problems regulatory cooperation poses for democratic legitimacy are being widely and openly debated--in academia, in the antiglobalization movement, and within a variety of institutions. (11) These debates on regulatory cooperation center on the fear that regulatory coherence will amount to lower standards in the EU and will give lobbying groups more influence over the content of regulation at the expense of democratic and accountable institutions. However, stakeholders and politicians rarely phrase their concerns in constitutional terms, which means that potential protections or solutions stemming from concrete treaty provisions, principles, and case law may easily be overlooked.

This article aims to address that lacuna. It suggests that regulatory cooperation--certainly horizontal regulatory cooperation, or cooperative endeavors that go beyond approximation of concrete rules and even specific sectors--is not solely an international law issue but also a matter of constitutional law. (12) The main constitutional concerns can be grouped under two headings: (1) regulatory sovereignty, which refers to the right of sovereign entities to regulate as they see fit, and (2) democratic legitimacy, which refers to the idea that regulations should be promulgated by institutions accountable to voters. …

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