The Global Dimension of the EU’s AFSJ: On Internal Transparency and External Practice

The ‘global’ forms an increasingly regular, active and explicit part of the daily business of the EU. The paper argues that there is a specific mismatch between the commitment to transparency on a daily level in international and external fields and practices of EU law and the actual substantive law-making practice evolving. While the EU’s vision of the global is to a degree the most transparent ever, the converse is not necessarily the case as to its legal content. The global dimension to EU law has increasingly expansive subjects and objectives, in areas of existing strength in global actorness (e.g. trade) and in more evolving competences (e.g. security). It argues that while the EU is a significant soft power in trade, it is arguably less so in the Area of Freedom, Security and Justice (AFSJ) where its global reach becomes more challenging. The relative weakness of the EU’s global approach in the AFSJ is usually or acutely felt by individuals who face challenges in seeking redress increasingly as to aspects of transparency. The paper argues that there is a significant mismatch of internal transparency practices concerning the EU’s global law-making. Ultimately, mismatches between internal procedures and external law-making as to transparency operate adversely upon the global in a variety of ways, e.g. as to transparency and clarity, good administration and territoriality claims taken by individuals. It outlines the express approach to the global in EU policy in (i) migration (ii) passenger name records and the non-express approach to the ‘global’ in EU data protection and data transfers

Hyper-legalisation and delegalisation in the AFSJ: on contradictions in the external management of EU migration

The EU governance of migration has distinct internal and external facets, which may be viewed as innately contradictory. On the one hand, for example, there is legal competence for enhanced measures to combat illegal immigration but on the other hand, it is to manage efficiently migration flows, yet with fairness towards third country nationals. These contradictions define the EU’s Area of Freedom Security and Justice more generally, as a complex and evolving site of tremendous injustice and crisis. In times of crisis, there is an increasing number of soft law tools in EU external migration, used to enable flexibility, deploying management lexicon, principles and tools as a means to avoid or minimalize the need for ‘hard’ binding law (e.g. frameworks, compacts, action plans), in a process of ‘hyper-legalisation’ of external migration. Often, it results from the multiplicity of constitutional competences applying in external migration. It mirrors well other crisis-ridden subjects of EU law, in particular as to the financial crisis. On the other hand, there is also a trend in significant recent caselaw towards the ‘de-legalisation’ of migration policy, putting key legal and policy questions in forms beyond review and outside of the treaties, as in the financial crisis as well as other leading cases. They explicitly detail the nature of the contradictions at the heart of the external dimension to the AFSJ in the area of migration and the problematic nature of EU law-making. They also provide reason for concern about basic conceptualisations of the rule of law therein. The key decisions arbitrarily decide the scope of ‘non-legislative’, ‘non-application’ and ‘European’ as to EU law. They emphasise the contradictions at the heart of the AFSJ, increasingly excluded through judicial review

Transparency in transatlantic trade and data law

Transparency continues to occupy a patchy and uneven place in EU and US relations in key economic and regulatory areas. This patchiness plays out in a variety of ways including in downgrading by the US of the EU in diplomatic and regional standing albeit non-expressly in recent times. The chapter explores the shifts in practices on transparency in EU-US cooperation from a legal perspective. It focuses on EU-US trade negotiations and data transfer cooperation. Transparency provides a useful point of departure as it is a common value and instrument for the US and EU, yet one that seems to be utilised very differently. Transatlantic relations increasingly show a tension between the government to government model of transparency. In the EU-US data protection regime of the Privacy Shield a complex constellation of subjects is emerging and its genuine enforcement appears open to significant doubt. In trade, the European Parliament increasingly attempts to participate and involve citizens’ rights in new EU-US negotiations and raise civil liberties, citizens’ mobility rights and public interest themes. In light of these developments, this chapter considers how EU and US are becoming divergent in how they handle both communication with each other and toward citizens. The EU is increasingly becoming an organised transparent actor toward the US and trying to increase transparency toward citizens through different instruments, whereas at the moment we see in the US a disruptive environment of information flows and an administration that disrupts the traditional lines of allies and non-allies in how it behaves

How to be a third pillar guardian of fundamental rights? The Irish Supreme Court and the European arrest warrant

The author outlines recent developments as to the operation of the European arrest warrant before the Irish Supreme Court. The European Arrest Warrant Act, 2003 includes a far-reaching obligation to refuse surrender where a breach of fundamental rights has occurred, one that has been read down dramatically by the Irish courts. While the Irish courts cannot access the Court of Justice pursuant to Article 35 EU, they have employed the Pupino decision so as to “bridge the gap” and provide judicial protection. The ffectiveness of the Supreme Court as a Third Pillar guardian of fundamental rights is thus considered

CETA and Global Governance Law: What Kind of Model Agreement Is It Really in Law?

The EU-Canada Economic and Trade Agreement (CETA) provides for the free movement of goods, persons and capital to various degrees and its depth and breadth remain to be seen, as a high profile next generation WTO plus Agreement. CETA may well become a model for future mega regionals, for reasons of its new model and scope. It is quite significant that CETA and the Transatlantic Trade and Investment Partnership (TTIP) are treated as related agreements. TTIP and TPP signified a shift towards the regulatory structures of the so-called mega regionals. The evolution of CETA as a survivor of a new form of second generation free trade agreement achieves all the more prominence for its efforts. As a result, while modest enough in relative terms in contrast with TTIP or CETA it is still an important effort to integrate developed legal orders and construct new configurations of global governance. This account thus considers the nature and substance of CETA. Section I the background to the CETA negotiations, ratification challenges, the aims and benefits of the text, followed by in Section II, detailed consideration of its legal provisions and Conclusions

Swimming in a sea of law: Reflections on water borders, Irish (-British)-Euro Relations and opting-out and opting-in after the Treaty of Lisbon

A fragile outsider stance of “opt-out opt-in” post-Lisbon now characterizes the Irish relationship with the entire Area of Freedom, Security and Justice, in the form of Protocols and Declarations as contained in the Treaty of Lisbon. The Irish Government commissioned extensive research as to the negative referendum vote on the Treaty of Lisbon in 2008. Importantly, the relationship between public opinion and Irish participation in Justice and Home Affairs, the Area of Freedom, Security and Justice and its opt-out from the Schengen Area did not provoke a negative referendum result according to the research. Water borders and the Common Travel Area shared between Ireland and the UK have had a far-reaching influence on Irish-European affairs. An attempt is made here to trace the influence of British-European relations on the Irish State from the Treaty of Amsterdam to the Treaty of Lisbon and the close ties between the States taking effect in law, policy and even litigation are considered accordingly. The background thereto, in tandem with Irish-specific Protocols and Declarations in the Treaty of Lisbon and the general context of “Irish(-British) Euro relations” and EU law, forms the subject of analysis here

The EU’s Participation in the Global Legal Order as a Postnational Democracy: Manifestations of Sovereignty

Sovereignty is arguably neither popular nor conventional nor does it transpose itself into discourses of rule-making beyond the Nation State. For some, to speak of sovereignty in the context of global governance leads to bewildering identification of a ‘global sovereign’. The multi-directional nature of the global reach and effects of EU law has been shown in this account to comprise boundaries and competences extensions to various degrees. It is argued to constitute manifestations of sovereignty, with spatial, action and transboundary dimensions to it that require ‘unpacking’. This paper argues that postnational rule-making practices conducted by the EU may usefully be captured by sovereignty, as an over-arching framework beyond an analysis for power, influence and interactions between legal orders. Much scholarship on sovereignty and the EU has been developed prior to more recent invocations in the EU treaties to evolve as a postnational democracy. Participation by the EU in the global legal order is a multi-faceted construct but is argued here to be rooted in an understanding of the EU as an actor, i.e. what it is and what it does. Legal scholarship appears to place a high premium on the ability of the EU to participate externally as an actor, seamlessly, coherently and with consistency. Accordingly, as has been argued here, the enabling character of sovereignty at the postnational level appears insufficiently studied. The physical and metaphysical space of EU rules is argued here to require more nuancing, method and study as to its components. There are as many methodological as substantive challenges to such a thesis, which this text has sought to address as part of a research agenda. Legal texts providing for active participation in the global legal order can be most imperfect even in integrated spheres of action. What is more pressing to consider is the merger of sovereignty, territoriality and jurisdiction in a global world as an emerging matter for EU law