Conference Agenda

Panel 906: Designing Regulatory Cooperation in EU FTAs, Playing with Fire ?
Wednesday, 04/Sep/2019:
11:30am - 1:00pm

Session Chair: Frederik G.A.A Ponjaert, Université libre de Bruxelles
Location: Room 12.32


Designing Regulatory Cooperation in EU FTAs, Playing with Fire ?

Chair(s): Frédérik Ponjaert (ULB)

Discussant(s): Frédérik Ponjaert (ULB)

European Free Trade Agreements (FTAs) are nowadays turning into broad governance mechanisms of the EU armory. The inclusion in FTAs of commitments that go beyond pure economic governance create channels of communication between the EU and various legal orders. Provisions on Regulatory Cooperation, as seen in CETA and JEEPA, are one noteworthy way through which EU FTAs now push for rule harmonization on a wide-range of topics. While uncertainty remains about how these commitments will be implemented, many questions are already worth looking at with regards to the legal design of these new types of provisions. In other words, how can we explain the specific way through which the EU is currently promoting regulatory cooperation in its most recent FTAs? This panel composed of EU funded PhD students will precisely examine this question by combining legal and political analysis. Kevin’s presentation will start by explaining the variation in legal designs of Regulatory Cooperation provisions through a sectoral approach. Kornilia’s contribution will then examine the legal value of regulatory cooperation commitments taken by the EU in a hard-soft law interplay. Isabella, inspired by the fundamental question of the place of Fundamental Rights in the EU FTAs, reflects upon the interplay between Regulatory Cooperation chapters and Data Protection rights.Complementing Isabella, Guillaume and Laurence give a macro-overview of EU efforts to export norms on Data Privacy. They then highlight how these EU initiatives ended up affecting other trading parties, like trade behemoths US and China.


Presentations of the Symposium


Regulatory Cooperation Design in PTAs : a Sectoral Approach

Kevin Kalomeni
LUISS Guido Carli and Université Laval

Among the trade policy tools at disposition to the European Union, the use of Regulatory Cooperation (RegCoop) provisions in Preferential Trade Agreements (PTAs) is gaining in importance. Useful instruments to project EU regulatory preferences globally, this type of cooperation remains difficult to investigate. Different from classical market openings, regulatory cooperation does not equate necessarily with liberalization. Looking at the variation of legal design becomes hence a priority to evaluate RegCoop consequences on domestic and transnational regulations. Furthermore, regulatory provisions are subject to significant changes across but also within trade agreements. Parties to the agreement adapt their approaches for each sectors they want to regulate. They can use Hard or Soft obligations or privilege a type of design that will produce rules immediately (ex-ante) or in the near future (ex-post). This paper will attempt to catch this variation and explain how sector’s particularities can affect the type of design adopted in PTAs. To do so, regulatory cooperation will be first conceptualized and categorized into four types across two dimension : obligation and decision. An investigation will then follow on the Comprehensive Economic and Trade Agreement (CETA) signed between the EU and Canada. The purpose would be to identify how the legal design is adapted to deal with sectors particularities. As explanatory factors, this research will posit that market power asymmetries and pre-existing transnational regulations may explain this differentiation of legal design. To illustrate this argument, several sectors in CETA will be looked upon: Automobile, Professional Qualifications and forestry.


What Kind of Legalization for Regulatory Cooperation in the EU FTAs?

Kornilia Pipidi Kalogirou
Deutsche Universität für Verwaltungswissenschaften Speyer

Regulatory Cooperation has been both a blessing and a nightmare for transatlantic negotiators. Ages of countless negotiations through trial and error have tried to find the golden solution to provide a balanced and effective framework for regulatory cooperation. Due to its delicate nature and the public interests hidden in its core, intense regulatory cooperation never took a hard law form. Bilateral efforts mainly found themselves situated within political circles through administrative agreements, while multilateral initiatives brought limited results.

The conflicting edges of hard and soft law seem to have found their balance in the form that Regulatory Cooperation has taken within the New Generation Free Trade Agreements. A amalgam of legal obligations, Chapter 21 finds itself on the one side situated within a legally binding treaty and on the other hand declaring a voluntary character from its very beginning. The question that arises is up to which point can this form of “soft law”, if one could name it so contribute to its implementation? Upon which legal principles could one rely towards this direction? Could this semi-light form of commitments facilitate the approximation of legal orders on sensitive yet overarching issues, balancing the EU’s obsession for autonomy and the need to obey the principle “pacta sund servanda”?

The concept of ‘legalization’ (obligation/precision/delegation) will be used as a framework to answer the questions posed above. Although the conceptual basis is borrowed from International Relations literature, this contribution will pay particular attention to the component of ‘‘obligation’, taking thus a legal approach.


European Trade and Privacy Nexus: From Regional to Global Rule-Making

Guillaume Beaumier1, Laurence Marquis2
1Warwick University & Université Laval, 2LUISS Guido Carli & Université Laval

Over the past 20 years, the growth of the Internet has significantly altered the global economy and analysts point to the significant economic opportunities brought by digital technologies. Taking stock of this reality, recent FTAs now incorporate multiple provisions promoting a free and fair digital economy. The inclusion of e-commerce chapters in all recent European FTAs embodies this trend. Just as the EU aims to create a level playing field for its companies in the digital era, it is also engaged in promoting high privacy rules globally. As part of its Digital Single Market Strategy, the EU has most notably adopted the General Data Protection Regulation (GDPR), now seen as the gold standard for privacy rules. Aware that international data flows could however easily undermine the legal protections it worked so hard to build, the EU has promoted its privacy rules in multiple forums, including trade agreements. Yet, depending on its trading partner, the EU did not always adopt the same form of regulatory cooperation. By comparing the negotiations for CETA, TTIP, JEEPA and TISA, this paper highlights how the EU adapts its regulatory cooperation strategy based on its negotiating partner. It will then show how its approach affected trading partners with recent agreements to which the EU is not part, such as the CUSMA (renegotiated NAFTA) and the CPTPP. This will illustrate how the EU is attempting to take a leadership role in regional and multilateral trade negotiations, to compete with international trade behemoths, the United States and China.

The CIA within RIA: Is the EU Commission Paying Attention to the Impacts on Competition of their own Laws?

Manuel Cabugueira1,2, Miguel Moura e Silva1

1Universidade de Lisboa - Faculdade de Direito; 2Universidade Lusófona - ECEO

The Better Regulation agenda became a central part of the European policy making cycle. This program is pushing for a more transparent, participated and efficient decision-making process, where all EU actions should be based on evidence and supported by a complete understanding of their impacts.

Within framework o a Regulatory Impact Assessment (RIA) technique has been developed has a process of gathering and processing information on different impacts that may result from the public intervention. This information in the made available to the political decider to be taken in to account, either, at a stage were the public measure is still being designed (ex-ante assessment) or in a moment were the public intervention is being reacted (ex post assessment). In booth situation the objective is to establish, what are the impacts on society, the environment and the economy that will camo form the public intervention, and, in what regards this last impact, what are the burdens that will be supported by citizens and firms and what are the distortions that may be created on the market.

The RIA Exercise has become an integral part of the life cycle of a legislative proposal since 2003, and its importance was reaffirmed in 2016 with the creation of the Regulatory Scrutiny Board wish is an independent body of the European Commission that offers advice to the College. It provides a central quality control and support function for Commission impact assessment and evaluation work.

In this paper we will analyse the relevance of the CIA that has been given to the CIA in the overall RIA exercise. Our objective is to share some light on the importance the European Commission attributes to the question on competitions in the moments where he establishes or reviews our laws.