Reviewing High Politics

A Methodology for the Justiciability of EU-US Legal Relations

Dr. Elaine Fahey

Amsterdam Centre for European Law and Governance Working Paper Series 2012 – 01

Working Paper on Postnational Rulemaking 2012-03

Available for download at www.jur.uva.nl/acelg under the section Publications

or at the author’s SSRN page

An earlier version of this paper has been published under the title “Reviewing high politics: global governance and the justiciability of EU-US relations before the Court of Justice of the European Union ” in Pawlak ed. The EU-US security and justice agenda in action (EUISS Chaillot Paper, 2012). March 2012 © Elaine Fahey Address for correspondence Dr. Elaine Fahey University of Amsterdam Amsterdam Centre for European Law and Governance P.O. Box 1030 NL – 1000 BA Amsterdam The Netherlands Email: E.L.Fahey@uva.nl Information may be quoted provided the source is stated accurately and clearly. Reproduction for own/internal use is permitted.

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Abstract

Despite the waning political importance of the European Union (EU) to the US,

transatlantic legal relations are increasing in number in recent times. The Court of

Justice has had limited opportunities to review this ‘high politics’. The case of EU-US

relations potentially raises an extraordinary range of jurisdictional, constitutional

and theoretical questions. The objectives of EU-US legal relations are expressly

dominated by State-security concerns. A noteworthy feature of EU-US laws

governing the data transfer of citizens is the explicit statement of justiciability therein,

a constitutional expression for the application of the rule of law. Yet the concept of

justiciability or a political question doctrine is embryonic in EU Law. The present

analysis explores the concept of justiciability in EU law using three casestudies of

EU-US relations. The application of explicit justiciability principles to EU-US

relations is advocated here as a methodological tool for the judicial review of EU-US

relations.

Introduction

Despite the waning political importance of the European Union (EU) to the

US, transatlantic legal relations are increasing in number in recent times. While more

EU institutional actors and agencies may generate EU-US legal, the Court of Justice

has had limited opportunities to review this ‘high politics’. EU-US relations might

fall most accurately into the subject area of EU External Relations law, which has in

the main dealt with esoteric questions about legal competences and inter-pillar

disputes.1 The case of EU-US relations, however, potentially raises an extraordinary

range of jurisdictional, constitutional and theoretical questions and may thus render

the Court of Justice a provocative actor in the larger phenomenon of ‘Global

Governance law’. The unusual matrix of factual and legal issues in EU-US relations

offers larger conceptual insights into the realm of high politics and judicial action in

the EU. A noteworthy feature of EU-US laws governing the data transfer of citizens

for counter-terrorism purposes (e.g. Terrorist Finance Tracking Program) is the 1 B. De Witte, ‘Too much constitutional law in the European Union‘s Foreign Relations?‘ in B.

De Witte and M. Cremona (eds.), EU Foreign Relations Law: Constitutional Fundamentals (Hart Publishing, Oxford and Portland Oregon 2008) p. 11.

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explicit statement of justiciability therein, a constitutional expression for the

application of the rule of law. Yet the concept of justiciability or in the lexicon of US

Constitutional law, a political question doctrine, is largely embryonic in EU Law, in

contrast to US Law where this doctrine is now in ‘serious decline’ or ‘on the verge of

dying.’2 The political question doctrine nonetheless has been exported all over the

Common Law and Civil Law world and provides a practical and nuanced formula to

consider actions and laws of State actors. The objectives of EU-US legal relations are

expressly dominated by State-security concerns and provide for only limited redress

for Citizens. EU-US legal relations present a dramatic casestudy of the ostensibly

irreconcilable goals of ‘security’ and ‘justiciability’. Courts all over the world have

been confronted with new legal mechanisms, rules and principles designed in the

post-9/11 era and best practice in this new legal context is evolving.3 These counter-

terrorism and security measures introduced have present challenges for justiciability,

because individual redress and judicial review remain ancillary concerns of

lawmakers. National governments have been keen to argue their non-justiciability

before courts- for example as in the case of the US and the Guantanamo Bay

detainees- patterns which are replicated in the EU in the earliest official reviews of

other EU-US data transfer laws.4 The application of explicit justiciability principles to

EU-US relations is advocated here as a useful and appropriate methodological tool

for the judicial review of EU-US relations, given the ostensible polarity between

security and the invocation of individuals rights.5 While the final balance struck

between security policy and individual rights will be for the Court to determine, the

analytical means of arriving at such a balance is explored here in detail.

The present analysis explores the concept of a political question doctrine and

justiciability in EU law using three casestudies of EU-US relations (data transfer law,

2 J. Choper, ‘Introduction‘ in N. Mourtada-Sabbah and B. Cain (eds.), The Political Question Doctrine and the Supreme Court of the United States (Lexington Books 2007) p. 1; R. Barkow, ‘The Rise and Fall of the Political Question Doctrine‘, in N. Mourtada-Sabbah and B. Cain (eds). ibid, 23-46, at p. 23. 3 M. Scheinin, ‘Best Practice in Counter-Terrorism‘, in M. Scheinin (ed). European and United States Counter-terrorism policies, the Rule of Law and human rights, EUI RSCAS Policy Papers (RSCAS PP 2011/03). 4 See Z. Vaughan, ‘The reach of the Writ: Boumediene v Bush and the Political Question doctrine‘, 99 Georgetown Law Journal (2011) p. 869. 5 Cf Attorney General E. Holder, Remarks to the European Parliament‘s Committee on Civil Liberties, Justice and Home Affairs (20 September 2011), claiming no rights violations had resulted from EU-US legal relations to date.

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a new EU institutional actor and a new EU agency). Each casestudy is used as

examples of the type of review that the Court can and should conduct in this area.

The examples range from hard-edged and clear-cut to considerably less likely

instances of EU-US relations giving rise to legal acts that may or may not eventually

be the subject of judicial review in EU law. Firstly, I ask what level of review is

appropriate for the Court to conduct of EU-US relations post-Lisbon, focussing on

data transfer law. Existing caselaw of the Court on EU-US relations in the area of

data transfer demonstrates ‘strong’ judicial review. However, such caselaw is

numerically limited and is rooted in pre-Lisbon pillar disputes about legislative

competence.6 Second, then, I consider institutional changes and the shift in roles

post-Lisbon between the Commission, and the European Parliament, with regard to

EU-US relations. Thirdly, I ask what level of review is appropriate to EU-US

cooperation on financial and banking supervision, considering the powers of a new

EU Agency, the European Banking Authority. I assert overall that justiciability and

related concepts of locus standi (standing), access to justice and fundamental rights

can be appropriately accommodated in EU–US relations, using the political question

doctrine as a mechanism for judicial review to balance the conflicting interests here.

Part I outlines the background to the political question doctrine and its

potential applicability. Part 2 considers the three casestudies to test the application of

justiciability to EU US relations (EU-US data transfer law, Institutional actors in EU-

US relations and the case of the European Banking Authority). Part III summarises

the contention made here for the necessity for the Court of Justice to adopt a review

mechanism tool in EU-US relations.

Part 1: The Political Question Doctrine and Non-justiciability

The political question doctrine has its origins in US Constitutional law and

provides for limitations on judicial review for largely prudential reasons.7 It seems

6 Joined Cases, C-317/04 and C-318/04, European Parliament v Council and Commission, Judgment of the Grand Chamber of 30 May 2006, [2006] ECR I-4721 (Passenger Name Records). 7 See generally L. Henkin, ‘Is There a Political Question Doctrine?‘, 85 Yale Law Journal (1976) p. 597; Mourtada-Sabbah and Cain (eds.), supra fn. 2; F. Scharpf, ‘Judicial Review and the Political Question: A Functional Analysis‘, 75 Yale Law Journal (1966) p. 517; T.M. Franck Political Questions. Judicial Answers. Does The Rule Of Law Apply To Foreign Affairs? (Princeton, 1992). But see recently Boumediene v Bush 553 U.S. 723 (2008), where the Court refused to consider political question doctrine to instances of purported removal of federal court

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apparent that currently there is no such thing as an express or explicit justiciability or

political question doctrine in EU law per se, lacking a comparable constitutional

system or separation of powers. Thus the question remains, should there be one and

why is there no such doctrine? The express exclusion of Common Foreign and

Security Policy from the jurisdiction of the Court of Justice, particularly after the

Treaty of Lisbon, has led some to suggest that a political question doctrine exists in

EU, given this ‘law-free’ zone.8 ‘Law-free’ zones in many other areas were constantly

under ‘lateral attack’ by the Court in its caselaw prior to the Treaty of Lisbon.9 But if

the doctrine is present at all in EU law, the Court has not enunciated its ‘territory’ or

jurisdiction in these terms nor has expounded any formal principles of self-restraint.

This lack of formally explicit ‘self-restraint’ principles is complicated by restrictive

standing rules that ordinary litigants face in EU law to litigate directly before the

Court of Justice.10 In the land of its birth, the US, there seems to be a consensus that

the political question doctrine is in serious decline or perhaps even moribund.

Despite tracing its origins to no less than Marbury v Madison,11 the cornerstone of US

judicial review jurisprudence, and the later and equally famous decision of the US

Supreme Court in Baker v Carr,12 no mention of the doctrine may be found in one of

the most controversial and ‘political’ decisions of the US Supreme Court of all time,

Bush v Gore.13 It appeared then that if the US Supreme Court could determine a

Presidential election without it, US Constitutional law could equally survive without

it. The most commonly cited scholarship in the US associated with the political

question doctrine even has an ‘existential crisis’ theme to it- did it exist? Why should jurisdiction in respect of Guantanamo Bay detainees, as to use doctrine would be, ‘inconsistent with…and contrary to fundamental separation of powers principles: Kennedy J. at 755. 8 P. Van Elsuwege, ‘EU External Action after the Collapse of the Pillar Structure: In Search of a New Balance Between Delimitation And Consistency‘, 47 Common Market Law Review (2010) p. 987, at 999; Eeckhout Does Europe‘s Constitution stop at the water‘s edge?: Law and Policy in the EU‘s external relations (Groningen 2005) at p. 418. 9 Such as the infamous decisions of the Court of Justice in Case 294/83, Parti Ecologists Les Verts v European Parliament [1986] ECR 1339; Case C-105/03, Criminal Proceedings against Maria Pupino [2005] ECR-5285, Case C-144/04, Mangold v Helm [2005] ECR I-9981; Case C-176/03, Commission v Council (Environmental Crimes) [2005 ECR I-7879; C-355/04 P, Segi v Council [2007] ECR I-1657. 10 A fuller analysis of the provisions of Article 263(4) TFEU is outside the scope of this work. 11 Marbury v Madison 5 U.S. 137 (1803) at p. 165-66. See, however, L. Tribe American Constitutional Law (3rd ed. Vol. 1, Foundation Press New York 2000) § 3-13 onwards, at p. 385, where he states, ‘[t]here is, thus, a political question doctrine…‘ 12 Baker v Carr 369 US 186. 13 Bush v Gore 531 US 98 (2000). See A. Dershowitz Supreme Injustice: How the High Court Hijacked Election 2000 (Oxford University Press, New York, 2001) at p. 94.

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it exist? Nonetheless, the doctrine has spread all over not merely the Common Law

world but also Constitutional Courts of Civil Law systems in a variety of forms.14

Rarely has a ‘strict’ version of the political question doctrine been successfully ‘cross-

pollinated’, as is usual with legal transplants. So while there is much evidence that

the political question doctrine has fallen out of favour within the US Establishment,

its ‘cross-pollination’ beyond the US indicates that it has some merit still in many

legal cultures. Wherever it has travelled, it is usually linked indelibly with what

Tushnet describes as the ‘boringly familiar catalog’ from Baker v Carr.15 Baker v. Carr

remains a landmark US Supreme Court decision concerning a 1901 Tennessee statute

and a complaint about vote apportionment and Equal Protection, that there had been

failure to reapportion votes in light of substantial population growth and

redistribution of the State's population. The US Supreme Court, held, per Brennan J.,

in deciding that the question was justiciable, that a political question resulted in non-

justiciability where it involved six factors:

[A] textually demonstrable constitutional commitment of the issue to a

coordinate political department; or a lack of judicially discoverable and

manageable standards for resolving it;

or the impossibility of deciding without an initial policy determination of a

kind clearly for non-judicial discretion; or the impossibility of a court’s

undertaking independent resolution without expressing lack of the respect

due to the coordinate branches of government, or an unusual need for

questioning adherence to a political decision already made; or the potentiality

of embarrassment from multifarious pronouncements by various

departments on one question…16

14 In Canada: Operation Dismantle v The Queen [1985] 1 SCR 441; (1985) 18 DLR (4th) 481); Re Secession of Quebec (1998) 161 DLR (4th) 385; United Kingdom: Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374; R(On the application of Gentle) v Prime Minister [2008] UKHL 20; Germany: Pershing 2 and Cruise Missile Case (1983) 66 BVerf GE 39; Ireland: McKenna v An Taoiseach (No. 2) [1995] 2 IR 10; Horgan v An Taoiseach [2003] IEHC 64. See also P.J. Kuypers, & K. Wellens, ‘Deployment of cruise missiles in Europe: The legal battles in the Netherlands, the Federal Republic of Germany and Belgium‘, 18 Netherlands Yearbook of International Law (1987) p. 145. 15 Tushnet in Mortada-Sabbah & Cain (eds). supra n. 7, p. 47 at p. 50. 16 At p. 217.

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Some such as Chemerinksy make the case for dispensing with the doctrine in

its entirety on account of the supremacy of the judicial branch, while others contest

its inherent compatibility with the rule of law.17 Moreover, there are many who

suggest that its elements themselves are now unworkable and unmanageable and

question whether a classical approach or prudential approach is appropriate now?18

The malleability of the doctrine over the years and across constitutional cultures

underscores the cyclical nature of judicial review theory and the nuances of Court

panels and their objectives.19 The ‘meltdown’ state of US law questioning the core

elements of the doctrine for decades need not necessarily concern European

observers, given the historical success of the doctrine outside the land of its birth, in

contrast to its homeland. There is a view that the extensive US literature on the

judicial role is unsuitable outside the US and its ‘judicial control’ culture.20 This much

creates some challenges for transposition of these theories to the case of the EU.

Being ‘pro-justiciability’ invariably seems be indicative of favouring the rule of law

whereas opposition to the doctrine fastens upon the denial of the rule of law and the

importance of judicial supremacy in judicial review cultures. The simplicity of these

arguments so juxta-positioned is perhaps unhelpful in the European context. Clearly

the rule of law is a feature of ‘European constitutionalism,’ 21 yet it is perhaps

inaccurate to say that the absence of a distinct discernable separation of powers in

classical format is a hindrance to European acceptance of common constitutional

theories also.22 It is contended here that the doctrinal formalism of justiciability offers

many advantages for the judicial authority, such as transparency and openness of

decision-making consistent with a legal culture predicated on the rule of law and so

the doctrine is employed here as well by way of a useful comparative methodology.

The multiplicity of Executive powers in EU-US relations requires a detailed 17 E. Chemerinsky, ‘Who Should Be the Authoritative Interpreter of the Constitution? Why There Should Not Be a Political Question Doctrine‘, in N. Mortada-Sabbah & B. Cain (eds.), supra n.7., p. 181 18 J. Choper, ‘The Political Question Doctrine: Suggested Criteria‘, 54 Duke Law Journal (2005) p. 1457, as advocated most famously by Bickel The Least Dangerous Branch (New Haven 1962). 19See Nixon v United States 506 US 224 (1993). 20 See M. Rosenfeld, ‘Constitutional adjudication in Europe and the United States: paradoxes and contrasts (2004) 2(4) International Journal of Constitutional Law 633. Cf Landau, ‘Political Institutions and Judicial role in Comparative Constitutional Law‘,51(2) Harvard International Law Journal (2010) p. 31. 21 L. Pech, ‘A Union Founded on the Rule of Law: Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law‘,6 European Constitutional Law Review (2010) p. 35. 22See generally in support of a similar argument, Conway, ‘Recovering a Separation of Powers in the European Union‘, 17 European Law Journal (2011) p. 304.

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distillation or analysis and it is argued here that a methodology to weigh and

consider the range of interests is most appropriate.

In the realm of EU-US relations, certain recent agreements struck are

Executive-orientated and disproportionately emphasise internal security to the

detriment of citizens. This unsatisfactory balance warrants a more nuanced and

explicit analysis of the role of the Court in reviewing these developments. The Court

of Justice has pronounced upon a number of EU-US legal agreements exhibiting

strong judicial review- such as in the famous Passenger Name Records decision

considered here later.23 The adoption of a strictly formalist catalogue such as Baker v.

Carr is not suggested here but rather a looser deployment of the principles

enunciated therein, particularly in light of the state of EU constitutionalism post-

Lisbon, post-crisis. The justiciability doctrine methodology is both advocated here

and then applied throughout in the casestudies which follow in Part II and Part III.

Part II: Casestudy 1: EU-US Legal Relations: Data Transfer Law

The legal basis for EU-US relations lies in bilateral agreements mainly adopted

after the 9/11 terrorist attacks and also after EU-US Summits. The political origins of

the legal relationship are in the Transatlantic Legislators Dialogue existing since 1972,

continuing to the present day and the Transatlantic Declarations resulting in regular

presidential summits since the 1990s. There are currently six EU-US agreements in

the a rea of Justice and Home Affairs..24 There is another agreement of potentially

more significance than all EU-US law in existence also of note- currently there exists

a draft negotiation mandate for a General EU-US Data Protection Framework

Agreement, which would replace all bilateral and multilateral agreements in the

23 See n. 6 above. 24 (1) Europol (2) Extradition (3) Mutual assistance (4) Passenger Name Records (5) Terrorist Financial Tracking Program (TFTP) and (6) Container Security Initiative: Agreement between the United States of America and the European Police Office of 06 December 2001, European Council, 14581/01, 6-7 December 2001; Supplemental agreement between the Europol Police Office and the United States of America on the exchange of personal data and related information of 20 December 2002; EU-US Extradition Agreement OJ L 181 27, 19 July 2003, which entered into force on 1 February, 2010; EU–US Agreement on Mutual Legal Assistance OJ L 181 34, 19 July 2003, which entered into force on 1 February, 2010; US-Eurojust Cooperation Agreement of 6 November, 2006; The Container Security Initiative from 2004 extends the US Container Security Initiative (CSI) which allowed US officials to pre-screen containers in foreign ports bound for US soil in order to rule out potential use by terrorists. However, these measures do not concern substantive and individualised (citizen) data transfer law per se.

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future. For reasons of space and also by reason of their commonality in subject

matter, only two of these data-transfer related laws will be analysed here. EU-US

legal relations in the area of data transfer law are arguably the most novel and

controversial of all EU-US legal relations.

A. The Passenger Name Records Agreements: First Generation PNR

The EU-US Passenger Name Records (PNR) Agreements generated one of the

singular instances of judicial review of EU-US relations in contemporary EU law and

is accordingly of much significance here. 25 The EU-US PNR Agreement has its

origins in US legislation passed in the wake of the September 2001 atrocities and the

Madrid 2004 bombings requiring carriers to provide US authorities with passenger

data under threat of sanction.26 Such data has in fact been exchanged for almost 60

years but only in recent times has the electronic exchange of this information become

possible.27 The express purpose of PNR is ‘to meet security and data protection

requirements through assurances provided by the USA. This provides a Europe-

wide solution, legally binding in all Member States, and the necessary legal certainty

for all concerned.’28 EU-US PNR first came to prominence as a matter of law in a

decision of the Court in the Passenger Name Records decision of the Court.29 This

decision represents an isolated instance of review of the legality of EU-US relations,

and an instance of ‘strong’ rather than ‘weak’ judicial review. There, the Parliament

had sought to challenge the validity of Commission and Council decisions adopted

on which the Agreement with the US to transmit the data was based. Article 25 of the

Directive provided that:

The Member States shall provide that the transfer to a third country of

personal data … may take place only if … the third country in question

ensures an adequate level of protection. The adequacy of the level of

25 Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection ([2004] OJ L 183, 83, and corrigendum at [2005] OJ L 255, 168), (17 May 2004). 26 Cf The U.S. Aviation and Transportation Security Act of 2001. 27 European Commission, ‘The Passenger Name Record (PNR)‘ MEMO/10/431, 21 September 2010. 28 European Commission, ‘The Passenger Name Record (PNR)‘ MEMO/07/294, 13 July 2007. 29 See n. 6 above.

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protection afforded … shall be assessed in the light of all the circumstances

surrounding a data transfer operation …..

The Court considered the legality of the agreements and the legal basis used

in the form of Article 114 TFEU (ex Article 95 EC) for the agreement, the

controversial harmonisation clause used in Internal Market law. The Court annulled

the Agreement, finding that:

Article 95 EC, read in conjunction with Article 25 of the Directive, cannot

justify Community competence to conclude the Agreement. The Agreement

relates to the same transfer of data as the decision on adequacy and there to

data processing operations which, as has been stated above, are excluded

from the scope of the Directive.30

The terse and obscure reasoning of the Court, with all of its consequences for

EU-US relations, has been the subject of much critique, without any consideration of

fundamental rights.31 However, the decision of the Court represents undoubtedly

strong judicial review on the part of the Court. Subsequently, as De Witte observed,

‘the EU had to beg the US to sign an identical agreement based this time on the

correct legal base and in the interim the US used the opportunity to obtain even

wider access to passenger data than in the original agreement.’32 The annulled PNR

Agreement was therefore replaced by an interim Agreement between the European

Union and the USA of 19 October 2006 which expired in 31 July 2007 and was

therefore been replaced by a new long-term Agreement signed in July 2007.33 The

European Parliament initially refused to vote on the 2007 Agreement in November

2008, continuing to raise concerns as to the use of the data, the respect for

fundamental rights and the objections of various agencies and bodies such as the

30 Paras. 67-68. 31 Gilmore & Rijpma, Annotation of Joined Cases C-317/04 and C-318/04, European Parliament v Council and Commission, Judgment of the Grand Chamber of 30 May 2006, [2006] ECR I-4721, 44 Common Market Law Review (2007) p. 1081. 32 De Witte supra n. 1. 33 Agreement between the European Union and the United States of America on the processing and transfer of Passenger Name Record (PNR) data by air carriers to the United States Department of Homeland Security (DHS) (2007 PNR Agreement), OJ 2007 L 204/18.

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Article 29 Working Party and the Fundamental Rights Agency. 34 The new

Agreement included a filtering and deletion process for ‘sensitive’ data, a seven to

eight year retention period and the provision of data by carriers based upon a ‘push’

mechanism, whereby the responsibility to transmit rests with carriers without any

decision-making discretion. A letter in the appendix to the 2007 Agreement from the

US to the EU purposed to outline how ‘administrative, civil, and criminal

enforcement measures [were] available under US law for violations of US privacy

rules and unauthorized disclosure of US records,’35 but the reciprocal nature of this

or its utility generally to EU citizens must be doubted. A proposal for a revised PNR

scheme in 2010 was included in the Stockholm Programme, as well as a

Recommendation for the negotiation of a data protection and, where necessary, data

sharing agreements for law enforcement purposes with the United States of America,

building on the work carried out by the EU-US High Level Contact Group on

Information Sharing and Privacy and Personal Data Protection.36 The evolution of

the Agreement indicates an increasing continuum of ‘State’ powers and heightened

security concerns, with only modest developments in individual rights-based redress

mechanisms.

Second Generation EU-US PNR is considered here next, followed by an

outline of Internal EU PNR, considered here by way of comparison with EU-US PNR.

I. Second Generation PNR37

After the enactment of the Treaty of Lisbon, on 5 May 2010, the European

Parliament adopted a resolution on the launch of negotiations for ‘Second

Generation’ Passenger Name Record agreements with the US, Australia and Canada,

the latter which had expired and the former two operating pursuant to provisional

34 European Parliament Resolution of 20 November 2008 on the proposal for a Council framework decision on the use of Passenger Name Record (PNR) for law enforcement purposes of 20.11.2008 P6_TA (2008). See Opinion of European Data Protection Supervisor 2008/C 110/01 on the draft Proposal for a Council Framework Decision on the use of Passenger Name Record (PNR) data for law enforcement purposes. 35OJ 2007 L 204/18, p. 21. 36 European Council The Stockholm Programme — an open and secure Europe serving and protecting Citizens 2010/C 115, p 11, 19 (4 May 2010). 37The ‘Second Generation’ PNR terminology is taken here from official EU documents: JHA External Relations Trio programme 12004/11, (4 July 2011).

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arrangements. 38 Generally, the Parliament has gained much in way of legal and

political capital in this period with respect to these Agreements and had sought to

postpone the vote on the request for consent on the agreements with the US and

Australia until the Commission had explored the options for the arrangements which

met the concerns of the Parliaments. Equally, the Parliament had sought general

standards to be set for PNR Agreements with Third Countries and the Commission

then delivered a Communication, ‘On the Global approach to transfers of Passenger

Name Record data to third counties’’39 resulting in it receiving a recommendation to

authorise the opening of negotiations for Agreements. The Presidency of the Council

in September 2010 sought to prioritise negotiations with the US, signifying the

overwhelming importance of EU-US relations relative to other countries.40 At the

time of writing, a revised PNR Agreement had been agreed between the Commission

and the US pending approval of the Member States and the European Parliament.41

The latter was suggested by media reports as being compelled to accept the

Agreement, signalling a major shift in the politics of EU-US relations.42

However, a leaked opinion from the European Commission appeared to

indicate that it harboured significant reservations about the earlier Agreement,

suggesting that it was not compatible with fundamental rights.43 The Commission

suggested inter alia that Agreement in Article 4 thereof defined serious crime overly

broadly and allowed PNR to be used by Court Order without purposeful limitation,

violating the Charter of Fundamental Rights.44 The retention period for data under

the Agreement for up to 15 years was also argued by the Commission to be highly

dubious, almost three times longer than that provided in the EU-Australia

Agreement.45 Moreover, the enshrinement that all judicial redress was subject to US

law at the discretion of the Department of Homeland Security (DHS) was critiqued 382011/C 81 E/13 70. Cf EU-Australia Agreement: Council doc. 10093/11 (Brussels, 22 September 2011). 3913954/10 JAI 764 DATAPROTEXT 67 AVIATION 134 RELEX 789. 40 Council doc. 13986/10 (Brussels, 27 September 2010) (at p. 3). 41 Draft Agreement between the United States of America and the European Union on the use and transfer of Passenger Name Record Data to the United States Department of Homeland Security: Council doc. 10453/11 (20 May 2011). 42 cf ‘Unhappy MEPs to approve passenger data deal‘, www.euobserver.com/22/114252> (11 November, 2011) (visited 6 February 2012). 43 European Commission Legal Service 18 May 2011 sjf(2011)603245, leaked by the Civil liberties Organisation Statewatch: <www.statewatch.org/news/2011/jun/eu-usa-pnr-com-ls-opinion-11.pdf> (visited 24 November 2011). 44Article 52 thereof. 45 See n. 38 supra. Article 16 thereof provides for a five and a half year retention period.

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by the Commission as suspect. Overall, the Commission concluded that despite some

presentational changes, the Agreement did not represent a sufficiently substantial

improvement on the existing temporary agreement and did not meet the concerns of

the European Parliament. The manner in which these views were leaked caused

some Member States to speculate that the Agreement might be renegotiated.46 Such

criticisms would be of considerable relevance to the Court in the event of its review

thereof, pushing the Agreement towards justiciability and review by the Court.

However, the PNR Agreement subsequently agreed in November 2011 is proving to

be no less controversial and provides for a five-year active retention period and a

ten-year dormant retention period in Article 8 thereof. The Agreement provides for a

‘push-data’ system and not a pull-data system, ostensibly limiting the powers of the

DHS to extract data from airline carriers. Yet the push-data system reverts to pull in

certain exceptional circumstances, showing the effective orientation of the system.

The EU was, at the time of writing, seeking declarations that the onwards transfer of

PNR data to third countries by the US would respect safeguards in the Agreement.47

Moreover, the EU sought to involve data protection experts in the review process

thereof. Such mechanisms still do not obviate proportionality and accountability

concerns and operate only to increase the need for clear judicial review mechanisms.

By way of contrast and comparison with First and Second Generation EU-US

PNR, Internal EU-PNR will be briefly summarized here next.

II. Contrasting EU-US PNR Law and Internal EU PNR Law

Data retention has now also entered the realm of high politics in internal EU

law and policy. Post 9/11, the EU has adopted its own Homeland security discourse,

just like the United States,48 involving internal and external actors, as well as public

and private actors and flexible administrative and civil law tools not previously

deployed against individuals for the same reasons, reach and objectives. 49 Data

46 See House of Lords European Union Committee Newsletter (7 July 2011) <www.parliament.uk/documents/lords-committees/eu-select/Newsletter/july2011newsletter.pdf> (visited 5 February 2012). 47 Council doc. 16981/11 (Brussels, 15 November 2011) 48 Cf the USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act of 2001. 49 See the broad range of themes in the Council discussion paper: EU Counter-Terrorism Strategy 10622/11 Brussels 27 May, 2011 and the high-level inclusion of counter-terrorism

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Retention more so than data transfer appears to be a central plank to EU Homeland

security. Invasive and sophisticated pro-Statist Data Retention practices have become

central tools of ordinary EU law as well as EU-US relations and raise very

challenging questions about their reviewability and application of the rule of law

thereto. The enactment of Council Directive 2004/82/EC on the obligation of carriers

to communicate passenger data (Advance Passenger Information, API) adopted in

2004 arose from a raft of measures designed predominantly to respond to US security

concerns after 9/11. It resulted in diverging Advanced Passenger Information

requirements and law enforcement usages of this data, divergences which would

later result in a call for a global approach to Internal EU PNR.50 In 2004 also, France,

Ireland, Sweden and the UK introduced a proposal to harmonise data retention

obligations of service providers in the EU which resulted in Directive 2006/24/EC,

explicitly referencing in its preamble the importance of the availability of data to

investigate serious crime and the London terrorist attacks of July 2005. 51 The

European Commission presented a proposal for a framework decision to establish

the EU PNR system as a component of the EU’s anti-terrorism package after the 2007

PNR EU-US Agreement, an internal system which went considerably further than

the EU-US system, despite its flaws and controversies and which adopted more

stringent practices.52 Allied to these developments, it is worth noting recent internal

developments between the Member States with respect to EU Internal flights on a

Passenger Name Records Directive which would also result in powers to transfer

data to the US. The proposed Directive on the use of Passenger Name Record Data

for the prevention, detection, investigation and prosecution of Terrorist Offences and

within security concerns in the Troika Council Presidency: JHA External Relations Trio programme 12004/11, 4 July 2011. 50Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data 2004 OJ L 261/24 (6 August 2004). 51Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC OJ C 237 (30.9.2006), p 5. 51 Cf Case C-301/06 Ireland v Council and European Parliament [2009] ECR 1-00593; Case C-162/10 Phonographic Performance (Ireland) Ltd v Ireland [2010] IEHC 79, pending; Opinion of Advocate General Trstenjak (29 June 2011). 52European Commission, ‘Fight against terrorism: Stepping up Europe‘s capabilities to protect citizens against the threat of terrorism‘, IP/07/1649, Brussels, 6 November 2007.

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serious crime53 would apply to air carriers flying into and out of EU Member States

and relates to unverified passenger data which can be sent to inter alia other Member

States and third countries, data which can be retained for 5 years. The level of

surveillance of ordinary citizens in the proposed directive seems far-reaching and

unwieldy. The possibility of monitoring of EU internal flights has even been

proposed54 and there are now also proposals for a European system for tracking

terrorist financing as part of the EU Internal Security Strategy, more far-reaching

than the EU-US system, considered here next.55 These remarkable developments-

including negating the freedom to travel without surveillance- indicates that internal

PNR law maybe marginally more intrusive on individual rights in its objectives and

scope than EU-US data transfer law and no less controversial. Paradoxically, the

high-level objectives of EU-US law-making appear to have raised the bar for internal

EU law-making in the realm of counter-terrorism, indicating the perhaps unusual

effects of post-national rule-making.

III. The Justiciability Criteria Applied to EU-US PNR

If the Baker v. Carr criteria are considered here, there are no textual

commitments to other branches of ‘government’ or rather EU institutions as regards

PNR- the power are committed of transferred to other agencies. The extensive

discretion accorded to US authorities in the agreements is problematic, as are the

lengthy data retention periods. Equally, the availability of the data that the Court

would have to review in litigation would then also be mired in security concerns,

possibly impeding review. There are possibly unmanageable standards, given the

US-orientated and mandated security policies to be reviewed in any judicial

challenge. There is a high degree of embarrassment at stake in the event of the

agreement being struck down, embarrassing all sides. PNR self-evidently raises

questions such as the proportionality of obtaining and retaining data, the use of the

53 Proposal For a Directive on the use of Passenger Name Record data for the prevention, detection investigation and prosecution of terrorist offences and serious crime (COM)2011 32 (2 February 2011). 54 Note From UK Delegation To Delegations 6359/11 LIMITE, GENVAL 8 CATS 10 AVIATION 21 Brussels 10 February 2011. 55 IP/11/13/07/2011; Communication from the Commission to the European Parliament and Council- A European terrorist finance tracking system available options, COM(2011) 429 final; European Commission, ‘The EU Parliament Security Strategy in Action: Five steps towards a more secure Europe‘, COM(2010) 673 final.

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data retained, the privacy rights of those the subject of data transfer, access to justice

for citizens affected and the presumption of innocence. By contrast, the importance of

national security and the prevention of terrorism would be defended resolutely by

each and every Member State in litigation. Overtly, the application of Baker v. Carr

criteria would suggest non-justiciability. The Baker v. Carr methodology seems

weighted against the justiciability of security measures. By contrast, the existing

caselaw of the Court on fundamental rights and data transfer and the importance of

fundamental rights and fair procedures suggests justiciability is possible 56 and

arguably certain caselaw suggests that PNR is on a looming collision course with EU

fundamental rights law, but much depends on the future relationship of the Court of

Justice with the European Court of Human Rights and the extent to which EU law

might exceed or infringe standards set by the Strasbourg Court. It is argued here that

the formula of review of PNR must accordingly be more nuanced and take account

of (a) the Executive bias of EU-US relations and (b) the Executive dominance of the

separation of powers post-Lisbon. A weaker and more nuanced form of Baker v. Carr

can be readily transposed into EU law to accommodate and distil these concerns.

B. The Terrorist Financial Tracking Program Agreement (TFTP or ‘SWIFT’)

I. The Evolution of the TFTP Agreement

The next major legal act of EU-US legal relations is the Agreement between

the EU and US on the processing and transfer of Financial Messaging data from the

EU to the US (also known colloquially as the ‘SWIFT’ Agreement or more accurately

as the Terrorism Financial Tracking Program (TFTP hereafter).57 The Programme

monitors financial transactions, enabled now by the Global (but Belgian-based) 56 For example, the Court of Justice has held that the systematic surveillance or monitoring of EU citizens may infringe the right to non-discrimination and Dir 95/46: Case C-524/06, Huber v Germany [2008] ECR I-9705. More generally, the Court has held that the principle of proportionality applies to data disseminated on the internet: Case C-92/09, Volker & Schecke v Land Hessen and C-93/09, Eifert v Land Hessen [2010] ECR I-000 and has also recently held that the independence of data supervisory authorities is now a key legal standard in EU law- Case C-518/07, Commission v Germany [2010] ECR I-000. The Court has expressly exceeded ECHR standards in the area of family reunification: Case C-578/08, Chakroun v Minister van Buitenlandse Zaken [2010] ECR I- 1839. 57 Agreement between the European Union and the United States of America on the processing and Transfer of Financial Messaging data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Program [2010] OJ L 195 5, (27 July 2010) .

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Society for Worldwide Interbank Financial Telecommunications (SWIFT). The TFTP

Program has its origins in a US initiative adopted after the 9/11 attacks and purports

to allow the US Department of the Treasury (hereafter the Treasury) to receive

financial messaging data stored in the EU in order to allow targeted searches for

counter-terrorism investigations and their financing. 58 TFTP first fell within the

rubric of EU ‘soft’ law in 2007, in the form of ‘Representations’ when they were

published in the Official Journal to deal with the rising concerns about the absence of

governing legal principles in either jurisdiction on SWIFT. 59 These Representations

were followed by the agreement of the US to the appointment of an ‘’Eminent

European Person’ to review inter alia the use of the data.60 The evolution to a ‘hard’

law agreement followed and an interim agreement of February 2010 was rejected by

the European Parliament, using its veto powers pursuant to the Treaty of Lisbon,61

on the grounds that it did not achieve appropriate balance between security and

fundamental rights concerns.62 But shortly after the enactment of the Agreement, the

Parliament and Commission publicly began to express concerns at US plans to

expand an anti-terrorism programme targeting financial transactions, rendering void

the TFTP Agreement.63 An interim independent overseer or reviewer was appointed

58 Europol clears all US requests for detailed personal financial data and thus is intrinsically important to the review process of these requests. Europol Activities In Relation To the TFTP Agreement Information- Note to the European Parliament (1 August 2010- 1 April 2011), The Hague, 8 April 2011, File No. 2566-566, Europol Public Information. 59 Terrorist Finance Tracking Program — Representations of the United States Department of the Treasury 2007/C 166/09, C 166/18, 20 July 2007; See the detailed accounts of M. Cremona, ‘Justice and Home Affairs in a Globalised World: Ambitions and Reality in the tale of the EU-US SWIFT Agreement‘, (Institute for European integration Research, Working Paper No. 4/2011), at p. 11-13; M. Goede, ‘The SWIFT affair and the Global Politics of European Security‘,50 Journal of Common Market Studies, (2012) forthcoming. 60 A French counter-terrorism judge produced a reports in December 2008 and again in 2010, classified as secret, which were distributed to the permanent representatives of the Member States, ostensibly to outline how effective TFTP had been in the aftermath of significant terrorist attacks: Bruguiere, ‘Second report on the processing of EU-originating personal data by the United States Treasury Department for Counter Terrorism Purposes: Terrorist Finance Tracking programme‘, (January, 2010). 61 See the European Parliament Press release: ‘SWIFT: ‘European Parliament votes down agreement with the US’ (11 February 2010) available http://www.europarl.europa.eu/sides/getDoc.do?language=en&type=IM-PRESS&reference=20100209IPR68674 (last accessed 21 November 2011). 62 See Monar, ‘The Rejection of the EU-US TFTP Interim Agreement by the European Parliament: A Historic Vote and Its Implications‘,15 European Foreign Affairs Review, (2010) p. 143. 63 ‘MEPs demand explanation on US plan to monitor all money transfers‘, <www.euobserver.com/9/30905> EUObserver.com (28 September 2010) (visited 6 February 2012); ‘Money Transfers could face anti-terrorism scrutiny‘, Washington Post (27 September 2010).

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in August 2010, whose name was kept confidential by the Commission, while a

permanent TFTP overseer was sought. The European Parliament sought to query the

legal basis for retaining the confidentiality of the identity of the EU public official-

interim or permanent, indicating a power dynamic emerging where the Parliament

fought for openness and accountability on the part of Citizens, whereas the

Commission appeared to ‘cater’ more closely to the interests of the Executive qua

Member States.

The TFTP Agreement was originally envisaged to run for five years, with

automatic extensions for one-year periods. Concerning Citizens rights and remedies

with respect to the Agreement, Article 18 thereof provides any person who considers

his or her personal data to have been processed in breach of this Agreement is

entitled to seek effective administrative regardless of nationality or country of

residence. The effectiveness and adequacy of this redress promised remains a major

issue, particularly for EU Citizens in the US who are excluded from litigating

privacy-related complaints in the US by reason of the US Privacy Act of 1974.64 The

individual’s right of access to their information is heavily qualified pursuant to

Article 15 of the Agreement, and State-centred exceptions are numerous throughout.

The Agreement provides for the future cooperation of the US with the EU in the

event of the EU adopting a ‘more targeted’ transfer of data system for the EU,

expressed to be an ‘equivalent’ system in Article 11(1), which would result in the

context of the Agreement changing. This provision seems peculiarly vague,

engendering doubts as to the form of ‘targeting’ under the Agreement. Moreover, the

discretionary nature of the judicial supervision is overtly vague- best practice would

suggest that this is essential in security matters.65 Overall, the complaints that might

be raised as to the Agreement may be raised are the powers therein to review data

transfers, the application of the ECHR thereto and the prospective jurisdiction of the

European Court of Human Rights, the implications of the Charter of Fundamental

Rights after Lisbon and the definition of whether it is a ‘regulatory act’ for the

purposes of non-privileged applicant’s standing or locus standi in EU law and Article

263(4) TFEU, to challenge the operation of the TFTP Agreement.

64 5 U.S.C. § 552a: ‘(a) Definitions: (2) the term, ‘individual‘, means a citizen of the United States or an alien lawfully admitted for permanent residence… ‘ 65 See generally M. Scheinin supra, n. 3.

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II. The First Reviews of the TFTP Agreement

TFTP provides for various review mechanisms of its operation. The 70th

Interparliamentary Meeting of the Transatlantic Legislators Dialogue between the

European Parliament and the US House of Representatives in 2011 sought to claim

that the TFTP was a great success, a claim that must be viewed with some scepticism

on account of the difficulty in empirically reviewing TFTP, considered here next.66 In

this regard, despite its recent adoption, the TFTP agreement has been the subject of

several recent formal (non-judicial) review processes since its inception. However,

the nature of these review processes lends themselves in turn to sceptical scrutiny.

And so firstly, a ‘joint review’ was conducted of TFTP six months into the entry into

force of the Agreement, by teams of EU and US officials.67 Whether the EU and the

US contributed to the review process as ‘equal partners’ remains much more

debatable. It is hard to escape the reality that in EU-US relations the US remains

primus inter pares.68 Notably, for example, one member of the EU ‘review’ delegation

was excluded from the review after having denied security clearance, despite the

composition of the ‘joint’ review team being published in the Annex of the Report, an

embarrassing glitch. Moreover, the Review contains little substantive information

about the practical implementation of TFTP, on the grounds of confidentiality,

rendering an assessment of its substantive content more challenging for any

observer. 69 Ultimately, TFTP in this review is not credited with preventing any

terrorism but rather as having provided ‘leads.’ Secondly, a self-review process

conducted by Europol of its role as to TFTP was also recently published in 2011.70

These functions seem difficult to assess at this remove as Europol expressly states

therein that it only classifies information when necessary to protect the legitimate

66 See most recently 70th Interparliamentary Meeting Transatlantic Legislators Dialogue European Parliament-United States House of Representatives Budapest, (June 29, 2011-July 1, 2011). 67 Commission report on the joint review of the implementation of the agreement between the European Union and the United States of America on the processing and transfer of financial messaging data from the European Union to the United States for the purpose of the terrorist finance tracking program Brussels 16.3.2011 17-18 February 2011, pursuant to Article 13 of the Agreement. 68 See M. Cremona op.cit. n. 59, at p. 27: ‘there is a tendency for the EU to follow the US lead‘. 69 At p. 6. 70 Pursuant to Articles 4, 9 and 10 of the Terrorist Finance Tracking Programme (TFTP) Agreement: Europol Activities In Relation To The TFTP Agreement Information- Note To The European Parliament (1 August 2010- 1 April 2011) The Hague 8 April 2011, File No. 2566-566 Europol Public Information.

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interests of the Member States, Europol’s cooperation partners or the organisation

itself but significantly stated that it initially classified US requests for data as

restricted but the US forced upon it a classification of secret. This resulted in routine

classifications of secrets and requests being conveyed through ‘secure’ diplomatic

channels. Thirdly, this review process by Europol itself was in turn to be subjected to

harsh criticism by yet another review body, this time the Europol Joint Supervisory

Body,71 charged generally with the task of assessing whether Europol has respected

the provisions of personal data protection in the TFTP Agreement when deciding the

admissibility of US written requests to Europol. The JSB reported that certain data

protection requirements were not being met and that the requests received by

Europol were not specific enough to decide whether to approve them or not. Overall,

even this ‘independent’ report is extraordinarily brief, at one page, despite the

content of its critique.72 The latest EU-US PNR Agreement contains references to data

protection experts being involved in the review process, similar to the TFTP

Agreement itself.73 However, the independence of such individuals seems far from

certain and again casts unfavourable light on the review procedures of EU-US

relations.

III. The Application of Justiciability Criteria

That the TFTP agreement can generate justiciable issues worthy of judicial

consideration seems beyond dispute. Undoubtedly there is a role for the Court to

play as regards reviewing this Agreement. Whether weak or strong review attaches

to this Agreement may constitute the more challenging question. However, as

regards the Baker v. Carr criteria, there is a textual commitment to the US agencies to

transfer data and much discretion accorded to EU agencies such as Europol. There

are standards and policies to be considered relating to high level security but of a

most unusual nature. Whether the Court would be able to consider or reveal the

71 Report on the inspection of Europol‘s Implementation of the TFTP Agreement, conducted in November 2010 by the Europol Joint Supervisory Body Report No. JSB/Ins. 11-07 Brussels, 1 March 2011. 72 M. Cremona, op.cit., n. 59, cites the report made to the European Parliament Civil Liberties, Justice and Home Affairs (LIBE) Committee in February 2009, confirming ‘compliance’ with the US Representations: IP 09/264, 17 February 2009: at 12. She later cites the ‘charm offensive‘ waged upon the European Parliament by the US: at p. 19. 73 See n. 47 above on the draft declarations sought by the EU.

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documentation challenged is a major question. The potential for embarrassment is

great in the event of documents being openly reviewed and published. On the basis

of the reviews conducted so far and the classified nature of the documentation the

subject of the exercise, only a ‘low intensity’ of review would be appropriate to high

level security. On the other hand, major fundamental rights questions are posed by

the operation of the agreement. However, it seems likely that Member States would

resolutely defend national security exceptions and the exceptional nature of the

prevention of terrorism by way of defence. The application of formal justiciability

criteria suggests that the Agreement should not be justiciable. By contrast,

meritorious fundamental rights complaints could go undetected otherwise. There are

significant shortcomings potentially in relation to the actual operation of the

Agreement. However, the Agreement and its security-orientated context is ostensibly

quite disposed towards US concerns, posing a major challenge for review in the

absence of a workable methodology.

C. The General EU-US Data Protection Framework Agreement

I. Background to the Framework Agreement

The General EU-US Data Protection Framework Agreement 74 under

negotiation currently would be a long-term, general agreement to govern and catch

all data that had been transferred and processed in the context of police and judicial

cooperation in criminal matters by EU institutions, bodies, offices and agencies, EU

Member States to US public authorities, covering or applying to all existing

Agreements. This Agreement would be based as a matter of law in Articles 16 and

216 TFEU, neither of which appears to capture the ground-breaking nature of these

legal relations. The former Article allows the Union to enact rules relating to

protection of personal data, while the latter permits the Union to conclude an

74 ‘EU-US Negotiations on an Agreement to protect personal information exchanged in the context of fighting crime and terrorism‘ MEMO/11/203 Brussels, 29 March 2011; COM(2010) 252/2 Annexe Au Document COM(2010) 252 PO/2010/3091 Proposal for a Council Recommendation to authorise the opening of negotiations for an agreement between the European Union and the United states of America on protection of personal data when transferred and processed for the purpose of preventing, investigating, detecting or prosecuting criminal offences, including terrorism, in the framework of police cooperation and judicial cooperation in criminal matters.

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agreement with one or more third countries. When read together, these two legal

bases seem to fail to capture the enormity of the legal changes wrought by the

proposed Agreement that impact on the daily lives, travel habits, personal histories

and family relations of every EU citizen. In fact, the Article 29 Data Protection

Working Party75 expressed concerns in late 2010 that it had not been consulted on the

content of the negotiation mandate for the agreement and outlined concerns inter alia

about the application of the Negotiation Mandate and Agreement to all existing EU-

US agreements. The Draft Mandate later adopted by the European Commission in

May 2010 allegedly purported to ‘ring fence’ many of these concerns, but this

remains to be seen and it remains the only object for analysis here.76

The reciprocity between the legal orders of the EU and US on the ostensibly

central principle of legal redress remains especially curious- what of the EU Citizen

in the US who alleges a grievance in respect of their data and its use, who is unable

to litigate the US Privacy Act of 1974, confined as it is to US Citizens? Or what of the

US Citizen in the EU- are they to be included within the ambit of judicial redress in

this context? This renders null or hollow at the least the promise of judicial redress in

EU-US relations e.g. TFTP and strikes at the heart of effective and transparent global

governance. Notably, a US Senate Resolution from May 2011 sought to urge the

Department of Homeland Security not to enter into any agreement that would

impose European oversight structures on the US.77 Such a level of resistance does not

seem matched by statements of reports from the European institutions generally.

Thus while the EU and US may purport to express their shared values in the form of

freedom, democracy, the rule of law and human rights, the disparities as to practical

enforcement of these values between the EU and US remains large. US concerns as to

US Citizens being tracked online created a recent ‘push’ by the White House and US

Senators to enact a ‘Privacy Bill of Rights’ or ‘Commercial Privacy Bill of Rights Act

75 Working Party on the protection of individuals with regard to the processing of personal data set up by Article 29 of the Directive (Articles 29 and 30 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data): Brussels, 19 November 2010 D(2010) Ares(2010)837566. 76Memo/10/216 26 May 2010 EU-US Data Protection Agreement Negotiations. 77 S2798 Congressional Record- Senate 9 May 2011, Senate Resolution 174. Cf HR 2594 European Union Emissions Trading Scheme Prohibition Act of 2011, where the House of Representatives has legislated to prohibit the application of EU law.

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2011’, 78 but with exemptions for Federal and State Governments and Law

Enforcement agencies. Yet these moves are solely directed towards and motivated by

US domestic concerns and have little if anything to do with legal measures taking

effect between the EU and US.79 The inability of non-US citizens to rely on the

provisions of the provisions of US Privacy Act creates a challenge for judicial

authorities in the EU, which must feed into justiciability concerns and careful

consideration of the need for justiciability.

II. The Application of Justiciability Criteria

While the precise details of the agreement are not yet apparent, entailing that

the Baker v. Carr criteria are not easily applied here- there is potentially a broad range

of discretion committed to a range of US and EU authorities in particular by this

agreement. The over-breadth of the scope of the agreement is of concern here, as are

the broad-brush invocation of national security concerns. The likelihood of national

security exceptions being invoked here by the Member States is immense and,

accordingly, the possibility to embarrass Government by review remains significant.

The availability of documents for review is furthermore a concern- would

justiciability be rendered almost impossible or futile, in light of the less than

satisfactory and less than comprehensive reviews that have been conducted so far,

pursuant to the terms of the Agreement itself? ‘Low’ intensity judicial review seems

likely, in the event of formal justiciability being applied. On the other hand, a

multiplicity of fundamental rights concerns is raised by this Agreement. Privacy and

proportionality remain values affected greatly by the operation of the Agreement

and these values could, similar to PNR and TFTP, place the Agreement in peril. A

seemingly intractable balance results from a simple balancing exercise, as this

analysis indicates. However, a formula for justiciability would prioritise judicial

review but would have to be meaningful. The extraordinarily broad objectives of the

Agreement for security purposes despite its implications for privacy entail that a

careful methodology for review is required. The distillation of the use and objectives

78 Senators Offer Privacy Bill to Protect Personal Data’, Wall Street Journal (13 April 2011); The New York Times (14 June 2011). 79 ‘White House to Push Privacy Bill‘,Wall Street Journal (15 March 2011).

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of Executive power in the review mechanism is of critical importance, warranting the

use of an express methodology.

Casestudy II: Non-judicial Institutional Actors in EU-US Relations Post-Lisbon

A. Background

A hallmark of the last decade of EU law has been the coherent

institutionalisation and constitutionalisation of the EU as a global actor in EU

External Relations, particularly post-Lisbon.80 However, in EU-US relations many

significant institutional interactions may never assume legal relevance and yet alter

the contextual dynamic to a significant extent. The novelty of EU-US legal relations

remains that the legal agreements generated by EU-US relations cross-cut EU

competences, EU Institutions, Commission departments, EU agencies and

administrative services. And so, at the EU-US Annual Summit on 20 November 2010,

the optics of the post-Lisbon settlement in EU-US affairs were particularly revealing

of the reality of the law and politics of EU-US relations. President Van Rompuy,

President of the European Council welcomed President Obama to the EU-US Summit,

while on the bilateral aspects of the economic relations, President Barroso briefed

President Obama.81 The High Representative for Foreign Affairs, Baroness Ashton

the new external representative of the EU, considered below, remained and

continues to remain outside of this institutional interplay. The programme for the

2011 EU-US Summit in Washington DC indicates that the High Representatives will

accompany the Presidents, plural. 82 Two Commissioners appear sometimes to

pursue competing agendas in EU-US relations and yet optically, seem to work and

affiliate closely with US officials and politicians. The European Parliament

undoubtedly has been successful in all EU-US data transfer agreements, by securing

some measure of protection or amelioration of citizens’ rights and yet most recently

appears to have lost political momentum and political capital. Cumulatively, this is

of huge importance to the legal dimension to EU-US relations. EU-US relations seem

80 See generally P. Koutrakos ed., European Foreign Policy: Legal and Political Perspectives (Edward Elgar 2011). 81 See also Joint Statement EU-US Summit Lisbon, 20 November 2010 16726/10. 82 Brussels, 1 November 2011 EUCO 120/11 PRESSE 404 PR PCE 85.

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to be a sophisticated Executive-dominated quagmire at every angle, leaving little

space for rule of law considerations.

Accordingly, the function and performance of EU institutional actors

involved in EU-US relations is evaluated here, followed by a consideration of their

impact on the justiciability of EU-US relations.

B. The European Commission and EU-US Relations

The Commission has been portrayed for some time as the ‘loser’ of the Treaty

of Lisbon, in matters of EU constitutional law and institutional balance.83 As a matter

of EU-US relations, this may not be so obviously the case per se. The Commission is

now after the Treaty of Lisbon the single negotiator of transatlantic agreements

pursuant to Article 218(3) TFEU, whereas previously the Council Presidency

conducted negotiations on behalf of the EU, assisted by the Commission.84 This new

optical prominence has not resulted in any clear power dynamic emerging,

evidenced by the cancellation of an EU-US summit in early 2010 at the behest of

President Obama on account of the lack of a unified or singular Union

representation. 85 In fact, this negotiation prominence is overshadowed by the

external representation of the EU in the Treaties post-Lisbon de jure by the High

Representative, de facto by President Barroso of the Commission vying with the

President of the European Council to meet with President Obama at EU-US Summits.

Post-Lisbon, the Commission shares the right of legislative initiative in the area of

police and judicial cooperation in criminal matters with the Member States, whilst on

the other hand, has the right of initiative to propose legislation in the field of data

protection, pursuant to Art. 16 TFEU. It has been argued that this shift entails a

growing prominence of the Commission at the expense of the Council, while putting

the Commission, subject to the accountability of the Parliament, while Cremona

83 Editorial, ‘The EU as an Area of Freedom, Security and Justice: Implementing the Stockholm Programme‘ , 47 Common Market Law Review (2010) p. 1307 a p. 1313. Cf M. Sefcovic, ‘The Treaty of Lisbon- One year on Cooperation in a Mature Inter-institutional framework‘, European University Institute, Florence (12 November 2010). 84 See generally R. Gosalbo Bono, ‘The organisation of the external relations of the European Union in the Treaty of Lisbon‘ and M. Paasivirta, ‘The EU‘s external representation after Lisbon: new rules, a new era?, ‘ in Koutrakos ed., above n. 80. 85 See the report, ‘EU‘s relationship with US not living up to potential- Barroso‘, Irish Times (16 July 2010). Cf J. Monar, ‘EU-US relations at the outset of the Obama presidency: the potential for leadership and a new deal‘ , (2009) 16 European Foreign Affairs Review 1.

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depicts this as the veritable curse of supranationalism.86 Overtly, the Commission is

an increasingly conflicted actor in EU-US relations. On the one hand, its political

mandate from the institutions to pursue further transatlantic data exchange has

increased post-Lisbon, supported by the Council in particular. On the other hand, its

legal mandate to protect data information of EU Citizens is also extended post-

Lisbon pursuant to Article 16 TFEU. Quite why the Commission has a greater role

now to assist US authorities to provide data on EU citizens for law enforcement

purposes post-Lisbon in EU-US relations is a slightly more curious point. The

Commission has produced global standards for Passenger Name Records only after

the political influence of the European Parliament became inevitable post-Lisbon.87

The EU-US data transfer agreements have been ‘recalibrated’ each time by the

European Parliament in favour of citizens resulting in a Commission ‘about turn’ on

matters of policy, considered here next. The prominence of the Commission as

advocate of the interests of EU Citizens qua consumers in the area of the Internal

Market, suggests a substantial difference between Market Economy concerns and

security policy. In reality, the power interplay is much more complex- the European

Parliament has assumed the most significance in power-dynamic terms and yet the

most significant legal critique of the draft EU-US PNR Agreement has emanated

recently from the European Commission, a late and unusually damning foray into

the dynamic.88

C. The European Parliament in EU-US Relations

The rising significance of the European Parliament to the post-Lisbon

structural landscape of EU-US relations has self-evidently resulted in a new

constitutional equilibrium which has only recently lost its golden veneer. The

European Parliament is now involved increasingly in global affairs and international

agreements now require the consent of the European Parliament, pursuant to Article

218 TFEU, as outlined above. Thus a simple voting procedure, ie consent and the

attendant power of delay in exercising or deploying this consent, has been used by 86 M. Quesada Gamez & E. Mincheva, ‘No Data Without Protection? Rethinking Transatlantic Information Exchange For Law Enforcement Purposes after Lisbon‘, (Conference paper delivered at University of Sheffield, 13-14 January 2011) at p. 12; M. Cremona above n. 59, at p. 25. 87 See ‘The European Parliament in EU-US Relations‘, next. 88 Cf. fn. 45 supra.

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the European Parliament to render it an increasingly formidable Global Governance

actor. The exercise of its consent power in this way is redolent of its behaviour over

time in the legislative process generally. 89 However, its ‘delay’ powers of the

Parliament in EU-US relations have been exclusively used to ameliorate Citizens

rights.90 Prior to the Treaty of Lisbon, the Parliament had continued to express its

opposition over a long period of time to the provisions of the PNR Agreements but

ultimately its litigation and not any Treaty powers per se resulting in the PNR being

struck down.91 The Parliament sought to postpone the vote on the request for consent

on the PNR Agreements with the US and Australia until the Commission had

explored the options for the arrangements which appropriate as a matter of EU law

and met the concerns of the Parliament, ie namely a more ‘globalised approach’.92

The Parliament then employed delay also as to TFTP and finally approved the TFTP

Agreement in 2010, seeking subsequently to enhance the review mechanism of the

Agreement, overtly in the interests of citizens using its new veto powers in the Treaty

of Lisbon. Finally, in late 2011, MEPS were reportedly unsatisfied but resigned to

accepting a new EU-US PNR Agreement, signifying an about-turn or an

empowerment saturation-point,93 even if the support of the Parliament cannot be

taken for granted. Some foresee ongoing ‘pillar politics’ and legal competence

disputes in the future for political successes, despite the innovations of the Treaty of

Lisbon. 94 In fact, nevertheless, there is an overwhelming bias in favour of the

89 See the study of R. Kardasheva, ‘The Power to Delay: The European Parliament‘s Influence in the Consultation Procedure‘, 47(2) Journal of Common Market Studies (2009) p. 385. 90 See the European Parliament Press release (8 February 2010), ‘SWIFT: MEPs still concerned about data protection in interim agreement‘, <www.europarl.europa.eu/sides/getDoc.do?language=en&type=IM-PRESS&reference=20100128FCS68186> (visited 6 February 2012); See the pleas of Commissioner Malhstrom to the European Parliament not to reject the interim agreement (2 October 2010), <www.ec.europa.eu/commission_2010-2014/malmstrom/archive/speech_10_02_10_en.pdf> (visited 6 February 2012). 91 European Parliament Resolution On transfer of personal data by airlines in the case of transatlantic flights (13 March 2003); European Parliament Resolution On the draft Commission Decision noting the adequate level of protection provided for personal data contained in the passenger name rights transferred to the US Bureau of Customs and Border Protection (31 March 2004); European Parliament Resolution On the PNR Agreement with the United States of America (12 July 2007). 92 European Parliament Resolution On The Launch Of Negotiations For Passenger Name Records (PNR) Agreements With The United States, Australia And Canada (5 May 2010). 93 See n. 42. Contrast with its position 12 months previously: European Parliament Balks At US Data Deals‘, Spiegel Online International (10 July 2010) <www.spiegel.de/international/europe/0,1518,721811,00.html> (visited 9 September 2011) 94 See Cremona above, n. 59, at p. 26.

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Executive in all matters relating to security and EU-US relations latently. Increasingly,

there are limits to the ability of the Parliament to maintain democratic legitimacy in

EU-US relations. Nonetheless, the Executive-dominated and intergovernmental

discourse of security,95 the secrecy of key communications and the significance of

high politics to the overall workability of EU-US relations entails that the input of the

Parliament may ultimately be more limited than desired.

D. The Application of Justiciability Criteria

The use of the Baker v. Carr criteria at this juncture to consider the actions of

the legislative actors in a more particularised format involves a different analysis of

the criteria than that conducted in Part II here. The criteria are assessed without

reference to specific laws as a result. Thus, employing the Baker v. Carr criteria, there

are then modest textual commitments to other EU institutions, such as the Parliament

as legislator post-Lisbon, or the Commission as negotiator, which impact on the

constitutional analysis here potentially in a most significant fashion. The importance

of extra-textual politics may render the reviewability standards lower and more

deferential to Member State interests, for example. The potential for political

embarrassment remains high in the event of strong judicial review being exercised.

There are many reasons, however, for the Court to adopt a weaker Executive-centred

analysis of the institutional balance and to consider the Treaty of Lisbon changes

generally. The increased legitimacy accorded to the EU in its global governance

ambitions has resulted in EU-US legal relations that significantly and adversely

impact on citizens. The Court may be several steps removed from an entitlement to

rigorously review these developments.

A newly energised Parliament keen to play a more active role in international

agreements and in fundamental rights matters could readily engender a more

deferential form of review to its own interests and actions as the input legitimacy is

95 Whether the new institutional actor post-Lisbon, the High Representative for Foreign Affairs Baroness Ashton, is of any tangible legal or political significance to EU-US relations remains to be seen. It appears quite unlikely that actions of the High Representative will impact on the legality of EU-US agreements, such as PNR or TFTP. Her role arguably multiples the Executive interest in a legal analysis, driving the review dynamic towards deference on the part of the Court to the array of actors. See Inter-service Agreement of 13 Janaury 2012, which may impact considerably on the relationship between the Commission and the European External Action Service: ‘Commission still pulls the strings on EU Foreign Policy’ EUObserver.com www.euobserver.com/18/115145 (visited 8 February 2012).

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then higher. However, this particular institution seems to have reached ‘input

legitimacy’ capacity and may not be able to achieve reviewability by virtue of its

democratic credentials alone. It is suggested here that the new consent powers of the

European Parliament aside, there are no significant or express textual changes to the

treaties as regards EU-US relations and the institutions post-Lisbon. On the contrary,

the Commission pursues institutional values in EU-US relations now that conflict

with its role as guardian of the treaties. Employing the Baker v. Carr criteria, there is

potential then that the Court might have to review multifarious pronouncements to

ascertain the EU interest (eg conflicting Commissioners) rather than make

multifarious pronouncements along with an institutional actor, for example. Thus,

the constitutional and institutional balance leftover after all of these equations is

mathematically curious and where the Court will choose, to recalibrate the

constitutional balance, remains far from clear. The effects of the Courts earlier PNR

decision were politically disastrous for the EU, pre-Lisbon at least. Whether post-

Lisbon strong judicial review of EU-US will not harm EU interests and Citizens

interests (albeit it is not obvious that they are coextensive), remains far from clear. A

detailed consideration of the institutional dynamic of EU-US relations reveals that a

methodology or formula cannot provide anything similar to a Court decision on this

dynamic, however challenging that may be. Such a decision provides the context for

a careful application of justiciability criteria.

Next, the last of the three casestudies used here is assessed, considering the

European Banking Authority, a new agency enacted post-Lisbon with powers

potentially impacting upon and/ or generating EU-US relations.

Casestudy III: EU-US Relations and the Case of the European Banking Authority

(EBA)

A. Background to the EBA

While the precise cause of the global financial crisis may still be the subject of

reflection, the European Union in 2009 responded to the crisis principally with an

institutional agency package.96 One of the several institutions (European Supervisory

96 Establishing the European Systemic Risk Board (Regulation (EU) No. 1092/2010 of the European Parliament and of the Council of 24/11/2010) and the European Supervisory

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Authorities- ESA’s) created was a European Banking Authority (EBA), with powers

to enter agreements with Third Countries. These particular powers are the subject of

analysis here by way of consideration of a third casestudy of an EU Agency in EU-US

relations. The EBA is considered here alone from the agencies created in 2009 on the

grounds of space but also by reason of its high-profile status, its functionally singular

activity and by reason of its clear link to the banking industry in the EU and beyond,

as well as national regulators. Global financial interdependence remains a theme in

understanding the movements in markets, changing regulatory structures and in

appreciating the nuances of market and systems failures. The EU and US are far from

independent or unrelated economies of scale and instead their financial markets are

strikingly related and dependent, so-called ‘contagion.’ The EBA is thus an esoteric

agency borne of a crisis, with particularly limited powers in this field but nonetheless

it has the capacity to generate some EU-US relations in the field of financial

regulation.

The EBA is thus a new EU agency enacted in 2010, possessing legal

personality and administrative and financial autonomy and was adopted as part of

an institutional package. Structurally, the EBA is comprised of a Board of

Supervisors, a Management Board, a Chairperson, an Executive Director and a Board

of Appeal and is based in London. The tasks of the EBA include that the EBA would

contribute to the establishment of high regulatory and supervisory standards, would

apply Union law consistently, would facilitate the delegation of tasks to competent

authorities, would cooperate closely with the ESRB, would conduct peer review

analysis and to monitor and would assess market developments in its area of

competence. National bodies would retain day-to-day oversight powers but the EBA

would seek to ensure a common supervisory culture and consistent supervisory

practices, ensuring a coordinated response in crisis situations. Recently, banking

‘stress’ test results were conducted by the EBA and it is these tests for which it now

Authorities: European Banking Authority, a European Insurance and Occupational Pensions Authority and European Securities and Markets Authority. See further N. Moloney, ‘EU Financial market regulation after the global financial crisis: More Europe or More risks?‘ , 47 Common Market Law Review (2010) p. 1347.

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assumes most significance. 97 The legal basis of the EBA has been argued to be

deficient but seems unlikely to be struck down. 98

As to EU-US relations, Article 33 of the EBA Regulations provides for the

EBA to have powers to enter agreements with third countries and is couched in

caveats that seem excessive and unusual. Article 33 states that:

Without prejudice to the respective competences of the Member States and

the Union institutions, the Authority may develop contacts and enter into

administrative arrangements with supervisory authorities, international

organisations and the administrations of third countries. Those arrangements

shall not create legal obligations in respect of the Union and its Member

States nor shall they prevent Member States and their competent authorities

from concluding bilateral or multilateral arrangements with those third

countries.

Ostensibly major competence and constitutional questions flow from the

nature of the entity that would be created, which could issue decisions, for example,

as to a US member of the EBA with which it enters an ‘administrative agreement’

pursuant to Article 33 and where, thereafter, issues arise from the impact of EU rules

outside of the landmass of the EU with such a Third Country. Quite how the

administrative agreements could have no legal ramifications whatsoever remains

incomprehensible as surely some form of legal review thereof is possible. The effects

of such an Agreement as a matter of law seem to be reviewable pursuant to the

changed wording of Article 263 TFEU post-Lisbon, providing for actions of

annulment of ‘agencies of the Union intended to produce legal effects vis a vis third

parties,’ which could generate litigation on the intention to create legal ‘effects’, and

not merely the more limited category of legal ‘obligations’ as provided for in Article

33.99 The EBA may cause unforeseen and unusual challenges for EU-US transatlantic

relations given the potential for replication of tasks or any incoherence in the event of

97 See http://stress-test.eba.europa.eu/ (15 July 2011). See the criticism as to the stringency of the tests in the Financial Times (17 July 2011). The information was provided to the EBA in accordance with Art. 35 Reg. 1092/10. 98 See E. Fahey, ‘Does the Emperor have Financial Crisis Clothes? On the legal basis of the European Banking Authority‘,74(4) Modern Law Review (2011) p. 581. 99 See the discussion in M. Chamon, ‘EU Agencies between Meroni and Romano or the devil and the deep blue sea‘, 48 Common Market Law Review (2011) p. 1055, at p. 1071.

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inconsistent standards being adopted. Moreover, the relative powerless of the EBA to

react expeditiously at key moments in times of crisis or its generally inferior or lesser

status to the Commission would further weaken it as an entity. The global

interdependence required to resolve the financial crisis, specifically between the EU

and US renders the EBA an unusual but nonetheless remark-worthy institution of

EU-US relations.

B. The Justiciability Criteria Applied

Similar to the question of the legality of the EBA itself, which the present

author has suggested in precarious and unlikely to be struck down on grounds of

political expediency, any EU-US agreement enacted under the auspices of the EBA

would probably face a similar fate. The extent to which the Court wishes to review

the high politics of financial crisis regulation lends itself towards the manageability

of standards. Such global regulation would affect financial interests globally in a

huge range of jurisdictions and raise major questions of global macroeconomic policy.

Weak judicial review of such an agency as the EBA seems most likely in whatever

guise review would emerge. The form of administrative agreement resulting from

EBA powers may not necessarily operate to impinge upon private property rights

sufficient to generate litigation. To the extent that the Court could impact adversely

on financial markets, this might lead to embarrassment or unwarranted interference

in policy matters so as to preclude review. The Executive bias of the data transfer

agreements considered above is not present here or relevant at all to the same extent.

Thus the content of the EBA Regulation is remarkable, but is far from Executive-

orientated. The systemic effects of the Regulation are far more significant, as are the

consequences of judicial review. Nonetheless, it would be the impact on third

countries and third parties that would be most problematic as a matter of EU-US

legal relations. This represents a very different context for analysis. The usefulness of

the Baker v. Carr criteria in this context seems less concrete to assess also on account

of these differences. Clearly, the EBA represents a weaker incidence of EU-US legal

relations arising from an agency and the methodology advocated throughout here is

less effective as a result. Nonetheless, even in this instance, the justiciability criteria at

least form a methodological tool to distil the legal issues and allow the parameters of

an admittedly unusual agency with highly specific powers to be assessed. To the

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extent that the analysis here also indicates how legal effects of expressly non-

justiciable agencies can be usefully assessed in the context of EU-US relations, the

Baker v. Carr criteria are also advocated even in a weaker casetudy of the impact of

EU-US relations.

Part III: The Justiciability of EU-US Relations: A Means and an End

Transparency and openness of decision-making should be the hallmark of

judicial review. This must be the case irrespective of the constitutional status of the

legal order where it is taking place. The evolution of EU-US legal relations is

increasing shifting towards higher-level security objectives, arguably a feature of

contemporary post-national rule-making. EU-US relations undoubtedly represent an

area of innovation and novelty in post-national rule-making but this novelty must be

contained within rule of law methodologies or legal constraints. The rise and more

recent fall in the impact of the Parliament in the legislative process indicate the limits

of its capacity to legitimise and improve EU-US relations for the benefit of the EU

and its citizens generally. The review process as a result becomes affected more

acutely- can the Court be relied upon to rectify a lack of legitimacy? Placing excessive

faith in the Court as some form of guardian of EU interest seems inaccurate and

misplaced, both as a matter of law and politics. The means by which the Court

arrives at its decision is contended here nonetheless to be particularly significant. It is

suggested here overall, that open decision-making is fostered through a careful

distillation or methodology being employed in the review process of EU-US relations

and that this open decision-making is of much importance to EU-US relations. This

formula for decision-making becomes more crucial in the changing political and

institutional landscape of EU-US relations that cannot escape its ‘high politics’ tag.

The deployment of a doctrine as a formal methodology is necessary given the

tremendous legal changes taking effect in EU-US relations, where redress and review

are tangential or ancillary concerns of law-makers. Legal transplants, especially a

comparative methodology, are not usually cross-pollinated in the exact form of their

origins. The explicit mandate for justiciability in much EU-US relations gives the

impetus to develop a workable methodology further. The retention periods and

review procedures of the latest PNR Agreement, the unsatisfactory early reviews of

the TFTP Agreement and the extraordinary scope of the General Data Protection

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Framework Agreement constitute serious rule of law deficiencies in EU-US legal

relations that warrant a nuanced and particularised judicial review process.

The argument made here overall is that EU-US legal relations should and can

be justiciable and still accommodate the vast array of competing interests. However,

the curious interface of security and justiciability in data transfer law warrants an

explicit methodology to review the constitutional challenges presently taking effect

in EU-US relations. The polycentric characteristics of EU-US relations, concerned as

they are particularly with State security and Global cooperation, may render them

part of Global Governance law. Paradoxically, their impact on individuals is much

more direct and immediate, often in a far-reaching fashion without clear parameters

for the application of the rule of law. This paradox is problematic for justiciability.

Whether the Court of Justice will gain the possibility to judicially review the

substantive form of EU-US legal relations from the perspective of individual redress

shortly is not necessarily likely given the challenges that ordinary individuals will

face attempting to litigate EU-US relations. Moreover, EU-US legal relations, similar

to ‘big banks’ and EU financial crisis agency packages, will probably become ‘too big

to fail,’ given the importance of, for example, data transfer law to EU-US counter-

terrorism policies. It is essential, however, that EU-US relations are not considered

political questions or consumed by any immunity from review, otherwise many

violations of rights could go unnoticed. To formalise a methodology does not

automatically entail that the Court should refuse to review questions surrounding

EU-US relations or that justiciability must be denied to any form of political question

or policy emanating from high politics. EU-US data transfer law is overwhelmingly

State-centred, despite its impact on Citizens rights and may result in Member States

invoking National Security exceptions widely, ultimately to render litigation

redundant. The extraordinary legal evolutions outlined here generally warrant a

more nuanced constitutional analysis. The account here is far from complete and

represents a modest contribution towards deciphering the constitutional dialogue

that will result from these changes.

The ‘boringly familiar catalog’ derived from Baker v. Carr of a textual

commitment to another branch of government, a lack of manageable standards,

policy analysis and embarrassment cumulatively may be overly rigorous to be

applied in EU law with its more modest constitutional commitment to

constitutionalism. The crucial question remains how an explicit statement of judicial

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redress in EU-US agreements will influence justiciability on the part of the Court. An

explicit methodology needs to be adapted to weigh all appropriate concerns. A

reflective analysis of the political reality of the legal bargains struck, as well as close

scrutiny of the political actors in the process of data transfer or EU-US relations,

creates a climate of transparency and openness. The Executive dominance of EU-US

relations places a special onus upon the judiciary to formulate an explicit

methodology for review t mediate and fully weigh the interests involved. It is

suggested here that a less than rigorous form of the Baker v. Carr criteria should be

loosely deployed. Equally, a strict and rigorous review methodology would preclude

review by the Court of Justice of EU-US relations and would deprive meritorious

litigants of the possibility of review. The importance of vigilance about fundamental

rights so as to respect the rule of law is now a mandatory consideration in EU law

post-ECHR accession. Thus the pre-emptive adoption of a methodology to deal with

the unusual nature of EU-US relations is warranted given their impact on citizens.

The new institutional and constitutional balance redrawn by EU-US relations will

need much more exploration and reflection. In this space, opportunities exist to

adopt new review criteria and methodologies.

CONCLUSIONS

Far from being solely formalistic or legalistic, an analysis of justiciability may

highlight the flawed and troublesome nature of Global Governance and its

disconnection from important legal and normative concerns. This present account

does not offer all the much-needed solutions required but rather highlights the

challenges of Global Governance and the need to maintain the rule of law in this new

prism of legal relations. EU-US data transfer law in particular is now an all-

encompassing principle and acutely State-centred. Individuals qua citizens remain

subject to EU-US legal agreements now in ways in which bilateral agreements never

previously operated. Counter-terrorism measures have evolved into ‘security’

measures as ordinary political and legal norms of EU law arising from EU-US

relations, signifying the constitutional changes taking effect.

A frequent critique of the famous accounts provided by Alter of the rise of the

political power of the Court of Justice as an actor is that the account did not

sufficiently take heed of the organisational, procedural, substantive and normative

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elements of law. 100 Perhaps the challenge of EU-US relations remains that the

political power of the Court may be quite significant and may remedy power

imbalances and deficits affecting citizens, key challenges and deficiencies of global

governance law. The rule of law requires a response from the Court to challenges to

the legality of EU-US relations then which is procedural, substantive and normative.

A failure to explicitly engage in a constitutional methodology with the profound

challenges posed by EU-US relations beyond the realm of ordinary External

Relations law might result in the Court abdicating its responsibilities. The unique

nature of the legal relations resulting from EU-US relations cannot be used to evade

review, to avoid constitutional questions or to deprive citizens of meaningful review

mechanisms. A ‘European’ variant of the political question doctrine may offer both a

viable and justifiable methodology to review the array of competing interests in the

EU-US legal relations as they arise.

100 K. Alter The European Court‘s Political Power (Oxford University Press 2009) and Establishing the Supremacy of European Law (Oxford University Press 2001), reviewed by K. Armstong, ‘Legal Integration: Theorizing the Legal Dimension of European Integration‘,36 Journal of Common Market Studies (1998) p.155; M.P. Granger, ‘The European Court‘s Political Power: Selected Essays by Karen Alter‘, 73(4) Modern Law Review (2010) p. 693.