August 24, 2015

Kim Lane Scheppele in Politico: "The Hungary Games: How Budapest evades its migrants obligations"

Network member Kim Lane Scheppele (Princeton) has a alerted us to a new piece she has up on Politico (Europe), entitled "The Hungary Games: How Budapest evades its migrants obligations."  The first two paragraphs are below and the remainder can be read here.

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The Hungarian government is building a fence on the border with Serbia to keep out the ever-increasing flow of refugees to Europe. But just look at a map. Serbia represents a tiny slice of Hungary’s meandering southern border. If desperate asylum-seekers have traveled thousands of miles to get to Europe, a fence that runs for a little more than 100 miles won’t stop them. Why is Hungary building a small fence on a long border?

The fence will divert migrants toward Croatia or Romania on their way to final destinations in the wealthier parts of Europe. And that is precisely the point. [continue reading here]

August 14, 2015

Bilyana Petkova, "Data Protection in the US and the EU: the Case for Federal Solutions"

Bilyana Petkova (Yale-NYU, soon to be Max Weber Fellow at EUI) has forwarded the contribution below, cross-posted from Verfassungsblogwhich builds on her article recently posted on SSRN entitled "The Safeguards of Privacy Federalism."  An earlier version of this paper won a Young Scholars Award at the 8th Annual Privacy Law Scholars Conference at Berkeley in June 2015.

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Which level is better placed to provide efficient data protection – the federal or the state level? This question is topical both in the United States and in the European Union. In the US, there are concerns regarding the increased fragmentation of American data privacy law and the lack of relevant federal consolidation. In the EU, the proposed General Data Protection Regulation (GDPR) supposed to replace the Directive of 1995 was met with opposition regarding the “over-centralization of powers” in the European institutions.

Where do we stand with data protection in the EU and in the US now? We are five years in after the EU Commission first announced its initiative to work toward updating the framework European data protection law, and over 207 amendments to the Commission’s proposal later (introduced only in the version of the European Parliament; if we add the ones tabled by the different Presidencies of the Council, the count would reach several thousands). In an unprecedented move, at the end of July the European Data Protection Supervisor issued his own amended version of the Regulation ahead of the upcoming institutional trialogue…

In the meantime, the US has been drifting further away from a comprehensive statutory scheme after a federal proposal for a Consumer Bill of Rights failed to muster agreement twice, first in 2012 and then in 2015. Current attempts to regulatestudent privacy and to consolidate state data breach notification laws on the federal level remain uncertain.

In short, the GDPR and US federal initiatives are seemingly not winning hearts and minds. But they should have at least provoked your curiosity by now. Here is how federal or EU regulation has the potential of bringing a level of legal certainty beneficial to individuals and businesses alike:

The Evils of Centralizing Data Protection: Myth or Reality?

Myth 1: The procedure for enacting US federal or European law is slow and burdensome. Hence, the main fear of centralizing data protection law is that it would bring regulatory ossification that stymies innovation.

Myth 2: Industry lobbies mobilize better on the federal or the EU level. They push Congress or the EU institutions toward the establishment of weak centralized legislation vis-à-vis private sector regulation. The phenomenon, dubbed “defensive preemption”, has been described regarding policy developments in the US environmental field back in the 1980s. Strong lobbies tried to preempt environmental-friendly US state laws by institutionalizing a low bar of federal protection.

The conventional wisdom is not entirely wrong. But it is simplified and too often incomplete. Precisely because of the checks and balances that slow down US federal or EU lawmaking, state regulation is a necessary backstop for data protection law. The state legislatures can react promptly to what are perceived by their constituents as digital threats. Some of the state laws will provide imperfect protection and will possibly be too inflexible. Federal or EU law oversight can evaluate and fix such regulatory failures.

In turn, centralized oversight does not need to translate into weakening of the privacy protections. Federal or EU law can introduce mechanisms that allow the law to respond to ongoing challenges. For example, the GDPR establishes a one-stop-shop mechanism that aims to avoid forum shopping. According to the one-stop shop principle, only one national Data Protection Authority (DPA) is responsible for taking legally binding decisions against a company (the responsible DPA is determined by the company’s main establishment in the EU). However, some were concerned that businesses would locate their main establishment in countries with a less onerous enforcement approach. Despite question marks about the practical implementation of this principle, the GDPR introduces a requirement for co-operation between the national DPAs that significantly minimizes the risk of a “race to the bottom”.

One way to avoid ossification is therefore by relying on state standards and institutions to act as catalysts. An often-quoted example is the first Californian law on breach notifications, now adopted under one form or another in 47 of the US states. A similar case is the French idea of a “droit à l’oubli” that now forms part of the case law of the European Court of Justice and is a feature of the GDPR. If the federal government or the EU legislator refrain from preempting state law for a period of time, at least some of the higher standards of consumer or fundamental rights protection introduced in at least some of the states are likely to be voluntarily taken up by other states but also by the industry. Privacy federalism can offer protections in the long run.

The Network on SSRN: Richard Peltz-Steele on "Differences in the U.S.-EU Data Protection/Safe Harbor Negotiation"

Network member Richard Peltz-Steele (UMass-Dartmouth) has posted a new piece on SSRN, entitled "The Pond Betwixt: Differences in the U.S.-EU Data Protection/Safe Harbor Negotiation," which recently appeared in the Journal of Internet Law.  The abstract is below and the full article can be found here.

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This article analyzes the differing perspectives that animate US and EU conceptions of privacy in the context of data protection. It begins by briefly reviewing the two continental approaches to data protection and then explains how the two approaches arise in a context of disparate cultural traditions with respect to the role of law in society. In light of those disparities, Underpinning contemporary data protection regulation is the normative value that both US and EU societies place on personal privacy. Both cultures attribute modern privacy to the famous Warren-Brandeis article in 1890, outlining a "right to be let alone." But decades passed before the impact of the article was felt. Both privacy and data protection are today part of the fundamental rights system of Europe, a component of the amalgamated constitution of the European Union. Both are part of the legislative and regulatory state at the national and federal level.

August 13, 2015

Book Review: Elke Cloots, National Identity in EU Law (Oxford 2015) (Pietro Faraguna, NYU & Trieste)

We are pleased to share this review of Elke Cloots' book National Identity in EU Law, published earlier this year by Oxford University Press, from network member Pietro Faraguna (NYU & Trieste).

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In an era in which the dominant narrative is that of an increasingly interconnected world, Europe seems to be in the grip of a strong counter-narrative, with a call for nations and nationalism growing steadily over the last twenty-five years. After the fall of the Berlin Wall, Europe’s borders were redrawn along increasingly ethnic lines, with the collapse of the last multinational States within the core of Europe (Czech and Slovak Republics), at its borders (Yugoslavia) or beyond (USSR). A massive amount of literature in historical, political and sociological science has focused on this phenomenon in recent years, but it has been relatively neglected in legal scholarship. In European Union (EU) scholarship in particular, many authors have preferred to focus on the challenges of a post-national order, including the implications of the Member States’ surrender of sovereignty and the gradual erosion of distinctively national claims. Elke Cloots’ book on “National Identity in EU law” aims to fill this gap in the EU law literature.

July 29, 2015

New member blog (Hennette Vauchez & Vauchez): "Do You Law?" on Libération

New network members Stéphanie Hennette Vauchez (Paris-Nanterre) and Antoine Vauchez (CNRS/Paris 1) have a new blog on law on the French daily Libération that readers should check out.  Entitled Do You Law? Politque, Justice, Libertés, the blog explores "cette vie sociale et politique qui gît dans le droit."

In addition, we also wanted to alert readers that Antoine Vauchez was recently interviewed in Libé regarding the Eurozone crisis.  That interview -- «La BCE, la Commission et la Cour de justice doivent s’ouvrir au débat public» -- can be found here.

July 26, 2015

Piet Eeckhout on The Greek Crisis (and New EU Blog)

New network member Piet Eeckhout (UCL), who will be a Senior Emile Noël Fellow at the Jean Monnet Center at NYU in the fall, has asked us to announce his new blog on EU matters: London-Brussels One Way or Return.  His most recent post is entitled The Greek Crisis and the Dysfunctional European Political Space, which is cross-posted below.  In the post, Piet argues that in the debates surrounding the Greek crisis we may be witnessing the creation of a truly European political space, and that this development underscores the importance -- and the controversial nature -- of EU institutional reform.  The blog is available here.

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It has been sad to see the Greek crisis gathering pace, culminating in a Eurozone summit which, on condition of deep and intrusive reforms, allows Greece to remain in the Eurozone, and offers the perspective of another bailout.  But no one is under any illusions that the crisis is resolved.  It is clear that European integration has reached a very low point, judging by the acrimonious debates at all levels: official, media, and social media.

This post does not comment on substance but on process.  If there is a silver lining to the crisis it is, in my view, the birth of a European political space.  The long-living mantra that the EU suffers from a democratic deficit is well known.  It is coupled with a profound scepsis about the potential for ever narrowing, let alone removing, that deficit: there is no European demos, only demoi.  Democracy continues to be embedded in the nation-State, a conception most extensively articulated by the Bundesverfassungsgericht (German Constitutional Court) in its Maastricht and Lisbon judgments.  To put it in less elevated terms: all politics are local.  The EU’s main top-down attempt at instituting democracy at the EU level is tentative and has not worked well: the directly elected European Parliament is not a full sovereign parliament and its elections do not manage to transcend the local nature of State politics.  The democracy sceptics consider that all this is evidence that there can be no real EU-wide political space. Notwithstanding decades of – one would almost forget – largely successful European integration, we all continue to live in countries which are too diverse to enable us all to engage in genuine European political debate.  There is no European political space.

Or is there?  For anyone who has followed the Greek crisis (and has not nearly everyone, to some degree?) it is difficult to deny that we have seen and are seeing a genuine European debate.  It is a moral debate, about who is right and who is wrong; it is an economic debate, about the merits and flaws of the euro-project and of austerity policies; it is a social debate, about protection of people and solidarity; and it is a hard-core politics debate, on left and right, and on power structures.  That is not to say that there is no national dimension to the debate.  Views are clearly very different between creditor States and bail-out States, or, to simplify, between North and South.  Indeed, the debate is way too nationalist in many ways. But a European debate it nonetheless is.

Rob Howse on The Greek Debt Deal

Friend of the network Rob Howse (NYU) has posted a provocative piece on the Greek crisis at the International Economic Law and Policy Blog and Verfassungsblog.  Entitled The Deal on Greek Debt: Political Gamechanger for Europe, Tactical Retreat (not Surrender) by Tsipras, the post argues that the course of action pursued by the Greek government has -- contrary to much of the press coverage -- been a strikingly successful tactical response to an "almost impossible" situation.  An excerpt from the post is below; the full version is available here or here.

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The conventional wisdom, delivered before anyone could really ponder the fine print of the Greek debt deal, is that Tsipras surrendered to the creditors in a humiliating defeat.  His referendum and prior tenacity in negotiations proved futile,according to the predominant account that has emerged in the media and the twitter and blog worlds.

Wrong on all counts.  And here's why.

It is well-understood that Greece's debt is un-repayable under any plausible economic scenario.  But this is the reality that many European politicians cannot admit candidly in public, above all, Germany's politicians.  With the imminent expiry of the last bailout program, Greece was faced with the predicament that, on the one hand, without more assistance, its banking system would collapse, yet a further bailout would do nothing meaningful to address the sustainability of its debt burden. At the same time, to distract their voters/taxpayers from the reality of the un-repayability of the debt the politicians, again above all Germany's, had to punish Greece, blaming its bad behavior for the crisis and imposing ever more onerous if irrational conditions.  For the German political leaders, the calculation was that the people's satisfaction from seeing Greece punished and humiliated would be an effective Ersatz for the satisfaction of being repaid. (I will make no comment as to whether the politicians here rightly gauged the national character).  Varoufakis and his colleagues were correct to see that at some point for the Germans, this exercise would only remain politically effective if Greece were given the ultimate punishment-removal from Europe.  For Schaueble, the German Finance Minister, nothing was more appealing than the cleansing or purifying Europe of  Greeks.  The Greek Government knew that, once there was no longer a European community of fate fully including Greece,a profound geopolitical reorientation would be needed for Greece's economic and social survival.

Given Germany's leadership position in Europe, and effective veto on any positive solution, the Tsipras Government was faced with an almost impossible situation as the second bailout drew to a close.  The only at all hopeful strategy  was to try to change the longer term political dynamics so that debt unsustainability could finally be faced and directly addressed, and German influence somehow marginalized-but how to do so without courting short-term disaster?

The post continues here and here.

July 20, 2015

Job Opportunity: Tilburg Law School Hiring Two Tenure-Track Assistant Professors

Network member Anne Meuwese (Tilburg) has asked us to pass on an announcement regarding two academic vacancies at Tilburg Law School.  The announcement is below, and further details can be obtained from Anne or here.

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The Department of Public Law, Jurisprudence and Legal History at Tilburg Law School has vacancies for two assistant professors, one in the field of History of International Law and another in the fields of General Jurisprudence/Constitutional Law.

Further information can be obtained here.  The application deadline is September 13, 2015, and the first round of interviews will be held in late September. Envisaged starting date January 1, 2016, but negotiable.

July 19, 2015

OMT Forum: Whatever It Takes -- But Not Too Much (Pietro Faraguna, NYU & Trieste)

In this post, new network member Pietro Faraguna (NYU & Trieste) offers a perspective on the interplay between the concepts of limits and limitlessness in the recent OMT decision.

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The Outright Monetary Transactions (OMT) program of the European Central Bank (ECB) is compatible with EU law.  Also sprach the Court of Justice (ECJ).

The outcome of the ECJ decision in the Gauweiler case comes as no surprise. It is probably the most cautious option that the ECJ could have chosen: the ECB’s authority is safe at the European level and at the same time the Federal Constitutional Court of Germany (BVerfG) has been offered many reasons to be able to sell the ECJ’s decision as a half—if not full—German victory. Concisely, the decision is a masterpiece of judicial diplomacy!

But let’s take a step back in the OMT saga. The OMT program had been announced by the Governing Council of the ECB in the framework of the financially hot summer in 2012, when the permanence of the euro had been questioned by the markets. The ECB’s response to that financial turmoil had been its well-known “whatever it takes” doctrine. “Within our mandate, the ECB is ready to do whatever it takes to preserve the euro. And believe me, it will be enough” said the ECB’s President, Mario Draghi, on July 26 2012 (reported here). The announcement of OMT was a piece of this whatever-mosaic. “Whatever it takes,” even though “within our mandate,” plainly signaled a no-limits approach from the ECB. And the limitlessness of the ECB intervention was one of the biggest matters of concern in the “German view”. A no-limits approach raised the prospect of unpredictable losses and unpredictable consequences for the Member States’ budgets.

Now let’s take now one step forward to the decision of the ECJ. What is left of the limitlessness of Draghi’s doctrine? Not so much.

July 17, 2015

The Greek Crisis: Commentary by Nicolaïdis, Kelemen, Müller, and Ackerman

As the fast-moving Greek crisis moves into a new phase, we wanted to alert readers that several network members have been active commentators on the crisis to date.  On the eve of the referendum, Kalypso Nicolaïdis (Oxford), together with Othon Anastasakis, posted "YES, for our dignity" on the Britain & Europe website. In Foreign Affairs, Dan Kelemen (Rutgers) published "Allegory of the Caving: A New Deal for Greece?"  Also in Foreign AffairsJan-Werner Müller (Princeton) published "The Merkel Method: Germany and the Greek Crisis".  Additionally, friend of the network Bruce Ackerman (Yale), published "Germany's Failure of Vision" in the New York Times.  Please let us know of other items so we can bring them to the attention of Europaeus readers.