On the Use of Law in Transatlantic Relations: Legal Dialogues between the EU and US

• DOI: http://doi.org/10.1111/eulj.12046
• Published date: 01 May 2014
• Date: 01 May 2014
• Author: Elaine Fahey

On the Use of Law in Transatlantic

Relations: Legal Dialogues between the

EU and US

Elaine Fahey*

Abstract: Law plays a signif‌icant role in contemporary transatlantic relations outside of

the bilateral context which, from the perspective of EU external relations law, might

seem neither conventional nor apparent. Non-bilateral transatlantic relations increas-

ingly deploy law as a communication tool between the two legal orders. For example, in

2011, the US intervened informally and anonymously in the formulation of EU legisla-

tion, while the US House of Representatives passed legislation to prohibit the impact of

EU law upon the US legal order. Another example is constituted by EU amicus curiae

submissions before the US Supreme Court in death penalty cases. The so-called Brussels

effect is also the subject of recent scholarship, assessing the perceived spillover effect of

EU regulatory standards onto US rules. The paper provides many vivid examples of the

variable institutional and legal components of transatlantic relations not usually

accounted for in scholarship on transatlantic relations.

I Introduction

There is a perceived excess of ‘lower case EU constitutional law’ in EU external

relations law.1However, this excess does not extend to transatlantic relations between

the EU and the US.2Bilateral transatlantic relations are typically depicted as ‘insti-

tutionally light,’3given that they operate through high-level working groups, task

* Postdoctoral Researcher, Amsterdam Centre for European Law and Governance (ACELG), University

of Amsterdam, The Netherlands. Email: E.L.Fahey@uva.nl

1Emphasis supplied. 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 Fundamen-

tals (Hart Publishing, 2008), at 11.

2Transatlantic relations are intended here to denote relations between the EU and the US, and not those,

for example, with Canada or Latin America.

3Pollack, for example, assesses ten years of the policy programme of transatlantic relations, the New

Transatlantic Agenda (NTA) from 1995, to contain substantive ambition and legal-institutional

modesty: M. Pollack, ‘The New Transatlantic Agenda at Ten: Ref‌lections in an Experiment in Interna-

tional Governance’, (2005) 43 Journal of Common Market Studies 899. Similarly, J. Peterson et al.,

Review of the Framework for Relations between the European Union and the United States: An Independent

Study (Commissioned by European Commission Director General External Relations Unit C1 Relations

with the United States and Canada, 2005).

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European Law Journal, Vol. 20, No. 3, May 2014, pp. 368–384.

© 2013 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

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forces or policy fora and networks of private actors.4The sources of bilateral EU–US

relations lie in bilateral regulatory cooperation agreements, as well as protocols,

exchanges of letters, thus in both binding and non-binding rules. The most signif‌icant

transatlantic policy collaboration thus far, the New Transatlantic Agenda (NTA),

agreed in 1995, is not itself a formal treaty.5The use of law in bilateral transatlantic

relations is usually captured in scholarship as an instrument for regulatory coopera-

tion and policy diffusion.6Thus, law is rarely an ‘end’ in this domain, more so a

‘means.’ Nonetheless, law plays a signif‌icant role in contemporary transatlantic rela-

tions outside of the bilateral context which, from the perspective of EU external

relations law, might seem neither conventional nor apparent.7In fact, non-bilateral

transatlantic relations increasingly deploy law as a communication tool between the

two legal orders. For example, in 2011, the US intervened informally and anony-

mously in the formulation of EU legislation,8while the US House of Representatives

passed legislation to prohibit the impact of EU law upon the US legal order.9Another

example is constituted by EU amicus curiae submissions before the US Supreme

Court in, for example, death penalty cases.10 The so-called Brussels effect is also the

subject of recent scholarship, assessing the perceived spillover effect of EU regulatory

standards onto US rules, in areas ranging from genetically modif‌ied foods, data

privacy standards, anti-trust rules to chemical safety rules.11 Similarly, the extent to

which EU legal rules are actually transplanted into US law is increasing—for

4See generally M. Pollack and G. Shaffer (eds), Transatlantic Governance in the Global Economy

(Rowman & Littlef‌ield, 2001).

5Signed in Madrid on 3 December 1995.

6eg M. Pollack and G. Shaffer, When Cooperation Fails: The International Law and Politics of Genetically

Modif‌ied Foods (Oxford University Press, 2009); D. Bach and A. Newman, ‘Self-Regulatory Trajectories

in the Shadow of Public Power: Resolving Digital Dilemmas in Europe and the United States’, (2004) 17

Governance 387; D. Bach and A. Newman, ‘The European Regulatory State and Global Public Policy:

Micro-institutions, Macro-inf‌luence’, (2007) 14 Journal of European Public Policy 827; J. Scott, ‘From

Brussels with Love: The Transatlantic Travels of European Law and the Chemistry of Regulatory

Attraction’, (2009) 57 American Journal of Comparative Law 897. Less so, but not strictly speaking in a

similar context, N. Krisch, ‘Pluralism in Post-national Risk Regulation: The Dispute over GMOs and

Trade’, (2010) 1 Transnational Legal Theory 1.

7‘Contemporary’ here denotes recent developments taking place approximately in the last decade, sub-

sequent to the NTA.

8‘Informal note on Draft EU General Data Protection Regulation’ (December 2011), available at http://

edri.org/f‌iles/12_2011_DPR_USlobby.pdf:

‘This informal note comments on certain aspects of the widely leaked draft proposal to modernise

the European Union’s data protection legal framework, and in particular the draft General Data

Protection Regulation (the ‘draft regulation’). It does not necessarily represent the views of the US

Federal Trade Commission (FTC) any bureau of off‌ice, or any other US government agency . . .’

See ‘US Lobbying waters down EU data protection reform’, EurActiv (21 February 2012), publishing a

US document entitled, ‘Informal Comment on the draft General Data Protection Regulation and draft

Directive on data protection in law enforcement investigations.’

9European Union Emissions Trading Scheme Prohibition Act of 2011 (HR 2594).

10 eg Atkins v Virginia 536 US 304 (2002); Roper v Simmons 2004 WL 1619203 (US). See M. Cremona,

‘Values in EU Foreign Policy’, in M. Evans and P. Koutrakos (eds), Beyond the Established Legal Orders

Policy Interconnections between the EU and the Rest of the World (Hart Publishing, 2011), at 275. More

recently, see Kiobel v Royal Dutch Petroleum et al. pending before the US Supreme Court (No. 10-1491),

where the European Commission made submissions in proceedings concerning the application of the

Alien Tort Statute 28 USC §§1350 to European companies for human rights abuses in Nigeria.

11 A. Bradford, ‘The Brussels Effect’, (2012–2013) 107 Northwestern University Law Review 1.

May 2014 Transatlantic Dialogues

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