Edited by Hans-W. Micklitz and Takis Tridimas
Chapter 4: Risk in three dimensions: the EU–US agreement on the processing and transfer of financial messaging data
In this chapter we identify three different types of risk, and thus three different dimensions to the relationship between risk and the law, in the context of EU external relations: (i) legal risk, or the risks caused by legal uncertainty arising from different regulatory approaches to data protection, and the corresponding difficulty of reaching agreement and/or defending EU regulatory preferences; (ii) constitutional or political risk, or the risks inherent in attempting effective policy- and law-making in a complex institutional structure such as the EU, especially at a time of constitutional change; and (iii) the need to balance factual or real world risks – such as security risks – in the light of the EU’s potentially conflicting policy priorities and constitutional norms. We will here explore these types of risk using as a case study the negotiation, renegotiation and eventual conclusion of the EU–US agreement on the transfer of financial messaging data (the SWIFT or TFTP agreement) and its impact on EU internal regulatory policy. As well as the interplay between these different types of risk, we can also identify two further dynamics. The first is the interaction between internal and external policies and procedures: internal constitutional guarantees; internal security impacting on cooperation with third countries; internal regulatory regimes and their applicability to transnational commercial activity; the negotiation of external instruments and internal decision-making procedures. This dynamic adds another level of complexity to the relationship between risk and (constitutional) law in an external relations context.
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