International regulatory policy and democratic accountability : the EU and the ACTA

Abstract

This paper offers a short and inevitably limited comment on the difficult question of the legitimacy and accountability of international law-making by examining the debate surrounding the negotiation by the EU of the Anti-Counterfeiting Trade Agreement (ACTA), and in particular the role played by the European Parliament, one of the legislators in the EU’s multilevel system. In assessing the EU’s ability to fulfil its mandate to promote multilateral cooperation and good global governance, the literature has generally and understandably focused on the EU’s capacity to influence international norm-setting vis-à-vis the other major international players, its effectiveness as an international actor compared to other powers, and the impact of policy (in)coherence resulting from policy differences between Member States. But the success of EU external regulatory policy depends not only on its ability to influence the outcome of international negotiations, but also on the reaction to those outcomes of its own domestic constituencies, and in particular the European Parliament. Some of the issues raised here are structurally embedded in the EU’s external decision-making processes (the operation of the Parliamentary consent procedure); some offer an example of the challenges faced by the EU as an international negotiator balancing Union interest and internal constitutional dynamics; and some reflect the broader concern over the legitimacy of regulating through international treaty-making.