Risk in three dimensions : the EU-US SWIFT Agreement on the processing and transfer of financial messaging data
Title: Risk in three dimensions : the EU-US SWIFT Agreement on the processing and transfer of financial messaging data
Author: CREMONA, Marise
Citation: Hans-Wolfgang MICKLITZ and Takis TRIDIMAS (eds), Risk and EU law, Cheltenham : Edward Elgar, 2015, pp. 69-94
In this chapter I 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; (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. I 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. The second is the interplay between different interests: between different regulatory approaches (in this case in the US and the EU); between different (EU) institutional actors in the context of international action against terrorism where the EU needs to be seen as an effective actor and partner of the US; between public security, the needs of private commercial undertakings, and the interests of the individual in the requirements of data protection and privacy. It is arguable that one feature of the legal regulation of risk is this balancing of different interests with different perspectives on the balance of risk.
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