Keith Mack
The European Union (EU) and the United States (US) have different approaches to law and policy-making. The EU's policies are typically decided through the ordinary legislative procedure, which involves the three main institutions agreeing on legislation. On the other hand, the US has a more fragmented approach, with various regulations governing different sectors and types of data. While the EU has comprehensive data privacy laws like the General Data Protection Regulation (GDPR), the US data privacy landscape is governed by a mix of federal laws like the Health Insurance Portability and Accountability Act (HIPAA) and state laws like the California Consumer Privacy Act (CCPA). The EU also has international agreements with non-EU countries or organisations, which are legally binding. These agreements are made in areas where the EU and its member states share competence or where the EU can act alone. The US, as a non-EU country, has its own set of laws and agreements that may differ from those of the EU.
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What You'll Learn
EU-US data privacy laws
The European Union (EU) has implemented the General Data Protection Regulation (GDPR) as its data privacy and security law. The GDPR is a comprehensive privacy legislation that applies across sectors and to companies of all sizes, regardless of location, as long as they target or collect data related to people in the EU. It imposes harsh fines, reaching tens of millions of euros, on organisations that fail to comply with its privacy and security standards.
The GDPR was established to address the need for modern data protection as technology advanced. It replaced the Data Protection Directive of 1995, which had set minimum data privacy and security standards for member states to base their laws on. The GDPR entered into force in 2016 and became effective on May 25, 2018, with all organisations being required to comply by this date.
The regulation provides for the free flow of personal data within the EU and its protection when transferred outside the region's borders. It sets out obligations for data controllers and processors and grants rights to data subjects (individuals whose data is being collected). Data controllers are responsible for deciding what personal data is collected and how and why it is processed, while data processors act on behalf of the controller. Data subjects are granted several privacy rights, including rights related to automated decision-making and profiling, giving them more control over the data they provide to organisations.
To ensure compliance with the GDPR, organisations must implement various measures, including technical solutions such as two-factor authentication for accounts with personal data and cloud providers with end-to-end encryption. Additionally, organisational measures such as staff training, implementing a data privacy policy, and limiting access to personal data to only essential employees are crucial. In the event of a data breach, organisations have 72 hours to notify data subjects; failure to do so can result in penalties.
The EU-US Privacy Shield Framework was also designed by the US Department of Commerce and the European Commission to facilitate compliance with EU data protection requirements when transferring personal data from the EU to the US for commercial transactions. This framework provides a mechanism for companies on both sides of the Atlantic to navigate the complex legal environment of data transfers between the two regions.
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Mutual recognition of qualifications
The recognition of qualifications between the US and EU is a complex issue. Before Brexit, UK citizens could benefit from the automatic recognition of qualifications across the EU, which facilitated learning mobility and provided access to a wider range of educational and career opportunities. This was a result of the UK's membership in the European Economic Area (EEA), which established a legal framework for the recognition of qualifications.
However, with Brexit, the mutual recognition of qualifications between the UK and the EU is no longer automatic. This change has impacted the opportunities available to individuals seeking to study or work in the EU, as qualifications obtained in the UK may not be automatically recognised by other EU countries.
In contrast, the EU has made significant progress towards establishing a European Education Area by 2025, with the goal of improving procedures for the mutual recognition of qualifications among its member states. This initiative aims to facilitate the mobility of learners and professionals across the EU, allowing, for example, a student with a Bachelor's diploma from one member state to pursue a Master's programme in another member state.
To support this initiative, the EU has proposed several tools and frameworks, including Europass, the European Qualifications Framework, the European Credit Transfer and Accumulation System (ECTS), and the European professional card. These tools aim to enhance the transparency and efficiency of qualification recognition processes, making it easier for individuals to pursue educational and career opportunities across the EU.
While there may be efforts to improve mutual recognition of qualifications between the US and the EU, it is important to note that the decision-making process within the EU involves the agreement of its member states and institutions. The EU's ordinary legislative procedure requires the Parliament and Council to agree on a joint text for a proposal to become law, and it involves impact assessments, public consultations, and input from various stakeholders. Therefore, achieving mutual recognition of qualifications between the US and EU would require alignment with the EU's policies and procedures, which are designed to benefit its member states and their citizens.
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Consular protection
Under EU law, citizens of one member state could request help from the embassy or consulate of any other member state if their own country did not have a diplomatic presence in that country. This is known as the right to equal treatment and is one of the fundamental rights of EU citizens. This right was beneficial to the growing number of European citizens travelling and living abroad, ensuring that all EU citizens in distress receive assistance under the same conditions.
In 2015, the EU Council adopted new rules on consular protection for unrepresented EU citizens outside the EU, which came into effect in 2018. These rules clarified when and how EU citizens could access assistance from other member states' embassies or consulates and improved cooperation between consular authorities.
The EU and its member states can also carry out joint consular démarches if EU citizens' rights are continuously violated or if they face difficult circumstances abroad, such as poor prison conditions. This includes discussions with third-country authorities to improve the situation of EU citizens. Consular staff of member states can meet with the EU delegation to prepare for crisis situations and draw up joint contingency plans.
With the UK's exit from the EU, UK citizens no longer benefit from this consular protection when travelling or living in countries without a UK embassy. This is one of the consequences of Brexit that both pro-EU supporters and Brexiters can agree is detrimental to UK citizens.
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EU policy-making process
EU policy-making is a complex process that involves multiple institutions and stakeholders. The European Union employs various legislative procedures to make decisions, with the ordinary legislative procedure being the default. This procedure, formerly known as the 'co-decision' procedure, involves the three main institutions—the Commission, the Parliament, and the Council—coming to an agreement on legislation.
Before proposing new initiatives, the Commission assesses their potential impact by preparing an 'impact assessment' report that considers economic, social, and environmental factors. This report includes input from non-governmental organisations, industry experts, national authorities, and technical advisory groups. The Commission also seeks feedback from individuals, businesses, and organisations through public consultations on its 'Have Your Say' portal. National parliaments can express their preference for dealing with an issue at the national or EU level.
Once the Commission proposes an initiative, the Parliament and the Council work together to pass laws jointly through the ordinary legislative procedure. This procedure allows both institutions to amend the proposal before agreeing on a joint text, which is then adopted into law and published in the EU's Official Journal. The European Treaties that guide these procedures can be amended using three different, rarely used, but important procedures.
In addition to the ordinary legislative procedure, the EU employs special legislative procedures for specific policy areas or sensitive issues. One such procedure is the consultation procedure, used when member states bear responsibility for policymaking and must make unanimous decisions. Another is the open method of coordination (OMC), applied when member states wish to coordinate their policies on a particular subject but retain full control. Decisions based on the OMC are non-binding, and member states are not held accountable for their implementation.
The EU also recognises the European citizen's initiative, which allows one million individuals residing in a quarter of member countries to invite the Commission to propose legislation. This initiative provides a tool for European citizens to actively shape European policy.
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International agreements
'Mixed' agreements are concluded jointly by the Member States and the European Union (or former European Communities) in areas where they share competence. On the other hand, 'EU exclusive competence' agreements are bilateral or multilateral agreements concluded by the European Union or former European Communities with non-EU entities in areas where the EU can act independently.
The process of adopting EU policies typically follows the ordinary legislative procedure, where the three main institutions—the Parliament, the Council, and the Commission—work together to reach an agreement. The Commission plays a pivotal role in proposing new initiatives, assessing their potential impact, and ensuring compliance with EU laws among member states.
The European Union's international agreements extend beyond mere economic considerations and encompass a range of issues. They may be concluded to align with the objectives outlined in the Treaties, to comply with legally binding EU acts, or to address matters that could impact common rules.
The enforcement of EU law is a key responsibility of the Commission, which works closely with member countries to prevent and address breaches. The authorities in each EU country are also essential in ensuring the timely and correct implementation of EU law, protecting the rights of individuals and businesses.
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