City Research Online

Abstract

This paper articulates the relationship between institutionalisation and judicialisation in a core area of EU global action - transatlantic data transfer and protection in the Privacy Shield. In the case of an emerging legal regime, like the EU-US regime of data transfer, only a strong process of institutionalisation can lead to “positive” judicialisation – enhancing the regime by guaranteeing its proper implementation – while a weak process of institutionalisation has the potential to challenge the new legal regime, though conflicts of law and jurisdictions, and thus lead to “negative” judicialisation. The institutionalisation of the Privacy Shield has been created through (negative) judicialisation initially of the Safe Harbour Agreement. We argue overall that the Safe Harbour can be seen as a weak institutionalisation giving rise to negative judicialisation (invalidation) and leading to the Privacy Shield. Institutionalisation has not put an end to judicialisation, quite the contrary: the Privacy Shield was even more subjected to legal attacks, indirectly but also directly through annulment procedures. The Privacy Shield was consistently threatened by invalidation at the CJEU, while institutionalisation was weak. Therefore, it was unlikely that a weak institutionalisation of the EU-US framework could prevent negative judicialisation.

Publication Type:	Article
Additional Information:	This article is published as, Fahey, E. & Terpan, F. (2021). Torn between institutionalisation and judicialisation: the demise of the EU-US privacy shield. Indiana Journal of Global Legal Studies, 28(2), pp. 205-244. No part of it may be reproduced, stored in a retrieval system, transmitted, or distributed in any form, by ant means, electronic, mechanical, photographic, or otherwise, without the prior permission of Indiana University Press. For educational reuse, please contact the Copyright Clearance Center http://www.copright.com. For all other permissions, contact IU Press at http://iupress.indiana.edi/rights/
Subjects:	J Political Science > JK Political institutions (United States) J Political Science > JN Political institutions (Europe) J Political Science > JZ International relations K Law
Departments:	The City Law School > Academic Programmes The City Law School > Institute for the Study of European Laws The City Law School > International Law and Affairs Group

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