Transgovernmental Networks vs. Democracy: The Case of the European Information Privacy Network

Abstract

The perspective offered by this Article is twofold. The emergence of transgovernmental networks gives rise to two questions, one causal and the other normative. First, how do we explain transnational cooperation through networks? Why do governments and regulators choose to establish networks rather than retain virtually limitless discretion over policymaking, conditioned only by international legal obligations? Based on the author’s examination of the records of the intergovernmental negotiations on the Data Protection Directive, this Article concludes that one precondition for fettering national discretion through networks is common preferences among governments on the substance of the policy to be administered. Compared to other areas of European law, the Data Protection Directive gives surprisingly few powers to the European network of privacy regulators; the bargaining history shows that this decision was driven by extreme disagreement on the importance of privacy. While networks can generate harmonization of national policies, consensus among the participating regulators on the "problem" to be addressed by such policies is necessary for networks to spring to life. To explain that consensus we must look elsewhere, to the market, technology, the international aid that the North can promise the South, epistemic communities, and other causes of convergence.

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