A Comparative Overview of EU and US Legislative and Regulatory Systems: Implications for Domestic Governance & the Transatlantic Trade and Investment Partnership

Abstract

This article provides a concise and comparative introduction to the institutions and processes by which the US and the EU make laws and rules within their respective territories. As such it is of interest to teachers and students of comparative law on both sides of Atlantic for the years to come but also to the TTIP negotiators and stakeholders who follow TTIP negotiations.

The United States and European Union are approaching a critical phase of negotiations aimed at creating the Trans-Atlantic Trade and Investment Partnership (TTIP). If these talks succeed they will create the largest free trade zone in the world, encompassing 800 million citizens and two huge economies that together comprise nearly half the world’s Gross Domestic Product (GDP). While both sides have numerous bilateral free trade agreements, what makes TTIP remarkable, beyond its sheer size, is its singular goal of reducing the “regulatory trade barriers” that now stand as the principal impediment to free trans-Atlantic trade. The core premise of the TTIP regulatory coherence chapter is that it should be possible to increase trade by eliminating such regulatory distinctions-without-a-difference – without jeopardizing the core health, safety, environmental or other legitimate objectives of either side. The challenge of TTIP negotiations, then, is to craft an agreement that offers an effective forum for legislators and/or regulators to consult with each other and their respective stakeholders with the goal of promoting regulatory efficiency – but without unduly advantaging those who wish to weaken the essential protections offered by the regulations themselves. The implications of this challenge for administrative law scholarship are startling, and profound. Never before have legislative and administrative law and process been given center stage in a major trade agreement in this way, with such high stakes on the line.

Part I of this Article offers the first comprehensive and concise side-by-side comparison of the US and EU legislative and regulatory systems to be published in the journal literature. This Part compares and contrasts the main steps of the legislative and regulatory process on both sides of the Atlantic, beginning with an idea for a new law, continuing through the legislative and regulatory process, and concluding with the promulgation of a final rule to implement that law. Throughout the discussion the focus will be on process, and particularly on identifying points in the process where outside stakeholders, domestic and foreign, can view the decision process and perhaps help shape it. Because this Article is written for readers on both sides of the Atlantic, we will start with the basics and ask the reader to skim the parts that are familiar terrain to that reader. Part II will set forth a few core contrasts that emerge clearly from the comparative exercise in Part I and offer insights into ways each side might learn from the other to improve its own system, quite apart from TTIP, should it so desire.

The article concludes that both the EU and the US could have much to learn from each other legislative and regulatory systems, regardless of the immediate trigger represented by the horizontal disciplined discussed within TTIP.

Keywords: TTIP, Regulatory Cooperation, Convergence, Divergence, Mutual Recognition, Equivalence, MRA, US-EU, race to the bottom, direct effect, implementation

JEL Classification: F10, F13, F15, K23, K32