Institutional compliance, European networks of regulation and the bureaucratic autonomy of national regulatory authorities

Abstract

One important function of European regulatory networks (ERNs) is to provide national regulatory authorities (NRAs) with an institutional platform for coordinating the implementation and harmonization of Community law within the member states by issuing non-binding norms such as guidelines and standards. However, to what extent are NRAs successful in implementing these non-binding rules within their member states and what is the role of European networks of regulation? This article argues, and illustrates with a case study of the implementation of privacy norms in electronic health systems in the Netherlands, that next to the expertise generated by the relevant ERN, it was the institutional compliance of the Dutch government to the Privacy Directive that has substantially contributed to the bureaucratic autonomy of the Dutch Data Protection Authority.

Keywords:

• Bureaucratic autonomy
• European networks of regulation
• national regulatory authorities
• privacy protection

ACKNOWLEDGEMENTS

The author wishes to acknowledge the valuable help of his research assistance Minou de Ruiter. He also thanks two anonymous JEPP reviewers for their constructive comments.

Notes

One may argue that the institutional compliance mechanism is equivalent to the Commission-dominance thesis. To be sure, this is not the case. The Commission-dominance thesis is primarily about the design and governance of ERNs and the position and competences the EC occupies and possesses within the networks. The Commission-dominance thesis is thus actually about the extent in which the Commission can become the pivotal player within the network. The design of ERNs is the prerogative of the Commission and/or the network. Its structure, decision rules and procedures are laid down in Commission decisions or memoranda of the network participants themselves. The institutional compliance thesis goes beyond and above the Commission-dominance thesis, as it addresses the fact that member state governments become obliged to adapt themselves to a given administrative model embedded within Community law itself. It sets the institutional framework within which ERNs are established and subsequently function.

Herewith, the domain of privacy regulation differs for example from the area of energy, financial markets or general competition regulation where, respectively, new networks have been established and/or merged shortly after the initial one was created, a crisis has upset the prevailing institutional setting or a radical policy reform has been implemented.

Health systems are traditionally well guarded by national states and from a EU perspective, there does not exist an economic urge for imposing legally binding European legislation in this area. EU ambitions with regard to health care in general and e-health regulation in particular, nevertheless, stem from the fact that e-health is emerging as a new and promising industry alongside the pharmaceutical and medical instruments sectors (Decision 1786/2002/EC; EC 2004; e-Europe Action Plan 2005). It is estimated that e-health spending may go up from 1 per cent of the total health budget of the 15 member states in 2000 to 5 per cent of all 25 member states by 2010. e-Health is also expected to improve efficiency and spur productivity gains in a sector where, according to 2002 figures, 9.3 per cent of the total workforce of the European member states is working (European Commission 2004: 8–10).

The publication of opinions, recommendations and working documents is a core function of the Article 29 Working Party. Since its establishment in 1997, the Working Party has produced more than 160 opinions, recommendations and documents on a variety of domains, among others, Internet, international banking, electronic communication, passenger data, consumer rights, doping controls in sport, health care. See http://ec.europa.eu/justice_home/fsj/privacy/workinggroup/wpdocs/index_en.htm

The report, the reaction of the Minister of Health Care, and the draft of the Law are also published on the website of the Council of State (in Dutch): http://www.raadvanstate.nl/adviezen/zoeken_in_adviezen/zoekresultaat/?zoeken_veld=burgerservicenummer&advicepub_id=8016&utm_id=2&utm_source=Zoeken%20in%20adviezen&utm_campaign=adviezen&utm_medium=internet&utm_content=W13.07.0256/I&utm_term=burgerservicenummer, consulted on 4 June 2009.

Officials of the Council of State declared that the advisory report of the Dutch privacy authority had notified to them the existence of the Working Document 131. They took this document as a point of reference in addition to the advisory report of the DPA (email with official of Council of State)