Implementing the right to erasure: the judgment of the EU Court of Justice in Google v CNIL

By Cedric Ryngaert and Mistale Taylor

On 24 September 2019, the Court of Justice of the EU (CJEU) rendered its judgment in Google v CNIL on the geographic scope of implementation of the right to erasure (also known as the right to be forgotten or the right to be de-referenced). The judgment has received substantial media coverage (see, e.g., here and here), but press reports have paid little attention to its legal nuances. This blogpost provides such legal analysis, and reflects on the jurisdictional aspects of the judgment,in particular on the territorial reach of decisions to de-reference search results. The post argues that the CJEU deserves credit for displaying jurisdictional reasonableness, and on that basis rejecting an obligation for search operators to de-reference search results on all versions of their search engine. However, the CJEU pays conspicuous deference to EU Member State authorities, and gives little specific guidance as to how exactly these authorities are to determine the scope of implementation of the right to erasure.

The CJEU’s judgment in Google v Commission nationale de l’informatique et des libertés (CNIL) is supposed to give guidance regarding an issue that was left open in the Court’s Google Spain judgment (2014). In Google Spain, the CJEU had famously confirmed the existence of a right to erasure, which entitles an EU data subject to have information relating to him or her personally no longer linked to him or her by a list of results displayed following a (Google) search. After Google Spain, it remained unclear, however, how a search engine operator such as Google, which establishes that a data subject is entitled to a right to erasure, is to give effect to that right to de-referencing, in particular what the territorial scope of this right ought to be. Several implementation options could be envisaged: global implementation (which means that de-referencing takes place on all versions of Google accessed from anywhere), regional implementation (de-referencing takes place on all EU Member State versions of Google accessed from the EU), or local implementation (de-referencing takes place only in the Member State of residence of the grantee of a request for de-referencing). The French data protection agency (CNIL) took the view that global implementation was required. Accordingly, Google had to remove links to web pages from the lists of results displayed following a Google search on all Google domain name extensions. This meant that in practice, no Internet user, regardless of where he or she accessed the Internet, could see these links. Not surprisingly, conferring such a wide reach on the right to erasure raised concerns over extraterritoriality and jurisdictional overreach. Hence, it is to be welcomed that the CJEU has clarified the acceptable geographic reach of the right to be forgotten.

In essence, the CJEU opts for a model of regional implementation. The CJEU held that ‘there is no obligation under EU law, for a search engine operator who grants a request for de-referencing made by a data subject, as the case may be, following an injunction from a supervisory or judicial authority of a Member State, to carry out such a de-referencing on all the versions of its search engine’ (para. 64), but that instead ‘the de-referencing in question is, in principle, supposed to be carried out in respect of all the Member States’ (para. 66).

From the perspective of international law, a rejection of a global implementation model is to be applauded. A global model might intrude on the sovereignty of other states and the life choices of foreign citizens, who could have other views on the desirability of the right to erasure and its relation with the freedom of information. The Court acknowledges this risk where it emphasizes that ‘numerous third States do not recognise the right to de-referencing or have a different approach to that right’ (para. 59), and that ‘the balance between the right to privacy and the protection of personal data, on the one hand, and the freedom of information of internet users, on the other, is likely to vary significantly around the world’ (para. 60). In so doing, the Court appears to apply the notion of jurisdictional reasonableness, pursuant to which, even if a state, or the EU, in principle has jurisdictional authority, it ought to exercise this authority reasonably and balance its own interests against the interests of other states.

Conceptually, however, the Court’s reasonableness is not free-standing, as the Court links the required jurisdictional restraint to an apparent presumption against extraterritoriality, by virtue of which the EU legislature is presumed not to legislate beyond EU territory: ‘[i]n particular, it is in no way apparent … that the EU legislature would … have chosen to confer a scope [on the right to erasure] which would go beyond the territory of the Member States’ (para. 62). This indicates, nevertheless, that the EU could have chosen to confer a global scope of implementation on the right to erasure. In fact, the Court even implies that such a choice would be internationally lawful under the territorial effects principle of jurisdiction, where it holds as follows:

‘In a globalised world, internet users’ access — including those outside the Union — to the referencing of a link referring to information regarding a person whose centre of interests is situated in the Union is thus likely to have immediate and substantial effects on that person within the Union itself.’ (para. 57)

‘Such considerations are such as to justify the existence of a competence on the part of the EU legislature to lay down the obligation, for a search engine operator, to carry out, when granting a request for de-referencing made by such a person, a de-referencing on all the versions of its search engine.’ (para. 58)

Thus, the Court holds that global implementation is not internationally unlawful, but that it was not the intent of the EU legislature to legislate to the fullest extent allowed under the international law of jurisdiction. Further, because global implementation is not internationally unlawful, the Court even explicitly allows national authorities to order global implementation, even if EU law does not require it:

‘[W]hile … EU law does not currently require that the de-referencing granted concern all versions of the search engine in question, it also does not prohibit such a practice. Accordingly, a supervisory or judicial authority of a Member State remains competent to weigh up, in the light of national standards of protection of fundamental rights … a data subject’s right to privacy and the protection of personal data concerning him or her, on the one hand, and the right to freedom of information, on the other, and, after weighing those rights against each other, to order, where appropriate, the operator of that search engine to carry out a de-referencing concerning all versions of that search engine.’ (para. 72)

It remains now to be seen, however, to what extent Member States will take into account the Court’s considerations on jurisdictional restraint, in particular the divergent views that internationally exist regarding the existence and scope of the right to erasure. While these considerations are certainly authoritative and convincing in their own right, they are systemically bound up with the Court’s quest to determine the intent of the EU legislature rather than with the appropriate geographic scope of the right to erasure in the abstract (see notably the use of the words ‘in particular’ in para. 62, which make the link between reasonableness and the presumption against extraterritoriality). In any event, from an international law and global pluralism perspective, it is prudent for national authorities to order global implementation only on a very exceptional basis.

For Google, the Court’s principled endorsement of the regional implementation model should be good news, even if the Court itself did not directly review Google’s measures, as it held that ‘[i]t is for the referring court to ascertain whether … the measures adopted or proposed by Google meet those requirements (para. 71). Currently, Google uses geolocation to determine from where someone is presumed to be conducting the search and then shows him or her redacted results on all versions of Google (.co.uk, .com, .fr, .com.au, etc.) if the user is searching from the same country as where the person requested the delisting from. The only way Google might not be seen to adhere to EU-wide implementation is that it currently shows people in the EU, but not in the EU country where someone made the delisting request, the non-redacted search results if they use a non-EU version of Google, e.g., google.com. That being said, Google can take comfort from a passage in the Court’s judgment which may allow Member States to limit implementation of the right to erasure to the country from where the person requested the delisting (i.e., local implementation only): ‘it should be pointed out that the interest of the public in accessing information may, even within the Union, vary from one Member State to another, meaning that the result of weighing up that interest, on the one hand, and a data subject’s rights to privacy and the protection of personal data, on the other, is not necessarily the same for all the Member States … it is for the Member States, in particular as regards processing undertaken solely for journalistic purposes or for the purpose of artistic or literary expression, to provide for the exemptions and derogations necessary to reconcile those rights with, inter alia, the freedom of information’ (para. 67). For the Court, local implementation only applies ‘in principle’ (para. 66).

Because of the Court’s hedging, one could wonder what the main takeaway is from the judgment. Arguably, the Court has confirmed that regional, EU-wide implementation of the right to erasure is henceforth the default legal position. While this position is likely to be followed by Member State authorities, the latter may deviate from the default position, however, and opt instead for global or local implementation in specific circumstances. The Court remains silent, however, as to the nature of these circumstances, the identification of which is left to national authorities whose approaches may vary. Ultimately, the Court’s cautious, and even ambivalent position reflects the internationally contested nature and scope of the right to erasure. Given this reality, a quest for a one-size-fits-all solution may appear to be futile, and a case-by-case analysis the only workable solution. It remains that the Court could have given some criteria that national authorities could use when deciding on the geographic scope of implementation of the right to erasure (see for potential criteria here, here and here).

The European Citizens’ Initiative – Direct Democracy as a parallel to parliamentary democracy?

By Hanneke van Eijken and Simona de Heer

EU citizens have a political right to submit an initiative for new legislation to the European Commission. This is called the European citizens’ initiative, enshrined in Article 11 TEU, and further regulated in Regulation 211/2011. This form of direct, participatory democracy could be seen as a tool to foster citizen participation and to bring the EU closer to its citizens. It was introduced in the Lisbon Treaty as a response to even out the EU’s democratic deficit. Recent citizens’ initiatives cover issues as climate change, education for children with disabilities and evaluation mechanisms to see whether Member States adhere to European values.

From a regulatory perspective it is interesting to see whether regulation of direct democracy through the introduction of the EU citizens’ initiative is an effective tool for strengthening democracy and where its pitfalls lie. Since its introduction the citizens’ initiative has been subject to criticism as to its effectiveness. Currently, the European citizens’ initiative is being reformed. This raises questions about the effectiveness of the reformed citizens’ initiative and how it relates to parliamentary democracy. First, the weaknesses of the current citizens’ initiative will be discussed. Secondly, the reform and its achievements will be elaborated on. Finally, the relationship between parliamentary democracy and direct democracy will be examined.

The effectiveness of the current Citizens’ Initiative

Two features of the citizens’ initiative compromise the effectiveness of the instrument: the legal admissibility test and the non-binding nature of the citizens’ initiative. To submit a successful citizens’ initiative, an initiative needs one million signatures of citizens of at least seven Member States. Prior to starting the collection of signatures, the organisers need to register their proposal at the Commission’s website and satisfy different criteria. This is where the ‘legal admissibility test’ comes in, meaning that a proposal must not fall “manifestly” outside of the Commission’s powers. This test has been controversial and problematic. In 2018, 22 of the 48 European citizens’ initiatives were rejected because they were found legally inadmissible.

The Court has sometimes annulled Commission decisions because of how they deployed the legal admissibility test, such as in cases Minority Safepack and Stop TTIP, where the Commission had offered insufficient or wrong argumentation (see blogs by Karatzia on Minority Safepack, Stop TTIP).

The second weakness of the instrument is its non-binding nature. To date, there has only been one successful citizens’ initiative, Right2water,that has been followed up with legislation for increased water access and water quality. Other ‘successful’ initiatives have had cooler responses, such as the ban glyphosate initiative, that did in fact not lead to a ban of glyphosate, but did lead to legislation on more transparency in the scientific assessments of pesticides. Moreover, the recent One of Us case makes clear that in any case, even if an initiative meets all the requirements, under Regulation 211/2011 the ultimate power to decide on citizens’ initiatives lies with the Commission, which had already been implied in the Stop TTIP case.The One of Us case is now at the CJEU for appeal.

A new dawn? Reform of the Citizens’ initiative

Regulation 211/2011 has been reformed due to obstacles encountered by citizens willing to organise an initiative. The reformed regulation will enter into force on 1 January 2020 and is more elaborate and clearer on the procedures. The reform aims to create awareness and to enable organisers of an initiative to more easily register it and organize the collection of signatures. The registration stage, the collection of signatures, the follow-up stage and the role of the European Parliament have been adjusted with the reform. The question arises whether this reform actually makes the citizens’ initiative an effective form of direct democracy.

First, for the admissibility test it is important to note that the Commission will now be able to “partially” register an initiative, instead of entirely rejecting it in cases where the Commission only has the power to propose legislation on some, but not all, of its objectives.

Secondly, with regards to collection of signatures, the reform obliges the Commission to make European citizens’ initiatives easily and freely accessible for all citizens in all languages with national contact points in Member States. The reformed regulation does not lower the minimum age to support a citizens’ initiative to 16 years as such, as the European Parliament had proposed. However, Member States are explicitly allowed to set such age at 16 years if they wish. The reformed regulation also contains an article on transparency, where funding and support of a group of organisers must be clearly registered, regularly updated and made public by the Commission.

Thirdly, the follow-up by the Commission has somewhat been addressed. After the initiative has gathered the required support of one million citizens in twelve months maximum, the Commission’s examination of the initiative will be extended from three to six months before the Commission’s legal and political conclusions are set out. It is said this will give more time for organisers to promote their initiative. Furthermore, the Commission must, if it decides to act, set out the action it intends to take in response to the initiative and set out a timeline for these actions.

Fourthly, some changes have been made to the role of the European Parliament in the process. The Regulation now expressly states that the Council, national parliaments and civil society must be able to attend this hearing, and that “the European Parliament shall ensure a balanced representation of relevant public and private interests” and “shall assess the political support for the initiative” after the public hearing. This seems to provide organisers with a broader stage to spread idea’s and raise awareness of certain issues. To strengthen the political impact of successful initiatives, recent changes to Parliament’s Rules of Procedure also provide that the EP “shall hold a debate” on such initiatives. Most importantly, Article 16 provides that the “European Parliament shall assess the measures taken by the Commission as a result of its communication referred to in Article 15(2).” This was originally not included in the proposal but was added by the European Parliament in its amendments. This new element could prove very important for the much-criticised follow-up stage, but it is unclear what such assessment would entail and would concretely mean. It is a pity that the ‘assessment’ is not made more concrete in the new Regulation.

The citizens’ initiative as a comprehensive tool enhancing democracy?

The citizens’ initiative allows European citizens to gather digitally and make themselves directly heard. Even though citizens’ initiatives are non-binding for the European Commission, they allow citizens to place issues on the agenda. In a wider context, direct democracy can lead to empowerment and feeling heard. However, direct democracy has also brought risks of destabilising societies.

Authors have warned for using direct democracy, such as referenda “as a full alternative to the instruments and institutions representative of democracy risk creating parallel channels of legitimation which could destabilize and delegitimize parliaments” (Martinico 2019). As opposed to the referendum, the citizens’ initiative provides an elaborate and more nuanced way for citizens to make their voices heard, as initiatives can be very comprehensive. It allows people to draw the Commission’s attention to certain issues. Subsequently, the Commission has the discretion to initiate legislative procedures, in which the European Parliament often has a role. So, the citizens’ initiative as direct democracy does not necessarily create a separate parallel accountability or legitimacy to parliamentary accountability nor a circumvention of parliamentary democracy. It merely offers another way to trigger legislative processes often involving parliamentary democracy.

With the reforms, the European citizens’ initiative has not necessarily been further intertwined with Parliamentary democracy. The role of the European Parliament remains limited in the new regulation and, as case law confirms, the European Commission remains in the drivers’ seat. Nevertheless, it has a clear obligation to adequately motivate its decisions, and the Court is closely watching.

* This blogpost is based on a contribution in the forthcoming edited volume by H. van Eijken, T.P. Marguery and S. Platon, ‘The European Elections, 40 years after. Assessment, Issues and Prospects’, forthcoming (2020). Simona is (student)research-assistant European law and Hanneke is Assistant Professor European law.

The Reform of the Common European Asylum System: Between Recast and New Regulation

By Salvatore Nicolosi

Twenty years after the European Council of Tampere that in 1999 set out the political roadmap to establish a Common European Asylum System (CEAS), the European Union and its Member States still struggle to design a solid and future-proof system. The migratory pressure on the EU increases the need for effective responses. With more than 1 million people reaching Europe in 2015 and more than 18,000 drowning at sea in the period between 2014 and 2019, a solid asylum system becomes all the more urgent.

The reform of the CEAS certainly constitutes a relevant context to reflect on the dynamics of regulation in a particular sensitive area of European integration. Nonetheless, a closer look at the ongoing reform illustrates how this lays behind the actual way forward to the realisation of the goals established in Tampere twenty years ago.

Unfolding the Reform of the Common European Asylum System

In an attempt to tackle the structural shortcomings of the CEAS particularly exacerbated by the migratory pressure of 2015, the European Commission adopted two packages of proposals. A first package adopted on 4 May 2016 comprises the proposals to recast the Dublin Regulation (COM/2016/270), Eurodac Regulation (COM/2016/272) and a proposal aimed at establishing a EU Asylum Agency (EUAA) that will replace the current European Asylum Support Office (EASO) (COM /2016/271). A second package of reform was adopted on 13 July 2016 and includes a proposal for a Regulation repealing the Qualification Directive (COM/2016/466), a proposal for a Regulation repealing the Procedure Directive (COM/2016/467), a proposal to recast the Reception Directive (COM/2016/465) and a proposal for a Regulation establishing a EU Resettlement Framework (COM/2016/468). Provisional compromises have been concluded between the Council Presidency and the European Parliament’s rapporteurs on five of the seven proposals. As has been emphasized (ECRE 2018:3), this is a remarkable progress, especially if compared to the first (1999-2005) and second phase of harmonization (2009-2013) which in both cases took five years to conclude. Nonetheless, such an optimistic view is to be resized by contextualizing the process of reform within the wider political crisis contaminating the whole EU fabric (Joannin 2018).

On a whole, the new regulatory framework of the CEAS can be divided into two parts: on the one hand, a set of proposals aims to recast already existing instruments and, on the other hand, a set of proposals introducing new complementing instruments, such as the EU Resettlement Framework and, to a certain extent, the new EU Asylum Agency.

The priorities of the new regulatory model

The reform of the CEAS essentially builds on two priorities: 1) an emergency-focused approach to cope with migratory pressures and 2) further harmonisation, which is another crucial aspect of the current reform.

Admittedly, the emergency-focused approach is visible in the recast proposal of the Dublin Regulation. The main novelty is the “corrective fairness mechanism”designed to relieve overburdened States by relocating asylum seekers to other Member States. The mechanism would be automatically triggered as soon as the applications falling under the responsibility of a Member State would exceed 150% of its fair share, which is calculated on the basis of its population and GDP, and operate until applications fall below the 150% threshold. Nevertheless, the Member State that would benefit from relocation still has duties concerning the registration of applicants and other pre-checks formalities (Maiani, 2017). The European Parliament made a significant contribution to the reform suggesting valuable amendments (Wikström Report). This is the first version of Dublin which shows sensitiveness about applicants’ integration potential, in that it envisages that applicants, who have family members or who have links with a particular member state for example after having had a prior residence or having studied there shall be relocated to these member states. The relocation system is supposed to work routinely and regardless of a particular situation of emergence and with no thresholds as suggested by the European Commission.

In view of fostering further harmonisation, two Regulations are proposed repealing the current Qualification Directive and Procedure Directive respectively. This is a relevant innovation, as the regulation compared to the directive has the advantage of direct applicability, thereby providing for enhanced harmonisation in the field. However, despite such a formal change, the proposals offer at best a mere window dressing of the existing directives. As has been emphasised, the effectiveness of Regulations also depends on their concrete application by national authorities, depending on the domestic administrative capacities and the actual circumstances on the grounds (Thym 2017). Moreover, the presumption of uniformity that these regulations are supposed to provide is undermined by the difficulty to fully harmonise the reception conditions. The transformation of the Reception Directive into a Regulation proved difficult, if not impossible, due to the social and economic differences across Member States. This definitely remains one of the main challenges for the CEAS for which uniform reception conditions could be the main guarantee for a long-term sustainability of the whole system.

A new legal design?

Apart from reconfiguring existing instruments, the reform of the CEAS reflects to a certain degree some new legal design. This is more visible in the new set of measures proposed to enforce the implementation of the asylum acquis on the one hand, and introduce new regulatory measures, such as resettlement programme. As regards the first aspect, the establishment of a fully-fledged EU Asylum Agency can be seen as a natural consequence of a process that has over the year expanded the role of the existing EASO (Scipioni, 2018).

While this new legal design is functional to a strategy conceived to assure a higher degree of implementation, some concerns arise. In particular, while de jure the Agency is supposed to assist Member States in examining asylum claims, the recent involvement of EASO in Greek Hotspots confirms the Agency’s overstepping of its operational powers with Greek Asylum Officers which adopt decisions which are only formally national while substantially elaborated by the EASO (Fernández Rojo, 2018).

A new legal design is reflected also in the proposal for a permanent EU resettlement framework.The proposal rests on the idea of “third country’s effective cooperation with the Union in the area of migration and asylum.” Such a regulatory model aims to introduce conditionality criteria, based also on the relevance of a particular country for the EU foreign policy.This may dangerously conflate the humanitarian reasons beyond the international protection policy with the fight against irregular migration.

Concluding: The Missing Tile in the Reform of the CEAS

Taking a holistic approach to the analysis of the reform, one may note that it does not depart from the general paradigm of preventing secondary movements that over the years has proved practically ineffective. While some elements, including the emphasis on further harmonization or the establishment of a Union Resettlement Framework, constitute an added value, it seems the whole reform misses the opportunity to realise one of the goals established in Tampere twenty years ago.

In endorsing the political roadmap to develop the CEAS, the Tampere Conclusions established as long-term goal “a uniform status for those who are granted asylum valid throughout the Union.” This aim became a clear obligation in the letter of Article 78 (2) TFEU. Such a status would entail the mutual recognition of positive asylum decisions (ECRE, 2014), a circumstance that the current reform of the CEAS does not provide, despite being the third phase of regulation.

Despite the potential that mutual recognition of positive asylum decisions can play in fostering the integration of recipients of international protection, the ongoing reform reiterates an approach which limits the integration potential of beneficiaries of international protection. The essential machinery of the CEAS reform reproduces a set of punitive features specifically designed to ensure compliance with the obligation for the asylum seekers to apply and stay in the first Member State of entry or the Member State that granted protection. The reform does not clarify what rights or entitlements a recipient of international protection might enjoy in another Member State.The protection status still links the beneficiary with a single Member State. Such a circumstance is not only undesirable because it frustrates the integration potential of recipients of international protection, but it also impairs the essence of mutual recognition as a catalyst of trust and clashes with the authentic and teleological interpretation of Article 78.

First Impressions of Google AdSense Decision

By Viktorija Morozovaite

The Google AdSense decision has come out on the 20^thof March, 2019. With imposition of €1.49 billion fine it marked an end to the third European Commission’s investigation into tech giant’s practices, each resulting in spectacular penalties (together rounding up to €8.2 billion – a sum equivalent to Benelux countries’ annual contribution to the EU budget) and advancing the debate between competition practitioners and academics worldwide. Admittedly, the outcome did not come as a surprise to many – over the past decade, European Commission seem to have become the nemesis of giant tech companies with investigations into practices of Google, Apple, Facebook and Amazon. While the full decision is not published yet and it is difficult to comment on its merits, this blog post aims at distilling some of the ongoing issues, placing the decision in the broader context.

Decision

The investigation concerned online search advertising intermediation market. Through AdSense platform, Google acted as advertising broker, between advertisers and website owners that want to profit from the space around their search results’ pages. Google is also active in online search adverts market. In fact, it is platform’s most profitable core business area (see). According to the Commission, Google was found to be dominant in both of these markets (70% and 75% market shares held in each respectively for over 10 years).

By acting as a gatekeeper to the online search adverts market, as well as competing within the same market, Google inevitably holds a peculiar position and special responsibility precluding it from favouring own services to advance its dominance. In this decision, Art. 102 infringement was found on the basis that Google conducted its online search advertising intermediation services through imposing individually negotiated contractual obligations with the most commercially important publishers. Commissioner Margrethe Vestager stated that this way, ‘Google has cemented its dominance in online search adverts and shielded itself from competitive pressure’ (see). The agreements included the following anti-competitive clauses:

Exclusivity provision (since 2006) – most commercially important partners were prevented from ‘placing any search adverts from competitors on their search results pages’.
Premium placement (since 2009, designed to gradually replace exclusivity provisions) – direct partners were required to take on a minimum number of ads from Google and display it on the most profitable ad space.
Written approval was required from Google before publishers would make changes in the way in which competitors’ ads were displayed (since 2009).

Type of abuse

It is clear that in Google AdSense, Commission focused on exclusionary nature of the abuses, aimed to foreclose competitors and arguably protect its market position in the core (in this case, online search advertising) business area. While the conduct generally seems to neatly fit within the ‘exclusive dealing’ category (see para 32, Communication), it is not unlikely that the full decision would incorporate the echoes of ‘essential facility’ reasoning, due to the structurally important Google’s position in the platform ecosystem (in this case, through intermediating online search advertising services).

Theory of harm

When establishing the theory of harm, the Commission seems to have focused on impeded consumer choice, as a result of Google’s restrictive agreements with key commercial partners. According to the decision, by, in effect, excluding rivals in online search advertising market, Google not only deterred competition but also stifled innovation which resulted in less choice of alternative types of ads. It is plausible to see consumer choice being treated as a value that ought to be protected in digital markets, especially those dominated by giant techs. In fact, in multi-sided markets context, a shift from price to other parameters of competition (choice, innovation, quality) becomes necessary. For instance, in Google AdSense, consumers are operating in the zero-price side of the market, where they apparently pay no monetary price for the service (on zero-price markets, see). Thus, developing a theory of harm becomes a more nuanced exercise than finding an increase in price. However, in this particular case it will be interesting to see how the decision deals with establishing and measuring the alleged consumer harm. Questions arise whether there is more utility for consumers in having a greater variety of ads i.e. is more choice always pro-consumer? Would rivals’ ads result in more or less qualitative service? These questions, of course, although important are not novel and have been pertinent in Google decisions saga.

Remedies

Regarding online search advertising intermediation market, Google was ordered to ‘at a minimum, stop its illegal conduct, to the extent it has not already done so, and to refrain from any measure that has the same or equivalent object or effect’ (see). It is noteworthy that Google has stopped its illegal practices a few months after the issued Statement of Objections in July 2016. Therefore, it seems that the Commission did not have to decide upon ordering potential effective remedies. While in this particular case it may seem unproblematic, this has been a point of critique in the previous Google decisions, considering that lack of clear steps do not comply with the principle of legal certainty (Akman 2017).

During the questions time, when asked to elaborate on the fact that there have not been effective remedies put in place and ‘cease and desist’ order may not result in restoring competition, Commissioner Vestager reinstated that while this is one of the things highly featuring in the decision-making process, in fast-moving markets, even with a speedy Commission’s reaction ‘the risk is that the market would have moved on and it is very difficult to restore competition as it were’ (see).

Even though is it appreciated that each case should be assessed individually and that it is difficult to predict development of the fast-moving digital markets, moving forward it may be desired to incorporate clearer steps as to how platforms as Google may reach compliance with European competition law. Nevertheless, this involves further research in the nature and characteristics of the digital markets as well as more clearly defined competition law enforcement strategies (for recent reports, see this and this).

Bringing it all together

To understand the outcome of Google AdSensedecision it is important to put it in the broader context. The so-called ‘Google saga’ began in 2010, with European Commission opening a probe into Google’s search and comparison-shopping services. In 2015, the official proceedings were opened in relation to Google’s Android operating system, followed by an inquiry into search advertising intermediation market just a year later. In addition to heavy fines, Google Shopping and Google Android decisions resulted in an outright divide of competition law circles, criticizing or praising the difficult (policy) choices made by the Commission each time (to name a few, see: Akman 2018, 2017; Picker 2018; Hoppner et al 2018). However, Google AdSense does not seem to have ‘stirred up the waters.’ While the decision was not unpredictable per se, the Commission’s reasoning (or its themes) could be expected to overlap with the previous Google decisions, thus having a crystallizing effect in regard to emerging competition law enforcement trends.

For instance, the decisions dealt with markets where Google, on the one hand, was a provider of a certain service and, on the other, an intermediary providing access point to that very same market. Indeed, a significant body of research recognises a central role that giant techs play in the platform ecosystem (to name a few, see: Van Dijck et al 2018; Gillespie 2018; Petit 2016). Without appropriate balance being struck between competition law and regulation, competition enforcement may appear to be the only means of curbing platform’ power. Arguably, that balance is not present yet. While economic, social and even political influence (and ramifications) of the Big Tech is undeniable, the question that competition practitioners and academics have grappled with for over a decade now is whether competition law is the right means to curb this power? And, if so, is it suitable to address the challenges posed by digitalisation?

All in all, in Google AdSense, Commission delivered a clearly identifiable exclusionary abuse, established a theory of harm that could still be subject to debate as well as omitted the question of effective remedies. The decision itself was in many ways predictable and fits well within the rest of ‘Google saga’. One is left to eagerly await the full details of the reasoning regarding this outcome.

Brexit and the ways forward for the UK and EU agencies

By Lisette Mustert, Béla Strauss, Miroslava Scholten and Matthew Wood

Brexit raises the question of which way forward for the UK in its relationship with the EU and with EU agencies. For future research and legislative design, this in turn raises a more fundamental question of when which type of agreement between a third country and EU agencies is appropriate, in light of factors such as salience and the interests on both sides. Having analysed all EU agencies’ founding acts, we show in this post that there are three types of formal relationships that exist at this moment between EU agencies and other countries: full membership, observership and cooperation. We argue that the type of this relationship would vary for the UK depending on the score of ‘Brexit salience’, a concept that we introduce. The higher the ‘Brexit salience’ rating is, the more formal the arrangement – full membership or observer – the UK (and the EU) would need to have with an EU agency. According to our scores, this would concern the European Medicines Agency (EMA) and the European Aviation Safety Agency (EASA). In the case of EU agencies that score low on our salience rating, the UK (and the EU) would want to opt for a relatively limited form of cooperation with EU agencies. This would be the case for Cepol, EIGE, ACER, Frontex and CPVO. Surprisingly, the seemingly highly salient agency in the public debate – the European Border and Coast Guard Agency (also known as Frontex) – scores the joint lowest rating. How is this possible, when for the UK immigration is so important during the Brexit vote? It is because, first, our Brexit salience measures do not focus on what is salient in general for the British or European public. Rather, we are concerned with practical matters of policy implementation. As a matter of policy, Frontex has a clear and well-resourced opposite agency – the UK Border Agency – and its operation does not affect a discrete and well-defined policy area.

EU agencies and third countries: three types of formal relationships

Having studied founding acts of all EU agencies, we have seen three types of formal relationships that exist between EU agencies and third countries:

Full membership: the essential feature here is that the third country has a place in the agencies’ main organ – like a management board. Therefore, the third country has the same rights and privileges as EU member states in the agency, except the right to vote (Lavenex 2015). The agencies that currently have at least one third country member are EASA, ERA, EEA, EFSA, EMCDDA, EMSA, Frontex, EIOPA, GNSS. The EFTA states are almost exclusively the ones that cooperate in this manner with the agencies, although in two instances (EEA and EMCDDA) Turkey is also a member. Frontex is the only agency where the EFTA states have some voting rights, so it might be seen as the most intense participation of third countries in any of the agencies. The reason the EFTA states have this special position in the Frontex management board is that participation in Frontex was negotiated in special separate agreements.
Observership: the term ‘observership’ is used very frequently, but never defined. The term obviously suggests a less intense form of participation than membership, a form of collaboration where the third state is simply there to passively take in the events that unfold in the EU agency. This makes it hard to distinguish membership from observership, especially because third country ‘full members’ generally also lack a vote, which otherwise could serve as the distinguishing feature between the two. In many instances, EFTA states are, if not members to an EU agency, at least observers. However, unlike the membership model which is almost exclusively applicable to EFTA states, the observer status is more widely available, in particular to (potential) candidate countries for accession to the EU such as Macedonia, Bosnia and Herzegovina, Albania and Serbia. Currently, there is at least one third country observer participant in EASA, ENISA, EBA, Cedefop, EMA, Eurofound, EASO, EU-OSHA, ECDC, ECHA, FRA, EFSA. Only EFTA and (potential) acceding states are observers to the EU agencies.
Cooperation: EU agencies increasingly make use of this option by adopting working arrangements or memoranda of understanding with third countries. The basic regulations of the EU agencies frequently mention the need for cooperation with third countries. The following agencies have these provisions: EFCA, EASA, ERA, EBA, ESMA, GNSS, Europol, Eurojust, Cepol, SatCen, EMA, EASO, EU-OSHA, ECDC, EEA, EFSA, EMCDDA, EDA, EIOPA and Frontex.

Brexit salience concept

Brexit salience can be defined as the extent to which Brexit may affect EU agencies’ internal workings, how important their role may be in ensuring maintenance of regulatory standards, and how closely they are connected to key areas of the UK economy. To conceptualise and analyse the extent to which Brexit-specific arrangements may be required between EU and UK regulatory agencies so as to enable a smooth form of regulatory alignment after Brexit, we propose to analyse EU agencies with respect to their ‘Brexit salience’ across three aspects:

Connections internally with British staff: this is the extent to which, after Brexit, EU agencies may internally face some instability in their labour force. EU agencies are staffed by members chosen both to represent a range of member states, but also, crucially for our purposes, to bring relevant and specific expertise in the relevant regulatory field. While overall the UK seems to contribute relatively few staff to EU institutions compared with France or Germany, some agencies rely heavily on British staff and expertise. The EMA, for example, has voiced worries about how ‘our activities will be impacted [by Brexit] and we need to plan for this now to avoid the creation of gaps in knowledge and expertise’.
UK agencies’ capacity to maintain regulatory standards: this is the extent to which the UK has similar regulatory capacity to the EU level to maintain regulatory standards. If this is the case, then EU agencies are likely to be less salient as the regulatory environment is likely to stay largely similar, so long as the UK maintains standards on, for example, environmental pollution. However, where the UK does not have regulatory capacity in the form of well-resourced agencies capable of implementing regulatory, information sharing and communication activities that regulatory agencies undertake, EU agencies are more likely to be salient in continued collaborative efforts to maintain regulatory standards.
Economic interconnectedness: lastly, and from the perspective of the UK, EU agencies are more likely to be significant where the UK has significant economic interests tied to the economic sphere those agencies have jurisdiction over. Areas in which the UK economy is especially embedded in global supply chains – for example in financial services – are most likely to elicit interest from UK policymakers with regard to cooperation with agencies in those areas.

This tripartite framework for assessing Brexit Salience in EU agencies covers the salience of Brexit for agencies (their internal workings and employment of UK nationals as staff), salience for the EU (ensuring the UK has the requisite capacity to maintain similar regulatory standards) and salience for the UK (the extent to which agencies cover the regulatory areas that it is concerned with). Brexit salience is a multidimensional concept and not all elements of it will always pull in one direction.

The score board below includes initial salience rating developed inductively scoring ‘low’ (1), ‘medium’ (2) and ‘high’ (3) for each of the agencies for each of the three aspects described above and then adding the scores together to produce an overall ‘rating’ out of 9. The ratings are preliminary and will be further developed through double coding and comparison before final publication.

Preliminary brexit salience score board

	Agency	Overall Salience
1.	European Aviation Safety Agency (EASA)	8
2.	European Medicines Agency (EMA)	8
3.	European Fisheries Control Agency (EFCA)	7
4.	European Maritime Safety Agency (EMSA)	7
5.	European Banking Authority (EBA)	7
6.	European Agency for Safety and Health at Work (EU-OSHA)	7
7.	European Agency for Network and Information Security (ENISA)	6
8.	European Union Agency for Law Enforcement Cooperation (Europol)	6
9.	The European Union’s Judicial Cooperation Unit (Eurojust)	6
10	European Foundation for the Improvement of Living and Working Conditions (Eurofound)	6
11.	European Chemicals Agency (ECHA)	6
12.	European Environment Agency (EEA)	6
13.	Fundamental Rights Agency (FRA)	6
14.	European Food Safety Authority (EFSA)	6
15.	European Agency for Railways (ERA)	5
16.	European Securities and Markets Authority (ESMA)	5
17.	European Global Navigation Satellite Systems Agency (GSA)	5
18.	European Centre for Disease Prevention and Control (ECDC)	5
19.	European Monitoring Centre for Drugs and Drug Addiction (EMCDDA)	5
20.	European Centre for the Development of Vocational Training (Cedefop)	4
21.	European Union Satellite Centre (EUSC; SATCEN)	4
22.	European Asylum Support Office (EASO)	4
23.	European Defence Agency (EDA)	4
24.	Body of European Regulators for Electronic Communications (BEREC)	4
25.	European Insurance and Occupational Pensions Authority (EIOPA)	4
26.	European Agency for Law Enforcement Training (Cepol)	3
27.	European Institute for Gender Equality (EIGE)	3
28.	Agency for the Cooperation of Energy Regulators (ACER)	3
29.	European Boarder and Coast Guard Agency (Frontex)	3
30.	Community Plant Variety Office (CPVO)	3

About the authors:

This blog post is a result of a research project and academic paper (forthcoming) exercised by Lisette Mustert and Béla Strauss, two legal Research Master students at Utrecht University, under supervision of Miroslava Scholten, Rob Widdershovenand Matthew Wood.

EU-Japan Economic Partnership Agreement: Data Protection in the Era of Digital Trade and Economy

By Machiko Kanetake and Sybe de Vries

On 12 December 2018, the European Parliament approved the EU-Japan Economic Partnership Agreement (EPA) which the parties have been negotiating since April 2013. The Agreement, sometimes called as the “cars-for-cheese” deal in a symbolic sense, aims to vitalize economies which represent approximately 30% of global gross domestic product. The Commission presented the final text to the Council on 18 April 2018, which authorized, on 6 July, the signing of the deal. The parties have signed the agreement on 17 July, and, on 8 December 2018, the National Diet of Japan approved the agreement. In light of the Court of Justice’s Opinion 2/15 on the EU-Singapore Free Trade Agreement, the Commission assumes that the EU-Japan EPA does not require ratification by individual EU member states since the agreement is within the EU’s exclusive competence. Investment protection standards and investment protection dispute resolution, which fall under shared competences, have been subject to separate negotiations. The EPA, which is expected to enter into force on 1 February 2019, is arguably the biggest trade-related achievement of the current Commission, which ends its mandate in 2019.

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Robot Love / Robotgov

By Stijn van Deursen and Stefan Kulk

Robots are on the rise. They make life easier, they make economic processes more efficient, and they are even becoming objects of love and lust. At the same time, new ethical and legal questions arise. Should robots have rights? Can we send them to war? And, who is responsible for any ‘mistakes’ that robots make? They also make us question ourselves, and may teach us something about humanity. We can all agree that robots are not human. But what distinguishes us from ‘them’?

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Appointment of EU agency directors

EU agencies’ number and powers have grown tremendously in the recent years. Despite the so-called Meroni ‘non-delegation’ doctrine, EU agencies perform a wide range of tasks. They can contribute to or pass (soft) rules of general applications and impose sanctions for violation of EU laws vis-à-vis private actors (Scholten and Luchtman 2017). The increase of powers and hence impact of EU agencies on society raises the urge for legitimising these institutions. One of the major ways to legitimize institutions is establishing proper governance structures and ensuring suitable top-level officials who manage agencies and bare responsibility for agencies’ performance. In this blog post, we offer a comprehensive evaluation of EU agency directors’ functions and appointment procedures and requirements. We show that the appointed directors fit the profiles of EU agencies that they head well, nevertheless we quest the necessity of the existing excessive variety of appointment procedures (12!), which in our view hinders legitimacy. Continue reading →

The European Production Order – Tackling the Problem of Enforcement Jurisdiction and Extraterritoriality in Cyberspace

On April 17^th, 2018, the European Commission proposed new legislation to facilitate and accelerate access to digital evidence across borders in criminal investigations. The proposal aims at providing enforcement authorities with new tools for cross-border investigations in the digital era. European Production and Preservation Orders (the Orders) would allow law-enforcement authorities of a Member State to compel service providers – both domestic and foreign – offering services in the European Union to disclose or preserve user data, regardless of the data’s location. With this proposal, the European Commission moves away from territoriality as the determinative factor for enforcement jurisdiction in cyberspace. Thereby it could possibly set an international precedent to modernize international law in the area of transborder access to e-evidence. Continue reading →

Legal Status of Robots: The RENFORCE/UGlobe Seminar and Why I Decided to Sign the Open Letter

Photo credits: iStock/Global_PhonlamaiPhoto

Should a robot enjoy any legal status independent of its human creators? If so, what kind of legal status would that be? Should the robot enjoy its/her/his “rights”? One’s answers to these futuristic questions might in part depend on whether one’s image of autonomous robots comes from the film Bicentennial Man (1999) based on Isaac Asimov’s novel or a more recent movie Ex Machina (2014). In the film version of Bicentennial Man, a highly autonomous robot played by Robin Williams exhibits humorous, friendly, and warm-hearted characteristics that co-exist with human communities. By contrast, in Ex Machina, a beautiful human-looking robot ended up deceiving a man and achieving freedom by taking advantage of the trust that the man developed towards the robot. While we cannot tell if such a self-governing robotic machine could ever be built, these two movies depict diametrically opposed scenarios that robots can have both beneficial and disturbing consequences to human beings. Continue reading →