Category Archives: Core values

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 20th of 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 2018Hoppner 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 2018Gillespie 2018Petit 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.

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

By Machiko Kanetake and Sybe de Vries

© European Union, 2017

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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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

Cambridge Analytica and Facebook Fallout: The Renforce/UGlobe Seminar

On 11 April 2018, Facebook founder and CEO Mark Zuckerberg appeared at the US congressional hearings. At the heart of the testimony was the Cambridge Analytica fallout on the misuse of Facebook users’ data, which continues to reveal the vulnerabilities of social media companies and their impact on politics. The business model of social media companies is based on the sale of advertisements and the provision of apps which allow the social media platforms to make the most of users’ data. Their businesses’ unique strength resides in the “targeted advertising” of potential consumers — and voters. While Facebook and other similar social media generate an enormous benefit of sharing information, the companies’ reliance on users’ data triggers an unprecedented risk of information misuse, not only in a commercial sense, but also for political campaigns.

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Disrupting Technologies – A UGlobe Dialogue on Bulk Interception of Communications

Photo credits: iStock/Global_PhonlamaiPhoto

The UGlobe Dialogue Series “Disrupting Technologies?” hosted its first event on 15 March 2018, in the week before the Referendum on a new Dutch Law on the Intelligence and Security  Services (the Wet op de inlichtingen- en veiligheidsdiensten, Wiv). This new law would extend the possibilities of secret services to monitor online behavior. Technology has changed since the usage of fixed telephony and dialup internet-access in the 1990s to the widespread use of smartphones, 4G and Wi-Fi-hotspots in 2018.  So changes in the law regulating the intelligence services are necessary, and in view of the upcoming referendum it is necessary to engage in a debate on the new competences regarding these new technologies and the framework of supervision of these intelligence and security services. Continue reading

Call for Papers

The Utrecht Journal of International and European Law (UJIEL), is issuing a Call for Papers to be published in its forthcoming Special Issue on European Law (February 2018). The Board of Editors invites proposals from research institutes and projects who wish to showcase the work of their researchers in an Open Access Special Issue. Institutes and projects seeking collaboration are invited to email us at utrechtjournal@urios.org.

For further information please consult our website:www.utrechtjournal.org

Deadline for Submissions: 25 August 2017

The Utrecht Journal of International and European Law is an Open Access, peer-reviewed, biannual law journal of Urios, the Utrecht Association for International and European Law. It was founded in 1981 in Utrecht, The Netherlands. Our latest special issue was prepared in co-operation with The Public International Law & Policy Group (PILPG), a global pro bono law firm and Nobel Peace Prize nominee (http://www.utrechtjournal.org/15/volume/33/issue/84/).

Dutch DPA shares new data about the Right to be Forgotten

Three years ago, the European Court of Justice gave judgment in the Google Spain-case, which established the so-called ‘right to be forgotten.’ This right enables individuals to require from search engines that they remove irrelevant search results for searches on their name. Continue reading

Circumventing the EU’s Export Control on Cyber Surveillance

Data Security Breach

On 10 April, Al Jazeera revealed how “surprisingly simple” it can be to circumvent sanctions and export control on cyber surveillance technologies. Al Jazeera’s four-month undercover investigation exposed the practices of merchants who sell spyware technologies as a “wi-fi router” and thereby readily escape from authorities’ export control radar. The investigation brought to light, for instance, an Italian communications company’s readiness to execute a 20-million euro deal to export to Iran an IP-intercept system which could be used for spying citizens. The company may be able to evade the EU’s export control by labelling the intercept Continue reading