DSA, DMA and ‘Access to…’

Laura Frederika Lalíková

This blogpost is part of a series of short commentaries on the European Commission’s proposals for a Digital Markets Act and a Digital Services Act, released on 15 December 2020. Stay tuned for more.

Being a fan of British comedy, I’d like to quote James Veitch (who is best known for his witty interactions with the authors of scam emails): “The Internet gave us access to everything; but it also gave everything access to us.” This struck a chord with me, as I realized that the question of access has left the tables of social sciences and legal scholars and entered the likes of comedy clubs, signifying the importance of the currency of the topic of access in digital space. People understand access. They might not understand the intricacies of it, but they understand it on a fundamental level  – the value of access and the benefits which derive from it. And we should strive to protect it.

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The potential of shaping a comprehensive Digital Single Market with the long awaited Digital Single Market Act

Sybe de Vries

This blogpost is the second in a series of short commentaries on the European Commission’s proposals for a Digital Markets Act and a Digital Services Act, released on 15 December 2020. Stay tuned for more.

Twenty years ago, when the widespread use of the Internet was still in its infancy, the EU legislator adopted the e-Commerce Directive. This Directive has been the foundational EU legal framework for online services in the internal market ever since. Now, with the eagerly awaited Proposal for a Regulation on a Single Market for Digital Services (DSA) the question is whether this legal instrument will be able to address the current and future digital challenges of the EU’s internal market. I will briefly discuss the relevance of the DSA’s legal basis in addressing the specific features of the Digital Single Market (DSM), particularly with a view to attain a more comprehensive DSM.

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Countering the power of big tech companies: is the bigger picture missing?

Anna Gerbrandy

This blogpost is the first in a series of short commentaries on the European Commission’s proposals for a Digital Markets Act and a Digital Services Act, released on 15 December 2020. Stay tuned for more.

Let me start with a heartfelt compliment: well done with the DMA&DSA! These are timely and useful proposals aiming to ‘to establish a level playing field’ and create ‘a safer digital space’. But I wonder: are we missing a bigger picture? Do the proposed rules curb the power of the Big Tech companies sufficiently?

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Disinformation: The EU Commission’s response to the Covid-19 infodemic and the feasibility of a consumer-centric solution

By Ruairi Harrison

As conversations around the globe concerning the issue of online disinformation gather gravity and frequency, it is tempting to view disinformation as a 21st century problem. Yet this phenomenon can be traced back to Octavian’s grappling for power in the turbulent post-Caesar Civil War period. Here, the first Roman Emperor manipulated information concerning his first adversary, Marcus Antonius, using brief rhetorical notes engraved on coins and circulated around Rome. These notes painted his rival as a drunk, a womaniser and a headstrong soldier incapable of ruling an empire. They ultimately proved their effectiveness in gaining the public’s support and their simple, accessible form and message could be compared to a modern day ‘Tweet’. Think Trump calling the mail-in ballot system into disrepute in a series of easy-to-read tweets devoid of evidence. 

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US sanctions against persons involved in the construction of the Nord Stream 2 pipeline project: Europe’s energy sovereignty under threat – Part II

By Cedric Ryngaert and Tom Ruys

In our previous post, we have argued that the imposition of US sanctions on persons involved in the construction of the Nord Stream 2 (NS2) pipeline between Russia and Germany is in tension with the customary international law of jurisdiction, insofar as such sanctions go beyond mere access restrictions and involve, for instance, the blocking (freezing) of assets. In this second post, we review the permissibility of US NS2 sanctions under two other, trade-related regimes, namely the law of the World Trade Organization (WTO) and the bilateral Friendship, Commerce and Navigation Treaty between the US and Germany of 1954. We argue that various NS2 sanctions – including access restrictions – potentially violate US obligations under these regimes, and that, on this basis, Germany could trigger international dispute-settlement with the US. 

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US sanctions against persons involved in the construction of the Nord Stream 2 pipeline project: Europe’s energy sovereignty under threat – Part I

By Cedric Ryngaert and Tom Ruys

The United States have recently enacted legislation sanctioning persons involved in the construction of the Nord Stream 2 (NS2) pipeline, which will transport gas from Russia to Germany through the Baltic Sea and is central to the EU’s energy policy (see here). (Non-US) persons involved in the construction of the Nord Stream 2 pipeline are subject to US sanctions under the Countering America’s Adversaries Through Sanctions Act, the Protecting Europe’s Energy Security Act, and the Protecting Europe’s Energy Security Clarification Act. These sanctions are aimed at putting pressure on persons to withdraw from the NS2 project, and ultimately to scuttle it. In August 2020, things came to a head after three US senators sent a letter to a German port-operating company supporting the NS2 project. The senators warned that the port, the company and its officers exposed themselves to ‘crushing legal and economic sanctions’ by the US.

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In the name of the rule of law: ECJ further extends jurisdiction in CFSP (Bank Refah Kargaran)

By Thomas Verellen

On 8 October 2020 the Grand Chamber of the European Court of Justice (ECJ) rendered judgment in an appeal procedure against the General Court judgment in the case of  Bank Refah Kargaran (T‑552/15 and C-134/19 P). The case concerned an appeal, by the Iranian Refah Kargaran bank, against a number of Council decisions and regulations imposing restrictive measures (sanctions) on the Iranian bank. Some of these decisions had been adopted on the basis of Article 29 TEU, and others on the basis of Article 215 TFEU (the latter served to implement the former, as is customary in the field of restrictive measures). Bank Refah Kargaran challenged the Council’s decision inter alia on the grounds that the Council had not properly motivated its decisions. In a judgment issued on 6 September 2013, the General Court had agreed with that argument and had proceeded to annul the above decisions and regulations in so far as they concerned the Iranian bank. 

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In search for an enforcement strategy for the Common European Asylum System

By Salvatore Nicolosi

The reform of the Common European Asylum System (CEAS) is one of the major regulatory challenges to the European Union (EU), which has continuously attracted academic attention (Nicolosi, 2019). Less consideration has been given to the dynamics of enforcement of that policy. Yet, this is a crucial issue,  as acknowledged by the European Commission, the migratory pressure of the most recent years stressed the ‘structural weaknesses and shortcomings in the design and implementation of European asylum and migration policy.’ Apart from a ‘protracted implementation deficit,’ EU asylum law has been suffering from a ‘protracted compliance deficit’ (Thym, 2017). This makes the need for a more effective enforcement strategy all the more urgent. This post, therefore, aims to explain whether EU direct enforcement mechanisms can be more effective than traditional forms of enforcement by State authorities. 

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Protecting the Crown Jewels: Covid-19 and the EU Foreign Direct Investment Screening Regulation

By Thomas Verellen

Covid-19 represents a shock to global capital flows. As companies see the value of their assets tumble, they may become attractive targets to foreign investors – in particular, state-backed foreign investors less exposed to the economic fallout of the pandemic. To address what has been described as ‘opportunistic investment behaviour’ and – less euphemistically – ‘predatory buying’ practices, jurisdictions with well-established foreign investment screening mechanisms such as Australia and Canada have tightened scrutiny: the Australian government has reduced the value threshold for screening of all foreign investments to zero dollars, and the government of Canada has announced it will subject public health related investments and all investments by state-owned investors, regardless of their sector of activity, to enhanced scrutiny. 

For the European Union, Covid-19 came at an interesting time. The EU recently introduced its own FDI screening framework – a mechanism which leaves the ultimate decision-making power over individual investments with Member State screening authorities, but which sets up a framework for cooperation between EU and Member State authorities. The framework will go live on 11 October 2020 and thus was not operational when the pandemic hit in the spring of 2020. Against this backdrop, this blog post explores how the EU has responded to the Covid-19 crisis and in particular to the aforementioned risk of predatory buying that flows from the pandemic’s impact on asset prices. Given the multi-level set up of the EU’s approach to FDI screening, an analysis of the EU response to this risk needs to take into account developments at both the EU and Member State levels. This blog post focusses on the EU side of the equation. 

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Not letting the COVID-19 crisis go to waste, ensuring the effective enforcement of the European value of the rule of law in Hungary during times of Corona

By Kees Cath

In this post Kees Cath argues in respect to the situation in Hungary that the European Commission should act without any delay to prevent further rule of law backsliding. The opinions expressed in this article are the author’s own point of view and do not represent the government’s official position.

Orbán an unlikely student of Jean Monnet? 

“People only accept change when they are faced with necessity and only recognize necessity when crisis is upon them.”

Paraphrased, Jean Monnet seemed to underline the age-old adagio “never waste a good crisis”. There have been plenty of crises within the EU. Over the past few years the Union is engaged in what seems addressing one crisis after the other, from the Euro-crisis to the migration-crisis and from the Brexit-crisis to the Corona-crisis. 

Yet there seems to have been one European leader – though not evidently a student of Jean Monnet – that ironically did follow this advice scrupulously, yet erroneously. The changes instituted by the Orbán government are more far reaching, and have the effect of (further) undermining the Hungarian democracy. By amongst others declaring a state of emergency, ruling by decree indefinitely – with only the Fidesz two-thirds majority in parliament to provide for a possible check or reverse – Orbán has effectively legalized his (informal) hold over the Hungarian state. Within a package of already far reaching emergency measures the high penalties for spreading ‘fake news’ stand out as particularly disheartening. Even if no journalist is (ever) sentenced, the chilling effect on an already crippled media landscape, can be further reason for alarm. With Hungary effectively in lock-down, public demonstrations against the measures, as were visible against the 2018 elections or the 2019 ‘slave law’, seem impossible. So what has happened and who has been able to respond, and if so in what way?

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