Public Consultations Unpacked: The Commission’s participatory regime under the 2021 Better Regulation Agenda

In April 2021, the European Commission launched its updated version of the Better Regulation Agenda with the view to ‘Joining forces to make better laws’. The Commission’s regulatory framework with the overarching aim of achieving better and simpler legislation which is based on evidence and created with the involvement of EU citizens and stakeholders has been amended in the aftermath of the COVID-19 pandemic and having taken into consideration the results of the Stocktaking exercise conducted in 2019. In this regard, the new Better Regulation Agenda specifically emphasizes on ensuring post-pandemic ‘recovery and resilience’ as well as addressing the shortcomings identified in the previous versions by introducing a set of amendments which aim at helping remove obstacles and red tape to new investments and minimize the costs introduced with new legislation, while ensuring sustainability and digital transformation.

The consultations held by the Commission before the adoption of its initiatives constitute an integral part of Better Regulation Agenda since its establishment in 2002 and a constitutional imperative according to the Article 11 para. 3 TEU, with the view to enabling citizens’ and stakeholders’ participation in the EU lawmaking, thus, enhancing evidence-based policymaking and democratic legitimacy. With regards to the new Better Regulation Agenda goals, the Public Consultations’ regime had to be amended so as to engage more citizens in the decision-making process, while at the same time not imposing ‘unnecessary burdens’. This is why the Commission officials launched the Call for Evidence as a ‘streamlined, inclusive and simple’ system for the provision of feedback and a number of other changes in order to address the previous critiques. The details for the implementation of these amendments are included in the new Better Regulation Guidelines and Toolbox which were published as of November 2021. In this post, an overview of the new Public Consultations’ regime will be provided (I) and a Preliminary Assessment of the New Regime will be made (II). Continue reading

Case C-65/20 Krone: Offering (some) clarity relating to product liability, information and software

On 10 June 2021, the Court of Justice decided in Case C-65/20 Krone that inaccurate health advice included in a printed newspaper copy does not constitute a ‘defective product’ within the meaning of the Directive 85/374/EEC on product liability. While the outcome is not entirely surprising in light of Advocate General Hogan’s Opinion and most prior scholarship on the matter, as discussed below, the decision offers an important extra demarcation of the European product liability regime. Moreover, it is worthwhile to examine in this blogpost what this decision might mean for the debate on whether software and other digital content fall within the Directive’s scope of application, which is central to the ongoing review of European product liability law.Continue reading

Always as an end, never as a means? The EU’s commitment to free trade and its limits

Introduction

This short piece puts forward some critical remarks towards the EU’s commitment to global liberalisation of trade in the form of a constitutional objective (Article 3(5) and 21(2)(e) TEU). It is submitted that this objective is in current circumstances far less urgent and relevant than other constitutional objectives of EU external action, especially in the light of possible conflicts between trade liberalisation and sustainable development. Equally importantly, this commitment limits the room for political decision-making within the EU and hinders the development of a more strategic foreign policy based on a clear definition of the EU’s interests. These claims can be illustrated by the insistence of EU institutions to conclude, despite well-founded concerns, trade or investment deals with the Mercosur countries and China. In this context, trade-related objectives should sometimes give way to other priorities, preferably defined by political means.

The normative force of constitutional objectives

The European Treaties described by the Court of Justice of the EU (CJEU) as a ‘basic constitutional charter’ enshrine a number of general objectives. One can find a separate catalogue of constitutional objectives applicable to the EU’s external action specifically (Article 21 TEU).

Such objectives have been aptly described as having ‘the manifesto function’ with respect to a constitution. They can be viewed as an expression of desired policy outcomes pursued by a polity. In the EU context, as pointed out by Joris Larik, these objectives do not establish a self-standing competence, nor do they create rights or obligations for individuals. Thus, the degree of their justiciability is low, and they should be always interpreted in connection with more specific provisions conferring competences on the Union. That being said, they could also have empowering character inasmuch as they could justify interpreting EU competences in a broad, flexible, and strategic manner. A well-known example of such an approach can be found in the reasoning of the CJEU outlined in paragraphs 139-167 of Opinion 2/15 where the Court underlined that the general objective of sustainable development should form an integral part of the Union’s Common Commercial Policy (CCP). This allowed the Court to declare that trade-related commitments to sustainable development fall squarely within the scope of the CCP as long as they do not have explicitly regulatory character (cf. para. 166 of the Opinion).

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‘Practice what you Preach’: EU law extends to third countries the right to an effective legal remedy

The signs already bode well, but now it is firmly established: third countries are potential litigants before the EU courts in annulment actions (Article 263 TFEU). Although ‘court watchers’ may have predicted this outcome of Case C-872/19 P Venezuela v. Council (hereafter: ‘the Venezuela case’), this ruling is one that merits close attention for several reasons. There is an issue of consistency (with other lines of case law on direct concern, see below) and there is the issue of the potential wider repercussions for EU Common Foreign and Security CFSP. Yet foremost, the case merits attention (and applause) for the fact that the CJEU signals once more that the right to an effective remedy is a core value of the EU legal order, to be enforced domestically, internationally …and upon the EU itself.

The road to ‘Venezuela’

In this well documented case, the Venezuelan Government wished to challenge the restrictive measures adopted by the Council in an action for annulment (263 TFEU). In view of the dire situation in the country in terms of democracy and the rule of law, the EU attempted to weaken the Maduro administration, an administration not recognized as legitimate by several countries, including the United States. To that end the EU had adopted CFSP decision 2017/2074 that called for several restrictions to the sale of weapons and other sensitive products and services to Venezuela. Since a number of these restrictions related to competences under the TFEU, the Council adopted on the same day also Regulation 2017/2063 dealing with the sale of equipment, technology or software ‘that may be used for internal repression’ by the Venezuelan authorities. It was the latter regulation (based on article 215 TFEU) that Venezuela challenged before the General Court under 263 TFEU (the underlying CFSP Decision being largely immune from legal review under article 24 (1) TEU).

In its 2019 ruling the General Court however denied locus standi under Article 263, fourth paragraph, TFEU. It held Venezuela not to be directly concerned by the restrictions, one of the requirements for non-privileged applicants to initiate annulment actions against EU acts not addressed to them. Indeed the regulation was not addressed to Venezuela. It ‘merely’ addressed EU based operators and denied them the right to sell equipment, software or technology to their counterparts in Venezuela, be they public or private entities. Venezuela may have been prominently mentioned in the Regulation, it was not as such addressed. The Venezuelan state not being the addressee, its direct concern had to be established. By denying direct concern the General Court sidestepped the issue that was far more politically sensitive: can third states be regarded as ‘legal persons’ and thus be eligible to initiate annulment actions under 263 TFEU in the first place? In the this appeal case the CJEU had the opportunity to set this right by revisiting this point ex officio (being a legal person is after all a central part of the locus standi question, a matter of public policy to the Court).

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Cannabis Legalization in Germany – The Final Blow to European Drug Prohibition?

The new German government plans to legalize cannabis. The bill for the cannabis control law includes the licensed cultivation of the soft drug and the selling in specialized shops to persons over 18 years. The biggest EU Member states consider itself in good company: Canada legalized cannabis in 2018. A number of American states soon followed. In the EU, Luxembourg and Malta took the step towards legalization in 2021. In the Netherlands, cannabis has been freely available in the famous coffee shops since the 1970s. Still, under Article 2 of the Dutch Narcotics Law (Opiumwet) the possession of narcotics, including cannabis and its derivatives are forbidden. The fact that Dutch authorities nevertheless tolerate the sale in coffee shops (so-called gedoogbeleid) is based on the opportunity principle. This principle gives the Dutch investigating authorities discretionary power in deciding which offences to prosecute and which not. Based on this, Dutch prosecutors consider the selling and possession of limited amounts of cannabis as tolerable.

Neverthless,some legalization enthusiasts identify a global movement away from drug prohibition policies and towards a liberal approach to addictive substances. Indeed, the German approach is no less than a small revolution of over half a century of cannabis prohibition in Europe. The question remains: how is Germany going to do it without breaking international and European law? This post will explore the legal reasoning behind cannabis legalization in Europe, the legal barriers raised by the ECJ and how Germany is trying to circumvent them.

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Top ten most-read posts of 2021

by Laurens Ankersmit, Maria Haag, Jasmin Hiry, Vanessa Franssen, Benedikt Pirker, Orla Lynskey and Oliver Garner

As we are reaching the end of yet another challenging year, we would like to present you the European Law Blog’s top ten most-read blog posts of 2021. This list of top ten provides us with the opportunity to celebrate the most popular blog posts, to offer an insight into the topics that have gotten the most attention from our readers this past year, and to thank all of the authors who have contributed to our blog in these exceptional circumstances.

While posts on artificial intelligence and data transfers remain highly topical issues, our top ten nevertheless cover a variety of topics. Brexit is still a prominent topic amongst our readership, in particular issues related to the EU-UK Trade and Cooperation Agreement which was signed at the very end of 2020. The ongoing tensions between the EU and some Member States over the primacy of EU law have fostered much debate, it therefore comes as no surprise that in particular the recent decision of Poland’s Constitutional Tribunal has caught the attention of our readers.

Without further ado, here are our top ten most-read posts of 2021:

  1. Post GDPR EU laws and their GDPR mimesis. DGA, DSA, DLA and the EU regulation of AI

By Vagelis Papakonstantinou and Paul De Hert

  1. From Brexit to Eternity: The institutional landscape under the EU-UK Trade and Cooperation Agreement

By Mark Konstantinidis and Vasiliki Poula

  1. Exploring the Awkward Secret of Data Transfer Regulation: the EDPB Guidelines on Article 3 and Chapter V GDPR

By Christopher Kuner

  1. Happy birthday ERTA! 50 Years of the Implied External Powers Doctrine in EU Law

By Graham Butler and Ramses A. Wessel

  1. Algorithm Transparency: How to Eat the Cake and Have It Too

By Nazrin Huseinzade

  1. Radical rewriting of Article 22 GDPR on machine decisions in the AI era

By Paul De Hert and Guillermo Lazcoz

  1. Regulating freedom of expression on online platforms? Poland’s action to annul Article 17 of the Directive on Copyright in the Digital Single Market Directive

By Bernd Justin Jütte and Christophe Geiger

  1. Habemus a European Magnitsky Act

By Yuliya Miadzvetskaya

  1. The CJEU dismissed the People’s Climate Case as inadmissible: the limit of Plaumann is Plaumann

By Lena Hornkohl

… and with 6361 clicks, our most-read post of 2021 is:

  1. Poland’s Constitutional Tribunal on the status of EU law: The Polish government got all the answers it needed from a court it controls

By Marta Lasek-Markey

 

We would like to thank all of our readers for their interest in our blog, and our contributors for their efforts to provide their views on important developments of European law. We look forward to receiving many exciting new contributions in the coming year (send them to us through email at info@europeanlawblog.eu!). We wish you all a happy, safe, and healthy 2022!

Complete Independence of national Data Protection Supervisory Authorities: About persons, czars and data governance in Belgian debates

There is a beautiful debate about the independence of the national Data Protection Authority (DPA) in Belgium and there is a European dimension to it. While many independent administrative authorities have been created by EU law, the authorities in EU data protection law are special:  (1) they are active in enforcing fundamental rights while the others are mostly active in market regulation and (2) their independence is guaranteed by EU primary law since the adoption of the Lisbon Treaty and the Charter.

The European Commission now pursues legal action against Belgium about lack of independence of the Data Protection Authority, but the Belgium government is reluctant to see the problem. While the infringement procedure is steaming up, one of the directors of the Belgian DPA steps up, dissatisfied with attempts to make the DPA more ‘complete independent’. What is happening?   What follows is an attempt to clarify a complex multilevel interplay, topped with a sauce of Belgian surrealism. Essential documents, both on the EU side and on the Belgian side, are not public. Hence, the wealth of references to journals by the author. The story unfolds in a surprising way, without a definitive plot. Slow reading with a pleasure for the anecdotical, but a concern for the fundamental is recommended.

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EU Digital Constitutionalism, Digital Sovereignty and the Artificial Intelligence Act – A network perspective

Introduction – The Need for a Network Perspective

The European Union’s efforts to regulate various aspects of the digital age have significantly advanced recently, as the Union’s institutions reached notable milestones throughout the month of December.  On the 15th of the month, the European Parliament has held its plenary vote on the Digital Markets Act (‘DMA’), finalising the position it is going to take in the trialogues due to start in the beginning of 2022. The day before, on the 14th of December, a compromise text of the Digital Services Act (‘DSA’) had been adopted by the Parliament’s Internal Market Committee, paving the way for a plenary vote which is widely expected to take place in January 2022.

These developments came after the Parliament had started the month with a breakthrough on its work on the Artificial Intelligence Act (‘AIA’/’the proposal’), the Conference of the Committee Presidents deciding to name the Internal Market and the Civil Liberties committees as co-leaders on the file, just a few days after the Slovenian Presidency of the Council published its progress report on the file.

The fact that these files are going through the legislative process in the same time frame is proof of the EU’s understanding of the interplay between different elements of the digital age. Indeed, one of the defining characteristics of the digital era is increased connectivity. In addition to bringing people closer together, connectivity also refers to the overlaps and interactions between different technologies, from algorithms shaping the functioning of social media platforms to machine learning systems being used to process the large amounts of data internet users produce every day. Consequently, to properly understand the functioning of a specific technology, one also has to understand its interactions with other technologies and consider it as part of a network rather than in isolation.

Similarly, the general challenges that emerge as the digital revolution unfolds also require a holistic perspective and an understanding of all the elements at play and the connections between them – in other words – an understanding of the network they are part of. The purpose of this piece is to take such a holistic (‘network’) approach to the AIA proposal. The post will particularly consider this proposal in light of two central doctrines: EU digital sovereignty and EU digital constitutionalism. Having analysed the role of each and the relation between these two doctrines, the post will argue that the AIA proposal can be interpreted as an expression of both doctrines.

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