EU Policy Update - February 2019
In a nutshell: LIBE issued the 3rd Working Document identifying further issues with e-Evidence. ITRE approved its position on establishing an EU-wide Cybersecurity Competence Centre. The Romanian Presidency keeps pushing the ePrivacy file through the hurdles in the EU Council. CULT and LIBE propose more than 1000 amendments on the proposal for preventing the dissemination of terrorist content online. New rules for copyright in the EU got approved by the EU Council and JURI.
Law enforcement access
E-evidence: LIBE identifies further issues with e-Evidence before the European Parliament can move forward
The Civil Liberties, Justice and Home Affairs Committee of the European Parliament (LIBE) has issued the 3rd Working Document on the e-Evidence file assessing the role of service providers in the European Commission's initial proposal for a cross-border access to electronic evidence. The Working Document, consisting of two parts (A and B), highlights several issues concerning the service providers covered by the proposed e-Evidence package and concludes that more legal clarity for the service providers is needed in order to effectively tackle the challenges posed by increased cross-border data flows. The highlighted issues in LIBE's Working Document include, inter alia, user authentication and secure data transmission by service providers to the competent authorities; sovereign prerogatives, especially those concerning privacy rights, of Member States and legal difficulties with shifting these on private service providers; and a threat that service providers will end up in a legal limbo between law enforcement/judicial orders, data protection obligations and third country laws. Security Commissioner Julian King considered the e-Evidence proposal "a vital tool for law enforcement" during the 5th Security Dialogue with LIBE on 19 February, highlighting the need to continue work on this file as a short-term goal for the enhanced security of the EU.
ITRE adopts its report to establish EU Cybersecurity Competence Centre
On 19 February, the Committee on Industry, Research and Energy (ITRE) adopted a report on the regulation establishing the European Cybersecurity Industrial, Technology and Research Competence Centre and the Network of National Coordination Centres. The purpose of the initial proposal is to complement the EU cybersecurity agenda by supporting cybersecurity across the entire value chain, from research to the deployment and uptake of key technologies. According to the European Commission, the EU Cybersecurity Competence Centre "will also work towards supporting research to facilitate and accelerate standardisation and certification processes, in particular those related to cybersecurity certification schemes in the meaning of the proposed Cybersecurity Act". The European Parliament's position recognises the role of Free and Open Source Software projects that are commonly used for infrastructure, products and processes; and clarifies the role of the EU Cybersecurity Centre to be merely supportive in the field of cybersecurity certification, which is primarily a task of the EU cybersecurity agency ENISA. Once the European Parliament's Plenary vote has authorised ITRE to open interinstitutional negotiations, and the EU Council has adopted its position, trilogues can start.
Data protection and privacy
ePrivacy: new Presidency proposal in the EU Council
The Romanian presidency put forward another proposal for the ePrivacy Regulation to be discussed in the EU Council. The EU Council text includes the ability for communication service providers to process electronic communication data without the consent of the end-user to ensure the security, including the availability, authenticity, integrity or confidentiality of the electronic communications services, for example checking security threats such as the presence of malware or viruses, or the identification of phishing. Furthermore, the processing of electronic communications is justified to mitigate the risk of spam, according to the text. The latest additions introduced by the Romanian presidency include a possibility for Member States to impose an obligation on the providers of electronic communication services to retain electronic communications data to safeguard one or more of the general public interests for a limited period of time and longer than intended by the ePrivacy Regulation.
CULT and LIBE file amendments on the proposal on preventing dissemination of terrorist content online
Two European Parliament committees are responsible for the Parliament's position on the Proposal on preventing dissemination of terrorist content online: the Civil Liberties, Justice and Home Affairs Committee (LIBE) and the Culture and Education Committee (CULT). Since January, when both LIBE and CULT issued their Draft Report and Draft Opinion respectively on the Proposal, more than 1100 amendments collectively were filed in both committees by MEPs (here and here) to address the text of the possible parliamentary position. An explicit reference to exclude registries and registrars from the scope of the Proposal is continuously made in both committees.
EU Council and JURI endorse the deal on new rules for copyright
On 20 February, the EU Council approved the compromise text, reached in agreement with the European Parliament on new rules for copyright in the Digital Single Market. According to the agreement, any "online content sharing service provider" is liable for the content uploaded by third parties, in case there is no licensing agreement concluded with the rightsholder. Safe-harbour provisions enshrined in Article 14 of the e-Commerce Directive will no longer apply to the situations covered by Article 13 of the Copyright Directive. New online content sharing service providers, whose services have been available to the public in the Union for less than three years and which have an annual turnover below EUR 10 million, have less stringent obligations under Article 13. In the case that they are not able to conclude a licensing agreement with the respective rightsholder, online content sharing service providers need to act expeditiously, in response to a notice by the rightsholders, by removing content from their websites or disabling access to the notified works. Where the average number of monthly unique visitors of these service providers exceeds 5 million, calculated on the basis of the last calendar year, they shall also demonstrate that they have made their best efforts to prevent further uploads of the notified works. On 26 February, the deal was approved by the European Parliament's leading committee on the file - the Legal Affairs Committee (JURI) before it can be voted on again in plenum. The plenary vote will most likely take place in late March.
Outside the EU bubble
EUIPO issues a comparative study on alternative dispute resolution systems
European Union Intellectual Property Office (EUIPO) has published a comparative study comparing different national cases of alternative dispute resolution systems (DRPs) in the ccTLD and gTLD space. The selected DRPs are for all gTLDs and new gTLDs that use the WIPO-provided Uniform Domain Name Dispute Resolution Policy (UDRP), and selected ccTLDs such as .au, .dk, .eu. .it. .uk, .cn, .jp, .us, .nl. The study has concluded that, except for the Danish Domain Complaints Board (.dk), the DRPs assessed are noticeably similar to the UDRP. Some of the DRPs analysed are identical to the UDRP except for a few alterations that are mostly to align the process to the country-specific legislation. Due to these divergences across TLDs, the purpose of the study is to provide more clarity for IP rigthsholders, domain name stakeholders and policy makers.
European elections are scheduled for 23-26 May 2019. The European Parliament is a directly-elected EU institution for citizens to decide from whom they want a representation in the EU legislative body. Voting procedures and practices are established by and vary across the Member States, however the EU treaties establish general principles for the allocation of seats from each EU Member State. Currently, the number of MEPs ranges from 6 for Malta, Luxembourg and Estonia to 96 for Germany, based on countries’ population. Elections are held amongst national political parties but once MEPs are elected, the majority opts to become part of transnational political groups within the European Parliament. Most national parties are affiliated to a European-wide political party.
The UK’s withdrawal from the EU will lead to a reduction in the overall number of seats in the European Parliament, although some EU countries will get some additional MEPs. The current Parliament has 751 seats. 27 of the UK’s 73 seats will be redistributed to other countries, while the remaining 46 seats will be kept for future enlargements. This means the number of MEPs to be elected in 2019 will be 705. As a result, France and Spain will gain +5 seats, Italy and the Netherlands +3, Ireland +2, Austria, Croatia, Denmark, Estonia, Finland, Poland Romania, Slovakia and Sweden +1.
On the political level, Brexit will affect four of the present political groups: the Socialists and Democrats (S&D) group will lose 20 MEPs from the UK Labour Party; the European Conservatives and Reformists (ECR) will lose 19 MEPs from the UK Conservative Party; the Europe of Freedom and Direct Democracy (EFDD) group will also lose 19 MEPs from UK Independence Party; the Greens will lose 6 MEPs.
In 2019, in addition to the European Parliament elections, EU citizens will also have a say in electing the head of European Commission (EC). Originally, the President of the European Commission was nominated by national governments. After the changes introduced by the Lisbon Treaty (2007), the increased role of the European Parliament in appointing the President of the EC was established and further strengthened in the so-called Spitzenkandidaten process (2014). As a result, European political parties appoint their 'lead candidates' (Spitzenkandidaten in German) and the EC presidency subsequently goes to the political party that wins the most seats in the EP elections. In 2019, the Spitzenkandidaten process is expected to be repeated, despite some opposition to the so-called ‘power-grab’ of the European Parliament at the expense of the EU Council. Five parties have selected their nominees:
- The European People’s Party's (EPP) lead candidate is Manfred Weber (CSU, Germany)
- The Party of European Socialists (PES) endorsed the Commission’s First Vice-President Frans Timmermans (PvdA, the Netherlands) as its lead candidate.
- The European Conservatives and Reformists nominated Czech MEP Jan Zahradil (Civic Democratic Party, Czech Republic) as its lead candidate.
- The European Green Party elected the duo of Ska Keller (Bündnis 90/Die Grünen, Germany) and Bas Eickhout (GroenLinks, the Netherlands) as its lead candidates.
- The Alliance of Liberals and Democrats for Europe (ALDE) intends to designate a ‘team of liberal leaders’ instead of one lead candidate.