EU Law Enforcement

In 2022, dr. Olga Batura, dr. Malgorzata Kozak and dr. Mira Scholten conducted an investigation into the legal and practical aspects of the independence of National Regulatory Authorities (NRAs) in the electronic communications sector commissioned by the Body of European Regulators of Electronic Communications (BEREC). The research combined elements of the ‘law in books’ and ‘law in action’ approaches and consisted of a literature review, comparative legal analysis, expert interviews, a survey of BEREC members, a workshop with NRA experts (including case studies) and focused interviews with selected NRAs. This blog post gives a short overview of the mentioned investigation.

The study argues that full independence should be understood as the unity of practices conducive to de jure and de facto independence, meaning that the NRA is properly established, empowered, resourced, effectively functioning and accountable. The NRA’s independence decreases with each bad practice, meaning that the presence of even one bad practice in any dimension of independence implies that the NRA lacks independence to some degree. A culture of independence needs to be nurtured within NRAs and the government as a whole to support the practice and proper application of EU independence standards.

On December 15 and 16, the University of Luxembourg commemorated the work of the Doctoral Training Unit on Enforcement in Multi-Level Regulatory Systems (DTU REMS), which culminated with a closing conference and the unveiling of their published joint work, Enforcement Challenges in Multi-Level Regulatory Systems, Revealing Weaknesses and Offering Solutions (Nomos). The conference began with a presentation of the contributing PhD graduates and their supervisors. Afterwards, Dean Katalin Ligeti, coordinator of the program, was joined by the Program Manager of the Luxembourg National Research Fund (FNR), Marie-Claude Marx, and the Vice-Rector for Research of the University of Luxembourg, Professor Jens Kreisel, to share remarks on the project.

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Disclaimer: All opinions in this blog reflect the views of the author, not of the Dutch DPA.

In our digital markets, there are more and more concerns that big tech firms use their dominant position to conduct practices that could potentially be harmful to consumers and competitors. One of these practices is to present the consumer with a take-it-or-leave-it option before he or she is allowed to use a service: if you do not consent to the fact that the firm can combine and cross-use your personal data from the service with data from other services, you will not be allowed to use the service. Where firms use their dominant position to make such practices possible and when this makes the position of these firms even stronger so the market ‘tips’, the regulator could be inclined to prohibit the practice on the basis of competition law or other forms of market regulation. In the following, I introduce this practice (I). Then, I explain that the mainstream way of approaching the aforementioned practice under Article 102 TFEU has raised critique (II). Then I show how this critique could be taken away by another way of applying Article 102 TFEU, namely under the theory of harm of ‘privacy-policy tying’(III). Next, I explain that article 5 (2) of the DMA, which directly deals with the practice at hand, shows many similarities with the criticized approach of Article 102 TFEU (IV). Finally, I argue that the application of this article does not take away the critique that has been raised, which could potentially have negative consequences (V).  

The recent events in Ukraine brought to light once again the difficulties faced by refugees at the beginning and during flight and resettlement. One of the main topics that are creating tension and increased solidarity is the fate and safety of the children separated from their families and parents. In this context, the first-time activation of the (TPD) for Ukrainian refugees sets an unprecedented step forward for the right of unaccompanied minors fleeing war and serious harm to family reunification. This bold political choice also draws attention to the urgent need for revision of the current legislation regulating family reunification for international refugees or beneficiaries of subsidiary protection.

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