On 9 March 2023, the European Court of Justice delivered its long-awaited judgment in the Aquind-case shedding light on the intensity of review conducted by the boards of appeal of European Union agencies. This case concerned the Board of Appeal of the European Agency for the Cooperation of Energy Regulators (ACER) which limited itself to assessing manifest errors of assessment in its decision-making. The Court struck down this limited approach; the ACER Board of Appeal consists of both legal and technical experts and therefore must, in principle, conduct a full review of the agency’s decision. This judgment is significant as it relates to the quality of (quasi-)judicial control of administrative decision-making. This blog post aims to discuss this judgment and its implications for the system of judicial review in the EU.
How and why is expert knowledge used by the Commission in antitrust decisions against Google?
Even though the digital economy has been around for some time now, there are still doubts concerning, e.g., the way that law should be enforced in the digital context. Hence, the crucial role of expert knowledge in providing relevant insight is understandable. Due to its importance, the question of which sources, and for what reasons, should be considered as providing the relevant expertise is worth examining. In the post, I present the results of an analysis of references from the Commission’s decisions in three cases concerning Google published recently in the form of an article. The goal of the analysis was to identify references to expert knowledge, provide a classification of the roles played by these references, and confront them with the standards that the evidence used by the Commission should fulfil, as presented in the case law of the Court of Justice of the European Union (CJEU) and in doctrine. The results show that due to the variety of roles played by references to expert knowledge in the Commission’s decisions, the importance of following CJEU’s remarks on standards concerning expert knowledge is especially crucial when these sources are:
- used to support authoritative claims about digital technologies and markets, and
- in other cases, when they are indispensable for substantive analysis of the infringement itself or are not corroborating other types of evidence.
The first Annual Conference of the European Commission Legal Service:celebrating 70 years of EU law by discussing DSA, DMA, intergenerational justice and climate litigation
The European Commission Legal Service held its first Annual Conference, during which many speakers discussed the crucial changes brought by the entry into force of the Digital Services Act and the Digital Markets Act and debated on the pressing matters of intergenerational justice and climate litigation. This post aims at giving a brief summary of the event.
The first Annual Conference organised by the European Commission Legal Service was held on 17 March 2023 in Brussels. The event was also streamed online, and it represented a timely opportunity to celebrate the 70th anniversary of EU law and of the Legal Service itself. In fact, the creation of the Legal Service came with the entry into force of the Treaty of Paris establishing the European Coal and Steel Community in 1952.
The conference was kicked-off by the welcoming remarks of Mr. Daniel Calleja Crespo, Director-General of the EC Legal Service. The Director-General highlighted the importance of the two topics of the Conference, namely internet and platforms regulation (morning session) and intergenerational justice and climate litigation (afternoon session). Both topics address two Commission’s priorities for the years 2019-2024, notably “A Europe fit for the digital age” and “A European Green Deal”.
Challenges and Opportunities for algorithmic crowd surveillance
Artificial intelligence brings numerous challenges to law enforcement frameworks. As States intend to ever more rely on artificial intelligence, such use remains challenging under European law. The intent of the French government to use algorithmic crowd surveillance reflects such challenges.
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Synthesis: “From better enforcement to better lawmaking?”
On Friday 17 March RENFORCE organized a symposium with the title: From better enforcement to better lawmaking. Speakers included Prof. Gert Jan Veerman (Maastricht University), Dr. Mira Scholten (Utrecht University), Mr. Rob van de Westelaken (European Parliament), and ms. Anne-Jel Hoelen (Netherlands Authority for Consumers and Markets). The symposium sought to bridge not only lawmaking and enforcement but equally the EU and national levels; academia and practice as well as the political/technocratic divide.
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John Vervaele’s farewell speech and legacy in the field of enforcement of EU laws
On March 10, 2023, prof. John Vervaele has given his farewell speech ‘Towards a European Reassessment of Punitive Enforcement’ at the Aula of Utrecht University. In this blog post, I am discussing the main ideas of his speech and career – Europeanisation of EU law enforcement – and, in this way, I aim at giving my personal gratitude to prof. Vervaele. It has been a great honour and pleasure of working with you, John!
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The legal and practical aspects of the independence of National Regulatory Authorities (NRAs) in the electronic communications sector
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.
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On 20 January 2023, Liebrich Hiemstra defended her PhD dissertation which shows the financial side of the energy sector: the trade in energy derivatives and how such trading is supervised by EU and national regulatory authorities. One of the main findings is that the supervision in this sector is too opaque and that the effectiveness of the legal remedies available to market players is questionable.
Continue reading “Trading in Energy Derivatives: who’s watching?“Enforcement Challenges in Multi-Level Regulatory Systems, Revealing Weaknesses and Offering Solutions
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.
Differences in substantive application of Article 102 TFEU and the DMA concretized: ‘Privacy policy tying’ under Article 102 TFEU or the opt-in rule for data combination and cross use in article 5 (2) of the DMA
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).
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