EU Policy-Makers Return to Digital Single Market Log Jam

Posted on 5th September 2018

With a little over a year to go until the end of European Commission President Jean-Claude Juncker’s tenure, completion of the digital single market (DSM) is increasingly unlikely.

MEPs, bureaucrats and, lobbyists return to Brussels this week from the long summer break, faced with a dense log jam of legislative files to be completed before the Parliament is dissolved for the European elections in 2019. Miss that deadline and negotiations must start over, with a new parliament and commission in the autumn of 2019.

The scorecard for the DSM strategy launched in 2015 is mixed. Under the Bulgarian Presidency (who held the rotating presidency of the Council of the EU between January and June of 2018), the Parliament, Council, and Commission agreed on the European Electronic Communications Code and the Free Flow of Data Regulation, and trilogue talks are expected to start in autumn for the Cybersecurity Act. The presidency also brokered a delicate compromise on the Copyright Directive and made progress on the Platform to Business Regulation, with all sides agreeing on the basic scope and rationale of the legislation.

But the two most controversial and knotty proposals under the DSM remain: the ePrivacy Regulation (ePR) and the Copyright Directive. On each of these files, lobbying has been intense with MEPs bowing under pressure to amend the original Commission text.  There is also something of a relative wildcard: a yet-to-be-published new proposal to ensure online platforms remove illegal content in a timely way.

In an attempt to defuse the debate around the Copyright Directive — either the undoing of the Internet or the long-awaited means to pay creators fairly depending on who you ask — Commission Vice President for the DSM Andrus Ansip wrote a blog post calling for compromise and moderation. The leading anti-copyright campaigner in the Parliament, Julia Reda, tweeted her response advocating for a compromise text on the Copyright Directive which balances the rights of creators against those of users and providers of online platforms. A clearer picture of the status of negotiations should begin to emerge as MEPs submit their final amendments ahead of a vote in plenary on 12 September.

Work on the ePR continues at a glacial pace. The Austrian presidency has only pledged to advance negotiations on the file, stopping short of committing to brokering an opening position for the member states.

A meeting of the Council Telecoms Working Party on 27 September will be the earliest indication of any significant movement on this file. The Austrians would like to move discussions forward based on its discussion paper tabled in July, which made several substantial changes to the Council’s position, proposing to remove Article 10 (on privacy by design) and add a “legitimate interest” test to the list of permitted processing for communications metadata included under Article 6. While they have the support of industry, these changes have generated strong pushback from the more privacy-conscious member states.

Tech policy wonks will also be monitoring the e-Evidence Regulation over the coming months, which has been strongly criticised by both Mozilla and the Centre and Democracy and Technology in recent weeks for overburdening industry and failing to provide adequate privacy safeguards for citizens.

Lastly, the Commission is set to publish a new legislative instrument for removing illegal content online, limited in the first instance to material which is flagged as inciting terrorism, based on the Communication and Recommendation published in September 2017 and February 2018 respectively.

It’s make-or-break time for the DSM, it’s up to the Austrian and Romanian presidencies — with the latter taking over in 2019 —to decide whether we complete the digital single market, or whether we re-open the discussions for the next commission cycle.

Author: Matt Allison, Public Policy Manager, Access Partnership

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