Thursday, 31 December 2020

Analysis 2 of the Brexit deal: EU/UK Trade and Cooperation Agreement – overview

 


Professor Steve Peers, University of Essex

Introduction

On 1 January 2021, the transition period in the Brexit withdrawal agreement (discussed here) comes an end. Relations between the UK and EU are then governed in part by the remaining withdrawal agreement (as further discussed in this Twitter thread) and in part by the newly agreed Trade and Cooperation Agreement (TCA) between the EU and the UK. (There are also two other newly agreed treaties, on security information and Euratom).

This blog post is a summary and overview of the TCA, and is based on my Twitter thread first reading the agreement (I’ve included direct links to the tweets with screenshots of the relevant parts of the TCA text). It is not a comprehensive analysis of every provision of the agreement; it has been and will be supplemented by more detailed analyses on specific provisions of the agreement. An analysis of the social security provisions by Professor Tamara Hervey has already been published on this blog. At the end of this blog post, I’ve attached links to further reading on the treaty. (Update: later blog posts cover human rightsdispute settlement and environment and climate change).

Basic legal issues

The EU and UK have agreed to apply the TCA provisionally (this is common in international law). This ends on February 28, 2021, but the parties can agree to amend that date in the Partnership Council (which is made up of representatives of both parties).  This is to give the European Parliament time to look at the treaty closely before deciding whether to give its consent. By contrast, the UK Parliament has already passed the EU (Future Relationship) Act to give effect in domestic law to the treaty. On the EU side, some provisions for implementation appear in the Council decision on signing the treaty. The treaty is between the UK and the EU only, ie not (as is often the case) between a non-EU country and the EU and its Member States. This issue is further addressed in some of the EU institutions’ and Member States’ statements on signing the treaty, which is an ‘association agreement’ on the EU side, despite its title. The current text of the treaty is provisional and will be replaced by a ‘scrubbed’ version by the end of April 2021.

There are a number of joint declarations to the treaty, which include a reference to the possibility of the UK holding bilateral talks with Member States about return of non-EU citizens. This confirms that the EU was not willing to agree to the UK’s proposed treaty on readmission (discussed here) or child asylum seekers; and that the Dublin system (discussed here) on responsibility for asylum seekers ceases to apply to the UK. At least for now, then, the UK government’s claims that Brexit would make it easier to return non-EU citizens to the EU has proven false: it will be harder to do so. The joint declarations also include the agreed text of a protocol on UK participation in some EU programmes: mainly research-related, plus the peace programme relating to Northern Ireland.

Either side can give notice to terminate the agreement; it will end 12 months later. There are also many provisions on the termination or suspension of specific parts of the treaty. This is different from the withdrawal agreement, which contains no provision on termination of the whole treaty, but only provisions on termination of the protocol on Northern Ireland (for more on breach and termination of the withdrawal treaty, see discussion here).  Unfortunately an immediate ‘Euromyth’ has taken hold that the whole TCA terminates automatically if the UK leaves the European Convention on Human Rights (ECHR). This is not true, although it would be optional (not automatic) for either side to terminate the criminal law part of the treaty on a fast-track basis if the UK or a Member State left the ECHR.

The UK will be consulted over new countries applying to join the EU. However, this is not a veto; so the UK could not, for instance, stop Scotland joining the EU. The agreement could be amended in light of EU enlargement; but there are often amendments to EU treaties with non-EU countries when a new Member State joins the EU. Conversely, there are no provisions on what happens if more countries leave the EU, or if the UK breaks apart, or both. On the break up of the UK, it should be noted that the CJEU takes a flexible approach to the international law of state succession to treaties, so it cannot be assumed that, at least as far as the TCA is concerned, there would be no successor party to the UK.

There is a short transition period for data protection – four months, possibly extended to six months, when the UK is fully covered by EU data protection law as long as it does not make major changes to UK law on this issue. This is to give the EU Commission time to consider an adequacy decision which would simplify data flows between the UK and EU.

On the territorial scope of the agreement, certain parts apply to the Channel Islands and Isle of Man. However there are no provisions on the UK’s overseas territories (as the UK government later confirmed), and a separate treaty was being negotiated with Gibraltar (which was apparently agreed in principle on New Year’s Eve).

The TCA is governed by the basic principles of international law, with no rights for individuals except as regards social security and (on the EU side) the criminal law provisions. The CJEU only has a role as regards litigation over EU programmes. On both points, the treaty is quite different in nature from the withdrawal agreement.

Economic cooperation

Part Two of the TCA begins by noting that it establishes a free trade area for goods and services, in accordance with the WTO. WTO case law must be taken into account where relevant. (Note that a free trade agreement falls short of participation in the single market).

On trade in goods, the core rules are zero tariffs (although customs charges are possible), non-discrimination in tax and regulation, and freedom of transit. The latter two rules incorporate WTO law. The ban on quotas also incorporates WTO law. Both sides can apply trade remedies: anti-dumping duties (a purely economic concept; ‘social dumping’ is considered separately below as part of the ‘level playing field’), anti-subsidy duties and economic safeguards – which is again different from being an EU Member State. This is usual for free trade agreements.

There’s a lot of detail on rules of origin, which are necessary to show that a good originates in the EU or UK respectively. These rules are necessary because the UK left the customs union. (There’s a temporary simplification). Contrary to the Prime Minister’s false claim in Parliament, tariff-free access to the other market is dependent upon compliance with the rules of origin (see the government’s own information).

There are detailed rules on sanitary and phyto-sanitary measures, including a vague commitment to animal welfare. Also there are number of provisions on customs cooperation and technical barriers.

As for services, it’s inaccurate to say that the treaty provides for nothing on this issue; but it’s fair to say that it’s less far-reaching than the single market. There are exclusions for audio-visual and some transport services. This includes rules on admission of business visitors of various types, subject to detailed definitions and conditions. Nothing is agreed on recognition of qualifications for now (although the issue may be discussed later; and note that the withdrawal agreement secures recognition of qualifications for those who already have recognition, or who applied for it by the end of 2020). There are specific provisions on certain services, such as telecoms, delivery services and legal services; but not much on financial services, and the text on mobile roaming is a green light to charge for it.

On intellectual property, there are detailed obligations that build on WTO law as regards various types of IP (see the text on copyright, for instance). But this is different from being an EU Member State, as the detailed EU laws (subject to frequent litigation at the CJEU) on many specific IP rights will no longer apply to the UK.  There are also special sections on public procurement and energy.

On the so-called ‘level playing field’ designed to ensure perceived fair competition between the two sides, the provisions in different areas include different approaches. For competition law, there is an obligation to have and enforce a system, but no dispute settlement.  On State aid/subsidies there is a compromise: less than the EU wanted (which was full application of EU law, including references to the CJEU), but more than the UK wanted (which was a brief statement of basic rules). There are basic principles on subsidies, which are further fleshed out. On enforcement, there must be access to the courts and an independent enforcement body. Remedies must include clawing back a subsidy. If the UK and EU argue about a subsidy, there’s fast track retaliation against a subsidy, fast track arbitration on the retaliation, but limits on what the arbitrators can review.

On taxation, there’s a vague reference to international standards, a more concrete standstill, but no dispute settlement. Employment law obligations have a broad scope, and include a non-regression clause, which applies where a party drops its standards “in a manner likely to affect trade or investment”. This is a lower threshold than the test applying to divergences of future legislation. There’s also an obligation to enforce labour law effectively. Although the non-regression obligation is subject to a special type of dispute settlement, this still includes the possibility of retaliation (ie by raising tariffs) in the event of a breach.

The environmental law level playing field rules have a broad scope, with a specific definition of climate change. The non-regression rule applies the same way as for employment law; the domestic enforcement rule is vaguer, but the possibility of retaliation works the same way. There are also some general commitments to international labour and environmental law principles, but these lack the possibility of retaliation.

When it comes to divergences as regards future legislation on labour, the environment, or subsidy control, the threshold for retaliation is a ‘significant divergence’ with a ‘material impact on trade or investment’. There is no suggestion that this is the same thing as a ‘material breach’ of the treaty – ie the general international law rules relating to termination of treaties.

There are detailed rules on air and road transport, as well as fisheries, and a protocol on social security, discussed here.  The provisions on tourist visas refer to matching unilateral visa waivers for short-term visits (for discussion of the EU law, see here).

Criminal law cooperation

Part Three of the treaty is based on protection of human rights, including in the ECHR, along with data protection standards. These are enforceable by either a general power of termination of the criminal law part with nine months’ notice (on any grounds), or an option to terminate it more quickly in the event that the UK or a Member State denounces the ECHR or its first, 6th or 13th protocols (the latter two concern abolition of the death penalty). This part can also be suspended temporarily on grounds of human rights, the rule of law or data protection. There is a purely political dispute settlement process for the whole criminal law part, instead of arbitration.

As for specific rules, the UK will still be involved in transfers of data on DNA, fingerprints, vehicle registration, passenger name records, exchange of operational information, cooperation with Europol and Eurojust, extradition, transfer of evidence, money laundering, and freezing and confiscation measures.

Dispute settlement rules

The general provisions on dispute settlement broadly resemble the withdrawal agreement rules (discussed here) but with some differences. For instance, there’s no involvement of the CJEU, either directly (other than for EU programmes) or via references from the arbitrators asking it questions about EU law. There are also exclusions from the scope of dispute settlement, as well as some variations on the rules (partly discussed above).

Basically, a dispute goes to consultation. If the parties can’t agree it goes to arbitration. The arbitrators give their ruling (there are stricter deadlines for many issues as compared to the withdrawal agreement). If a party is found to have breached its obligations it has a period of time to comply. The arbitrators might have to rule on how long that is. If there’s no compliance on time the parties can agree compensation, or the parties can suspend some obligations. (This retaliation can’t apply to social security or visa rules). There can also be retaliation under the TCA for breaches of the withdrawal agreement. Suspension has to be proportionate, and arbitrators can rule on the issue of proportionality (ie it wouldn’t be proportionate to suspend the whole treaty in retaliation to a divergence of labour standards, for instance). Cross-retaliation (ie suspending services obligation in retaliation for a breach of the rules on goods) is allowed, with some limits.

Comments

Obviously the impact of the TCA, as compared to EU membership, remains to be seen. Some aspects of membership (such as zero tariffs) are retained but there are undoubtedly new trade barriers. The UK’s relationship with the EU is now on an international law footing, without involvement of the CJEU (leaving aside the closer relationship which applies within the scope of the withdrawal agreement). This essential trade off between market access and departure from the EU integration process is at the heart of the new treaty.

However, some ties – and some capacity for dispute settlement – are still retained. While the EU often settles disputes with trading partners politically (except in the WTO), the UK may prove to be different – given the scope of obligations, the extent of the trading relationship, and the fractiousness of the politics involved. The treaty contains many off ramps leading to a further disintegration of relations – not only via retaliation following dispute settlement, but via means of the many suspension and termination clauses festooned across it. But it simultaneously provides for possibilities of joining the faster lanes of association with the EU, via strengthening the relationship. Time will tell in which direction the EU/UK dynamic will develop.  

 

Further reading: Nicole Sykes on sectoral industry impact; Matt Bevington on fisheries; Edward Grange on extradition; Mark Elliott on sovereignty; George Riddell on services; Tamara Hervey on social security; Lewis Silkin solicitors on employment law; Raoul Ruparel on services; the UK State Aid Law Association on subsidy control; Michael Dougan for an overview; Gemma Davies on security cooperation; the Commons FREU Committee; the Commons Library; Katy Hayward on Northern Ireland; the House of Lords constitution committee; Catherine Barnard for an overview; Alessandro Marongiu on the car industry; the Trade Justice Movement; the ‘ERG Star Chamber’ (summary here); Joe Marshall on national implementation; M-J Clifton on arbitration; David Lidington on future relations; the Food and Drink Federation; Anna Jerzewska on customs; Alberto Nardelli on cheese; a collection of Catherine Barnard on committees, Sam Lowe on business travel and David Henig on climate change; Kim Sanderson on translation and interpretation services; Peter Foster on the fashion industry; Anna Isaac on the overall deal; Emily Rees on sanitary and phytosanitary issues; George Peretz QC on subsidy control; a collection from UK in a Changing Europe (Anand Menon, Jill Rutter, Bryce Stewart, Tim Bale and Sarah Hall); Simon Usherwood (comparison to starting positions); Sam Lowe (overview); David Allen Green (initial analysis); Simon Lester on the level playing field; James Webber on subsidies; the Institute for Government; Chris Grey (overview); Ian Dunt (overview); Aodhan Michael Connelly (Northern Ireland); Emma Gledhill (interpretation and translation services); Peter Ungphakorn (geographical indications); Jeremy Godfrey (telecoms); and Clifford Chance (overview).

 

Photo credit: Christoph Scholz, via Wikimedia commons

Barnard & Peers: chapter 27

Tuesday, 29 December 2020

Analysis 1 of the Brexit deal: Healthcare entitlements in the EU-UK Trade and Cooperation Agreement


 


 

Professor Tamara Hervey, University of Sheffield

 

What – if any – entitlements to healthcare are covered by the EU-UK Trade and Cooperation Agreement, agreed in principle on 24 December 2020? (For an overview of the agreement as a whole, see Steve Peers’ Twitter thread and the overview on this blog). (Update: later blog posts cover human rightsdispute settlement and environment and climate change in the Brexit deal).

 

Introduction

 

If there are any, they will be found in the provisions on social security coordination (Heading Four: Social security coordination and visas for short-term visits). This is the equivalent of – but, as we will see, in many respects a weak equivalent of – the provisions of EU law on social security coordination. On the other hand, these are not ‘ordinary trade agreement’ provisions: there’s nothing like this in CETA for instance.

 

Those provisions of EU law include access to healthcare for EU citizens, and their families (irrespective of citizenship), who are resident in a Member State other than the ‘competent state’ for the purposes of social security coverage, and also access to healthcare necessary during a ‘stay’ (a short-term visit, not establishing a new place of residence) in another Member State. It is this latter provision that is covered by the European Health Insurance Card (EHIC) scheme.

 

Many people want to know whether the EHIC scheme or a version of it will continue. For many people, especially elderly people, private health insurance for travel is unaffordable (health insurance companies take EHIC into account when calculating premiums) and in some cases not available. For people who have been accustomed to regularly visiting family or friends in the EU or UK, EHIC or not will make a significant difference to how they live their lives after end December 2020.

 

But in order to answer that question, I need to work through the legal text methodically, and that is what this blog does. There are multiple parts of the legal text that apply to the coordination of social security: a chapter in the main text, a Protocol, and several Annexes. I am setting out my reasoning step by step so that others can check it.

 

Interpretation and enforcement

 

The wording of the parts of the Agreement on social security coordination is complex, hard to follow, and likely to be subject to disagreement. The analysis that follows is my best-attempt on a first take: I may be wrong. In some respects, the wording of the Agreement is also opaque: in part this is because the relevant equivalent provisions of EU law and of the Withdrawal Agreement, on which this part of the Agreement draws, are also opaque. (Remember that the Withdrawal Agreement remains in force separately, including its provisions on EU citizens in the UK and UK citizens in the EU, discussed here).  That is why I’m starting this analysis with some words on interpretation and enforcement of the parts of the Agreement on social security coordination.

 

The Preamble to the Agreement recognises that social security coordination is important to human beings, not just those who are migrating as ‘economic entities’ (providing services, for example), but also their families. The Preamble also recognises that social security coordination applies not just to people who move between the UK and the EU to reside, but also to stay:

 

Preamble: “RECOGNISING the importance of the coordination of social security rights enjoyed by persons moving between the Parties to work, to stay or to reside, as well as the rights enjoyed by their family members and survivors,”

 

Provisions of the Preamble of an international agreement are an important reference point when it comes to interpretation of that agreement. Interpretation of the EU-UK Trade Agreement (‘the Agreement’) is to be in accordance with international law (not EU or UK law). This approach includes taking account of the context of the legal text, and the ‘object and purpose’ of the Agreement as a whole. It is possible – and perhaps in the context of the social security coordination rules, likely – that the interpretation of the provisions of the Agreement on social security coordination will differ between the UK and the EU Member States. In the context of this Agreement, there is nothing like the Court of Justice of the EU, or the EFTA Court, to seek to prevent such divergent interpretation:

 

TITLE II: PRINCIPLES OF INTERPRETATION AND DEFINITIONS

 

Article COMPROV.13: Public international law

 

1. The provisions of this Agreement and any supplementing agreement shall be interpreted in good faith in accordance with their ordinary meaning in their context and in light of the object and purpose of the agreement in accordance with customary rules of interpretation of public international law, including those codified in the Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969.

 

2. For greater certainty, neither this Agreement nor any supplementing agreement establishes an obligation to interpret their provisions in accordance with the domestic law of either Party.

 

3. For greater certainty, an interpretation of this Agreement or any supplementing agreement given by the courts of either Party shall not be binding on the courts of the other Party.

 

The agreement will, however, be interpreted by the courts in the UK and the EU separately, and is subject to the treaty’s dispute settlement process (as noted below).

 

The EU Member States and the UK are obliged to ‘coordinate’ their social security systems, in accordance with the Protocol on Social Security Coordination. The object and purpose of this coordination is ‘in order to secure the social security entitlements of the persons covered therein’ (Ch.SSC.1).

 

This is one of the few parts of the Agreement that has individual human beings as its focus. In general, the Agreement does not confer rights or impose obligations on human beings or legal persons. There is no provision for directly invoking the Agreement in domestic law. The Agreement is an instrument of international law, conferring obligations on the Parties to the Agreement (the EU, its Member States and the UK). It is totally different to EU law in this regard. It is also totally different to the Withdrawal Agreement, which includes a significant number of citizens’ rights provisions, and special measures for its enforcement.

 

Article COMPROV.16: Private rights

 

1. Without prejudice to Article MOBI.SSC.67 [Protection of individual rights] and with the exception, with regard to the Union, of Part Three [Law enforcement and judicial cooperation], nothing in this Agreement or any supplementing agreement shall be construed as conferring rights or imposing obligations on persons other than those created between the Parties under public international law, nor as permitting this Agreement or any supplementing agreement to be directly invoked in the domestic legal systems of the Parties.

 

2. A Party shall not provide for a right of action under its law against the other Party on the ground that the other Party has acted in breach of this Agreement or any supplementing agreement.

 

The social security rights under the Agreement must be protected by each Party’s domestic legal order. The Parties have agreed that human beings (and companies) must be permitted, by domestic law (not by the Agreement itself) to invoke the provisions of the Agreement before domestic courts, tribunals and administrative authorities, and thus to seek ‘adequate and timely’ remedies for any breach. The word ‘and’ suggests that courts and tribunals must be included in the arrangements made for enforcing social security coordination rights under the Agreement, and that only providing for an administrative process, such as Ombudsman or other complaints process, would not be compliant with the Agreement.

 

TITLE V: FINAL PROVISIONS

 

Article SSC.67: Protection of individual rights

 

1. The Parties shall ensure in accordance with their domestic legal orders that the provisions of the Protocol on Social Security Coordination have the force of law, either directly or through domestic legislation giving effect to these provisions, so that legal or natural persons can invoke the said provisions before domestic courts, tribunals and administrative authorities.

 

2. The Parties shall ensure the means for legal and natural persons to effectively protect their rights under this Protocol, such as the possibility to address complaints to administrative bodies or to bring legal action before a competent court or tribunal in an appropriate judicial procedure, in order to seek an adequate and timely remedy.

 

In the UK, such a process for protection of individual rights is likely to be through the Social Security and Child Support Tribunals, in the first instance, with appeal to the Upper Tribunal (Administrative Appeals Chamber). Note that the draft UK bill giving effect to the TCA simply copies its social security provisions into domestic law (clause 26).

 

Who is covered?

 

The Protocol on Social Security Coordination applies only to ‘situations arising between one or more Member States of the Union and the United Kingdom’ (Ch.SSC.3 (1)). People whose situations are confined in all respects to either the UK or the EU Member States fall outside the scope of the Protocol (Ch.SSC.3 (2)). There is no further definition of this scope rule. Do I fall within the scope of the Protocol if I visit the EU from the UK? If I’m providing a service under the Agreement’s provisions on services (eg SERVIN 4.1, 4.2, 4.3, 4.4, on performance of economic activities through the entry and temporary stay in the territory of the EU/UK of natural persons of the UK/EU, who are business visitors for establishment purposes, contractual service suppliers, independent professionals, intra-corporate transferees and short-term business visitors), then it would seem obvious that I fall within the scope of the Protocol. Equally, I would argue that if I am visiting the UK from the EU or the EU from the UK, as a tourist, or for other non-economic reason (eg to visit family or friends), on the basis of the visa-free travel provided for under the Agreement (Article VSTV.1), I also fall within its scope.

 

But this looks suspiciously like a continuation of aspects of free movement of persons, an inseverable part of the disciplines of the internal market, according to the EU’s negotiating position. My counter-argument to that position is that the coordination of social security, while linked to the internal market as it supports free movement of persons in practice, is not an integral part of harmonised internal market law in the way that the EU law provisions on entry, residence or non-discrimination in employment or self-employment rights are. This interpretation is supported by the fact that the Agreement includes provisions on entitlement to social security benefits (healthcare under a national health system) during a stay in the UK/an EU Member State (see further below).

 

The definition of who is covered by the Protocol on Social Security Coordination is based on the EU law on coordination of social security: people who are ‘subject to’ the social security legislation of one or more States (the UK, EU Member States), their families and their survivors (Article SSC.2 of the Protocol). Curiously, ‘subject to’ is not further defined, either in this Agreement, or in the Withdrawal Agreement, or in EU Law. In many situations, being ‘subject to’ social security legislation will be obvious: if one is paying social security contributions (eg for a pension), or receiving benefits (eg for invalidity or unemployment), then one is obviously ‘subject to’ the legislation. But in other situations, it is less obvious. Is someone who contends that they fall within the scope of the relevant social security rules ‘subject to’ those rules? The Agreement includes some provision on what happens if there is disagreement about whether someone falls within its scope (see below).

 

The Agreement further specifies that, in principle, the Protocol on Social Security Coordination applies only to people who are lawful residents of the UK or an EU Member State (Ch.SSC.2 in the main Agreement). But this rule does not affect ‘entitlements to cash benefits which relate to previous periods of legal residence of persons covered by Article SSC.2’). So someone might no longer be lawfully resident in the EU or UK, but still fall within the scope of who is covered by this part of the Agreement, for example if they are entitled to pension benefits under the Agreement, but live outside of the EU and UK.

 

What is covered?: General rules

 

The Protocol on Social Security Coordination covers all the main branches of social security that are covered by EU law and by the Withdrawal Agreement. These include ‘sickness benefits’ (Article SSC.3 (1) (a)) (in cash or in kind) – that is, medical treatment. Like in EU law and the Withdrawal Agreement, medical assistance is not covered (Article SSC.2 (4) (b)). Neither is voluntary social insurance, unless it is the only social insurance scheme for the particular branch of social security in the relevant State (Article SSC.13). Neither are ‘assisted conception services’ (Article SSC.3 (4) (e)), defined as ‘any medical, surgical or obstetric services provided for the purpose of assisting a person to carry a child’ (Article SSC.1 (c)). Just to be clear, Article SSC.5 explicitly excludes the matters listed in Article SSC.3 (4) from the general non-discrimination principle (Article SSC.5).

 

EU Member States and the UK may charge a health fee as part of an application to enter, stay, work or reside in that State (Ch.SSC.4). But given that, at least until due notification is given, and if possible at least 3 months before a requirement for visa for a a short-term visit take effect, visa-free travel for short term visits applies between the UK and EU Member States (Article VSTV.1), I think that this provision must apply in practice, at least in the short term, only to applications for residence or work permits, not for visitor entry or short-term visits.

 

The general rules (and there are exceptions) for the Protocol are that (Article SSC.4) social security coordination rules are on the basis of non-discrimination between Member States of the EU. However, this rule is without prejudice to the Common Travel Area arrangements between the United Kingdom and the Republic of Ireland. To access Irish state healthcare, UK nationals need show either an EHIC, or proof of their UK residence. This continuation of the existing rules from 1 January 2021 is confirmed in the UK government’s website.

 

In general (again there are exceptions), the people who are covered by the Protocol enjoy the same benefits (and are subject to the same obligations) as the nationals of the relevant State (Article SSC.5). In general, the Protocol applies a principle of ‘equal treatment of benefits, income, facts or events’ (Article SSC.6).

 

There are two key aspects to this. First, if receipt of social security benefits (or income) has certain legal effects in one State, that State must also recognise equivalent benefits (or income) acquired under the legislation of another state. Second, where legal effects flow from facts or events taking place in one State, that State must take into account ‘like facts or events’ taking place in another State, as if they had taken place on the territory of the first State (Article SSC.6 (a) and (b)). In general, the Protocol requires the aggregation of periods of social insurance, employment, self-employment or residence, completed in any of the States Parties to the Agreement (Article SSC.7). There is a whole section of ANNEX SSC-7: Implementing part on specifics of the aggregation rules (Article SSCI.11 and 12). In general, receipt of cash benefits under the Protocol must not be made conditional on residence (Article SSC.8). All of these provisions are similar to those in the Withdrawal Agreement (Article 31 WA) and in EU law (Regulation 883/2004/EC, Articles 4,5,6,7).

 

Again, as in the Withdrawal Agreement and in EU law, the ‘single state rule’ applies. In general, ‘persons to whom this Protocol applies shall be subject to the legislation of a single State only’ (Article SSC.10). The starting point here is employment or self-employment, and only if neither applies does residence become relevant. If someone is employed or self-employed in a State, that State is the State whose social security legislation they are ‘subject to’ (Article SSC.10 (3) (a) (b)). There are rules for people who normally are employed in both the UK and one or more EU Member States (Article SSC.12): basically if someone is resident where they perform a substantial part of their work, that is the relevant state; if not, the place in which the employer is registered; or the ‘centre of interest’ of the activities of a self-employed person is the relevant state. There is, obviously, lots of room for interpretation of these rules in specific situations.

 

If someone is neither employed nor self-employed, the general rule is that their residence (which means ‘where the person habitually resides’ Article SCC.1 (aa)) determines the relevant State. There is a whole section of the ANNEX SSC-7: Implementing part on the elements for determining residence (Article SSCI.10). There are special rules for people who work on ships and aircraft (Article SSC.10 (4) and (5)).  

 

Like many international agreements, the Protocol on Social Security Coordination allows for States Parties to derogate from its general terms in some respects. The Protocol allows Member States to derogate from the single state rule for ‘detached workers’ (Article SSC.11). ‘Detached workers’ are either employed by an employer in a State which normally carries out its activities there, and sent by their employer to another State to work on the behalf of that employer; or self-employed and normally pursuing a self-employed activity in one State, and who go to another State to pursue a similar activity (Article SSC.11 (1) (a) and (b)). There is no list of these Member States yet in the text (see p 1246). Article SSC.11 obliges the European Union to notify the UK, by the time the Agreement enters into force, whether each Member State falls into one of three categories: A: the Member State wishes to derogate from the general rules of the Protocol on which state is the state responsible for social security (Article SSC.10); B: the Member State does not wish to so derogate; or C: the Member State has not indicated either A or B. That list of three categories of Member States will become Annex SSC-8, when the Agreement enters into force. One month later, categories B and C will cease to exist. Member States in category C will be deemed to be in category A for one month. After that, such a Member State can join category A by the Union notifying the new Specialised Committee on Social Security Coordination (see below) to that effect. A Member State can leave category A in the future by the same mechanism. For Member States in category A, transitional rules for ‘detached workers’ will apply for a 24 month transitional period.

 

This is one of a myriad of examples of Brexit not being ‘done’.

 

What is covered? ‘Sickness benefits’

 

Title III of the Protocol sets out special provisions for each category of benefits (pensions, unemployment benefit and so on). Chapter 1 concerns sickness benefits. Like in EU law, there is a set of rules for ‘insured persons’ (people ‘subject to’ social security legislation of the ‘competent state’, and members of their families) and a separate set of rules for pensioners and members of their families.

 

‘Insured persons’ and their families who are resident in a State other than the competent state, are entitled to receive in the State of residence ‘sickness benefits in kind’ provided by the ‘institution of the place of residence’, as though those people were insured under the legislation of the place of residence (Article SSC.15; Article SSC.21 (pensioners)). People in this category include frontier workers (who live in one state and work in another – special rules apply to them (Article SSC.16)); posted workers (who are sent by their employer to work in another state); and also people who return home for intervals longer than a week (the frontier worker definition).

 

So, if someone is ‘subject to’ UK social security legislation for the purposes of receiving healthcare in the UK, because under the UK legislation they are deemed ‘resident’ in the UK (that being the national rule determining access to the NHS), and they are employed or self-employed in the UK (see the single state rules above), but they are also deemed ‘resident’ in Spain by Spanish legislation, because they are in Spain sufficiently to count as ‘resident’ under Spanish legislation, this provision of the Protocol entitles them to access Spanish healthcare as if they were insured under the Spanish legislation. These provisions are almost identical to the equivalent provisions of EU law (Regulation 883/2004, Articles 17 and 18, 23-26).

 

Articles SSC.17 and SSC.25 (pensioners) cover ‘stay’ outside the competent State. This is the equivalent of the EHIC provision in EU law. It entitles an insured person, and members of their family, who are staying in a state other than the competent state, to healthcare which becomes necessary on medical grounds during their stay. The determination of necessity must take account of the nature of the healthcare or medical treatment and the length of the stay. It is the healthcare provider in the state providing the healthcare that determines necessity. The entitlement under Article SSC.17 or SSC.25 does not cover someone who travelled with the purpose of receiving the healthcare or medical treatment. (There is an exception for a passenger or someone working on a ship or aircraft, who became ill during the voyage or flight). These provisions are almost identical to the equivalent provisions of EU law (Regulation 883/2004, Articles 19 and 20, 27).

 

Healthcare provided under these provisions must be fully reimbursed by the competent State (Article SSC.30).

 

What is different from EU law is that a person seeking to receive healthcare or medical treatment during a stay outside the competent state must present a ‘valid entitlement document’. The entitlement document is covered in Appendix SSCI-2. For EU Member States, the valid document is essentially the EHIC: it has to comply with the technical specifications of the relevant EU law determining EHIC cards (Decision No S2 of 12 June 2009 of the Administrative Commission concerning the technical specifications of the European Health Insurance Card) (Appendix SSCI-2 1). For the UK, the entitlement document has to contain the following information ((Appendix SSCI-2 2):

 

(a) surname and forename of the document holder;

(b) personal identification number of the document holder;

(c) date of birth of the document holder;

(d) expiry date of the document;

(e) the code “UK” in lieu of the ISO code of the United Kingdom;

(f) identification number and acronym of the United Kingdom institution issuing the document;

(g) logical number of the document;

(h) in the case of a provisional document, the date of issue and date of delivery of the document, and the signature and stamp of the United Kingdom institution.

 

The UK must notify the Specialised Committee on Social Security Coordination ‘without delay’ of the technical specifications of the UK document ((Appendix SSCI-2 3).

 

The UK government’s website explains that people who have valid EHICs will be able to continue to use them from 1 January 2021, to access necessary healthcare on a visit to an EU country. For Norway, Iceland, Liechtenstein and Switzerland, a new GHIC (UK Global Health Insurance Card) is available. When someone’s EHIC expires, they will be able to apply for a GHIC for free.

 

Appendix SSCI-2 confirms that the entitlements under Article SSC.17 of the Protocol on Social Security Coordination include medical treatment for pre-existing illnesses and chronic conditions, as well as medical treatment in conjunction with pregnancy and childbirth, unless the purpose of the trip is to receive these treatments (see p 1244). But for vital medical treatment that is only available through a specialised medical unit, authorisation in advance is required before the trip. This includes (but is not limited to)

 

(a) kidney dialysis;

(b) oxygen therapy;

(c) special asthma treatment;

(d) echocardiography in case of chronic autoimmune diseases;

(e) chemotherapy.

 

So some medical treatments that used to be available under the EHIC scheme will after 31 December 2020 only be available if the relevant State (the UK or EU Member State) gives prior authorisation. This will be the case, for instance, for UK patients accessing kidney dialysis in EU Member States. As far as I am aware, the UK has not yet indicated whether it will authorise such treatments, or under what conditions.

 

As in EU law, there is scope for authorisation of medical treatment in another State under the Agreement. The UK used this provision infrequently when it was an EU Member State. Some Member States, eg Malta, rely on it significantly. If authorised, there is an obligation on the healthcare institution of the place to which the person authorised travels to provide the medical treatment authorised as if the person was insured in that State (Article SSC.18). There is also, as in EU law, in effect an obligation to grant authorisation ‘where the treatment in question is among the benefits provided for by the legislation in the State where the person concerned resides and where that person cannot be given such treatment within a time limit which is medically justifiable, taking into account their current state of health and the probable course of their illness’ (Article SSC.18). This provision also gives entitlements to family members of the ‘insured person’. There is provision for if the family members and the insured person reside in different States.

 

This provision (the ‘S2’ in EU law, Regulation 883/2004, Article 20) is used relatively infrequently between Great Britain and the EU, but several hundred people a year do rely on it to receive health care across the border between Northern Ireland and the Republic of Ireland. The question of whether a time limit before which someone receives treatment is ‘medically justifiable’ is obviously contentious. When the UK was an EU Member State, EU law was used to seek judicial review of this question, and a number of English NHS Hospital Trusts reduced waiting times for elective procedures such as hip replacements in response. Apparently there is ongoing litigation in Northern Ireland which seeks judicial review of the NHS there for breaching waiting time limits, in part relying on EU law. Given the COVID-19 context, we might see further attempts to use litigation before domestic courts in a similar way in the future – reliant on the domestic legislation implementing the Agreement, rather than the Agreement itself.

 

Article SSC.19 makes provision for those States which provide cash benefits for healthcare, rather than benefits in kind. This is the direct equivalent to the relevant provision of EU law (Regulation 883/2004, Article 21).

 

Implementation, Administrative Arrangements and Dispute Settlement

 

Annex SSC-7: Implementing Part sets out significant detail on the practicalities of implementing the parts of the Agreement on Coordination of Social Security. There is an obligation on the UK and the EU Member States to ‘provide or exchange all data necessary for establishing and determining the rights and obligations of persons to whom the Protocol applies’ and to do so ‘without delay’ (Article SSCI.2). A Specialised Committee on Social Security Coordination is empowered to authorize – if it so decides – the use of the EU’s Electronic Exchange of Social Security Information for exchange of information. If this decision is taken, the rules applying to that system (which are rules of EU law) will apply (Article SSCI.4 (2)).

 

There is an obligation to make sure necessary information is made available, so that people concerned are able to assert their rights under the Protocol and Annex (Article SSCI.3 (1). Information must be forwarded, and documents issued, ‘without delay’ and in accordance with any time limits specified in national legislation (Article SSCI.3 (3)).

 

If a decision is made to refuse benefits, reasons must be given, and information communicated about remedies and time periods for appeals (Article SSCI.3 (3).

 

Where there is a difference of views between States on what is the applicable legislation or on which is the competent state which is responsible for providing cash benefits or benefits in kind (eg medical treatment), there is an obligation under the Agreement to provisionally apply the legislation of one State (Article SSCI.6 (1) and (2)). For determining applicable legislation, this State is the state where the person actually pursues employment or self-employment, if there is such a state; or the state of residence if the person concerned pursues employment or self-employment in two or more States and performs part of their activity or activities in the State of residence, or if the person concerned is neither employed nor self-employed. In all other cases, it is the State to which a claim was first made, if the person pursues an activity, or activities, in two or more States.  For determining the competent state, the legislation of the person’s place of residence applies or, if that person does not reside on the territory of one of the States concerned, that person is provisionally entitled to the benefits provided for by the legislation applied by the institution to which the request was first submitted.

 

These provisions mean that people should not be left in limbo while complex cases are decided.

 

There is provision for bilateral procedures between States to depart from those in the Annex, provided that they do not have an adverse effect on people’s rights (Article SSCI.8). The bilateral procedures have to be notified to the Specialised Committee on Social Security Coordination and listed in the Appendix SSCI-1, thus securing (at least some) transparency. Any pre-existing bilaterals serving the same or similar purposes to the social security provisions in the Agreement will continue to apply, but they must also be listed in Appendix SSCI-1.

 

Finally, the Agreement includes provisions for a Specialised Committee on Social Security Coordination, which addresses matters covered by Heading Four of Part Two and the Protocol on Social Security Coordination (INST.2 (p)); and for Parliamentary Cooperation and participation of civil society (INST.5; INST.6; INST.7).  These will be important sites for scrutiny of compliance with the Agreement, any future divergence in interpretation of obligations, and (given that the role for an over-seeing court is non-existent) for legal contestation. It will be important to ensure that the UK Parliament, and, where appropriate the Parliaments in Northern Ireland, Scotland and Wales exercise oversight over executive powers; and to ensure that relevant NGOs are represented in the civil society processes.

 

Article INST.2 (2) … Specialised Committees shall have the power to: (a) monitor and review the implementation and ensure the proper functioning of this Agreement or any supplementing agreement; … (c) adopt decisions, including amendments, and recommendations in respect of all matters where this Agreement or any supplementing agreement so provides or for which the Partnership Council has delegated its powers to a Specialised Committee in accordance with point (f) of Article INST.1(4) [Partnership Council]; (d) discuss technical issues arising from the implementation of this Agreement or any supplementing agreement; (e) provide a forum for the Parties to exchange information, discuss best practices and share implementation experience; (f) establish, supervise, coordinate and dissolve Working Groups; and (g) provide a forum for consultation pursuant to Article INST.13(7) [Consultations] of Title I [Dispute Settlement] of Part Six.

 

The Specialised Committee on Social Security Coordination will have power to make recommendations (which have no binding force) and decisions, by mutual consent (INST.4) Decisions adopted by the Specialised Committee on Social Security Coordination will have binding force on the Parties to the Agreement (INST.4). The Committee will make decisions, for instance, on ‘the structure, content and format of forms and documents issued on behalf of the States for the purposes of implementing the Protocol’ (Annex SSC-7, Article SSCI.4 (1)). The Committee is tasked with reconciling differing points of view on ‘information provided by the persons concerned, the validity of a document or supporting evidence or the accuracy of the facts on which the particulars contained therein are based’ (Article SSCI.5 (4).

 

The Agreement’s general provisions on dispute settlement also apply to the social security coordination provisions (Article INST.10: Scope), although not in individual cases (Article INST.10(5)). Note that it's not possible, in the event of a successful complaint by one party about breach of the treaty, to retaliate by suspending the social security provisions (Article INST.24(3)(b)). This also applies to successful complaints about breaches of the withdrawal agreement (Article INST.24(4)).  Other people will already have written about this – but the basic message here is that this is international law, not anything like EU law.

 

Conclusion

 

In summary, this is a significantly better settlement than No Deal at the end of transition would have been, from the point of view of people who relied on EU law to receive healthcare and medical treatment in the UK or an EU Member State.

 

For UK/EU residents, in the EU/UK access to healthcare continues on the same basis as national residents, as before. For visitors, a form of EHIC entitlements are preserved going forward.

 

What is different is the legal basis on which these rights are enjoyed, with corresponding implications for how rights are enjoyed and enforced. All will be well so long as the parties to the Agreement comply with their obligations under it.

 

* This post was amended on January 1, 2021, to add details about the absence of a power to suspend the social security provisions pursuant to the dispute settlement rules, and on January 2, 2021 to add a link to the overview of the trade and cooperation agreement published on this blog.   


Barnard & Peers: chapter 27

Photo credit: Health Europa





Wednesday, 16 December 2020

Overview of Digital Services Act


 


Professor Lorna Woods, University of Essex

 

The following is a summary of the proposal for the Digital Services Act, based on the leaked version of the document. 

Background 

The legal regime for online services has been unchanged since the e-Commerce Directive and as such it reflects the technology, services and thinking of more than twenty years ago.  The Commission committed to updating these horizontal rules in its Communication, Shaping Europe’s Digital Future (Feb 2020).  A number of European Parliament resolutions, while calling for revisions, also emphasised that some core principles from the e-Commerce Directive still remain valid.  So the Digital Services Act (DSA), which is proposed as a regulation not a directive, does not repeal the e-Commerce Directive but builds on it, including the internal market principle found in Art 3 e-Commerce Directive.  It is therefore envisaged that there be one Member State with regulatory responsibility for a service provider, that is the Member State in which the main establishment of the provider of intermediary services is located (article 40).  By contrast with the Audiovisual Media Services Directive (AVMSD), this is a very simple provision.  The proposal does however delete the immunity provisions (Arts 12-15 e-Commerce Directive) and replaces them with a new structure which claims to recognise the impact of some very large actors on not only the economy but also European society.  Note the e-Commerce Directive allowed Member States to take their own regulatory action within the limits imposed by EU law; it does not seem that this proposal completely harmonises the field either. 

The Regulation does not deal with other information society services (which remain regulated by the e-Commerce Directive); its relationship with sector-specific rules (notably the provisions relating to video-sharing platforms in the AVMSD) will need to be considered.  As lex specialis, those rules will apply in preference to the more general rules here – though the general rules could cover any gaps in that regime.  The rules do not displace the general consumer protection rules either and the DSA is without prejudice to the operation of the GDPR. 

Regulated Entities 

The DSA distinguishes between four levels of actors, all based on the definition of ‘information society service’ (and presumably to be interpreted in the light of the Uber judgment): 

-          providers of intermediary services (defined Art 2(f));

-          hosts and online platforms providers (defined Art 2(h));

-          online platforms; and

-          very large online platform providers (defined Article 25). 

Online platforms could include social networks and online marketplaces (recital 13). Where the function is ancillary to another service, that service would not be caught by these rules. Notably, the press comments sections would not be included.  There is a boundary issue between closed groups which could in principle fall in the regime and information shared within groups consisting of a finite number of pre-determined persons.  Interpersonal communication services within the meaning of the European Electronic Communications Code (EECC) (Directive 2018/1972) – for example emails or private messaging services, fall outside the scope of the proposed Regulation (Rec 14). 

Each is subject to a different set of rules; this is in the interests of proportionality – though it is questionable whether this differentiating recognises that some small platforms are used as the basis for extremism and other potentially dangerous activities. Note also that the ‘very large platforms’ are defined by reference to use by population at the EU level, potentially overlooking national platforms of significance. This also means that the definition of very large platform is under EU level control. 

Chapter II: Retention of Immunity for Content of Third Parties 

The baseline positions seems to be a retention of the position under the e-Commerce Directive; that is, immunity from liability for content transmitted (and not immunity from all rules) provided that the service provider “acts expeditiously to remove or to disable access to the information” and a restatement that there is no general obligation to monitor – though this is linked to the information the intermediaries transmit or store (Article 7).  Whether we read these provisions in the light of the jurisprudence on the e-Commerce Directive provisions remains to be seen; the recitals which refer to technical and automatic processing of information (recital 18) suggest that this might be the case. In passing, it is unclear how this might interact with the proposed exception to the e-Privacy Directive as regards the fight against child sexual exploitation material (COM(2020) 568 final). This is the retention of the ‘conditional immunity’ approach from the previous regime. The fact that the immunity does not apply to all rules is made explicit as regards hosting service providers; Art 5(3) states that immunity “shall not apply with respect to liability under consumer protection law of online platforms allowing consumers to conclude distance contracts with traders ….”.  Article 6 seems to constitute a form of ‘Good Samaritan’ clause.  Another addition is the obligation to act in relation to orders in relation to a specific item of illegal content. “Illegal content” is a defined term, meaning 

any information, which, in itself or by its reference to an activity, including the sale of products or provision of services is not in compliance with Union law or the law of a Member State, irrespective of the precise subject matter or nature of that law. (art 2(g)) 

The recitals give us more detail, though this is not an exhaustive definition: 

-          illegal hate speech or terrorist content and unlawful discriminatory

-          content, or that relates to activities that are illegal, such as the sharing of images depicting child sexual abuse, unlawful non-consensual sharing of private images, online stalking, the sale of non-compliant or counterfeit products, the non-authorised use of copyright protected material or activities involving infringements of consumer protection law (rec 12). 

There are also provisions regarding the provision by the intermediary service operator of information about specific recipients of the service.  These two provisions seem to be part of the procedural tidying up of weaknesses in the operation of the e-Commerce Directive. 

Chapter III: General Rules 

There are some specific obligations with regards all intermediary service providers: 

-          establishment of single point of contact (SPoC);

-          establishment of legal representative within EU for providers which are not established in the EU;

-          providers are to implement their terms and conidtions in a ‘diligent, objective and proportionate manner’;

-          except for micro or small enterprises, publish, at least once a year, clear, easily comprehensible and detailed reports on any content moderation they engaged in during the relevant period (content of rules specified in directive). 

Hosting providers, including online platforms, are subject to additional rules: 

-          reporting mechanisms for illegal content (containing specific elements) – these are called ‘notice and action mechanisms’ though this is not a defined term – the recitals envisage these applying to file storage and sharing services, web hosting services, advertising servers and paste bins (recital 40);

-          providing a statement of reasons in relation to a decision to remove/disable access to specific items of content and the information to be included in the statement of reasons are set out in Art 15(2);

-          decisions are to be made available in a database managed by the Commission. 

While there is a focus on problem content, the obligations themselves are not about defining such content but rather about the mechanisms that the platforms should have in place to deal with problems, a point recognised in the recitals (recital 26).  This shift can be seen in the more extensive obligations imposed on the online platforms, especially the very large online platforms and seems to be part of a more general policy shift across a range of countries. 

Chapter III: Rules Relating to Online Platforms 

Online platforms, other than micro and small enterprises, are subject to more specific rules found in Section 3. Online platforms are to provide the following: 

-          access to an effective, free internal complaint-handling system in relation to decisions to suspend an account or remove/disable content (it is not clear what the position is for someone who has complained about content but that content has not been removed)

-          out of court dispute settlement system in relation to disputes against the platform (not this is without prejudice to other routes available to users)

-          assumes a trusted flagger system, which allows those notices to be dealt with without delay

-          trusted flaggers must meet certain criteria and notes that Europol or the INHOPE organisations would meet these criteria (recital 46). 

They are subject to the following additional obligations: 

-          Online platforms are obliged to suspend, for a reasonable period of time and after having issued a prior warning

-          the provision of their services to recipients of the service that frequently provide manifestly illegal content and/or

-          the processing of notices and complaints by individuals or entities or by complainants that frequently submit notices or complaints that are manifestly unfounded

-          platforms are obliged to notify suspicion of criminal activity

-          platforms are required to ensure that traders using their platforms must be traceable (giving specified information). 

There are enhanced transparency reporting requirements, including transparency of online advertising (that the information is an advertisement; who placed it and why the user is seeing that ad, including information relating to any profiling (recital 52)). 

Chapter III: Very Large Online Platforms

 Section 4 deals with ‘very large online platforms’; that is platforms with active participants in the EU of 45 million or more.  The proposal highlights the systemic risks posed by such platforms, influencing online safety, shaping public opinion as well as online trade. They are therefore subject to further obligations on top of those already set out: 

-          6 monthly assessment of ‘any significant systemic risks’ including:

-          dissemination of illegal content, for example the dissemination of child sexual abuse material or illegal hate speech, and the conduct of illegal activities, such as the sale of products or services prohibited by Union or national law, including counterfeit products;

-          negative effective on the right to private and family life, freedom of expression, the prohibition of discrimination and certain rights of the child, and

-          intentional manipulation of the service ‘with an actual or foreseeable negative effect’ on ‘public health, minors, civic discourse, or actual or foreseeable effects related to electoral processes and public security’ (art 26(1));

-          in making this assessment the platforms should take into account the functioning of content moderation, recommender algorithm systems and targeting of adverts and also notes the role of fake accounts, the use of bots, and other automated or partially automated behaviours;

-          implementation of ‘reasonable, proportionate and effective mitigation measures’;

-          these measures are to be independently audited – those doing the audit have to meet certain criteria including “proven objectivity and professional ethics, based in particular on adherence to codes of practice or appropriate standards”; 

There are reporting requirements in relation to risk assessment, risk mitigation and auditing processes: 

-          explanation of parameters used in recommender systems, and provision to allow user to modify such systems;

-          additional transparency as to online advertising by instituting a repository of adverts;

-          provision of data that is necessary to monitor compliance with this regulation;

-          provisions of access to vetted researchers (ie attached to academic institutions and ‘independent from commercial interests’ (how this affects research institutions which have received significant grants from ‘Big Tech’ is unclear) and

-          required to have a compliance officer (who must have certain professional experience/qualifications). 

Transversal Provisions concerning Due Diligence 

Section 5 deals with standards (Art 34) and codes of conduct (Art 35) to support the functioning of the systems and the due diligence requirement.  Civil society may be involved in the development of codes in addition to service providers and other interested parties. Article 36 puts an obligation on the Commission to “encourage and facilitate the drawing up of codes of conduct at Union level” in relation to transparency of online advertising. In a pandemic world it is unsurprising that the draft also makes provision for ‘crisis protocols’ dealing with “extraordinary circumstances affecting public security or public health” (Art 37).  The recitals suggest the following as constituting “extraordinary circumstances”: “any unforeseeable event, such as earthquakes, hurricanes, pandemics, war and acts of terrorism, where, for example, online platforms may be misused for the rapid spread of illegal content or disinformation or where the need arises for rapid dissemination of reliable information” (recital 70). 

Institutions and Enforcement 

Chapter IV deals with the institutions for implementation and enforcement.  The system requires regulator(s) at national level. A Member State must designate such a responsible body as its Digital Services Coordinator (DSC). There are provisions in cross border cases for cooperation between DSCs.  A European Board for Digital Services (EBDS) is established to advise the respective DSCs and the Commission. There are questions of possible overlap between the remit of this body and that of ERGA – the equivalent body set up under AVMSD – at least as regards the video sharing platform provisions. 

The DSC coordinates the national response and has specific tasks under the regulation (see specifically Art 41). While the DSC is to carry those tasks out in an ‘impartial, transparent and timely manner’ and to ‘act with complete independence’ (Art 39), it does not appear that the DSC needs to be independent in the same was the national supervisory authority is required to be independent in the telecommunications, audiovisual and data protection fields.  The Regulation lists the minimum enforcement powers to be granted to the DSC including the power to accept commitments, the power to order cessation of infringements and to adopt interim measures; the power to impose fines. In extreme circumstances it is envisaged that the DSC may “request a competent judicial authority of that Member State to order the temporary restriction of access of recipients of the service concerned by the infringement or, only where that is not technically feasible, to the online interface of the provider of intermediary services on which the infringement takes place” (Art 41(2)(f)).  Penalties are not to exceed 6% of the provider’s annual turnover; penalties for failure to comply with information requests are capped at 1%.  Users are given the right to comply to the DSC. 

The EDBS is made up of the DSCs, represented by high level officials. In this there seems to be some similarity with existing EU structures (e.g the EDPB under the GDPR). The EBDS may, for example, issue opinions, recommendations or advice and support the development of codes and guidelines as well as supporting joint investigations. 

There are specific provisions relating to the supervision of very large platforms. First of all the relevant national DSC (and the Irish regulator will be clearly one such) will be obliged to “take utmost account of any opinion and recommendation” under the enhanced supervision system set down in Art 50.  Further, there is a mechanism whereby the Commission, or the DSCs in destination states may “recommend” the DSC with jurisdiction to investigate a suspected infringement of the DSA.  In implementing any decisions, the DSC with jurisdiction must communicate certain information to the EDBS/Commission who may communicate their views when they are of the opinion that any action plan proposed is insufficient.  Significantly, the Commission may in some circumstances initiate action in relation to very large platforms. The Commission has power to request information, to interview and to conduct on-site investigations and the Commission may issue interim measures or make commitments binding. The Commission also has the power to adopt a ‘non-compliance decision’ and impose fines.  Some of these provisions reflect the approach found in the competition enforcement processes at EU level, including the right of the very large platform to be heard and have access to the file.  Again there are questions of overlap in terms of all these powers with the rules pertaining to video sharing platforms and the remit of the AVMSD – which does not have equivalent provisions. 

Conclusions 

This is just the start of what will be a long and, if the experience of the recently agreed terrorist content proposal is anything to go by, contentious process.  While the main themes of the proposal are on one level straight forward and seemingly broadly in line with the proposals of the UK Government, the devil is always in the detail and there will no doubt be some sensitivity about who gets to exert control (national or EU level), the differing views and sensitivities of some of the Member States and concerns about freedom of expression and the right to private life, especially given the proposal seems to encompass some forms of content that is not illegal (e.g. misinformation/disinformation).

 

Photo credit: TodayTesting, via Wikimedia commons