Council Issues DSM Scorecard While Commission Turns Up the Heat

It was a story of two documents in the Brussels bubble last week, one from the European Commission, one from the outgoing Bulgarian Presidency of the Council of the EU, and both with key insights into the success of the EU’s flagship Digital Single Market strategy.

The Digital Single Market, a hoped-to-be transformative project involving ambitious, wide-ranging interventions into eCommerce, digital communications and data, has been behind some of the highest profile and most popular EU policy efforts, such as the elimination of intra-EU roaming charges. However, the European Commission is getting frustrated with the logjam of digital files which still need to be agreed by the Parliament and Council before entering into law.

European elections take place in May 2019, which imposes a hard deadline: if a file isn’t agreed by then, there is a six-month delay while the elections take place, after which negotiations have to start from scratch. In a bid to move things along a bit, the Commission published a Communication asking member states to speed up discussions. Notably, the Communication took aim at the stalled ePrivacy Regulation, urging the council to “swiftly” agree their position in order to start full negotiations by June 2018, and aim for adoption by the end of the year.

Given the recent outcry about mistreatment of EU citizen’s data in the Cambridge Analytica scandal, this urgency is understandable, but could be counterproductive. Given the manifest legal pitfalls with the Commission’s original proposal, and potentially severe unintended consequences for a variety of digital services, haste could prevent full assessment and amendment by member states.

State of play of Digital Single Market (DSM) strategy

Separately, the Bulgarian Presidency of the Council of the EU has issued a handy state of play document, giving a run-down of progress on each of the Digital Single Market files and some thoughts on the likelihood of reaching agreement by the Commission’s preferred deadline of March next year.

The document gives three broad categories: files with completed negotiations, those where agreement is imminent, and those where negotiations have no immediate prospect of a breakthrough. The document’s update on the ePrivacy Regulation conveys the slow pace and complexity of negotiations, but unlike the Commission, the Presidency does not exhort delegations to expedite discussions and recognises the difficulty in reaching an agreement in trilogue — if negotiations even get that far.

A scorecard of the key digital files to still to be negotiated under the DSM strategy would look something like this:

• Presented in September 2016, discussions on this weighty file are well advanced. Trilogue talks have been underway for several months now, and recent breakthroughs on investment models, intra-EU roaming charges and spectrum management have raised the prospect of this file being completed in mid-2018.

• The document notes there have been significant delays in Council and that realistically there will only be a “policy debate” during the remainder of the Bulgarian Presidency, but no agreed approach. The document concedes that it may be difficult to complete negotiations on this file before the European elections in 2019 and that trilogue talks, if they even get going, “will not be easy.”
• Reasons given for the delay include the heavy workload in Parliament and a successful lobbying effort by stakeholders that this regulation will hamper innovation and stymie the growth of the EU digital economy. According to the Presidency, member states have been receptive to these views.

• The Presidency notes the failed attempt to reach a political agreement on the Copyright Directive in April, but thinks an agreement could still be reached before the end of May, paving the way for trilogue talks “during the second quarter of 2018.” This looks highly optimistic, given that Parliament won’t vote until 20 June at the earliest; it’s very hard to see how much headway could be made in trilogue before the summer break.
• The document does not delve into the complex legal disputes which have halted progress on this file, particularly on the value gap and press publishers right, but does at least concede that this is a technical and onerous task, which has until recently frustrated national delegations in reaching a firm position.

• The Presidency notes that progress on Free Flow of Data could move quickly, once the Parliament agrees it’s position, as co-legislators are actually quite close in terms of their views on this file (probably during the second half of 2018).
• The document notes that the main outstanding issues relate to exemptions for public security (which some argue could undermine this legislation) and the treatment of mixed data sets (on the basis that this legislation should in no way prejudice GDPR).

• The stated aim of the Council Presidency is to reach a general approach on the file by June, allowing trilogue talks to kick off under the forthcoming Austrian Presidency. Apparently, this work is on track, with agreement on the file between the co-legislators highly likely before the end of 2018.

This file was published in April of this year, so discussions are not well advanced. However, the Presidency is confident that a general approach could be possible before the end of 2018, paving the way for trilogue talks. The Presidency notes, however, that the Parliament has not signalled its position on this file in any detail yet. If this is markedly different from the original text or the Council position, it will be difficult to reach agreement before the European elections.

Author: Matt Allison, Manager, Public Policy, Access Partnership