In the ninth post in RENFORCE Blog’s special series on enforcement, Gavin Robinson argues that the extreme volatility of electronic data calls for EU law to promote not only efficient and secure access thereto for criminal investigators, but also robust standards of digital forensics. Currently, it is national laws and criminal justice systems which achieve varying levels of forensic soundness for digital evidence. Drawing on a comparative, multidisciplinary research project and sharing insight from legal practice in Luxembourg, the post advocates a stronger emphasis on the development of common European rules on digital forensics – potentially within dedicated EU legislation on the admissibility of evidence.

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Statistics clearly show that not a single country in the European Union has managed to establish equal pay for women and men. In this blogpost, the eighth in RENFORCE Blog’s special series on the enforcement of EU law, Linda Senden and Rian Hesdahl argue that a major reason for this lack of progress is a strong reliance on individual-rights-based enforcement, before examining whether the new directive proposed by the European Commission is likely to significantly boost the effective enforcement of the equal pay principle.

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Calls for EU law enforcement are a common and logical response to address recent challenges – and crises – across multiple policy sectors, but may face constraints of a legal, political and practical nature. According to Miroslava Scholten, these constraints are exactly where we all need to focus in order to ensure the resilience of the EU into the future. Today, on May 9, the Day of Europe, we make a start of a special blog post series by RENFORCE experts to put the need for more and better enforcement of EU law in the spotlight. Check our blog page out in the coming days!

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Machiko Kanetake, Lucky Belder and Karin van Es

What regulatory frameworks does the EU have to detect and rectify biased algorithms? Unfortunately, some of the celebrated legal frameworks in the EU on data protection and non-discrimination do not seem to be fit for purpose in the age of automated decision-making, as Sandra Wachter elucidated in her Utrecht University webinar on 26 January 2021 hosted by the Special Interest Group ‘Principles by Design: Towards Good Data Practice’.

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Anne Joppe

The principle of solidarity is called upon mostly in times of crisis, as happened, for example, during the Eurozone crisis and the refugee crisis. During the current crisis as a consequence of the Covid-19 outbreak, the EU calls again for solidarity among the Member States to combat the pandemic. Global solidarity is mentioned also as a sort of founding value of the EU vaccines strategy.

Nevertheless, it is unclear what the principle actually entails. The situation after the Covid-19 outbreak allows to investigate whether there is indeed a legal value or notion of European solidarity that can be enforced, whilst we also see national reflexes of protecting the own citizens and market in times of crisis. The latter seems to prevail in the dispute between the EU and the UK about the AstraZeneca vaccine, for instance. Where the EU calls on a fair and ‘solidary’ distribution of the vaccines throughout Europe, the UK seems to prioritise its own programme and wants the company to favour the UK, even though that might threaten the relationship with the EU.

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By Hanneke van Eijken and Simona de Heer

EU citizens have a political right to submit an initiative for new legislation to the European Commission. This is called the European citizens’ initiative, enshrined in Article 11 TEU, and further regulated in Regulation 211/2011. This form of direct, participatory democracy could be seen as a tool to foster citizen participation and to bring the EU closer to its citizens. It was introduced in the Lisbon Treaty as a response to even out the EU’s democratic deficit. Recent citizens’ initiatives cover issues as climate change, education for children with disabilities and evaluation mechanisms to see whether Member States adhere to European values. 

From a regulatory perspective it is interesting to see whether regulation of direct democracy through the introduction of the EU citizens’ initiative is an effective tool for strengthening democracy and where its pitfalls lie. Since its introduction the citizens’ initiative has been subject to criticism as to its effectiveness. Currently, the European citizens’ initiative is being reformed. This raises questions about the effectiveness of the reformed citizens’ initiative and how it relates to parliamentary democracy. First, the weaknesses of the current citizens’ initiative will be discussed. Secondly, the reform and its achievements will be elaborated on. Finally, the relationship between parliamentary democracy and direct democracy will be examined.

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By Lisette Mustert, Béla Strauss, Miroslava Scholten and Matthew Wood

Brexit raises the question of which way forward for the UK in its relationship with the EU and with EU agencies. For future research and legislative design, this in turn raises a more fundamental question of when which type of agreement between a third country and EU agencies is appropriate, in light of  factors such as salience and the interests on both sides. Having analysed all EU agencies’ founding acts, we show in this post that there are three types of formal relationships that exist at this moment between EU agencies and other countries: full membership, observership and cooperation. We argue that the type of this relationship would vary for the UK depending on the score of ‘Brexit salience’, a concept that we introduce. The higher the ‘Brexit salience’ rating is, the more formal the arrangement – full membership or observer – the UK (and the EU) would need to have with an EU agency. According to our scores, this would concern the European Medicines Agency (EMA) and the European Aviation Safety Agency (EASA). In the case of EU agencies that score low on our salience rating, the UK (and the EU) would want to opt for a relatively limited form of cooperation with EU agencies. This would be the case for Cepol, EIGE, ACER, Frontex and CPVO. Surprisingly, the seemingly highly salient agency in the public debate – the European Border and Coast Guard Agency (also known as Frontex) – scores the joint lowest rating. How is this possible, when for the UK immigration is so important during the Brexit vote? It is because, first, our Brexit salience measures do not focus on what is salient in general for the British or European public. Rather, we are concerned with practical matters of policy implementation. As a matter of policy, Frontex has a clear and well-resourced opposite agency – the UK Border Agency – and its operation does not affect a discrete and well-defined policy area.

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By Machiko Kanetake and Sybe de Vries

On 12 December 2018, the European Parliament approved the EU-Japan Economic Partnership Agreement (EPA) which the parties have been negotiating since April 2013. The Agreement, sometimes called as the “cars-for-cheese” deal in a symbolic sense, aims to vitalize economies which represent approximately 30% of global gross domestic product. The Commission presented the final text to the Council on 18 April 2018, which authorized, on 6 July, the signing of the deal. The parties have signed the agreement on 17 July, and, on 8 December 2018, the National Diet of Japan approved the agreement. In light of the Court of Justice’s Opinion 2/15 on the EU-Singapore Free Trade Agreement, the Commission assumes that the EU-Japan EPA does not require ratification by individual EU member states since the agreement is within the EU’s exclusive competence. Investment protection standards and investment protection dispute resolution, which fall under shared competences, have been subject to separate negotiations. The EPA, which is expected to enter into force on 1 February 2019, is arguably the biggest trade-related achievement of the current Commission, which ends its mandate in 2019.

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On 11 April 2018, Facebook founder and CEO Mark Zuckerberg appeared at the US congressional hearings. At the heart of the testimony was the Cambridge Analytica fallout on the misuse of Facebook users’ data, which continues to reveal the vulnerabilities of social media companies and their impact on politics. The business model of social media companies is based on the sale of advertisements and the provision of apps which allow the social media platforms to make the most of users’ data. Their businesses’ unique strength resides in the “targeted advertising” of potential consumers — and voters. While Facebook and other similar social media generate an enormous benefit of sharing information, the companies’ reliance on users’ data triggers an unprecedented risk of information misuse, not only in a commercial sense, but also for political campaigns.

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