On 31 January, the European Commission agreed on new plans for cross-border data flows and personal data protection in trade negotiations. Cross-border data flows are a difficult issue. Companies want them. The EU wants to open foreign markets for its strong services industry. But data protection is a fundamental right in the EU; it has to be protected also in cross-border data flows.
The EU and Japan have concluded the legal scrub of the EU-Japan Economic Partnership Agreement (EPA). The council may already decide on ratification on 22 May 2018. No EU member state ratification is needed. Regarding cross-border data flows and data protection, a European Commission’s press release states that recent reforms of their respective privacy legislation offers new opportunities to facilitate data exchanges, including through a simultaneous finding of an adequate level of protection by both sides. But this is not the full story.
The EU Court of Justice declared that proactive filtering by internet access providers and internet hosting providers is illegal. 1 Yet, the EU copyright proposal includes such upload filtering. Over 80 organisations warn:
“The signatories warn the Member states that the discussion around the Copyright Directive are on the verge of causing irreparable damage to our fundamental rights and freedoms, our economy and competitiveness, our education and research, our innovation and competition, our creativity and our culture.”
To show the substance behind that sentence, the letter refers in an annex to 29 letters and analyses sent previously by various European stakeholders and experts for more details. A call to action
The European Parliament’s legal affairs committee will vote on the proposal on 25 January. Unfortunately, in this lead committee a significant majority is in favor of upload filters.
The European Commission has asked the EU council a mandate to open negotiations on a multilateral investment court. However, the accompanying impact assessment obscures environmental and social impacts. The council should refuse to provide the mandate. The European Commission published an impact assessment of a multilateral reform of investment dispute resolution. The current supranational system is known as investor-to-state dispute settlement or ISDS.
EU Court of Justice’s Advocate General (AG) Melchior Wathelet finds that investor-to-state dispute settlement (ISDS) agreements between EU countries are compatible with the EU treaties. (Opinion in the Achmea v. Slovak republic, the ruling of the Court will follow later.) ISDS gives private parties access to the supranational level to challenge government decisions. The AG sees the ISDS tribunal in question as a court or tribunal common to two EU Member States. Unfortunately, as I will explain below, in his Opinion the AG disregards known issues and options. I will argue that if the AG wouldn’t have disregarded these issues and options, he couldn’t have reached his conclusion.
London, 9th March 2017 – Companies across UK have expressed their opposition to an attempt to ratify the Unitary Patent treaty which is neither desirable for British software companies nor compatible with Brexit. They call for an urgent debate in the House of Lords and in the Scottish Parliament. After years of intense lobbying by large corporations, as well as their patent lawyers, progress was made towards a Unitary Patent Court (UPC) that would not only facilitate expansion of patent scope to software but also usher in so-called ‘patent trolls’. The Unitary Patent Court will have pan-european authority to impose injunctions, royalties for supposed damages from British companies. This represents an existential threat to many British companies, which foreign companies are hoping to thwart or cripple using patents.
This position paper is the attachment to the FFII submission to the public consultation on a multilateral reform of investment dispute resolution. (blog, pdf)
A multilateral investment court (MIC) would strengthen investments vis-à-vis democracy and fundamental rights. This undermines our values, ability to reform, and ability to respond to crises, including climate change. Investor-to-state dispute settlement (ISDS) gives private parties access to the supranational level. This discriminates against companies operating locally and comes with systemic issues which create a high risk of expansive interpretations of investors’ rights.
“The acrimonious debate over the proposed directive on computer-implemented inventions might never have arisen if the patent litigation system in Europe had been unified, thereby eliminating the possibility of disparate national rulings on the same patent matter.” — David Sant, former EPO lobbyist in Brussels
“The volunteer activists drifted away, thinking the battle won, but the corporate lobbyists for software patents were paid to stay on the job. Now they have contrived another sneaky method: the “unitary patent” system proposed for the EU.” — Richard Stallman, Europe’s “unitary patent” could mean unlimited software patents
“We must moreover continue to attempt to harmonise the practise of granting patents for computer-implemented inventions at the European level. This is to be attempted by a common European patent court system in which the member states can voluntarily participate.
The European Commission has launched a consultation on an investor-to-state dispute settlement (ISDS) variant: a multilateral investment court. 1 The consultation is flawed; it is so narrow that social and environmental impacts may not show up in the consultation results. This is irresponsible, as the system as a whole will strengthen investments vis-à-vis democracy and fundamental rights. This undermines our values, ability to reform, and ability to respond to crises, including climate change. Mankind faces an existential threat and the commission buries its head in the sand.
Update: The European Parliament gave consent to CETA. It failed to defend democracy. Now national parliaments will have to decide on CETA. There may also be referendums and court cases. See also EDRi’s press release; procedure file; INTA report; roll call vote (point 1, A8-0009/2017).
ECORYS has published a draft human rights assessment (sustainability impact assessment) on the trade agreement being negotiated between the EU and the United States (TTIP). Today the Foundation for a Free Information Infrastructure (FFII) has sent an email to ECORYS noting issues regarding intellectual property rights, investor-to-state dispute settlement (ISDS / ICS), data protection, and openness. Footnotes per section, text continues after footnotes. Intellectual property rights
The word “ACTA” does not appear once in the draft report. ACTA analysis has shown that intellectual property rights enforcement may seriously threaten fundamental rights at various levels.
This is the fourth in a series of blogs on the EU-Canada trade agreement (CETA) and data protection. In earlier blogs we saw that under the CETA text Canada can give our personal data related to financial services, transfered to Canada, a lower protection than under the standard set by the Court of Justice of the EU in the Safe Harbour ruling. This is relevant as Canada is a member of the “Five Eyes”, a group of countries committed to (suspicionless) mass surveillance. We also saw that CETA does not allow data protection measures based on a higher data protection standard than agreed in CETA. Textual shortcomings especially become clear in conflict situations.
In February 2016 the European Commission and Canadian government published the final draft text of the EU – Canada trade agreement (CETA). This final draft includes an investment chapter with investor-to-state dispute settlement (ISDS). ISDS is one of the most controversial elements of proposed EU trade agreements as it gives foreign investors the right to challenge government decisions outside local courts. The ISDS section in CETA is based on the 12 November 2015 ISDS proposal for TTIP. According to Germany’s largest association of judges and public prosecutors (original in German) and the European association of judges the adjudicators would not be independent.
This is the third in a series of blogs on the EU-Canada trade agreement (CETA) and data protection. (Prior blogs: CETA and mass surveillance, CETA places itself above EU Charter of Fundamental Rights)
In this blog I will show CETA provides less data projection than the EU Charter of fundamental rights. Under CETA article 13.15 the EU has to allow cross border data transfers to Canada; the related data protection standard is not compatible with the Court of Justice of the EU (CJEU) Safe Harbour ruling. Chapter 13 Financial Services, article 13.15 Transfer and processing of information, page 103, reads:
“1. Each Party shall permit a financial institution or a cross-border financial service supplier of the other Party to transfer information in electronic or other form, into and out of its territory, for data processing if processing is required in the ordinary course of business of the financial institution or the cross-border financial service supplier.
This is the second in a series of blogs on CETA and privacy. (blog one: CETA and mass surveillance)
The draft EU-Canada trade agreement CETA contains a general exception that is supposed to be a safeguard for policy space. However, this safeguard places CETA above the Charter of Fundamental Rights of the EU. CETA final draft Chapter 28 Exceptions, article 28.3 (2), page 212, reads:
“For the purposes of Chapters Nine (Cross-Border Trade in Services), Ten (Temporary Entry and Stay of Natural Persons for Business Purposes), Twelve (Domestic Regulations), Thirteen (Financial Services), Fourteen (International Maritime Transport Services), Fifteen (Telecommunications), Sixteen (Electronic Commerce), and Sections B (Establishment of investments) and C (Non- discriminatory treatment) of Chapter Eight (Investment), subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the Parties where like conditions prevail, or a disguised restriction on trade in services, nothing in this Agreement shall be construed to prevent the adoption or enforcement by a Party of measures necessary:
(a) to protect public security or public morals or to maintain public order; 31
(b) to protect human, animal or plant life or health; 32 or
(c) to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement including those relating to:
(i) the prevention of deceptive and fraudulent practices or to deal with the
effects of a default on contracts;
(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts; or
(iii) safety.” (emphasis added)
Measures the EU would take to protect the public interest can go against CETA (“nothing in this Agreement”).
In February 2016 the European Commission and Canadian government published the final draft text of the EU – Canada trade agreement (CETA). Before that the Court of Justice of the EU in October 2015 invalidated the Safe Harbour framework that allowed the transfer of European citizens’ data to the United States. The Court confirmed that cross border data transfer frameworks need robust privacy safeguards. However, during the legal scrub the European Commission did not make the CETA text compatible with the Court’s Safe Harbour ruling. This incompatibility exposes our privacy to interference.
The European Commission has launched a consultation on the intellectual property rights enforcement directive (IPRED). The European Digital Rights initiative (EDRi) explains:
“Injunctions, internet blocking, blackmailing of individuals accused of unauthorised peer-to-peer filesharing — the so-called IPRED Directive has been very controversial. Now, the European Commission has launched a consultation on the Directive (…) The consultation is of great importance not only to those working on copyright or ‘intellectual property rights’ in general, but in fact crucial to anyone using the Internet.” Indeed! EDRi has prepared a very helpful answering tool.
The European Commission published the text of the draft EU-Canada trade agreement (CETA), which includes an investor-to state dispute settlement (ISDS) section. According to an Inside U.S. Trade’s World Trade Online article Canada succeeded in “changing the language from the EU’s TTIP proposal in a way that sources on both sides of the debate agreed would provide less protection for governments against challenges by investors.” The article reports that U.S. Chamber of Commerce’s Sean Heather argued that the CETA changes to the right to regulate show that the Canadian government rejected the EU’s previous approach. However, an alternative explanation is possible. A few weeks earlier the commission published the text of the EU-Vietnam agreement.
Companies could use investor-to-state dispute settlement (ISDS) in trade agreements to challenge refusals to grant software patents, FFII’s Benjamin Henrion argued during the 24 February 2016 TTIP stakeholder’s presentations. Successful challenges could undermine the European Patent Convention’s exclusion of software, the recent US Supreme Court’s limits on patentability, and Congressional patent reform. Henrion noted that the SME where he worked had to fire ten software developers after a major customer was attacked by a patent troll and discontinued a project. US research shows that patent trolls cost defendant firms $29 billion per year in direct out-of-pocket costs; in aggregate, patent litigation destroys over $60 billion in firm wealth each year. In 2005 the European Parliament overwhelmingly rejected the software patents directive proposal.
On occasion of the Safer Internet Day, we perform an event where they coach children how the internet works while playing it. For detailed information and registration please visit the following site. This event is organized and performed by Junge Tüftler in cooperation with fragFINN.de, the FFII and the Mozilla Foundation. The participation is free of charge but we ask for a binding registration.
The European Commission today published the negotiated text of the EU – Vietnam FTA. The investment and investor-to-state dispute settlement (ISDS) chapter is not conform the European Parliament 8 July 2015 resolution. ISDS gives foreign investors the right to challenge state decisions outside local courts. The draft FTA does not meet the conditions the European Parliament formulated in its resolution, paragraph 2 (d) (xv); it
– does not provide for independent professional judges as the proposal lacks various institutional safeguards for independence, such as fixed salary and prohibition of outside remuneration; 
– does not ensure that foreign investors will not benefit from greater rights than domestic investors; 
– is not subject to democratic principles and scrutiny, as the Parliament will not be able to change the rules later on; 
– undermines the jurisdiction of courts of the EU and of the Member States, as foreign investors can by-pass them;
– does not ensure that private interests cannot undermine public policy objectives. 
In a crucial aspect the proposal is worse than the current practice of the member states’ stand-alone investment treaties from which it is possible to withdraw: we can not expect the EU to withdraw from trade agreements.
Junge Tüftler is a society that coaches children digital literacy by using a constructionist approach. To extend our work we are happy about the possibility to share the FFII office space so that we will be able to offer more courses and events for kids in future. We wanna celebrate this with you and all our mentors. So please feel free to join our office warming party on thusday, 28.01.2016. For more information and reservation please click here.
Bernd Lange, chair of the European Parliament international trade committee, has sent a letter to EU trade commissioner Cecilia Malmström regarding the EU commission’s investor-to-state dispute settlement (ISDS) reform proposal. His letter shows that he overlooks many deficiencies in the commission’s proposal, among them perverse incentives. The proposed system lacks integrity and would undermine our values. I will go through his letter line by line. “Dear Commissioner, dear Cecilia,
On the 8th of July 2015 the European Parliament adopted a resolution with the European Parliament’s position on the TTIP negotiations.
New Zealand has published the text of the Trans-Pacific Partnership (TPP). Ongoing analysis, subject to updates:
Investor-to-state dispute settlement (ISDS) places investment tribunals above states, above democracies. This places the development of law beyond democratic scrutiny. At a national level, parliaments can change laws that do not work out well. This is not possible at the supranational level.
Citizen enjoy a right of access to documents enshrined in the EU treaties. However, when they ask about documents from the ongoing trade negotiations (TTIP, TISA,…) access had usually been refused by the institutions. The reason for that unwillingness is the legal base of the public requests: EC/1049/2001. The EU sunshine law regulation EC/1049/2001 is from 2001 and does not:
– include European case law after 2001
– new rights under the Lisbon treaty
– transparency for trade procedures, even when they enter the regulatory domain
2008 a recast reform was launched. This reform was voted in Parliament but struck down in the Council under the Danish Presidency.
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