Juncker Commission’s race to wrap up the digital single market before the European elections

Announcements were made on a number of new proposals including: the creation of a network of national cybersecurity coordination centres, the Commission’s recommendation to ensure free and fair elections in Europe and a soon to be revealed coordinated European plan for artificial intelligence. In his letter of intent, Jean-Claude Juncker is pushing the European colegislators (namely the European Parliament and Council) to wrap up the last files related to the Digital Single Market before the May 2019 European elections. Here are the main digital issues to watch in the coming months.

The files that could be finalised before the elections

The current Austrian Presidency of the Council of the European Union will be taken over, as of January 2019 by Romania. Both countries have the ambition to conclude as many as files as possible. The legislative files that have a reasonable chance to make the cut before the Commission Juncker is out are:

• The proposal for a Regulation on the relationships between business users and online intermediation services, also known as the “platforms-to-business” (P2B) proposal. Announced in April 2018, the aim of the proposal is to address trading practices deemed as unfair or lacking transparency, such as, the lack of effective redress mechanisms or unilateral delisting of products or services offered on an online platform. The Austrian Presidency is seeking to get a negotiation mandate for November, while the Parliament could adopt its report in December 2018. The Parliament rapporteur expressed his will to finalise the negotiations with the Council prior to the election period.
   
• The review of the Public Sector Information (PSI) directive of 2003 on the re-use of government-held data to facilitate the creation of a common data space in the EU, including facilitating access to the results of publicly-funded research or data produced by public companies (offering transport services, for instance). Both legislators are planning to deliver their reports in December 2018 and would then be able to start negotiating.
   
• In September, the Parliament adopted its position on the thorny Copyright Directive proposal, while the Council adopted its own position in May. The trilogues between the colegislators will start in October 2018.
   
• The cybersecurity package of 2017 has the ambition to enhance Europe’s cyber resilience and to foster operational cooperation and crisis management skills among Member States. This notably includes the strengthening of the mandate and capacities of the European Union Agency for Network and Information Security (ENISA) and the creation of a European cybersecurity certification framework. Trilogues are already taking place amongst colegislators, who are targeting a final agreement by the year’s end. On the cybersecurity front, Jean-Claude Juncker also introduced, in his speech, a proposal establishing a European Cybersecurity Industrial, Technology and Research Competence Network Centre and a Network of National Coordination Centres.

The files unlikely to be finalised before the elections

Some files, more technical or less consensual, are likely to be put on hold as we move towards the upcoming election period:

• The review of the EU digital taxationproposal introduced in a March 2018 package with a first draft directive on the common system of a digital services tax on revenues resulting from the provision of certain digital services – online advertising for instance. A second “long term” draft directive laying down rules relating to the corporate taxation of a significant digital presence was also put on the table. The files are being debated at the Council, where the unanimous approval of all Member States is required, while the Parliament can only adopt a non-binding resolution. If some Member States already expressed their objections to the proposal, the Austrian Presidency nevertheless decided to maintain the discussion open. Also, it is worth mentioning that, in his speech, Jean-Claude Juncker suggested moving to qualified majority voting in the realm of taxation.
   
• The April 2018 “New Deal for consumers” package comprises two parts: Firstly, a proposal for an omnibus directive on better enforcement and modernisation of EU consumer protection that should be voted before the end of the legislature. Secondly, a proposal creating a European framework for collective redress. Some Member States are reluctant to approve the latter file as they are worried about a European group claims scheme’s compatibility with similar national ones. Council negotiations started in April and are set to continue throughout the autumn. The position of the Parliament is expected by December.
   
• The review of the Regulation on the respect for private life and the protection of personal data in electronic communications (“e-Privacy”) was published in January 2017 in order to update the existing 2002 Directive. The Regulation would have in its scope the confidentiality of communications, the processing of metadata or rules applying to tracking technologies such as cookies. The file is still subject to difficult discussions in the Council, and only a progress report is foreseen by the Austrian Presidency by the end of 2018, at this time, and not a general approach that would allow starting negotiations with the Parliament. The Parliament adopted its own position in November 2017.
   
• The April 2018 proposed Regulation on access to electronic evidence in criminal investigations (“e-Evidence”), aims to facilitate the cross-border access for judicial authorities of one Member States to data held in another one with a particular focus on service providers. The Council is already examining the text and is expected to adopt its general approach by December. In the meantime, the Parliament’s working timetable has not been established. The rapporteur considers the e-Evidence file to be linked to the e-Privacy file and seems to condition the progress of the Parliament’s preparatory work on the former, to the Council’s progress on the latter.
   
• The December 2015 legislative package on modern digital contractrules was published. The first proposal concerns the online sale of goods and a second proposal concerns the review of the directive on contracts for the supply of digital content and services. The intent is to facilitate cross-border trade by harmonising European regimes of contract law. Both files have a wide scope and are interlinked, therefore the progress of negotiations is rather slow.

Beyond these files, the ubiquitous budget negociation

The Commission is setting up its proposals for the review of the Multiannual Financial Framework (MFF) for the 2021-2027 period, and unveiled, on the 6th of June, its first financial Program specifically dedicated to the digital field, with a budget of 9.2 billion euros. The emphasis is put on: cybersecurity, high performance computing (HPC), digital skills and the digitalisation of the economy and society. Digital is also present in distinct funding instruments, also being debated, such as the Connecting Europe Facility (CEF). Regarding the general research funding, where digital matters are mainstreamed, the Commission also proposed a budget of 94.1 billion euros for its new Horizon Europe program, a number to be compared with the 77 billion euros of the current Horizon 2020 program.