DG Connect

What's in a name? As of 1st of July, the European Commission's Directorate General 'Information Society and Media' will be renamed 'Communication Networks, Content and Technology'. In short: DG Connect.

The new name is meant to indicate a change in the organisation of the DG (pictured in an organisation chart) as well as to emphasise the mission of the DG under the EU's Digital Agenda (see also Commissioner Kroes' blog post 'The Commission changes to face the future: We launch DG Connect').

More information and a mission statement can be found on the DG's website.

ACTA endangers fundamental rights of EU citizens

Today the European Data Protection Supervisor (EDPS) issued another opinion on the threat to the protection of personal data and privacy. Namely, the proposal of the European Council to conclude the Anti-Counterfeiting Trade Agreement (ACTA) was negatively evaluated by the EDPS. We mentioned previously that the European Commission was considering referring ACTA to the CJEU and that there was lots of opposition towards introduction of this agreement. It seems that whichever institution takes a closer look at the content thereof, there is no problem with finding more and more problems within it.

The EDPS sees the lack of precision of ACTA about the measures that could be used in order to fight infringements of IP rights on the Internet as endangering the fundamental rights of EU citizens. Especially, the large scale monitoring of users' behaviour and of their e-communication is perceived as highly intrusive on the EU citizens' privacy, and its application should be limited to situations when it was really necessarily, which the proposal does not specify. Any measures that allow indiscriminate or widespread monitoring of Internet users' behaviour, and e-communications, with regard to trivial, small-scale, not for profit infringements should be seen as disproportionate - infringing Article 8 ECHR, Articles 7 and 8 of the Charter of Fundamental Rights, and Data Protection Directive. Additionally, the EDPS considers that ACTA provides for many voluntary enforcement cooperation measures that would entail a processing of personal data by ISPs, going beyond what is allowed under EU law. Another criticism is directed at the lack of sufficient safeguards in ACTA, e.g., as to due process, effective judicial protection, the principle of the presumption of innocence, the right to privacy and data protection.

"While more international cooperation is needed for the enforcement of IP rights, the means envisaged must not come at the expense of the fundamental rights of individuals. A right balance between the fight against IP infringements and the rights to privacy and data protection must be respected. It appears that ACTA has not been fully successful in this respect." stated the Assistant EDPS - Giovanni Buttarelli (ACTA measures to enforce IP rights in the digital environment could threaten privacy and data protection if not properly implemented)

Towards passenger ship safety

There has been lots of talk in the European institutions (and as a result on this blog) about the protection that air passengers receive in Europe. Today the EU Transport Commissioner, Siim Kallas, presented the European Commission's priorities for passenger ship safety (Transport: Commission sets out priorities for passenger ship safety). After all, despite the raising popularity of the air travel this is not the only method of travelling that Europeans make use of.

The EU Commission intends to promote voluntary industry measures. For example, today the European Cruise Council committed itself to undertake more strict than legally necessary measures with regard to, among others, route planning, security of bridge access, access to life jackets on board (Cruise Industry Announces Three New Safety Policies at EU Conference). The European Cruise Council intends to appoint four independent experts to oversee the process and monitor progress and implementation of such measures.

The EU Commission plans to intensify enforcement actions to make sure that safety rules are being implied in practice. The European Maritime Safety Agency (EMSA) will give a hand in organising inspections, e.g., of proper registration of passengers on board.

Finally, certain regulatory measures are under consideration. For example, the new proposal on domestic passenger ship safety rules is planned for the end of 2012, which would broaden the application of existing EU rules to ships other than only constructed out of steel (lots of touristic ships are smaller and not made of steel). Another proposal is considered as far as EU passenger ship stability rules for roll-on roll-off ferries are concerned. Stability is particularly important for these ferries since water on deck is more common. The new proposal would focus on rules that would lead to improving stability after damage. In the future, regulation of cruise and ropax ship stability is also feasible.

Until 5 July 2012 public consultations are conducted with stakeholders of the industry. Legislative proposals are expected before the end of 2012.

Careful re-use of personal data included in public sector information

Last week the European Data Protection Supervisor (EDPS) published his opinion on the European Commission's Open Data Package, which includes a proposal for an amendment of Directive 2003/98/EC on re-use of public sector information (PSI). Some of the PSI may contain personal data of European citizens, which means that it requires additional protection measures in handling it. The EDPS stated:

"The re-use of PSI containing personal data may bring significant benefits, but also entails great risks to the protection of personal data, due to the wide variety of data held by public sector bodies. The Commission proposal should therefore more clearly define in what situations and subject to what safeguards information containing personal data may be required to be made available for re-use." (EDPS calls for data protection safeguards before public sector information containing personal data can be re-used)

The EDPS agrees that re-use of PSI can be beneficial, but requires the European Commission to pay more attention to the protection of personal data of EU citizens.

Towards secure internet payments

On 11 April 2012 the European Central Bank (ECB) endorsed for public consultation the "Recommendations for the security of internet payments" that apply to the retail payments. By issuing these Recommendations the European authorities hope to increase consumers' trust in internet payments and to combat payment fraud. These Recommendations are applicable to all internet payment service providers (PSPs) as defined in the Payment Service Directive, whether such payments are done by means of the execution of card payments online or credit transfers on the internet. The method of implementation of these Recommendations will depend on national legal systems, but the creators of Recommendations promise to try to ensure consistency across Member States.

Comments on the draft of the Recommendations are welcomed by 20 June 2012. If further information is needed, the national central banks and national supervisors of PSPs serve as contact points regarding the Recommendations. All received comments will be published online unless a restriction to the contrary is made by the author of the comments (Consultation announcement).

Seminar: Europe in crisis: the challenge of winning citizens' trust

The European Ombudsman, P. Nikiforos Diamandouros, is organising an even tomorrow (24th of April, from 10.00 to 12.30) in the European Parliament in Brussels: "Europe in crisis:  the challenge of winning citizens' trust". The focus of the seminar is on discussing measures that could be taken in order to regain EU citizens' trust in the national and EU governments. You may follow the conference webstream at: http://www.ombudsman.europa.eu/home.faces
If you have a question to the speakers you may ask it using Twitter hashtag: #EO2012.

Passenger Name Record is on

Last Thursday the European Parliament adopted the EU-US Passenger Name Record (PNR) agreement. For more comments on this agreement see our previous post: Passenger Name Record - your flying data forever in retention of the US government? The privacy and data protection issues that we had mentioned previously remained unsolved, which made a significant number of MEPs (including the rapporteur) vote against this agreement.

See also:

Parliament gives green light to air passenger data deal with the US

FAQ

Text of the agreement

Airlines liable for denying boarding even as a result of extraordinary circumstances - AG's Bot opinion in Finnair (C-22/11)

19 April 2012: AG's Bot opinion in case Finnair Oyj v Timy Lassooy (C-22/11)

Yesterday, Advocate General Bot issued another opinion in a case concerning air passengers' rights. This time, there was a strike by staff at Barcelona airport in Spain on 28 July 2006, which resulted in cancelling the flight of Finnair from Barcelona to Helsinki scheduled for 11:40 that day. Finnair decided that its passengers should not have to wait too long to go back to Finland and reshuffled passengers for the flights in the coming few days. That meant that passengers from 28th of July could fly out the next day on the 11:40 flight or at a specially arranged flight departing at 21:40 that day. However, passengers that were scheduled for the 29th of July were put on flights on the 30th of July, and so on... Mr Lassooy had a flight for 11:40 on the 30th of July, but was able to get a seat only on the 21:40 flight.

Mr Lassooy claimed that he was denied boarding by Finnair at his scheduled flight and asked for compensation of 400 euro, as provided by the Regulation 261/2004 in case of flights of more than 1500 kilometres. The Finnish court asked the CJEU for help with interpreting the 'denied boarding' term used in this Regulation, in order to be able to assess whether compensation should be paid to the passenger.

AG Bot states in his opinion that the concept of 'denied boarding' must be interpreted broadly and should not be limited to situations of overbooking the flight. (Par. 35) This flows from the preparatory works on the Regulations as well as its purpose: ensuring high level of protection of air passengers. (Par. 36) In the given case, the flight for which Mr Lassooy bought a ticket had left as scheduled. This meant, that if the passenger was not seen as having been denied boarding, he would not be able to claim any compensation or assistance since the flight was not cancelled nor delayed. (Par. 39) It cannot be denied, that the passenger experienced inconvenience and serious trouble that the Regulation aims at alleviating.

Moreover, the 'denied boarding' cannot be justified by grounds relating to the rescheduling of flights as a result of extraordinary circumstances, such as a strike at an airport. (Par. 62) AG Bot mentions that the only justification for the denied boarding that would release the airline from having to compensate its passengers is when passengers are denied boarding based on their personal situation. This is because the 'denied boarding' is an arbitrary measure of an airline for which it needs to take responsibility, unless it happened due to passengers own fault, e.g., not providing necessary travel documents, endangering the safety of the flight, etc. (Par. 47)

"(...) the decision to deny boarding based on reasons which are wholly unrelated to the passenger concerned cannot have the effect of depriving him of all protection." (Par. 48)

AG Bot mentions also that since the airport strike cannot be attributed to Finnair, the airline may seek compensation from the persons responsible for the damage it had suffered. (Par. 56)

AG Bot addressed also the question of equal treatment in his opinion. (Par. 57) In case of extraordinary circumstances such as in this case, passengers whose flight will be cancelled or delayed due to these circumstances will not be able to claim compensation but only assistance from the airline (based on exception in Article 5(3) of the Regulation). At the same time, passengers who will be denied boarding due to the same circumstances will be able to claim compensation from the airlines. However, the AG does not consider the comparison between these passengers as appropriate since they are not in the same position. (Par. 48)

"(...) denied boarding does not affect all the passengers on a flight, but one or more passengers who have nevertheless duly presented themselves for boarding. Simply on the arbitrary decision of the air carrier, the passenger who has been denied boarding will not be on the flight for which he had a reservation, a flight which will be operated in accordance with scheduling arranged by the air carrier. It is different in the case of flight cancellation or delay, since, in such cases, all the passengers are concerned and affected in the same way." (Par. 59)

Additionally, when extraordinary circumstances arise it is beyond the airlines control and they have no choice but to cancel or delay the flight, therefore, they should not be held liable for it. (Par. 60) On the other hand, when a passenger is denied boarding, it is due to a decision of an airline, an arbitrary one, based on which one or more passengers suffer trouble and inconvenience. (Par. 61)

"(...) because the harm suffered is attributable to the air carrier, compensation is payable in order to dissuade the carrier from resorting to such a practice and to give more importance to calling for volunteers to surrender their reservations (...)." (Par. 61)

While this opinion is passengers-friendly, its consequences for air passengers may be far from satisfactory. If the CJEU upholds this opinion, then the airlines will try to avoid rescheduling flights of passengers, and therefore denying them boarding. This will have negative consequences for passengers whose flights will get cancelled since they will no longer have priority to get seats on the next flight to their destination. Airlines are likely to want to avoid paying compensation to more passengers, so they will proceed with the scheduled flights as planned, and only assign the not yet taken seats to passengers from previous, cancelled flights. This may lead to longer delays in reaching their destination by passengers of cancelled flights.

Going green - Competence allocation and regulatory functioning in the EU's emissions trading scheme

Following up on Monday's post, one question arising in the context of regulating environmental issues is where to allocate regulatory competences. Or, in other words, who is in the best position to take decisions about the ways of reducing the emission of greenhouse gases?

Josephine van Zeben has conducted a thorough study on the legal, economic and political aspects of this topic, which has resulted in a PhD thesis that she will defend on 11 May 2012. The book is available on her website competenceallocation.com

In summary, the book aims to show that 'the explicit recognition of the role of distinct competences in the regulatory process will bring existing theories of federalism closer in line with regulatory reality'. The theoretical framework is applied to a study of the EU Emissions Trading Scheme, which seeks to mitigate greenhouse gases through emissions trading. The study shows that '[t]he deviations from the theoretically optimal allocation in the trading phases of the EU ETS can explain some of the difficulties in the earlier trading phases. In turn, these deviations can be explained by the political economy of the EU ETS, which shows that optimal allocation is hard to achieve during the foundation of a new regulatory regime due to the relative strength of certain stakeholders in the political process.'

Statistically relevant

Statistics play a big role in designing consumer policy. As the EU Commissioner Šemeta mentioned:

"Statistics not only pin-point where the weaknesses lie in our economic (and social) systems, but they provide the basis for finding the right solutions to address them." (Commissioner Šemeta presents the "revised Regulation on European Statistics")

The new proposal for changes in the Regulation on European Statistics (223/2009) of 11 March 2009 aims at increasing the independence of gathered statistics and assures high quality thereof (Commission strengthens independence and reliability of EU statistics). It determines criteria for the selection of heads of National Statistical Institutes and Eurostat, as well as clarifies their accountability. The proposal will require Member States to sign "Commitments of Confidence", pledging to respect the European Statistics Code of Practice, to safeguard the independence of NSIs and to establish national quality assurance frameworks for statistics.