tag:theconversation.com,2011:/global/topics/ecj-21335/articlesECJ – The Conversation2021-12-03T16:17:43Ztag:theconversation.com,2011:article/1731002021-12-03T16:17:43Z2021-12-03T16:17:43ZFacebook: latest court case shows how Europe is clamping down on big tech<p>Facebook’s approach to users’ data has just been dealt <a href="https://curia.europa.eu/jcms/jcms/p1_3584224/en/">a major blow</a> from the European court of justice (ECJ). In an answer to a question from Germany’s highest court, the ECJ’s advocate general – whose opinion is not binding but is <a href="https://www.elgaronline.com/view/journals/cilj/5-1/cilj.2016.01.05.xml">generally followed</a> by the court – has made an essential clarification to Europe’s data protection law to confirm that consumer associations can bring actions on behalf of individuals. </p>
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<p>If followed by the ECJ, this will make it much easier for people to defend their rights against tech giants in future. Coming on the back of <a href="https://theconversation.com/google-loses-appeal-against-2-4-billion-fine-tech-giants-might-now-have-to-re-think-their-entire-business-models-171628">a decision</a> by the European general court against Google several weeks ago for using its platform power to restrict competitors, it is the latest example of European regulators making the business climate increasingly chilly for the companies that control our data – in sharp contrast to the US.</p>
<h2>Facebook and consent</h2>
<p>The current case is about the way that Facebook, now known as Meta, in its early years encouraged users to play quizzes and games such as FarmVille, before sharing the results with all their friends. In an <a href="https://www.taylorwessing.com/en/insights-and-events/insights/2020/05/bgh-legt-in-sachen-vzbv-gegen-facebook">action brought</a> by the Federation of Germany Consumer Organisations (VZBV), that was originally heard in 2014, it claimed that Facebook’s data protection notice did <a href="https://www.reuters.com/article/us-facebook-germany-idUSKBN2341BZ">not clearly explain</a> to users how their data could be shared. It wants the company to be forbidden from using similar consent forms in future. </p>
<p>VZBV won the original case and on appeal, before it was <a href="https://curia.europa.eu/juris/showPdf.jsf?text=&docid=230961&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=248605">heard by</a> Germany’s highest court in May 2020. The judges agreed that Facebook had misled users with the notice, but <a href="https://curia.europa.eu/juris/showPdf.jsf?text=&docid=230961&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=2486053">sought an opinion</a> from the ECJ on Facebook’s argument that only individuals and not consumer organisations can bring complaints under the EU’s General Data Protection Regulation (GDPR), which governs this area. </p>
<p>The advocate general’s recommendation, ahead of a final ECJ decision in 2022, reflects the fact that individuals do not typically start legal proceedings against large companies for a small breach of a rather technical regulation. Suing big firms on behalf of society is what consumers’ organisations do, so it would limit people’s protection if this was disallowed. </p>
<p>Facebook’s approach to games is not the only time there have been questions about how it obtained users’ consent over data. It <a href="https://www.vzbv.de/urteile/ordnungsgeld-facebook-muss-100000-euro-zahlen">famously sent</a> unsolicited emails to users’ contacts when they joined the social network. It also placed “like” buttons on third party websites and harvested the data without seeking users’ consent. </p>
<p>One by one, national European regulators have ruled these practices illegal, but always long after the fact. When Facebook was ordered <a href="https://www.vzbv.de/urteile/ordnungsgeld-facebook-muss-100000-euro-zahlen">to pay €100,000</a> (£85,138) by German regulators in 2016 for sending unsolicited emails, for instance, it was clearly too late to affect the company’s behaviour on that individual issue. </p>
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<a href="https://images.theconversation.com/files/435595/original/file-20211203-15-2fk72q.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A picture of phone apps with FarmVille in the middle" src="https://images.theconversation.com/files/435595/original/file-20211203-15-2fk72q.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/435595/original/file-20211203-15-2fk72q.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/435595/original/file-20211203-15-2fk72q.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/435595/original/file-20211203-15-2fk72q.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/435595/original/file-20211203-15-2fk72q.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/435595/original/file-20211203-15-2fk72q.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/435595/original/file-20211203-15-2fk72q.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Harvesting time …</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-united-kingdom-october-01-2018-1195534930">OpturaDesign</a></span>
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<p>VZBV has been at the forefront of fighting to make tech giants accountable for customer data since the early 2010s, though not always successfully. It <a href="https://www.cbsnews.com/news/germany-facebook-court-case-privacy-settings-terms-of-use-brought-vzbz/">failed in an attempt</a> to stop Facebook claiming its platform is “free and will always be”, while making users pay with their private data. It was also unable to require the company to allow users to <a href="https://edition.cnn.com/2014/09/16/living/facebook-name-policy/">adopt a pseudonym</a>. Facebook had resisted citing safety concerns, but perhaps also because data on identifiable consumers <a href="https://www.theguardian.com/technology/2012/aug/02/facebook-share-price-slumps-20-dollars">is more valuable</a> than anonymous ones.</p>
<h2>The GDPR and future regulations</h2>
<p>As Facebook and other social media companies have continued to develop new techniques to <a href="https://www.reuters.com/article/us-facebook-privacy-tracking-idUSKBN1HM0DR">harvest consumer data</a>, the GDPR was adopted by the EU in 2018 as a general framework to clarify the rules. It gives users more control and rights over their own data, requiring clear consent before it can be used. </p>
<p>Pending a decision on consumer organisations, the ECJ has <a href="https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-06/cp210103en.pdf">already recently decided</a> that national privacy watchdogs can directly fine tech firms under the GDPR for breaches affecting their citizens. Facebook had claimed only the Irish authority was competent, since its EU headquarters are there. A forthcoming <a href="https://www.internetjustsociety.org/one-way-ticket-to-luxembourg-facebook-v-bundeskartellamt-at-the-ecj">ECJ case</a> will look at giving similar powers to antitrust authorities.</p>
<p>The EU rules around big tech are also set <a href="https://www.politico.eu/article/europe-digital-markets-act-dma-digital-services-act-dsa-regulation-platforms-google-amazon-facebook-apple-microsoft/">to be strengthened</a> in 2022 with the <a href="https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package">Digital Services Act</a> and <a href="https://www.euractiv.com/section/digital/news/eu-parliaments-key-committee-adopts-digital-markets-act/">Digital Markets Act</a>. This package of extra restrictions is set to include curbing the uncontrolled spread of unverified and often hateful content, with the potential for penalties of 10% of a company’s annual revenue. </p>
<p>And for <a href="https://www.bbc.co.uk/news/technology-58340333">all the talk</a> of a bonfire of EU data protection rules after Brexit, the forthcoming UK Online Safety Bill goes <a href="https://www.politico.com/news/agenda/2021/11/02/facebook-europe-privacy-content-laws-518514">arguably even further</a> in the same direction, with not only similar fines but potential prison sentences for executives over breaches. The bill may <a href="https://www.thetimes.co.uk/article/online-safety-bill-to-make-tech-giants-tackle-scams-5v3d85q9v">even make</a> Facebook responsible for scams by other companies advertising on the platform. </p>
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<a href="https://images.theconversation.com/files/435597/original/file-20211203-27-1517pqm.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Facebook icon next to a virus" src="https://images.theconversation.com/files/435597/original/file-20211203-27-1517pqm.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/435597/original/file-20211203-27-1517pqm.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=380&fit=crop&dpr=1 600w, https://images.theconversation.com/files/435597/original/file-20211203-27-1517pqm.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=380&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/435597/original/file-20211203-27-1517pqm.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=380&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/435597/original/file-20211203-27-1517pqm.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=478&fit=crop&dpr=1 754w, https://images.theconversation.com/files/435597/original/file-20211203-27-1517pqm.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=478&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/435597/original/file-20211203-27-1517pqm.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=478&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Tougher rules on extreme content are around the corner.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/stone-united-kingdom-april-4-2020-1693209826">Ascannio</a></span>
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<p>Major EU countries such as Germany, France and the Netherlands <a href="https://www.ft.com/content/e0248106-e6d5-4b2a-aaef-b52d464dcc03">also want</a> the Digital Services Act to block what has become big tech’s major strategy to attract new users: identifying non-profitable but successful internet companies, and buying their technology and user base. The UK is now decisively on the same path, as the Competition and Market Authority <a href="https://www.ft.com/content/af93369a-56fe-4d79-ad68-42e40404291f">just ordered</a> Facebook/Meta to sell Giphy, the largest repository of GIFs on the internet, which <a href="https://slate.com/technology/2021/11/meta-told-to-sell-giphy-in-first-major-antitrust-move-against-facebooks-parent-company.html">it bought</a> in 2020 for US$400 million (£301 million).</p>
<p>European regulators are therefore unravelling tech giants’ business models one decision <a href="https://theconversation.com/google-loses-appeal-against-2-4-billion-fine-tech-giants-might-now-have-to-re-think-their-entire-business-models-171628">after the other</a>. European data regulation is also becoming the de facto <a href="https://www.cambridge.org/core/journals/american-journal-of-international-law/article/gdpr-as-global-data-protection-regulation/CB416FF11457C21B02C0D1DA7BE8E688">global standard</a> because to be allowed to operate in Europe (which generates <a href="https://www.politico.com/news/agenda/2021/11/02/facebook-europe-privacy-content-laws-518514">a quarter</a> of Facebook’s annual profits), global tech often has to obey the stricter European rules across the board.</p>
<p>The European logic is that harvesting private data is often a rip-off. People care about privacy but <a href="https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-06/cp210103en.pdf">give away</a> their data in exchange for almost nothing, and the government should protect them. American regulators consider this patronising, with the Supreme Court ruling almost 20 years ago that <a href="https://supreme.justia.com/cases/federal/us/540/02-682/">a dominant firm</a> is free to exploit its consumers. Recent whistleblower Frances Haugen has provoked some soul searching in the US, but will probably <a href="https://www.politico.com/news/agenda/2021/11/02/facebook-europe-privacy-content-laws-518514">ultimately struggle</a> to secure meaningful changes to the rules around data and content. </p>
<p>With the likes of the UK now strongly following the path of the EU, the US is becoming increasingly isolated in this area. Meta is still free to make money out of their existing Facebook users in Europe. But as <a href="https://www.theverge.com/22743744/facebook-teen-usage-decline-frances-haugen-leaks">younger generations</a> leave Facebook for the likes of TikTok and Snapchat, it faces increasing difficulties in reaching them and gathering the necessary information to sell their profiles to advertisers. It may therefore be time for companies like Facebook to find new sources of revenue.</p><img src="https://counter.theconversation.com/content/173100/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Renaud Foucart does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Social media firms in Europe are well on the way to a thousand cuts.Renaud Foucart, Senior Lecturer in Economics, Lancaster University Management School, Lancaster UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1217082019-12-20T12:02:10Z2019-12-20T12:02:10ZWhat makes Uber and Airbnb different in the eyes of the EU – and why it matters<figure><img src="https://images.theconversation.com/files/308081/original/file-20191220-11929-1xsjy5p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/milan-italy-june-10-2016-close-443281492">Shutterstock/easy camera</a></span></figcaption></figure><p><a href="https://theconversation.com/digital-platforms-making-the-world-a-more-complicated-place-104372">Digital platforms</a> such as Uber and Airbnb have revolutionised the services we use. But progress rarely comes without a price and a certain amount of controversy. </p>
<p>Recently, both companies found themselves (separately) in the highest court of the EU, with cases considering the union’s core principle of freedom of movement. </p>
<p>The central question at stake was which laws these digital businesses should obey. Should they be subject to the different laws of each member state? Or could they benefit from free movement principles and be required only to obey the laws of the state where they are established? </p>
<p>The significance is considerable. Being subject to the laws of 28 different countries could mean substantial additional administrative and legal costs. More importantly, the outcome may affect the regulatory approach to “new economy” businesses in the future.</p>
<p>The key legal issue for the court was whether the platforms should be classified as “<a href="https://uk.practicallaw.thomsonreuters.com/8-201-8594?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1">information society services</a>” (ISS) – the EU’s term for an electronic service delivered at a distance. A company defined as an ISS enjoys the benefits of free movement.</p>
<p>In its <a href="https://www.theguardian.com/technology/2019/dec/19/eu-court-rules-airbnb-does-not-require-estate-agents-licence">December 2019 judgment</a>, the <a href="https://europa.eu/european-union/about-eu/institutions-bodies/court-justice_en">European Court of Justice</a> concluded that Airbnb and Uber should be treated differently. </p>
<p>The <a href="http://curia.europa.eu/juris/liste.jsf?num=C-320/16">ECJ previously concluded</a> that Uber was not an ISS. This was (partly) because Uber directly offers a transport service, and without the Uber app, the drivers would not be able to offer that service. The court also concluded that Uber has “decisive influence” over the economically significant aspects of the service. That is, they dictate the price.</p>
<p>By contrast, the <a href="http://curia.europa.eu/juris/liste.jsf?num=C-390/18#">court decided</a> that Airbnb is an ISS and is entitled to the benefits of free movement. This was partly because Airbnb did not directly offer users accommodation services, and that hosts could offer their accommodation services independently of the platform (using their own websites, for example). Also, Airbnb was not considered to exercise “decisive influence” over the economically significant aspects of the service. It is up to Airbnb hosts to set prices.</p>
<p>But there are major problems with this reasoning. First, the basis for differentiating these two platforms is difficult to reconcile with the practical realities of the business models they adopt. </p>
<p>Second, the underlying rationale appears to indicate that platforms should limit their influence over the activities of users if they wish to benefit from free movement provisions. This is not what regulators – or the public – need.</p>
<p>The ECJ differentiated the platforms on two grounds – the ability of users to successfully operate without the app, and the exercise of “decisive influence” over the service provision.</p>
<p>The rulings acknowledge that drivers could continue to operate without the Uber app (as independent cab drivers), but suggest it would be more difficult and less successful. By contrast, short-term accommodation hosts could readily provide their services independently of the Airbnb platform. </p>
<h2>Different deals</h2>
<p>As business ideas, both vehicle hire and accommodation letting have been around for some time. But in both models a new digital platform has revolutionised their scale and success. The “economic interest” in both cases actually lies in the efficiency and popularity of the platform – not whether the users of the platform could operate independently of it.</p>
<p>With Uber, the “decisive influence” that the platform exercised was considered capable of making the physical service (being driven somewhere) inseparable from the electronic. The fact that Uber controlled pricing, collected payment, and set standards for vehicle quality and driver conduct supported the conclusion that the Uber app was an integral part of the service. </p>
<p>With Airbnb, the ECJ concluded that the platform does not exercise the same control and influence over the services being offered. They do not dictate the “location or standards” of the accommodation, and although they collect payment in a similar way to Uber and offer a “Smart Pricing” tool, Airbnb does not set fees. </p>
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<img alt="" src="https://images.theconversation.com/files/308093/original/file-20191220-11951-12oa2nv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/308093/original/file-20191220-11951-12oa2nv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=358&fit=crop&dpr=1 600w, https://images.theconversation.com/files/308093/original/file-20191220-11951-12oa2nv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=358&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/308093/original/file-20191220-11951-12oa2nv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=358&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/308093/original/file-20191220-11951-12oa2nv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=450&fit=crop&dpr=1 754w, https://images.theconversation.com/files/308093/original/file-20191220-11951-12oa2nv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=450&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/308093/original/file-20191220-11951-12oa2nv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=450&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Digital justice?</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/themis-scale-symbol-justice-on-european-435420703">Shutterstock/Proxima Studio</a></span>
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</figure>
<p>But this conclusion overlooks a fundamental point. The value to suppliers lies in the platform itself – the usability and market reach of Airbnb and Uber. Both enjoy a position of influence over their end-service suppliers because without them, success would diminish considerably.</p>
<p>Digital platforms are bound to control the aspects of the service they deem most important to their business model. The end service provided by Airbnb hosts is far more complex and variable than the service provided by Uber drivers. </p>
<p>Airbnb allows users to enter a range of variables into an app, which it combines with market data in order to offer an indication of competitive price range. By contrast, with Uber there are fewer variables, so the platform sets a competitive price per mile based upon the market data. </p>
<p>The solution provided by the platform reflects the best solution to achieve the end goal – a competitive product.</p>
<h2>Rules and regulations</h2>
<p>Perhaps more significantly, the approach adopted by the ECJ in these cases risks incentivising platforms to adopt a more “hands off” approach to the end service, so their influence appears less decisive. This could make regulating the digital economy more difficult because the most efficient form of regulation would place responsibility and accountability for standards on the platforms themselves.</p>
<p>With dated EU provisions and further regulatory guidance still some way off, the ECJ decisions have resulted in a rather unsatisfactory situation when it comes to the ability of platforms to capitalise on free-movement principles. The judgements may also encourage legal advisers to tell their clients that less influence over end users is a better approach.</p>
<p>Capitalising on technological developments and innovative ways of doing business should be a priority for any state, region or city. In order to succeed, a clear, favourable and efficient regulatory environment is needed. </p>
<p>This can only be achieved if the platforms themselves are given the responsibility of ensuring that standards are maintained by the end users. Their influence must be more decisive, not less.</p><img src="https://counter.theconversation.com/content/121708/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Poyton does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The EU needs to reconsider its approach if digital platforms are to thrive.David Poyton, Reader in Law, Aberystwyth UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/731502017-03-23T08:05:46Z2017-03-23T08:05:46ZHow the courts gave us EU citizenship, and how Britons can keep it after Brexit<figure><img src="https://images.theconversation.com/files/161998/original/image-20170322-31217-6h11qo.jpg?ixlib=rb-1.1.0&rect=29%2C23%2C3851%2C2565&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/uk-business-man-brexit-eu-445271290?src=U0lkaEe2krfHBvajXFGOKQ-1-4">pixs4u/Shutterstock</a></span></figcaption></figure><p>One of the <a href="http://www.huffingtonpost.co.uk/entry/house-of-lords-vote-eu-nationals-brexit_uk_58b6fe4fe4b0284854b31f05">most keenly fought battles</a> in the run-up to <a href="https://theconversation.com/uk/eu-referendum-2016">Britain’s exit</a> from the European Union has been over the existence and nature of citizenship. EU nationals in the UK have become bargaining chips before negotiations start, and UK nationals living in the EU are the collateral damage. As Prime Minister Theresa May <a href="http://www.bbc.co.uk/news/uk-politics-39325561">prepares to trigger Article 50</a> and start the Brexit process, it is timely to ask just what citizenship represents. </p>
<p>At its heart, citizenship is the right to live and belong in a country and enjoy the protection of its laws. In the EU, it gives people a right to move to, and remain in, other EU states. And so, without a deal to protect citizenship rights, Brexit would be a dramatic moment for the more than <a href="https://www.theguardian.com/politics/2017/jan/27/fewer-britons-in-rest-of-europe-than-previously-thought-ons-research">3m people from other EU members</a> currently in the UK, and for the near 1m UK citizens who have made the opposite trip. Work and family lives have been constructed around these rights, and now they are in flux.</p>
<h2>Rights and wrongs</h2>
<p>As UK lawmakers tussle over the rights of EU citizens, the European Parliament’s lead Brexit negotiator <a href="http://www.bbc.co.uk/news/world-europe-39223106">Guy Verhofstadt</a> has mooted the concept of “Associate EU Citizenship” for UK nationals. This would give them the option of paying a fee to retain EU citizenship and some rights.</p>
<p>This is only at the idea stage of course, and it also sits rather uneasily with one of the drivers of Brexit: the desire to reclaim sovereignty. It also fundamentally challenges what we mean by citizenship. Can such a thing be so easily acquired?</p>
<p>In truth, Verhofstadt’s idea is by no means the only route for UK nationals to acquire EU citizenship post-Brexit. This can be done through family ties: it <a href="http://www.bbc.co.uk/news/magazine-37246769">has been estimated</a> that as many as 6.7m people in the UK have an Irish-born parent or grandparent which may help them secure Irish citizenship.</p>
<p>Estonia provides an unusual route into free movement rights for non-nationals. It has established the <a href="https://e-estonia.com/e-residents/about/">first ever “e-residency” programme</a> under which non-nationals can apply for a government ID which effectively gives them a transnational digital identity. They then set up an Estonian company, allowing them to trade in every EU country as a location-independent online business, without becoming an official Estonian national. </p>
<p>For the wealthiest UK nationals, Cypriot citizenship may be purchased through <a href="http://www.moi.gov.cy/moi/moi.nsf/All/36DB428D50A58C00C2257C1B00218CAB">a €2m investment</a> in government bonds, companies or land, or by making a significant contribution to major infrastructure projects. No residency is required. Malta has a similar programme costing €650,000, but <a href="http://iip.gov.mt/">requires one year of residency</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/162000/original/image-20170322-31194-16qvbyq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/162000/original/image-20170322-31194-16qvbyq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/162000/original/image-20170322-31194-16qvbyq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/162000/original/image-20170322-31194-16qvbyq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/162000/original/image-20170322-31194-16qvbyq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/162000/original/image-20170322-31194-16qvbyq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/162000/original/image-20170322-31194-16qvbyq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/162000/original/image-20170322-31194-16qvbyq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Money talks in Cyprus.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/nicosia-cyprus-505578361?src=wnnk0VQ2JkaGc9o7fWsjeQ-1-3">Andrei Tudoran/Shutterstock</a></span>
</figcaption>
</figure>
<p>There are other routes, too. You could marry an EU national or study in another EU state, which can sometimes lower the usual five-year period needed to obtain citizenship through residency to two years. Failing that, the standard route of living in a host state for five years will usually suffice to obtain national, and therefore, EU citizenship. In some cases, individuals may hold dual citizenship and not feel they are losing their original nationality or identity. </p>
<h2>Acquiring rights</h2>
<p>It is no surprise that ideas around citizenship have emerged at the heart of the post-referendum debate. After all, the same themes of who belongs where helped to underpin support for Brexit. And so it is useful to remind ourselves how the assumptions about citizenship rights evolved in the EU. </p>
<p>The 1957 Treaty of Rome and additions made during the 1990s gave EU citizens the right to move and reside freely in other member states, and to vote and stand in European elections. As an EU citizen, you also get the diplomatic protection of any member state in a third country, and you can petition the European Parliament, apply to the European Ombudsman or communicate with EU institutions in any of the official EU languages. There are also economic free movement rights to work, set up a business and provide or receive services.</p>
<p>Of the citizenship rights, the most influential in the context of Brexit has been the right to move and reside freely. This is subject to limitations and conditions which were originally intended to ensure the free mover was economically active and contributing to the single market. However, the Court of Justice of the EU has, over time, interpreted the legislation implementing citizenship rights as a requirement not to be an unreasonable financial burden on the host state, and an obligation to have health insurance.</p>
<h2>Interpreting rights</h2>
<p>In fact, the ECJ has elaborated greatly upon the citizenship rights set out in the 1957 Treaty, and this is precisely what national governments have found problematic, especially as EU enlargement has been thought to <a href="http://europeanlawblog.eu/tag/c-33313-elisabeta-dano-v-jobcenter-leipzig/">encourage “welfare tourism”</a> among EU migrants.</p>
<p>The court attaches huge importance to the “fundamental status” of citizenship rights. This requires the kind of solidarity between EU citizens and member states which has been a step too far for the electorate of countries like the UK. As the ECJ interpreted away the “economically active” nature of EU citizenship, so it played a crucial role in hardening opinion against free movement and brought us to the point <a href="https://theconversation.com/uk/eu-referendum-2016">where Brexit</a> (and <a href="https://www.ft.com/content/d37b6d90-fdd1-11e6-8d8e-a5e3738f9ae4">possibly Frexit</a>) became politically possible.</p>
<p>And the ECJ may have another card to play which will infuriate supporters of Brexit. The court has said that it has jurisdiction to assess whether people can be deprived of EU citizenship. It is therefore possible the court could mount a legal challenge to any Brexit deal that constitutes a deprivation of rights and legitimate expectations of citizens – both UK and non UK. </p>
<p>In the middle of all this political ping pong, back door citizenship and legal positioning, of course, are real people and families, living real lives which now look fragile and unpredictable. Citizenship may be reinterpreted, or even bought and sold, but certainty and security would offer a more valuable commodity.</p><img src="https://counter.theconversation.com/content/73150/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Susan Millns has received funding from the EU's Representation in the UK </span></em></p>If you have an Irish granny, a spare €650,000 to spend in Malta, or a hankering for a new villa in Cyprus, then EU citizenship is within reach.Susan Millns, Professor of Law, University of SussexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/745832017-03-16T16:52:25Z2017-03-16T16:52:25ZFreedom of religion under threat across Europe after EU court rules employers can ban headscarves<figure><img src="https://images.theconversation.com/files/161140/original/image-20170316-10895-1wou5u8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Wearing a headscarf to work may become harder in some professions.</span> <span class="attribution"><span class="source">via www.shutterstock.com</span></span></figcaption></figure><p>Employers across Europe have been given the green light to ban staff from wearing religious and political symbols after a ruling by the <a href="http://curia.europa.eu/jcms/jcms/j_6/en/">Court of Justice of the European Union</a> (ECJ). The ruling opens up a Pandora’s box and could disproportionately affect Muslim women facing requests to remove headscarves in some places of work across Europe. But it is also likely to affect other people that display their religious affiliations through their dress, such as Sikh men, Orthodox Jewish women, nuns working in hospitals or schools, or those who overtly display their political affiliations or sympathies. </p>
<p>The ECJ <a href="http://curia.europa.eu/jcms/upload/docs/application/pdf/2017-03/cp170030en.pdf">ruling</a> related to two cases brought by national courts in France and Belgium, regarding Muslim women who had sued their employers. The women argued that they had been discriminated against at work for being asked to remove their veils – one by the employer and the other by a customer and subsequently by her employer – and were sacked when they refused to do so. </p>
<p>Within the EU, national laws about equality and non-discrimination in the workplace are governed by an <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32000L0078&from=EN">overarching EU directive from 2000</a>, and the French and Belgian courts wanted clarification from the ECJ around how to interpret the law in these cases. </p>
<p>The ruling will not allow employers to systematically ban the hijab and other religious and political symbols in all workplaces, but it does provide ammunition for those who want to ask their staff not to display religious symbols. The ECJ decided that if an employer’s goal is to provide services to customers in a neutral way, it is entitled to request its employees to remove visible religious or political symbols. </p>
<p>But this logic around respecting the neutrality of the employer’s goals remains fuzzy, and seems to go <a href="http://www.bbc.co.uk/news/uk-21025332">against a previous ruling</a> from the European Court of Human Rights, which has upheld the rights of employees to display religious symbols at work as part of their religious freedom. </p>
<p>The ECJ judgement also specifies that requests from customers asking employees not to wear religious or political symbols will not constitute a legitimate ground for employers to ban such clothing. In fact, the ECJ said this reasoning would amount to religious discrimination. However, in an age where many employers take a customer-centred approach to their organisational goals, this could be a fine line. </p>
<h2>Unprecedented in scope</h2>
<p>The two plaintiffs in this ECJ case were from Belgium and France, countries in which vehement “laïcité” or state secularism already underpins laws regarding religious dress and has led to <a href="https://www.opendemocracy.net/sara-silvestri/french-burqa-and-%e2%80%9cmuslim-integration%e2%80%9d-in-europe">burqa bans</a>. But as the ruling will affect the whole of Europe, not just France and Belgium, it is unclear how much the ECJ judges considered the implications of their ruling for other countries which do not share the French and Belgian policy of laïcité.</p>
<p>Thankfully, the ECJ’s jurisdiction does not pertain to religious freedom in general, and so the scope of this ruling is relatively narrow and limited to non-discrimination in the workplace. But its ruling is frustrating and contradictory, particularly as the EU was a pioneer in establishing the principles of equality and non-discrimination on religious grounds in a person’s occupation with the directive in 2000. The EU even set up an independent <a href="http://fra.europa.eu/en">EU Agency for Fundamental Rights</a> in 2007 to share good practices and research and to monitor EU countries in this area. </p>
<p>At a time when Europe is short of big ideals and existing conflicts and demographic transformations indicate we need to pay more, not less, attention to freedom of religion and of expression, it does not help that such a prominent international court is unwilling to be bolder in dealing with these fundamental freedoms and the idea of <a href="https://www.timeshighereducation.com/books/the-new-religious-intolerance-overcoming-the-politics-of-fear-in-an-anxious-age/419718.article">tolerance</a>. </p>
<p>This is new territory for the ECJ and the scope of its ruling is unprecedented. So far, controversies about religious symbols in Europe have been considered by the <a href="http://www.echr.coe.int/Pages/home.aspx?p=home">European Court of Human Rights</a>, an institution outside of the EU, because they dealt with issues of human rights and freedom of religion. The ECJ, an EU institution based in Luxembourg, had previously ruled on employment matters associated with non-discrimination and equality, but until now no such case had been brought there specifically on the grounds of “religious” discrimination. </p>
<p>Concerns have <a href="https://www.theguardian.com/commentisfree/2017/mar/15/hijab-ruling-muslim-women-religious-identity-european-court-of-justice-resistance">already been raised</a> about how the ruling will affect Muslim women across Europe, whether they wear the hijab or not – at least on an emotional level. Yet, unless employers and national courts in different EU member states come across court disputes similar to those presented in this ruling, then this judgement will sit in a drawer without directly affecting people. Still, the ruling is likely to provide ammunition and political legitimacy to all those across Europe who are promoting anti-Muslim, anti-religious or anti-migrant feelings.</p>
<h2>Britain looking more attractive</h2>
<p>A serious implication is that EU states will now no longer need to create an anti-veil law for anti-veil views and behaviour to be established and legitimised in everyday life – they are now implicitly sanctioned by this ruling. The outcome could easily be prejudice, erosion of societal relations, intolerance, racist incidents, and fear among Muslim and other religious communities.</p>
<p>In the wake of Brexit, the ruling will have only a temporary effect in the UK – unless the British government decides to permanently incorporate this particular bit of EU law into its own body of law once the UK leaves. To date, the government has a <a href="https://twitter.com/Telegraph/status/841991503857762304">firm position</a> on hijab and burqa bans that it looks unlikely to change, viewing them as unnecessary and even counter-productive. </p>
<p>It’s therefore possible that after Brexit, the UK might become the only place in Europe where Muslims and other religious communities can take up jobs without being too worried that they will have to remove religious clothing, although this is not to dismiss the existence of anti-Muslim feelings in the UK. In an unintended consequence of the ruling, the UK might actually become more attractive to Muslims for professional reasons than the rest of the EU.</p><img src="https://counter.theconversation.com/content/74583/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sara Silvestri has consulted for the British Academy/DfID, the EU, the British Council and has advised other governments and institutions around Islam in Europe, Migration and Religion and Politics. She is currently not receiving funding from any organisation but in the past has received funding from the ESRC, NORFACE, the Plater Trust, the European Science Foundation, the King Baudouin Foundation, the British Council and BIS (via NATCEN). She is also affiliated with the University of Cambridge (Polis and St Edmund's College) and with the Von Huegel Institute. </span></em></p>After Brexit, the UK could become a more attractive place for Muslim women than the rest of the EU.Sara Silvestri, Senior Lecturer, Department of International Politics, City, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/636232016-08-08T14:44:58Z2016-08-08T14:44:58ZCommercial disputes that cross borders will be a major headache after Brexit<figure><img src="https://images.theconversation.com/files/133386/original/image-20160808-18034-1b7yi2f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Courting trouble. </span> <span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-274830707/stock-photo-young-businesspeople-fighting-on-hands.html?src=EfS_aNN3Wv0OPSAp7biWBg-1-88">Piotr Marcinski</a></span></figcaption></figure><p>Picture the situation where a British company does business with another company somewhere else in the EU. Let’s say, for example, that a German manufacturer supplies vital components for a British maker of boat engines. The British company has a big order coming up from the US that has to be satisfied by such and such date but the Germans fail to deliver. It costs the Brits a seven-figure sum in lost business and in the end, they decide to sue. </p>
<p>Providing a UK court finds in its favour, the company currently has an excellent chance of recouping the damage. This is because all UK businesses and citizens enjoy access to an <a href="http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32012R1215">EU system</a> known as the Brussels Ia regulation that automatically allows court judgments in one member state to be enforced in another. </p>
<p>Perhaps 100 to 150 commercial cases are underpinned by this system each year, affecting what is almost certainly many millions of pounds in business. Once the UK leaves the EU, however, it is set to lose access to the system. It is a problem that is in danger of being overlooked and needs serious consideration as part of the Brexit negotiations.</p>
<h2>Judgments that travel</h2>
<p>As lawyers swiftly learn, it is one thing to win a case and a judgment but quite another to get the money that the judgment says you should receive – especially when the other side and its assets are located abroad.</p>
<p>As things stand inside the EU, there is no need for a UK company with a favourable judgment to ask another EU court for permission to enforce it: you just present the foreign bailiffs or other enforcement officials with the judgment and a standard form and they enforce it for you. In our example, the judgment by the British court would have more or less the same effect as if it had been reached in Germany.</p>
<p>There is no risk of a costly foreign rehearing of the original case. The options open to the other party to resist enforcement are deliberately extremely limited and very rarely succeed – not to mention that they bear the costs of challenge.</p>
<p>What is more, because the rules are designed to help you to enforce your judgment on equal terms throughout the entire EU, your judgment is also enforceable in any other EU country and you can confidently expect that country to enforce it on your behalf as well.</p>
<p>Once Brexit takes place, our British engine maker would be faced with the considerable uncertainty and expense of first trying to determine what judgment enforcement possibilities exist in Germany and then trying to get their judgment enforced. Comparatively long-winded and expensive foreign proceedings may be required to obtain a decision, and enforcement is much more likely to be refused for “local policy reasons”.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/133352/original/image-20160808-18023-y0li40.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/133352/original/image-20160808-18023-y0li40.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/133352/original/image-20160808-18023-y0li40.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=398&fit=crop&dpr=1 600w, https://images.theconversation.com/files/133352/original/image-20160808-18023-y0li40.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=398&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/133352/original/image-20160808-18023-y0li40.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=398&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/133352/original/image-20160808-18023-y0li40.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=500&fit=crop&dpr=1 754w, https://images.theconversation.com/files/133352/original/image-20160808-18023-y0li40.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=500&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/133352/original/image-20160808-18023-y0li40.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=500&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">If it ain’t broke …</span>
<span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-289210793/stock-vector-illustration-of-an-european-union-long-shadow-flag-with-a-weight-scale.html?src=IXFlDnX9w7-FIh5RmrcVkw-1-6">Blablo 101</a></span>
</figcaption>
</figure>
<h2>What happens next</h2>
<p>To some extent the EU has emulated the internal American arrangement, in which individual US states automatically enforce court judgments from any other US state. Yet things are far less straightforward in situations when a US judgment goes abroad or the judgment comes from outside the US. A business that has obtained a UK court judgment against a US company essentially faces the same practical problems and extra costs of getting it enforced as our British engine maker will face in Germany after Brexit.</p>
<p>Previously the US and Europe <a href="https://www.hcch.net/en/projects/legislative-projects/judgments">tried to</a> fix this drawback to trade by creating a global Hague judgments convention. The negotiations ran from 1996 to 2001 but collapsed in failure because EU agreement was conditional on restricting the circumstances when US courts could hear cases with an international aspect. The goal of a global judgments convention was <a href="http://keionline.org/node/1641">recently revived</a> at the Hague and negotiations are ongoing; its prospects though are uncertain. Even if successful, it will take many years to come into any kind of global operation. </p>
<p>The immediate reality is that if a commercial contract with a company in another EU country is more difficult to enforce, it will make quite a difference to its profitability. Business people ought to be finding out from their lawyers what that difference looks like, and price it into existing contracts and any future commercial negotiations.</p>
<p>In the meantime the UK government needs to consider as a matter of urgency ahead of the Brexit negotiations how best to resolve these uncertainties now and in the medium to long-term. One partial solution would be to sign up to the enforcement system with EU countries that is used by Norway, Switzerland and Iceland. They currently use an older and less efficient <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1470649263667&uri=CELEX:22007A1221(03)">version of</a> the current EU system dating from 2007, though they have to accept that the EU’s Court of Justice in Luxembourg has the final say on its interpretation. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/133353/original/image-20160808-18037-1js0mrm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/133353/original/image-20160808-18037-1js0mrm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/133353/original/image-20160808-18037-1js0mrm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=893&fit=crop&dpr=1 600w, https://images.theconversation.com/files/133353/original/image-20160808-18037-1js0mrm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=893&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/133353/original/image-20160808-18037-1js0mrm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=893&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/133353/original/image-20160808-18037-1js0mrm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1122&fit=crop&dpr=1 754w, https://images.theconversation.com/files/133353/original/image-20160808-18037-1js0mrm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1122&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/133353/original/image-20160808-18037-1js0mrm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1122&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The justice seat.</span>
<span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-260963972/stock-photo-luxembourg-city-luxembourg-circa-april-2013-editorial-the-court-of-justice-of-the-european-union-cjeu-ecj-is-located-on-the-kirchberg-plateau-overlooking-the-city-of-luxembourg.html?src=nnThNnIbbsDDpObaFB-NKg-1-19">EQRoy</a></span>
</figcaption>
</figure>
<p>It is technically up to the EU to decide whether or not to permit the UK to sign up like this. For the UK the major stumbling block would be having to accept the involvement of the European Court of Justice in Luxembourg. </p>
<p>Whether this is politically possible will depend on the type of Brexit the UK opts for. Ultimately the commercial benefits may outweigh the relatively small surrender of sovereignty involved: this will be a matter to watch as the negotiations proceed.</p><img src="https://counter.theconversation.com/content/63623/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jonathan Fitchen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>UK companies currently trade in the EU knowing that legal disputes will be enforced in any member state. Brexit risks changing all that.Jonathan Fitchen, Senior Lecturer, University of AberdeenLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/488352015-10-09T09:54:43Z2015-10-09T09:54:43ZGM crops: an uneasy truce hangs over Europe<figure><img src="https://images.theconversation.com/files/97778/original/image-20151008-9659-1a3zs46.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Staple food</span> <span class="attribution"><a class="source" href="http://www.shutterstock.com/cat.mhtml?lang=en&language=en&ref_site=photo&search_source=search_form&version=llv1&anyorall=all&safesearch=1&use_local_boost=1&autocomplete_id=&searchterm=GM%20crops&show_color_wheel=1&orient=&commercial_ok=&media_type=images&search_cat=&searchtermx=&photographer_name=&people_gender=&people_age=&people_ethnicity=&people_number=&color=&page=1&inline=126284900">Solmule</a></span></figcaption></figure><p>Most EU member states <a href="https://uk.news.yahoo.com/most-eu-nations-seek-bar-gm-crops-145652899.html#mEcgCiq">have now exercised</a> a new conditional <a href="http://eulawanalysis.blogspot.ie/2015/03/choosing-to-go-gm-free-new-eu-legal.html">legal right</a> to prevent GM crops from being cultivated within their own territories. This is the first time they have been able to do so since the EU started regulating the technology more than 20 years ago. It represents a compromise attempt by the European Commission to overcome a status quo where <a href="http://www.europabio.org/which-gm-crops-can-be-cultivated-eu">only one</a> GM crop is cultivated in the EU and member states <a href="http://europa.eu/rapid/press-release_MEMO-13-952_en.htm">impose national bans</a> based on safety concerns. </p>
<p>When the deadline for exercising the right expired on October 3, it ended a transitional period where member states could take the “easy option” to restrict GM cultivation in part or all of their territories. There will be other chances later, but with more substantial hurdles. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/97786/original/image-20151008-9679-syx3zp.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/97786/original/image-20151008-9679-syx3zp.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/97786/original/image-20151008-9679-syx3zp.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=553&fit=crop&dpr=1 600w, https://images.theconversation.com/files/97786/original/image-20151008-9679-syx3zp.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=553&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/97786/original/image-20151008-9679-syx3zp.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=553&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/97786/original/image-20151008-9679-syx3zp.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=695&fit=crop&dpr=1 754w, https://images.theconversation.com/files/97786/original/image-20151008-9679-syx3zp.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=695&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/97786/original/image-20151008-9679-syx3zp.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=695&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<p>GM crops have been highly contentious within the EU. Once a crop <a href="http://ec.europa.eu/food/food/animalnutrition/labelling/Reg_1829_2003_en.pdf">received</a> EU <a href="http://www.biosafety.be/GB/Dir.Eur.GB/Del.Rel./2001_18/2001_18_TC.html">authorisation</a>, it automatically applied across all member states – irrespective of who voted yes or no. Indeed, crops can even be authorised where the majority of members are opposed, under rules that <a href="https://www.qub.ac.uk/schools/SchoolofPoliticsInternationalStudiesandPhilosophy/FileStore/EuropeanisationFiles/Filetoupload,38422,en.pdf">state that</a> crops permitted in one state can be grown in any (this happened with <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:31997D0098">Novartis BT176 maize</a> in the 1990s, for example). </p>
<p>Some member states and regions have resisted by establishing the <a href="http://gmofree-euroregions.regione.marche.it">GMO-Free Network</a> and invoking so-called “<a href="http://www.loc.gov/law/help/restrictions-on-gmos/eu.php">safeguard clauses</a>” that permit temporary bans on a crop at national level where new information demonstrates a risk to human health or the environment. Some members have also pushed for greater freedom to restrict cultivation at national level, while the commission has been delaying authorising new crops to avoid conflict. </p>
<p>The European Court of Justice <a href="http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30dd606cddbd82224367bd0ba723ef88e5a6.e34KaxiLc3qMb40Rch0SaxuRbhf0?text=&docid=142241&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=487442">condemned</a> the commission for these delays in 2013. There has also been the possibility for further action before the World Trade Organisation, as the situation mirrors a previous de facto moratorium <a href="http://www.ft.com/cms/s/0/624a88c6-97db-11da-816b-0000779e2340.html#axzz3nxpJapad">that ran</a> between 1999 and 2003 and was <a href="http://www.euractiv.com/trade/wto-panel-rules-eu-gmo-moratorium-illegal/article-152341">condemned by</a> the organisation following pressure from the US and Canada.</p>
<h2>The new approach</h2>
<p>The commission proposed the new rules back in 2010. It proposed that risk assessment and management would remain harmonised at the EU level, while members could impose post-authorisation restrictions. After much wrangling, this led to <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:JOL_2015_068_R_0001">Directive 2015/412</a> coming into force in April. It aims to give more sceptical states such as Austria and Italy the freedom to choose to prevent cultivation while potentially enabling more enthusiastic territories such as Spain and England to cultivate crops that have not yet been authorised. </p>
<p>The directive allows member states to request geographical restrictions while a crop is being authorised (or reauthorised) without providing reasons, subject to the applicant biotech company not objecting. In the case of crops that are already authorised, member states can unilaterally impose restrictions if they can demonstrate they are necessary to protect a “compelling ground” (the directive contains a non-exhaustive list). The company and other interested parties can raise a legal challenge, however. </p>
<p>The transitional phase that ended on October 3 enabled members to use the first option to prevent cultivation of the one GM crop with EU authorisation – Monsanto’s MON810 maize – and the eight crop applications going through the authorisation process. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/97781/original/image-20151008-9675-1dqchde.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/97781/original/image-20151008-9675-1dqchde.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/97781/original/image-20151008-9675-1dqchde.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/97781/original/image-20151008-9675-1dqchde.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/97781/original/image-20151008-9675-1dqchde.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/97781/original/image-20151008-9675-1dqchde.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=499&fit=crop&dpr=1 754w, https://images.theconversation.com/files/97781/original/image-20151008-9675-1dqchde.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=499&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/97781/original/image-20151008-9675-1dqchde.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=499&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Splice of life.</span>
<span class="attribution"><a class="source" href="http://www.shutterstock.com/s/GM+crops/search.html?page=3&thumb_size=mosaic&inline=85099198">Pedrosala</a></span>
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<h2>Effective compromise?</h2>
<p>Of the 19 member states which met the deadline to apply to prevent GM cultivation, the first two have already been waived through by the biotech companies in question and the remainder look likely to receive the same treatment. The hope from the companies is that these members will be willing to vote in favour of authorisations in future, or at least not attempt to block them – and that they will lift their safeguard-clause bans and not resort to new ones, since they feed wider concerns over safety. </p>
<p>The longer-term position is less clear, though. Preliminary findings from my research funded by the British Academy, involving interviews of member representatives, indicate that the opt-out will make some states less likely to create safeguard measures, but have little to no impact on votes on authorisations. It is true that crops may nonetheless be authorised either by qualified majority votes or by the commission where there is a hung vote. Where the commission was wary of forcing through authorisations in the past, it may feel the system is now sufficiently flexible to make this acceptable. </p>
<p>But even then, lack of member support lengthens the process for approving a new crop and removes the incentives for applicant companies to agree to exclude particular territories from their applications or waive their right to challenge a restriction of an existing authorisation. You can understand member states feeling that they have to be consistent in their approach to a particular crop at national and EU level, but there is a danger that applicant companies may see no reason to rubber-stamp restrictions if the same countries are going to obstruct them at the EU level anyway. </p>
<p>For members seeking restrictions who don’t get the blessing of the applicant company, if the EU grants an approval for a crop, they are then reduced to making “compelling grounds” arguments for a unilateral restriction. It may be a difficult argument to win. Justifications on grounds of environmental protection are limited under the directive. And because the rules permit local restrictions, it makes it harder to argue that an outright prohibition across a whole country is justified. </p>
<p>On the other hand, if member states are prevented from opting out, the danger swings the other way: they may fall back into their well trodden paths and resort to safeguard clauses, threaten to block authorisations and generally make the whole authorisation process tortuous. </p>
<p>So the October 3 deadline was only one step in this debate. If both the EU’s member states and the biotech companies can demonstrate flexibility, more crops might be authorised and safeguard measures might be lifted. Directive 2015/412 would then look like a workable truce. If not, it will not be long before the EU’s long conflict over GM crops resumes.</p><img src="https://counter.theconversation.com/content/48835/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mary receives funding from the British Academy for some future research relating to genetically modified crops
</span></em></p>New EU rules on GM attempt to unblock logjam that has hung over the technology in the region for most of this century. To work, anti-GM member states and Big Biotech will need to cooperate.Mary Dobbs, Lecturer in Law, Queen's University BelfastLicensed as Creative Commons – attribution, no derivatives.