Website accessibility and the European Union: citizenship,procurement and the proposed Accessibility Act

Websites can be accessible to all if they are designed according to certain principles. Website accessibility has long been a European Union policy priority, particularly with the growth of egovernment services and the related impact on citizenship. A number of studies, while showing some improvement in accessibility, indicate the need for accessibility improvement in relation to egovernment services. This article outlines the European Union's policies on accessible websites and the related legislation. A theme in the development of disability related Directives is fragmentation and the lack of harmonising principles. Public procurement has been used as an extremely effective tool to increase accessibility in the United States, and it is this approach that lies at the heart of the proposed Accessibility Act. This initiative seeks to harmonise standards and policies on accessibility to harness fully the power of the internal market and the commercial impetus in order to increase access. While the Accessibility Act is currently being drafted after recent public consultation, this article evaluates the potential impact it could have on the accessibility of European Union public, and ultimately, private websites.     

Public procurement as a means to achieving social gains – progress and challenges in European legislation and standards for accessible information and communication technology

This article explores the European Commission goal of improving the quality and level of accessibility in mainstream information and communication technology (ICT) goods and services available in Member States through the use of public procurement legislation and performance standards. Over the past two decades, the Commission has encouraged Member States to adopt common requirements for accessibility and to strengthen efforts to use these requirements in public procurement. In the absence of significant improvements in the level of accessibility over this time, the Commission has more recently committed to bringing forward legislative proposals to harmonize the accessibility requirements used by Member States. A new procurement directive package contains stronger obligations on public bodies to include accessibility as mandatory requirements in Technical Specifications. In parallel to this, a standardization mandate by the Commission to the European Standards Organizations (ESOs) concluded in March 2014 with the publication of the first European standard on ICT accessibility. In light of these developments, this article analyses the trajectory of European policy in the field of accessibility over the last two decades, and the interplay between European public procurement, standardization and law. It examines how far these developments have succeeded in bringing into being a public procurement eco-system that will nudge the market in Europe to producing affordable and accessible ICT products and services for persons with disabilities.     

The State of Gender Equality Law in the European Union

Abstract:  This article assesses critically the recent law and policy initiatives in European Union gender equality. As a fundamental right, the principle of gender equality is to apply in all areas of EU law. Its scope has been extended to the access to and supply of goods and services and, according to the European Court of Justice, to the Third Pillar. Despite efforts to render the principle visible and accessible, a number of provisions remain unclear and contradictory. The contribution of external actors in this field is set to help safeguarding and enhancing the Community gender equality acquis .     

The Distance Selling Directive: Points for Future Revision

The EU Distance Selling Directive that was implemented in UK law in the Consumer Protection (Distance Selling) Regulations 2000 has provided guidelines for the protection of consumers undertaking distance transactions. The following paper discusses the provisions of the Directive with particular reference to e-commerce via the Internet, highlighting some possible areas for further consideration. Articles within the Distance Selling Directive are examined for problems of legal interpretation and implementation. There is discussion of: Article 2 (Definitions) and difficulties with its fundamental concepts of 'supplier' and 'consumer'; unnecessary exemptions in Article 3 (Exemptions); the 'local taxes' headache (and others) in Article 4 (Prior Information) and using e-mail under Article 5 (Written Confirmation of Contract). Under Article 6 (Right of Withdrawal), the 'cooling off period', exempted goods and services, refunds and reclaiming goods, and for Article 7 (Performance) substitute goods and contract law implications, are investigated. Finally Article 8 (Payment by Card) looks at protection against fraudulent card use.     

Does accessible technology need an ‘entrepreneurial state’? The creation of an EU market of universally designed and assistive technology through state aid

EU State aid law has sought to enable people with disabilities to obtain employment, yet has not been explicitly included in the toolbox of policy options to improve the availability and choice of accessible technology within the EU Internal market. This seems to be the consequence of an inherent bias against State intervention in the market, which is mostly unwelcome since it can limit open and free competition. This also reiterates the ‘less-aid’ policy and the purely economic approach to State aid professed by the European Commission. Against this background, this article discusses the potential for EU State aid policy to foster both ‘design for all’ and innovative assistive devices for people with disabilities. It seeks to argue that the goal of an EU-wide market of accessible technology can be achieved using EU State aid law. In particular, this article aims to highlight that a more targeted use of EU State aid law can lead developers to increase the production of accessible goods, to adjust or reduce prices and to provide consumers with a greater degree of choice in a greater number of marketplaces. Whilst it adopts a legal approach, this analysis relies inter alia on economic evidence and recalls the pamphlet recently published by Mazzuccato, from which the title of this work has drawn inspiration.     

EU Equality Law: Three Recent Developments

This article analyses three recent developments within the EU that have an impact on EU equality legislation: the coming into force of the Treaty of Lisbon, the Proposal to extend the material scope of the provisions against discrimination on the ground of religion and belief, disability, age and sexual orientation beyond the area of employment, and the case law of the European Court of Justice regarding the EU Equality Directives of 2000. It will assess whether these three developments have led to improved protection against discrimination for people in the EU.     

Between Immigration and Policing: Cross Recognition

Abstract: This article looks at the development of the UK's policies towards asylum‐seekers who are to be returned to some country other than the one where they fear persecution (its ‘safe third country’ policy). The Dublin Convention of 1990 addressed some of the problems which this policy created, but left others unresolved. Domestic legislation has progressively reduced the opportunities for challenging safe third‐country removals, especially to an EU state. The incorporation of the European Convention on Human Rights into UK law has generated new possibilities for challenging safe third‐country decisions where removal might damage physical or mental health. Articles 3 and 8 have been invoked in particular. The Dublin machinery established ‘rules’ to decide which member state was responsible for considering the asylum claim and the procedure to be followed. The article examines why the UK courts have said that these provisions are not justiciable in the English courts. Finally the article considers whether the experience with Dublin provides any useful guidance as to the approach that will be taken to European arrest warrants and extradition requests.     

The thin red line: Refocusing data protection law on ADM,a global perspective with lessons from case-law

This article explores existing data protection law provisions in the EU and in six other jurisdictions from around the world - with a focus on Latin America - that apply to at least some forms of the processing of data typically part of an Artificial Intelligence (AI) system. In particular, the article analyzes how data protection law applies to “automated decision-making” (ADM), starting from the relevant provisions of EU's General Data Protection Regulation (GDPR). Rather than being a conceptual exploration of what constitutes ADM and how “AI systems” are defined by current legislative initiatives, the article proposes a targeted approach that focuses strictly on ADM and how data protection law already applies to it in real life cases. First, the article will show how GDPR provisions have been enforced in Courts and by Data Protection Authorities (DPAs) in the EU, in numerous cases where ADM is at the core of the facts of the case considered. After showing that the safeguards in the GDPR already apply to ADM in real life cases, even where ADM does not meet the high threshold in its specialized provision in Article 22 (“solely” ADM which results in “legal or similarly significant effects” on individuals), the article includes a brief comparative law analysis of six jurisdictions that have adopted general data protection laws (Brazil, Mexico, Argentina, Colombia, China and South Africa) and that are visibly inspired by GDPR provisions or its predecessor, Directive 95/46/EC, including those that are relevant for ADM. The ultimate goal of this study is to support researchers, policymakers and lawmakers to understand how existing data protection law applies to ADM and profiling.¹     

Supranational Fundamental Rights or Primacy of Sovereignty?

This analysis explores in detail various aspects of the possible legal impact of ‘British’ Protocol No 30 (the so‐called opt‐out from the EU Charter of Fundamental Rights). On the basis of a legal appraisal, it concludes that the Protocol is not in any way to be understood as a substantial derogation from the standard of protection of fundamental rights in the EU or as an ‘opt‐out’ from the Charter in a substantial sense. Nevertheless, its significance is definitely not to be underestimated. Its adoption as a source of primary law enshrines a legally binding interpretation of the Charter and, in particular, an interpretation of its horizontal provisions. In Article 1(2) and Article 2, the Protocol in fact confirms that the application of the Charter cannot lead to a change in the existing competencies framework. These provisions are of a declaratory nature and apply to all Member States. In Article 1(1), the Protocol is of a constitutive nature since it rules out an extensive interpretation of what can be considered national legal acts adopted in the implementation of EU law only for those States signed up to the Protocol. This specifically means that if, in the future, as part of the application of the Charter, the Court of Justice of the EU (ECJ) has a tendency to subsume a certain area of national legislation under the ‘implementation of Union law’ outside the field of implementing standards, in the spirit of the Ellinki Radiophonia Tileorassi judgment (and subsequently allow their reviewability with respect to their conformity with the Charter), such action would be admissible only for those Member States that have not acceded to the Protocol. However, the Protocol cannot exclude the continued application of the general principles of law instead of the positively constituted fundamental rights in the Charter by the ECJ.     

The Power of EU Collective Action: The Impact of EU Data Privacy Regulation on US Business Practice

Contemporary critiques of globalisation processes often focus on the potential levelling of regulatory standards and the export by the United States of neoliberal norms of deregulation and market facilitation. This paper, in contrast, examines the extra-jurisdictional impact of EU regulatory policy on the behaviour of foreign private parties, even in powerful states such as the United States. Shaffer finds that the threat of curtailing access to the EU's large market provides the EU with leverage. By acting collectively, EU Member States can magnify the impact of European policy on US business practice and enhance EU Member State clout in the negotiation of de jure and de facto foreign standards. The site of analysis is the current dispute between the United States and the European Union over the provision of 'adequate' data privacy protection in accordance with the EU Directive on data privacy. The paper explores the many ways in which the Directive affects US practice through changing the stakes of US players – including regulators, businesses, privacy advocates, lawyers and privacy service providers – and thereby shifting the playing field in the United States on which competing interest groups clash. In examining the interaction of EU law, US practice and international trade rules, the author finds that WTO law, rather than constraining the Directive's extra-jurisdictional impact, provides the EU with a shield against US retaliatory threats, thereby facilitating a trading up of data privacy standards. The paper concludes by examining the conditions under which cross-border exchange can lead to a leveraging up of social protections: the desire for firms to expand their markets, Member States' collective bargaining power buttressed by market clout, the nature of luxury goods, the externalities of foreign under-regulation legitimising EU intervention, and the constraints of supranational trade rules.     

Transnational convergence of public procurement policy: a ‘bottom-up’ analysis of policy networks and the international harmonisation of accessibility standards for information and communication technology

This article seeks to examine how public procurement policies for information and communication technology (ICT), aimed at improving the accessibility of ICT for persons with disabilities, have converged internationally. Convergence, in this instance, refers to the international harmonisation or acceptance of common standards and norms. Distinguishing itself from the predominant authorship in the area, this article seeks to explore convergence from a ‘bottom-up’ perspective, by examining the influence of networks of public and private actors on the design of public procurement standards for accessible ICT. Specifically, it will seek to answer how these actors and networks (varying in their level of coordination) have contributed to policy design in a unique area, public procurement of ICT goods and services. The influence of these networks will be discussed through the use of policy documents and semi-structured interviews, to provide empirical support for examining this ‘bottom-up’ analysis and distinguish it from the standard ‘top-down’ model usually employed in this field. This article also focuses on the role of policy actors in the United States and European Union that participated in the harmonisation of public procurement policy and the legal norms and instruments that give these policies their legal effect.     

论欧盟金融服务法中的最低限度协调原则

在欧盟金融服务法中,最低限度协调原则是指共同体立法只对各成员国金融监管规则的基本要素进行协调.这一原则尊重了成员国的国家主权,有助于降低金融服务市场一体化的政策成本,并能够充分发挥市场机制的作用以促成最优的监管标准.<欧共体条约>中的特别协调条款是这一原则的直接依据,金融服务指令中的协调条款是其集中体现.最低限度协调原则只适用于符合共同利益的非歧视性限制措施.在其适用范围内,各成员国只能进行执行性立法.该原则的确立和推行是以相互承认为核心、以母国控制为表现形式的一体化模式成功运用的必然结果.晚近的立法实践表明,这一原则有被边缘化的危险.     

An academic perspective on the copyright reform

The recently proposed new Copyright Directive was released on 14 September 2016. It has been described by EU law-makers as the pillar of the copyright package promised by the European Commission (EC), to be delivered before the end of Mr. Juncker's mandate. In its Communication of 6 May 2015, the EC had stressed “the importance to enhance cross-border access to copyright-protected content services, facilitate new uses in the fields of research and education, and clarify the role of online services in the distribution of works and other subject-matter.” The proposed Copyright Directive is thus a key measure aiming to address two of these three issues. However it is not without shortfalls.We have therefore decided to publicly express our concerns and send an open letter to the European Commission, the European Parliament and the Council to urge them to re-assess the new provisions dealing with mandatory filtering of user-generated content in the light of the CJEU case law and the Charter of Fundamental Rights of the European Union.In a more extended statement, we examine in details the text of both the explanatory memorandum and the Directive itself.Our conclusions are:1. A comprehensive re-assessment of Article 13 and Recital 39 in the light of the Charter of Fundamental Rights of the European Union and the E-commerce Directive (in particular Article 15) including CJEU case law is needed, as the proposed Copyright Directive does not expressly address the issue of its compatibility with both of these texts.2. Recital 38 does not clarify the domain and effect of Article 13. Rather, it creates confusion as it goes against settled CJEU case law (relating to Articles 14 and 15 of the E-commerce Directive and Article 3 of the Infosoc Directive). Recital 38 should therefore be deleted or substantially re-drafted/re-phrased. If the EU wants to introduce a change in this regard it should clearly justify its choice. In any case, a recital in the preamble to a directive is not an appropriate tool to achieve this effect.We hope that this exercise will prove useful for the debate that has now begun both in the European Parliament and in the Council.     

Free Movement of Goods and Property Law

Although usually considered a national competence, there is an effect of internal market law on property law. When a property right is validly created in one Member State and the object on which it rests is moved to another Member State, an internal market dimension arises. Such has been the case in the ECJ's Krantz decision 25 years ago, dealing with the question on whether the rules allowing a seizure of goods owned by someone else in another Member State and leading to a potential loss of right is in conformity with EU law. More than 25 years have passed and our thinking about the internal market as well as the free movement case‐law has changed significantly. A re‐examination of this decision leads to a different conclusion: the refusal to recognise property rights validly created in another Member State violates the free movement of goods under Article 34 TFEU.     

Challenging EU constitutional law: The Italian Constitutional Court's new stance on direct effect and the preliminary reference procedure

This article seeks to examine the relationship between EU law and the Italian legal order in light of the recent Italian Constitutional Court (ICC)’s jurisprudence attempting to redefine EU core principles. When fundamental rights are at stake, three assumptions are challenged: the determination of direct effect shall be a prerogative of the ECJ; EU directly effective provisions entail the disapplication of conflicting national law; judges have the discretion to refer preliminary references to the ECJ where a clarification on EU law is needed. The contribution argues that the judicial search for a balance between sovereignty and supranationality is undermined by the ICC's new resistance to the well‐established EU jurisprudence. In that respect, the paper posits that the ICC's activism is the result of an unjustified ‘argumentative self‐restraint’ of the ECJ vis‐à‐vis the evolution of EU foundational principles.     

The Spanish Parliament and EU Affairs in the Post Lisbon Treaty Era: All Change?

The new provisions on national parliaments in the Lisbon Treaty were welcomed with scepticism by some scholars and with hope by others. Sometime after the new provisions came into force, their impact on the role of national parliaments in the EU can already be examined. This article looks into the effect of the implementation of the Early Warning Mechanism and the other provisions on the parliamentary scrutiny of EU affairs in Spain. It also reflects on the possible implications for the EU political system. Although the scope and actual effect of the new measures have been quite modest, the new regulations allow for a better scrutiny of EU law, a tighter control of the executive on EU affairs and closer cooperation with EU institutions.     

Ironies in Human Rights Protection in the EU: Pre-Accession Conditionality and Post-Accession Conundrums

In the wake of the extensive scrutiny of the human rights credentials of the new Member States under the EU pre-accession conditionality, which itself was riddled with paradoxes, this article considers a rather unexpected irony thrown up by the accession of these countries. It is that the post-communist constitutional courts, which have been applauded for vigorous protection of fundamental rights after the fall of the Communist regime that was marked by nihilism to rights, have come rather close to having to downgrade the protection standards after accession, due to the new constraints of supremacy of EC law. The article will consider the sugar market cases of the Hungarian and Czech Constitutional Courts and of the Estonian Supreme Court, which appear to add weight to the concerns that have been voiced in some older Member States about the fundamental rights protection in the EU. Indeed such concerns were recently also addressed in the concurring opinions to the Bosphorus judgment of the European Court of Human Rights.     

The legal landscape for advanced therapies: material and institutional implementation of European Union rules in France and the United Kingdom

In 2007, the European Union adopted a lex specialis, Regulation (EC) No. 1394/2007 on advanced therapy medicinal products (ATMPs), a new legal category of medical product in regenerative medicine. The regulation applies to ATMPs prepared industrially or manufactured by a method involving an industrial process. It also provides a hospital exemption, which means that medicinal products not regulated by EU law do not benefit from a harmonized regime across the European Union but have to respect national laws. This article describes the recent EU laws, and contrasts two national regimes, asking how France and the United Kingdom regulate ATMPs which do and do not fall under the scope of Regulation (EC) No. 1394/2007. What are the different legal categories and their enforceable regimes, and how does the evolution of these highly complex regimes interact with the material world of regenerative medicine and the regulatory bodies and socioeconomic actors participating in it?     

There Must Be Some Way Out of Here: The Crisis,Labour Rights and Member States in the Eye of the Storm

This article considers the impact of the economic, social and political crisis on the labour law regimes of two of the Member States of the EU most affected; Greece and Ireland. Both countries have been the recipients of ‘bail‐out’ deals, negotiated and monitored by what has become known as the ‘Troika’ of the European Commission, the European Central Bank and the International Monetary Fund. The article considers the extent to which both countries have been required to make amendments to their labour law regimes as a condition of their bail‐outs. It argues that the changes demanded reflect the basic norm now governing the EU legal order, namely that of ‘competition’; the logic of market integration based on the primacy of economic competition. The article sets the reforms in Greece and Ireland within the broader context of the ‘social deficit’ problem of the EU construction.     

The EU's Private Law in the Regulated Sectors: Competitive Market Handmaiden or Institutional Platform?

The article contests the claim that EU private law is narrowly circumscribed by a market rationality. Such a claim tracks broader criticism of EU functional legal integration, although it tends to obscure the underlying transformative pressures on private law and regulation and the role EU law plays in coping with such pressures. To offer a number of counter‐narratives, the article draws on examples from the regulated sectors, including telecommunications and energy, to reveal their experimentalist features. These suggest that EU private law is constructed through a process of error‐corrections, which allows for mutual adjustment of instruments and hybridisation of EU and local policy goals. The process results in more finely grained assemblages of autonomy and regulation to respond to concrete problems or newly salient policy goals, so that markets are understood as social institutions that are always works‐in‐progress rather than convergence points. Thus, EU private law provides a platform for transnational market‐building through innovating institutions that promote various normative and policy commitments despite the interdependencies that could undermine them.