Taking fundamental rights seriously in the Digital Services Act's platform liability regime

This article highlights how the EU fundamental rights framework should inform the liability regime of platforms foreseen in secondary EU law, in particular with regard to the reform of the E-commerce directive by the Digital Services Act. In order to identify all possible tensions between the liability regime of platforms on the one hand, and fundamental rights on the other hand, and in order to contribute to a well-balanced and proportionate European legal instrument, this article addresses these potential conflicts from the standpoint of users (those who share content and those who access it), platforms, regulators and other stakeholders involved. Section 2 delves into the intricate landscape of online intermediary liability, interrogating how the E-Commerce Directive and the emerging Digital Services Act grapple with the delicate equilibrium between shielding intermediaries and upholding the competing rights of other stakeholders. The article then navigates in Section 3 the fraught terrain of fundamental rights as articulated by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) under the aegis of the European Convention on Human Rights and the EU Charter. This section poses an urgent inquiry: can the DSA's foundational principles reconcile these legal frameworks in a manner that fuels democracy rather than stifles it through inadvertent censorship? Section 4 then delves into the intricate relationship between fundamental rights and the DSA reform. This section conducts a comprehensive analysis of the key provisions of the DSA, emphasising how they underscore the importance of fundamental rights. In addition to mapping out the strengths of the framework the section also identifies existing limitations within the DSA and suggests potential pathways for further refinement and improvement. This article concludes by outlining key avenues for achieving a balanced and fundamental rights-compliant regulatory framework for platform liability within the EU.     

The Horizontal Effect of the Charter of Fundamental Rights of the EU: Rediscovering the Reasons for Horizontality

This article analyses the horizontal effect of the Charter of Fundamental Rights of the European Union. Horizontal effect has been an integral part of the Union's application of fundamental rights, especially in the field of equality. However, the codification of fundamental rights in the Charter raises important questions as to how horizontal effect will continue to apply in the EU, particularly in the aftermath of the Court's reticent rulings in cases such as Dominguez and Association de Médiation Sociale. This article argues that the emphasis on prior approaches to horizontal effect in recent rulings fails to address the profound constitutional issues that the horizontal effect of a fundamental rights catalogue raises, which concern the role of private responsibility within the developing constitutional order of the European Union. It therefore calls for a more systematically theorised approach towards the horizontal application of fundamental rights under the Charter framework.     

EU Accession to the ECHR: Between Autonomy and Adaptation

After the European Union's accession to the European Convention on Human Rights the EU will become subject to legally binding judicial decisions of the European Court of Human Rights (ECtHR) and participate in statutory bodies of the Council of Europe (Parliamentary Assembly; Committee of Ministers) when they act under the Convention. Convention rights and their interpretation by the ECtHR will be directly enforceable against the EU institutions and against Member States when acting within the scope of EU law. This will vest the ECHR with additional force in a number of Member States, including Germany and the UK. All Member States will further be subject to additional constraints when acting under the Convention system. The article considers the reasons for, and consequences of the EU's primus inter pares position under the Convention and within the Council of Europe, and the likely practical effect of the EU's accession for its Member States.     

The Meaning of 'Natural Person' and the Impact of the Constitution for Europe on the Development of European Private Law

Abstract:  European codes of private law have traditionally commenced with a concept of the person. In the development of private law in the European Union, we require a modern concept of the person, one which goes beyond the idea of the bearer of economic rights, to one which embraces ideas of human rights and social solidarity, as found in the Universal Declaration of Human Rights and the Nice Charter of Fundamental Rights of the European Union.     

Constitutions,Constitutionalism, and the European Union

The institutional reforms of the EU, coupled with the EU Charter of Fundamental Rights, have fuelled the debate about a European Constitution. This paper begins by examining the nature of constitutions and constitutionalism. The focus then turns to the EU itself. It is argued that the Community has indeed been transformed into a constitutional legal order, and that the arguments to the contrary are not convincing. This does not however mean that the EU has, or should have, a European Constitution cognisable as such which draws together the constitutional articles of the Treaties, together with the constitutional principles articulated by the European Court of Justice. The difficulties with this strategy are examined in detail, and the conclusion is that we should not at present pursue this course. It would be better to draw on the valuable work done by the European University Institute in its recent study in order to simplify and consolidate the Treaties.     

Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order

The European Court of Justice's (ECJ's) jurisprudence of fundamental rights in cases such as Schmidberger and Omega extends the court's jurisdiction in ways that compete with that of Member States in matters of visceral concern. And just as the Member States require a guarantee that the ECJ respect fundamental rights rooted in national tradition, so the ECJ insists that international organisations respect rights constitutive of the EU. The demand of such guarantees reproduces between the ECJ and the international order the kinds of conflicting jurisdictional claims that have shadowed the relation between the ECJ and the courts of the Member States. This article argues that the clash of jurisdiction is being resolved by the formation of a novel order of coordinate constitutionalism in which Member States, the ECJ, the European Court of Human Rights and other international tribunals or organisations agree to defer to one another's decisions, provided those decisions respect mutually agreed essentials. This coordinate order extends constitutionalism beyond its home territory in the nation state through a jurisprudence of mutual monitoring and peer review that carefully builds on national constitutional traditions, but does not create a new, encompassing sovereign entity. The doctrinal instruments by which the plural constitutional orders are, in this way, profoundly linked without being integrated are variants of the familiar Solange principles of the German Constitutional Court, by which each legal order accepts the decisions of the others, even if another decision would have been more consistent with the national constitution tradition, ‘so long as’ those decisions do not systematically violate its own understanding of constitutional essentials. The article presents the coordinate constitutional order being created by this broad application of the Solange doctrine as an instance, and practical development, of what Rawls called an overlapping consensus: agreement on fundamental commitments of principle—those essentials which each order requires the others to respect—does not rest on mutual agreement on any single, comprehensive moral doctrine embracing ideas of human dignity, individuality or the like. It is precisely because the actors of each order acknowledge these persistent differences, and their continuing influence on the interpretation of shared commitments in particular conflicts, that they reserve the right to interpret essential principles, within broad and shared limits, and accord this right to others. The embrace of variants of the Solange principles by many coordinate courts, in obligating each to monitor the others' respect for essentials, creates an institutional mechanism for articulating and adjusting the practical meaning of the overlapping consensus.     

FUNDAMENTAL RIGHTS IN THE DIGITAL ERA,HORIZONTAL EFFECT AND THE DISTINCTION BETWEEN “STATE” AND “SOCIETY” IN GERMAN AND EUROPEAN CONSTITUTIONAL THEORY

The article discusses the proposal for a “Charter of Digital Fundamental Rights of the European Union,” whose central element is a binding effect of its fundamental rights not only to state authorities, but also to powerful private internet companies, which have a potential similar to that of the state to infringe on fundamental rights in the digital era. The article outlines the traditional German approach to fundamental rights and its underlying distinction between state and society, which makes it difficult for German scholars to handle a so-called horizontal effect of fundamental rights. Finally, the article discusses the main objections to such a horizontal effect and shows some practical problems it has the potential to cause in German and European constitutional law.     

Of Austerity,Human Rights and International Institutions

Austerity measures have led to the denial of social rights and widespread socio‐economic malaise across Europe. In the case of countries subjected to conditionality imposed by international institutions, the resultant harms have highlighted a range of responsibility gaps. Two legal developments come together to expose these gaps: Greece's argument in a series of cases under the European Social Charter that it was not responsible for the impact on rights brought about by austerity measures as it was only giving effect to its other international obligations as agreed with the Troika; and the concern to emerge from the Pringle case before the European Court of Justice that European Union (EU) institutions could do outside of the EU what they could not do within the EU ‐‐disregard the Charter of Fundamental Rights. That the Commission and the European Central Bank were in time answerable to international organisations set up to provide financial support adds an additional layer of responsibility to consider. Taking Greece as a case study, this article addresses the imperative of having international institutions respect human rights.     

Incompatibility of the Digital Economy Act 2010 subscriber appeal process provisions with Article 6 of the ECHR

Through case-law research, this paper critically assesses the compatibility of the Digital Economy Act 2010 (DEA) subscriber appeal process provisions (Section 13 of the DEA) with Article 6 of the European Convention on Human Rights (ECHR). Drawing on the European Court of Human Rights (ECtHR) case-law, Ofcom's Initial Obligations Code (the Code), and the DEA judicial review decision, namely, BT PLC and Talk Talk PLC v Secretary of State for Business Innovation and Skills and others, this paper focuses on the three Strasbourg Court principles of equality of arms, admissibility of evidence, and presumption of innocence, in an effort to determine whether Section 13 of the DEA infringes them, and whether this constitutes a breach of a subscriber's right to a fair trial under Article 6 of the ECHR. The paper examines these three ECtHR principles. It contrasts such principles with the Code's provisions, and considers the compatibility of Section 13 of the DEA with Article 6 of the ECHR. It concludes that the DEA subscriber appeal process provisions do indeed infringe these principles, thus constituting a violation of subscribers' right to a fair trial. It also recommends that the UK government start taking seriously human rights in general, and Article 6 of the ECHR in particular.     

The EU and Issues of Human Rights Protection: Same Solutions to More Acute Problems?

Academic literature repeatedly calls for the EU's accession to the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (hereinafter Convention 1 ). Similarly, the Lisbon Treaty provides that the EU must accede to the Convention. [Correction made here after initial online publication.] This might seem odd as the European Court of Justice (hereinafter ECJ 1 ) has over the years developed abundant case‐law on human rights protection in the EU, and the EU has not so long ago adopted a, albeit non‐binding, catalogue of human rights (the Charter of Fundamental Rights of the EU (hereinafter Charter)). But after all these years, cases, and Treaty amendments, the EU is in fact going back to the ECJ's 1996 landmark opinion which recommended the EU's formal accession to the Convention, 1 already proposed in 1979 by the Commission. 1 One reason for this might be that, in the meantime, human rights issues have multiplied in the application of EU law, especially in areas such as the Second and Third Pillars where—at least initially—fewer human rights protection guarantees were foreseen.     

Towards a common standard of protection of the right to housing in Europe through the charter of fundamental rights

The trend towards the financialisation of housing since the 1980s and the global financial crisis exposed a dramatic lacuna in the legal protection of the right to housing. Yet, the right to housing features not only in national and international human rights instruments, but also in the EU Charter of Fundamental Rights. Charter rights are increasingly finding expression in the case law of the Court of Justice of the European Union (CJEU). In particular, drawing on the Charter, the CJEU's interpretation of EU consumer law is moving towards a recognition of housing rights as inherent components of consumer protection. On the basis of such developments, this article examines whether there is scope to extend this human rights approach to new areas – namely, to the Mortgage Credit Directive (2014) – a major EU harmonising measure – and to the work of EU institutions now responsible for banking supervision. The article concludes that, if guided by the Charter of Fundamental Rights, the case law of the CJEU and the practice of supranational banking supervision could significantly enhance the protection of the right to housing, both at EU and Member State level.     

Privacy,Data Retention and Domination: Digital Rights Ireland Ltd v Minister for Communications

In Digital Rights Ireland Ltd v Minister for Communications, the European Court of Justice found the EU Data Retention Directive, which required the retention of communications data for up to two years, to be incompatible with Articles 7 and 8 of the EU Charter of Fundamental Rights – the rights to privacy and to the protection of personal data. It is argued in this note that the decision ought to be taken as one that is concerned with the exercise of arbitrary power, a concern that is captured by the concept of domination.     

Monopoly defeating mechanisms: Will they function in the digital world?

History reveals that ‘copyright’ was originally monopolistic (in the early fifteenth century) and remained so until the enactment of the Statute of Anne in 1709. Since then copyright has striven to maintain a delicate balance between incentive to authors and avoiding monopolistic stagnation. To achieve these goals, certain monopoly-defeating mechanisms have been adopted such as: fair use, public domain, the idea/expression dichotomy and the exhaustion doctrine. Recently, however, with the implementation of new laws: for instance the Digital Millennium Copyright Act (1988), the EU Copyright Directive (2001), and the implementation of the EU Copyright and Related Rights Regulation amending the Copyright, Design and Patents Act 1988, there is a growing concern that the mechanisms which were enacted to defeat the monopoly will not work in the digital medium. With the provision of affixing technological measures to copyrighted works and the non-application of the exhaustion doctrine in the digital world, arguably the monopoly defeating mechanisms have been disabled. The aim of this paper is to demonstrate the way monopoly defeating mechanisms are becoming non-functional in the digital world. Furthermore, the study also demonstrates how the European Copyright Directive and the UK implementation of the Directive has transgressed the boundary of exclusive rights set by the two World Intellectual Property Organization (WIPO) treaties – the World Copyright Treaty (WCT) and the WIPO Performers and Phonograms Treaty (WPPT) – and copyright law, thereby strengthening the copyright owner's rights in a way that was never intended by the WIPO treaties or by copyright law. Consequently, the new laws have also shifted copyright's attention from commercial pirates to non-commercial individual users. The study aims to demonstrate how the shift took place and finally, trace the recurrence of the monopoly; giving rise to a situation where there is no fair use/dealing, no public domain, no idea/expression distinction and no exhaustion doctrine.     

Protecting mental health clients' dignity — The importance of legal control

Protecting human beings' dignity is a fundamental value underlying the UN's Universal Declaration of Human Rights as well as several recommendations and conventions derived from this, among them the European Convention of Human Rights (ECHR), a declaration that also takes precedence over Norwegian legislation. Still, clients' stories inform us that their dignity is not always protected in the mental health service systems.The aim of the study has been to investigate violations of dignity considered from the clients' points of view, and to suggest actions that may ensure that practice is brought in line with human rights values.The method used has been a qualitative content analysis of 335 client narratives.The conclusion is that mental health clients experience infringements that cannot be explained without reference to their status as clients in a system which, based on judgments from medical experts, has a legitimate right to ignore clients' voices as well as their fundamental human rights. The main focus of this discussion is the role of the ECHR and the European Court of Human Rights as instruments for protecting mental health clients' human rights. To bring about changes, recommendations and practices should be harmonized with the new UN Convention on the Rights of Persons with Disabilities (2006). Under this convention, the European Court of Human Rights has support for the application of the ECHR without exemptions for special groups of people.     

Eclipse of the Constitution {Europe Nouveau Siècle}

The Court of Justice of the European Union has come to adopt a peculiar mode of balancing, revolving around a set of ‘general principles of law’, which results in key social rights at the core of the postwar constitutional settlement no longer being sheltered from review by reference to supranational economic freedoms. It is submitted that this does not only imply a kind of ideological restyling of European law, as noted in the literature but, more fundamentally, the erosion of Europe's composite constitutional architecture (at once European and national) resulting from playing down social rights qua ‘constitutional essentials’. As the new jurisprudence ‘obscures’ Europe's constitutional constellation, it is submitted that the Court should rule under the constitution and not over it.     

The quadrangular shape of the geometry of digital power(s) and the move towards a procedural digital constitutionalism

The paper explores the evolution of private powers in the digital landscape, developing a quadrangular systematisation of such a phenomenon based on four main aspects: space, values, (private) actors, and (digital) constitutional remedies. Taking a trans-Atlantic approach, the paper shows how these categories, typical of constitutionalism, apply to the context of the Internet and of new digital technologies both in the United States and in Europe. On the one hand, the United States has up to now maintained the supremacy of the notorious Section 230 of the Communications Decency Act. On the other hand, European legislation has undergone a significant change, moving from a phase of digital liberalism, of which the 2000 E-Commerce Directive is the emblem, towards a new era of digital constitutionalism, passing through the age of judicial activism of European courts. In this sense, Europe has increasingly attempted to introduce limits to private (digital) powers, with a view to better protect and enforce (also horizontally) users' fundamental rights. Additionally, the evolution of digital constitutionalism, from a vertical-sectoral approach to a horizontal and procedure-based one, significantly showcased by the recent Digital Services Package, is underscored, signalling the recent movement of the EU into its second phase of digital constitutionalism. In this respect, the paper argues that the great benefit of stressing the procedural dimension, which may be defined as a European application of “due (data) process” to the relationship between individuals and private powers, is that it is potentially able to help consolidate a (necessary) trans-Atlantic bridge.     

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.     

Taking Care of Strasbourg: The Status of the European Convention on Human Rights and the Case-Law of the European Court of Human Rights in Kosovo’s Domestic Legal System

This paper addresses the position of the European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR) case-law in Kosovo’s domestic legal order. To begin with, it reviews the background of the issue of human rights in Kosovo highlighting its distinct position and perspective. This article then analyses the position held by the European Convention on Human Rights and its protocols in Kosovo’s legal order while also addressing the ECHR’s constitutionalization, its direct effect and the constitutional review on basis of it. The paper then examines whether the case-law of the ECtHR is binding in Kosovo, whether it is directly effective, and whether Kosovo’s Constitutional Court can use it as a ground in the conduct of constitutional reviews. This paper argues that the ECHR and the case-law of the ECtHR both hold a privileged status under Kosovo’s constitutional law, despite Kosovo not being a party to the ECHR and, therefore, having no international liability to implement the ECHR. In addition, the paper offers certain arguments regarding the relative positions of the ECHR and the case-law of the ECtHR within the current practice of Kosovo’s judicial system. This paper concludes with the argument that the ECHR and the case-law of the ECtHR hold a privileged status in the context of Kosovo’s domestic legal order—one which could serve as a precedent in respecting human rights and freedoms.     

Fundamental rights in the EU after Kadi and Al Barakaat

This article takes stock of the emerging scholarship on the European Court of Justice's 2008 Kadi decision and seeks to make sense of the court's apparent evasiveness towards international law. The article argues that Kadi is best understood as an act of civil disobedience prompted by the UN Security Council's misapplication of foundational principles of the international order. In turn, the court's forceful articulation of the stakes in this case signals a prioritisation of basic rights within the supranational constitutional architectonic. In this respect, the ‘domestic’ constitutional implications of Kadi are just as far reaching as its consequences for the EU's status as an actor under international law.     

Charter and Enlargement

Current debates about the contents, status, and the future role of the EU Charter of Fundamental Rights should have a stronger 'enlargement dimension': the constitutionalisation of Europe (with the Charter as its key element) and the EU enlargement should be seen as two interrelated (and, possibly, mutually supportive) phenomena rather than as two separate challenges which must be approached one at a time. There are two main aspects to this relationship. First, the Charter may be seen as a yardstick by which the human rights credentials of the candidate states will be tested. Second (the central focus of this article), one may ask whether the candidate states, once involved in the debate about the constitutional future of Europe, will bring any constitutional insights which may affect the articulation of Charter rights. It is argued, against the background of candidate states' recent experience of constitution-making, that these insights should be embraced rather than feared, and that the current member states should resist a temptation of adopting a paternalistic approach towards the candidate states as participants in the European constitutional debate.