04 January 2024
The European Game
The long-awaited judgement of the Court of Justice of the European Union in Case C-333/21 - European Super League Company has finally arrived. There is a lot to unpack, especially with respect to developments in competition law. Constitutional lawyers will, however, find particular interest in how the Grand Chamber dismissed Advocate General Rantos’ pitch for a constitutional recognition of the European sports model based on Article 165 TFEU. This post focuses on this aspect of the European Super League judgment. It argues that while the Advocate General’s construction was rejected, the Court still used this judgement to further define its own constitutional understanding of the European sports model, as well as to solidify its role as the primary interpreter of that model. Continue reading >>
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24 October 2023
Who Decides What Counts as Disinformation in the EU?
Who decides what counts as “disinformation” in the EU? Not public authorities, because disinformation is not directly sanctioned in the Digital Service Act (DSA) or other secondary legislation. Nor Very Large Online Platforms (VLOPs) and Very Large Online Search Engines (VLOSes), which avoid editorial decisions to maintain their legal status as intermediaries with limited liability. Instead, the delicate task of identifying disinformation is being undertaken by other private organisations whose place of administration and activity, purpose, funding and organizational structure appear problematic in terms of the legitimacy and even legality of the fight against disinformation. This blog post maps out the relevant (private) actors, namely the ad industry, fact checking organizations and so-called source-raters. Continue reading >>
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15 June 2023
Interaction Without Affection?
The EU's legislative activity in the area of media and platform regulation is currently unfolding at an unprecedented pace. The thematically broad EMFA builds in many places on recently adopted legal acts whose interpretation is still unclear. This leads to parallelisms and overlaps as well as unclear and convoluted references, which can only be briefly outlined here and should be clarified in the trilogue negotiations. Continue reading >>
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14 June 2023
“A Bit of Fun. A Bit of Truth.”
The extent of (private) media regulation depends on the willingness to trade private for public power. This blogpost takes the Commission's EMFA proposal as an opportunity to question the assumptions about media, markets, and politics behind it. It finds that the Commission’s approach treats private like public media: First, it functionalizes the fundamental rights of private individuals and companies in terms of their public benefit; second, it imagines the conditions of qualitative journalistic work as those of civil servants. Continue reading >>
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13 June 2023
Without Enforcement, the EMFA is Dead Letter
Besides important substantive provisions, the EMFA proposal contains various mechanisms concerning the role of national regulatory authorities, the newly established European Board for Media Services (Board) and the Commission. However, this blogpost argues that the proposed tools fail to effectively improve the already available enforcement mechanisms in EU law. We offer three recommendations to improve enforcement of media law and policy in the EU, while remaining within the boundaries of the competences as established by the EU Treaties. Continue reading >>
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07 July 2021
The New EU Climate Law
On 30 June 2021, the European Parliament and the Council signed the EU Climate Law. The Law has drawn a lot of attention, stirred not least because of its head-line grabbing name. Was it merely meant to be a symbolic law to enshrine the EU’s climate objectives into law and celebrate the EU Green Deal? Or was it meant to be a new governance framework that changes the way decisions are taken on EU and Member State level? Continue reading >>
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31 March 2021
Principled Generosity Mixed with Unmanaged Market
The EU is experiencing internal dissatisfaction at its inability to supply Member States with enough Covid-19 vaccines, while other countries – notably the UK – are racing ahead of it towards the end of the pandemic. Much criticism of the EU is unfair. It is being compared with countries that have shown more brutal and unashamed vaccine nationalism, but it should be proud that it has not gone down this path. By contrast, its role as global and regional vaccine supplier should not hide the fact that it has been too slow to recognize that vaccine sales cannot be left to the free market, while the Member States should not be allowed to hide their absence of leadership, initiative or organization behind critique of the EU. Continue reading >>18 December 2020
Institutionalizing Parallel Governance
On 15 December, the European Commission published its proposal for the Digital Services Act (DSA-P). One, if not the, major challenge for the regulation of social platforms is which and how content is disseminated as well as moderated on such platforms. At least when it comes to so-called very large online platforms like Facebook, YouTube or Twitter, the DSA-P’s path seems quite clear: Put platforms and the Commission in charge. In the construction of a new social order for online platforms State courts, prosecutors, law enforcement and state law as such are apparently no longer needed. Continue reading >>
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04 November 2020
Effective Pandemic Management Requires the Rule of Law and Good Governance
Nine months since the declaration of the novel SARS-CoV-2 virus as a global health emergency by the WHO, and we know much more about the virus, including transmission and control. Governments, however, are still operating in emergency mode and relying on emergency powers to the exclusion and suspension of the ordinary functioning of the state. Such suspension of the normal functioning of parliamentary control and judicial oversight exposes one of the most damaging fallacies of crisis: that emergency management requires the suspension of rights, the rule of law and good governance. Continue reading >>03 September 2020
The Contingency of Governance in the EU
Administrative lawyers are of course aware that the techniques they study and use have existed in different historical periods and have been deployed in different political regimes. But these comparative referents tend to disappear too quickly when it comes to deriving from the governance virtues of the EU, practiced by its institutions and agencies, and the law that may incorporate them, the ability to transform the constitutional characteristics of a political system. Continue reading >>
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