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Summer recess – what’s next?

As EU leaders agreed on a new proposal for the new Multiannual Financial Framework and the Recovery Plan on 21 July, the European Parliament was given good food for thought over its summer recess. However, the new long-term budget is not the only priority on the EU agenda. The Commission is already chewing on a series of proposals to be expected later this year and in 2021. In fact, now is the moment to deliver input on some key, planned legislative proposals, as the Commission launched a series of public consultations that are open until after summer. Let’s have a look what is next after the 2020 summer recess.

Transport: smarter and greener

The green and digital transition as the twin priorities of the Von der Leyen Commission are also reflected in the upcoming transport initiatives. To deliver the ambitious European Green Deal climate neutrality objective, the mobility sector needs a 90% emission reduction by 2050. The Strategy for Sustainable and Smart Mobility, expected towards the end of the year, will be the overarching strategy for the delivery of the twin transitions in this area. Stakeholders can contribute to the public consultation until 23 September.

Expectedly, the strategy will include the integration of alternative fuels, in line with the recently published hydrogen strategy that already outlines a pathway for the deployment until 2050 in all modes. The strategy is also complemented by the upcoming FuelEU initiatives for the maritime and aviation sector. The FuelEU Maritime initiative, aimed at boosing alternative fuels in shipping specifically, is open for feedback until 10 September. The public consultation on ReFuelEU Aviation, initially planned for the first quarter of 2020, is still to be expected ahead of the Commission proposal this year.

Sustainability: a bigger role for tax

Taxation will become a more important instrument for the Commission to align consumer choices and business investments with its climate targets. On 23 July, public consultations on both the revision of the Energy Taxation Directive and the creation of a Carbon Border Adjustment Mechanism were launched. Having been unchanged since its adoption in 2003, the Energy Taxation Directive will be subject to a thorough review. The exact changes are yet to be determined based on the consultation outcome, however, what is clear is that it will include a correction of the minimum taxation rates for electricity, gas, and coal, as well as a tax exemption reduction for fossil fuels. The proposal, which is part of the European Green Deal, is scheduled for June 2021. The consultation is open for feedback until 14 October.

In addition, the Commission proposes a Carbon Border Adjustment Mechanism to prevent ‘carbon leakage’. This ‘CO2-tax’ internalizes emissions in the price of a product, so production does not shift to countries with lower climate ambitions. The exact instrument is still to be determined, and could take the form of an EU-wide import tax or an extension of the Emmission Trading System (ETS). The latter has already seen critical responses, as this may not be in line with WTO rules. The Commission plans to scrutinize the issue and present a proposal later this year. The revenues would directly contribute to the ‘own resources’ of the EU budget for the next seven years that would help finance the new €750 billion recovery plan. Stakeholders can deliver their contribution to the plan until 28 October.

Digital: fit for the COVID-19 reality

Following its pledge to make Europe ‘fit for the digital age’, the Digital Education Action Plan and the Digital Services Act are also high on the Commission’s agenda. The Digital Education Action Plan, due to be published in September this year, will be part of the Next Generation EU program. The COVID-19 crisis has seen schools and universities close their doors and increasingly turn to remote, digital teaching. The Action Plan aims to promote high-quality and inclusive education and training in the post-COVID digital reality. Feedback on the proposal can be delivered until 4 September.

Part of the Next Generation EU financing is the digital tax element of the Digital Services Act, to be presented by the end of 2020. The Digital Services Act is an attempt to regulate online platforms when it comes to illegal goods, product safety, political advertising and offensive content. The initiative may face intense debates before its approval, as previous attempts to implement an EU-wide Digital Taxation mechanism have so far been unsuccessful. The consultation remains open until 8 September.

Next steps

The Commission’s proposals on the above initiatives are expected before the end of 2020, except for the Energy Taxation Directive which is due in June next year. From the above-mentioned public consultations, it is evident that the European Commission is gearing up for a busy end-of-year period. Early (proactive) action is desirable for stakeholders that aim to represent their interests on these files, which will also be closely examined by the European Parliament and Council of the EU in 2021 (and later).

Want to know more about the upcoming initiatives, COVID-19, or other files that might affect your business? Please contact Dr2 Consultants to see what we can do for you.

EU consultation on Artificial Intelligence: seizing the business opportunity

With its new ‘Shaping Europe’s Digital Future’ Strategy, the European Data Strategy and a White Paper on Artificial Intelligence, all published on the same day (19 February 2020), the European Commission led by Ursula von der Leyen is fully committed to digitalizing our society. Zeroing in on the AI White Paper, it is clear that the Commission tries to find a delicate balance between building both an ecosystem of excellence that supports the development and uptake of AI and an ecosystem of trust where AI is also regulated and safe for everyone. The European Commission has already undertaken quite some work in defining its approach to AI and in consulting stakeholders. It is now proceeding with an official written consultation, seeking feedback on the White paper through a questionnaire.

While the European Commission has the prerogative to initiate the above ideas and strategies, the European Parliament has not stood still in the past couple of months and has proactively, and extensively, positioned itself and defined its priorities. Most notably, the Parliament’s Legal Affairs Committee (JURI) is working on multiple AI reports, focused on the technology’s ethical aspect, its civil liability regime and intellectual property rights for the development of AI technologies. Furthermore, also the Parliament’s Culture and Education Committee (CULT) is working on its own report on AI applications in education, culture and the audiovisual sector, and a EP Resolution has been drafted on automated decision-making processes and ensuring consumer protection and free movement of goods and services.

 

While the discussion around AI at EU level seemed to have stemmed exclusively from the new Commission’s strong will to act on this issue, since then feedbacks from civil society, NGOs, companies and others, have been highly requested to shape further the future framework.

The latest opportunity for stakeholders to contribute to the discussion is the Commission’s Consultation on the White Paper on Artificial Intelligence, closing on 14 June.

The questionnaire explores certain aspects of the White Paper, including specific actions to build an ecosystem of excellence, options for a regulatory framework for AI and further consultation on the question of safety and liability aspect of AI.

To zoom in on a specific and rather important aspect of the questionnaire for businesses, the Commission is seeking feedback on whether the introduction of new compulsory requirements should be limited to high-risk applications, and whether the current definition and criteria for this risk-based approach is the right way forward. New requirements and standards would regulate aspects such as training data, human oversight and so on. In addition, the European Commission is seeking feedback voluntary labelling for any other AI-powered services that could be qualified as “low-risk”. The intention and content of such voluntary labelling scheme is still fully open for discussion.

There are two key opportunities for businesses here through this process, that should not be overlooked:

First, this should be seen as the perfect opportunity to question, understand, assess and if necessary, improve companies’ practices when developing or using AI in their daily activities. The Commission and Expert Groups have developed various tools such as the White Paper, but also the  assessment list of the Ethics Guidelines for Trustworthy AI., that can guide this type of exercise. Do we allow for human oversight? Does the data we use could lead to biased decisions? Would we benefit for a voluntary label or other form of self-regulation? Those are some of the questions that companies operating in the EU could ask themselves to stay relevant in the market.

Second, share companies should share their experience with policymakers to ensure that a new EU legal framework does not hinder business activities or innovation beyond what is necessary to protect consumer and fundamental rights, and to ensure that any new legal framework does not create legal uncertainty or unnecessary red tape. Referring once again to the risk-based approached, the possible evolution of the qualification and criteria for “high-risk” use can have a significant impact on companies. Stakeholders have an opportunity to shape rules that could ensure the EU remains an open, competitive, and innovative market.

There have been certain voices calling for a reassessment of the Commission’s plans in relation to AI under the new circumstances created by the COVID19 outbreak, which could shed new light on the costs of not using AI-powered solutions. The Commission has however clearly insisted on the fact the questionnaire would be the perfect opportunity to reflect further on what a future regulation should look like to ensure that AI fulfill its promises for society.

Brexit: What after the prorogation?

On 16 September, Boris Johnson and Jean-Claude Juncker met for the first time in person since Johnson became Prime Minister. Both parties saw the meeting as an opportunity to take stock of the negotiations, but the Commission’s statement afterwards concluded that no concrete proposals emerged from the discussion. On the same day, the Prime Minister of Luxembourg, Xavier Bettel, called Boris Johnson’s approach to Brexit a nightmare at a press conference (which Johnson left early due to anti-Brexit protestors ruining it). Bettel also said the British government had not made any serious proposals for a new deal. Therefore Jean-Claude Juncker also repeated on 18 September, during the European parliament plenary session in Strasbourg, that a no-deal scenario is still very plausible.

However, a deal (or an extension of Article 50) seems necessary as the British government has been accused of minimalizing the possible disruption at ports in a no-deal scenario. Documents published last week about Operation Yellowhammer, the official plan to handle a no-deal scenario, suggested that there would be a low risk for ports outside Kent, a port that has a lot of EU traffic. But new documents show that this is only because tens of thousands of vehicles would be rejected because they would be non-compliant, meaning that the drivers would not have the correct permits or the correct papers filled in, and would be turned away. Also, the facilitation of trade between Northern Ireland and the Irish Republic still needs some time. Johnson is setting out plans for an all-Ireland economic relationship which must replace the Irish backstop. With this plan, Northern Ireland would effectively become a special economic zone inside both the UK and the EU. There would still be a border and everything that is not covered by the all-island regime would be subject to checks.

But, as Juncker stated, there is also a very big chance that the UK will leave the European Union without a deal. Two weeks ago, UK MPs passed a law which requires Boris Johnson to seek an extension of Article 50 if Johnson fails to secure a Brexit deal with the EU by 19 October (dubbed the Benn Act). There is no guarantee that Johnson will do that. However, another concern now is that even if Johnson agrees with the Withdrawal Agreement (WA) with the EU and the deal successfully passes through Parliament, there could not be sufficient time to pass through Parliament a separate act implementing the WA (a complex piece of legislation) – or it could be blocked by MPs – before 31 October. Now, once the WA is agreed, the Benn Act does not come into force because it does not take into account the separate act to implement the WA, so the result is a no-deal Brexit. Therefore, it is in the interest of Labour and Tory rebel MPs not to agree to the WA before the extension has been secured. An extension should be obligatory, whether there is a deal or not.

In the meantime, the Supreme Court, the UK’s highest court, is currently hearing the case over Johnson’s decision to temporarily shut down the UK Parliament. Scotland’s highest court ruled last week that the suspension was indeed unlawful, but the High Court in England had ruled earlier the opposite way. Therefore, the UK Supreme Court is now discussing if this case is justiciable and, if so, whether the prorogation was lawful. After two days of hearing arguments on both sides, also former Tory prime minister John Major spoke on the final day in court to doubt Johnson’s decision to suspend parliament. It is not yet known when the judges will deliver their verdict, but it is expected for next week.

In addition, on 18 September, a clear majority of the Members of the European Parliament voted for a resolution supporting the UK being given a Brexit deadline extension should it request one. The vote itself is largely symbolic because the European Parliament wants to show that it cannot be ignored. However, the EP will reject a deal that does not include a backstop. This is significant because the EP will need to vote through the final Brexit deal.