The article provides a comprehensive scientific analysis of the procedural status and jurisdictional powers of the European Public Prosecutor’s Office (EPPO) as the first autonomous supranational body of criminal justice. The long history of the institute’s formation is researched, starting from the 1995 initiatives and the 1997 «Corpus Juris» academic project, which laid the foundation for the codification of EU criminal law, to the publication of the 2001 Green Paper as a key consultative document for stimulating pan-European debates. Particular attention is paid to the role of the 2007 Lisbon Treaty, which, through the implementation of Article 86 TFEU, created a direct legal basis for the establishment of the body under the enhanced cooperation procedure using «accelerator clauses». The material competence of the EPPO in the field of PIF crimes is determined in accordance with Directive 2017/1371, in particular regarding large-scale VAT fraud, corruption, and money laundering, and doctrinal proposals for expanding the mandate to environmental crimes and terrorism are considered. The study emphasizes the unique nature of the office as a body sui generis with direct enforcement powers that distinguish it from traditional agencies. The organizational structure of the body, which combines central (College, Permanent Chambers) and decentralized (delegated prosecutors) levels, ensuring institutional independence from the governments of Member States, is analyzed. Through the prism of the case law of the EU Court of Justice (Taricco, G. K. and Others, Stan v EPPO cases), the mechanisms of cross-border interaction between the handling and assisting delegated prosecutors are revealed, and the priority of national courts in exercising judicial control over the acts of the prosecutor’s office is confirmed. Systemic risks of implementing the right of evocation caused by shortcomings of Article 25 of Regulation 2017/1939 are outlined, illustrated by conflicts of competence in Spain and Croatia. The dynamics of Ukraine’s integration into the supranational financial security system of the EU are investigated: from the 2022 Working Arrangement and memorandums with NABU and SAPO to the ratification of the Framework Agreement on the Ukraine Facility in 2024. The paper examines the legal implications of the 2024 Agreement which serves as a mandatory legal guarantee for the effective protection of the Union’s financial interests during the reconstruction of Ukraine.
The article provides a comprehensive scientific analysis of the procedural status and jurisdictional powers of the European Public Prosecutor’s Office (EPPO) as the first autonomous supranational body of criminal justice. The long history of the institute’s formation is researched, starting from the 1995 initiatives and the 1997 «Corpus Juris» academic project, which laid the foundation for the codification of EU criminal law, to the publication of the 2001 Green Paper as a key consultative document for stimulating pan-European debates. Particular attention is paid to the role of the 2007 Lisbon Treaty, which, through the implementation of Article 86 TFEU, created a direct legal basis for the establishment of the body under the enhanced cooperation procedure using «accelerator clauses». The material competence of the EPPO in the field of PIF crimes is determined in accordance with Directive 2017/1371, in particular regarding large-scale VAT fraud, corruption, and money laundering, and doctrinal proposals for expanding the mandate to environmental crimes and terrorism are considered. The study emphasizes the unique nature of the office as a body sui generis with direct enforcement powers that distinguish it from traditional agencies. The organizational structure of the body, which combines central (College, Permanent Chambers) and decentralized (delegated prosecutors) levels, ensuring institutional independence from the governments of Member States, is analyzed. Through the prism of the case law of the EU Court of Justice (Taricco, G. K. and Others, Stan v EPPO cases), the mechanisms of cross-border interaction between the handling and assisting delegated prosecutors are revealed, and the priority of national courts in exercising judicial control over the acts of the prosecutor’s office is confirmed. Systemic risks of implementing the right of evocation caused by shortcomings of Article 25 of Regulation 2017/1939 are outlined, illustrated by conflicts of competence in Spain and Croatia. The dynamics of Ukraine’s integration into the supranational financial security system of the EU are investigated: from the 2022 Working Arrangement and memorandums with NABU and SAPO to the ratification of the Framework Agreement on the Ukraine Facility in 2024. The paper examines the legal implications of the 2024 Agreement which serves as a mandatory legal guarantee for the effective protection of the Union’s financial interests during the reconstruction of Ukraine.
The growing digitalisation of the tourism sector has led to increased vulnerability to cross-border cybercrime, exposing gaps in international legal cooperation. This study examines the legal and jurisdictional challenges in collecting and admitting digital evidence in tourism-related cybercrime. It analyses key international frameworks, including the Budapest Convention, UNTOC, and the EU-US Data Privacy Framework, highlighting conflicts in data sharing and evidence admissibility. Case studies such as Marriott, British Airways, and MakeMyTrip reveal inconsistencies in cross-border investigations. The paper also explores the role of blockchain and zero-knowledge proofs in improving evidence integrity, while raising concerns over privacy rights under ICCPR and ECHR. Findings suggest the need for legal harmonisation, streamlined evidence-sharing procedures, and enhanced forensic capabilities to strengthen cybercrime response in the tourism industry.
Advocates of blockchain and related technologies believe they hold the promise of transforming access to justice by leveraging decentralization and transparency to create more effective and equitable legal processes, and a more inclusive society. Unlike alternatives, which often suffer from inefficiencies and biases resulting from excessive centralization, blockchain can eliminate intermediaries and ensure immutable records, democratizing legal resources and empowering traditionally marginalized groups and communities. This chapter explores the multifaceted impact of blockchain on access to justice, examining how blockchain-based technologies like non-fungible tokens (NFTs) and decentralized autonomous organizations (DAOs) might facilitate procedural and substantive legal improvements, offering a pathway to a more just society. The chapter begins with an overview of blockchain technologies and use cases, followed by an analysis of access to justice and its emergence and development. We then explore some practical applications of blockchain in advancing access to justice, considering both procedural and substantive perspectives, taking the example of NFTs and DAOs. A critical examination of recent developments and a more skeptical narrative on the limitations and challenges of blockchain is then introduced. The chapter concludes with brief reflections on future directions, highlighting the potential and ongoing debates and challenges surrounding the integration of blockchain into existing legal frameworks and the transformative potential of technology, more generally.
The article discusses the prospects of implementing decentralized ledgers based on blockchain technology for the establishment and verification of international obligations in various fields. A comparative analysis of traditional liability accounting systems and new solutions based on distributed technologies has been carried out. Specific successful cases of the implementation of blockchain platforms, such as the TradeLens platform for the digitalization of international trade and the Climate Action Data Trust for environmental agreements under the 2015 Paris Agreement, have also been examined. The article discusses the legal aspects of blockchain in international law, including the provisions of the UNCITRAL model laws, OECD recommendations and the challenges of legal recognition of digitally recorded data. It finds that decentralized technologies can significantly increase transparency, trust and the speed of implementation of international obligations, but those legal and political challenges need to be overcome. Conclusions are drawn on the need for further harmonization of international legal norms and standards for the widespread adoption of blockchain technologies. The paper identifies opportunities for international organizations and states to develop legal and technical infrastructure for the effective use of distributed ledgers in various areas of international relations.
We welcome the prospect of Guidelines on Article 102 TFEU and endorse the stated aims of the Draft Guidelines (ie enhancing legal certainty, helping undertakings to self-assess, and guiding the National Courts and National Competition Authorities). From an economics perspective, we also welcome the possible use of rebuttable presumptions for certain practices, but not for others (eg tying). Further, the approach of the Draft Guidelines to presumptions seems to imply a reversal of the burden of proof, which the EU Courts might arguably not accept. The Draft Guidelines move away from an economic, effects-based approach and do not fully acknowledge or embrace the modern legal approach of the EU Courts to Article 102 TFEU and lack clarity in many respects. Consequently, the Draft Guidelines offer limited guidance. The Draft Guidelines can be improved by: connecting the concept of ‘competition on the merits’ to harm to consumers; incorporating central concepts such as ‘theory of harm’; paying more than mere lip service to the ‘as efficient competitor’ principle; introducing safe harbours; and offering clarifications on the scope of certain presumptions and their rebuttal. The prohibition of an abuse of a dominant position found in Article 102 TFEU is a central tenet of EU competition law. In contrast to all other major aspects of EU competition law, such as Article 101 TFEU on anticompetitive multilateral conduct and merger control, Article 102 TFEU has so far operated with no Guidelines from the European Commission (EC). In 2009, the EC adopted a ‘Guidance Paper’ setting out the EC’s enforcement priorities in relation to exclusionary abuses, to provide ‘greater clarity and predictability’ regarding the ‘general framework of analysis’ employed by the EC in determining whether it should pursue a given case and to help undertakings to better assess whether their conduct may result in an intervention by the EC.1 The Guidance Paper was the culmination of a ‘reform’ of the EC’s approach to Article 102 TFEU and followed a period of extensive debate on, in particular, whether that approach should entail an economic, effects-based approach, in contrast to the EC’s and the European Courts’ historically formalistic approach.2 The Guidance Paper was received with different degrees of welcome in the competition community and in any case, its application in the EC’s decisional practice has not followed the enthusiasm with which the ‘reform’ was pursued.3 Against the background of the limited use of the Guidance Paper and its economic principles in the decisional practice by the EC, the Court of Justice of the European Union (CJEU) instilled an economic, effects-based approach to the application of Article 102 TFEU by its case law over the last decade. Thus, the ‘reform’ of the approach to Article 102 TFEU ultimately came not from the EC but from the CJEU, through seminal rulings such as Intel I, Unilever, SEN, and others, which arguably demonstrate a more economically informed, effects-based approach, moving away from the traditional, formalistic approach.4 This modern case law of the CJEU, often resulting in cases lost by the EC, clearly has implications for the development of the law on abuse of a dominant position. It is, thus, welcome that the EC has decided to adopt ‘Guidelines’ on exclusionary abuses given those significant judicial developments. The Draft Guidelines (DGs) published by the EC in August 2024 aim to enhance legal certainty, help firms to self-assess, and guide National Competition Authorities (NCAs) and National Courts.5 In contrast to the Guidance Paper, which was ‘not intended to constitute a statement of the law’,6 the Guidelines have the ambition to ‘codify the case law’7 and are not occupied with the setting of enforcement priorities. In addition to this ambition, importantly, the Guidelines arise out of a perception that the move towards an effects-based approach involves a ‘heightened substantive legal standard’ accorded to Article 102 TFEU, which ‘may inadvertently lead to undesirable outcomes’ such as false negatives by setting the bar for intervention too high.8 Thus, the EC declares its intention to adopt a ‘workable and effects-based approach’ to Article 102 TFEU, which has already been reflected in changes made to the Guidance Paper at the time of announcing the Guidelines and which will arguably be reflected in the forthcoming Guidelines.9 In this contribution, we examine, from a law and economics perspective, whether the Guidelines are likely to achieve their aims as currently drafted. We discuss the conformity of the DGs with the case law that the Guidelines purport to codify as well as with an economic, effects-based approach to Article 102 TFEU. This article contains two sections. In Section 2, after a brief summary of the DGs, we offer a critique of the DGs, focusing on the points where our views differ from the EC’s document, and identify areas for improvement. In Section 3, we offer some recommendations that the EC might want to the Section an the and of the DGs, the DGs provide principles and for and offer principles to conduct by a dominant is a of certain of conduct and to the DGs, a conduct by a dominant in an exclusionary abuse it a it from competition on the and it is of exclusionary The DGs identify different of The of for which the Courts have not a legal This others, and other than The is not may on which the Courts or the EC have not The to conduct which is as a to exclusionary This on the or all of its from the dominant in case of and of The of the as of conduct by a dominant that have no economic for that other than that of This paying for not on by a with the dominant or by We that it may also of The DGs on the that and to the which the of a legal the has an framework for the from competition on the the of the abuse as In relation to conduct which not competition on the in the the EC will such as whether the dominant or to other than competition law, of the of the service for the in of its over to a a conduct which an as efficient not such as the dominant position in The of the of abuse of whether the conduct at is of exclusionary the DGs which are likely to the legal burden of and the as and which different degrees of and on the of the the of the burden of the EC, which to that the practice is of exclusionary The which may be to the of a to exclusionary the position of the dominant the on the (eg of and the position of the of the the position of or of an exclusionary and to are for the of practices, exclusionary are to by the dominant of the of the in the at by their of such practices, a will be the EC that the practice from competition on the and has the to exclusionary be it through presumptions or an the dominant can its practice by an (ie an or that or the anticompetitive of the This as the of the of but with the burden of on the dominant be an not the of the but as a of the are through the of presumptions which not or an and of competition the and to exclusionary by the We the stated of the DGs and welcome the that by Guidelines the EC may be to enforcement of Article 102 TFEU cases through clarity of the as currently the DGs a of to the of this of the EC the to as dominant also firms with and the of safe for dominant firms which in Further, is on the EC to that for which is is that the of the abuse by the from competition on the on a concept which is to different and contains or no as as it is the framework is for that are to a legal This is that are to a legal are to of the abuse in the which the of the of abuse regarding are on in a different in the DGs The lack of clarity is by the that the of to exclusionary to all to a legal but This lack of clarity regarding the relation presumptions and the application of legal to certain of conduct the of the it is also the presumptions in the DGs can be in the of the case law of the as by the DGs regarding aspects of the of that the Guidelines may not enhance legal or help undertakings to the of their It is to that the Guidelines to the case law. the of on Article 102 TFEU is of the of the EC, that by the this legal as well as the that the case law on Article 102 TFEU is to the any legal the of Guidelines by the EC is their of to the of the law, than their of the law. The Guidelines provide by the EC may the law in certain aspects (eg for in its practice and the of the law (eg by the EC the law to by the as currently the DGs offer limited and do not legal In Section 3, we some that might help The of abuse is with some case law of the EU we the the concept of ‘competition on the merits’ is and to different by the Courts The DGs do not any to the concept a of that might be to that conduct from competition on the The DGs do provide an of ‘competition on the which it with The concept of competition on the conduct the scope of competition on the of the of economic and in to a in which from better and a of or improved and the DGs that a dominant can as an that conduct to competition on the in the case, the or exclusionary by the conduct are or by in of that the DGs do not to a to assess whether a conduct from competition on the in the We that the DGs and this of ‘competition on the merits’ by it that conduct from the is that has anticompetitive that is it or the for conduct be and the of the be given and to the that from competition on the to anticompetitive that or harm be in with the case law. a of the Courts it that Article 102 TFEU is with conduct to the of and that exclusionary should be as those ultimately or on or the case law the concept of ‘competition on the merits’ as a of the of the of exclusionary of Thus, the of ‘competition on the merits’ as a for which of exclusionary are anticompetitive has from the case law. The case law has to the as of the for abuse of by an practice as practice that a it is as not a dominant position on the in to that practice on the use of or to the of such a We that the is with the economic which that an the and the is for a conduct to lead to anticompetitive may in an in a or in the of an or It is to to the can be and the on the of conduct at The economic that for some of practices, such as and (ie those that do not by of the the dominant can a but such a can be by the by the dominant In such we that a is the of an abuse and can be to the The not to the of a but in the and and the of the dominant with practices, we that the Commission should as a safe the and legal to dominant a of we that might be anticompetitive also from efficient dominant firms which a of competition and of (ie of a false a which that is legal to a dominant a which or which be by the EC, we with the statement in the DGs that might be other of practices, it is to the In the case of for the of its the dominant to in the of any in the case of the the dominant and the is not In such we that the is not abuse and be to the The to other practices, such as or to where we are not of any on that the of the of the DGs is that presumptions for certain and by of the presumptions are to regarding their to exclusionary are to the the EC and the dominant The regarding the of to exclusionary is that the EC has to on the of points of and that such conduct is of exclusionary the the DGs a of to exclusionary for conduct that the DGs as to exclusionary and The a of the that have been found to constitute abuse in the decisional practice and some not of the for which the has legal two of the burden is on the dominant to the of the that the practice the to exclusionary of the The DGs also a regarding from competition on the merits’ the for which legal and are to from ‘competition on the merits’ and be of exclusionary We are to the of rebuttable In particular, this might help to and abuse of which are and provide for dominant which the to the and to assess the the by the competition in relation to the presumptions in the DGs, we presumptions are not in In particular, is a practice through which and might offer on by their of to exclusionary are not by the case law for on our of the case It is, on legal some have been as a to exclusionary as and others This also a the of the of the of abuse in the DGs and the of to legal the scope of two of the DGs not the use of the the to a legal legal and economic to whether a practice is and the to use a the as a to identify abuse legal and economic (ie a that conduct is practice it is the relation is the presumptions Section of the DGs for and the application of the legal for the Section of the it is the and of the presumptions legal are are already legal for the and two of the DGs are to the use of presumptions to demonstrate to exclusionary is likely with the of the case law that the of the or of competition be in all in the of all the It is that the presumptions by the EC are rebuttable The of for the of to exclusionary is not found in the the of is so that in practice it can be the presumptions in be the DGs to the to the or or to for the be of to a of for the can be the DGs that will be to a of the EC’s to the of a the that the conduct at has a to exclusionary The of presumptions a reversal of the burden of anticompetitive and we whether the Courts will the of this We that the to which certain presumptions are on economic might help the The DGs a that conduct which is to a legal the scope of competition on the but not provide the to this The for the Guidance was by economic not its was to adopt an effects-based approach to the enforcement of Article the DGs a more This the ambition of the Commission to adopt Guidelines that ‘codify the case We that aspects of the DGs use of the case law in a This is in relation to the case law from Intel In its modern case law, the has an effects-based approach to Article The that the case law has adopted an effects-based approach was in the announcing the In the DGs do not embrace aspects of the case law that are and the of certain concepts (eg ‘competition on the from the formalistic of the case law or from the case law that an effects-based We provide some of the a of the DGs do not to ‘as in their to to exclusionary This in contrast to the position in the case law, which has on in the last that Article 102 TFEU that have exclusionary on as efficient as the dominant we that the of efficient can certain also constitute anticompetitive the Court of Justice has on the position that on the by lead to the from the or the of that are efficient and so to from the of other or Thus, the the that not of is has been in the case of an effects-based In the DGs, the has been many that can demonstrate that a practice or ‘competition on the merits’ the of the to as efficient the DGs adopt a that to to the approach to an as by the CJEU, in to adopt a more the Guidelines from the case their of by the will be adopt a different approach to abuse the approach with a more and approach (eg of harm on This the DGs and the case law also the of the Guidelines to provide legal to In in relation to the which has been given a central in the DGs by of the Court of Justice has the of as efficient in where a competition that an has Article 102 TFEU and where that the the of those to efficient from the with that at the of the that those in the of the case, of as efficient as that from the The DGs any to as efficient in the of the of abuse that to be an of this of the Court of This that the DGs do not the case law, which to and this the that the of in the not the position of the Court that ‘competition on the merits’ by lead to the of efficient the Guidelines do not provide clarity on the of the the approach of the Guidelines can lead to a that of is It is that after the of the DGs, the has which or some of the by the EC in the that the the conduct at and its of the of an of competition law which it is for the Commission to and in that the is that is which the approach of the DGs to the Further, Intel that the that a conduct has or on competition be in all in the of all the on the of points of and some on the of the approach adopted in of the of abuse in the DGs, which on presumptions and a in the burden for exclusionary Intel also that the of to a as efficient as the dominant be as a the and that the of this whether the practice the scope of competition on the This not to be in with the position adopted by the DGs on the presumptions for but on this we with the position from an economics in the case of or the dominant can a not help to whether is an in the of legal certainty, it be for the Guidelines to this and clearly economic a different It should be that the case law of the is in a of and an effects-based approach with more formalistic fully the of to codify the case law at this in this should not an or of the case law in relation to the of in particular, of the as efficient a of the case law an framework which can lead to a in the of the case law provide legal or help undertakings to the of their in the enforcement of the such an approach can also the application of the law where National Courts and adopt the of the case law in the which can over time lead to of Article 102 TFEU (ie some the case law and some the EC an can legal and the of the law. The enforcement of the abuse of also a of economic principles and the enforcement approach should be by economic We that the DGs are on the economics the case of economic In The DGs the to out a of a by on the of the case, the dominant aims to achieve with the practice at and the conduct is likely to result in anticompetitive We that a of harm is the in the of and in the of an effects-based The DGs do to economic principles and to their economics to the presumptions regarding and that and the is the use of some (ie which do not but not of others (ie and The economic has in which a dominant has an to in In such on cases where a has the of the to that the is this is made for and the of an from an economic perspective, the at should be a but not the as is not a for a dominant to in which has anticompetitive This to to to and which have in a different as the DGs currently the of an effects-based In this we the critique in Section to identify which in our the We as an that the Guidelines should the EC will use its it to to in the Guidelines regarding the of in aspects of the of its approach (eg of the for a which of are of of is to a practice that from competition on the as that ultimately or or This is already in the but it should be and Section should to this for the of In addition to to the harm as the for ‘competition on the merits’ help to legal certainty, and will that the concept is to the of This approach also the in with the of anticompetitive by it that on are central in the of the will be no to in the that exclusionary should be intended as that are ultimately to should the EC not want to that competition on the is to be with to the the of the should it that it to the of exclusionary to the of in the case law The DGs the of of harm a This is with the of an effects-based and clearly of harm is in the of practices, as it to whether a conduct is of to the of that the DGs on the of a of harm in case to a more and framework moving In of the of the in the case law, we that the Guidelines should more than mere lip service to this In particular, the should be fully for conduct to where should be a the Guidelines should that or is a safe to dominant The for the for the of the is and the Guidelines that or this not an practices, the Guidelines can provide and legal by of the EC may to use in determining Further, the Guidelines in any case, acknowledge the of the in the case law as an of the effects-based approach and clearly and the EC to from that case law regarding the of the that is the the of presumptions and the reversal of the burden of in some cases by the DGs to the case law. We where the Guidelines that certain conduct is to be Commission at the of an a of harm and the for the conduct to be of anticompetitive in case of or the EC should not to that the dominant is, but also the and of the and whether the of The Guidelines should the the of the presumptions in Section regarding to exclusionary in the of conduct which is to a legal as on in Section this the framework for abuse in the Guidelines will the the DGs do not that all of the presumptions can be in The Guidelines should that all of the presumptions are rebuttable and the of is for the of the This is the is so that it can be in the presumptions will be presumptions which can lead to a of abuse can entail the burden of on the to the of which the EC presumptions can also by the EU and the of The Guidelines thus, from of the of which the dominant can in to the The DGs should that is for conduct which is to a legal or which not regarding the to exclusionary but also for the from competition on the merits’ The Guidelines should also more through on which of and the EC be to as a of conduct that of the of The EC’s use of its in the of such where the DGs that the of a will be should be certain rebuttable presumptions may be for with to and this is not the case for all of a dominant which are currently to a in the is likely to have significant in many we that of the and not to the of conduct which to be to be in with the case law the EC’s decisional an effects-based approach to as and of which adopted or a the EC to certain of in the of conduct which is to be the Guidelines should clearly through and which in the of conduct to be and that which we it to might in different on whether the is or but to In the is by the dominant and it should be in the We the is in case of other than the conduct is to be to be It be to the of the should be The DGs as as for a safe for and at do so We that the case in of this position not such a safe We that the DGs a safe for in with It is to an of a which might be found to be dominant in a with such a are by which might have some to more than such a of and it might be more to that this is the EC has in of possible with than the approach is to be with the Guidance Paper where the EC that are to We also that or should be a safe This the of competition and provide legal to a dominant which can the of its conduct a which is on or which the by the EC In the that its intention to on exclusionary abuses, the EC that it was to an effects-based enforcement of Article We that not the not in the DGs, but and more importantly, that the DGs to a case in is the of which might of different which might have to of or and other are all that a might use to or fully a in different in the In particular, to the DGs, for some of and for with of the are other of and with and for to the from competition on the is but the EC is to demonstrate exclusionary and the is to be and the EC is to assess whether to competition on the and are of exclusionary a different for which might be a or is and with an effects-based We that the Guidelines adopt an effects-based approach with are in the in their as This article has a critique of the DGs on exclusionary abuse with a to which can the Guidelines from a law and economics The article has where the DGs do not embrace an effects-based approach, their to that as well as aspects of the DGs, which from the case law. The case law on the prohibition of an abuse of a dominant position can in the the the the of the case law as it in the Guidelines and the of the case law, the likely that the will adopt any approach by the will also the of the Guidelines to provide legal to undertakings and to National Courts and and can the application of EU law in the of Against that this article has made which can the Guidelines conformity with the case law and with the article that the Guidelines adopt an of ‘competition on the which that concept with in to adopt the concept of It also the of a of harm in economics in case and an effects-based approach with are in a of their the Guidelines to provide any and to dominant of safe and clarifications as to the and of presumptions are also aspects of the DGs, which can be the EC to adopt a different approach to that of the case law, the EC should it to do so and approach it to in we the ambition of the EC to adopt Guidelines on the prohibition of exclusionary we that is for in the DGs for to be to achieve their
Ghanshyam Prasad Dubey, Ayush Giri, Daniel Arockiam, V. Sathya Priya
Federated learning has emerged as a transformative example in machine learning, allowing collaborative model training across decentralized devices while preserving data privacy. Federated learning (FL) has emerged as a ground-breaking paradigm in machine learning, allowing for collaborative model training across a network of decentralized devices while maintaining data privacy and security. Unlike typical centralized systems, FL keeps data localized on the clients' devices, meeting important privacy issues and legal constraints. We begin by explaining the fundamental principles of FL, such as the roles of clients and servers, the process of local training and model updates, and methods for aggregating these updates to enhance a global model. A strong emphasis is made on the numerous federated optimization algorithms that enable effective model training in a distributed environment. We also look at advanced privacy-preserving technologies like differential privacy and secure multi-party computing (SMPC), which are critical to FL's operation. This chapter provides a comprehensive exploration of federated learning, encompassing its foundational principles, methodologies, applications, and challenges by delving into the intricacies of federated learning techniques, like federated optimization algorithms, privacy-preserving mechanisms, and communication protocols. Through case studies and real-world examples, we highlight the diverse applications of federated learning across domains such as healthcare, finance, Internet of Things, and mobile devices. Moreover, we discuss the inherent challenges of federated learning, including communication overhead, privacy concerns, and heterogeneity of data distributions. By surveying recent advancements and research trends, we identify future directions for federated learning, emphasizing its potential to revolutionize distributed machine learning. This chapter serves as a comprehensive resource for researchers, practitioners, and enthusiasts seeking to understand and leverage the power of federated learning in decentralized intelligence.
This chapter covers decentralized identity concepts such as self-sovereign identity, decentralized identifiers, and verifiable credentials. The chapter is divided into 16 parts. The first few parts cover digital identity concepts. Then various decentralized identity concepts such as self-sovereign identity (SSI), decentralized identifiers (DIDs), and verifiable credentials (VCs) are covered. Then various auxiliary concepts such as decentralized identity in Ethereum and decentralized identity projects are discussed.
In March 2023, the European Commission (hereinafter, the ‘Commission’) launched an initiative that will ultimately lead to the adoption of a set of Guidelines on exclusionary abuses.1 The announcement gives veteran EU competition lawyers a sense of déjà-vu. Back in 2005, the authority released a Discussion Paper on Article 102 TFEU,2 which paved the way for publication of the so-called Guidance three years later.3 It does not take much scratching beneath the surface, however, to realise how different both exercises are. The (future) Guidelines on exclusionary abuses are destined to be more ambitious than their predecessor. The Guidance Paper was always conceived and presented as a modest attempt to explain how the authority intended to exercise its discretion.4 The Commission clarified that it could not be construed as an interpretation of the notion of abuse.5 The declared goal of the ongoing initiative, by contrast, is to codify existing case law.6 This paper takes stock of the case law of the past decade and discusses how Article 102 TFEU can be interpreted and applied in a manner that is consistent with effective enforcement, legal certainty and meaningful judicial review. The Court of Justice has consistently expressed a preference for consistency and continuity, whereas the European Commission has signalled that it values flexibility and effectiveness. Four key principles, which could ensure that the three abovementioned interests can be reconciled, are identified. It is submitted, in particular, that substantive standards should be (i) administrable, (ii) built around structured legal tests, and (iii) capable of being disproved. The Guidance Paper and the Guidelines-in-the-making differ from one another because they do not target the same actors within the system. The former (just like the 2005 Discussion Paper that preceded it) was primarily aimed at the business community. It sought to address what might be termed a legitimacy crisis in enforcement. The Commission’s policy in relation to exclusionary abuses had come under widespread criticism from the early 2000s.7 Decisions like British Airways8 and Michelin II9 embraced an approach that was difficult to predict, was at odds in several respects with and to take the within which an that that the of was as could under Article 102 as to the The Guidance Paper was a to and It a to the and to to the of The launched in March 2023, by contrast, is as a the Commission and the Court of Justice (hereinafter, the the The that the publication of the Guidance Paper are much in with the approach that the Commission to its in the case law the Court declared that Article 102 TFEU is not with the of which clarified that that the is of competition in the a on the Commission to in of several its This of case with the in policy in the Guidance a of for an a substantive the of that and is that the Commission is not in to the exclusionary of The of is that the authority more difficult to as a is however, around the of an to the legal be more than it to it is not how much more as as the of and the The Guidelines the Commission an to in the case law and an for the of Article 102 TFEU to exclusionary This of paper the the Commission’s It does in The the and in the and of the of actors are are it is for Court to the notion of a effective enforcement, legal and meaningful judicial review. The discusses what can be termed the Article 102 TFEU of the past that the of law that the Court has The in the which are the the Guidelines are more to on the of the case the paper of the that could in the of the three In the EU legal it is for the Court to the and of competition law Article 102 the has the to an on of on the of Commission it that judicial at the Court has to and 102 TFEU in the of a for a legal for and the of the in the system. It is both with the of and with that are interpreted and applied the This the way it the of Article 102 of the of the case law that is the preference for on the existing of and the Court its on that it has expressed in a past In it has to past and to do It to its case as to from the existing of The to which the values can be by to which is as one of the of the past The does not to which are as In the Court declared that of from it presented the legal as a that a in the case an the values the consistent interpretation of EU competition law This is not of a with and It is an to the of the EU legal was to the of and 102 TFEU by and This can be the are applied the the of the EU legal and legal the adoption of has a of the Court to in the case In for the by the on the on the one and and on the In in the Court had to with the the of the of more the in the case law around the of the of exclusionary The Commission is in of and competition In the EU within the by an to Article 102 for it that an a in the and that its to an The and of EU competition policy on how much the law the of the Commission competition The by the Court the of EU in by the of the what the authority to by the of that the Commission to the has on the law and policy are not to be authority like the Commission on that the substantive standards are in the of a they be to be an to the effective of competition the standards be the sense that they do not for flexibility to the of the of to The Commission be of the it for in that it to in that the three in and are its to the exercise of an its in the one the Commission to an interpretation of Article 102 TFEU that for effective in the same which is to to the of The that the Commission in March which the of its The to a and approach to the interpretation of Article 102 which in is one that for the meaningful of the and that is capable of to the of and the Commission takes the in its that it not be to as a of the of in The that the that legal as as lawyers and signalled the of being to not a will be to Article 102 The to legal certainty by that to the an approach to that one that is to and on the of the In which was as an the that the to of the case be in of the set in to a set of which was the approach by the the a that to their on the and that to the the and of The effective judicial of is to the of much in that of the the past decade in that a by a to ensure that the by are by the Commission the for the in the to in the of the the exclusionary of is by the by the The of the that both the Commission and the of the for different not the of the an is one that does not with the effective of Article 102 a is not at odds with legal certainty can that from an and to In however, the of the in the of be in with legal The flexibility that could existing of the of a being can be and the and are structured around a and set of they not legal certainty to for effective enforcement. the come with This be the in particular, the they in of their are in of it for the authority to its of In the that the of legal might be an to effective enforcement, in the sense that it for for the of existing substantive standards to and effective enforcement, and its with and legal certainty the the of and legal certainty are with its and as an It is to ensure the of and 102 TFEU the the substantive standards can be with by and is a judicial at the EU is to be should in in that are to in of than are. of the that it on consistency and continuity, the of is not in with legal The from the from the to for flexibility and in in the of effective in the of In and as in the the both of that it values as an and that ensure that the can its the flexibility and and and judicial Four the of has always a in EU competition In the that lead to the adoption of the Guidance Paper was to a by the within the business that the of Article 102 TFEU was to The Commission’s to the of was a to the publication of the Guidance The in the It has consistently the past that the of the exclusionary of be a of more of This be in particular, in by to their the Commission’s The of is a from a legal the however, the that with the of and is a different the that the to consistency and continuity, it is to that the of Article 102 TFEU will lead to always and The of and legal certainty and an of the system. the from the is not can be as a of how substantive standards can be that they are The in is how to and the law and abuses of at the case law that on the of enforcement. on how the is can of a of that could be in can be presented a from the of as as in of their to their as to substantive standards is the of the of The with which an can be is to the of an authority is a that be and that they be to in the and more the legal is to the of the of and the of Article 102 TFEU case law has the past It is to a set of an and as a for the interpretation of the notion of are in of to do with the of that within the of the In it that both and is to Article 102 to the and of the notion of is the the case law has the the has a of It to be from the and to a of a of the of the under British are in of Article 102 TFEU of their on to the by the Court one can a that is and that is it can be that it in the and legal of which it is a In from Article one can and under Article 102 The is one takes a at like on the one and on the In the of the Court in that and the is of a exclusionary are of their in by their In the Court in that a does in and of Article 102 It is in It is by the it can be that it is a of exclusionary The that of that to a of a of their on at in and the to in The that is by its whereas are by Article 102 TFEU as they was in the Court that a to an it is at odds with competition on the the has in it than as a to The same is to the the the of to the of a In in at in and the of the is an of competition on the and that of it one and the same The to from the is that are by their In an can be it being to their on This does not however, that are in the It that are to from the of the they not be by the authority In the Court clarified that a of that the can a on The to is the in in and It is for a to the the of and that the is of competition on the in which it is the in it a on the authority to its The Court has consistently that the of Article 102 TFEU does not to for the to can be of the of a is a as an of the and legal be the is be the has for a of can be on the that might the be on a of on a It be on the in which the is The of be in of several that will be in In the Court that be to the for Article 102 TFEU to In the exclusionary of a an authority that is a the and the that it is to the they can be to as the of which the is a to the that the of the the the the the of not be to the to the that it is the of the The Court has what an around the This the case law on what an is like and it that the that are at a does not in and of of an to an from the that they are in of be to to the legal that a of be as a of a be This was in the that a of a to more from it does not the authority from the to its in of the The Article 102 TFEU a of the of the notion of the Court has several in of which the be of has not the of a is one of the to in the in and the of the is a of the of a is of competition it to a of the Court has that not are is a in the for an to and a a to from the the of the is another to the the of by the the more the are. the that the is of a exclusionary a in the are that a in the of the and the The has to the of under Article in the Court the a as a the has an on the the does not to a of by is Article 102 TFEU is at The of the a of the of a are to the legal in an Article 102 TFEU it is not to in that are This in is not it to be at is because the of to be with The that is for a in of does not that has an It does not that is an an authority to the in the to an on The has as one of the of the case law of the past its can be to and it was in The Court in that that exclusionary is to and that on the by lead to the from the the of that are and to from the of In the that the of is a and of the and that it be not to the of Article 102 to they in the with and more The from of the case law more from the of the EU legal be to the for Article 102 TFEU to come the of a is by the that it is more be the for it is to at a to the be the and the and The is a in a that values legal by the Court in one a to its to the of its which it be to The of their is which is not to the it the of a of The is as a of what the of Article 102 TFEU what it is In to its as a in the the that the of the of EU competition law at is to a not to The of Article 102 TFEU is not to how are to on the to the and its The more modest is to the in which to in the with and are In Article 102 TFEU is different from the of which is to by to a how the is to In of its in case is around of the has to do with the that the to be with the of the same The however, is an of the it has a of The of the is to as a of the a that is as as the be to at a In the of a for an authority to the of the by the an be to at a the of the that is In the of a the is the the and the by a an be to at a The Court has consistently that an authority not on the to an to the legal be by and more in of the by the Court in an authority be to that a set of a the of the It is that the is not to the of Article 102 the of a is it will not to an that it an to at a The that is to an in does not the of the as an of has to do with the of the It is that it the of the are as as the This its and the that it the the of the is to the to a the and the This can be at the of In the of the the to the to the the and to and at on the of The case law what an is not is what an it is to a sense of the of the notion by at how the Court the in by to what it does and not much In it that a does not competition for as as the from for as as their and to is not the in does not exclusionary a in of to the is and has the in the The Commission to a interpretation in its the Court had not the at the of The that Article 102 TFEU can both and has the Court has not clarified the that as a of substantive the The of in and be as as the is not the notion of is it to the not to the of an of and one of are both with the of for one the are both from a legal and a The the the the substantive of Article 102 and the the to the The by the Court in its case law is not It has consistently to and as not of is of a different that a be capable of competition that it is for an authority to that is that the is not that in the of that be on the to set a It at a of around however, was in in that it be as a of that the is more than not to The by the in to be consistent with it to that are by a as the should in that Article 102 TFEU in the of competition are and that the of the to The that in has in of as the of the its and the of that the is by that it is to at the that the of is around not the of has not by the the which is a substantive is with the of which they are to the the of is the to be the of in is the has to the legal It is to substantive and they to different they are both expressed in of It is to to the of to the of a it is that of to In to the of they to the substantive of one takes the from the on Article 102 are to as the law be the This is in particular, because of the to that is to the The of a a of the of competition with and the the of competition that in the of the should in that the to the is in the of Article the that and 102 TFEU to the same it be difficult to that the exercise is under of the different to the of to a different to the notion of of and 102 In the Court in the of the the was not the for the of the of the to the was by the that the the of an In a the Article 102 TFEU could to the of competition that the the case it that are to the it is are of the one the that the from the is the that the not an to another it be to from the the of the do not for the of a of is to the to the of the Court had not The a sense of the and the the Commission’s ongoing the case law of the past decade has consistently signalled the to the meaningful of it is for the authority to the of the legal on its to its policy substantive standards could the meaningful of Article 102 It is from the that effective is and the the and in the case This with that are at the of the as an legal certainty and meaningful judicial review. The former that Article 102 TFEU is applied the The is consistent with the as the of EU law and as the of approach to the notion of that takes three enforcement, legal certainty and meaningful judicial is not to and the can be by key principles, which are and the substantive standards be administrable, that they can be applied both by the and by they be structured to and a sense of what to and the that to the by a authority be capable of being in not in in the It is submitted, in that one substantive legal that on that are always and and to substantive standards be a to ensure effective more to for the of the be the Court has not the notion of in the case law in a because of the the are what an authority that a is a of are how the in the case law as the of the and the of the in and how they are one The way to the in the case law in a manner that that the is to on that from the to in and by a of the that is The of is not in of the case law and the In the of Article 102 the Court in a to which a of the of a This was intended to to the in are in of The in has on in its The Guidelines on for on a as a the of the are and the of the does not that the from an are in relation to could be an effective to existing in the case In the in like and to the of for the of a which was as a in the of of the could be as a of the of a the and of the It is the a is the is its to it be to on the of at as a for their exclusionary one could that a one three the of the to the at with could be on be to from the of effective enforcement. The Commission a sense of what they to in relation to of the of in and not It is an approach that ensure that judicial the to the of to from one case to another on of the of the at the of a be more The be from the of legal be in a to the in is that has in years has to do with the and of legal in Article 102 It is to to the substantive of approach on structured tests, which around a set of that to be to an to the legal The three by the Court in as an in approach not on is in an than the of a the in the case law be that to be in the of an to the that one more are not in a not be for a of The as a be consistent with the of the of the in of the the exercise that judicial the in the case law as to be in It is not difficult to which the of an as it are to in structured legal effective more than like a set of and what the authority to what it does by contrast, they be to and the and that an authority however, a could in the as to for the standards for actors it is difficult to how legal tests, can ensure the of Article 102 TFEU the an interpretation of the in the of the legal The that to the of the substantive standards In the of law could be as a for to their structured are judicial is to the legal to an from one case to another is one that in the of the substantive standards to the and an which the to which are in a and which are is with judicial that is to of The of could be to at the of legal certainty and meaningful judicial review. as it be difficult to for a of a set of that is in always and is a legal This is because it does not the EU to in meaningful In with what has in the it for the exercise of judicial is the in the EU legal the approach the of a of the by the case the of be to from their and be by its the same an approach it for to the of the The of could a in several the of set at the of a of be a of to take In the of competition are by the of a the of the of a not be to and take the of by a In exclusionary could be always and In with what has it be difficult to interpretation of the notion of with the by the Court in to the it it for a to a of that the of a is one that a the system. it is that the substantive in an could be by to a of not be to it has by the the has in the Commission’s it has by the Court (hereinafter, is by the Michelin The that its could not be as its had the The Commission in the of the could The the of The in This approach to the of the of which it to an is on a of the notion of of and to what and to be by the interpretation of the to that Article 102 TFEU can be the more it the to which they are like a of more than that are more than that their has the that is the the be not because it it to exercise a of because it is at odds with the case of the that from the is that flexibility the is It has that the Court in that the is not always the which are can of be a competition authority is in of its a is to In the be that the are not the which of a in a should be a in the Commission’s the in not the of a to an the case for flexibility is one it to be in a way that does not It is submitted, that should be as it be for the that that the legal standards should not in a case to are a it be for the authority to in a the of the not be the be on it to it the are not the which the of a to is to be flexibility at the of and consistency legal one that the in of the is The of the case law on exclusionary abuses the past the Court has embraced an interpretation of Article 102 TFEU that on a of the of on are however, around how the of In the of the notion of to This is the which the Commission’s initiative in relation to exclusionary abuses be This paper has the that might effective enforcement, legal certainty and meaningful judicial review. the in the case law it to the three to the law and are several that can in is that the law should be administrable, that it does not an to the of Article 102 TFEU and can be by The case law could to It in particular, that the Court has of the of The of could address of the Commission’s the of the system. can the to which are and the more are a to is more the Court could a which is to the case law it that the of under Article 102 TFEU be and not on the that might the In the of the of a a The of the legal that be difficult to with of the case law in the same with effective judicial interpretation is the of a which with the case a of an in interpretation that the of a is one that of a of as of to an interpretation be not because it to at odds with the because it it for a to a of the Court a legal certainty and that it is to the consistency and to the to and to to the of are in which both interests can be approach on legal substantive standards that and that from one case to This is not to in the EU legal the to ensure that it is applied the It in to the of of law to the authority in in a to the which the of is approach is one that as a of on structured legal on a set of that an authority This it is as a of can as as the of the
Jak dowodzą powyższe rozważania prawnoporównawcze, art. 45 § 2-3 p.k.k. ma być nieznanym jak dotąd, ani w systemie Common law, ani tym bardziej w systemie Statute law, uregulowaniem w zakresie tzw. odwrócenia ciężaru dowodu w przedmiocie odebrania mienia przestępcy. Co więcej, owe przepisy stawiają pod znakiem zapytania istnienie niektórych uniwersalnych wartości, do których z pewnością należy m.in. zasada domniemania niewinności wyrażona w art. 6 ust. 2 EKPC. Niemiecka koncepcja, choć jest niewątpliwie najbardziej zgodna z podstawowymi zasadami prawa w porównaniu z przedstawionymi rozwiązaniami, to raczej nie jest adekwatna do nowych wyzwań walki z przestępczością w dobie globalizacji. Szwajcarskie i austriackie rozwiązanie idzie dalej. Chodzi tu o art. 53 cyf. 3 s.k.k. oraz § 20b ust. 1 a.k.k. Mimo wszystko napotyka poważne trudności ustalenie, Że dane mienie jest w ,,dyspozycji" organizacji przestępczych. Nawet amerykańska koncepcja criminal for feiture, która opowiada się za pewnym ułatwieniem dowodowym w 21 U.S.C. § 853(d), nie przewiduje tzw. odwrócenia ciężaru dowodu w zakresie omawianej problematyki. Art. 5 ust. 7 Konwencji Wiedeńskiej, podobnie jak art. 12 ust. 7 konwencji z 2000 r., przewiduje możliwość tzw. odwrócenia ciężaru dowodu w przedmiocie przepadku mienia. Należy jednak zauważyć, iż owe postanowienia umów międzynarodowych z jednej strony wiążą strony jedynie względnie, tj. dają pewną możliwość, natomiast nie rodzą żadnego obowiązku. z drugiej strony wymagają zaś uwzględnienia podstaw porządków prawnych stron konwencji. Nie wydaje się, by odegrały one większą rolę zarówno w systemie common law, jak i w systemie statute law. O ile w pierwszym systemie prawa poruszana problematyka zakorzeniła się na stałe dużo wcześniej wyłącznie w civil law, o tyle w drugim _ jest ona w swojej czystej formie nie do przyjęcia. As evidenced by the above comparative legal considerations, Article 45 § 2-3 of the Polish Penal Code is intended to be a hitherto unknown, neither in the Common Law system nor even less in the Statute law system, regulation of the so-called reversal of the burden of proof on the subject of the seizure of the offender's property. Moreover, these provisions call into question the existence of certain universal values, which certainly include the principle of the presumption of innocence as expressed in Article 6(2) of the European Convention on Human Rights. The German concept, while undoubtedly the most in line with the basic principles of law compared to the solutions presented, is unlikely to be adequate for the new challenges of fighting crime in the age of globalisation. The Swiss and Austrian solution goes further. This is about Article 53 (3) of the Swiss Penal Code and Article 20b(1) of the Austrian Penal Code Nevertheless, it is very difficult to establish that the property in question is at the “disposal” of criminal organisations. Even the US concept of criminal forfeiture, which advocates some evidentiary relief in 21 U.S.C. § 853(d), does not provide for the so-called reversal of the burden of proof with regard to the issue at stake. Article 5(7) of the Vienna Convention, like Article 12(7) of the 2000 Convention, provides for the possibility of a so-called reversal of the burden of proof on the subject of asset forfeiture. However, it should be noted that these provisions of international agreements, on the one hand, bind the parties only relatively, i.e. they provide a certain possibility, but do not create any obligation. On the other hand, they require that the basis of the legal orders of the parties to the convention be taken into account. They do not appear to have played a major role in either the common law or the statute law systems. While in the first system of law the issue raised took permanent root much earlier in civil law alone, in the second it is unacceptable in its pure form.
Whilst new challenges awaited us in 2022, with the war in Ukraine raging on and the economic downturn and high inflation, practitioners are still and rightfully so continuing to focus on IP Rights (IPRs). The most recent report on IP-intensive industries has shown again how important IPRs are for the economy and for the job market.1 Specifically regarding hybrid working, hybrid conferences and new technologies continued to present challenges in 2022 and, as far as IP is concerned, a specific focus was on non-fungible tokens and the Metaverse. To be able to embrace the future with its continued challenges, learning from the past is a must and, with that, this article aspires to be a helpful guide. The authors start by summarizing the relevant Court of Justice of the European Union (CJEU) judgments interpreting the Enforcement Directive2 before moving on to CJEU decisions pertaining to substantive IPRs. Part 3 covers the relevant decisions of national courts.
The article examines the principle of international criminal justice - the presumption of innocence of the defendant. Its content, limits are clarified, the practice of the European Court of Human Rights is analyzed, as well as the practice of international tribunals on the presumption of innocence of the defendant as part of his right to a fair trial.It is established that presumptions of a legal nature on matters of fact and law are admissible in international criminal proceedings only if the defendant is given the opportunity to refute them and prove his innocence.The presumption of innocence is enshrined as a principle and right of the defendant in modern international criminal procedure law, primarily in the Statutes of international courts and tribunals. An analysis of the relevant provisions of these statutes shows that the presumption of innocence means at least that: 1) the burden of proof lies on the prosecution; 2) evidence of guilt must meet a certain standard; 3) in some cases, the presumption may include additional rights, such as the right to bail, as well as additional conditions, such as the condition of a guilty plea only by a lawful court or following a trial in which all rights of defense have been secured, etc. .; 4) the defendant has the right to doubt in his favor; 5) the right of the defendant to remain silent; 6) the right of the defendant to a certain standard of conviction or acquittal; 7) theright of the defendant to compensation in case of acquittal. The formulation of the presumption of innocencein the Covenant and the Convention allows the establishment of the innocence of the defendant by different procedures depending on “what is at stake”, ie depending on the legal consequences arising from the establishment of guilt. If the defendant can be released from criminal liability and punishment, the procedure for rebutting the presumption of his innocence may be different, and the defendant, of course, must be provided with all means of protection against prosecution.
Article 4(7) of the General Data Protection Regulation1 (‘GDPR’) defines the data controller as the natural or legal person that determines the purposes (the ‘why’) and the means (the ‘how’) of personal data processing.2 Article 24 provides that ‘[w]here two or more controllers jointly determine the purposes and means of processing, they shall be joint controllers’. These legislative definitions seem to indicate that the controller decides why and how data is processed. Over time, however, regulatory guidance and judicial interpretations have significantly reduced the threshold of influence that is required. Whereas the determination of the purposes remains a condition (almost always fulfilled as any product or service’s use is motivated by a given objective3) even the most marginal influence over the means, such as enabling someone else’s processing, suffices to be a controller. Ever more parties intervene in the personal data value chain as a consequence of technical and economic factors and the draft Data Governance Act also pushes in that direction.4 As a consequence, parties with no access to the data or the software used to process it are controllers. The mellow definition of control, coupled with the restrictive reach of the household exemption and the growing decentralization of data collection, storage, and processing entails that ever more parties are controllers. This includes data subjects, which increasingly qualify as controllers both in relation to others’ data as well as their own, something that is antithetical to the GDPR’s objectives and indeed the very structure of the law. The conception of control in EU data protection law, coupled with the restrictive reach of the household exemption and growing decentralization of data collection, storage, and processing entail that ever more parties are controllers. This includes data subjects, which can be controllers in relation to others’ data as well as their own despite this being antithetical to the GDPR’s objectives. The expansive approach towards controllership has been motivated by an assumption that the more parties are responsible for compliance, the more protection data subjects enjoy. This article rejects that assumption by highlighting that (i) broad definitions of control fail to achieve the stated objective of the complete and effective protection of data subjects; (ii) are undesirable from a political economy perspective; and (iii) undermine the law’s effectiveness. In parallel to the prevailing interpretation of controllership, however, a parallel imagination of the controller, which presupposes meaningful influence over the techno-organizational elements of processing, can be made out. The article closes by suggesting a new test of control that returns to the etymological and conceptual origins of concept by requiring a de minimis threshold of influence over the means of processing. The growing pulversization of control in fact sacrifices two of the GDPR’s underlying objectives. First, complicated networks of responsibility lack transparency and impede the effectiveness of the law and thus lower the protection of data subjects. Secondly, a political economy perspective reveals that this legal interpretation supports intensifying forms of private power and this despite the law’s intention to address power asymmetries. This is particularly problematic as it enables the design of complex cobwebs of control the principal purpose of which is to complicate enforcement. The current definition of control incentivizes ‘real’ data controllers to design their systems that data subjects, have control to qualify as controllers to influence how data is processed. this control controllers to legal it to and the of data Article 4(7) and interpretations are the imagination of a parallel which to have the of and that natural and legal that are to influence data processing effective and control over the data and software used to process are controllers. This of control is in 24 and and presupposes meaningful influence over the techno-organizational elements of processing. The article closes by suggesting a new legal which returns to the etymological and conceptual origins of controllership and presupposes influence over the techno-organizational structure of data processing by requiring a de minimis threshold of influence over the The two of data subjects and is an assumption that of the always is data and data The data is the or natural person to which personal data The definition of control is more complex and has been to Article 4(7) provides a and definition of defines the controller the natural or legal or or jointly with determines the purposes and means of the processing of personal the purposes and means of such processing are by or law, the controller or the for be for by or law natural or legal person is thus a controller (i) they are as such by law, or (ii) by of their This is with the and most determine the it is to determines the purposes and and the more the purposes and means they are joint This approach is to the influence an as to be as a controller it Article 4(7) as the means and purposes are two factors of Over time, however, law and regulatory guidance have the of the purposes guidance has that the purposes of the processing in any the as controller, the means control the determination the elements of the to the the of and the means such as data is the of the processing, of and data the time, the that the to use and joint controllership of the can the processing of data to be can be a controller meaningful influence over the processing. the to use a given or a given to a determination of the of from and that the threshold of influence over the means for joint controllers is very This that as more they also are the for a broad interpretation of control to a of protection of data The that are two controllers in relation to a First, as it determines the purposes and means for and of Secondly, as they to of to determine the purposes (the objective of a and the means by of data collection, the that a by it as a controller even they data in In the that control access to that controllers to be to personal data and the as a controller in relation to data by even it that 24 In a a which a to data from the and data to that (the as a controller even as it to influence the The the to the of control to a of protection of data The to data of to of or the is a of the it influence over the and the no access to the data by to can be a joint controller is an objective to process the data (the even (i) access to the and (ii) marginal influence over the means, such as in to use a given very marginal influence over means of the that the person in it for personal data to be and coupled with that such a joint controller has as to the is of This the of is controller that is to with The law however, the of for joint controllers. Article the the controller to and with the The is controllers are to with of the or of and which In law, the that responsibility controllers and that their responsibility be with to the in of the the the to determine responsibility that the that broad broad can be First, control be the of the The of a the is a and with controller indeed has a to that they have a legal The however, that as that controller have no access to the it determine the elements of the processing or that is this is the legal As a consequence, such the thus be address and and this personal data to with the such of the that controllers in the most of the processing in relation to purpose controllers that have no access to the data or software are in no to any such These are of joint to with the Secondly, the be as that a controller to to the that it Whereas this be more in of the value of such responsibility can be is the of controllership also in of which a a of the law the Data Protection the an in the of Article that joint controllers shall determine their particularly as and data means of an which has to a for data subjects. Whereas the a it can be that the to be in as to be made to the data This that joint controllers are of their and to such an also for that parties are to This however, the as be and the is to controller to for the of the or or controllers are of their to the of the law for the of it is an to that any the design of responsibility have or of lack the and and even in they are by power as and of use are made in a particularly has the they to their Article is a of the a of joint and that data subjects to any of their any of the controllers the The can thus or the design of data processing systems data data subjects can that the to a Article which they of control over the This be however, the or the an of controller being with a for it an with that controllers to with data protection law in the of their and however, it also stated that they the and complete protection of data law more the and Article law the of controller are or they have the more and more the law controllers to something they are to Article controller to a of processing This to the and the of a have of or how are to determine the purposes their data and the data protection by design and by Whereas to or that processing (i) is to in a for data subjects; (ii) is and (iii) includes of data of elements being in the law the of controllers is with is Article which provides that any person or as a of an have the to from the controller or controllers that have to the are from they can that they are any with influence are This the of the of law to means that a has a to others’ of use or the processing of or an to the and the The and have which shall be and This for an of the particularly a an of the or and the of This that controllers influence over the data protection be to ‘real’ data controllers to from broad definitions of In increasingly data a that influence over the processing of personal is a joint even it has no access to the data or In a with ever more and data more and more or or the processing of personal both of and it has and been that the the of control is to a of protection to data in General that any interpretation complete control over of data processing in of however, be a broad definition of control is in the of data subjects as it responsibility a of that be to the law. to the this broad definition of control is as personal data of also processed. a Data protection is an of the law and is no for a with a controller a data can as the design 24 and even data subjects a controller has no In General effective protection is is made that the current test even and be controllers as they the This of control is a that ‘real’ controllers structure their that the have control to be a controller to have any meaningful influence over the processing. it to complicate the of data protection by data subjects from their As the controller to the law and is the of a broad definition of control being the of and a of data The current of the law incentivizes responsible and from the processing to cobwebs of control in to by controllership to data subjects. As a consequence of the of control, the restrictive reach of the household and even data subjects be controllers both in relation to others’ data and their This has thus indeed the new legal are controllers and this despite the of natural data processing. it has always been that a data can be a controller as the Data subjects their own purposes in systems and also increasingly control over the means the processing As such their as controllers is the of the and indeed the of that This the that data subjects can be controllers by the of the household exemption and the law to the of and by highlighting the that responsibility for data protection in the be to data subjects to with design over the from to Article the to the processing of personal data by a natural person the of personal or household that processing personal or household it has to a or such as private and the of also and the of such The has and that this exemption has to be that the exemption to which are in the of private or of which is the with the processing of personal data in the that data are made to an of law the that to a of the exemption be and that it to that the data to an of that a to personal data to an of and of the The of forms an to that in the legislative (the of the the exemption can be the to controllers or that the means for processing the The Article the household exemption in networks in that (i) are controllers as they determine the means and they determine the purposes and (ii) the also be and (iii) are controllers the household exemption they a political or or they the the of it is the of the to can determine also they are to the by of the in such as have indeed that of qualify as This however, no in the Whereas a data thus be a data controller the also in The is of The of is to to by an to to can be with the consequence that more data is being and processed. In such complex networks data is in and in the of the is This can be the of has that the of the household coupled with an definition of control and of determine the purpose use a to and and in also the means the to use an a technical perspective is a that enables data and a a that data the that can be controllers has of both to and is is the controller, such as a the and a is the or the These definitions of control a that can in undesirable such as even they Article that controllers their and to data subjects. This the use of a data of is a in relation to the also has been the and the of controllership as have that data subjects can be controllers in relation to their own This has been in the and a that be both data for the personal data that they to the and data by of a of the their own In the de a suggesting that a natural person a to process personal data in a that no to a or as for their own this person to be as a controller by of the of the household In of the law it however, the household exemption can personal data is a and it is made to an of The exemption thus be by someone a for private purposes which is it the as the of be by the data is used for the and are to data the household exemption be the to the that the data is a data controller in relation to own are a of with in to the of data the to and the and personal data are increasingly as a technical to address data and to of is to use a for in the of technical means to data in that enables the and of data as well as and and transparency for and an of data protection by design and by are no First, as be in more the of is and the of and Secondly, data has the of a over that data as the to control any the and power that has that of be a is used in a of in a they use of such systems in their in the of or for their their or even the being as a joint can be for that to from the that with personal data their own as they to value from data responsibility for the that with and processing. As they also being a of to the of processing to data subjects. Data subjects increasingly being controllers both in relation to others’ personal data and their The growing decentralization of the and of data in a of This can even be a by the ‘real’ controllers to complicate the structure of and enforcement. a data is a controller in relation to others’ data an to a complex the fact that they can have a influence over the techno-organizational This transparency and legal and for data subjects and and the effectiveness of the law. a data is a controller in relation to own the legal is that the data and controller be the person that be with of processing that is a be as in most an with for person to that process the that the data subjects and controller are to be with These are that that data protection law with a data controller in The of data protection law can be by the fact that data subjects and controllers have a more of the of data subjects, which the law’s objectives. This that a data controller is also the law’s underlying and a political economy The and of a data controller be in of the law’s no EU data protection law, which is the of a of and to Data protection in In data protection has in the concept of In it from the concept of in it to the to it to objectives. First, it is to the to data as by Article of the of The GDPR’s even that data protection is to to of natural and to the an to the of personal data from to and by that the economy to natural have control of their own personal an objective that is in the also to to the of an of and the can be as a to the that personal data is processed. The in fact to the to the processing of personal and data protection as a for that data are and that the of are In data protection to achieve objectives that in to This can be an of the two objectives that are most for the and data objective of data protection law is to data subjects control over The control is an of the of that has data protection law. In a this is as an as from to In with this be to determine to to influence of data protection is no to control in Article of the this in law In the to the GDPR’s the to that the new control to which to that the control a of the In the GDPR’s of data enables data subjects control over This also has a as it a the most of the control the time, in a to the of data and however, growing that are no in a to the of data that is the which this the that have access and the has thus in of data as control presupposes an that can no be of the or even the of they fail to for and data the in a has that this a that data to is the of the data that a use of data be as data it be with and how data Data subjects also from the and from the of such as data of which have been given and data subjects be from the data that they and how be data subjects to complex data processing economic from their and the towards that are to in a it this is Article that the they can is to use a given product or The control can also be for for such as that the processing of data personal data can have for data subjects. the for processing that is used is and fail to they be the of data by with can thus be the of data protection law. Data protection to data subjects from to the processing of personal to Article the and of natural and in their to the protection of personal and that is to a and of This is also by the fact that the from they qualify as a or a First, a data such as a or The to be by or power Article of the that has a to data of this or that have This that data protection is an enabling and a of in law, also law or that to a of their are in an with Article of the which a in that personal data can be for a the controllers to for the of the data also for of the increasingly of data processing and the of to be this also has that are to even their This can in of the the is to such as or and economic data the of personal The is as to their which has been to such as the of or to data protection to impede the which is why law to even a data to any of for controllers In the that a in that it as a for the and by of the personal this is can be As that the has a of the and of data are that data is they have no of the perspective reveals that data protection law a power and The in the of to the of the the time, personal data in which be in a time, and by the person control over the of data processing the time, it that the controller always have assumption the the Protection of and of which the controller as the is to the and use of personal which be in processing personal data and have access to data are to data be be to use are from that even it to that the controller have power over of the is to why a is to to data and as a The also such as the of and power which are by data The has indeed been as to power and that of the data controllers and are decides over and from data processing, are that use systems for their own purposes and have marginal influence over the This enabling in which responsibility is purpose or from that most from the processing and in power of data subjects and of they are with they lack the means to The GDPR’s definition of control can be as an of how the law supports intensifying forms of private enables a of responsibility the of which is to responsibility for from that control the means and purposes the of complex cobwebs of control the principal purpose is to complicate enforcement. definitions of control also the of the law’s as data subjects for of of their as a The current of the law also in with the objective in that the protection of data subjects a of the is for this that an the the for be The indeed that this is and to the data with a more and In the that the as a controller as the of a in the of thus made the for a broad definition of control also The in law, as controllers with no controllers. that to be from a political economy data protection law to and responsibility to from processing others’ data and techno-organizational Whereas this has that this is to the objective of power it also with the of control in 24 and This article has that control over the data and technical means used to process it qualify as controllers. Whereas they are to and influence the of the data processing, they are to have that this with the as well as intention to address power asymmetries. The interpretation of Article 4(7) the of control in 24 and which a that the controller the techno-organizational of processing. Article 24 is to the of the and it to and to the and purposes of processing, as well as the The controller be to that processing in with the to the effectiveness of the and to Article is to data protection by design and by and that controllers technical and such as to data protection in an effective to the GDPR’s and data be that a joint controller technical and they use software by a that has such an the of by the such as seem to that controllers are to be in a to determine this Article that a it to determine that the data to achieve the purpose is (the data This the controller to of personal data the of their processing, the of their and their to the to that in the controller is to be a legal the of an of the controller has also been made by the that controllers to they a new processing and processing, and also the of processing, by the effectiveness of the and and also the controller to use of the they be in a to determine that to controllers be in a to it that that a controller the of data processing also that they the software with however, technical and access to the data and software that be of and are no that be more 24 and for that a controller always the means indeed that they influence over the processing of personal is a of a is that it is As the is the of the concept of data protection by with the effectiveness that controllers can that the they have are controller access to data and software achieve an effective to a of responsibility and transparency the processing as well as the of of this is to achieve in such as of the for the broad conception of control in that the also data of The that it the protection to data subjects it the as a joint controller, to with data protection law that have As this it is to that that control over the data and software to controllership the is however, to that in data subjects from complete and effective of that joint controllers data subjects to their data and that is a legal they design software as to with this and is no for data subjects to have an with it for this to the of controllership the of have of complex cobwebs of control that that the is and enforcement. This is particularly that has the of the is the of of that from the of the processing, more in with the GDPR’s to address power asymmetries. to the interpretation of Article 24 and that a data controller have control over the processing of personal and (the to the of the in that in to be a data to control the data and software used to process this in be it has in interpretations of the the to qualify as a controller control over the data and software used to process of legal control, which control, can be 24 and In the for the to be a controller, it the power to with to the the to the The of that the a controller as it power in relation to the purposes and the The and the that a to use for and is to a joint In the that a data controller be the of and also that processing of personal data be from and is to that of the and processing the data In data controllers that lack control over the personal data the software used to process it process the data and the to data interpretations of control entail that the of data processing systems have to that they are or be to be controllers and to legal to their is a lack of transparency and legal for both controllers and data subjects, which in the law’s effectiveness. the current of the law the for systems to the law. Data protection law’s of a and approach to the determination of controllership is to the of responsibility from the over time, the of influence over the of processing to qualify as a controller has to be The of a given or or the fact that an enables someone to process personal data from that processing even being of an interpretation from of control and no purpose of the complete and protection of data subjects. the new of and the (the purposes and is as an influence the purposes and means of the In to the of of or to undermine the law to the origins of the concept of the controller and an exemption for parties with no meaningful influence over the data processing by requiring a threshold of influence over the law a de minimis threshold of influence over the means of processing to qualify as a data controller. to this parties that determine the purposes and the means the of a or and the enabling of someone else’s processing be controllers. This be more in with the as it transparency and legal and also is it be more in with political economy Data protection law is a that to the that personal data is processed. These be that have power over the processing of personal data and the
Judgment of 28 January 2021, Qualcomm v Commission, C-466/19P, EU:C:2021:76, and Judgment of 2 February 2021, DB v Commissione Nazionale per le Società e la Borsa (Consob), C-481/19, E EU:C:2021:84 The Court of Justice of the European Union conformed and clarified in Qualcomm, the well-established scope and application of the freedom from self-incrimination; in DB v Consob, it ruled that this principle is applied in conformity with case law of the European Court of Human Rights and made a distinction between undertakings and natural persons. On 28 January 2021 and 2 February 2021, the Court of Justice (CoJ) of the European Union (EU) ruled in two cases on the freedom from self-incrimination. The first case, Qualcomm, was an appeal case brought before the CoJ by the undertaking at stake, whereas the second case, DB v Consob, concerns a preliminary reference procedure. The Qualcomm case also touches upon other aspects, such as the right of the Commission to request additional information after the statement of objections has been issued (see in particular paras 66–70). The focus of this contribution will be on the implications of the two cases on the freedom from self-incrimination in EU competition law proceedings. In 2010, the Commission started an investigation into an alleged predatory pricing practice of Qualcomm. The Commission issued an infringement decision in this case in 2019 (Qualcomm (Case AT.39711) Commission Decision of 18 July 2019). The case at hand relates to a decision taken on 31 March 2017 ordering Qualcomm to provide certain information, after Qualcomm refused to comply with a request for information on the basis of Article 18(2) Regulation 1/2003. Qualcomm challenged the decision of the Commission before the Union Courts. In DB v Consob, the CoJ had to rule on the scope of the freedom from self-incrimination in proceedings relating to insider dealing and market manipulation. The Italian Companies and Stock Exchange Commission, Consob, started an investigation against a natural person for insider trading and fined the person concerned €50.000 for delaying to come to a hearing and for failure to provide certain information when he was present at the hearing. Since the investigation is based on national law implementing a Directive, the national court decided to refer questions to the CoJ on the scope of the freedom from self-incrimination. Both the General Court and the CoJ dismissed the arguments of Qualcomm relating to the freedom from self-incrimination by referring to the ruling in the (perhaps infamous) Orkem case. In Orkem, the CoJ ruled that the Commission may ‘compel an undertaking to provide all necessary information concerning such facts as may be known to it and to disclose to it, if necessary, such documents relating thereto as are in its possession, even if the latter may be used to establish, against it or another undertaking, the existence of anti-competitive conduct’ (Case 374/87 Orkem v Commission, EU:C:1989:387, para 34). By contrast, the Commission cannot order an undertaking to provide answers that may involve an admission of guilt (Orkem, para 35). The information that Qualcomm had to provide was merely of a factual nature (para 145; and General Court in: Case T-371/17 Qualcomm v Commission, EU:T:2019:232, paras 187–189). Qualcomm also had to produce documents containing some of the information requested by the Commission. According to the undertaking at stake, this would infringe the freedom from self-incrimination, since the Commission can only compel an undertaking to provide pre-existing documents and thus, a contrario, cannot compel an undertaking to create new documents. Both Union Courts rejected this argument (CoJ, paras 146–147 and GC, paras 192–193). It may be necessary for an undertaking to put factual information into writing and to send that document to the Commission in order to comply with the obligation to cooperate. The freedom from self-incrimination will only be infringed in those circumstances when an undertaking has to produce documents containing an admission of guilt. Qualcomm confirms and clarifies established case law of the Union Courts and is in that regard nothing new under the sun. However, the established application of the freedom from self-incrimination in competition law does become interesting in light of the possible consequences following from the DB v Consob ruling. In DB v Consob, the CoJ had to rule for the first time on the scope of the freedom from self-incrimination for natural persons. The CoJ referred to ample case law of the European Court of Human Rights (ECtHR) in order to explain the scope and application of the freedom from self-incrimination. This is a logical approach due to the requirement in Article 52(3) of the Charter to provide at least the same level of protection as the ECHR rights when those rights correspond with Charter rights. Even though the freedom from self-incrimination is not explicitly referred to in Article 6 ECHR, the ECtHR has regarded this freedom to be part of the right to a fair trial (ECtHR, Funke v France, CE:ECHR:1993:0225JUD001082884, para 44). This also means that the freedom from self-incrimination is part of the right of a fair trial under the Charter (para 37). The CoJ ruled that, with reference to case law of the ECtHR, the ‘right to silence cannot reasonably be confined to statements of admission of wrongdoing or to remarks which directly incriminate the person questioned, but rather also covers information on questions of fact which may subsequently be used in support of the prosecution and may thus have a bearing on the conviction or the penalty imposed on that person’ (para 40). This is a notable distinction with the approach taken in competition law proceedings initiated by the Commission. According to the CoJ, this statement does not necessarily conflict with that approach, since (1) the Commission cannot oblige an undertaking to provide an admission of guilt (para 47) and (2) the Orkem ruling is applicable to (associations of) undertakings and not natural persons (para 48). Both reasons are discussed below. It is not uncommon in EU law to make a distinction between natural and legal persons with regard to the scope and application of certain fundamental rights. In the 2003 Volkswagen case, AG Colomer made a distinction between safeguards in criminal law and in competition law by reference to the nature of the accused in both procedures. Applying the same safeguards for individuals in criminal law proceedings to ‘powerful corporations with significant resources’ in competition law proceedings would, amongst others, be a ‘mockery’ to individuals (Opinion of AG Colomer in Case C-338/00 P Volkswagen v Commission, EU:C:2002:591, para 66). Directive 2016/343 also makes a distinction between natural and legal persons when it comes to the scope and application of the freedom from self-incrimination (Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L65/1). The Union legislator decided to limit this directive to natural persons, since there are ‘different needs and levels of protection of certain aspects of the presumption of innocence as regards natural and legal persons’ (Directive 2016/343, Preamble, Recital 13; the freedom from self-incrimination is regarded to be part of the presumption of innocence, see Preamble, Recital 25). Reference is also made to case law of the CoJ that ‘recognised that the rights flowing from the presumption of innocence do not accrue to legal persons in the same way as they do to natural persons’ (Directive 2016/343, Preamble, Recital 13). In legal literature, however, different views exist as to whether the scope and application of freedom from self-incrimination can differ depending on the nature of the accused (see, for a short overview, Marc Veenbrink, Criminal Law Principles and the Enforcement of EU and National Competition Law: A Silent Takeover? (Wolters Kluwer 2020), 22–23). In DB v Consob, the AG made a distinction between the natural person in the case at hand and legal persons in competition law proceedings (DB v Consob, AG Pikmäe, para 96), whereas the CoJ correctly points to the difference between natural persons on one hand and (associations of) undertakings on the other (DB v Consob, para 48). It is clear that an undertaking can be a natural person as well. The ruling in DB v Consob, therefore, leads to the question whether a natural person, acting as an undertaking, should be treated differently from a natural person acting in a different capacity. Should the Commission then apply ECtHR case law or Orkem when it orders a natural person, being the undertaking, to provide information in a competition law procedure? It is, furthermore, not clear as of yet whether the ECtHR would actually make a distinction between the scope and application of the freedom from self-incrimination in light of the nature of the accused. Although, the ECtHR did rule in Sa-Capital Oy that it is ‘mindful’ that in competition law proceedings, fines are generally imposed upon ‘corporate entities’ and not on natural persons and took this into account as a factor to determine whether the rights of defence were compatible with Article 6 ECHR (see ECtHR, Sa-Capital Oy v Finland, CE:ECHR:2019:0214JUD000555610, para 78). The practical solution of the CoJ in DB v Consob to distinguish between natural persons and undertakings is perhaps a bit short-sighted. Nevertheless, the CoJ also mentioned that Orkem, on its substance, does not necessarily conflict with ECtHR case law, since undertakings cannot be compelled to provide answers that might involve an admission of guilt (DB v Consob, para 47). This seems to be in contrast with the statement of the CoJ that the ‘right to silence cannot reasonably be confined to statements of admission of wrongdoing or to remarks which directly incriminate the person questioned, but rather also covers information on questions of fact which may subsequently be used in support of the prosecution and may thus have a bearing on the conviction or the penalty imposed on that person’ (DB v Consob, para 40). In order to determine whether the freedom from self-incrimination is infringed, and thus, whether there is improper compulsion, the ECtHR will examine four criteria, namely ‘the nature and degree of compulsion used to obtain the evidence, the existence of any relevant safeguards in the procedure, and the use to which any material so obtained was put’ and the public interest (ECtHR, O’Halloran and Francis v United Kingdom, CE:ECHR:2007:0629JUD001580902, para 55; for a discussion of these factors, see Veenbrink, cited above, p. 24–31). The nature of the evidence requested can be a factor that should be taken into account to determine the degree of compulsion that may be used against a person. There are some cases in which the ECtHR allowed authorities to obtain factual information from a person (see e.g. ECtHR, Weh v Austria, CE:ECHR:2004:0408JUD003854497, paras 52–56; and O’Halloran and Francis v United Kingdom, para 62). These are cases concerning traffic violations in which the owner of the car was obliged to inform the authorities who drove the car. The owner of the car could, obviously, also be the driver of that particular car. Answering the question could therefore lead to the driver’s conviction. The ECtHR used, amongst others, the nature of the evidence obtained and the general interest at stake as relevant factors to conclude that the obligation to state this simple fact did not infringe the freedom from self-incrimination. On the basis of these cases, it could be argued that a request for factual information in competition law proceedings does not necessarily infringe the freedom from self-incrimination. On the other hand, the obligation on undertakings to provide factual information goes further than merely stating a simple fact. Therefore, it cannot be ruled out that the ECtHR will find this obligation to be an infringement of the right to silence and thus an infringement of a core aspect of the freedom from self-incrimination. Still, the Strasbourg Court has shown that it takes into account the particularities of competition law proceedings when it determines whether there is an infringement of Article 6 ECHR (Sa-Capital Oy v Finland, cited above, paras 78 and 85). The ECtHR is probably more lenient when it comes to an obligation to provide documents that are already in existence, as long as the Commission does not engage in fishing expeditions and as long as the request is sufficiently specific for the undertaking to determine which documents it needs to hand over (see, respectively, ECtHR, J.B. v Switzerland, CE:ECHR:2001:0503JUD003182796, para 69 and Funke v France, cited above, para 44). It is clear from the Qualcomm case that the Orkem approach is still alive and kicking. This begs the question whether that approach is indeed, as the CoJ held in DB v Consbob, Strasbourg-proof. The answer to that question remains in a similar state as Schrödinger’s cat. Hopefully, the ECtHR will be presented a possibility in the near future to finally open this box.
This paper critically examines the implications of ‘self-sovereign identity’ (SSI) for border politics and migration management. SSI refers to user-controlled, decentralised forms of digital identification. Closely linked with the distributed ledger technology blockchain, SSI is presented by advocates as a tool to empower marginalised groups, including refugees. Among other benefits, some claim that SSI removes the need for powerful, centralised institutional structures by giving individuals control and ownership of their identity information. However, through ethnographic research in an international aid organisation, I find that SSI is an embryonic technology with indeterminate properties and benefits. I identify a series of competing logics in the debates around SSI’s emancipatory potential, which relate to four issues: (i) the neutrality of the technology, (ii) the capacities of refugees, (iii) global governance and the nation state, and (iv) new economic models for digital identity. SSI is simultaneously the potential enabler of new modes of empowerment, autonomy and data security for refugees and a means of maintaining and extending bureaucratic and commercial power. I situate SSI in a genealogy of systems of identity control and argue that, in practice, it is likely to feed into the powers of corporations and states over refugee populations.
Financial Intelligence Units (FIUs) hold a central position in the chain of actors responsible for the monitoring of money movements in the European Union. In support of their role, which is to receive, analyse and disseminate suspicious transaction reports, they have been furnished with significant information processing powers. At present, FIUs feature prominently in the EU’s anti-money laundering and counterterrorist financing agendas and plans to further enhance their powers of information exchange are underway. At the same time, however, the legal challenges that arise from their constant empowerment, particularly for the protection of personal data, are being overlooked. This article focuses on the cooperation between FIUs in the EU and argues that the latter takes place under a complex legal framework, which raises significant challenges for data protection. In particular, it highlights the present-day uncertainty over the data protection framework that governs their operations and discusses whether FIUs should be subject to the General Data Protection Regulation or to its law enforcement counterpart, the Police Data Protection Directive. The remaining of the article focuses on the ‘ FIU.net ’ – the decentralized network for information exchanges between EU FIUs – and on the data protection challenges that emerged from the recent integration of this network into Europol.
Blockchain is a revolutionary technology that enables the secure recording and storage of transactions without the need for a trusted third-party intermediary. This distributed ledger technology has the potential to mainstream entirely new, decentralized business models where determining the operation of a blockchain-based product or service is decided democratically among the systems users. Because of the way that it works, blockchain presents a significant challenge for the European Union’s General Data Protection Regulation (GDPR). The GDPR is the leading privacy law in the world, serving as a template for privacy laws in many countries and affecting a vast number of multinational organizations. Blockchain, unfortunately, fits rather poorly in the GDPR’s regulatory framework. This is primarily because the legislation makes the assumption that the entities that define the means and purpose of processing users’ personal data, that is, the Data Controllers, are readily identifiable and remain constant. In blockchains with decentralized data governance, where a user’s role can vary over time, this assumption is often false. Several commissions in the European Union have tried to tackle the conundrum of how to fit blockchain into the GDPR’s framework, but the analysis and recommendations of these bodies has failed to adequately resolve the conflicts. This Article is the first to provide an overview of blockchain technology that distinguishes between the variety of centralized and decentralized data governance models. To bring about the truly revolutionary applications of blockchain while ensuring adequate individual personal data protections, this Article proposes that the European Union eliminate untenable GDPR data controller obligations for blockchains with decentralized data governance models.
현재 우리나라는 국가영토의 협소성, 경찰력의 분산으로 인한 광역경찰기능의 약화, 일사분란하게 움직여야 하는 경찰조직의 특성, 경찰 위계질서의 해이, 지역 간 경찰력의 질적 수준 불균형, 지자체의 낮은 재정자립도 등을 이유로 자치경찰제를 도입하지 않고, 경찰청장부터 지구대 순경까지 연결되는 가장 강력한 중앙집권적 국가경찰제도를 유지하고 있다. 이에 수직적인 경찰조직의 지휘체계를 변경하여 인사·예산권 등을 지방자치단체에 이양함으로써 중앙에 집중된 경찰 행정권을 지방에 분권하고 지역별 특성에 맞는 민생치안을 확립하여 봉사하는 경찰상을 구현하겠다는 것이 자치경찰제의 도입배경이다. 즉, 선진국 경찰처럼 지역주민과 함께 하는 주민중심 또는 봉사중심의 고객지향적 치안서비스를 제공함과 동시에 경찰에 대한 주민통제를 강화함으로써 과도한 중앙집권적 국가경찰제도의 폐해를 제거하자는 것이다. 나아가 실효적인 자치경찰제도가 시행되면, 주민의 참여로 주민의 의사가 경찰운영에 적극 반영하고, 주민이 경찰활동을 감시·통제할 수 있게 되어 권한 남용이 줄어들 수밖에 없다는 것이다. 이에 우리나라의 현행 경찰법 및 관련 법률도 모두 전면적인 자치경찰제의 도입을 전제로 규정되어 있다. 다만, 자치경찰제의 실시로 자치단체에 속한 자치경찰이 일부 사법경찰관의 업무를 수행하게 된다는 가정 하에, 자치경찰의 수사업무는 중앙정부소속인 검사로부터 독립하여 자치단체가 독자적으로 처리하고, 검사의 수사지휘를 받을 필요가 없다는 주장은 시·도·자치구 등 지방자치단체 소속인 특별사법경찰관도 검사가 아닌 시장이나 구청장 등 지방자치단체장의 지휘를 받아야 한다는 주장과 다름 아닌 것이라 할 것이다. 위에서 이미 살핀 바와 같이 우리나라의 법체계상 사법업무는 본질적으로 국가사무일 수밖에 없고, 특히, 공소의 주체와 수사주체의 연결은 필수불가결하고, 검찰제도가 존재하는 이상 경찰수사는 자치경찰의 경우에도 “국가사무를 기관 위임받은 것”으로 보아야 하고, 따라서 검사의 수사지휘를 받아야 하는 것이다. 오히려, 자치경찰제도가 도입된다면 법집행의 형평성, 통일성을 기하고 인권보장을 담보하기 위하여 범죄수사에 관한 전국적으로 공정하고 통일적인 형사사법을 실현하기 위하여 검사의 수사지휘권은 더욱 강화되어야 할 필요성이 있다.Currently, the nation maintains the strongest centralized police system linking the police chief to the district police, citing the narrowness of the national territory, the weakening of the police function caused by the dispersion of police forces, the nature of police organizations that must move in a hurry, the lax police order, the imbalance in the quality of police forces between regions, and the low level of local autonomy. The background of the introduction of the local police system is that by changing the vertical police organization s command system and transferring personnel and budget rights to local governments, the central police administration authority will be decentralized to the provinces and the police officers who serve the people s livelihood by establishing measures suitable for the characteristics of each region. In other words, it is to eliminate the evils of the excessive centralized national police system by providing residents-oriented or service-oriented customer-oriented security services with local residents like police in advanced countries, while strengthening resident control over the police. Furthermore, if the effective self-governing police system is implemented, the residents doctors will be able to actively reflect on police operations and the residents will be able to monitor and control police activities, thereby reducing abuse of authority. The nation s current police law and related laws are all stipulated on the premise of the introduction of a full-scale self-governing police. Assuming that the implementation of the local police system would result in the operation of some law enforcement officers in the local autonomous community, it would be no different from claiming that the district police s manual work should be handled independently by the central government prosecutors, and that the special judicial police officers belonging to the local governments, such as the city and provincial governments, should be under the direction of the mayor or district heads. As we have already looked at above, the legal work of our country has to be essentially a state affairs, and especially since the connection of the prosecution with the investigation body is indispensable, and since the prosecution system exists, the police investigation should be regarded as a commissioned agency by the local police, and therefore should be directed by the prosecutor. Rather, if the self-governing police system is introduced, it is necessary to further strengthen the investigative command of prosecutors in order to realize a fair and unified criminal law concerning criminal investigations nationwide to ensure the fairness and unity of law enforcement and to guarantee human rights.
This article aims to clarify the meaning and operation of the rules governing the burden of proof in discrimination cases under EU law. In addition to the text of the antidiscrimination directives, it looks at the guidelines provided by the Court of Justice of the European Union and at the application of these rules at the domestic level, focusing on three Member States: Belgium, France and Ireland. Section 1 describes the basic operation of the burden of proof provision, clarifies the respective obligations it entails for claimants and respondents and highlights differences resulting from whether direct or indirect discrimination is at stake. Section 2 considers in more detail the means of evidence that can be used to establish discrimination, with particular emphasis on statistics and situation testing. Section examines the issue of complainants' access to information held by the alleged discriminator and Section 4 offers conclusions.
Thomas Buocz, Tina Ehrke-Rabel, Elisabeth Hödl, Iris Eisenberger
This article uses the example of the cryptocurrency Bitcoin and the General Data Protection Regulation (GDPR) to show how distributed networks challenge existing legal mechanisms of allocating responsibility. The Bitcoin network stores personal data by automated means. Furthermore, full nodes qualify as establishments and the network offers a service to citizens in the EU. The data processing within the Bitcoin network therefore falls into the material and territorial scope of the GDPR. To protect data subjects, the GDPR allocates responsibility to the controller, who determines the ‘how’ and the ‘why’ of the data processing. However, the distributed structure of the Bitcoin network blurs the lines between actors who are responsible and actors who are worth protecting. Neither the Bitcoin users running lightweight nodes or full nodes nor the miners determine the ‘how’ and the ‘why’ of the data processing. They carry out their network activities according to the Bitcoin protocol, which can only be adopted and enforced by a collective of full nodes and miners. Members of this collective are joint controllers under Article 26 GDPR, which obliges them to clearly and transparently determine their respective responsibilities for compliance with the GDPR. However, this mechanism fails because of the very structure it aims to eliminate. Therefore, a solution to allocating responsibility for data protection in distributed networks lies outside the GDPR.
Abstract: Recent publications on the data protection aspects of blockchain technology focus on the characteristics of the initial public (Bitcoin) blockchain, and do so in a generalized manner. The authors then conclude that the characteristics of a public blockchain are profoundly incompatible at a conceptual level with the principles of the EU General Data Protection Regulation (GDPR). The GDPR requires identification of a central ‘controller’ who is responsible for compliance with the GDPR, while a public blockchain decentralizes the storage and processing of personal data, as a result whereof there is no such central point of control. For lack of a better alternative, the authors conclude that all ‘nodes’ involved in operating a blockchain qualify as a controller under the GDPR, raising enforcement and jurisdictional issues that make it impossible for individuals to enforce their rights. The transparency and immutability of a public blockchain would further not sit well with principles of data confidentiality, data minimization, data accuracy and the rights of individuals to correction and deletion of their data. I disagree with the analysis of these authors for a host of different reasons, the main one being that the authors focus on the shortcomings of the initial public (Bitcoin) blockchain when already many new types of permissioned private and consortium blockchain have been developed that significantly diverge from the original, permissionless public blockchain. In fact, these types of permissioned blockchain have been developed in response to the shortcomings of public blockchain. The authors further consider the data processing implications of blockchain as if this technology constitutes in itself a data processing activity for which a controller has to be identified. Controllership is, however, decided based on a specific use or deployment of a certain technology. Blockchain, like the internet, is a general-purpose technology that is subsequently deployed by actors for a certain purpose in a specific context. Applying the question of controllership to the internet at large would pose similar data protection issues under the GDPR as identified by the authors in respect of blockchain. This publication explains why none of these issues are currently hampering application of the GDPR to the internet and are equally unlikely to pose issues for blockchain applications. This publication describes the issues in their broader context, as well as how each of these issues can be addressed to ensure compliance with the GDPR. The conclusion is that the GDPR is also well able to regulate this new technology. This does not, however, mean that blockchain will thus be suitable for all use and deployment cases.
The present work deals with the inter relationships of blockchain technology and the new European General Data Protection Regulation, that will be intact after May 28th, 2018. The regulation harmonises personal data protection across the European Union and aims to return the ownership of personal data to the individual. This thesis, therefore, addresses the question how this new technology that is characterised by decentralisation, immutability and truly digitised values will be affected by the strict privacy regulation and vice versa. The aim of this work is to clarify whether blockchains can comply with the new regulation on the one hand and to identify how blockchain could support its compliance, on the other hand. The questions are validated through an extensive literature review and are further investigated by using a Delphi study that asks a panel of 25 renowned experts to find opportunities, limitations and general suggestions about both topics. In addition, a framework is proposed to support the assessment of privacy and related risks of blockchains. As a result, it becomes apparent that blockchains can become more privacy friendly and comply with the regulation if an active dialogue between blockchain developers and regulatory authorities helps to strengthen their mutual understanding and work. With the support of this work and the blockchain Privacy Impact Assessment canvas a foundation for the necessary next steps is laid to overcome the challenges of defining a data controller or deleting personal data within a blockchain.