Yesterday morning I attended a meeting in Brussels held under the auspices of the Community of Practice for better self- and co-regulation. It was an interesting and very useful event.
The importance of “impact assessments” was mentioned many times during the meeting. They have been part of the EU canon for many years.
In the discussion following the first presentation I pointed out that, in relation to the recently adopted GDPR, the Commission had not carried out an impact assessment concerning its proposal to make 13 the EU-wide minimum age at which young people could decide for themselves whether or not to join an online service such as Facebook.
Responding to me a Commission official said I was wrong because in their initial consultation document it had been noted that 13 was already in widespread use. What can I say? If that is an impact assessment I will eat President Juncker’s hat.
A digital single market with four choices
I further remarked that in the several years during which the GDPR was being consulted on and debated at no stage did anyone mention the possibility that we could end up with what was finally agreed – a menu of minimum ages stretching from 16 (the default) to 13. If only to state the completely obvious: how can this be reconciled with the EU’s avowed aim of creating a Digital Single Market?
Has the EU broken its own rules?
Thus, in reaching the decision it did in the way that it did, is it possible the EU has abandoned one of its own rules? Might this have legal consequences? In general in the democratic world public bodies are required to abide by their own rules and failure to do so can lead to a decision being invalidated. Could this be the case here? Seemingly that is open to doubt because the “culprits” in this case were the legislative body itself and the Council of Ministers. They did the dastardly deed behind closed doors in the Trialogue.
Even if, on this (important) technicality, the decision cannot be challenged (and I am not certain that is the case) it most definitely highlights a scandalous state of affairs. Any and every consultation of a similar kind in future will have to come with a health warning:
Please be aware that at the end of the day you may be wasting your time taking part in this consultation because we can do whatever we like, up to and including introducing wholly new propositions that you will only learn about after the consultation is over.
We’re in listening mode
More generally Commission officials emphasised how, in the new arrangements which are emerging post-GDPR, everyone in the relevant European Institutions would be “listening” to what the private sector and civil society organizations had to say in relation to how the self and co-regulatory environment ought to be constructed and operate.
I suggested the idea of “listening” implied some sort of conversation was taking place. This in turn assumed the parties had a shared understanding of what they were meant to be talking about. That does not square with the possibility that something completely different can emerge after the talking is supposed to have finished.
The “S” word make an appearance
The same Commission official I referred to earlier added a new twist when he went on to say that the 16-14 idea was in line with the principles of subsidiarity, the implication being it would allow each country to choose an option that was aligned with their pre-existing laws or norms.
That is the first time I have heard anyone use the “s” word” in this context. I will come back to that in a minute.
But anyway the official was not right. None of the options provided for in the GDPR are aligned, for example, with the existing law or practice in the UK and Italy and they may not be aligned with the law or practice in other EU countries. We just don’t know because no impact assessment was carried out and published. Er… we’ve already been there.
Here is a thought which has occurred to me since: suppose the Commission had carried out and published an impact assessment in respect of 13. Might that have acted as a constraint when, in the Trialogue, other non-impact assessed alternatives started to be advanced? At the very least it should have been a reminder of how the decision-makers were meant to behave when making such a huge decision.
I have long thought that the issue of subsidiarity and children is one that we ought to debate in a very direct and explicit way.
When it comes to the care of children and young people how many governments of nation states will openly acknowledge or willingly agree that decisions about them can be freely taken by foreigners or agencies outwith their own national borders? That probably sounds a bit blunt but that is the underlying reality and is what was being hinted at the by the official who mentioned subsidiarity.
How are we going to deal with that? Where are the boundaries within which international standards will be easily accepted and outside of which they will not be or will be only with great difficulty? Where does COPPA stand in relation to this perilous perimeter?
At the same meeting there were two other presentations, one of which looks like a model of how to go about things, while the other didn’t.
Audio Visual Media Directive
The one that impressed concerned the Audio Visual Media Directive where a research company has been hired to set out, inter alia, what the state of play is in terms of the protection of minors and media content in all 28 EU Member States. Bravo.
The parcels delivery service
The other presentation came from a Commission official who is charged with removing obstacles to the smooth and economic delivery of parcels across national borders. It was absolutely fascinating and I got the importance of this work straight away.
However, during Q&A I asked what consideration was being given to the issues raised where different countries had different legal standards in terms of what children could and could not buy on their own account? If every EU Member state had the same rules governing the age at which someone can purchase alcohol, tobacco, weapons, fireworks and such like things would be simpler but they don’t. Here is his answer:
“None. Or rather none that I know of.” No one else in the room knew either.