TOPICS

Topic 1: National Courts and the Enforcement of EU Law

– the pivotal role of national courts in the EU legal order

In 1963, participants of the FIDE Congress in The Hague discussed the question whether “the Ignorance of Community Rules Directly Applicable to Undertakings” would create a right to civil damages. The European Court of Justice in Francovic provided an answer in the affirmative, whilst leaving it to the Member States to apply the principle of state liability subject to the requirements of equivalence and effectiveness.

In line with Article 19(1) TEU, national courts play a pivotal role in ensuring the enforcement and effectiveness of EU law. They ensure that effective judicial protection is guaranteed as warranted by Article 47 of the Charter of Fundamental Rights. Their independence and well-functioning is key to mutual trust that underlies the cooperation in justice and home affairs.

This topic invites national rapporteurs to critically reflect on the role their national judiciary plays in the enforcement of EU law, including from a procedural point of view.

Among the questions to be discussed:

  • Do Courts raise EU law out of their own motion?
  • What is the intensity of judicial review?
  • How do Courts apply the preliminary ruling procedure and the CIFLIT-doctrine?
  • Is there a distinction in the way in which EU law is applied depending on jurisdiction (criminal, civil, administrative) or level of the judiciary (lower and higher Courts, Supreme and or Constitutional Courts)?
  • How do Courts apply the obligation to recognise and enforce decisions of the counterparts in other Member States?
  • What is the significance of national judgments on EU law for the EU legal order?


Topic 2: Data Protection

– setting global standards for the right the personal data protection

In the midst of what has already been called the Fourth Industrial Revolution, the protection of personal data has taken on a renewed importance. One only needs to think of the public outcry in the wake of the Facebook/Cambrigde Analytica scandal to see the salience of this topic. With the entry into force in spring 2018 of a fully revised, comprehensive regime for data protection, aiming at a high level of data protection, the EU is setting the scene globally. Article 8 of the Charter of Fundamental Rights is unique amongst international human rights instruments in containing a right to the protection of personal data. The General Data Protection Regulation (Regulation 2016/679, GDPR) aims to strengthen this right. It adopts a risk based approach when assessing data protection operations and puts compliance at the centre of an organisation’s governance. It applies both to private parties and public bodies. It is accompanied by Directive 2016/680, which regulates to the processing of personal data in the field of police- and judicial authorities. A new Regulation on e-Privacy is still to be adopted.

FIDE 2020 will be an excellent opportunity for a first evaluation of the new data protection regime. As the new rules leave quite some room for Member State legislation, it will look examine the way in which the new regime has been integrated in the national legal orders and how potential conflicts of laws have been dealt with. It will also take stock of the application and interpretation by the European Court of Justice, national courts and the significantly reinforced national data protection authorities (DPAs). Finally, it will allow for an assessment of the institutional novelty of the European Data Protection Board, which will bring together national DPAs and may take decisions binding on the national authorities. The new EU data protection regime is a topic of great relevance for both academia and practice. It lends itself perfectly well for comparisons with other areas of EU law and raises a set of broader questions of EU law, amongst others in relation to the protection of fundamental rights, the enforcement of EU law, the safeguarding of Member States’ national interests and the external dimension of EU law.

Among the subjects to be discussed:

  • The relation with other fundamental rights, such as freedom of expression.
  • The effective enforcement of the GDPR on a national- and on a European level, including representative and competing regulatory approaches.
  • The application of existing and new data subject rights, including the prohibition on automated decision making and the right to data portability.
  • The interaction with other domains of law, such as intellectual property law, competition law and consumer law, (national) administrative law.
  • How to balance personal data protection with digital innovation?
  • The transfer of personal data to third countries.


Topic 3: EU competition law and the digital economy

– protecting free and fair competition in an age of technological (r)evolution)

The digital economy is a hot topic for competition authorities these days and likely to remain so in the near future. In the digital economy, digitalization has brought profound changes to many industries. Fundamentally new business models have emerged: search engines, price comparison websites, social (media) networks. Many business models of the sharing economy would not be feasible without digitalization. We also see that digital business models often operate as platforms or networks. Data volumes handled via these platforms are constantly increasing and the possibility to collect and analyze user data therefore plays a much more significant role in these markets than in traditional markets. These changes and the emergence of these platforms and networks creates challenges for competition and for competition authorities.

This topic focuses on the question whether EU competition law and the relevant national rules are fit for this digital future. This topic invites national rapporteurs to critically reflect on the question whether the digital economy requires special treatment by competition lawmakers and regulators.

Among the questions to be discussed:

  • What are the challenges for competition law enforcement due to the rising use of search and pricing algorithms in the digital economy?
  • Competition authorities are now focusing on a narrower set of concerns arising from digitalization – especially the collection and use of data on a massive scale by data-related businesses. What are the challenges for competition law enforcement in this regard?
  • Is there need to focus (also) on the broader set of social and economic issues arising from the digitalization? If so, is competition law and its instruments well equipped to deal with these issues?
  • Many digital markets show high levels of concentration and are dominated by a few big players. If the competition law instruments are used more pro-actively to rein in the market power of the platforms and networks, precisely what power should be reined in?
  • Is there a need to rethink the balance between ex ante regulation and ex post interventions by authorities in the digital economy?