The Digital Single Market and TRUESSEC.eu ^
In 2015 the European Commission declared the creation of the Digital Single Market one of its main priorities. The Commission announced several legislative actions, ranging from the reform of communications infrastructure regulation to a new copyright framework in order to achieve the Digital Single Market.1 According to the Communication a functioning Digital Single Market should enable the capitalization of the opportunities presented by digital technologies, foster growth, innovation and jobs as well as offer a high level of consumer and personal data protection.2 The strategy emphasized trust and trustworthiness as key for reaching that goal: A functioning Digital Single Market requires trustworthy infrastructure and content services, the building of consumer trust in case of cross-border e-commerce rules, and the reinforcement of trust in digital services and in the handling of personal data processing.3
Mapping of the ICT Union legal framework ^
In order to understand the requirements the Union`s legal framework sets for the ICT sector and thus for the Digital Single Market the first step of the analysis was to map out the secondary legal acts that are relevant for the ICT sector.6 Even though the argument can be made that since our lives are more and more permeated by information technology, so is the law,7 and thus every attempt at a classification for an ICT legal framework is an exercise in futility. Nevertheless, because such an approach is not useful in the context of research, an attempt has been made to classify and quantify the relevant core legislation of the cross sectional matter8 called ICT law.
Analysis of the ICT Union legal framework ^
One of the main findings is the vastness of this framework: As of writing there are seventy-two distinct legislative acts currently in force regulating differing areas relevant for ICT, such as data protection, telecommunications regulation or electronic payment.10 Over 69,44% of these legal acts take the form of Directives meaning that for each of those fifty Directives another twenty-eight national legislative acts are necessary. This amounts to the astounding number of 1'400 different transposing legislations relevant for the ICT sector.
Though there is little to no possibility that any legal subject in the Union is in danger of having to comply with all of these acts concurrently, these numbers illustrate the complexities and difficulties this legal landscape presents to actors in the Digital Single Market.
European Values and Fundamental Rights in the Legal Framework of the Digital Single Market ^
The single most mentioned right is Article 8, the right to protection of personal data, with eighteen separate legal acts referencing it. It is very often mentioned together with a related right, namely Article 7, the right to respect for private and family life, which was referenced in seventeen legal acts. EU legislators acknowledged the freedom of expression and information as laid down in Article 11 CFR ten separate times. This is closely followed by nine references to the right to effective remedy and to a fair trial as laid down in Article 47 CFR. Two closely related rights, the right to property of Article 17 CFR, and the right to conduct a business as laid down in Article 16 CFR, are acknowledged in seven and six separate legislative acts respectively.
|CFR fundamental right||Number of references|
|Art 8 – Protection of personal data||18|
|Art. 7 – Respect for private and family life||17|
|Art. 11- Freedom of expression and information||10|
|Art. 47 – Right to an effective remedy and to a fair trial||9|
|Art. 17 – Right to property||7|
|Art. 16 – Freedom to conduct a business||6|
|Art. 21 – Non-discrimination||4|
|Art 38 – Consumer protection||4|
|Art. 48 – Presumption of innocence and right of defence||4|
Table 2: Overview over most referenced CFR fundamental rights in secondary Union legislation
- 1 See European commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee to the Regions. A Digital Single Market Strategy for Europe, COM(2015) 192 final, p. 3.
- 2 Ibid. p. 2.
- 3 Ibid. pp. 3, 4, 12.
- 4 The project was presented at IRIS 2017, for a general introduction see Griesbacher/Staudegger/Stelzer, SSH in ICT using the example of TRUESSEC.eu, in: Schweighofer/Kummer/Hötzendorfer/Sorge (Eds.), Trends and Communities of Legal Informatics. Proceedings of the 20th International Legal Informatics Symposium IRIS 2017, OCG Verlag, Wien 2017, p. 469.
- 5 These findings will be published shortly under Gibello, Deliverable D4.1. Legal Analysis, www.truessec.eu. (all websites accessed on 7 January 2017).
- 6 These findings will be published shortly. All numbers being presented are taken from: Beimrohr, Annex to Deliverable D4.1. Overview over the Legal ICT-Framework, www.truessec.eu.
- 7 See Weber, IT-Recht – Bausteine einer neuen Disziplin, in: Schweighofer/Kummer/Hötzendorfer/Sorge (Eds.), Trends and Communities of Legal Informatics. Proceedings of the 20th International Legal Informatics Symposium IRIS 2017, OCG Verlag, Wien 2017, p. 77 (p. 80).
- 8 Ibid. p. 82.
- 9 European commission, A Digital Single Market Strategy for Europe, p. 4.
- 10 Not included is legislation which only consists of amending provisions.
- 11 See Directive 2001/83/EC (Directive on advertising medicinal products), OJ L 311/67, 28 November 2001; Directive 2003/33/EC (Directive on Tobacco Products Advertising), OJ L 152/16, 20 June 2003; Regulation EC/1924/2006 (Regulation on health claims made on foods), OJ L 404/9, 30 December 2006.
- 12 Directive 95/46/EC (Directive on data protection), OJ L 281/31, 23 November 1995; Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications), COM/2017/010 final – 2017/03 (COD).
- 13 The president of the European Commission declared it priority number four in his 2017 state of the Union address; see Juncker, President Jean-Claude Juncker’s State of the Union Address 2017, http://europa.eu/rapid/press-release_SPEECH-17-3165_en.htm, 2017.
- 14 European Union, The EU in brief, https://europa.eu/european-union/about-eu/eu-in-brief_en.
- 15 See ECJ, Opinion of the Court (Full Court) of 18 December 2014, http://curia.europa.eu/juris/document/document.jsf?text=&docid=160882&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=758846.
- 16 european commission, EU Charter of Fundamental Rights, http://ec.europa.eu/justice/fundamental-rights/charter/index_en.htm.
- 17 These are in order: Art. 1 – Human dignity; Art. 3 – Right to the integrity of the person; Art. 7 – Respect for private and family life; Art 8 – Protection of personal data; Art. 10 – Freedom of thought, conscience and religion; Art. 11 – Freedom of expression and information; Art. 15 – Freedom to choose an occupation and right to engage in work; Art. 16 – Freedom to conduct a business; Art. 17 – Right to property; Art. 21 – Non-discrimination; Art. 22 – Cultural, religious and linguistic diversity; Art. 24 – The rights of the child; Art. 28 – Right of collective bargaining and action; Art. 35 – Health care; Art. 37 – Environmental protection; Art. 38 – Consumer protection; Art. 41 – Right to good administration; Art. 42 – Right of access to documents; Art. 47 – Right to an effective remedy and to a fair trial; Art. 48 – Presumption of innocence and right of defence; Art. 49 – Principles of legality and proportionality of criminal offences and penalties; Art. 50 – Right not to be tried or punished twice in criminal proceedings for the same criminal offence.
- 18 See Recital 2 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145/43, 31 May 2001.