Enhancing Cross-Border Access to Electronic Information in Criminal Proceedings: Towards a new E-Evidence legal framework in the EU

Photo by Christian Lue on Unsplash

Dr Oriola Sallavaci, Senior Lecturer in Law, University of Essex

In recent years cross-border exchange of electronic information has become increasingly important to enable criminal investigations and prosecutions. As I have discussed in depth in my study “Rethinking Criminal Justice in Cyberspace: The EU E-evidence framework as a new model of cross-border cooperation in criminal matters” the use of technology has transformed the nature of crime and evidence leading to ‘crime without borders’ and ‘globalisation of evidence’. An increasing number of criminal investigations rely on e-evidence and this goes beyond cyber-dependent and cyber-enabled crimes. From an evidential point of view, today almost every crime could have an e-evidence element as often offenders use technology, such as personal computers, notepads, and camera phones, where they leave traces of their criminal activity, communications or other pieces of information that can be used to determine their whereabouts, plans or connection to a particular criminal activity. 

Crime today often has a cyber component and with it an increasingly prominent cross border dimension because electronic information to be used for investigative or evidentiary purposes is frequently stored outside of the investigating State. The borderless nature of cyberspace, the sophistication of the technologies and offenders’ modii operandi pose specific and novel challenges for crime investigation and prosecution that, in practice, may lead to impunity.  In 2018 the European Commission found that in the EU “more than half of all investigations involve a cross-border request to access [electronic] evidence.” Yet, alarmingly, “almost two thirds of crimes involving cross-border access to e-evidence cannot be effectively investigated or prosecuted”. Challenges to accessibility relate inter alia to the volatility of e-information, availability and the location of data, as well as the legislative barriers and shortcomings that must be overcome to enhance cross-border access to electronic evidence and the effectiveness of public-private cooperation through facilitated information exchange.

Cross border access to e-information is currently conducted through traditional judicial cooperation channels and requests are often addressed to specific states which are hosts to many service providers (SP). In the EU these include Mutual Legal Assistance requests and European Investigation Orders according to Directive 2014/41/EU which provides for the acquisition, access and production of evidence in one Member State (MS) for criminal investigations and proceedings in another Member State.  The nature of the existing judicial cooperation instruments, actors and procedures involved, and the ever-increasing number of requests have resulted in delays and inefficiencies, posing specific problems for investigations and prosecutions that are exacerbated by the volatility of electronic information.

In the EU, there is no harmonised framework for law enforcement cooperation with service providers. In recent years, Member States have increasingly relied on voluntary direct cooperation channels with service providers, applying different national tools, conditions and procedures. Service providers may accept direct requests from LEAs for non-content data as permitted by their applicable domestic law. However, the fragmented legal framework creates challenges for law enforcement, judicial authorities and service providers seeking to comply with legal requests, as they are increasingly faced with legal uncertainty and, potentially, conflicts of law.

Cross border access to electronic information requires legal instruments that are capable of efficiently supporting criminal investigations and prosecutions and that, at the same time, have in place adequate conditions and safeguards that ensure full compliance with fundamental rights and principles recognised in Article 6 of the Treaty on European Union, the EU Charter of Fundamental Rights and the European Convention on Human Rights, in particular the principles of necessity, legality and proportionality, due process, protection of privacy and personal data, confidentiality of communications, the right to an effective remedy and to a fair trial, the presumption of innocence and procedural rights of defence, as well as the right not to be tried or punished twice in criminal proceedings for the same criminal offence.

In order to achieve these objectives and overcome difficulties present in the existing mechanisms of cross-border cooperation, in April 2018 the EU Commission proposed an important legislative package referred to as “E-evidence”, aimed at facilitating the access to e- evidence by European law enforcement agencies (LEAs). The framework contains two legislative measures: a Regulation which provides two new mechanisms for LEA’s cross border access to e-evidence: European Production Order and European Preservation Order which are to be addressed directly by LEAs of the issuing MS to a service provider, and a  Directive which requires every online service provider “established” in or that has “substantial connection” to at least one EU Member State to appoint a legal representative in the territory of an EU MS of choice as an addressee for the execution of the above Orders.

On 7 December 2018 the Council adopted its own draft (known as Council’s “general approach”) and after two years of delays caused partially from the EU parliamentary elections and the Covid-19 pandemic, on 11 December 2020 The EU Parliament adopted its position. On 10 February 2021 the ‘trilogue’ procedures amid the EU Parliament, the Council, and the Commission started in order to agree to a common text. In the study cited above, I have analysed in depth the key legal provisions contained in the Commission’s proposal, the Council’s draft and the report of the LIBE’s rapporteur Birgit Sippel, presented to the EU Parliament in 2020. Considering that the E-evidence framework is currently being negotiated, the study’s analysis and findings aim to contribute to achieving the best version of the forthcoming instruments.

The EU E-evidence framework is of particular importance in shaping the future of similar instruments and the terms of cooperation between countries all over the world. To a certain extent, it follows the US CLOUD Act 2018 that in itself marks a major change in how cross-border access to e-evidence may develop in the rest of the world. The EU E-evidence framework shall influence and at the same time needs to conform to a number of new agreements currently being negotiated. In 2019 the EU Commission received a negotiating mandate to achieve an agreement between the EU and US, as well as to shape the second amending protocol of the Cybercrime Convention (CCC). Both these instruments need be negotiated from the perspective of the forthcoming E-evidence framework, therefore it is important that the latter offers provisions that increase the efficiency of investigations and prosecutions by surpassing challenges in cross-border cooperation, while maintaining safeguards to fundamental rights of individuals.

The E-Evidence legislative package lays down the rules under which, in a criminal proceeding, a competent judicial authority in the European Union may directly order a service provider offering services in the Union to produce or preserve electronic information that may serve as evidence through a European Production or Preservation Order. This framework will be applicable in all cross-border cases where the service provider has its main establishment or is legally represented in another Member State. The framework aims to complement the existing EU law and to clarify the rules of the cooperation between law enforcement, judicial authorities and service providers in the field of electronic information.  The new measures for cross border access to e-evidence will not supersede European Investigation Orders under Directive 2014/41/EU or Mutual Legal Assistance procedures to obtain electronic information. Member States’ authorities are expected to choose the tool most adapted to their situation. However, authorities of the Member States will be allowed to issue domestic orders with extraterritorial effects for the production or preservation of electronic information that could be requested on the basis of the e -evidence Framework.

Despite expected improvements in the efficiency of investigations and prosecutions by simplifying and speeding up the procedures, the necessity of having a new legal framework to organize cross-border access to electronic evidence has been questioned.  The proposed e-evidence framework is perceived as adding another layer to the already complex tableau of existing, multiple channels for data access and transnational cooperation.   While alternative approaches have been considered and could have been taken by the Commission, as I have argued in depth elsewhere, a specific framework dedicated to improving access to e-evidence is more suitable to help achieve that goal than amendments to existing procedures and instruments that are general in scope and do not provide for the specific e-information  related challenges. Procedural improvements to existing cross border cooperation instruments are necessary, but not by themselves sufficient to overcome the present difficulties and inefficiencies. It is not possible to adequately respond to novel challenges with old mechanisms embedded in lengthy procedures and bureaucratic complexities. The answer is to provide adequate safeguards that protect fundamental rights and the interests of all stakeholders, suited to the new type of instruments created by the e-evidence framework, albeit not identical to the ones found in existing mechanisms of transnational cooperation.

The E-evidence model builds upon the existing models of cooperation yet is fundamentally different. The extraterritorial dimension of the framework affects the traditional concept of territorial sovereignty and jurisdiction. It departs from the traditional rule of international cooperation that cross-border access to electronic information requires consent of the state where the data is stored.  Most importantly, jurisdiction is no longer linked to the location of data. According to the new approach, the jurisdiction of the EU and its MSs can be established over SPs offering their services in the Union and this requirement is met if the SP enables other persons in (at least) one MS to use its services and has a substantial connection to this MS.  In this way the framework avoids the difficulties in establishing the place where the data is stored and the “loss of location” problem. E-evidence framework is a clear example of the development of the concept of territorial jurisdiction in criminal law and the evolvement of connecting factors that establish it, in line with the requirements of legal certainty.

The extraterritorial reach of judicial and state authorities’ decisions in the E-evidence framework introduces a new dimension in mutual recognition, beyond the traditional judicial cooperation in the EU in criminal matters, so far based on procedures involving two judicial authorities in the issuing and executing State respectively. This important aspect of the e-evidence framework entails a fundamentally different approach that demonstrates the (need for) development of the EU law traditional concepts in order to respond to the new challenges with adequate mechanisms. From the perspective of the proposed e-evidence framework, the scope of article 82 (1) TFEU requires further clarification from CJEU or an amendment (albeit difficult). Reliant on the principle of mutual trust, the debates surrounding the e-evidence framework reveal that in today’s European reality this principle is still an objective to be achieved. For as long as disparities in the standards and protections provided by MSs still exist, the way forward should include innovative mechanisms that allow for the control, improvement and maintenance of those standards within each MS as opposed to fostering lack of trust, prejudicial treatment and unjustifiable differentiation between MSs within the EU.

The e-evidence framework generally achieves what it sets out to do: i.e. to increase the effectiveness of cross-border access to e-evidence. The application of the same rules and procedures for access to all SPs will improve legal certainty and clarity both for SPs and LEAs which is currently lacking under the existing mechanisms of cooperation. In several aspects the framework serves as a model to be followed in the international arena. However, further improvements can be recommended:

  • There should be only an exceptional involvement of the enforcing MS as proposed by the Council, so that the framework does not replicate the existing judicial cooperation models.
  • The wording of Article 7a in the Council draft could be amended to allow for the enforcing MS to raise objections on behalf of any affected state.
  • Service Providers should maintain their reviewing powers of production and preservation orders, given the unique position they are in to understand the data. A productive dialogue and close cooperation between SPs and the issuing authorities should be promoted in the earliest stages.
  • The framework should specify the definition of e-evidence and should provide for its inadmissibility in cases of breaches of the requirements specified therein.
  • The data categories need to be better defined and brought in line with other EU and international legal instruments, as well as the jurisprudence of CJEU and ECtHR. The draft presented by EU Parliament is a positive step in that direction.
  • Judicial validation of orders issued by non-judicial authorities should be imperative for all types of data as a form of control and safeguard against abuse or overuse.
  • A classification of investigating authorities by means of a schedule in the proposed framework would help to better define the permitted activities within the scope of the Regulation.
  • A provision that clearly prohibits the production or use of e-evidence in cases contrary to the ne bis in idem principle should be included in the final draft.
  • The final instrument should adopt the approach proposed by the Commission regarding confidentiality and subject notification with an obligation for the issuing authority to inform the person whose content or transactional data are sought in all cases (even though delays should be permitted).
  • The right to exercise legal remedies should be extended to the enforcing MS and/or the MS of residence of the suspect.
  • There should be provisions that enable defendants or other parties in the criminal proceedings to access or request e-evidence. The accessibility of electronic data to the suspects / defendant’s lawyer should be ensured in order to assert their rights effectively.

If implemented, these recommendations would improve the e-evidence framework by ensuring a balance between effective criminal investigations/prosecutions and respect for fundamental rights. A balanced and principled approach should be at the core of any existing or forthcoming instruments concerning cross-border access to electronic information.

Front-of-pack nutrition labelling in the EU: proposals for a mandatory EU-wide label

Dr Nikhil Gokani, Lecturer in Law, University of Essex.

The European Commission published its Farm-to-Fork Strategy on 20 May 2020. In this, the Commission declared that to ‘empower consumers to make informed, healthy and sustainable food choices’, the Commission will propose harmonised mandatory front-of-pack nutrition labelling (FoPNL) by the fourth quarter of 2022.

As part of these plans, the Commission published an inception impact assessment and published two initiative Roadmaps: “Food labelling – revision of rules on information provided to consumers” and “Facilitating healthier food choices – establishing nutrient profiles”. Feedback on these opened on 23rd December 2020 and will close on 3rd February 2021.

In this post, Dr Nikhil Gokani, whose research explores the regulation of FoPNL, which was also the topic of his PhD, briefly sets out his views on how the EU should proceed with the regulation of FoPNL. To further develop the understanding of the regulatory issues involved, and bearing in mind the Commission’s target for legislative proposals, Dr Gokani and Prof Amandine Garde (Law & Non-Communicable Diseases Unit, University of Liverpool) are organising a conference on FoPNL – to explore the national, EU and international regulatory issues – which is provisionally scheduled for September 2021.

Back-of-pack nutrition labelling (BoPNL) does not sufficiently contribute to informing consumers, promoting healthier diets or tackling the rise in overweight, obesity and diet-related non-communicable diseases.

Evidence is clear that consumers find BoPNL confusing. They do not perceive nor understand BoPNL well, and they are unable to use this type of labelling effectively to help them make healthier food purchasing and consumption decisions. This is particularly so for consumers of lower socioeconomic groups.

Interpretive front-of-pack nutrition labelling (FoPNL) is an evidence-based intervention to inform consumers, help them make healthier food purchasing and consumption decisions, whilst encouraging manufacturers to reformulate products to make them healthier.

Effectively presented FoPNL is better perceived relative to BoPNL. Surveys have shown high levels of use, and research on various FoPNL schemes has shown improved trolley outcomes. FoPNL has a statistically significant effect in steering consumers’ choices towards healthier products, whilst encouraging product reformulation.

Interpretive FoPNL has consistently been shown to be most effective in improving health-related understanding, reducing processing time and improving purchasing intentions, with simpler schemes generally being better understood.

The EU should introduce a mandatory, interpretive EU-wide FoPNL scheme.

EU law, as it stands, precludes Member States from adopting mandatory FoPNL at national level (Regulation No 1169/2011 on food information to consumers and Regulation No 1924/2006 on health and nutrition claims) and does not effectively promote the voluntary adoption of evidence-based FoPNL schemes.

To be most effective, FoPNL should be mandatory for all food products. Any exceptions should be limited and only permitted where there are clear evidence-based justifications. The introduction of a mandatory pan-EU FoPNL scheme in the EU would help ensure a high level of consumer protection and public health while improving the functioning of the internal market. Moreover, this would be consistent with the EU’s obligations to protect consumers and their health, and to comply with fundamental rights as mandated by the EU Treaties and the EU Charter.

FoPNL should be: developed in a transparent manner; based on effective stakeholder engagement with conflicts of interest managed; effective in improving outcomes for all population sub-groups; supported by well-resourced education campaigns; encourage product reformulation; permit the comparison of products within and between food categories; monitored and evaluated for effectiveness; and reviewed periodically.

The presentation of EU-wide FoPNL

The evidence base supports the introduction of a mandatory, interpretive pan-EU FoPNL scheme. Hence, the EU should not move forward with FoPNL option 0 (“Baseline” ie business as usual) nor FoPNL option 1 (“Nutrient-specific labels – numerical” eg NutrInform). With FoPNL option 3 (“endorsement logos” eg Keyhole), consumers tend to over-estimate the healthiness of products, and there is insufficient research on the effectiveness of this type of FoPNL. By contrast, research has shown that option 2 (colour coded eg Traffic Light Labelling) and option 4 (graded indicators eg Nutri-Score) are effective in meeting public health objectives of increasing salience, improving understanding and improving purchasing intention as well as actual purchasing decisions.

Relative to other schemes in use in the EU, Nutri-Score presents a number of advantages which favour its adoption across the EU. Firstly, Nutri-Score is widely supported by a broad range of stakeholders, including many public health organisations and consumers themselves. Secondly, Nutri-Score has been evaluated in several large-scale studies evaluating perception and comprehension in French populations. It has been shown to improve understanding and lead to better basket outcomes, particularly with consumers from more vulnerable populations. Thirdly, the scheme has been adopted by several Member States, which would facilitate its extension to other EU Member States.

The nutrient profiling model underlying EU-wide FoPNL

It is a prerequisite that the development of interpretive FoPNL is based on an evidence-based nutrient profiling model. This model should encourage consumption of fruit, vegetables and wholegrains and other health-promoting food categories and ingredients; and discourage the consumption of fat (especially trans and saturated fatty acids), sugar (especially free sugar) and salt. Smaller portion sizes, energy density, level of processing and artificiality of ingredients may also be reflected in the model. The model, and the way FoPNL displays the classification derived from the model, should permit meaningful comparisons in order to encourage healthier substitutions both within and between categories.  The model should classify food based on a scoring system which provides continuous gradations of healthiness of the food in order to encourage continuing reformulation. It should be based on uniform reference values (100g/ml)

Nutri-Score is based on a nutrient profiling model which was originally developed in the UK and was found to be largely consistent with French nutrition recommendations. A diet, which is consistent with recommendations derived from the model, was found to result in improved health markers amongst the population. There is evidence that the Nutri-Score nutrient profiling model would also be effective for diverse European populations.

However, the model would need to be altered to address certain criticisms. To this end, EFSA should be tasked with developing an objective, evidence-based model free from undue industry interference. Alternatively, noting the Commission’s failure to adopt nutrient profiling for the purposes of Article 4(1) of Regulation No 1924/2006, the development of this nutrient profiling should be tasked to a scientific committee of independent experts from across the EU.

In the absence of a mandatory pan-EU FoPNL scheme, the EU should not prohibit mandatory national schemes.

The controversies surrounding the adoption of Regulation 1169/2011 and Regulation 1924/2006 have shown that reaching consensus across Member States is likely to be extremely difficult. There is a real risk that, in the absence of sufficient political will, the EU may fail to adopt a single pan-EU mandatory FoPNL scheme. It is therefore important that the Impact Assessment anticipates these difficulties and contains an additional FoPNL option exploring the implications of a partial harmonisation scheme whereby EU law would permit Member States to introduce effective mandatory national schemes, as noted in the Presidency Conclusions on front-of-pack nutrition labelling, nutrient profiles and origin labelling of 15 December 2020.

The nutrient profiling model should also be used to regulate the use of health and nutrition claims more effectively, as mandated by Regulation No 1924/2006.

The controversies surrounding the adoption of Regulation 1169/2011 and Regulation 1924/2006 have shown that reaching consensus across Member States is likely to be extremely difficult. There is a real risk that, in the absence of sufficient political will, the EU may fail to adopt a single pan-EU mandatory FoPNL scheme. It is therefore important that the Impact Assessment anticipates these difficulties and contains an additional FoPNL option exploring the implications of a partial harmonisation scheme whereby EU law would permit Member States to introduce effective mandatory national schemes, as noted in the Presidency Conclusions on front-of-pack nutrition labelling, nutrient profiles and origin labelling of 15 December 2020.

The use of health and nutrition claims is a marketing tool intended to encourage consumers to purchase certain products. As claims lead to an increase in consumption and overall energy intake, it is important that they do not mislead consumers and, in particular, that they do not mask the overall nutrition profile of food products. Under Article 4 of Regulation No 1924/2006, the Commission should have adopted an EU-wide nutrient profiling model to restrict the use of food claims on unhealthy products by 19 January 2009. The Commission should finally fulfil this obligation as a priority to ensure that businesses operate within a level playing field and consumers are finally protected from the most misleading forms of commercial food information. It would be logical for FoPNL and food claims to be based on the same underlying nutrient profiling model.

The EU should extend mandatory back-of-pack and mandatory front-of-pack nutrition labelling to alcohol.

It is extremely concerning that alcoholic beverages containing more than 1.2% by volume of alcohol are exempt from the requirement of displaying a nutrition declaration. Even when such a declaration is provided on a voluntary basis, it can be limited to an energy-only declaration in a non-tabular format.

There is increasing evidence that there is a deficit in consumer knowledge and understanding of the nutritional content of alcoholic beverages and the consequences of their consumption. Moreover, consumers are interested in alcohol nutrition labelling across Member States. In any event, the exemption is illogical bearing in mind that EU consumer law, and the EU Alcohol Strategy of 2006 more specifically, aims to ‘provide information to consumers to make informed choices’.

What is Exploitation in the Context of ‘Modern Slavery’? A Legal Proposal

Exploitation in the context of ‘modern slavery’ is defined by three conditions: abuse of vulnerability, excessive gain, and sustained action.

Workers unload bricks from a boat in Bangladesh. Suvra Kanti Das/ Zuma Press/ PA Images

Dr. Marija Jovanovic, Lecturer in Law, University of Essex

Exploitation has been given a prominent place in the definition of ‘human trafficking’ found in the 2000 United Nations Palermo Protocol. It is identified as the specific aim of the crime of trafficking: all human trafficking is for the purpose of exploitation. But while the protocol lists some examples of exploitation, including slavery, servitude, or forced labour, it does not define the term itself. Nor do the numerous other international instruments that reference the term. And so, as Susan Marks has rightly wondered, we must ask ourselves: “When activists invoke international law to challenge exploitation, when lawyers advise on rights and duties regarding exploitation under international law, and when academics discuss the theme of exploitation in international legal writing, what is it that they have in mind?”

I recently proposed a tripartite definition of exploitation, which I argue underpins practices commonly referred to as ‘modern slavery’. While ‘modern slavery’ is not a legal category per se, I use it as an umbrella term for the practices of human trafficking, slavery, servitude, and forced or compulsory labour. These are jointly prohibited in many human rights instruments, either expressly, as in the EU Charter of Fundamental Rights or the Arab Charter on Human Rights, or implicitly, as in the case of the European Convention on Human Rights. Exploitation is a distinct harm that binds together practices captured by the human rights prohibition against ‘modern slavery’, which includes both actual manifestations of exploitation in the form of slavery, servitude, and forced or compulsory labour, and intended exploitation as part of human trafficking. The latter, if uninterrupted, always results in actual exploitation.

The three elements of my proposed definition are: “(a) abuse of vulnerability of an exploitee; (b) excessive (disproportionate) gain acquired through the actions of an exploitee; (c) sustained action (the practice takes place over a period of time)”. We will cover each element in turn below. Before we do that, however, I must first note that my proposed definition of exploitation applies only to practices of ‘modern slavery’ and represents the severity threshold for triggering important state obligations to protect victims under human rights law. Accordingly, while we may consider exploitation as a continuum, it is important to distinguish practices that trigger state obligations required by international human rights law from lesser forms of exploitation that warrant different types of action, or no action at all.

In other words, the proposed definition of exploitation sets “a threshold of seriousness, which operates to prevent the inclusion of less serious forms of exploitation into the concept of trafficking in persons, such as labour law infractions that may be anyway subject to another legal regime”. As such, the definition represents an important tool for both courts and individual victims in determining whether a state owes and has complied with its obligations arising out of human rights law. The absence of clear parameters for determining what counts as exploitation allows states to misclassify victims as ‘predatory economic migrants’, who willingly deploy the services of smugglers to bring them across international borders, or as ‘criminals’, who engage in unlawful activities such as cannabis cultivation or shoplifting.

The three pillars of exploitation that underpins ‘modern slavery’

Exploitation as a distinct harm that underpins all practices of ‘modern slavery’ rests on three cumulative conditions. These are discernible from philosophical debates and the jurisprudence of international and domestic courts, but they have never been expressly spelled out. These are: a) the abuse of vulnerability of an exploitee; b) excessive (disproportionate) gain acquired through the actions of an exploitee; and c) sustained action over a period of time. These three cumulative conditions provide a universal frame of reference for the notion of exploitation in relation to ‘modern slavery’, while allowing for a certain leeway to account for specific conditions in different countries. We will consider each in turn.

Abuse of Vulnerability. It is generally accepted that the abuse of a position of vulnerability is “central to any understanding of trafficking” and “the common feature of all forms of exploitation” contained in the human rights prohibition of slavery and forced labour. The United Nations Office On Drugs And Crime states in a background paper that human traffickers “prey on people who are poor, isolated and weak”. And the explanatory report to the Council of Europe’s anti-trafficking convention notes that:

The vulnerability may be of any kind, whether physical, psychological, emotional, family-related, social or economic. The situation might, for example, involve insecurity or illegality of the victim’s administrative status, economic dependence or fragile health. In short, the situation can be any state of hardship in which a human being is impelled to accept being exploited.

Explanatory Report to the CoE Convention on Action against Trafficking in Human Beings (Warsaw, 16 May 2005)

Importantly, it is the abuse of vulnerability, not vulnerability per se, that is a necessary condition for the notion of exploitation. It is considered that “one’s vulnerability is exploited if the other person uses this weakness to obtain agreement to, or at least acquiescence in, a course of action that one would not have accepted had there not been this asymmetry in power”.

Establishing that a person had no realistic alternative due to the abuse of vulnerability might seem a weighty task, but it is not unlike other matters domestic courts engage with on a daily basis when it comes to assessing factual circumstances. For example, the UK Court of Appeal addressed this question in a case concerning an Iraqi Kurdish woman. She appears to have voluntarily approached the smuggler to bring her to the UK but was allegedly coerced into having sex with him along the way. The court found that “while she may have been vulnerable, she had a real and acceptable alternative available to her (…) in the shape of making an asylum and human rights claim to the French authorities.” The extent to which domestic courts are sympathetic to the plight of victims and are willing to interpret this condition broadly is debatable, but this is something which can be evaluated.

Excessive Gain. The second element of my approach to exploitation is concerned with excessive gains. While an exploited person may sometimes ‘benefit’ from being exploited, whatever benefits might accrue will fall significantly short in terms of “what [they] might or ought to be” when judged from the standpoint of fairness, as the philosopher Robert Mayer put it. However, the nature of fairness is not necessarily straightforward. An entry in the Encyclopedia of Ethics notes, there may be “as many competing conceptions of exploitation as theories of what persons owe to each other by way of fair treatment”. Nonetheless, the philosopher Mikhail Valdman is likely right when he concludes that extracted benefits become unfair and excessive when “they deviate from the benefits we would expect A to receive were he transacting with someone who was rational, informed, and could reasonably refuse his offer”.

Thus, in addition to the abuse of vulnerability, exploitation is characterised by excess: a disproportionate gain at the expense of an exploited person. In all situations of exploitation an exploited person gives significantly more than she receives in return. Take, for example, a case before the European Court of Human Rights which considered allegations of servitude and forced or compulsory labour by two orphaned Burundi sisters, aged sixteen and ten. The court ruled that “the type and amount of work involved (…) help distinguish between ‘forced labour’ and a helping hand which can reasonably be expected of other family members or people sharing accommodation”.

Distinguishing between the situations of the two sisters, the court found that the older one was forced to work “so hard that without her aid Mr and Mrs M. would have had to employ and pay a professional housemaid”. The second sister, by contrast, was said not to have contributed “in any excessive measure to the upkeep of Mr and Mrs M.’s household”. It is clear that all circumstances of the case need to be taken into account when assessing whether actions required from an individual were disproportionate to the benefits she received in return. Like the assessment of ‘no realistic alternative’ for the element of abuse of vulnerability, this is a factual question which courts can determine.

Sustained Action. We have so far established two necessary conditions for an exploitation: first, that one extracts excessive benefits, and second, that these benefits are extracted from someone who is unable to reasonably refuse an offer or demand. The final element of my approach to exploitation is the idea of repetitiveness. Exploitation takes place (or is intended to) over a period of time. One-off situations may qualify as fraud or abuse, but exploitation in the context of ‘modern slavery’ involves sustained activity. This “indeterminate temporal nature” is said to be “one of the defining characteristics of the crime of slavery”. Similarly, inherent in the notion of servitude is a victim’s feeling that her condition is permanent and that the situation is unlikely to change. When it comes to the concept of forced labour, it is obvious that ‘labour’ implies work that stretches over a period of time – not a one-off transaction.

When these three elements are put together, we have a working legal definition of exploitation within the context of ‘modern slavery’: to exploit is to acquire disproportionate gains from the actions of an individual by abusing her position of vulnerability over a sustained period of time. All three cumulative conditions (abuse of vulnerability, excessive gain, and sustained action) are factual, which leaves room for domestic courts to use national parameters when interpreting potentially exploitative practices while preserving the universality of the definition itself.

In a seminal case by the Dutch Supreme Court concerning the exploitation of Chinese restaurant workers with irregular migration status in the Netherlands, the court held that “the wretchedness of the working conditions required to conclude that exploitation is an issue” was to be determined by using “the Dutch situation as the benchmark”.

This approach means that exploitation must be regarded as a relative concept. What one country understands as exploitation may not amount to exploitation in another country, with differences being especially pronounced along the North-South divide. Yet, such flexibility is both inevitable and appropriate. This is because divergent standards between states is far less problematic than unequal protection of individuals within one state, where characteristics such as one’s immigration status or type of employment are decisive in determining the extent of protection against exploitation one may enjoy. Virginia Mantouvalou shows how the immigration system and schemes leading to precarious employment conditions are conducive of exploitation of certain categories of individuals within the UK. Thus, while labour conditions are expected to differ between states, practice reveals that even within one country certain categories of individuals experience unequal treatment and lesser protection of their rights than other categories, regardless of whether a country in question belongs to the Global North or South.

Even though the proposed definition allows for some divergence between states when determining which practices count as exploitative, it mandates each state to provide equal treatment to all persons within their jurisdiction once the three conditions are met, irrespective of their immigration or employment status. As such, it represents a powerful tool in hands of individuals subject to exploitation and a useful benchmark for courts when asked to determine which practices engage important human rights obligations of states.

This post first appeared on the website of openDemocracy and is reproduced here with permission and thanks.

‘Unchartered’ Waters: Fundamental Rights, Brexit and the (Re)constitution of the Employment Law Hierarchy of Norms

Dr Niall O’Connor, Lecturer in Law at the University of Essex, has authored an article exploring the consequences of Brexit for the constitutional status of the employment rights found in the EU Charter of Fundamental Rights (the Charter).

The decision of the British people to leave the European Union (EU) raises foundational questions for many legal fields. The effects are especially likely to be felt within domestic employment law, which now has a strong basis in EU law. Of particular concern is the removal of the nascent EU fundamental employment rights influence over domestic legislation. Employment lawyers have long relied on fundamental rights as a means of preserving the autonomy of their subject from general private law. One manifestation of this turn to fundamental rights concepts has been the ‘constitutionalisation’ of employment rights. EU law, notably the Charter of Fundamental Rights, has become a key underpinning of this constitutionalisation process.

This article considers the effects of the constitutionalisation in the United Kingdom employment sphere of some of the rights found in the Charter’s Solidarity Title, through its role in the emergence of a hierarchy of sources or ‘norms’ in the employment field. In order to address the question of the Charter’s influence on the hierarchy of sources in the employment context, three interrelated processes are examined.

The article begins by exploring the ‘constitutionalisation’ process, by setting out the nature of the Charter and the effects of its employment rights on the hierarchy of sources. This is followed by a consideration of the ‘deconstitutionalisation’ process brought about by Brexit, before finally examining whether a potential ‘reconstitutionalisation’ process might be underway by looking at key terms of the EU (Withdrawal) Act 2018 and the potential to replicate the Charter in domestic law.

The article was published as Online First Article on 17 March 2020 in the European Labour Law Journal and is available here.