Financial Assistance Conditionality and Effective Judicial Protection: Chrysostomides

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By Anastasia Karatzia, Essex Law School

Dr. Anastasia Karatzia and Dr. Menelaos Markakis (Erasmus University Rotterdam) jointly published an article in the Common Market Law Review titled ‘Financial assistance conditionality and effective judicial protection: Chrysostomides‘. 

The article is a commentary on the ECJ’s judgment in the case of Council v K. Chrysostomides & Co. and Ors. It analyses the reasoning behind the ECJ’s findings regarding the legal nature of the Eurogroup, explores the implications of these findings for the accountability of the Eurogroup, and looks at the justiciability of the actions of the Council, Commission, and ECB in the context of the financial assistance programme for Cyprus and the EMU more generally speaking. 

The authors argue that the ECJ could have concluded that the Eurogroup is an EU institution within the meaning of Article 340(2) TFEU and that the theoretical possibility to hold the other EU institutions involved in financial assistance programmes accountable for their actions does not always suffice to guarantee the effective judicial protection of aggrieved individuals. This is the culmination of years of research on the topic of judicial protection in financial assistance given to EU Member States.

The article can be accessed in full here.

Do EU Organic Regulations Promote Better Animal Welfare?

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By Eugénie Duval, Essex Law School

In the European Union (EU), the general concept of animal welfare is provided by the Treaty on the Functioning of the EU which considers animals as “sentient beings”. Briefly, animal welfare refers to the state of an animal that is healthy (both physically and emotionally) and has the ability to satisfy its behavioural needs. EU farm animal welfare legislation includes several acts laying down minimum standards for the protection of farm animals. However, these minimum standards fail to guarantee the welfare of farm animals. In contrast, the EU Organic Regulation 2018/848 and the Implementing Regulation 2020/464 provide detailed rules aiming to promote “high animal welfare standards”.

Adopted in 1991, the EU Organic Regulation was most recently revised in 2018, with the changes of this revision entering into force in 2022. One of the most significant updates is the expansion of the scope of the Organic Regulation (i.e., additional species and stages of production). Together with Benjamin Lecorps (Bristol Veterinary School), I have been invited by Alice Di Concetto (The European Institute for Animal Law & Policy) to contribute to a research note on the EU Organic regulations and their impact on animal welfare. This research note draws from my previous work on EU Organic regulations, where I first explored, together with two animal welfare scientists, how these regulations affect dairy cattle welfare[1] as well as other species farmed in the EU.[2]

Animal welfare standards in EU Organic regulations represent a significant improvement compared to the minimum standards. EU Organic regulations aim to provide animals with better protection from negative experiences, limiting pain or suffering induced by routing management practices.

For example, the use of cages and the practice of force-feeding (e.g., used for the production of foie gras) are prohibited in organic systems. Additional requirements aim to ensure animals’ needs are met, beyond the animals’ interest not to suffer. Organic farmers are required to provide their animals with the ability to express natural behaviours or access important resources (e.g., mandatory outdoor access; lower densities).

However, some challenges remain and animals in certified organic production still stand to benefit from further improvements yet to be implemented. On a number of aspects, EU Organic regulations provide exceptions (e.g., physical mutilations; tethering), use vague language or remain silent.

One of the main limitations  relates to the lack of emphasis by EU Organic regulations on the welfare of animals during transport. Apart from minor provisions, animals in organic agriculture are subjected to the same rules in the Transport Regulation that apply to non-organically produced animals. However, these rules are limited and there is evidence that they do not guarantee a good level of animal welfare during transport and need to be improved.[3]

If you are interested in knowing more about this research note, you can download it directly from our blog below:

[1] Eugénie Duval, Marina A.G. von Keyserlingk, Benjamin Lecorps, ‘Organic dairy cattle: Do European Union regulations promote animal welfare?’, Animals, 2020, 10, 1786.

[2] Eugénie Duval, “Le droit de l’Union relatif à l’agriculture biologique : la promotion d’un meilleur bien-être des animaux d’élevage ?”, in Isabelle Michallet (dir.), Bien-être et normes environnementales, Mare et Martin, 2022

[3] I am currently writing a paper comparing live animal transportation regulations in several jurisdictions, highlighting animal welfare challenges and future directions.

The Future of AI Liability in Europe

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Artificial Intelligence (AI) could revolutionise the world-wide economy as well as the way we live, work and interact with each other. While this new technology certainly presents great potential, it also comes with important risks to human life, health and wellbeing – among other risks.

In an effort to prepare for this new environment, the European Commission has been at the forefront of several initiatives that aim to provide a harmonised regulatory framework for the safe deployment and use of AI systems across Member States [1]. Amongst its most recent initiatives is a public consultation on how to adapt civil liability rules to the digital age and artificial intelligence. This public consultation, which closed on 10 January 2022, aimed to collect views on:

  1. how to improve the applicability of the Product Liability Directive (PLD) to the digital age, including AI, and
  2. whether there is a need to further harmonise rules of liability for damage caused by AI systems beyond the PLD.

The consultation is an important first step towards building a robust liability framework fit to address the current and future challenges posed by AI and the digital age in Europe. The changes that could be implemented as a result of the consultation could be immense and produce far-reaching consequences. Understandably, this public consultation attracted a high level of interest from various stakeholders, including businesses (Google, Bosh, Siemens, Avast), consumer organisations (BEUC, France Assos Santé), insurers (AXA, Insurance Europe, France Assureurs), NGOs, interest groups, legal scholars as well as members of the general public. In total, the European Commission received around 300 responses.

Pr. Jonas Knetsch (University of Paris 1 Panthéon-Sorbonne) and Dr. Emmanuelle Lemaire (University of Essex), assembled a small ad hoc research group, comprised of Pr. Michel Cannarsa (The Catholic University of Lyon), Dr. Laurie Friant (University of Paris 1 Panthéon-Sorbonne) and Pr. Simon Taylor (Paris Nanterre University), to produce a report in response to the consultation.

Overall, the authors of this report were of the view that the PLD should be adapted to enhance consumer protection in the digital age and increase legal certainty for all stakeholders. The authors also recognised that AI technology posed specific challenges and recommended that complementary measures be adopted to ensure the safe deployment and use of AI systems across Member States.

Adapting the PLD rules to the digital age and AI

The Product Liability Directive, which came into force on 30 July 1985, was a response to the increasing demand for consumer protection in a hyper-industrialised environment where goods were mass-produced, and mass-consumed. In essence, the Directive aimed to offer a high level of protection to consumers while ensuring that producers did not bear an undue burden. It was thus designed to strike a careful balance between the interests of both consumers and producers.

Yet, we must remember that the Directive was implemented at a time when the Internet was still in its early days, the use of AI remained largely theoretical, marketplaces were positioned in the ‘physical world’, and concepts such as ‘circular economy’ and ‘the Internet of Things’ (IoT) were simply non-existent. To say that the PLD – which did not undergo any major changes since 1985 – is in need of reform is certainly an understatement.

In order to adequately adapt the PLD to the digital age and AI, the authors of the aforementioned report took the view that the scope of application of the PLD should be extended, and in particular that:

  • the concept of ‘product’ should be expressly extended to intangible goods,
  • the concept of ‘producer’ should be extended to include online marketplaces and remanufacturers,
  • the concept of ‘damage’ should be extended to include specific types of immaterial loss (i.e. privacy or data protection infringements not already covered under the General Data Protection Regulation, and damage to, or the destruction of, data).

The authors of the report also recommended the amendment of specific PLD rules in certain situations, and more specifically:

  • the suppression of the development risk defence for AI products only,
  • the suppression of the 10-year longstop period in case of death or personal injury,
  • a clarification of the conditions enabling the 3-year limitation period to start running,
  • an alleviation of the burden of proof of ‘defect’ and ‘causation’ for products classified as ‘technically complex’ (which would include AI products and The Internet of Things).

In addition to recommending that the PLD be adapted, the authors of the report were also in favour of the European Commission adopting complementary measures in the context of AI to account for the specific features presented by this technology (autonomy, complexity, opacity, vulnerability, and openness).

Adopting complementary measures in the context of AI

The regulation of AI is proving challenging across legal systems, not least because of the difficulty in defining what AI is and what can be classified as an AI system. The European Commission made a recent effort to try and offer a clear – but open – definition of the term ‘AI system’ to ensure legal certainty while providing the necessary flexibility to accommodate any future technological developments. As the definition currently stands, an AI system means software that is developed with some specific listed techniques and approaches ‘and can, for a given set of human-defined objectives, generate outputs such as content, predictions, recommendations, or decisions influencing the environments they interact with.’[2] The definition is quite broad, and in consequence, the range of products based on – or using –  AI systems can be diverse and include voice assistants, image analysing software, search engines, speech and face recognition systems, as well as advanced robots, autonomous cars, drones or Internet of Things applications. Not all these products present the same type or level of risk, and some AI-based products are therefore more dangerous than others.

The authors of the report recommended that the European Commission consider:

  • the harmonisation of strict liability where AI-based products or services create a ‘serious risk of damage’ to consumers with an option to allow Member States to offer more protective liability rules to consumers,
  • the harmonisation of mandatory liability insurance for certain AI products,
  • the harmonisation of liability rules regarding the compensation of specific types of immaterial loss beyond the PLD (i.e. privacy or data protection infringements not already covered under the General Data Protection Regulation, and damage to, or the destruction of, data).

If you are interested in knowing more about the recommendations made by this university group to the European Commission, you can find a copy of their report (no. F2771740) – written in French – on the EC website or download it directly from our blog below:

[1] See e.g. European Commission, Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee of the Regions – Artificial Intelligence for Europe (COM(2018) 237 final); European Commission, White Paper on Artificial Intelligence – A European approach to excellence and trust, (COM(2020) 65 final); European Commission, Communication Coordinated Plan on Artificial Intelligence (COM(2021) 205 final); European Commission, Proposal for a Regulation of the European Parliament and of the Council laying down harmonised rules on Artificial Intelligence (Artificial Intelligence Act) and amending certain Union legislative Acts (COM(2021) 206 final).

[2] European Commission, Proposal for a Regulation of the European Parliament and of the Council laying down harmonised rules on Artificial Intelligence (Artificial Intelligence Act) and amending certain Union legislative Acts (COM(2021) 206 final), Article 3(1).

Sustainability as a Legal Principle: Call for Papers

Third YUFE LAW Meeting, Rijeka, 23-24 June 2022

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YUFE, the Young Universities for the Future of Europe, is an alliance of ten dynamic, student-centred research-based universities and four non-academic partners from the non-governmental and private sector for an impactful European University. Together, the YUFE partners aim to establish one of the first true European Universities.

Essex is part of the YUFE alliance and is working with its partners to shape the future of European higher education by establishing a European University that’s open to all. 

Continuing its recently established YUFE LAW practice, first at the meeting in Maastricht in January 2020 and subsequently, at the meeting in Bremen in May 2021, applications are invited for the Third YUFE LAW meeting which will be held by the Faculty of Law in Rijeka, Croatia on 23 and 24 June 2022.

Following last year’s model, the discussion concerning the past and future cooperation within the YUFE LAW will be held in parallel with the dissemination of research at the international scientific conference dedicated to the topic of Sustainability as a Legal Principle.

The term “sustainable development” started gaining planetary recognition probably with the 1992 United Nations Conference on Environment and Development and the Earth Plan. At the 2002 World Summit for Sustainable Development in Johannesburg, the need for consistency between the three pillars of sustainable development – being social justice, economic growth, and environmental protection – was stressed as crucial thus paving the way for what we understand as sustainable development nowadays.

The 2030 Agenda for Sustainable Development was adopted by all United Nations Member States in 2015 to ensure common values of peace and prosperity for people and the planet, now and into the future. The core of the Agenda is made of the 17 Sustainable Development Goals (SDGs) which recognize that ending poverty and other deprivations must go hand-in-hand with strategies that improve health and education, reduce inequality, and spur economic growth – all while tackling climate change and working to preserve our oceans and forests.

Understanding sustainable development as a development that meets the needs of the present without compromising the ability of future generations to meet their own needs, its initial meaning has been broadened much beyond environmental protection to encompass virtually all aspects of human activities.

Reaching SGDs can thus be done by means of regulating emissions and promoting developments in renewable energy, developing responsible ICT enabled transformation, reducing waste, or fighting extreme poverty just as by eradicating inequalities, empowering women, ensuring full and productive employment, and decent work for all, or promoting peaceful and inclusive societies, providing access to justice for all and building effective, accountable and inclusive institutions at all levels.

Law is a powerful means in achieving SDGs because the underlying policies may be more efficiently achieved if effectively in-built in legal regulation and not just made part of promotional activities or alike. Reinforcement by means of legal norms seems to be one of the key factors in following through the 2030 Agenda.

Indeed, by now, many preambles, pieces of legislation. statements and declarations contain references to sustainable development, international, European or national. In various areas of law, support or justification for certain regulatory solutions is sought in sustainable development concerns. Such concerns are being more explicitly articulated by the courts and tribunals in different countries.

It is increasingly recognised at many levels that bringing together social, environmental and economic rules and regimes is necessary. Gradually, sustainable development has entered the legal sphere and we may ask ourselves to what extent is sustainability a legal principle.

Against this backdrop, recent years have witnessed also intensified academic discussions on the role of law in sustainable development. For legal researchers, this is a daring endeavour since it entails an interdisciplinary approach including deepening the understanding of the sustainable development and SDGs and attempting to gain a broader understanding and wider picture of the researched issues.

At the same time, legal scholars have a huge responsibility to attempt to discover the old laws which are at odds with the SDGs or to unmask the new ones which use the “greenwashing” practices rather than truly contribute to the achievement of one or more SDGs.

The Third YUFE LAW Research Conference welcomes papers from any area of law, with more or less interdisciplinary threads, which would discuss legal regulation in the context of the SGDs. The conference aims to gather experts in various fields of law affiliated with any of the YUFE partners, to discuss different topics under the umbrella of sustainability as a legal principle.

If you are interested and willing to contribute, please send the title and abstract of your proposed topic (1-2 pages) and your short CV (5 lines on current position and relevant publications) no later than 15 March 2022 to

The conference will be held in hybrid form. The Faculty of Law in Rijeka will be able to provide lunch and refreshments to all onsite participants, but travel and accommodation should be covered from other sources (e.g., Erasmus+ funding or home institutions).

We look forward to meeting you in Rijeka!

Constitutional Pluralism and Loyal Opposition

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Dr. Tom Flynn, Lecturer in Law at the University of Essex, has recently had an article published in the International Journal of Constitutional Law (I•CON) as part of a symposium on last year’s controversial PSPP judgment of the German Federal Constitutional Court (GFCC).

In that judgment, the GFCC for the first time declared a judgment of the Court of Justice of the European Union (CJEU) to be ultra vires. As the symposium in I•CON demonstrates, this decision has come in for sustained attack from many quarters, and defences of it are partial at best.

Most significantly, critics decry the PSPP judgment of the GFCC for giving succour to the authoritarian governments of particular Member States, most notably Hungary and Poland: if Germany can defy the primacy of EU law, then surely every other Member State can too?

In this context, Dr. Flynn analyses PSPP in the light of previous national court decisions (Italian, Danish, Czech, and Hungarian) that challenged the CJEU’s conception of the primacy of EU law, and argues that it cannot, on its own, be used to justify the imposition or adoption of an absolutist conception of the primacy of EU law.

Instead, we can reconceive national court objection to the CJEU’s conception of primacy as a form of ‘loyal opposition’, analogous to the political concept, where mere opposition to the tendencies and policies of the current government must not be regarded as being somehow disloyal or unspeakable.

The theory of constitutional pluralism, which conceptualises the relationship between EU constitutional law and that of the Member States as being heterarchical rather than hierarchical, must therefore not be regarded as being inherently dangerous, or as an expression of some kind of retrograde ‘sovereigntism’.

Rather, we must pay close attention to the reasoning and justification of any given instance of national disapplication of EU law. This is particularly so in the context of a Union that is showing itself increasingly ill-equipped to handle the rise of authoritarianism in the Member States: just as not all expressions of national constitutional primacy are wicked, not all expressions of Union primacy are good.

Dr. Flynn instead proposes a ‘legitimacy test’, whereby we can learn to distinguish principled, reasoned, ‘loyal’ opposition in the EU constitutional space from unprincipled, unreasoned, ‘disloyal’ constitutional backsliding.

The full citation of Dr. Flynn’s new article is: Tom Flynn, Constitutional pluralism and loyal opposition, International Journal of Constitutional Law, Volume 19, Issue 1, January 2021, Pages 241–268,

European Commission’s Proposals to Revise Labelling Rules for Alcoholic Beverages

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Dr Nikhil Gokani, Lecturer in Law, University of Essex, writes on the European Commission’s Roadmap on the ‘Proposal for a revision of Regulation (EU) No 1169/2011 on the provision of food information to consumers, for what concerns labelling rules on alcoholic beverages’.

This post is based on the response written by Dr Nikhil Gokani (Vice President, EUPHA-LAW) and Professor Amandine Garde (President, EUPHA-LAW; Law & NCD Unit, University of Liverpool) on behalf of the European Public Health Association.

In 2011, the European Union adopted Regulation (EU) No 1169/2011 on the provision of food information to consumers. Article 9 of this Regulation requires food products to be labelled with a nutrition declaration and an ingredients list. However, Article 16 of this Regulation specifically excludes alcoholic beverages from these requirements.

In 2017, the European Commission published its Report regarding the mandatory labelling of the list of ingredients and the nutrition declaration of alcoholic beverages which concluded, as public health and consumer protection organisations had been stating for many years, that no objective grounds justify the absence of information to consumers on ingredients and nutrition information on alcoholic beverages.

On 24th June 2021, the Commission released a Roadmap and Initial Impact Assessment on proposals to remedy the illogical and harmful labelling exemptions for alcohol. The Initial Impact Assessment identified three options. Option 0 would maintain the status quo. Option 1 would require mandatory nutrition and ingredient information for alcoholic beverages to be given off-label (for instance, on websites or on apps). Option 2 would require mandatory nutrition and ingredient labelling to be given directly on the label. Only option 2 should move forward for the following reasons.

Alcohol consumption is a significant public health concern

Alcohol consumption is associated not only with non-communicable diseases but also injuries and infectious disease. There is a direct relationship between higher levels of alcohol consumption and developing some cancers, liver diseases and cardiovascular diseases; and the level and pattern of drinking has a relationship with ischaemic heart and cerebrovascular diseases. Alcohol is a psychoactive substance which has dependence-producing properties, and the excessive consumption of alcohol ranks among the top risk factors for disease, disability and mortality. It is a causal factor in more than 200 disease and injury conditions.

Current ingredient and nutrition labelling on alcohol does not inform consumers

Alcohol commonly contains a variety of ingredients, such as wheat, barley, corn, rye, grapes, hops, histamine, sulphites and brewer’s yeast. One gram of alcohol contains seven calories, and together with sugar, heavy intake can significantly contribute to overweight and obesity.

There is increasing evidence that there is a deficit in consumer knowledge and understanding of the nutritional content and ingredients of alcoholic beverages as well as the consequences of alcohol consumption. Across the EU, consumers are interested in alcohol labelling.

In its 2006 Alcohol Strategy, the EU specifically aimed to ‘provide information to consumers so that they can make informed choices’ and to inform consumers about ‘the impact of harmful and hazardous alcohol consumption on health’. This is in line with the long held view the EU that well-informed consumers are empowered to make healthy purchasing and consumption decisions. As the Commission has plainly acknowledged in its Report regarding the mandatory labelling of the list of ingredients and the nutrition declaration of alcoholic beverages in 2017, there are no objective reasons for the exemptions.

Ingredient and nutrition labelling would promote high level of consumer and public health protection and promote the functioning of the internal market

It is extremely concerning indeed that alcoholic beverages containing more than 1.2% by volume of alcohol are exempt from the requirement of displaying a nutrition declaration and ingredients list. Once again, nothing justifies such an exemption on such harmful commodities.

Even when a nutrition declaration is provided on a voluntary basis, it can be limited to an energy-only declaration. This is insufficient. Effectively implemented nutrition and ingredients labelling would inform consumers about the content of alcoholic beverages and contribute to empowering consumers to make healthier alcohol purchasing and consumption decisions. This is particularly important bearing in mind the evidence referred to above regarding, firstly, the deficit of consumer information on alcoholic beverages and the appetite for such information, and secondly, the relationship between alcohol consumption and a wide range of diseases.

Moreover, several Members State have proposed or introduced measures acting on the derogation for ingredients labelling in Regulation (EU) No 1169/2011 on the provision of food information to consumers, as well as measures on nutrition labelling. Bearing in mind that alcoholic beverages are traded extensively within the internal market, there is a compelling rationale for the adoption of an EU-wide harmonised approach to the regulation of nutrition and ingredients labelling of alcoholic beverages to reduce market fragmentation.

On-label information is far more useful to consumers

It is well-established that, to be able to effectively inform consumers, information should be easily available, salient and well-perceived by consumers. On-label information is more readily accessible for consumers, particularly within in-store environments. Bearing in mind that consumers do not always search for nutrition and ingredient labelling, on-label information is more likely to be seen and read, which is particularly true for members of lower socioeconomic groups. This has been reflected in EU food law since the EU began regulating food information in the late 1970s. There is no reason to treat alcoholic beverages more leniently than other foods.

Option 2 of the Initial Impact Assessment is the only evidence-based option to meet the EU’s objectives of promoting a high level of consumer protection and public health.

The EU should also introduce other effective labelling, including front-of-pack labelling, to help empower consumers

The envisaged measures of back-of-pack nutrition labelling and ingredients labelling are just two forms of labelling to help inform consumers. To empower consumers to make healthier decisions, the EU should also develop proposals for mandatory front-of-pack labelling, mandatory serving size recommendations and per portion nutrition information, guidance on moderate levels of drinking and warnings on the health effects of consuming alcohol.[13] The Commission’s intention in the EU’s Beating Cancer Plan to make proposals on health warnings on alcohol labels by the end 2023 are supported. Not only does the WHO European Action Plan to Reduce the Harmful Use of Alcohol 2012–2020 call for ‘labelling similar to that used for foodstuffs, including alcohol and calorie content’ but also health warning. Moreover, empowerment by information can only be successful if voluntary forms of information and marketing are also regulated.

Over the years, the EU’s response to alcohol related harms has been substandard and it is high time that it rectified this failure through the adoption of evidence-based measures intended to limit the appeal, the acceptability and the affordability of alcoholic beverages. It is only then that it can claim that it has indeed complied with the obligation it derives from the EU Treaties and the EU Charter of Fundamental Rights and Freedoms to ensure a high level of public health protection in the development and implementation of all its policies, including its internal market and consumer protection policies.

Unequal Representation of Stakeholders in the Commission’s Impact Assessment Process and the Protection of the Decision-Making Process

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Dr. Carlo Petrucci, Lecturer in Law at the University of Essex, had a new article published in the European Review of Public Law (ERPL).

Participation of interest groups in the Commission’s decision-making process is a vital part of EU policy-making. Nonetheless, some interest groups are over-represented during this process due to their resources and information capabilities. As a result, they are capable of exerting considerable influence on the Commission’s decision-making process.

This problem is particularly severe during the impact assessment process where interest groups submit information through stakeholders’ consultations. They also request access to impact assessment documents in order to know the information held by the Commission during the preparation of a legislative proposal.

Against this background, the issue is whether unequal representation of stakeholders during the impact assessment process undermines the Commission’s decision-making process, thus justifying the Commission to refuse access to impact assessment documents (Article 4(3), Regulation No. 1049/2001).

In ClientEarth (C-57/16), the Court of Justice of the EU rejected this argument, but Dr. Petrucci’s article argues that in the absence of countervailing information, over-representation of stakeholders is capable of compromising the Commission’s decision-making process and the Commission may therefore justifiably prevent over-represented stakeholders from accessing impact assessment documents.

Dr. Petrucci’s article appears in Vol. 31, Issue No. 4 (114) of the ERPL. The ERPL examines a wide range of issues that relate to the European Union, the European Convention on Human Rights, the national public law and practices, as well as to their mutual interaction and influence. 

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

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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.

International Law and Regional Norm Smuggling

Photo by Janko Ferlič

Dr. Marija Jovanovic, Lecturer in Law at the University of Essex, had a new article published in The American Journal of Comparative Law titled ‘International Law and Regional Norm Smuggling: How the EU and ASEAN Redefined the Global Regime on Human Trafficking’.

The article examines how the regional organizations in Europe and Southeast Asia have redesigned the global regime on human trafficking established by the United Nations Palermo Protocol to suit the dominant regional agendas in the European Union (EU) and the Association of Southeast Asian Nations (ASEAN).

Map indicating locations of European Union and ASEAN | Source: Wikimedia Commons

In seeking to consolidate and coordinate the implementation of the global anti-trafficking action across their respective member states, these regional actors have shaped and promoted fundamentally different understanding of the phenomenon of human trafficking and the actions needed to address it.

These findings challenge general assumptions about the universality and coherence of the growing international legal framework on human trafficking and show the capacity of regional actors to redefine international treaties in line with their specific mandates, pressing concerns and dominant agendas.

Dr. Jovanovic’s article can be accessed through the publisher’s website here.

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’.