Posts Tagged EU
There are many scientific and legal /regulatory angles to the pollution caused by micro and nanoplastics (MNPs). I was pleased to have been invited to be part of a scoping exercise with the European Commissions Group of Chief Scientific Advisors, following which that Group issued its initial statement early July.
MNPs is an issue where the EU undoubtedly can recognise its regulatory leadership – at the same time appreciating that the challenge is of a truly global nature (many of the worst plastics pollution issues are located in river deltas way outside EU borders). At the scientific level, studies particularly in the marine environment show cause for great concern – but not necessarily easy fixes.
I accepted therefore to be part of the SAPEA Consortium (Science Advice for Policy by European Academies) Working Group on MNPs, which will oversee in first instance the collation of the state of the art: from a regulatory as well as a scientific point of view – and subject to tight deadlines.
Autumn should be interesting.
A short post on manufactured nanomaterials and data. (Readers will be aware that although the blog focuses mostly on litigation, I dabble in regulatory research and practice, too. And that nanotechnology regulation has been a consistent interest of mine).
Thank you Lynn Bergeson and Carla Hutton for flagging the study by EUON on data collection and reporting methodology for manufactured nanomaterials. EUON, the European Union’s Observatory for Nanomaterials, is hosted by ECHA – the EU’s Chemicals Agency. The study’s purpose is made clear on p.15 (only) of the report: the overall context is for the regulators to have an overview of the heterogeneous market for nanomaterials. In order to do so, the study measures the reliability etc of existing reports and studies on the nanomaterials market. It concludes that a Delphi study of the existing research would be required.
For those of you with an interest in information flows and the transparency of data, the implications are clear: part of the exercise of regulating new technologies is to know what is out there; and manufacturers’ data clearly are not making it into the public domain in a transparent and coherent manner. Consider alongside this report, for instance the proposed US EPA rule on transparency in regulator science.
One or two of you are aware I have written a whole handbook on EU waste law. That now needs updating as a result of the publication of the adopted ‘Circular Economy package’ – although implementation dates are some time off so if you do have a copy, do not discard it just yet.
The package includes amendments to the ELV, Batteries, WEEE, Landfill, packaging and packaging waste, and waste framework Directive.
I am hoping to write a paper on the package which will summarise the developments – watch this space.
Handbook of EU Waste law, 2nd ed. 2015: all chapters 🙂 .
US Iran sanctions renew the spotlight on the EU’s blocking regulation: A rare EU harmonised approach to enforcement and recognition from third States.
Ross Denton at Baker & McKenzie has a gem of a briefing on the EU’s ‘blocking Regulation’ and what it would mean in light of the US’ mooted sanctions on Iran. Steptoe had earlier also pondered the impact of the US withdrawal from the ‘Joint Comprehensive Plan of Action’ or JCPOA, on the Regulation.
Regulation 2271/96 provides essentially for protection against, and counteracts the effects of the extra-territorial application of the laws of third States. WTO lawyers will remember it mostly from the days of Helms-Burton. As Ross points out, the European Commission now have delegated power to populate the Annex to the list (which details the sanctions the Regulation acts against).
Potentially extra-territorial are in particular US ‘secondary’ sanctions: i.e. those against non-US individuals (or companies) for actions undertaken outside the US.
Of particular interest to readers of the blog – including researchers I would imagine, are Articles 4, 5 and 6, which I have copy-pasted in full below. They deal with recognition and enforcement, co-operation with foreign courts, and recovery of expenses. These Articles are a rare instance where the EU adopt a harmonised approach to recognition and enforcement of judgments originating ex-EU (awaiting the potential Hague Judgments project). [Update 22 May 11:30 AM. As Enio Piovezani comments below, the GDPR, too, includes a relevant rule: See Article 48: ‘Transfers or disclosures not authorised by Union law. Any judgment of a court or tribunal and any decision of an administrative authority of a third country requiring a controller or processor to transfer or disclose personal data may only be recognised or enforceable in any manner if based on an international agreement, such as a mutual legal assistance treaty, in force between the requesting third country and the Union or a Member State, without prejudice to other grounds for transfer pursuant to this Chapter.’]
As Ross points out, however, the proverbial US rock is harder than the equally proverbial EU stone, hence in practice many companies choose to abide by the US sanctions, anyways.
My fingers are itching to launch yet another interesting PhD topic on this issue…Takers?
No judgment of a court or tribunal and no decision of an administrative authority located outside the Community giving effect, directly or indirectly, to the laws specified in the Annex or to actions based thereon or resulting there from, shall be recognized or be enforceable in any manner.
No person referred to in Article 11 shall comply, whether directly or through a subsidiary or other intermediary person, actively or by deliberate omission, with any requirement or prohibition, including requests of foreign courts, based on or resulting, directly or indirectly, from the laws specified in the Annex or from actions based thereon or resulting therefrom.
Persons may be authorized, in accordance with the procedures provided in Articles 7 and 8, to comply fully or partially to the extent that non-compliance would seriously damage their interests or those of the Community. The criteria for the application of this provision shall be established in accordance with the procedure set out in Article 8. When there is sufficient evidence that non-compliance would cause serious damage to a natural or legal person, the Commission shall expeditiously submit to the committee referred to in Article 8 a draft of the appropriate measures to be taken under the terms of the Regulation.
Any person referred to in Article 11, who is engaging in an activity referred to in Article 1 shall be entitled to recover any damages, including legal costs, caused to that person by the application of the laws specified in the Annex or by actions based thereon or resulting therefrom.
Such recovery may be obtained from the natural or legal person or any other entity causing the damages or from any person acting on its behalf or intermediary.
The Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters shall apply to proceedings brought and judgments given under this Article. Recovery may be obtained on the basis of the provisions of Sections 2 to 6 of Title II of that Convention, as well as, in accordance with Article 57 (3) of that Convention, through judicial proceedings instituted in the Courts of any Member State where that person, entity, person acting on its behalf or intermediary holds assets.
Without prejudice to other means available and in accordance with applicable law, the recovery could take the form of seizure and sale of assets held by those persons, entities, persons acting on their behalf or intermediaries within the Community, including shares held in a legal person incorporated within the Community.
Our paper on the innovation principle, with Kathleen Garnett and Leonie Reins is just out in Law, Innovation and Technology. We discuss how industry has been pushing for the principle to be added as a regulatory driver. Not as a trojan horse: industry knocks politely but firmly at the EU door, it is then simply let in by the European Commission. We discuss the ramifications of such principle and the wider consequences for EU policy making.
(Handbook of) EU Environmental Law (with Dr Reins), 1st ed. 2017, Chapter 2.
Update 3 April 2018 Recently, the so-called “CLOUD Act” was passed by Congress and signed into law. This new law amends the Stored Communications Act to give it a potentially extraterritorial reach. Following this development, the U.S. Government has moved to have the Microsoft case dismissed as moot, and to have the Second Circuit’s decision vacated. [Technically, Congress has enacted, and the President has signed,
the Consolidated Appropriations Act, 2018, H.R. 1625, 115th Cong., 2d Sess. (2018). Division V of that Act is called the Clarifying Lawful Overseas Use of Data Act, or the CLOUD Act. TheCLOUD Act amends the Stored Communications Act, 18 U.S.C. 2701-2712, by adding 18 U.S.C. 2713, which now states:
A provider of electronic communication service or remote computing service shall
comply with the obligations of this chapter to preserve, backup, or disclose the contents
of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider’s possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States.]
For background to the Microsoft Ireland case under the Stored Communications Act (SCA), see here. The issue is essentially whether the US Justice Department may force Microsoft to grant access to e-mails stored on Irish servers.
With a group of EU data protection and conflicts lawyers, we have filed an amicus curiae brief in the case at the United States Supreme Court last week, arguing that the Court should interpret the SCA to apply only to data stored within the United States, leaving to Congress the decision whether and under what circumstances to authorize the collection of data stored in other countries.
There is not much point in me rehashing the arguments here: happy reading.
This posting is really addressed to those with more of a full-time interest in competition law than yours truly. Particularly in the extraterritorial effect of same. In  EWHC 2420 (Ch) Emerald Supplies et al v British Airways defendants contend that as a matter of law there can be no claim for damages arising from the cartel at issue insofar as it affected freight charges between the EU and third countries on flights before 1 May 2004. That was the date on which air transport between the EU and third countries was brought within the regime implementing the EU competition rules set out in Regulation 1/2003.
Rose J after careful analysis sides with the defendants and rejects reference to the CJEU, citing acte clair (enough analysis of the CJEU on the same and related issues- I believe she is right). Happy reading.