On Feb. 12, the Minister of Foreign Affairs presented several fiches to the House of Representatives from the Working Group on Assessment of New Commission Proposals. In it, the Cabinet expressed its views on, among others, the Digital Markets Act Regulation, the Digital Services Act Regulation and the Joint Communication EU Cybersecurity Strategy. The three assessments are briefly discussed below.
On Dec. 15, the European Commission (Commission) published the proposal for the Digital Services Act. This legislation revises part of the 2000 e-commerce directive and aims to contribute to the proper functioning of the internal market for intermediary services and the creation of a safe, predictable and secure online environment, while effectively protecting fundamental rights contained in the Charter of Fundamental Rights of the European Union. As part of this, it sets rules to help combat illegal content online and establishes a supervisory structure to effectively ensure the supervision of intermediaries' services.
The Cabinet's first impression is positive, but it notes that some aspects of the proposal are still unclear. One concern is the exact scope of the term "illegal content. For example, it is unclear whether content that is part of illegal conduct but is not independently illegal, as in, for example, phishing emails, is also covered by this definition. The government also supports the territorial scope of the proposal that is not limited to intermediaries based in the EU. However, it will call attention to the possibilities of being able to take enforcement action in practice against intermediaries not established in the EU.
Another unclear issue is the precise scope of the concept of very large online platforms (VLOPs), which are subject to stricter measures given their size and social impact. Although the Commission has proposed a limit of 45 million users to qualify as a VLOP, this limit, as well as the definition of a user, will not be concretized until after the proposal is adopted.
The Cabinet is positive about the "Good Samaritan Clause," which provides that intermediaries will not lose their limited liability for content if they proactively detect and combat illegal content on their services. This may encourage taking greater responsibility, but the Cabinet wants to await the outcome of external independent research to see if this incentive is sufficient on its own to achieve the goal.
While the Cabinet agrees with the exclusion of micro and small businesses from the obligations for online platforms to keep the burden and barriers to entry low, the Cabinet wants to prevent illegal content and activities from moving to smaller providers. This would undermine the objectives of the proposal.
The government welcomes the additional protection for consumers and is cautiously positive about the organization of supervision. In principle, supervision remains national in nature, but because of cross-border activities of intermediaries, effective cooperation of supervisors is essential. Although the proposal provides for this, the Cabinet still has questions about the effectiveness of the procedures.
Read the full cabinet assessment here
Simultaneously with the Digital Services Act proposal, the Commission published the Digital Markets Act proposal, which applies to online platforms with a gatekeeper function. By stimulating competition in digital markets, the Digital Markets Act should support a well-functioning European single market and result in gatekeeper platforms behaving fairly toward entrepreneurs who offer their products or services through a platform.
In general, the Cabinet has a positive opinion of the Commission's proposal concerning the Digital Markets Act and sees many of the principles and elements of the Cabinet's policy commitment reflected. However, the Cabinet does note a number of points of attention and points for clarification.
Regarding the scope, the government notes that only the very largest platforms that consumers and entrepreneurs cannot avoid will exceed the threshold for being labeled as gatekeepers. Also, when determining whether a platform is a gatekeeper, it is important to take into account that platforms can obtain this position thanks to a combination of different services, such as search engines or social networking services.
The Cabinet also welcomes the Commission's focus on mergers and acquisitions in the digital sector, including a duty to notify gatekeepers, but would like to see the Commission also assess them after notification. In doing so, the notification requirement in the Digital Markets Act is limited to acquisitions of digital services, where the Cabinet is in favor of all gatekeeper mergers and acquisitions being reviewable.
The proposed supervision is in line with the Cabinet's policy commitment that supervision should take place at the European level. The Cabinet does believe that national regulators, such as the Consumer and Market Authority, should be given a signaling role towards the Commission, so that it is more accessible for entrepreneurs to raise problems with gatekeepers.
Read the full cabinet assessment here
On December 16, 2020, the Commission and the High Representative of the European Union for Foreign Affairs and Security Policy jointly published the EU Cybersecurity Strategy for the Digital Age. The strategy responds to increased digital threats against the EU and its economies, democratic freedoms and values, and builds on the achievements of the 2013 EU Cybersecurity Strategy and the 2017 Cybersecurity Communication. The strategy focuses on three pillars: the pillar on resilience, technological sovereignty and leadership; the pillar on building operational capability to prevent, deter and respond; and the pillar on promoting a global, open cyberspace.
The Cabinet responds positively to the strategy and recognizes the need to strengthen cybersecurity efforts in view of increased digitization and the permanent nature of the digital threat. Partly because of this, the Cabinet considers it essential to include cybersecurity within all EU policies and levels.
The Cabinet welcomes the addressing of both the topic of 5G security and increasing cybersecurity of the Internet of Things through possible regulation. Also, the Cabinet welcomes proposals for the use of the cyberdiplomacy toolbox in cyber attacks on critical infrastructure, democratic processes and supply chains.
However, the Cabinet does consider it necessary to clarify plans on a European cyber shield and the cooperation of security operations centers at the EU level, where, among other things, the feasibility and added value must be well substantiated. This also applies to the proposal to set up a Joint Cyber Unit to strengthen cooperation among cybersecurity communities in the EU, where the Commission needs to provide further substantiation before the Cabinet can make a full judgment on it.
Read the full cabinet assessment here
