Reclamation should have the result of restoring the usability of a property having regard to its use at the time when the reclamation work must be authorised
The organization of work is ever changing: new boundaries between the concepts of subordination and autonomy.
October has seen many new initiatives proposed by the Italian government both in a national and international context.
Nctm is the only italian Law Firm shortlisted for the fifth consecutive year in FT Innovative Lawyers Europe 2016 report. On October 6 Report the has been published .
For O'Connor lawyer, international trade expert, is guaranteed to coexist with the brands. "Underrated other barriers to exports in the US" - Warning to new offensive on the labels
Bureaucracy. Warning on labels that indicate the risks for health
A reform that hits the mark and which is preparing to become the driving tool of a national ports policy centralized and less parochial.
The Luxembourg Presidency of the EU Council of Ministers announced, on 7 December 2015, that it had reached an informal agreement with the European Parliament on the text of the proposed Directive on Network and Information Security Directive ('the NIS Directive').
Masi Agricola S.p.A., one of the main producers of high quality wines and a leader in the production of Amarone, purchased 60% of Canevel Spumanti S.p.A., a company producing superior quality spumante, based in Valdobbiadene (TV), as well as an equal interest in Società Agricola Canevel a r. l. and in Canevel Spumanti Tenuta Le Vigne Società Agricola a r. l..
Masi Agricola S.p.A. was advised by Nctm Studio Legale with a team led by Lukas Plattner with the cooperation of Eleonora Parrocchetti.
Nctm Studio Legale advised Acqua Minerale San Benedetto S.p.A. in the sale of its shares, acquired in 2002, in two Mexican subsidiaries belonging to a joint venture of Peñafiel Group, to the same Peñafiel Group, a Mexican beverage company owned by the US public company Doctor Pepper Snapple Group.
The joint venture is engaged in the manufacturing of the 10-litre disposable format for purified water, distributed in the Mexican market with the trademark Aguafiel Naturale.
Acqua Minerale San Benedetto S.p.A. was advised by Nctm Studio Legale with a team led by Raffaele Caldarone and Angelo Anglani, and by the law firm Von Wobeser y Sierra with a team led by Luis Burgueño.
The Iranian lawyer Emad Tabatabaei has joined Nctm team to assist Italian enterprises in taking the new opportunities of the Iranian market.
Tabatei affirmed that “Italy and Iran have never interrupted their dialogue”, underlined that “The opening of the Iranian market is an opportunity to be taken today and not only in the traditional energy sector: 80 million people with instruction at European levels, developed infrastructures, a territory whose size is almost 5 times that of Italy and development projects in many industrial and services sectors” and concluded that “everything is ready. There could be no better moment than this”.
Alberto Toffoletto announced “we are happy to have Emad with us. He is not only a brilliant lawyer with an international education and vocation but he has a deep knowledge of Iran, of its culture and political and entrepreneurial world” and “we want to assist our clients by offering sound local competences and – he added – proposing a privileged insight on the dynamics of this country rich of history and opportunities for the future”.
Alcedo SGR S.p.A., on behalf of “Alcedo IV” fund, purchased the majority of Nahrin SwissCare Group, engaged in the marketing of nutritional supplements, plant extracts and cosmetics created with natural active ingredients. This is the second investment of Alcedo IV new fund, which Alcedo SGR S.p.A. has made with partners Franco Valvasori, Maurizio Tiveron and Sonia Lorenzet.
SGR was advised, with regard to legal aspects, by Nctm Studio Legale with a team led by Pietro Zanoni and Eugenio Siragusa, with the cooperation of Lucia Corradi. Manfredi Luongo of the law firm Russo De Rosa Associati advised the investor with regard to tax aspects.
The founders of Nahrin SwissCare, who kept 45% of the group, were advised by lawyer Fulvio Cavalleri.
UBS acted as financial advisor on the sell side.
Nctm Studio Legale worked alongside CONAD - Consorzio Nazionale Dettaglianti and the seven big cooperative groups that are members of the same, in the redefinition of marketing and loyalty processes at national level.
Nctm worked with CONAD internal structures in a project that required the analysis of internal procedures, the evaluation of business dynamics and the structuring of the entire contracts and policies architecture necessary to launch new marketing and loyalty campaigns in the consumers area.
This is a new and broad operation that re-designed business areas that are strategic for CONAD.
Nctm Studio Legale advised CONAD with a team led by Rocco Panetta, in cooperation with Lorenzo Cristofaro and Francesco Armaroli.
Rocco Panetta declared: “I wish to thank CONAD for entrusting us with such an important and innovative initiative that, on the one hand, shows the attention to consumers’ requirements and the foresight of CONAD development plans, and on the other hand confirms Nctm as reference legal advisor for marketing projects and for the large-scale retail trade sector.
Nctm Studio Legale, advised Hypo Alpe Adria Bank, in the transfer to Banca Valsabbina of a line of business comprising seven bank offices located in Bergamo, Brescia, Verona, Vicenza, Schio and Modena, and of a portfolio of performing mortgage loans, mainly located in Northern Italy, having a gross value of approximately 150 million Euro.
The transaction, carried out upon conclusion of a competitive procedure in which several funds and financial institutions took part, is encompassed in a broader programme for the cessation of business that Hypo Alpe must carry out as a result of the decision of the European Commission in 2013 with regard to the so-called “state aids”, which forced the Austrian bank group Hypo Alpe Adria, to which the bank used to belong, to approve a plan for the overall restructuring of its businesses in Austria, Balkan Republics and Italy.
Hypo Alpe Adria Bank was advised during the competitive procedure and in the drawing up and negotiation of the contractual documentation, by Nctm, with a team led by Stefano Padovani and Matteo Trapani, assisted by Giovanni de Capitani and Alice Bucolo, with the collaboration of Alessandra Pirozzolo and Rodolfo Margaria. Nctm, dealt also with the regulatory aspects of the transaction with Alessandra Stabilini, while labour aspects were dealt with by Roberta Russo with the collaboration of Ulrich Eller.
Nctm team worked in coordination with the team of Hypo Alpe Adria Bank internal counsels led by Federico Di Berardino, who was assisted by Margherita Gorza and Davide Pulella.
Brexenergy: a roadblock for the European Energy Market ?
Increasing interconnectivity with Continental Europe will necessarily require co-operation between UK and EU Internal Energy Market in any Brexit scenario. If the UK is permitted to participate in the Energy Union following Brexit, it would need to negotiate an appropriate partnership with EU and adopt - and comply with - the relevant European law.
The questions to be addressed are: can the UK continue to participate in the liberalisation of the European Energy Market (EEM), can the EEM continue the liberalisation process without the UK ?
It’s important to underline the extent to which EU and UK energy policies are closely aligned: in many respects, the UK has taken the lead in shaping EU energy policy, with its focus on open and transparent markets, energy security, low carbon energy sources, energy efficiency and high levels of environmental protection. If the UK was to stay within European Economic Area (EEA) as a Member of the European Free Trade Associatiobn (EFTA), most of these objectives and constraints would remain.
Given to the UK’s liberalised energy policy, we expect that the UK will continue to implement and be supportive of many aspects of the EU’s Third Energy package (an EU legislative package with the central aim of liberalising European gas and electricity markets). For example, the ownership unbunding requirements, which require the separate ownership and operation of electricity/gas transmission systems for any generation, production and supply interests; the level playing field; and the standards transparency. The UK Government also appears committed to market-based interventions in energy markets and supports EU initiatives such as market coupling. We therefore consider that business should plan to continue to comply with these requirements.
Consequently, if the UK remains part of the EEA, the EU State Aid rules will continue to apply to the energy infrastructure and support schemes as today, since the EEA Agreement contains a similar prohibition. However, any subsidy will also need to comply with the WTO subsidy regime which is similar in its intentions to the EU State aids rules. The WTO regime disciplines the use of subsidies and regulates the actions which WTO members can take to counter the effects of subsidies.
From a legal point of view, one of the most important question needing a quick answer is how the UK would join the EEA Agreement given its more advanced implementation of EU Law. The answer will only be known as part of the Brexit negotiations, after the triggering of the famous Article 50 of the Treaty of Lisbon. In fact, the exact nature of the exit and the future UK-EU relationships is still to be negotiated and it is expected that the United Kingdom will attempt to extract favorable terms in a a new trading arrangements that still provides the country access to a single market, while the European Union will resit such an arrangement.
As this is the first time that a Member State has left the “28-Countries Club”, there are many significt uncertainties over substance, process and timelines. In the interim period and while negotiations are ongoing, the legal status of the EU-UK relationship (and all attendant rules and regualtions) will remain unchanged. But there will be political changes: the UK will not participate in the next European Councils and Councils of Ministers. Over the near term, uncertainty will be the defining feature of the direct and indirect impacts on energy markets. Nonetheless, it is possible to begin to outline some of the impacts on the energy system.
The Brexit impact on Energy Markets
Concerning the Direct Impact , as evidenced in the immediate reaction to the Brexit vote, and because the status quo will remain in place on the regulatory and trade front, the direct impact on energy markets in the short term will be supposely “..limited to the volatility of commodity prices, most prominently the orice of crude oil”.
The Indirect Impact on Energy Markets is perhaps more significant in the near and medium term than the direct impacts and moderated through the effect the British referendum will have on global economic growth. An example of indirect impact is the cost of access to credit. The risk premium on investments will likely rise, both in the UK and elsewhere, but “investors will remain risk averse until the long term is more predictable, and this will likely stiffen investments and rescricts the flow of capital even further across global markets”.
There is also the possibility of Uncertain Impact on Energy Markets. Going forward, much of impact on energy markets will be determined by the future contours of the UK relationship with the European Union and even more on the shape of the Union itself, which will be determined in the months ahead by a complex web of political and technical factors. There are three major areas of uncertainty when it comes to the Brexit’s impact on energy and climate policy that will be influenced by these negotioations: the future of climate policy, the future of British access to the EU market, and additional potential EU exits. These areas are by far most consequential for energy markets and policy, but are by no means the only areas of uncertainty.
Climate Policy and multilateral agreements
When it comes to multilateral climate policy, the United Kingdom - the European Union’s second largest emitter of CO2 – has partecipated in UN climate negotiations as part of the broader EU bloc, and its climate commitment to the recent Paris Treaty was submitted as part of the broader European commitment. What will happen to the EU target – will it need to be resubmitted, and would any submission need to be more or less stringent without the united Kingdom - remains to be seen. Likewise, whether they will submit a new climate pledge, and the shape and scope of that pledge, is also up in the air. However, the United Kingdom is on the path to cut emissions by 2030 under a domestic law. The broader EU negotiating dynamic on climate moving forward may also change. The United Kingdom is often credited with both pushing for more stringent climate targets and for the adoption of market-based mitigation (rather than top-down-wide stadards and goal setting). How the European approach to climate negotiations may change without the presence of the British remains to be seen.
Access to EU Market : the Framework
A considerable impact of a potential Brexit for energy markets will be determined by the shape of the future EU-UK economic relationship (as well as the political future of the United Kingdom itself). There are, essentially, five possibilities for the relationship: 1) status quo – the United Kingdom does not leave the European Union and remains part of the common market; 2) the United Kingdom leaves the Union but retains full access to the EU single market (the Norway model); 3) the United Kingdom has restricted but significant access to the common market on a bilateral basis (the Swiss model); 4) the United Kingdom does not have acces to the common market but negotiates a separate free trade agreement with the Union (the Canada model); 5) the United Kingdom and the European Union are not able to negotiate preferential trading terms, and access to the common market would be premised on the World Trade Organization rules.
Access to EU Energy Markets
While it would make economic sense for the United Kingdom to remain part of Europe’s internal markets for electric power and natural gas (50% of UK imported gas comes through the Union), that outcome remains to be negotiated. What is less clear, however, is whether the United Kingdom would drop some specific European measures, such as imposed renewable energy targets and Europe’s Industrial Emissions Directive, which controls emissions on power plants. The regulatory upheavel could be significant for energy development in the United Kingdom, with energy regulations currently set by the European Union likely to be the subject of future negotiations. Moreover, the status of access to the common market is also likely to impact the decision of whether the UK continues to participate in the EU emission trading system, which regulates greenhouse gas emissions.
Finally, the broader energy market impacts may be determined by the future of the European Union itself. The British vote to leave the Union is likely to propt other anti-EU forces in other EU countries to hold similar referenda. If the Union were to break apart - either marginally or more substantially, or dissolve altoghether - the consequences for energy markets could be profound.
It is uncertain how the outcome of the referendum will affect political fragmentation across the European Union. A number of countries, including Poland and Hungary, have incumbent euroskeptic governments, while many other member states have growing ranks of opposition parties to current governments who share a skeptical view of the European Union as an institution. If there are other referenda or movements toward exit aming these member states, it is likely to have major impacts on global economic growth and confidence in the markets in general, which in turn would have severe effects on energy markets.
The contents of this article is meant for informative purposes only and cannot be considered as
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 See and read in following pages: Norvegian Model, Swiss Model etc.
 Andrew Stanley, Centre for Strategic Studies.
 Global Fossil Energy and Climate Change mitigation, in Climate Change, May 2016, volume 136, Issue 1, pp. 69-82
At least 30 different entities, plus the United Kingdom, will get to decide on the shape of the UK’s relations with the EU after Brexit. This figure is made up of the 27 Member States, the Commission, the Council and the European Parliament (these last three institutions represent the decision making bodies of the EU). If decision-making in each Member State is broken down into executives and parliaments (with some Member States having two decision making chambers and even the possibility of a referendum in some other Member States), the number of entities becomes very large indeed.
This note is a brief introduction to the complexities of the EU’s decision making in international relations. It discusses the problem of ‘mixed’ agreements (agreements between the EU and third countries which contain commitments in which the EU has competence and the Member States have competence), and the rules for decision-making within the EU.
Article 50 of the Treaty on European Union (TEU, as opposed to the Treaty on the Functioning of the EU, TFEU) provides that any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. Court cases in the UK will determine what the UK’s constitutional requirements are. Judgements are expected before year end. The legal issue: can the executive trigger Article 50 or must parliament decide?
Article 50(2) TEU provides that the withdrawing Member State must notify the European Council (the 28 Member States) of its intention to withdraw. Guidelines are then to be drawn up by the Council and, on the basis of these guidelines, the Council and the UK will negotiate the arrangements for the withdrawal. The UK will not participate in the drawing up of the guidelines.
Article 50 provides that the withdrawal negotiations must ‘take into account’ the framework for the UK’s future relationship with the Union. The UK’s future relationship with the Union will be negotiated under Article 218(3) TFEU (a different Treaty from Article 50).
The phrase ‘take into account’ means that there should be one overall agreement between the EU and the UK or that there should be two distinct agreements: one, the withdrawal agreement; two, the future relationship agreement. This is a constitutional question facing the EU and despite the inclusion of provisions on withdrawal in the Lisbon Treaty, this problem was not addressed. It is likely that this question will be resolved politically but any decision on the issue will be vulnerable to review by the EU Courts in Luxembourg.
Article 50 seems to indicate that the agreement on the future relationship must be a separate agreement because it has to be negotiated within the terms of Article 218 TFEU. But Article 218 is about negotiating with third counties, i.e. countries that are not a part of the EU. While Article 50 does seem to allow a blurring of the distinction between the withdrawing Member State and a Third Country, it does seem to provide for at least two agreements. The blurring is only in relation to the timing of the different negotiations. Thus it looks like at least two agreements are needed and the withdrawal agreement comes first.
If Brexit really means Brexit (i.e. exit), this means that the UK will be a third country for the purposes of EU law. Articles 207 and 218 TFEU set out how the EU negotiates with third countries, what the subject of those negotiations can be, and what EU decision making procedures must be followed (unanimity or majority voting in the Council, approval of the European Parliament etc.). It is worth reading these two articles to see how complex it might become.
What will the content of the future relationship agreement be? We know the UK wants the same access to the EU’s financial markets (and the single market as a whole) as it has today. This means that the decision-making must inevitably be complex.
Financial services are just that: services. And the competence of the EU in services is not complete or exclusive. Member States retain some competences of their own. Where Member States retain competence for a sector but where the EU also has competence, the agreement with third countries is known as a ‘mixed’ agreement. So both the EU and the 27 individual Member States must agree. To make things more complex, unanimity is required in the Council for certain aspects of trade in services such as cultural and audiovisual services or health and education and intellectual property.
So for the more complex aspects of Financial services unanimity will be required in the Council and the approval of the individual Member States will be required. The rule of thumb is: the more complex and innovative the service, the more likely the need for unanimity and the approval of the agreement by the 27 Member States in their domestic law. Getting unanimous agreement will come at a price.
Are there examples of mixed agreements today? CETA, the EU/Canada agreement is a mixed agreement. TTIP will be too. These agreements are not as comprehensive as the agreement the City of London will want with the EU. In the middle of September, the EU Court of Justice will hear arguments whether the draft EU/Singapore agreement is mixed or not. One of the key issues in that case is foreign direct investment. Is portfolio investment EU or Member State competence? Portfolio investment is a fairly low level financial tool. If that is shared competence it can be imagined that many other financial services are mixed. A ruling is not expected before mid 2017.
These complexities arise independently of the more tabloid and hot-topic issues that have emerged in relation to TTIP such as dispute settlement, ring-fencing health and education and general regulatory autonomy. Add to these topics the sorts of UK specific topics such as the free movement of people and it all points to a rather difficult set of negotiations.
The conclusion is stark. There are at least 30 entities that must be in agreement for a deal that is worth doing. The first agreement, the withdrawal agreement, is the easy bit. That can be done in two years. It’s the future relationship agreement that will take time. And today’s international negotiation climate is not auspicious. We have failed to reach agreement in Doha and today TTIP is not looking good. The only significant recent international deal that has been done is on Climate Change. But there lies another problem. It’s a mixed agreement. And it looks like the Netherlands will need a referendum before being able to ratify it.
The UK has decided to take time before launching the withdrawal agreement process. Maybe this is wise. Because a lot of time will be needed to negotiate a future relationship agreement that allows UK financial services to operate in the EU as they do today.
The contents of this article is meant for informative purposes only and cannot be considered as professional advice.
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The number of disputes arising from doing business on the internet is on the increase. In order to unlock the e-commerce potential and to drive the Digital Single Market forward, European Commission has launched a new platform where EU citizens will be able to resolve online dis- pute without going through a court. This article aims to explain the idea that underlies the ODR, to explain how it works, and to summarise the steps which traders should take in order to be compliant with ODR legislation.
Why do we need ODR?
The online dispute resolution (ODR) is a new platform launched by the European Commission in order to help consumers and traders resolve online disputes both for domestic and cross border purchase of goods and services, without the need to go to court .
The idea of settling disputes in an alternative way - instead of going to court – is not new. Arbiration and amicable settlement procedures are common. But they need adapting to the inter- net age. As internet usage continues to expand, it has become increasingly necessary to design efficient mechanisms for resolving Internet disputes because traditional mechanisms, such as litigation, can be time-consuming, expensive and raise jurisdictional problems26. Both consumers and traders ask a low cost, simple and fast procedure which can avoid to go through lengthy and costly court proceedings. Arbitration bodies allow the settlement of disputes out of court. They are generally known as ADR or Alternative Dispute Settlement. They involve a neutral third party to act as an intermediary between consumers and traders. The ADR entity can suggest or impose a solution or simply bring the two to discuss how to find a solution. ODR is the evolution 2.0 of ADR: it is like an ADR procedure but conducted entirely online.
The legal framework
Pursuant to Article 169 TFEU the European Union is competent to legislate in the area of con- sumer policy even if it is a shared competence with the Member States. The legal basis for the establishment of the ODR platform is the Regulation 524/2013 adopted by the European Parliament and the Council on 21 May 201327 which describes the main functions of the platform as well as the workflow for a dispute that is submitted through the plat
form. The Regulation builds upon the Directive 2013/11/EU28 - implemented into Italian law by Legislative Decree 6 August 2015 n.130 - which provides the legal basis for ADR as a whole.
According to an EU Factsheet from January – issued by the Directorate-General for Justice and Consumers – the Directive ensures that consumers have access to Alternative Dispute Resolu- tion when seeking to resolve their contractual disputes in virtually all economic sectors no mat- ter where (domestically or across borders) and how (online/offline) the purchase was made. The Directive has provided for full ADR coverage at EU level. In every Member State and for all contractual disputes in every market sector there will be an ADR procedure available. The Commission is working with the Member States in order to achieve a full coverage of all Member States and sectors as soon as possible. The complaints from a consumer living outside the EU and from a consumer complaining about a trader established outside the EU, or from a consumer complaining about goods or services bought offline (e.g. physically in a shop) are not covered by the Directive. The complainants about higher education or healthcare services are not accepted either.
How does the ODR platform work?
The ODR platform is developed and operated by the European Commission. It has been opened since 9 January 2016 and available for use since 15 February 2016. The platform offers users the possibility to conduct the entire resolution procedure online, it is user-friendly and multilingual. There are four steps:
The ODR platform involves lots of practical benefits both for consumers and for traders.
The first added value of settling a dispute on ODR platform is that users (read here European citizens, consumers or traders) will be more confident in trading online and across borders be- cause they know that any potential dispute can be solved in a quick and low cost way, and - the most important thing – not only out of court but even from their home.The Commission estimates that 60% of EU traders do not sell online to other countries because of the difficulties in resolving potential problems which could be arise from a dispute over the sale.EU Justice Commissioner Vera Jourova said, “One in three consumers experienced a problem when buying online in the past year. But a quarter of these consumers did not complain mainly because they thought the procedure was too long or they were unlikely to get a solution. The new online platform will save time and money for consumers and traders.”
On the other hand, the ODR practice presents an intrinsic contradiction. Mediation is generally based on a face-to-face discussion of the issues between participants. The mediator typically plays the role of the helping party who listen and understands concerns and moreover, who helps parties to empathize with each other. Online mediation loses the dynamics of traditional mediation because it takes place at a dis- tance and in front of computer screens, rather than with face-to-face communication.30 Some authors have argued that the lack of personal presence in online mediation can make it more difficult for the mediator to maintain effective control over the negotiating parties.31
Every online trader will be required under the new legislation to comply with certain obligations:
Currently, non compliance with the ADR Regulation could result in Trading Standards civil en- forcement which could escalate into a court order to comply with the Regulations. Member States will be responsible for elaborating rules on penalties applicable to infringements which cloud result in an unlimited fine or up to two years in prison.
Retail and wholesale services are key for the EU economy. They account for 11.1% of the EU’s GDP and provide around 33 million jobs (almost 15% of total employment in the EU). Over 6 million companies in the retail sector act as intermediaries between thousands of product suppliers and millions of consumers. E-commerce has increased the potential market for retailers and the scope of products available to consumers. The European Commission aims at ensuring that EU wholesalers, retailers and consumers are part of an integrated retail market.
European retail services present a diverse and complex picture. Hence, there is no an unique and homogeneous solution or approach to the challenges they face. The diversity of the retail sector includes differences in terms of the type of providers (SMEs or larger companies), organization (groups of independent retailers, cooperatives, corporations, etc.), outlet sizes, formats, products lines, the supply chains involved, locations, business models, levels of vertical integration, ownership structures and size of operations.
Currently, retailers face varied challenges depending on their size and sector of activity. The development of e-commerce is also putting pressure on the retail sectors to reinvent its business models. In addition, a blurring of the borderlines between sectors (the scope of retail services continues to broaden through the constant addition of new products and services, including financial, telecommunications and travel services, utilities, etc.) means that business models are becoming more and more multifaceted. Global phenomena, such as the consequences of the financial crisis for consumers purchasing power, rising commodity prices, demographic trends, in particular the aging of the EU population, and the drive for
sustainability, all challenge existing retail business models and processes44.
The European Retail Action Plan (ERAP) aims at addressing key obstacles to achieving a Single Market in Retail by setting out a strategy to improve the competitiveness of the retail sector and enhance the sector’s economic, environmental and social performance. It was clear that its strategic goals cannot be met simply by top-down measures, but will require the active collaboration and initiative of the retail sector itself. For example, responsibility for the investment in skills will have yet to be shared, and the retail sector must play an important role here, alongside Governments, individuals, and the educational sector.
Eleven concrete Actions are identified in ERAP. All of these are legally relevant, as future legislative proposals:
The Commission will strengthen cooperation with social partners to create conditions that make it possible to match skills with labour market needs in the retail sector, particularly by identifying and anticipating skills needs through an EU Sectorial Skills Council, and by improving retailers training and reselling
Currently the European retails services sector present a diverse and complex picture. Hence, there is no “one size fits all” solution or approach to the challenges they face. The diversity of the retail sector includes differences in terms of the type of providers (SMEs or larger companies), organization (groups of independent retailers, cooperatives, corporations) outlet sizes, formats, product lines, the supply chains involved, locations, business models, levels of vertical integration, ownership structures and size of operations.
Consequently the European Commission published in 2015 a Report describing the measures taken by the Commission to implement the 11 concrete actions identified in ERAP. In addition, a High Level Group on Retail Competitiveness was set up to advise on retail policy. Through dialogue with stakeholders the Commission will develop good practice guidelines and/or codes of conduct to facilitate consumer access to transparent and reliable information, making it easier to compare prices, quality and the sustainability of goods and services. Further the Commission will propose European methodologies for measuring and communicating the overall environmental impact of products and organizations. A Recommendation (2013/179/E) on the use of common methods top measure and communicate the life cycle environmental performance of products and organizations. A Communication COM(2013) 196 on Building the Single Market for Green Products – Facilitating better information on the environmental performance of products and organizations. It contains a set of principles for communicating environmental performance. Member States must remove all remaining instances of non-compliance with unequivocal obligations under Service Directive concerning access to, and exercise of, retail activities, including eliminating economic needs tests within the meaning of Article 14§5 of Services Directive. The Commission will apply its zero-tolerance policy through infringement procedures, where appropriate. The Commission will carry out a performance check in the retail sector to explore how commercial and spacial planning rules and plans are applied on the ground by the competent authorities where a potential service provider wishes to set up a small, medium or large retail . The Commission will adopt a Green Paper50 detailing the common features of UTPs in the B2B food and non-food supply chain and open a consultation the result of which was be available by late spring 2013. In the context of existing EU Platforms, the Commission will support retailers to implement actions to reduce food waste without compromising food safety (awareness raising, communication, facilitating of redistribution to food banks, etc.) e.g., through the Retail Agreement on Waste; and work on developing a long-term policy on food waste, including a Communication on Sustainable Food adopted in 2013.Through dialogue with Stakeholders, the Commission will define best practices to make supply chains more environmentally-friendly and sustainable and minimise the energy consumption of retail outlets. The Commission will encourage retailers in the context of existing fora to apply these best practices.
The Commission also launched a retail innovation initiatives in 2013 whereby the Commission, with the help of a high-level experts, will explore how to ensure that the retail sector can contribute to, and benefit from, innovative products, services and technologies.
The Expert Group on Retail Sector Innovation, in its final report of 2014 has made concrete recommendation targeted at:
The Commission will examine the feasibility of setting up a dedicated database containing all EU and domestic food labelling rules and providing a simple way to identify labelling requirements per product. During the last two years the Commission has taken measures to ensure better market integration for card, internet and mobile payments through : a revision of the Payment Services Directive was adopted in 2015.51 Finally, the Commission will strengthen cooperation with social partners to create conditions that make it possible to match skills with labour market needs in the retail sector, particularly by identifying and anticipating skills needs through an EU Sectorial Skills Council, and by improving retailers training and reskilling policies.
On 9 December, 2015, the EU Commission revealed its expected plans for the modernisation of copyright law.
According to the Commission, the goal is to adapt copyright law to technological challenges making it more European and digital-friendly, in order to “overcome fragmentation and frictions within a functioning single market”, ensure wider access to content across the EU adapting ex- ceptions to digital and cross-border environments, achieve a well-functioning marketplace for copyright, and provide an effective and balanced enforcement system.
In particular, the strategy discussed by the Commission focuses on three topics, already indicat- ed in the well-known Digital Single Market Communication, dated May 6th, 2015: (i) content portability across borders; (ii) copyright exceptions; (iii) enforcement 1.
In addition, the Commission proposals clearly aim at renewing the single market and the princi- ple of copyright territoriality, even adapting copyright rules to new technological realities.
The Commission confirms the step-by-step approach in a context of a short-term copyright re- form, without abandoning the long-term vision of EU copyright codification. The long term ob- jectives are just moved a little further into the future2.
The “portability” of online content services
With reference to the matter of “content portability”, EU Commission has taken a concrete step. In particular, “the ultimate objective of full cross-border access for all types of content across Europe needs to be balanced with the readiness of markets to respond rapidly to legal and policy changes and the need to ensure viable financing models for those who are primarily responsible for content creation. The Commission is therefore proposing a gradual approach to removing obstacles to cross-border access to content and to the circulation of works”3. In this regard, the proposal for a regulation on the “cross-border portability” of online content services ensures that users - who have subscribed to or acquired content in their country of residence - can access the above-mentioned services when they temporarily move to another Member State. In particular, as described in the official Q&A published by the Communication in December, the European Commission wants to allow cross-border portability enabling European consumers who buy or subscribe to films, sports broadcasts, music, e-books and games at home to access them when they travel in other EU countries. In any case, the Regulation leaves service provid- ers free to implement appropriate measures in order to verify the identity of the subscriber, bearing the liability of selecting those verification measures which effectively respect the privacy of the latter.
Therefore, the main objectives of the Commission are:
Furthermore, a goal of the Regulation must be the obligation for online content service provid- ers to offer cross-border portability to their customers. This provision will take place in the Member State in which the consumer resides, therefore, “no separate license would be required to cover the temporary use of the service in other Member States”.
The exceptions area
In the section of copyright exceptions and limitations, the Commission highlighted the scope of the exceptions relating to the field of research and education. In particular, the project of the Commission is to take into account legislative initiatives imple- menting the Marrakesh Treaty6 and involving:
With reference to this last point, it must be underlined that what it is expected is a concrete commitment to a strong exception for Freedom of Panorama. At the same time, on the other mentioned points, it has to be noted that the language describing a possible exception for text and data mining is extremely limited both in terms of beneficiaries (‘public interest research or- ganisations’) and purpose (‘for scientific research purposes’). Furthermore, restricting an excep- tion for text and data mining to the public interest academic research severely underestimates the transformative potential of these technologies, and will do little to improve the competitiveness of Europe in this expanding field. With such respect, the Commission has proposed a “three-step” test, meaning that the exceptions shall be applied only in “certain specific cases which do not conflict with a normal exploitation of a work or other subject matter and do not unreasonably prejudice the legitimate interests of the right holder”.
At the same time, the Commission underlined the importance to harmonise the levies that compensate right holders for reprography and private copying. Indeed, the Commission pointed out that many Member States imposed those levies on a wide range of media and devices, applied in many different ways across Europe. This caused a legal uncertainty that must be settled. The Commission observed a need for action to ensure that different systems of levies imposed by Member States work well in the single market without raising barriers to the free movement of goods and services. The Commission has also explained that “issues that may need to be ad- dressed include the link between compensation and harm to right holders, the relation between contractual agreements and the sharing of levies, double payments, transparency towards con- sumers, exemptions and the principles governing refund schemes, and non-discrimination between nationals and non-nationals in the distribution of any levies collected”9. This means that the Commission will also begin to reflect on how levies can be more efficiently distributed to right holders.
A brief outline of the remuneration of authors and performers
The Communication calls for action to ensure right protection of authors against unfair con- tracts. In particular, due to the strategy adopted by the EU Commission, in order to achieve a modern, more European copyright framework, in a highly competitive market-place, the authors shall be equally treated and remunerated.The Commission examined possible definitions of the “making available” and “communication to the public” rights10. In particular, the Commission must consider whether any specific action on news aggregators is needed, including intervening on rights. The Commission seems to want to take into account the different factors that influence this situation beyond copyright law, “to ensure consistent and effective policy responses. Initiatives in this area will be consistent with the Commission's work on online platforms as part of the digital single market strategy”.
Lastly, it has to be considered whether solutions at EU level are required in order to achieve le- gal certainty and balance in the area of remuneration of authors and performers in the EU, even taking national competences into account.
The expected balanced enforcement
At the end of its Communication, the EU Commission also announced that there is a need for concrete reform in the field of enforcement. In particular, the role of intermediaries in the fight against copyright infringement must change. As seen in the official Q&A, “the Commission will facilitate the development of efficient and bal- anced "follow the money" initiatives which aim at depriving commercial-scale infringers of intel- lectual property rights of their revenue flows. This process will involve rights holders and inter- mediary service providers (such as advertising and payment service providers and shippers) but also consumers and the civil society”. In other words, this means that internet service providers shall not be liable for the content that they hold and/or transmit passively. However, intermediaries should take effective action to remove illegal content, both in case of illegal information (e.g. terrorism/child pornography) and in case of infringing information (e.g. copyright). The Commission will ask for more rigorous procedures in order to remove illegal content, such as ‘notice and action’ mechanisms and the ‘take down and stay down principle’).
All in all, the Commission package has regard to emerging issues relating to the full harmonisa- tion of copyright in the EU, even in the form of a single copyright code, creating a situation “where authors and performers, the creative industries, users and all those concerned by copy- right are subject to the very same rules, irrespective of where they are in the EU”. On a long-term basis, the purpose is to build a European single market, where the different cul- tural, intellectual and scientific productions “travel across the Europe as freely as possible”.
Current EU data protection law, based on Directive 95/46/EC, has finally been sentenced to death: on 14 April, in fact, after four long years of negotiations at the institutional level, the European Parliament adopted the data protection reform package, the so-called “GDPR – General Data Protection Regulation”, which marked a crucial milestone for the birth of a stronger European-wide right to privacy.
This fundamental step comes at a time where significant advances in information technology have been achieved and there have been radical transformations to the ways in which individuals, organisations and public institutions communicate and share information.
Therefore, the divergent approaches in implementing EU data protection laws taken by than ever and pushed the EU towards new and more effective ways to harmonise European privacy legislation.
Furthermore, European citizens’ growing awareness on risks and dangers relevant to their personal data (i.e. also driven by recent global outrage for massive surveillance scandals and data breaches), fostered the approval of a common set of rules applicable within and outside the EU’s borders.
Nonetheless, despite the significant efforts by the legislature to re-think the basis of EU personal data privacy law, the final deal was not as comprehensive as initially hoped. In fact the process of adopting this law shows that you cannot have the best of both worlds.
The final version of the package adopted on 14 April 2016 by the European Parliament – and then published on the EU Official Gazette on 4 May 2016 – is therefore the synthesis of the most suitable and viable compromise solution EU legislators could buy into bringing privacy law to a higher level of complexity, while setting aside controversial topics for future institutional talks, i.e. “hot potatoes” including the e-Privacy Directive reform, employment issues and, last but not least, the new EU-US Privacy Shield.
In essence then, the reform package, made up of a Regulation (i.e. the General Data Protection Regulation or GDPR) and a Directive (i.e. the Police and Criminal Justice Data Protection Directive), represents a fundamental keystone for the creation of the future EU Digital Single Market and an important step towards greater legislative harmonisation on privacy and data protection issues across the continent.
The package will now enter a two years’ implementation period during which Member States will have to adapt domestic legislation to the new EU rules by 25 May 2018.
In fact, over the course of this time-frame, organisations need to understand clearly what changes are most likely to affect their sector of activity and be prepared to assess their level of compliance with the reform’s new requirements.
As for the definition of the traditional categories of players subject to accountability in EU privacy law’s “chain of responsibility” (i.e. data controller and data processor), many of the core definitions from the previous Directive remain essentially unchanged.
At a national level, for instance, in Italy, the legislator and the Italian Data Protection Authority (i.e. the Garante), after having found themselves faced with the difficult task of balancing the reform package with the current domestic regulatory framework and adapting it to Italian legal terminology, decided to maintain the current translation of “data controller” (i.e. titolare del trattamento) and “data processor” (i.e. responsabile del trattamento) in order not to cause unnecessary interpretative burdens for public and private entities processing data.
Moreover, the entry into force of the GDPR will definitely cause major concerns for private and public institutions operating in several areas (e.g. from banking to health care) because of stricter and more pervasive privacy obligations to comply with.
Where the Regulation will be deemed to be applicable to a business entity processing personal data, for example, the entity will need to provide clear evidence that it is in full compliance with the new rules to either national Data Protection Authorities and the future European Data Protection Board, which will replace Article 29 Working Party’s role and functions.
Same thing will apply to the public sector and, for the very first time, also to data controllers and processors based outside the EU but conducting businesses (i.e. processing data) within EU borders.
Currently, if a data controller is established in any Member State, it is considered subject to the discipline established by the Directive as implemented by national laws and regulations of that legal system, however under the GDPR this distinction will fall apart.
The Regulation, in fact, will only apply in case that a legal entity, either public of private, offers goods or services to data subjects in the EU or monitors their behaviour within the borders of the EU.
For instance, a business established in the US that markets its products directly in the EU single market but has no physical presence in the EU, will now be subject to the requirements of the GDPR as if it was established on European soil.
This important aspect, along with others (e.g. the obligation to conduct regular privacy impact assessments, the new privacy by-design and by-default principles or the duty to appoint a data protection officer and a national Representative where prescribed), are an expression of the strategy behind the desire to regulate and adequately circumscribe the power of telecom and digital multinationals processing personal data of EU citizens through a borderline approach to privacy compliance.
In fact, the entry into force of the GDPR will indeed force big companies that have previously regarded non-compliance with EU data protection law as a “calculated risk” to re-evaluate their position especially in light of the substantial new fines (i.e. up to € 20 mln or 4% of the annual worldwide turnover) and increased enforcement powers given to national Data Protection Authorities (e.g. total ban on processing and in depth investigative capacity above all).
On the other hand, the same companies processing personal data, either from within the EU or outside, will benefit from a significant degree of autonomy in dealing with Member States’ data protection authorities through the new One-Stop-Shop mechanism, which will connect controller and processor with a single “lead authority” on the basis on the location of its “main establishment”, i.e. the place where the main processing activities take place. It is now clear how difficult has it been for EU legislators to combine civil society’s push for a stronger protection of the individual right to privacy with legitimate interests of companies to collect and process personal data. But a compromise solution has been successfully achieved. With a greater simplification and a substantial de-bureaucratisation of some privacy obligations (i.e. same rules apply in all EU Member States with no need to contact twenty eight national DPAs), comes the revamped focus on data protection in all corporate policies and regulations as a guarantee of stronger and deeper protection to individuals’ rights.
As for Italy, the Garante’s serious approach to the new rules will surely show a reasonable and sound approach in choosing how to better integrate the letter of the GDPR with the Italian Data Protection Code (i.e. Legislative Decree no. 196 of june 30th, 2003).
In conclusion, only time will tell whether more stringent and incisive privacy rules have been enough to raise and consolidate EU and global data protection standards and made IT compliance and cyber security a number one priority for all companies and public institutions. There is still a long way to go for the full implementation of the GDPR. Different Member States still have some room for different approaches. However the key development is the recognition that privacy compliance is a real strategic asset for the private and the public sector alike and the birth of a corporate culture of data protection and social responsibility might be closer than it seemed even in recent years.