Nº39
NOVEMBER 28
2020
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ANJUM SHABBIR
EDITORIAL COMMENT
THE DIGITAL NEBULA OF ARTIFICIAL INTELLIGENCE: THE EU’S CHALLENGES AND APPROACH TO REGULATION
IS IT TIME TO TALK ABOUT GENUINE EU TAXES AND THE REFORM OF THE EU’S ‘TAX ARCHITECTURE’?
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Nº39 · NOVEMBER, 28 2020
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The Digital Nebula of Artificial Intelligence: the EU’s challenges and approach to regulation Anjum Shabbir
The use of Articial Intelligence is a colossal advance in how we interact with our environment - at work, at home, and in leisure. It is not a specialised theme for the eyes of IT lawyers only: it is highly important for all areas of life and law, including justice matters and human rights law, consumer and liability law, intellectual property law, and competition law. This eld has been bubbling and simmering for a while, but it seems ready to burst onto the EU’s legislative agenda following various actions and documents issued by different EU Institutions and actors throughout the year, in their consideration of possible new and revised legislation to reckon with.
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Introduction: A common approach in 2020 to future AI legislation that is ‘human-centric’, fundamental-rights focused, and ‘risk-based’ Articial intelligence is not exactly a new phenomenon, but this account of the EU’s current relationship with it stems from an initial approach laid out on 10 April 2018, when 24 Member States and Norway committed to working together on AI by signing a Declaration promising what appeared to be low-level coordination, opinions from the ECSC and Committee of Regions, and the input of a High Level Expert Group. The documents emerging from the Institutions at that time, such as the Commission’s Communication of 25 April 2018, focus heavily on investment, competition, and research and innovation. Later, in 2019, the Commission published its non-binding guidelines on ethics in AI, which set out seven key requirements that AI developers should follow: human agency and oversight, technical robustness and safety, privacy and data governanc e , t r a n s p a r e n c y, d i v e r s i t y, n o n discrimination and fairness, societal and environmental well-being, and accountability.
This Long Read will focus on the EU’s approach in 2020 to the regulation of Articial Intelligence based on EU Institutional documents from the European Commission, European Parliament, and Council of the European Union, as well as the reports of the EU’s Fundamental Rights Agency, considering the challenges and risks that need to be overcome in drawing up any regulatory, legislative measure, and noting, along the way, the existing tools under EU law and CJEU case law.
1. Anjum Shabbir is an Assistant Editor at EU Law Live.
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There is a new impetus for a common EU approach to AI Regulation with President von der Leyen's Commission
centric AI, related civil liability, and IP rights. Finally, it is also visible in the Council of the EU’s conclusions adopted in June and October 2020.
That approach has certainly taken on a sharper shape since the beginning of this year with the arrival of President Ursula von der Leyen and her new Commission. A new impetus leading to a clear common approach shared by the European Commission, the European Parliament and the Council of the European is evident: for AI regulation that is ‘human centric’, addresses ‘clear risks’ to fundamental rights, and is ‘risk-based’. Evidence of that approach can be seen in a number of EU documents, including the Commission President’s Keynote speech in January, Commissioner statements later that month, its Communication of 19 February on Europe’s Strategy for Data, and White Paper on Articial Intelligence (for which a consultation had been open from February to June 2020), and its September studies on digital criminal justice and innovative technologies focusing on AI and calling for greater EU-level coordination. It is also clear from the European Parliament’s January Resolution and reiterative February Resolution, and three reports it approved at its Plenary Session of 19-22 October on a human
Below is an examination of selected challenges the EU legislators face in regulating AI, what legal tools currently exist, and the way in which it seems the EU will act to address the issues.
1. The rst challenge in EU regulation: the legal denition of AI AI evokes the image of ‘robots’ (like Johnny 5), or more specically machines with supercomputing capacity that learn from large amounts of data used to train them to autonomously predict or emulate human behaviour and decision-making, potentially surpassing human capacities (often accompanied with a sense of foreboding). One of the best-known examples of AI, and the least controversial, comes in the form of gameplaying supercomputers, such as IBM’s Deep Blue, and Google’s AlphaGo.
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ched VAT exception (or lack thereof) and whether there had been a single supply of services: the Court merely described the entity in question as a ‘software platform’. A few years ago, in 2017, Advocate General Wathelet’s Opinion in Lahorgue (C-99/16) had referred (albeit perhaps only as a reective remark in the introduction) to how ‘articial intelligence programmes inevitably transform the way in which the profession and its practice are conceived’, but the case was really only about blocking technical access to a private network - a lawyer’s complaint about being refused a router in order to electronically lodge procedural documents before the courts of another Member State - the issue being that this was an obstacle to the free movement of services.
But the denition of the term ‘articial intelligence’ is the rst challenge that stares legal professionals in the face due to a number of diverging ways to describe it, which is even a feat for computer scientists (see for example the denitions of Elaine Rich, Patrick Winston, and the table of eight different denitions set out by Stuart Russell and Peter Norvig). There are also different types of AI: narrow and weak, or general and strong (though the latter has not yet developed and no system currently operates with it). It can also either be in the form of software, an application, a service or embodied by hardware. It is in fact recommended by some voices in the legal bubble to gently evade attempting to pin a description down for legal purposes (see one explanation of it as an ‘imprecise term’ that comes with complex technical difculty here, and reasons advocating against trying to dene it here).
Indeed, so far there is a dearth of references to ‘articial intelligence’ in the rulings of the Court of Justice - probably because cases involving AI have not yet been presented before the Court: so there is no guidance on its denition from this EU Institution.
From the Court of Justice, this mother of AIregulatory challenges can already be seen through the prism of two Opinions from Advocates General (AG). AG Pikamäe issued his Opinion in Blackrock Investment Management (UK) v HMRC (C-231/19) in March this year. He described the preliminary ruling before him as a test case of the EU’s VAT rules in the context of articial intelligence where different types of investment funds were concerned. He equated sophisticated analysis and risk-modelling by a software combined with other tools and an IT platform to mean articial intelligence, whereas AI goes beyond that and entails autonomous learning and decision-making. In the judgment the Court made no reference to AI - the case in any event being rather about categories of investment funds and the atta-
Until such a denition arrives in the EU’s legislative arena, it can be expected that in some cases for which deciding whether there is AI or superseding human intervention is integral, parties will be able to exibly argue whether articial intelligence is or is not involved according to their own interests. And then turning to that legislative agenda, the main document emanating from an EU Institution that gives us an indication of the EU’s possible regulatory or legislative approach to a denition of AI for EU legal purposes is the Commission’s White Paper on AI,published in February this year (building
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Whatever the nal denition turns out to be, what will probably need the greatest attention is a class or subset of articial intelligence that is called ‘machine learning’: any algorithm that can learn from its data (such as by feeding it enormous amounts of images of trees), supervised or unsupervised where the goals and outcomes are not set using human involvement - such as for identifying patterns, categorising images, and translating language in texts. Once trained, machine learning algorithms are used to draw inferences on data it has not encountered before, for example, recognising a tree in a new picture.
on the Commission Communication of 25 April 2018 referred to in the introduction). The White Paper rather broadly and vaguely refers to AI as ‘a collection of technologies that combine data, algorithms and computing power’ and separates the main elements of AI as being ‘data’ and ‘algorithms’. A data scientist may wonder why the most important element of ‘training’ (recalling the selflearning aspect) is not considered a main element (and which distinguishes AI from computer programming/coding). This does not seem to draw on the more specic HighLevel Expert Group’s denition either: ‘software (and possibly also hardware)
There is also a more advanced application of AI called ‘deep-learning’ that may have to be considered: this is where neural networks, instead of simulating human intelligence and modifying algorithms, emulate the functioning of the human brain in a nonlinear way, using multiple units (or ‘neurons’) stacked in a hierarchy of increasing complexity and abstraction, to learn on their own and independently of human program-
systems designed by humans that, given a complex goal, act in the physical or digital dimension by perceiving their environment through data acquisition, interpreted the collected structured or unstructured data, reasoning on the knowledge, or processing the information, derived from this data and deciding the best action(s) to take to achieve the given goal’.
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ming (see this explainer). Those neural networks are trained by being fed extremely vast amounts of input data (‘training data’), on the basis of which algorithms ‘learn’ how to use additional data from the environment and surroundings, and adjust accordingly to create new algorithms and thus autonomously reach outcomes that were not originally and specically programmed in the design: automated and independent decisions. Thus they are more autonomous (‘autonomy’ itself probably also having to be dened) and less transparent.
2. A second challenge: drawing the personal scope Another glaring challenge is to whom - or on what - to impose obligations, and therefore liability for accountability, transparency and litigation purposes - such as when violation of rights, damage to property or loss of life has occurred where AI is involved. Should legal personality be conferred on the hardware and software encapsulating AI? Companies and entities are recognised as legal persons, but whether legal personality can be granted to a machine itself has not been the subject
A legal definition of AI that is both clearly defined and flexible is sought
A question arises as to whether legal personality can be conferred on software and hardware encapsulating AI
Going back to the denition suggested by the Commission in the White Paper, the EU therefore does actually have one of sorts, but as it desires one that is (perhaps paradoxically) both ‘clearly dened’ and ‘sufciently exible’ for future EU measures, the ‘loose’ denition may be intentional.
of debate among the EU Institutions. Therefore the issue could rather be whether to assign legal responsibility to the designer of the software, designer of the hardware, manufacturer, computer programmer / developer, data scientist/analyst, commissioner(s) of the project, owner(s), or even the user(s). There are strong and clear indications, as referred to in the introduction, that the EU institutions favour human intervention to address the specic challenge of personal scope, described by them as a ‘human-centric’
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Commission Staff Working Document of 2016). If those products cause damage to property, or injure or lead to death, there is a clear need to be able to resolve the identication of possible defendants for liability purposes as referred to above, and to understand the decision-making process in order to be able to challenge it. Current EU product safety and liability law does not deal with these peculiarities, and there is no specic provision on robotics, with the possible exception of the Machinery Directive 2006/42 and the Product Liability Directive 85/374 (which is now 30 years old). Furthermore, EU product liability legislation provides for liability of producers and leaves national liability rules to govern liability of others in the supply chain.
approach. That stance and language can be seen explicitly from statements made by the Commission President, her Commissioners, and the Commission’s Communication on Europe’s Strategy for Data; the European Parliament (see the Resolutions and reports referred to above); and the Council of the EU’s conclusions in June and October 2020. The Commission took this into account in its White Paper, describing the challenge as the ‘opaqueness’ of AI, and suggests splitting liability among actors - with no further or specic guidance on how and precisely amongst whom: ‘each obligation should be addressed to the actor(s) who is (are) best placed to address any potential risks’. In terms of extra-territorial reach of liability however, it did make clear it is in favour of a GDPR-style approach that goes beyond EUbased entities which would deal with the complexity of AI operating in a borderless manner (see Article 3 GDPR, and the European Data Protection Board’s Guidelines explaining that territorial reach here).
The EU’s approach to address this matryoshka-like sector-specic concern within the concern can be seen, rst, through the output of the European Parliament, which has in particular called for any regulation to provide information to consumers and for a review of the existing EU law, and in particular the Product Liability Directive. The Commission is, second, not against that kind of review and amendment of the current EU product safety legislation according to its White Paper, recognising that it does not cover safety in this respect, and that there needs to be an assessment and human oversight of products and services over their lifecycle, a change to the concept of ‘safety’, and it even suggests possible targeted harmonisation of national liability rules such as on the burden of proof. That hint at harmonisation is enforced by its expressing the need for smooth access to the single market.
There is a need for overarching rules in drawing the personal scope to address this challenge, but a layer of complexity emerges as there is also a need for sector-specic rules (as will also be shown below with respect to material scope). The particular sector that warrants mention here is that of product safety and consumer law, which has been highlighted by the EU institutions. In this eld, there are clear risks of health, safety and issues of liability where articial intelligence is concerned. Examples are selfdriving cars that are able to make their own decisions and ‘the Internet of Things’ (for an explanation of what that comprises, see this
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There is no specic mention of this in the Commission’s White Paper, Parliament’s Resolutions or Council’s conclusions. In general, IP had not emerged as a major theme in this year’s main EU Institutional documents on AI until one of the European Parliament’s three recently approved reports pointed out issues of attributing ‘inventorship’. And there is still an ongoing debate as to whether there is yet a need to adjust the competition law framework (but which is inevitable - see below).
Touching upon competition law too, questions arise such as: who should be ultimately liable for anticompetitive conduct emerging from AI? Should there be vicarious liability for the company concerning the conduct of its employees or directors? Would a parent company be responsible for its subsidiary’s unlawful competition behaviour? (see more on AI and regulation in this eld below).
Another question, apart from that relating to obligations, is who is entitled There is a need for an In any event, the above mento rights-protection under overarching legal tioned human-centric EU apfuture AI regulation, which proach signals a general prinis demonstrated well from framework as well ciple that could orient the the perspective of another rights-element of personal specic sector - that of inteas sector-specific scope of AI regulation in thollectual property law. As it regulation se legal elds. stands, it is unclear who has the rights of ownership and use over such AIgenerated works under copyright law. Cu3. The third challenge: deciding the rrent EU law includes the Computer Promaterial scope grams Directive 2009/24 which provides protection for computer programs as a liteAI is rather pervasive and can be used for rary work for copyright purposes - related to any number of purposes affecting every asbut not quite the same as AI, the Database Dipect of life and area of law. Therefore the marective 96/9 which provides legal protection terial scope of any AI regulation would have for database creators - but which actually exto be very wide, and this certainly poses a sigcludes computer programs used in the manicant regulatory question mark, in partiking or operation of databases accessible by cular given the area-specic risks and chaelectronic means, the Copyright Term Dillenges that emerge: should there be a master rective 2006/116, and Copyright Directive framework, or should existing legislation be 2001/29. Those Directives take a broad apreviewed and amended? proach, which is unsuited to the specicity required for AI-regulation; they confer a wiIntellectual Property de margin of discretion on Member States; and require a legal or natural person to Staying on the topic of intellectual property whom to attach rights. to provide an example, one issue is not just who is entitled to the rights of ownership and
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copyright protection, but precisely when machines that function partly autonomously can produce creative works which are an ‘author’s own intellectual creation’. Another issue relates to the rights of reproduction: the Court of Justice’s ruling Infopaq (C-302/10, handed down in 2012) on these rights would for example need to be reconsidered and rened. In that case newspaper articles were copied, scanned, processed and converted into a digital le using an automa-
The use of facial and speech recognition to identify specic people in public spaces generates questions of freedom of movement, mass surveillance, freedom of assembly, and discrimination problems emerging from facial recognition applications performing much worse at recognising the faces of black women than white men. The use of AI to predict who is likely to commit a crime or reoffend in justice systems, as predictive policing systems, may also prove to be discrimi-
ted process, and it was considered whether a ‘data capture process’ was still an integral part of a ‘technological process’ where there was human intervention under the Copyright Directive. The material scope of any regulation would have to identify these issues and be drafted accordingly.
natory (see this UK High Court case as an example). And there is an increased planned use of facial images in the large-scale EU databases in the elds of migration and security that could have the same detrimental impact. In the employment and human rights context, if AI is used for job selection and recruitment procedures, processes such as relying on past successful applicants’ average working hours, this could lead to gender discrimination if women are more likely to work less hours on a part-time basis.
Human rights and discrimination The most controversial risks and subjectmatter of material scope for AI regulation however emerge in other legal elds: such as in the area of human rights, discrimination, and the justice context.
The digital twist for regulatory purposes is that discrimination can come from (i) the
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quality of the data that is actually collected due to misrepresentation or lack of representation (that can for example lead to exclusion from access to certain goods, services, social benets and so on); (ii) from the training data used to train the AI - because the data itself is biased; or (iii) because of structural biases that are created through new, possibly hidden, possibly intentional algorithmic models. This means there can be overt discrimination, proxy discrimination, intentional discrimination, hidden discrimination, structural discrimination and entrenched discrimination. Essentially, this means there is the challenge of tracing how a decision was made through the rules and correlations made by the AI that led to the decision (namely the subject matter of a dispute): if an algorithm has evolved through its own learning processes and the steps leading to a discriminatory outcome cannot be pinpointed due to the black-box character of information technology systems (where reverse engineering may be impossible or impractical due to signicant barriers), it may be difcult to show the necessary elements to prove that there was discrimination in violation of EU law. Copyright issues and trade secrets could also be used to block access to information about the datasets fed in, which is needed to assess a potential breach. There is a large body of anti-discrimination EU law that is available to address the above risks of abuse - but it is of course not quite designed for this very specic kind of potential discrimination, and in terms of personal scope leans heavily in favour of protection of workers and the internal market. It includes the Race Equality Directive 2000/43, the Equal Treatment at Work Directive 2000/78,
the Gender Equality at Work (recast) Directive 2006/54, Goods and Services Gender Equality Directive 2004/113, and the EU Charter and TFEU provisions, that may be called upon to deal with legal issues relating to articial intelligence. The Commission’s White Paper is aware of this existing legislation and does also recognise this aspect of what it describes as ‘AI opaqueness’, which ‘can make the application and enforcement of this legislation more difcult’. The approach to this from both the Commission and Parliament is to set out ‘transparency’ rules and require at least consumers to be informed about when they are dealing with a human or machine in AI situations, but for which no further detail is provided. The EU’s approach overall, from the institutional actors referred to in this Long Read, reects a desire to address these human rights and discrimination issues through a fundamental rights-based approach: in particular, see again the statements from Commission members and its White Paper, Commissioner Vestager’s concerns about facial recognition technology in an interview held in September here; Parliament’s Resolutions and the three recent reports referred to; the Council’s conclusions of June and October (that articial intelligence tools must not interfere with the decision-making power of judges or judicial independence, or infringe the right to a fair trial and effective remedy). See also, more recently, the German Council Presideny’s conclusions in late October agreeing on that fundamental rightsapproach and identifying what rights should be protected, recalling the EU’s values as set
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dentication and false positive identication rates). It notes that the civil society actors and the High Level Expert Group suggest clear regulation on these specic matters, and that there is no case law that can be of assistance as of yet. (See also other FRA reports: on Big Data and discrimination generally, on data quality and bias, and also on Articial Intelligence, Big Data and Fundamental Rights for a wider overview)
out in Article 2 TEU, and examining them in turn, with sections under ‘justice’; ‘citizens’ rights’; ‘solidarity’; ‘equality’; ‘freedoms’ and ‘dignity’. Going back to the beginning of this section, to consider facial recognition technology in particular, it should also be noted that the EU’s agencies and bodies have expressed possible responses: the European Data Protection Supervisor’s Opinion on the White Paper presented at the end of June 2020 emphasises a need for more safeguards of EU values and fundamental rights, including advising postponement of the use of articial intelligence in public spaces (see also the EDPS’s September update). The Fundamental Rights Agency has also published a report on the human rights implications of live facial technology and ‘predictive policing’ given that several national law enforcement agencies are exploring its potential. It points out that facial images are sensitive and biometric data are protected under EU law (Articles 7 to 8 and 10 to 12 of the Charter, Article 9 GDPR, Article 10 Law Enforcement Directive) - and the potential for inaccuracies and abuse (such as through misi-
The EU has a blueprint for its approach, but the above shows that the material scope of a single regulatory instrument will have to be exceedingly wide, or that a large number of instruments will have to be amended. Data protection Remaining on the topic of data protection rights, which are accepted human rights, it is important to recognise another facet of data: AI runs on Big Data - that is precisely what it needs as much of as possible to learn or be trained, whether in the context of simple self-learning algorithms, machine learning or deep learning. This clashes with EU data protection law.
AI feeds on Big Data: the more, the better - contrary to the GDPR principle of data minimisation
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First, data deletion under Article 17 GDPR might not be possible in articial intelligence: nding the data is a challenge because it might be located in several places in a database, in various databases, in log les and backups, and replicated so that it can no longer be traced (as touched upon earlier). The individual bits of data are used as a collective whole or partial dataset to generate new outcomes. Even if it can be found, changing one bit of data could disrupt the entire system. Second, for similar reasons, obtaining the consent of every relevant actor in respect of really vast amounts of data may prove extremely difcult practically or impossible. Third, the data minimisation principle enshrined by the GDPR does not work when, as mentioned above, it is precisely Big Data - and the more the better - that is required for the AI to learn, operate and develop. Fourth, the principle of privacy by design is a problem for the same reason. (For more on the GDPR and AI connection, read this European Parliament Study). In terms of EU institutional response to address this apart from the Parliament’s Study, the Commission has noted the requests of stakeholders to the European Data Protection Board to clarify the rules around AI with respect to the GDPR in a Staff Working Document of June this year, but the substantive issues mentioned above do not appear to have been raised. Whether the inextricable nature of the need for Big Data for AI will be addressed and how this will sit with the GDPR must also be considered in the material scope of any AI regulation.
Competition law Turning to competition law, a number of concerns emerge that could be the subject of the material scope of future AI regulation. Those concerns stem from the potential for AI to make independent decisions on behalf of a company that could breach EU competition law, such as through: dynamic and articially-high price-xing by self-learning AI with reference to the data of competitors; tacit collusion by AI through the alignment of initial code and algorithms provided by a third party supplier, as that would lead to improved business outcomes; and abuse of dominance, in ways that the current rules are not designed to address. Concerning the latter, one existing example could be Google as a search engine provider, which was found to have abused its dominant position through criteria of its generic search algorithm with the objective of demoting competing comparison shopping services in the search results list, to its own benet. However, any setting out of the material scope will also have to consider that a distinction must be made between intelligent adaptations to t h e m a r k e t , a n d p a r a l l e l b e h aviour/coordination. Health and Cyberattacks Other matters of material scope which are arguably particularly pressing in current circumstances in the EU and abroad are (i) ehealth and AI (see this Commission Implementing Decision and the EMA’s press release of September on using Big Data for public health purposes - note also that China is not shy of using AI in healthcare, a robot already having passed the medical test), and
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Do we need a special EU Digital Agency?
(ii) the soaring threat of crime and cyberattacks as the use of AI becomes more commonplace, but which will not be dealt with here (see however this Joint Communication on cyberattacks).
tail if laid out in regulation. In that vein, the Council in its conclusions of June called on the Commission to make concrete proposals following a risk-based approach, and if necessary a ‘regulatory approach’.
Conclusion 4. A fourth challenge: what test for proportionality? As seen above, the EU Institutions favour a ‘human-centric’ and fundamental rightsbased approach. But the Commission and Council have also proposed a ‘risk-based’ approach which entails adding a specically spelt out rule of proportionality to the whole scheme of AI regulation - as opposed to a strict liability regime. The Commission White Paper in particular proposes a division of liability for what is ‘high risk’ and what is not, supported by the European Parliament. For the latter, it suggests voluntary labelling: this would entail the creation of a new legal instrument that sets out the voluntary labelling framework for developers and/or deployers of AI systems that are not considered as high-risk. This will all require far more de-
Taking all of the above into account, a widescale review of existing EU legislation can be expected next year. The Commission also promised in its Work Programme in late October that it will soon put forward proposals for legislative measures. And it seems likely that the approach discussed will be incorporated: namely that it will be humancentric, fundamental rights-focused and risk-based. As identied, there will be a number of challenges to overcome relating to the legal denition of AI, personal scope, material scope, and a liability regime based on proportionality. Perhaps it would not be unreasonable if a new EU agency composed of data scientists and lawyers were to emerge to assist the EU in this mammoth task.
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Is it time to talk about genuine EU taxes and the reform of the EU’s ‘tax architecture’? Editorial Comment
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cused on creating rules and in ensuring their enforcement, its modest budget can be justied.
The EU’s budget represents approximately 1% of the Union’s GDP. This is in stark contrast to the size of Member States’ budgets, which amounts to a range of 30 to 35% of the respective national GDP. The dwarsh volume of the EU’s nances pales in comparison to the scope of national chequebooks, as it also strikes a powerful contrast to the ambitious goals that the EU is committed to pursue. How is the EU to ensure peace, prosperity and equality when its budget amounts to approximately a fth of the United States’ annual military spending? Moreover, two thirds of the revenue side of the EU’s current budget still depends on contributions from the Member States.
However, in recent years – under the impression of crises that were disastrous for the national economies of the Member States – Member States seemed to have realised that the EU is better equipped to preserve nancial stability and to ensure mid-to-long term objectives of economic soundness and resilience, also essential for the proper functioning of the internal market. The eurozone’s monetary policy worked as an engine for change and called for the unexpectedly rapid establishment of a Banking Union, which in turn needed a true Capital Markets Union (recently boosted by the Commission). The creation of a common currency and the need to do ‘whatever it takes’ to save it, has also created incentives to push forward a ‘federalising’ or (however limited) ‘centralising’ agenda in the elds of economic and scal policy. This has also led to signicant advances in budgetary supervision of the Member States. The embryo of a scal Union is clearly in the making, but its limbs, gender and features have been very much determined.
To a large extent, these anomalies can be explained by the fact that the EU provides no direct services in areas such as education, health or security, transport, and so on, at least in the way in which Member States have traditionally secured them for their citizens. The EU was conceived as, and still is, mostly a regulatory machine, endowed with supremacy, in the quest to build an internal market of 27 countries as a means towards creating ‘an ever closer union among the peoples of Europe’. And yet, the EU is no State in the making, so far. As long as the EU is fo-
1. By The Editorial Board of EU Law Live.
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The embryo of a fiscal Union is clearly in the making, but its limbs, gender and features have been very much determined
The path taken by the EU in 2020 is now slowly but steadily heading towards a more central, if not federal, fiscal Union
of changes in traditional own resources or new ones in order to provide funding for the proposed Multiannual Financial Framework (MFF) 2021-2027. These complements include: (i) a simplied value added-tax based own resource; (ii) ‘green’ own resources, such as a new resource based on the Emissions Trading Scheme, a new Carbon Border Adjustment Mechanism, and a tax on nonrecycled plastics; (iii) a less homogeneous own resource basket including a nancial transaction tax, the common consolidated corporate tax base or a new digital tax. The Commission also added, initially, a sort of levy for companies that ‘draw huge benets’ from the common market which does not appear to have been considered further in the legislative process.
COVID-19 has accelerated the creation of a scal Union in a dramatic way. The collapse of national economies has driven the EU to take a gigantic leap forward, as exemplied in the outcome of the European Council of 14-17 July 2020 or the Draft Council decision on the system of own resources of the European Union derived from it and still in the legislative process (2). The Recovery Fund, the creation of new own resources, the possibility for the EU to issue signicant debt, SURE and other innovative policy measures will transform the EU’s ability to use nancial repower to save the European economies in unknown ways. The link of these extraordinary measures with the need to increase the EU budget is one of the most crucial political and legal issues at the heart of the EU’s response to the crisis, but it is also likely to shape the development of scal law in Europe in the years to come. For the short and medium term, the Commission has already proposed, and the Council and European Parliament have considered, a number
The path taken by the EU in 2020 is now slowly but steadily heading towards a more central, if not federal, scal Union. The time at which we will reach a nal destination is a matter of speed and nuance, but the overall
2. See European Parliament legislative resolution of 16 September 2020 on the draft Council decision on the system of own resources of the European Union (10025/2020 – C9-0215/2020 – 2018/0135(CNS)), with relevant amendments to the text from the Council.
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EU’s ability to condition national taxes. The goal seems to be settled with a broad consendebate is an old one, but the circumstances sus among the Member States and EU Instihave changed radically since the times in tutions (having left behind a sceptical Briwhich pioneering tax lawyers envisioned tain, whose scarce appetite for federalising the creation of genuine European taxes. The adventures might have facilitated the bold creation of the euro, an integrated banking European move). Now, the question is whetand nancial market, massive EU bond isher the tailored measures proposed by the suance to support domestic economies, maCommission and still in the legislative procroeconomic surveillance of the Member cess will be enough to truly advance in the esStates and collective risk-taking or some tablishment of a consistent and sustainable common and new poliscal Union in the long cies, have all driven the term or should be seen just EU to a scenario in which as a promising starting Reconsideration of the EU taxes are not a choice, point. It is doubtful that but a necessity. the former will be the case. EU’s tax competences
requires a thoughtful Reconsideration of the To that end, rethinking the EU’s tax competences reissue of EU taxes becomes debate and disentangling quires a thoughtful debate critical. The power to tax and the power to spend ha- several different problems and disentangling several different problems too ofve been sacred terrains of too often conflated ten conated. This is a M e m b e r S t a t e s o v etruly fundamental issue, reignty, and the EU is limibut not one to be solved ted in this terrain in two sigquickly, since the role of nicant ways. First, by its new or harmonised taxes in the current debalimited powers to raise taxes and, second, its te on the rst post-COVID decision on the modest outreach and ability to interfere in system of EU own resources for the 2021the taxing and spending powers of the Mem2027 MFF (currently under discussion) will ber States. Furthermore, the EU has evolved probably be a minor one for several reasons. in almost all (former rst pillar) areas toFirst, the basket of taxes already identied as wards majority voting and more involvecandidates to join the EU own resources are ment of the European Parliament except in either of limited revenue-raising capacity or, taxation, up to a point that there is a serious to their limited relevance, digital taxes add asymmetry and tension between the revenue the potential, if unilaterally enforced by the side of the EU budget, the EU spending poEU, to create new distortions, trade conicts wer and the evolution of the EU competenand to undermine the efforts of other interces (or what the EU can and is expected to national organisations to build a truly interdo). national tax system (this is not to say that the OECD’s ongoing works in this eld, mainly The time has come to reconsider the EU’s the so called Pillar 1, are problem-free themcompetences in the eld of taxation, both selves, or should be simply assumed by the from the perspective of EU taxes and the 16
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of the Member States for taxes) truly acts as an insurmountable obstacle for any chance of the EU to pursue a genuine tax (and, consequently, other) policy independent from the Member States.
EU without critically reviewing their virtues or aws). Second, more importantly, the current institutional architecture of the EU is (traditionally) deemed to require a ‘double unanimity lter’ if taxes are to become harmonised through EU legislation and are included within the EU’s basket of own resources: on the one hand, Article 311 TFEU (own resources) and, on the other, Articles 113 (indirect taxes) and 115 (direct taxes) or Article 192.2 (environmental taxes) TFEU. The chances of using Article 116 (distortions of competition) – which the Commission has recently evoked, but that has been an old aspiration, are hard to predict. Given its ambitious requirements, the bar for the successful use of Article 116 TFEU is set quite high. The major advantage of this legal basis – the use of the ordinary legislative procedure – may turn out to be its major aw in the eld of tax legislation. All legal bases in the Treaties that refer explicitly to taxes require a unanimous vote in the Council, which seems to be a condition that may not be circumvented by relying on more general legal bases that allow for a qualied majority voting.
In the medium or long term, the situation should change and all this calls for a limited reform of the EU’s tax architecture. While it is natural that some Member States and EU citizens try to retain control of the resources transferred to the EU, it is no less important to recognise that a more robust European Union calls for taxes that make EU institutions more democratic, transparent, accountable and closer to the peoples of Europe (4). In an inversion of the leitmotif of the American revolution, representation is hardly conceivable without taxation: the power to levy taxes makes institutions accountable to their citizens and, at the same time, independent to pursue their own policy goals whatever they are (true EU solidarity in a postCOVID era, as claimed by many European citizens, a more robust, transparent and legitimate EU economic policy that could back the euro, EU leading environmental and digital transformation policies and so on). Reecting on having truly EU taxes entails a profound pondering on the type of Union we may want or whether we want it at all, its size (with more or less revenues), accountability, solidarity and relations among their people and Member States.
Therefore, it seems likely that the lion’s share of the funding of the EU budget will continue to rest, at least in the short run, on the shoulders of the Member States (3). The current institutional setup (the unanimity rule
3. See C. Fuest and J. Pisany-Ferry, ‘Financing the EU: New Context, New Responses’, Policy Contribution 2020/16, Bruegel (presented by these authors to the Informal Meeting of EU Ministers for Economic and Financial Affairs, ECOFIN, 11-12 September 2020). After studying the policy options within the current constitutional setup, they conclude that the only viable new resource might come from the emissions trading system and its transfer to the EU level. For them carbon border adjustments are intended to limit competitive distortions rather than to generate revenue, and digital and minimum taxes are better left to the OECD, nancial transaction taxes will probably not meet the needed consensus and taxes on non-recycled plastic is not t for purpose due to its limited capacity to raise revenue and its mainly environmental local purpose (reduction of plastic in a specic jurisdiction). 4. See the manifesto of a group of EU Tax Professors here: .
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This calls for a limited reform of the EU’s tax architecture
In this context, it can even be argued that more reection is needed than really new taxes, since VAT is already there, with an (always evolving) harmonised EU legislation and a consolidated case law. The reform of the VAT own resource – along the lines proposed by the Monti Report (5), which the EU Council of 17-21 July 2020 has agreed to simplify – might save time in technical discussions, legislative processes and avoid the problems that may be encountered with other taxes (new or national ones that need to be harmonised). In some elds, new taxes should not be excluded. However, for the latter (and also for VAT), radical reform of the current institutional setup to attribute to the EU the power to levy taxes does not appear as a viable or even realistic option.
The passerelle clauses of Article 48(7) TEU or for environmental taxes, Article 192(2) TFEU, as proposed by the Commission (6) (or with a more limited and slightly different scope) seem to be a better and more feasible form of achieving majority voting in taxation and more involvement of the EU Parliament in the design (and selection) of new EU taxes. For the Euro area, the use of the passerelle in Article 333 TFEU could be a further option, which allows for the purposes of an enhanced cooperation (which would be amongst Euro area Member States) to switch to the ordinary legislative procedure, although to date the experience with enhanced cooperation in taxation has not been very promising. Whatever the options in taxation for a shift towards majority voting, in a post-COVID-19 context the appetite for
5. Final report and recommendations of the High Level Group on Own Resources (‘Monti Group’), Future Financing of the EU, 2016, pp. 53 ff., available here. See also the Commission’s Proposal for a Council Decision on the system of Own Resources of the European Union, Brussels, 2.5.2018 COM(2018) 325 nal. 6. Communication from the Commission to the European Parliament, the European Council and the Council ‘Towards a more efcient and democratic decision making in EU tax policy’, Strasbourg, 15.1.2019 COM(2019) 8 nal.
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the new EU taxes may not be high, in view of the own nancial needs of the Member States, unless these taxes foster policies to transform the EU and have the effect of reducing their contributions to the EU budget. To date, national taxing powers and unanimity in the Council have acted as a brake to further European integration or have not evolved in parallel with the EU’s main institutional developments. After the giant step taken by the European Council in July, EU taxes should probably be the essential corollary of the decisions taken and a fundamental element of a more democratic, transparent and accountable EU. The Treaties have the right tools to eliminate (in all or in part) the obstacle of unanimity in tax matters and allocate new tax tools to the EU without radical institutional reform. The question is: when will the Member States have the political determination and willingness to cross this Rubicon, albeit keeping the core of their tax sovereignty? In the answer lies the future of the EU.
When will the Member States have the political determination and willingness to cross this Rubicon?
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News Highlights Week 13 November to 27 November 2020
Infringement proceedings opened for failure to transpose the Audiovisual Media Directive
Austrian State aid scheme to support companies losing fixed costs due to COVID-19 approved
Monday 23 November
Monday 23 November
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The European Commission launched infringement procedures against 23 Member States and the UK for failure to transpose the revised rules of Audiovisual Media Services Directive 2018/1808 for the protection of TV and video-sharing viewers by 19 September 2020.
The European Commission approved the Austrian “Fixkostenzuschuss Phase II” scheme under the State aid Temporary Framework, allowing companies facing xed costs that cannot be covered by their revenue as a result of the COVID-19 pandemic to be nancially supported.
German State aid scheme to support companies losing fixed costs due to COVID-19 approved
Two individuals subject to EU cyberattack sanctions: Implementing Regulation
Monday 23 November
Monday 23 November
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The European Commission approved a German ‘umbrella’ scheme to support the xed costs that companies cannot recover through revenues due to the COVID-19 pandemic, under the State aid Temporary Framework, allowing up to 30 billion euros to be provided.
The entries on the EU’s sanctions list concerning two individuals who are subject to restrictive measures against cyberattacks threatening the EU or its Member States were updated by the now published Council Implementing Regulation 2020/1744 and CFSP Decision 2020/1748.
General Court to hear case on conditional approval of Grupa Lotos acquisition
EU’s updated rules on renewal procedure for active substances published
Monday 23 November
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Ofcial publication was made of the action (T-585/20) brought by Polwax SA against the European Commission’s Decision of 14 July, in Case M.9014, by which it approved the acquisition of Groupa Lotos by PKN Orlen, both large Polish integrated oil and gas companies.
Monday 23 November
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EU rules on how to submit a renewal application for active substances and on the requisites for admissibility were published in Commission Implementing Regulation 2020/1740, within the meaning of Regulation 1107/2009 on the marketing of plant protection products.
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Ryanair brings action against Germany’s State aid to Condor: action published Monday 23 November
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Irish air carrier Ryanair DAC lodged an action for annulment (T-577/20) - now published - against the European Commission’s Decision approving a temporary 380 million-euro loan to charter airline Condor via a German public development ban in State aid case SA.55394.
Grand Chamber of the Court of Justice: State aid granted to compensate services of general economic interest but not notified to the Commission gives rise to illegality interests Tuesday 24 November
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The Grand Chamber of the Court of Justice ruled in Viasat Broadcasting UK (C-445/19), on the nancing of public-service broadcasting through State subsidies, clarifying if non-notied aid which is compatible with the internal market means illegality interest must be paid.
ECtHR: temporary lack of sufficient individual space in prison does not amount to inhuman or degrading treatment if overall conditions of detention are adequate
Court of Justice clarifies that EU jurisdiction rules under tort law can apply where parties’ dispute includes contractual issues if abuse of dominant position has been alleged
Tuesday 24 November
Tuesday 24 November
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The European Court of Human Rights decided in Bardali v. Switzerland (application no. 31623/17) that the prohibition of inhuman or degrading treatment (Article 3 ECHR) was not breached by the applicant’s conditions of detention in a prison in Geneva.
The Court of Justice handed down its ruling in Wikingerhof GmbH &Co. KGv Booking.com BV (C-59/19), holding that the dispute falls under the EU’s jurisdictional rules for torts in order to examine a competition law issue concerning Terms and Conditions, rather than contractual jurisdictional rules under Regulation 1215/2012.
Council backs EU-China Geographical Indications Agreement
Clear reasons must be given for refusal of Schengen visa if acting upon objection of another Member State, Court of Justice rules
Tuesday 24 November
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The Council of the EU gave its nal consent to the Agreement on Geographical Indications) between the European Union and China, which was concluded in November 2019 and signed last September. The agreement will now enter into force at the beginning of 2021.
Tuesday 24 November
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A Member State must make clear why it has refused a Schengen visa if acting upon the objection of another Member State, the Court of Justice ruled in joined cases R.N.N.S. and K.A.v Minister van Buitenlandse Zaken (C-225/19 and C-226/19), under the Community Code for Visas and Article 47 of the Charter.
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Court of Justice: Dutch public prosecutors are not an ‘executing judicial authority’ in relation to EAWs given their relationship with the Justice Minister
Commission publishes Impact Assessment to extend scope of the Directive on Administrative Cooperation to crypto-assets and e-money
Tuesday 24 November
Tuesday 24 November
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The Grand Chamber of the Court of Justice ruled in C510/19, Openbaar Ministerie (Faux en écritures) that public prosecutors in the Netherlands do not constitute an ‘executing judicial authority’ within the scope of Article 6(1) of the European Arrest Warrant Framework Decision.
Representative Actions Directive adopted by European Parliament Wednesday 25 November
The European Commission published an Inception Impact Assessment on the future revision of the Directive on Administrative Cooperation 2011/16, which aims to improve cooperation between national tax authorities, particularly in emerging areas such as cryptoassets.
Commission presents action plan on Integration and Inclusion for 2021-
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On Tuesday, the Plenary of the European Parliament voted in favour of adopting the Representative Actions Directive, the rst EU-wide instrument allowing consumers to jointly bring cases to a court to obtain compensation when their rights have been breached.
Court of Justice: remuneration system by copyright management company with de facto monopoly is not contrary to Article 102 TFEU Wednesday 25 November
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The Court of Justice conrmed in SABAM (C-372/19) that the imposition of a remuneration model on organisers of musical events for the use of copyright-protected works based on gross income from ticket sales by a copyright management company which has a de facto monopoly in a Member State does not constitute an abuse of dominant position under Article 102 TFEU.work’
Wednesday 25 November
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The European Commission presented an Action Plan on Integration and Inclusion of migrants for the 2021-2027 period, as a way to foster social cohesion and build inclusive societies throughout the EU.
Court of Justice upholds Commission’s appeal, confirming its approach on joint and several liability and its power to determine date on which its fines are payable Wednesday 25 November
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The Court of Justice delivered a judgment in Commission v GEA Group (C-823/18 P), upholding an appeal by the European Commission against a General Court judgment in T-640/16 which annulled its Decision nding a breach of Article 81 EC relating to the tin stabiliser and epoxidised soybean oil and esters sectors.
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ESMA: application of DTO will continue following end of UK transition period
EU Pharmaceutical Strategy adopted by Commission
Wednesday 25 November
Thursday 26 November
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The European Securities and Markets Authority released a statement clarifying that the EU’s trading obligation for derivatives under Article 28 of Regulation 600/2014 (MiFIR) will continue to apply following the end of the UK’s transition period on 31 December 2020.
Court of Justice confirms that family members of long-term residents residing in third countries must be taken into account to determine entitlement to social security benefits Thursday 26 November
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In Istituto nazionale della Previdenza Sociale (joined cases C-302/19 and C-303/19), the Court of Justice conrmed that the principle of equal treatment applies in the consideration of family members of long-term residents residing in a third country for the purposes of determining entitlement to social security benets.
State aid: Commission greenlights German tender mechanism to compensate for early closure of hard coal-fired power plants Thursday 26 November
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The European Commission announced its decision not to object under EU State aid rules to the competitive tender mechanism introduced by Germany to compensate hard coal-red power plants for their early closure.
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The Commission adopted a ‘Pharmaceutical Strategy for Europe’ that is designed specically for situations in times of crisis (self-described as learning lessons from the COVID-19 pandemic), ensuring access to medicine, robust supply chains, but also with industry aims.
Commission presents proposal for a Data Governance Act Thursday 26 November
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The European Commission unveiled its proposal for a Regulation on European data governance on Wednesday, aimed at strengthening data-sharing mechanisms across the EU to create wealth for society, increase control and trust of citizens and companies regarding their data, and offer an alternative European model to data handling practice of major tech platforms.
Parliament advocates a shift in EU industrial policy Thursday 26 November
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The European Parliament plenary overwhelmingly adopted a report calling on the European Commission to revise its new Industrial Policy Strategy, published in early March 2020 during the early days of the COVID19 pandemic.
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Commission adopts Action Plan on Inte- Progress in negotiations for a new interinstitutional Mandatory Transparency llectual Property Register READ MORE ON EU LAW LIVE Thursday 26 November Following a College Meeting, the European Commission adopted a new Action Plan on Intellectual Property. The new plan aims at ‘enabling the European creative and innovative industry to remain a global leader and at speeding up Europe’s green and digital transitions’ and to help companies, especially SMEs.
Thursday 26 November
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Progress has been made in the ongoing negotiations between the European Commission, the Council and the European Parliament regarding the 2016 Commission proposal for a new inter-institutional agreement on a mandatory Transparency Register for interest representatives.
Commission presents new Action Plan The European Public Prosecutor’s Offion Gender Equality and Women’s Empo- ce appoints first 14 European Delegawerment in External Action ted Prosecutors Thursday 26 November
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Thursday 26 November
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The European Commission and the High Representative of for Foreign Affairs presented a new Action Plan on Gender Equality and Women’s Empowerment in External Action 2021–2025 (GAP III) to promote female empowerment as a priority of all EU external action policies.
The European Public Prosecutor’s Ofce (EPPO) recently announced that it has appointed the rst 14 European Delegated Prosecutors, who will be joining the EPPO in early 2021.
Pharmaceutical companies Teva and Cephalon fined for illegal ‘pay-fordelay’ patent settlement agreement
AG Hogan: Commission’s conclusions in inward processing procedures are not challengeable before EU Courts
Friday 27 November
Friday 27 November
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The European Commission announced on Thursday that it would be ning pharmaceutical companies Teva and Cephalon 60.5 million euros for breaching EU competition rules by agreeing to delay the market entry (by several years) of a cheaper generic version of Cephalon’s drug for sleep disorders (modanil) after Cephalon’s main patents had expired.
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Advocate General Hogan advised the Court of Justice in Thyssenkrupp Electrical Steel (C-572/18 P) that a Commission ‘conclusion’ in a customs procedure dealing with the authorisation for the use of ‘inward processing’ is not a subject matter that can be litigated under an Article 263(1) TFEU procedure.
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EFTA Surveillance Authority launches infringement procedure against Norway for restricting claims of sickness benefits while abroad
AG Hogan: damage to the EU can be taken into consideration in disciplinary proceedings against EU officials irrespective of other compensation paid
Friday 27 November
Friday 27 November
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The EFTA Surveillance Authority sent a letter of formal notice to Norway as a rst step in an infringement procedure for barring sickness benets from being paid when recipients go to other EEA states, contrary to EEA rules on the coordination of social security systems and on the free movement of persons.
Advocate General Hogan delivered his Opinion in DK v EEAS (C-851/19 P), advising the Court of Justice on whether damage to the integrity, reputation or interest of the EU can also be taken into consideration in order to determine the seriousness of an ofcial’s misconduct and to decide upon the disciplinary penalty to be imposed.
Polish-Hungarian joint statement against the envisaged rule of law conditionality mechanism linked to the EU budget
Admissibility criteria of actions before the General Court to be examined (again) by the Court of Justice in Klein v Commission
Friday 27 November
Friday 27 November
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Polish Prime Minister Mateusz Morawiecki and the Head of the Hungarian Government Viktor Orbán issued a joint declaration aligning their positions against the envisaged rule of law- conditionality mechanism linked to the EU budget and reafrming their threat to veto the adoption of the EU's MFF and coronavirus recovery plan as a whole.
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An appeal (C-430/20 P) brought before the Court of Justice by Christoph Klein against the order of the General Court of 2 July 2020 in Christoph Klein v European Commission (T-562/19) as published. The General Court found that Mr Klein’s was time-barred and that the applicant did not have standing to bring proceedings in his own right.
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Insights, Analyses & Op-Eds Repairing the consistency of EU competition law: reimagining appreciability By Alexandre Ruiz Feases
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Op-Ed discussing a profound transformation of EU competition rules prohibiting abuse of dominant position under Article 102 TFEU, and examining whether these rules, Article 101 TFEU and merger control are really aligned with each other to make up a consistent EU legal system.
The Grand Chamber of the CJEU rules on the characterisation of competition law claims against a contracting party By Vincent Richard
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Op-Ed examining cross-border jurisdictional matters arising from the recent Wikingerhof (C-59/19) ruling of the Court of Justice, on the crucial issue of the distinction between contractual matters and matters related to torts under the Brussels I Regulation, and considering that the case is likely to be applied to many other legal proceedings across Europe where contractual parties deem themselves victims of the dominant position of their counterparty.
The Concept of Judicial Authority in the execution of the European Arrest Warrant: Squaring the Circle? By Angelo Marletta
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Op-Ed analysing the Court of Justice’s ruling Openbaar Ministrie (C-510/19) as adding another piece to the substantial CJEU case law on the autonomous concept of ‘judicial authority’ under the EAW Framework Decision, and for the rst time addressing he issue in the context of the execution phase and not, as has been the case up to now, in the issuing phase of an EAW.
Ne bis in idem, freedom of movement, and data protection in Bundesrepublik Deutschland (Notice rouge d’Interpol) By Francesco Rossi
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Op-Ed considering the standard and limits of the prohibition of double jeopardy, or ne bis in idem, as applied in the context of an Interpol Red Notice issued to a Member State and the subject of Advocate General Bobek’s Opinion in Bundesrepublik Deutschland (Notice rouge d’Interpol) (C-505/19)
Withdrawing legislative proposals at a whim? The case of the CAP reform By Matteo Bonelli and Merijn Chamon
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Op-Ed on the institutional law matter of the Commission withdrawing a legislative proposal: providing an opinion on when it may do so lawfully, and with suggestions as to the relevant - but different - thresholds that ought to be met.
European Commission v GEA Group AG (C-823/16) By Jokin Beltrán de Lubiano
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Analysis of the Court of Justice's ruling in Commission v GEA Group, examining the interplay between the principles concerning joint and several liability of undertakings for competition nes and the maximum amount of the ne possible under the Merger Regulation, and nding that the 10% ning ceiling has no further signicance in the other rules and principles to determine nes, in contrast with national competition laws.
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EU Institutional Law in Times of Pandemic (Part II): actors, functions, and interactions
EU’s response to breaches of human rights and democratic values during the pandemic
By Dolores Utrilla
By Anjum Shabbir
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This Insight, the second of two Parts, explores the EU institutional changes that have been triggered by the COVID-19 pandemic, on how actors have adjusted operationally, cross-cutting functional mechanisms that have been employed, and the impact on the principle of institutional balance and division of powers.
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Insight providing an overview of the main COVID-19 related national and EU measures that breach EU human rights and democratic values, the test to examine whether restrictions in an emergency are lawful, and the EU’s judicial, legislative and policy responses to protecting the fundamental rights of EU citizens in these circumstances.
Library - Book Review Laurence Burgorgue-Larsen
By Giorgo Malinverni
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Les 3 Cours régionales des droits de l’homme in context. La justice qui n’allait pas de soi Review that looks at the comparative study of the three Regional Human Rights Courts, ‘an undertaking never before undertaken’ that ‘gives us some very relevant personal reections on the past, present and future of international human rights law, and is written by ‘an academic who is a renowned specialist in this branch of law’ who unusually also includes recent political history.
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