On 18 September 2019, Professor Ulla Neergaard made a presentation at the FIDE Fundacion Congress at Jesus College, Oxford, on the approach of the European Court of Justice of the European Union (hereafter the CJEU) in the context of the digital revolution. The aim of the presentation was to outline, explore and analyse the approach taken by the CJEU in the crosscutting field of digital technology and free movement to see how it has developed existing rules to embrace new realities. Intuitively, one would expect the Internet and free movement to constitute the perfect couple, where the former would enhance the well-being of the latter. However, other interests may also need to be factored in.
The CJEU could have a particularly significant role to play in establishing a modern regulatory environment for this area. However, the Court has had on the one hand to consider the need for facilitation of the room for manoeuvre of digital pioneers and the need for ensuring its traditional market liberalising approach to free movement of goods and services, but on the other hand also the need for proportionate protection of the wider public interest as well as the need to ensure that national autonomy is protected so far as is consistent with the Single Market.
At the same time, as digitalization of society intensifies strongly as has happened in recent years, this has led to political EU-winds blowing in the direction of establishing a ‘Digital Single Market’. In turn, the extent of the mentioned tensions is likely to intensify still further.
Yet there can be no holding back the tide. It is very timely to pause to consider that the Internet in the year 2018 was considered to have celebrated its 25th anniversary and considered as being of such importance that it is often being referred to as one of the New Seven Wonders.
The analysis on which the presentation was based on considered nearly twenty CJEU cases, which are fairly explicitly concerned with the primary law on freedom of movement of goods and services in an internet context. On the basis of the analysis, it may be concluded that the CJEU is generally in favour of the Internet, thereby viewing it as a beneficial facilitator of free movement. Yet, the Court is also trying to strike a proper balance which takes account of specific national regulatory interests and the impression gained is that it is not always easy for the CJEU to balance between free movement and national concerns in the transnational environment generated by the Internet. The approach of the CJEU at times, therefore, appears somehow ‘curious’. It is faced with an EU legislative vacuum in some areas and, as a result, it appears to have chosen a piecemeal, case-by-case approach, which is more reminiscent of a common-law system, but necessarily so.
Considering the widespread perception that the EU legislators have failed adequately to understand and react to the speed of the digital revolution, the CJEU has had to do its best. But this is not optimal, since it is difficult for it to strike the right balance, and it will inevitably veer towards protecting the free movement. That might be a blunt weapon, where a society has to make hard choices based on a complex multiplicity of factors, including for instance the protection of privacy, consumer protection and the need to safeguard the most vulnerable users. What the ‘Digital Single Market’ will mean in practice is still to be seen; at present, it may to some degree sound like a good marketing phrase, but that does not change the fact that appropriate regulatory interventions are needed.
On a larger scale, at times characterized by a shift from fascination, or even euphoria, to a strong degree of worry and perhaps fear, by some referred to as digital paranoia, the founder of the Internet himself, Tim Berners-Lee has captured the concerns in the following manner: ‘Humanity connected by technology on the web is functioning in a dystopian way. We have online abuse, prejudice, bias, polarisation, fake news, there are a lot of which ways in which it is broken. This [proposal put forward by him] is a contract to make the web one which serves humanity, science, knowledge, and democracy’. In the long run, the need for EU wide legislative intervention has only intensified. Thus, relying solely on courts, as this short synopsis (and the underlying analysis) has to some degree illustrated, may prove insufficient and inappropriate.
Ulla Neergaard’s work on these matters will soon be published as a book chapter in: “General Principles of EU Law and the EU Digital Order” under the editorship of S. de Vries, U. Bernitz, X. Groussot, and J. Paju, Kluwer Law International
Professor Ulla Neergaard
Professor of EU Law, Faculty of Law, University of Copenhagen. She also has substantial experience in senior non-executive roles in the public sector in Denmark. She was formerly chair of a prominent EU wide legal professional institution, which coordinates expert input on significant issues of EU Law. She has held several appointments as an “expert member” to several boards/committees, Most recently she has been a member of the Appeals Permission Board. She is a member of the advisory boards of the Common Market Law Review and the Nordic Journal of European Law, and is a member of the editorial board of “Europarättsligt Tidskrift”. She is often used as a peer reviewer, among others for Oxford University Press and Cambridge University Press. She also acts as an assessor of Ph.D. theses and in relation to senior academic appointments. She is responsible for many of the EU-law courses (BA and MA) at the Faculty of Law at the University of Copenhagen, which mainly focus on the internal market. She obtained her Ph.D. at the European University Institute, Florence.