As part of its strategy for a digital single market, the EU Commission is planning to make Europe fit for the digital era, dismantle regulatory barriers and improve cross-border market access for consumers and companies in the EU. It sees the digital single market as having an additional economic potential of approximately 415 billion euros. In the process of achieving these ambitious goals, virtually the entire statutory framework for the digital economy is to be revised and reformed over the next two years. These reforms offer a unique chance to develop a harmonised and simplified regulatory framework fostering innovation, thus enhancing Europe’s competitiveness in global digital markets.
Proposals for digital policy in the 21st century
On the basis of the “Key Points of a Digital Regulatory Policy” study conducted by Prof. Dr. Gerald Spindler (University of Göttingen) and Prof. Dr. Christian Thorun (Quadriga University), SRIW is advocating a modern digital policy with the following core propositions:
- The forces shaping the information society include such key aspects as disruptive business models, rapid innovation, strongly divergent consumer expectations and the cross-border nature of many services.
- Generally speaking, these particular features require relatively abstract and technology-neutral regulation by the state legislator.
- Co-regulation as a supplementary instrument can be effective here in countering the resulting grey areas and legal uncertainties.
- Such measures can only be effective within a regulatory framework. This framework has to establish the minimum standards for developing codes of practice, the involvement of important (critical) stakeholders, monitoring, evaluation and complaint procedures as well as penalty mechanisms. Moreover, for the instrument of co-regulation to function effectively, structural obstacles have to be dismantled and incentives created for the business sector.
In many cases, this would facilitate the process of establishing how existing legal regulations ought to be applied to new technological and market developments without having to wait for many years for decisions from the highest courts or constantly calling for new laws. Under constitutional law, private standards may have legal force if they are developed and implemented under certain accepted minimum requirements. The EU Principles for Better Self- and Co-Regulation summarise the Commission’s view of such minimum requirements. In the context of the laws covering technical safety, the German Federal Constitutional Court has expressly noted that the legislator itself cannot formulate every requirement in cases where constant and highly flexible adaptation is needed to respond to complex issues.
SRIW’s proposal is not only based on the results of a trilogue on data protection laws focusing on Sections 38 and 38a BDSG (German Data Protection Act), but also includes the existing mechanisms to recognise technical standards and their legal effects as practised in the area of product safety law.
SRIW has presented and discussed a concrete draft of a standard clause in Brussels, where it met with a predominately positive reaction.
It is proposed to create a legal incentive, as in the case of product safety, by giving recognised codes of conduct a legal force.
Standard Clause to Strengthen Co-Regulation in the Digital Single Market
Against this background, SRIW has drafted a concrete proposal for a statutory standard clause. The idea is to flank the intended cut-back in legal regulations with an effective statutory framework for co-regulatory measures facilitating the state recognition of such measures and linking them to particular legal effects. Such a move would enhance the dovetailing of abstract legal rules and measures through delegated legislation with the latter concretising such rules in specific contexts, thus allowing a faster and more flexible reaction to current challenges and changes in the market. Rather than the objective here being self-restraint on the part of the legislator or an unnecessary formalisation of existing self-regulatory approaches, such a proposal aims at expanding the available toolbox by introducing an additional level of recognised standards which, thanks to their legal force, would help create greater legal certainty for all market participants.