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A last chance to deliver


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The Digital Single Market mid-term review

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A last chance to deliver

  1. 1. TheDigitalSingleMarketmid-termreview Alastchancetodeliver May 2017
  2. 2. © Brunswick 2017 | 2 Outstandingor underwhelming? Two years ago, the European Commission came upwith abold plan to make Europe a world leader in information and communication technologies: theDigital Single Market (DSM) Strategy. It pledged to give the EUthetools to succeed in theglobal digital economy, to make better useof theopportunities offered by digital technologies. Halfway through theimplementation of its strategy, theCommission congratulates itself for itsbold approach to deliver tangible and noticeable benefits to theEUthrough digital policy, and for doing its share of thework through its legislative initiatives. Butin reality, theCommission has started with low-hanging fruit and has mostly delivered some quick, easy wins, aimed at reconnecting theEU with itscitizens suchas theabolition of roaming charges, thecross border portability of online content and the ban on unjustified geo-blocking. Otherinitiatives are instead progressing slowly. Too progressive for Member Statesand not ambitious enough for theEuropean Parliament, several bold projects to overhaul sector legislation –suchas on copyright and telecoms law - are stuck in thegridlock thatis typical of EU decision-making. Thereview is therefore being usedto apply pressure and - perhaps - to play theblame game: theCommission says theball is now in Member States’ and theEuropean Parliament’s court. Itis now upto themto showpolitical responsibility and implement theDSM strategy that wasagreed. TheCommission hasalso been criticized for its creative useof competition policy, as away to short- circuit thelegislative process. The e- commerce sector inquiry is thelatest example of thisapproach, with afocus on high profile, political, competition cases. The Digital Single Market mid-term review outlines the European Commission’s plans until the end of its term in 2019. The DSM review takes stock of the EU’s digital policy actions over the past two years and is the last chance of the Juncker Commission to create its legacy. Expect policy actions on cybersecurity,online platforms and the free flow of data bythe end of 2017. In parallel, the European Commission published the long awaited results of its competition inquiry in the e-commerce sector, paving the way for future enforcement action(s). What is the DSM Strategy? TheDigital Single Market (DSM) Strategy isa policy paper published by theEuropean Commission on 6 May2015. It outlined aplan to create asingle European market with harmonized rules for digital products and services. TheDSM Strategy is one of the10 priorities of thecurrent European Commission led by Jean-Claude Juncker. It intended to boost European jobs and growth, to open updigital services to all citizens and strengthen business competitiveness in thedigital economy. TheEuropean Commission estimates it can unlock €415 billion in additional annual European GDP, €250 billion of which could be delivered during theCommission’s current mandate ending in 2019.
  3. 3. © Brunswick 2017 | 3 The triplewin TheCommission claims successfor the delivery of whatit calls its “triple win” for European consumers - three, soon to be implemented initiatives that are supposed to bring tangible, visible, benefits to European consumers. Those are :  The abolitionof retailroaming charges.Consumers willbe able to travel the EU and use their phone withoutpayingroamingsurchargesas of June 2017.  Cross-borderportabilityof online content.Consumerswill be able to enjoy films,music,sports,and broadcasts whileon holidayor temporarily abroad.  The ban on unjustifiedgeo-blocking. Consumers willbe free to purchase goodsand servicesfrom providers in othercountries without discriminationbasedon nationalityor location. Themore substantial elements of the Digital Single Market Strategy, from the deployment of 5G across Europe to the revision of privacy rules for electronic communications or theoverhaul of copyright law, may still take years to materialize. The e-commercesector inquiryresults Inparallel to thepolicy work on digital issues, theEuropean Commission’s competition department hasbeen investigating potentially abusive practices in thee-commerce sector. Two years and hundreds of questionnaires afterstarting an inquiry into thee-commerce sector in 2015, theCommission haspublished thefinal results and outlined futureactions. TheCommission’s findings assert that certain common practices in theonline environment may be in breach of EU competition law. For traders of consumer goods these controversial practices largely relate to selective distribution systems, enforced through contractual restrictions on pricing, platform bans, restrictions on theuseof price comparison tools and exclusion of pure online players from distribution networks. Unexpectedly, theEuropean Commission also identified theuseof big data in e-commerce as apotential anti-competitive practice under certain conditions. For digital content, theCommission highlights certain licensing practices, suchas bundling of rights or thelength of contracts, thatmake it more difficult for new players to enter themarket and ultimately result in limited consumer choice. As a result, new antitrust investigations will be launched targeting companies inthe e- commerce sector, giving the European Commission a new opportunity to make use of its competition enforcement prerogative. Inparallel, theCommission will strengthen thedialogue between national competition authorities to ensure theconsistent application of competition law in thisarea among the Member States. TheCommission also plans to review theframework for vertical selective distribution agreements –a common practice in luxury and high end tech goods –and will usetheinquiry’s results in itsreform, set to start in 2022. The whole e-commerce value chain will be impacted, from content rights holders to broadcasters, but also manufacturers, wholesalers and online marketplaces for both goods and services. Competition: the alternative to policy- making The European Commission has strong powers in competition policy allowing for swifter action than through legislative reform. The results of these investigations are therefore also likely to shape future digital policy.
  4. 4. © Brunswick 2017 | 4 The essenceof the review TheDSM review also includes plans for new reforms, which could potentially havea great impact on business.  Cybersecurity Theincreasing exposure of European businesses and citizens to cyberattacks haveled theCommission to announce thereview of its 4-year old cybersecurity strategy. Work on cybersecurity standards, certification and labelling, to make ICT- based systemsmore cyber-secure, is expected. TheEuropean Union Agency for Network and Information Security, which currently only actsas quasi think-tank, shouldget anew, wider, mandate. Expect the10 year old agency to gain in influence and play a bigger role in standard setting. These cybersecurity measures could pave the way for European cybersecurity standards. Companies will need to ensure those are adequate and donot diverge from those being developed inother parts of the world (i.e. USA).  Onlineplatforms Whilebusinesses oftensay that innovation does not rhyme with regulation, many haveloudly called for more fairness in theplatform economy, asplatforms are more and more theenablers – or even gate keepers –of thedigital economy. IntheDSM review, theCommission announces possible legislative action on unfair contractual clauses and trading practices in platform-to- business relationships. TheCommission also wants to address theissueof removing illegal content online and will issueguidance setting out whencompanies are liable for the content posted on their platforms. Through these measures, the Commission wants to create a fairer and more predictable legal environment inthe platforms ecosystem. This is likely to have an impact on any company running or using digital marketplaces and app stores.  The data economy Thedata economy, one of Juncker’s Commission’s favorite causes,is at the center of thereview. While aproposal to break down barriers to thefree flow of data in theEUwas expected, the Commission iseven more ambitious thananticipated. Wecan now expect a free flow of data framework that will not only support data flows in theEU,but also set out rules on theporting of non-personal data whenswitching business services, and on cross border access to data held in other EUcountries for regulatory control purposes (thinktax). These measures are adouble edged sword for companies: data localization is a burden that most want gone, but data portability can make it easier for customers to switch service providers, bringing (non-personal) data with them. Brexit and the Digital Single Market TheDigital Single mid-term review closely follows thetriggering of Article 50 of theEULisbon Treaty, which launchestheBrexit formal procedure. WhiletheCommission wants to push for an ever more inclusive market among Member States,thewithdrawal negotiations risk creating additional digital barriers. TheEUand UK will haveto reconcile their diverging interests with theneed to support the European techindustry (including theUK). Akey issuein thenegotiations will be to prevent regulatory divergence in thefield of data protection, and to ensure data flows to and from theUK.Data protection and theright to privacy are both enshrined in theEU’s treaties whichwill make discussions difficult. WithBrexit, theEUalso loses one of its digital champions, and the Commission may thinkthat itstime to push forward an ambitious reform agenda islimited.
  5. 5. © Brunswick 2017 | 5 Coming up 2017 Q2 June Q3 Q4 Nov May Unjustified geo-blocking is bannedRoaming charges end Data economy proposal comes out Unfairplatform-to- business trading practices are addressed Online content becomes portableacross borders 2018 Agreement on new telecoms framework Agreement on copyright possible agreement on ePrivacy Regulation General Data Protection Regulation enters into force 2022 Revisionof the VerticalBlock Exemption Regulation  Digitizationof industry TheCommission wants to support the digitization of a number of sectors. Smart mobility, e-health,financial services and energy are under the spotlight. The Commission is considering potential actions to ensure asmooth digital transition and has pledged to secure dedicated funding. Initiatives supporting thedevelopment of connected and automated mobility are to be expected by spring 2017. Support from the Commission often means funding opportunities for companies. It is thus likely to put more money on the table for companies involving digital solutions intheir business operations.  Digital Skills For theEuropean Commission the DSM isnot just about regulation, but also about creating a tech-savvy workforce and population at large. This implies designing and supporting national techliteracy plans and digital skills trainings. Business has a crucialrole to play. Because of national budgetary restraints, business-led initiatives inthis area are highly regarded by EU institutions, opening upmany opportunities for corporate social responsibility and to develop a positive brand image. The futureof theDSM Withonly half its term left to run, the Junker Commission is under pressure to deliver concrete results to EU citizens and business. So far, priorities were set and bold strategies were developed but theyhaveled to limited outcomes. Whilesome of theCommission’s objectives are starting to come to fruition, suchastheso-called “triple win for EUconsumers,” more pressing challenges remain unaddressed. There isa mismatch between the ideals and thereal needs of citizens and businesses. Whileit can be useful to access your online content while on holiday, it is hardly life changing. The Commission, by focusing on these types of initiatives, isperhaps not prioritizing well. Inthecurrent context of rising cybersecurity threatsand increasing measures by countries to restrict the free flow of data, it isimperative that theCommission finally delivers on its commitments. Fortunately, thestars seem aligned for theCommission. The new proposals announced in thereview fill areal need for business and citizens. Data localization measures are costly and burdensome for businesses; the Commission haswanted to act for quitesome time buttheprocess was blocked byFrance. The recent election of President-elect Emmanuel Macron with apro-business and tech-friendly agenda, and expected shift in the position of hisgovernment may unlock theprocess. Thepolitical climate is also ripe for a push on cybersecurity asterrorism, leaks, and interference with elections routinely make headlines. Astheuncertainties brought by Brexit are slowly subsiding following the beginning of theformal Brexit process, theCommission hasa window of opportunity to deliver positive reforms thatcan support business and citizens. Let’s hopeit makes useof it. © Brunswick 2017 | 5
  6. 6. © Brunswick 2017 | 6 For more information Brunswick Group Brunswick is an advisory firm specializingin business critical issues. We help companies build trusted relationships withall their stakeholders. Whenclients turnto us,it’s because theyknow that engaging effectively with everyone who hasa stakein the company is about more thanmanaging perceptions -it is essential to making business work. Ourbackground in financial communications means weunderstand howbusinesses are wired. It also means integrity is deep in our nature: diligence, openness and accuracy. Brunswick isone firm globally. Delivering anywhere, we havea reputation for high-caliber, highly experienced people who havediverse backgrounds and skills. It means whatever thetask, no matter howcomplex or where it is in the world, we can assemble theright expertise from right across thefirm. Ourpurpose isto helpthegreat value creating organizations of theworld play amore successfulrole in society. PhilippeBlanchard ManagingPartner Tel: +32 (0) 2 235 65 13 LinusTurner Partner Tel: +32 (0) 2 235 65 16 BrunswickGroup 27AvenuedesArts 1040Brussels Belgium Tel: + 32 22 35 65 10 Contact Brunswick Brussels NickBlow Partner Tel: +32 (0) 2 235 65 19