With a reform of the Stability and Growth Pact (SGP), the Commission wants to safeguard the debt sustainability of the EU states and at the same time promote investment and reforms for more growth. But Germany and other member states are raising concerns. At the center of the criticism is the proposal to negotiate individual plans with countries to reduce their debt burden on the basis of a debt sustainability analysis. But such an analysis is extremely demanding and carries the risk of unequal treatment, experts also say. Till Hoppe and Christof Roche have the details.
More transparency and control over major online platforms and search engines – the Digital Services Act is intended to make the online world a little safer and more transparent. Today, the Digital Services Act comes into force. From now on, online platforms have three months to publish the number of active users on their websites and report it to the Commission. Corinna Visser knows what steps will then follow and how the Commission intends to handle the new tasks.
The Digital Services Act is also the topic of today’s Opinion: Stephanie Richter and Patrick Zurheide from the law firm Taylor Wessing explain how cookie banners must be designed and what impact the DSA will have on the controversial dark patterns.
At the meeting of foreign ministers on Monday and defense ministers yesterday, Josep Borrell, the EU’s Foreign Affairs Representative, once again made his position clear: The goal is to further isolate Russia and support Ukraine – for example, by increasing the so-called Peace Facility. However, Borrell was tight-lipped on the question of possible negotiations to end the war. For the EU, peace talks are a taboo subject, but in the United States the debate has begun. And in Europe, there is not quite as much agreement on support as it appears from the outside, analyzes Eric Bonse.
Germany and other member states have considerable reservations about the EU Commission’s proposals to reform the Stability and Growth Pact. According to information from Europe.Table, the criticism is directed primarily at the Commission’s approach of negotiating individual plans with countries to reduce their debt burden on the basis of a debt sustainability analysis.
Germany and the Netherlands consider this approach to be fundamentally problematic. For its analysis of the long-term sustainability of a country’s debt, the Commission has to make numerous assumptions, for example about the development of a country’s tax revenues or labor market, which can hardly be measured objectively in the short term, government circles in Berlin and The Hague say. In this way, the Commission opens the door to poisoned discussions among the member states as to whether individual countries have been judged particularly favorably.
Other countries are also reported to have concerns. At an initial exchange of views in the Council’s Economic and Financial Committee (EFC) on Monday, there were many questions about how the Commission intends to implement the debt sustainability analysis in detail, it was said in Brussels. Member states now want to deepen the discussion on the EU Commission’s approach at the technical level in expert groups to reach a common understanding of the various elements of the new rules package. The next EFC meeting is scheduled for the end of November.
Economists show understanding for the concerns. Long-term analyses of debt sustainability are “more of an art than a science and require political judgment,” write Johannes Lindner and Nils Redeker of the Jacques Delors Centre at the Hertie School. “There is concern that this could concentrate too much power in the hands of the Commission and lead to unequal treatment between member states.”
The Brussels-based authority set out its ideas in a communication last week. The proposal is to maintain the ceilings for new debt of three percent of economic output and 60 percent for total debt, but to abandon blanket requirements such as the 1/20 rule, which envisages a reduction in debt beyond the 60 percent threshold by five percent per year.
Instead, the authority wants to find a reference path for budgetary consolidation together with the individual member state. The basis for this is the Commission’s debt sustainability analysis. According to this, the government would have four years to reduce its debt accordingly. If economic policy reforms or the country’s investment needs so require, the adjustment period can be extended to up to seven years. The reference path is based on a single operational indicator, the so-called net primary expenditure (expenditure minus special revenue and interest payments).
The German Federal Ministry of Finance (BMF) is already balking at the approach of bilateral agreements, which gives the Commission considerable discretionary powers. “A unified monetary union also needs unified fiscal rules,” Finance Minister Christian Lindner (FDP) said last Wednesday in an initial reaction to the Brussels proposals. For Lindner, a multilateral approach in European fiscal rules is essential to ensure equal treatment, comparability and sustainable debt sustainability. The BMF did not want to comment beyond that.
The SPD and the Greens are reportedly more willing to compromise here and could probably accept stronger guard rails for the individual procedures.
The Netherlands has shown itself to be open to such agreements between the Commission and the member state, as had been established under the COVID reconstruction fund. The Hague had fed the approach for stronger national ownership into a joint paper with Spain. But this “must be accompanied by commitments to ambitious debt reduction and effective enforcement mechanisms,” it said. France and other southern European states are also in favor of the bilateral approach, which gives them more leeway.
In view of the fundamental objections in Berlin and other countries, it is questionable whether the rapid agreement called for by Economic Affairs Commissioner Paolo Gentiloni will pass in the Council. An initial discussion at ministerial level is scheduled for the meeting of EU finance ministers in early December. At the chief executive level, the reform could be discussed at the EU summit in March.
Time is pressing, as the Stability and Growth Pact is suspended until the end of 2023 due to the impact of the pandemic. Agreement must be reached before member states present their 2024 budgets, Gentiloni urged. The Commission aims to present the necessary legislative proposals for the reform of the EU fiscal package in the first quarter of 2023, he said. With Christof Roche
The online world will soon be a little safer and more transparent – at least that’s how the European Commission sees it. Because today, Nov. 16, after the Digital Markets Act, another important piece of the digital agenda comes into force: the Digital Services Act (DSA) regulation. This means that the Commission now has new powers, for example, to request information from online platforms. To do justice to its task, the Commission is setting up a new research and forecasting center for algorithmic transparency.
Online platforms now have three months to publish and report to the Commission the number of active users on their websites. Based on these user figures, the Commission classifies the platforms and decides which are considered very large online platforms (VLOPs) or very large online search engines (VLOSEs). These are then subject to special requirements. Very large platforms are those that have more than 45 million users (more than ten percent of the population) in Europe.
Following the Commission’s decision to classify them as VLOPs or VLOSEs, the companies concerned again have four months to comply with the obligations under the DSA. This includes VLOPs and VLOSEs performing the first of the annual risk assessments and submitting them to the Commission. By February of the following year, EU member states must establish their digital services coordinators. Because from then on, all platforms within the scope of the DSA will be obliged to apply the rules.
So consumers will have to wait until next summer to notice the changes the law is supposed to bring. They will see it, for example, in the fact that there are new ways to report illegal content. Or they can see it in the new terms and conditions, which now have to be presented and worded in such a way that even children can understand them. Or users notice that they can influence the way recommendation systems work. For example, on popular social media platforms such as YouTube, Whatsapp or Tiktok, they have the choice of turning off profiling.
With the introduction of the DSA, the Commission has new responsibilities. The Commission directly supervises VLOPs and VLOSEs itself. In addition, the national coordinators of the member states and the Commission will cooperate via a European Council for Digital Services, an EU-wide cooperation mechanism. Because of the new tasks, there will be changes in the remit of DG Connect, as well as new staff.
The Commission is also looking for additional staff for the newly established European Centre for Algorithmic Transparency (ECAT), which is due to start work in January. The main goal of ECAT is to better explain the algorithmic systems behind the platforms and make them more transparent. For example, the center, based in Seville, Spain, will assist the Commission in determining whether the functioning of an algorithmic system is in line with the risk management obligations set out by the DSA for VLOPs and VLOSEs.
To do so, the commission is looking for experts from a variety of disciplines – not only computer scientists, but also social scientists are needed: experts in Big Data, artificial intelligence, algorithmic systems, algorithm monitoring or testing recommendation systems. A groundbreaking team of 30 people is what it should be, said a commission official. Twenty staff will work out of Seville, with another ten spread between the Joint Research Centre (JRC) in Ispra, Italy, and Brussels. Ten are already on board.
ECAT’s main tasks:
The application of the DSA will probably be particularly exciting with regard to Twitter because since Elon Musk took over the leadership of the short message service, it is difficult to predict whether Twitter will play by the EU’s rules. At first, Musk went on a confrontational course – via Twitter – and was called to order by Internal Market Commissioner Thierry Breton – also via Twitter. In the meantime, Musk is sending more conciliatory signals and probably wants to meet Breton in person again soon.
Should Twitter be classified as a VLOP and fail to comply with the rules of the DSA, the company, like other VLOPs, will face severe fines. The Commission can impose penalties of up to six percent of global sales or even a ban on activities in the EU single market in the event of repeated serious violations.
Further isolate Russia, support Ukraine even more: This was the motto of EU Foreign Affairs Commissioner Josep Borrell at two Council meetings in Brussels. At the meeting of foreign ministers on Monday, Borrell presented the draft for a new EU-Russia strategy, in which the international isolation of Moscow is the top priority. At the meeting of defense ministers on Tuesday, the Spaniard then pleaded for an increase in the so-called Peace Facility, which the EU uses to finance its arms deliveries to Ukraine.
The weapons from Europe are “extremely useful,” even “vital” for the fight against the Russian occupiers, Borrell said. The €5 billion Peace Facility, from which €3.1 billion have so far flowed to Ukraine for military equipment, should therefore be replenished, he said. The EU states must also continue to rearm and jointly procure new weapons systems, he added.
The hard line is underpinned by the new military training mission EUMAM Ukraine. After foreign ministers gave the green light, defense ministers were quickly discussing practical details. “We plan to train around 5,000 soldiers by next June alone,” said German Defense Minister Christine Lambrecht (SPD).
Brussels is all about the Russian war of aggression and aid to Ukraine, the two Council meetings made clear. Borrell and Lambrecht were again at pains to rebut criticism of a lack of support. At €8 billion, EU arms aid, if national supplies are included, is barely lower than that of the United States, Borrell stressed.
The EU’s chief diplomat, on the other hand, was extremely tight-lipped when it came to possible negotiations. Now is not the time for peace talks, he said. “Russia has made it clear: the war continues.” Moreover, he said, it is not his job to take the initiative. “We will help Ukraine all the way to victory,” Borrell said. The “parameters” for that will be set in Kyiv, not Brussels, he said.
There was no opposition from Foreign Minister Annalena Baerbock and Defense Minister Lambrecht. They stressed the importance of arms deliveries, but did not speak out – at least publicly – in favor of negotiations. Without weapons, there would be even more refugees, they said. Russia should not be underestimated, even after the recent withdrawal.
The withdrawal from Kherson has raised high hopes. It was preceded by a visit to Kyiv by US National Security Advisor Jake Sullivan, and on Monday CIA Chief William Burns met with his Russian counterpart Sergei Naryshkin in Turkey. General Mark A. Milley, the Chairman of the Joint Chiefs of Staff, has even publicly advocated “diplomatic solutions.”
A debate on a possible end to the war has begun in Washington, but in Brussels, this topic remains taboo. Borrell, Baerbock, and Lambrecht have not ruled out a diplomatic solution, but they show no interest in actively advocating it. Is the EU missing an opportunity to get involved diplomatically?
In the European Parliament, opinions differ widely. “The EU’s goal is clear: Russian aggression must be stopped completely and Russia must be held accountable for its crimes,” said Michael Gahler (CDU), foreign policy spokesman for the EPP Group. That talks between Ukraine and Russia are possible is proven by several successful prisoner exchange actions, he added. However, “it is up to the Ukrainian leadership alone to decide if, when and on what it could negotiate with the Russian regime“.
In contrast, SPD foreign policy expert Dietmar Köster advocates more diplomatic engagement. “Those who want peace must prepare for peace,” he said. “We therefore urgently need more diplomatic initiatives, such as those now being brought into play by numerous actors in the United States.” However, he said, the EU Commission does not seem to be well prepared for this. The EU Parliament’s Ukraine resolutions also completely underestimate the importance of diplomacy, he added.
Parliament has repeatedly spoken out in favor of a hard line toward Russia. Parliament President Roberta Metsola traveled to Kyiv in the spring before Commission President Ursula von der Leyen; since then, she has been competing with the German politician for the favor of the Ukrainians. Therefore, no new Ukraine policy can be expected from the Parliament and the Commission at present.
The attitude in the Council appears more uncertain. For no matter how resolute the ministers appear to be: Behind the scenes, consensus is crumbling. Resistance to new economic sanctions against Russia is growing; talks on a ninth sanctions package are stalling. The foreign ministers have also not yet been able to agree on a new €18 billion aid package for Ukraine – the financing is a source of dispute.
The EU fears for its unity. All the more reason for it to cling to the agreed line. Brussels is also less agile than Washington in Ukraine policy.
Until now, the qualification of what is to be assessed as a dark pattern and what is still permissible – especially under the GDPR – in terms of the linguistic, structural and visual representation of cookie banners has been fraught with great uncertainty. The European Data Protection Board (EDPB) has now made a first contouring in March 2022 through its Guidelines 3/2022 on dark patterns in social media platform interfaces: How to recognize and avoid them (EDPB Guideline on dark patterns).
It is true that the EDPB guidance on dark patterns is primarily aimed at social media platforms. However, it also contains special case groups for cookie banners as well as case groups whose evaluations are at least transferable to cookie banners.
The EDPB guideline on dark patterns cites – as examples of impermissible linguistic design (distraction) – such cookie banner consent texts that distract from the legal meaning and risks in consent through the chosen form of language. As a concrete example, it is listed that a funny allusion to “cookies” casts doubt on the legal meaning and seriousness of consent.
It is also considered obstructive and thus impermissible if the revocation of consent to cookie use cannot be made as easily as the consent itself. This is the case with a cookie banner if there is no direct opt-out link.
In the presentation of the buttons (p. 19), the aim is to ensure that the more data-intensive setting options are highlighted more clearly than those that allow less extensive data processing. For example, by making the selection button for only necessary cookies smaller or paler in color, or by not positioning it centrally. The same applies in reverse for the visual and structural highlighting of more data-intensive setting options.
The request for consent (pp. 15-16) is another transferable group of cases. It concerns the repeated request for more privacy-intensive processing. In the case of cookie banners, this is the case when cookies that are not required or certain categories of cookies that have been rejected cause the cookie banner to be repeatedly displayed (so that “accept all cookies” is clicked after all).
Non-consistent terms/explanations (pp. 22-24) are also frequently encountered in connection with cookie banners. In this context, terms are not used consistently or uniformly, for example by designating categories of cookies differently in the privacy policy than in the cookie banner.
Unfinished implementations (p. 21) are very common in practice: for example, when links in the cookie banner to the privacy notices do not work, or when the cookie settings cannot be found where described after accepting the cookies.
With the EDPB guideline on dark patterns, the individual supervisory authorities in the EU are now provided with concrete assessment criteria for the first time. This means that action against dark patterns is associated with fewer uncertainties for the individual supervisory authorities. Perhaps also against this background, the action taken by the Austrian data protection organization NOYB (None Of Your Business) since the beginning of the year against such cookie banner elements has proven to be extremely effective. 50 percent of websites warned by NOYB have already adjusted their cookie banners as of the end of October.
With the mandatory application of the Digital Services Act (DSA) in 2024 at the latest, the pressure against the use of dark patterns will increase even further and the rather restrained enforcement practice of supervisory authorities will intensify. For one thing, the DSA explicitly restricts the use of dark patterns in Article 25(1) – much more explicitly than the GDPR. And fines under the DSA, at up to 6 percent of annual global group turnover, can once again be significantly higher than under the GDPR.
On the other hand, in addition to the “normal” competent supervisory authorities, there will also be the coordinators for digital services, who are to effectively coordinate cooperation at both national and international levels. Whether the sanctioning and enforcement means of the DSA, which are in themselves quite similar to the GDPR, will actually be exercised more strictly in practice, remains to be seen.
However, the discussion about dark patterns could soon be rendered obsolete in purely factual terms by so-called Personal Information Management Services (PIMS). These are laid down in German law in Section 26 of the Telecommunications and Telemedia Data Protection Act (TTDSG) by way of implementation via a corresponding ordinance.
A PIMS is a software that allows users to specify in advance the cases in which they agree to information being stored and read. When a user visits a website, this specification is then automatically transmitted to the website. The advantage of this is that it is no longer necessary to obtain consent separately for each visit. Without cookie banners, however, there would then also be no more dark patterns. A first draft for such a consent management regulation in the sense of Section 26 TTDSG was already published in August 2022.
With a reform of the Stability and Growth Pact (SGP), the Commission wants to safeguard the debt sustainability of the EU states and at the same time promote investment and reforms for more growth. But Germany and other member states are raising concerns. At the center of the criticism is the proposal to negotiate individual plans with countries to reduce their debt burden on the basis of a debt sustainability analysis. But such an analysis is extremely demanding and carries the risk of unequal treatment, experts also say. Till Hoppe and Christof Roche have the details.
More transparency and control over major online platforms and search engines – the Digital Services Act is intended to make the online world a little safer and more transparent. Today, the Digital Services Act comes into force. From now on, online platforms have three months to publish the number of active users on their websites and report it to the Commission. Corinna Visser knows what steps will then follow and how the Commission intends to handle the new tasks.
The Digital Services Act is also the topic of today’s Opinion: Stephanie Richter and Patrick Zurheide from the law firm Taylor Wessing explain how cookie banners must be designed and what impact the DSA will have on the controversial dark patterns.
At the meeting of foreign ministers on Monday and defense ministers yesterday, Josep Borrell, the EU’s Foreign Affairs Representative, once again made his position clear: The goal is to further isolate Russia and support Ukraine – for example, by increasing the so-called Peace Facility. However, Borrell was tight-lipped on the question of possible negotiations to end the war. For the EU, peace talks are a taboo subject, but in the United States the debate has begun. And in Europe, there is not quite as much agreement on support as it appears from the outside, analyzes Eric Bonse.
Germany and other member states have considerable reservations about the EU Commission’s proposals to reform the Stability and Growth Pact. According to information from Europe.Table, the criticism is directed primarily at the Commission’s approach of negotiating individual plans with countries to reduce their debt burden on the basis of a debt sustainability analysis.
Germany and the Netherlands consider this approach to be fundamentally problematic. For its analysis of the long-term sustainability of a country’s debt, the Commission has to make numerous assumptions, for example about the development of a country’s tax revenues or labor market, which can hardly be measured objectively in the short term, government circles in Berlin and The Hague say. In this way, the Commission opens the door to poisoned discussions among the member states as to whether individual countries have been judged particularly favorably.
Other countries are also reported to have concerns. At an initial exchange of views in the Council’s Economic and Financial Committee (EFC) on Monday, there were many questions about how the Commission intends to implement the debt sustainability analysis in detail, it was said in Brussels. Member states now want to deepen the discussion on the EU Commission’s approach at the technical level in expert groups to reach a common understanding of the various elements of the new rules package. The next EFC meeting is scheduled for the end of November.
Economists show understanding for the concerns. Long-term analyses of debt sustainability are “more of an art than a science and require political judgment,” write Johannes Lindner and Nils Redeker of the Jacques Delors Centre at the Hertie School. “There is concern that this could concentrate too much power in the hands of the Commission and lead to unequal treatment between member states.”
The Brussels-based authority set out its ideas in a communication last week. The proposal is to maintain the ceilings for new debt of three percent of economic output and 60 percent for total debt, but to abandon blanket requirements such as the 1/20 rule, which envisages a reduction in debt beyond the 60 percent threshold by five percent per year.
Instead, the authority wants to find a reference path for budgetary consolidation together with the individual member state. The basis for this is the Commission’s debt sustainability analysis. According to this, the government would have four years to reduce its debt accordingly. If economic policy reforms or the country’s investment needs so require, the adjustment period can be extended to up to seven years. The reference path is based on a single operational indicator, the so-called net primary expenditure (expenditure minus special revenue and interest payments).
The German Federal Ministry of Finance (BMF) is already balking at the approach of bilateral agreements, which gives the Commission considerable discretionary powers. “A unified monetary union also needs unified fiscal rules,” Finance Minister Christian Lindner (FDP) said last Wednesday in an initial reaction to the Brussels proposals. For Lindner, a multilateral approach in European fiscal rules is essential to ensure equal treatment, comparability and sustainable debt sustainability. The BMF did not want to comment beyond that.
The SPD and the Greens are reportedly more willing to compromise here and could probably accept stronger guard rails for the individual procedures.
The Netherlands has shown itself to be open to such agreements between the Commission and the member state, as had been established under the COVID reconstruction fund. The Hague had fed the approach for stronger national ownership into a joint paper with Spain. But this “must be accompanied by commitments to ambitious debt reduction and effective enforcement mechanisms,” it said. France and other southern European states are also in favor of the bilateral approach, which gives them more leeway.
In view of the fundamental objections in Berlin and other countries, it is questionable whether the rapid agreement called for by Economic Affairs Commissioner Paolo Gentiloni will pass in the Council. An initial discussion at ministerial level is scheduled for the meeting of EU finance ministers in early December. At the chief executive level, the reform could be discussed at the EU summit in March.
Time is pressing, as the Stability and Growth Pact is suspended until the end of 2023 due to the impact of the pandemic. Agreement must be reached before member states present their 2024 budgets, Gentiloni urged. The Commission aims to present the necessary legislative proposals for the reform of the EU fiscal package in the first quarter of 2023, he said. With Christof Roche
The online world will soon be a little safer and more transparent – at least that’s how the European Commission sees it. Because today, Nov. 16, after the Digital Markets Act, another important piece of the digital agenda comes into force: the Digital Services Act (DSA) regulation. This means that the Commission now has new powers, for example, to request information from online platforms. To do justice to its task, the Commission is setting up a new research and forecasting center for algorithmic transparency.
Online platforms now have three months to publish and report to the Commission the number of active users on their websites. Based on these user figures, the Commission classifies the platforms and decides which are considered very large online platforms (VLOPs) or very large online search engines (VLOSEs). These are then subject to special requirements. Very large platforms are those that have more than 45 million users (more than ten percent of the population) in Europe.
Following the Commission’s decision to classify them as VLOPs or VLOSEs, the companies concerned again have four months to comply with the obligations under the DSA. This includes VLOPs and VLOSEs performing the first of the annual risk assessments and submitting them to the Commission. By February of the following year, EU member states must establish their digital services coordinators. Because from then on, all platforms within the scope of the DSA will be obliged to apply the rules.
So consumers will have to wait until next summer to notice the changes the law is supposed to bring. They will see it, for example, in the fact that there are new ways to report illegal content. Or they can see it in the new terms and conditions, which now have to be presented and worded in such a way that even children can understand them. Or users notice that they can influence the way recommendation systems work. For example, on popular social media platforms such as YouTube, Whatsapp or Tiktok, they have the choice of turning off profiling.
With the introduction of the DSA, the Commission has new responsibilities. The Commission directly supervises VLOPs and VLOSEs itself. In addition, the national coordinators of the member states and the Commission will cooperate via a European Council for Digital Services, an EU-wide cooperation mechanism. Because of the new tasks, there will be changes in the remit of DG Connect, as well as new staff.
The Commission is also looking for additional staff for the newly established European Centre for Algorithmic Transparency (ECAT), which is due to start work in January. The main goal of ECAT is to better explain the algorithmic systems behind the platforms and make them more transparent. For example, the center, based in Seville, Spain, will assist the Commission in determining whether the functioning of an algorithmic system is in line with the risk management obligations set out by the DSA for VLOPs and VLOSEs.
To do so, the commission is looking for experts from a variety of disciplines – not only computer scientists, but also social scientists are needed: experts in Big Data, artificial intelligence, algorithmic systems, algorithm monitoring or testing recommendation systems. A groundbreaking team of 30 people is what it should be, said a commission official. Twenty staff will work out of Seville, with another ten spread between the Joint Research Centre (JRC) in Ispra, Italy, and Brussels. Ten are already on board.
ECAT’s main tasks:
The application of the DSA will probably be particularly exciting with regard to Twitter because since Elon Musk took over the leadership of the short message service, it is difficult to predict whether Twitter will play by the EU’s rules. At first, Musk went on a confrontational course – via Twitter – and was called to order by Internal Market Commissioner Thierry Breton – also via Twitter. In the meantime, Musk is sending more conciliatory signals and probably wants to meet Breton in person again soon.
Should Twitter be classified as a VLOP and fail to comply with the rules of the DSA, the company, like other VLOPs, will face severe fines. The Commission can impose penalties of up to six percent of global sales or even a ban on activities in the EU single market in the event of repeated serious violations.
Further isolate Russia, support Ukraine even more: This was the motto of EU Foreign Affairs Commissioner Josep Borrell at two Council meetings in Brussels. At the meeting of foreign ministers on Monday, Borrell presented the draft for a new EU-Russia strategy, in which the international isolation of Moscow is the top priority. At the meeting of defense ministers on Tuesday, the Spaniard then pleaded for an increase in the so-called Peace Facility, which the EU uses to finance its arms deliveries to Ukraine.
The weapons from Europe are “extremely useful,” even “vital” for the fight against the Russian occupiers, Borrell said. The €5 billion Peace Facility, from which €3.1 billion have so far flowed to Ukraine for military equipment, should therefore be replenished, he said. The EU states must also continue to rearm and jointly procure new weapons systems, he added.
The hard line is underpinned by the new military training mission EUMAM Ukraine. After foreign ministers gave the green light, defense ministers were quickly discussing practical details. “We plan to train around 5,000 soldiers by next June alone,” said German Defense Minister Christine Lambrecht (SPD).
Brussels is all about the Russian war of aggression and aid to Ukraine, the two Council meetings made clear. Borrell and Lambrecht were again at pains to rebut criticism of a lack of support. At €8 billion, EU arms aid, if national supplies are included, is barely lower than that of the United States, Borrell stressed.
The EU’s chief diplomat, on the other hand, was extremely tight-lipped when it came to possible negotiations. Now is not the time for peace talks, he said. “Russia has made it clear: the war continues.” Moreover, he said, it is not his job to take the initiative. “We will help Ukraine all the way to victory,” Borrell said. The “parameters” for that will be set in Kyiv, not Brussels, he said.
There was no opposition from Foreign Minister Annalena Baerbock and Defense Minister Lambrecht. They stressed the importance of arms deliveries, but did not speak out – at least publicly – in favor of negotiations. Without weapons, there would be even more refugees, they said. Russia should not be underestimated, even after the recent withdrawal.
The withdrawal from Kherson has raised high hopes. It was preceded by a visit to Kyiv by US National Security Advisor Jake Sullivan, and on Monday CIA Chief William Burns met with his Russian counterpart Sergei Naryshkin in Turkey. General Mark A. Milley, the Chairman of the Joint Chiefs of Staff, has even publicly advocated “diplomatic solutions.”
A debate on a possible end to the war has begun in Washington, but in Brussels, this topic remains taboo. Borrell, Baerbock, and Lambrecht have not ruled out a diplomatic solution, but they show no interest in actively advocating it. Is the EU missing an opportunity to get involved diplomatically?
In the European Parliament, opinions differ widely. “The EU’s goal is clear: Russian aggression must be stopped completely and Russia must be held accountable for its crimes,” said Michael Gahler (CDU), foreign policy spokesman for the EPP Group. That talks between Ukraine and Russia are possible is proven by several successful prisoner exchange actions, he added. However, “it is up to the Ukrainian leadership alone to decide if, when and on what it could negotiate with the Russian regime“.
In contrast, SPD foreign policy expert Dietmar Köster advocates more diplomatic engagement. “Those who want peace must prepare for peace,” he said. “We therefore urgently need more diplomatic initiatives, such as those now being brought into play by numerous actors in the United States.” However, he said, the EU Commission does not seem to be well prepared for this. The EU Parliament’s Ukraine resolutions also completely underestimate the importance of diplomacy, he added.
Parliament has repeatedly spoken out in favor of a hard line toward Russia. Parliament President Roberta Metsola traveled to Kyiv in the spring before Commission President Ursula von der Leyen; since then, she has been competing with the German politician for the favor of the Ukrainians. Therefore, no new Ukraine policy can be expected from the Parliament and the Commission at present.
The attitude in the Council appears more uncertain. For no matter how resolute the ministers appear to be: Behind the scenes, consensus is crumbling. Resistance to new economic sanctions against Russia is growing; talks on a ninth sanctions package are stalling. The foreign ministers have also not yet been able to agree on a new €18 billion aid package for Ukraine – the financing is a source of dispute.
The EU fears for its unity. All the more reason for it to cling to the agreed line. Brussels is also less agile than Washington in Ukraine policy.
Until now, the qualification of what is to be assessed as a dark pattern and what is still permissible – especially under the GDPR – in terms of the linguistic, structural and visual representation of cookie banners has been fraught with great uncertainty. The European Data Protection Board (EDPB) has now made a first contouring in March 2022 through its Guidelines 3/2022 on dark patterns in social media platform interfaces: How to recognize and avoid them (EDPB Guideline on dark patterns).
It is true that the EDPB guidance on dark patterns is primarily aimed at social media platforms. However, it also contains special case groups for cookie banners as well as case groups whose evaluations are at least transferable to cookie banners.
The EDPB guideline on dark patterns cites – as examples of impermissible linguistic design (distraction) – such cookie banner consent texts that distract from the legal meaning and risks in consent through the chosen form of language. As a concrete example, it is listed that a funny allusion to “cookies” casts doubt on the legal meaning and seriousness of consent.
It is also considered obstructive and thus impermissible if the revocation of consent to cookie use cannot be made as easily as the consent itself. This is the case with a cookie banner if there is no direct opt-out link.
In the presentation of the buttons (p. 19), the aim is to ensure that the more data-intensive setting options are highlighted more clearly than those that allow less extensive data processing. For example, by making the selection button for only necessary cookies smaller or paler in color, or by not positioning it centrally. The same applies in reverse for the visual and structural highlighting of more data-intensive setting options.
The request for consent (pp. 15-16) is another transferable group of cases. It concerns the repeated request for more privacy-intensive processing. In the case of cookie banners, this is the case when cookies that are not required or certain categories of cookies that have been rejected cause the cookie banner to be repeatedly displayed (so that “accept all cookies” is clicked after all).
Non-consistent terms/explanations (pp. 22-24) are also frequently encountered in connection with cookie banners. In this context, terms are not used consistently or uniformly, for example by designating categories of cookies differently in the privacy policy than in the cookie banner.
Unfinished implementations (p. 21) are very common in practice: for example, when links in the cookie banner to the privacy notices do not work, or when the cookie settings cannot be found where described after accepting the cookies.
With the EDPB guideline on dark patterns, the individual supervisory authorities in the EU are now provided with concrete assessment criteria for the first time. This means that action against dark patterns is associated with fewer uncertainties for the individual supervisory authorities. Perhaps also against this background, the action taken by the Austrian data protection organization NOYB (None Of Your Business) since the beginning of the year against such cookie banner elements has proven to be extremely effective. 50 percent of websites warned by NOYB have already adjusted their cookie banners as of the end of October.
With the mandatory application of the Digital Services Act (DSA) in 2024 at the latest, the pressure against the use of dark patterns will increase even further and the rather restrained enforcement practice of supervisory authorities will intensify. For one thing, the DSA explicitly restricts the use of dark patterns in Article 25(1) – much more explicitly than the GDPR. And fines under the DSA, at up to 6 percent of annual global group turnover, can once again be significantly higher than under the GDPR.
On the other hand, in addition to the “normal” competent supervisory authorities, there will also be the coordinators for digital services, who are to effectively coordinate cooperation at both national and international levels. Whether the sanctioning and enforcement means of the DSA, which are in themselves quite similar to the GDPR, will actually be exercised more strictly in practice, remains to be seen.
However, the discussion about dark patterns could soon be rendered obsolete in purely factual terms by so-called Personal Information Management Services (PIMS). These are laid down in German law in Section 26 of the Telecommunications and Telemedia Data Protection Act (TTDSG) by way of implementation via a corresponding ordinance.
A PIMS is a software that allows users to specify in advance the cases in which they agree to information being stored and read. When a user visits a website, this specification is then automatically transmitted to the website. The advantage of this is that it is no longer necessary to obtain consent separately for each visit. Without cookie banners, however, there would then also be no more dark patterns. A first draft for such a consent management regulation in the sense of Section 26 TTDSG was already published in August 2022.
