TTDSG + FuelEU Maritime + Nord Stream 2

Dear reader,

“You’ll never walk alone” should become the guiding principle of Germany’s upcoming G7 presidency, Foreign Minister Annalena Baerbock said yesterday at the end of the G7 foreign ministers’ consultations in Liverpool. The Liverpool FC fan song expresses “a strong sense of unity”, which Baerbock obviously also wishes for the group of seven leading industrialized nations. The G7 were united once again on the issue of the Ukraine crisis, urging Russia to de-escalate and threatening massive consequences in the event of an attack. “Any use of force to change borders is strictly prohibited under international law,” the draft final declaration reads.

Russia was also the topic of Chancellor Olaf Scholz’s official visit to Warsaw yesterday, but with a different focus: Nord Stream 2. The second controversial topic at the meeting with Prime Minister Mateusz Morawiecki: the EU’s rule of law dispute with Poland. Scholz avoided harsh criticism and instead said that he very much hoped that the EU Commission and the Polish government would come to an agreement.

At the beginning of the month, the new Federal Act on the Regulation of Data Protection and Privacy in Telecommunications and Telemedia (TTDSG) came into force, transposing the E-Privacy Directive into German law. Torsten Kleinz analyses why the law is once again fuelling the dispute about the conditions under which providers may use cookies or process other end device data.

The FuelEU Maritime Regulation aims to increase demand for renewable and low-carbon fuels in the maritime sector without creating competitive disadvantages for European players. Lukas Scheid reports on why the reduction targets of the law do not go far enough for the German government.

Your
Jasmin Kohl

TTDPA fuels cookie dispute

On December 1st, the new Federal Act on the Regulation of Data Protection and Privacy in Telecommunications and Telemedia (TTDPA) came into force. The Act fully transposes the ePrivacy Directive into German law for the first time. Although data protection authorities have been referring directly to the European template for years, the new regulations require some adaptation on the part of companies.

The TTDPA supplements the General Data Protection Regulation, in particular with regard to the question under which conditions providers may set cookies or process other data of the end devices. “The new line of argument thus becomes the exception in Section 25 (2) TTDPA,” explains lawyer and data protection expert Joerg Heidrich to Europe.Table. According to the provision, a users’ active consent is not required if “the use of the cookies or the integration of third-party services is absolutely necessary.” But what does that mean in concrete terms?

TTDPA interpretation leads to new dispute

Several German data protection supervisory authorities have already announced a narrow interpretation. It is undisputed that cookies may be used if, for example, the content of a shopping cart is to be secured. However, what is considered “absolutely necessary” beyond that will lead to disputes: Many website operators have so far included functions such as reach measurement or basic cookies for the integration of advertising under this category. But the authorities no longer want to accept such economic necessity. In case of doubt, providers should refrain from using specific techniques in view of the growing consent fatigue of users.

The German Association for Data Protection and Data Security (GDD) rejects the narrow interpretation of the paragraph. “In any case, it is not part of the powers of a supervisory authority to advise against legally permitted data processing,” warns the association, in which many company data protection officers are organized. The GDD calls on the German authorities not to “play a lone hand”, but to coordinate closely with other European countries. Barbara Körffer from the Independent State Center for Data Protection in Schleswig-Holstein tries to reassure Europe.Table: “Anyone who has already made a serious effort to make their own processes data protection-compliant will have little trouble now.”

However, the operators do not only have to deal with the regulatory authorities, the Federation of German Consumer Organisations (VZBV) is also in the process of enforcing its legal opinion in court. With their lawsuit against a gambling provider, the consumer advocates had succeeded in having the Federal Court of Justice declare the more lax provisions of the German Telemedia Act to be not covered by European law in May 2020, thus ultimately making the new TTDPA necessary.

Consumer protectionists now also take legal action against publishers

In particular, the cookie banners for advertising data processing are a thorn in the side of consumer protectionists. The association recently issued warnings to almost 100 providers, including Lieferando, Napster, and AI-Fitness. In addition, the VZBV is now suing five media companies: The Frankfurter Allgemeine Zeitung, T-Online, Spiegel, Focus, and Axel Springer have not correctly asked their end-users for consent to allow extensive data processing for advertising purposes, according to the consumer advocates.

The lawsuits may gain new weight due to a case that is currently before the ECJ. The question is whether consumer protection organizations have the power to directly enforce the General Data Protection Regulation. In his opinion, Advocate General Richard de la Tour supported the view of the Federation of German Consumer Organisations and the German government. According to the opinion, consumer advocates could not only take the setting of cookies and alternative techniques such as browser fingerprinting to court but also have the business with personalized advertising banned by way of court action.

Meanwhile, many data processors are looking to the Belgian data protection authority GBA in Brussels. As the interest group IAB Europe announced in November, the authority has issued a preliminary finding that the Transparency & Consent Framework (TCF) is unlawful. This is a central control point in the billion-dollar market of personalized advertising. By means of these “TCF strings”, the consent given by users in cookie banners is transmitted. But according to the Belgians, these strings themselves are considered personal data, which could necessitate a fundamental reorganization of the business. However, the authority is keeping itself buttoned up and will only publish details after they have been dealt with in the consultation procedure of the European data protection supervisory authorities.

Technical hurdles for cookies grow

Even if the use of advertising cookies remains legally possible, it could become significantly more difficult in the foreseeable future to find users for whom they can technically be set at all. Apple already restricts various tracking techniques in its products. Although Google had to abandon its ambitious plans to abolish third-party cookies in the Chrome browser for the beginning of 2022 in the summer, the “Privacy Sandbox” project has not been completely shelved.

The IT group was able to announce an agreement with the UK Competition and Markets Authority at the end of November: If Google ensures not to take any anti-competitive advantage of the new technology, the elimination of the cookie can go ahead. To this end, a trustee is to be appointed to be closely involved in the development of the alternative techniques that will allow personalized advertising without sharing personal data with third parties. The UK’s data protection regulator, the ICO, is also involved in the process.

This brings us full circle to the TTDPA. The German legislators have placed a provision in Section 26 that is directed against browser manufacturers such as Google and Apple. Actually, the paragraph deals with consent management, which – in line with the Data Governance Act – is to be entrusted to an independent body. This is supposed to manage personal data in the interests of consumers and at the same time give domestic companies a better position in competition with Google and other IT corporations.

If Chrome no longer allows cookies from the end of 2023 onwards, this consent management would be technically invalidated from today’s perspective. However, this is exactly what section 26 prohibits in paragraph 2. However, it is still absolutely unclear whether the provision will come into effect at all. A group of experts is currently working on the requirements for such consent management, which are to result in a regulation that must then be approved by the Bundestag and Bundesrat and notified to the EU Commission.

Brussels versus Silicon Valley corporations, Berlin in a conflict of objectives with London, and consumer advocates against publishers – the conflicts surrounding cookies and advertising are manifold. The TTDPA has not solved any of them but is now forcing the players to finally settle the disputes instead of postponing them forever. Torsten Kleinz

Nord Stream 2 cannot receive approval says Baerbock

German Foreign Minister Annalena Baerbock confirmed that the controversial German-Russian gas pipeline Nord Stream 2 cannot be put into operation at present. Recording a ZDF interview in Brussels on Sunday, the Green politician referred to the agreement in the coalition agreement with the SPD and FDP that European energy law would apply to energy projects such as the Baltic Sea pipeline. “And that means that, as things stand, this pipeline cannot be approved because it does not meet the requirements of European energy law and safety issues are still unresolved anyway,” Baerbock said.

The Greens had strongly criticized the project during the election campaign and also demanded a construction stop. They are much more skeptical about it than, for example, the SPD. In the coalition agreement with the SPD and FDP, the pipeline was not explicitly mentioned. The Federal Network Agency had already demanded a separation of the areas of trade and transport and therefore suspended the approval procedure for the pipeline (Europe.Table reported).

Most recently, the new State Secretary for Economic Affairs in the Climate Ministry, Sven Giegold, had also demanded the implementation of EU law before a possible commissioning of the Nord Stream 2 gas pipeline. “It is clear that European energy law also applies to this project, the separation of trade and transport is clearly specified,” the Green politician had said.

Morawiecki calls for stop again

During his inaugural visit to Poland on Sunday evening, German Chancellor Olaf Scholz pointed out that Germany wants to be climate-neutral in a good 25 years. The importance of gas supplies will therefore decline dramatically in the future as energy needs are increasingly met by renewable energies.

Polish Prime Minister Mateusz Morawiecki had previously called on Scholz once again to stop Nord Stream 2. Morawiecki fears that Russia will use the pipeline to exert pressure against Ukraine and other Eastern European states. He also accused Russia of trying to increase the gas price. rtr

Federal Office warns of major threat from software security vulnerabilities

According to the German Federal Office for Information Security (BSI), a vulnerability in a software module widely used on many computers has led to an “extremely critical threat situation“. The authority, therefore, raised its existing cyber security warning for the Java library Log4j to red on Saturday. This is the highest category of the four-level BSI scale for cyber security warnings and is currently the only report at this level.

The assessment is based on the very wide distribution of this software element and the associated impact on countless other products, the BSI said. In addition, the vulnerability could be exploited without great difficulty. This would allow attackers to completely take over the affected system. There are already mass scans in Germany and around the world, as well as attempted and successful attacks. A security update for the Java library Log4j already exists. However, all products that use Log4j would also have to be adapted.

BSI President Arne Schönbohm and former German Interior Minister Horst Seehofer had recently warned of an increasing threat from cyber attacks. According to the BSI, 144 million new malware variants were detected last year, an increase of 22 percent compared to the previous year. rtr

Taxonomy: Scholz speaks of “agitated debate”

German Chancellor Olaf Scholz has admitted that there is still no agreement on which forms of energy will be classified as sustainable in the EU in the future. “We did not find common ground yet. But everyone is discussing how to come together,” the SPD politician said on Friday ahead of a meeting with EU Commission President Ursula von der Leyen in Brussels. The background is a struggle within the EU over the so-called taxonomy (Europe.Table reported). This is intended to give technologies a label as sustainable and harmless so that financial flows are increasingly directed towards green technologies.

France wants the EU Commission to classify nuclear energy as sustainable. Germany has so far rejected this, but for its part, has insisted on the classification of natural gas. The Greens, in particular, are against a sustainable label for nuclear energy.

Referring to the necessary expansion of electricity generation, Scholz stressed in Brussels that “of course gas will also have to play a transitional role”. The Chancellor had previously discussed the issue with French President Emmanuel Macron in Paris but kept a low profile afterwards.

Scholz later spoke of an “agitated debate” that was ultimately about the valuation of companies. Von der Leyen also tried to defuse the discussion, pointing out that the taxonomy was only one element in the fight against climate change and that, incidentally, it also allowed differentiation in “transitional activities”.

Scholz appeals for faster approval procedures

At his subsequent meeting with EU Council President Charles Michel, Scholz pointed out that renewable energies needed to be expanded very quickly in Germany. “This requires quick, speedy decisions to be made now,” said the SPD politician. The traffic light government, therefore, plans to speed up planning and approval procedures. “The massive acceleration of the approval procedures will only be effective if this is a European project at the same time,” Scholz warned. “This is the only way to achieve the speed we need.” rtr

Fishing dispute: Great Britain relents

In the ongoing fishing dispute with France, the UK gave in on Saturday and issued additional fishing licenses for EU vessels. According to the EU Commission, 18 licenses were issued for fishing in British waters and five licenses for EU vessels to access Jersey waters. France confirmed that this meant 93 percent of its license requests had now been secured. A further seven licenses are due to be released through technical consultations on Monday.

“Today’s decision is an important step in a long process to implement the trade and cooperation agreement,” the European Commission said in a statement on Saturday. Friday was the end of the commission’s deadline for processing the outstanding licenses.

In a joint statement, Europe Minister Clément Beaune and Seas Minister Annick Girardin said France and the EU were looking into all possible legal avenues to secure the remaining licenses and produce evidence that Britain had agreed to review.

The dispute between the two states is about fishing rights after Britain’s exit from the EU. France accuses Britain of not granting French fishermen the guaranteed licenses they need to cast their nets in British waters. Britain counters that it only denied the licenses in cases where the necessary proof was lacking. koj/rtr

FuelEU Maritime: German government calls for faster reduction of emissions

At the end of last week, the Transport Council met in Brussels to discuss the progress of the three Fit for 55 files for the transport sector – including “FuelEU Maritime“. The Commission proposal aims to increase demand for renewable and low-carbon fuels in the maritime sector without creating competitive disadvantages for European competitors.

Ambassador Susanne Szech-Koundouros, who represented Germany in the Transport Council, welcomed the proposal but made clear that the target level would have to be “reviewed and increased if necessary”. Currently, the proposal states that the average annual carbon intensity of shipping should be reduced by two percent by 2025 and six percent by 2030. Thereafter, a reduction of 75 percent compared to 2020 is to be achieved in 5-year steps by 2050.

Ambition level lags behind targets

However, the EU has set itself the goal of being climate-neutral by 2050. Transport-related emissions are to be reduced by around 90 percent by then. The reduction path of the FuelEU Maritime proposal lags behind its own ambitions. Szech-Koundouros, therefore, demanded that the reduction path should provide for a transition “away from fossil fuels towards innovative technologies and sustainable fuels” as quickly as possible. Above all, the reduction targets in the early years should be increased.

In particular, so-called renewable fuels of non-biological origin (RFNBOs) should be used. These are needed to achieve greenhouse gas neutrality, the ambassador said. Szech-Koundouros, therefore, spoke in favor of a quota for RFNBOs. The Commission proposal does not provide for this. At the same time, she advocated a cap on biofuels from edible oil residues, as these have limited availability and also have other applications. luk

Bitkom survey: Majority sees AI positively

Artificial intelligence (AI) is increasingly viewed positively by the German population. Currently, almost three-quarters (72 percent) of German citizens say that they see artificial intelligence exclusively (27 percent) or rather (45 percent) as an opportunity. A year ago, the proportion was still 68 percent. 13 percent currently see AI rather as a danger, 12 percent even exclusively. This is the result of a telephone survey of 1003 people aged 16 and over commissioned by the digital association Bitkom.

The majority believes they know a lot about AI. 52 percent say they can explain well what is meant by AI or even see themselves as experts. A quarter (27 percent) know roughly what AI means. Only 15 percent do not know exactly what AI is, and 5 percent have not yet heard of it.

“In Germany, we should seize the opportunities and become pioneers in AI development. Above all, this also requires a data strategy that creates a legal framework for using data in a way that promotes innovation,” says Bitkom President Achim Berg, commenting on the survey.

AI use desired in many areas of life

In almost all areas of life, a majority would like to see the use of AI-based applications. At the top of the list is the use of AI to support older people (77 percent), in personal self-improvement (76 percent), for example, in language learning, and as support for doctors (73 percent). 71 percent are in favor of AI use in offices and authorities, in the police (69 percent), for example, to be able to identify places with a high probability of crime with video cameras, and in sports (69 percent), for example, to make more objective decisions than human referees.

Six out of ten would like to see artificial intelligence as a service bot in telephone hotlines and online chats (63 percent) to be able to answer questions quickly, as a teacher or lecturer in schools or universities (62 percent), in human resources departments (61 percent) to sift through applications quicker and assess them more neutrally, and for political decisions (60 percent), for example, to be able to better evaluate the consequences of laws. A majority (56 percent) also favors AI in the military sector, for example, to automatically assess satellite images.

Majority against AI use in court

There is currently no majority for the use of AI in court (48 percent), for example, to be able to evaluate court documents more quickly, in the care of small children (45 percent) and in the provision of advice in financial and insurance matters (44 percent). At the bottom of the list is the use of AI in relationships (31 percent) so that lonely people, for example, have at least one virtual contact person.

More than a quarter (28 percent) believes that artificial intelligence has already noticeably changed society. Only one percent believes that artificial intelligence will not have any impact on society in the distant future. koj

EU climate policy: Franco-German conflicts and lines of compromise

By Götz Reichert

Götz Reichert is head of the Department of Energy, Environment, Climate and Transport at the Centre for European Policy (CEP).

During Chancellor Olaf Scholz’s inaugural visit to French President Emmanuel Macron last Friday, it once again became clear that Berlin and Paris are not currently in agreement on key issues of EU climate policy. But possible lines of compromise are already emerging.

The French government is increasingly relying on expanding nuclear energy to reduce CO2 emissions, which it, therefore, wants to have classified as “sustainable” under the EU taxonomy. It is not surprising that a German government with Green participation rejects this. However, in the end, it is the European Commission that decides anyway, which could then Solomon-like also recognize the use of natural gas envisaged by the traffic light coalition as a “green bridging technology” for decarbonization.

France opposes ETS for road transport and buildings

Paris also opposes the European Commission’s proposed introduction of a separate EU emissions trading scheme for road transport and buildings (EU-ETS 2), while Berlin strongly supports this. The EU-ETS 2 would be an effective and efficient instrument of EU climate policy because by limiting and steadily reducing emission rights, the targeted CO2 reduction will certainly be achieved, and through certificate trading, the market will find the most cost-effective reduction measures.

However, the yellow vest movement still grips Macron to the marrow. They were triggered in particular by the increase in the French CO2 tax on petrol and diesel. It is, therefore, unlikely that the French government will give the green light for an increase in the price of fuels through an EU ETS 2 before the presidential elections in spring 2022. After that, we will see.

Germany is sceptical about CO2 limit compensation

The French president is urging the EU to take a more forceful stance in the world – including climate protection. To this end, France has long been calling for a CO2 border adjustment mechanism (CBAM), which the European Commission has now proposed. This is intended to make imports into the EU from third countries with lax climate protection targets more expensive to create a level playing field in the EU’s internal market for European products manufactured with higher climate protection costs. Macron wants to push ahead with this EU project during the French EU Council Presidency in the first half of 2022.

According to the coalition agreement, the German government supports in principle “the introduction of a Europe-wide effective CO2 limit compensation mechanism”. However, it can imagine other “comparably effective instruments” instead. It also sets out numerous requirements for a CBAM. For example, it is “crucial” for the German government that it is “WTO-compliant, does not disadvantage the export industry, prevents greenwashing and is implemented unbureaucratically within the existing emissions trading system”.

Each of these conditions is a challenge in itself. However, they can hardly be fulfilled in combination – and the German government knows this, too. Consequently, on the eve of Scholz’s meeting with Macron, the new State Secretary for Economic Affairs, Sven Giegold, rejected a CBAM in the form proposed. This is because it would not protect the EU export industry, so that the relocation of production from the EU and thus an overall climate-damaging increase in global CO2 emissions – “carbon leakage” – is threatening.

International climate club as a solution?

How can this conflict between Germany and France be resolved? A way out is already emerging: Giegold, for example, called for the formation of an international climate club – instead of the mere unilateral introduction of a CO2 border adjustment by the EU. After the old German government had already proposed such a climate club on the initiative of the then Federal Finance Minister Scholz, its successor now wants to use the German G7 presidency in 2022 to put it into practice. In a climate club, the EU could, for example, agree with other important industrialized countries such as the USA on a uniform minimum CO2 price to reduce climate protection-related distortions of competition between club members and prevent carbon leakage.

To achieve a corresponding “level playing field” also in relation to non-club members, the German government is bringing a “joint CO2 border adjustment” into play. In this way, the international climate club also offers the possibility of an agreement between Germany and France on the CBAM. However, it is doubtful whether this will automatically solve the problems for the EU export industry associated with a CO2 border adjustment exclusively for imports.

On Thursday, it’s that time again: #EUCO time! Every EU correspondent in Brussels knows that if you want background information, you have to be there. You can tune into the press conferences from your desk, but on site, you can get background information from the diplomats.

In COVID-19 times, however, access to the Council building is considerably more difficult. For example, after a long break without any media representatives on site, 260 journalists were allowed in for the first time again at the last EU summit in October. The same rule applies this week. Therefore, the majority of EU correspondents will be forced to sit in front of the various live streams and interview Council President Charles Michel and Commission President Ursula von der Leyen from their home offices.

This time, however, the council has decided to make access even more difficult: Those who made it among the lucky 260 can’t be sure of actually getting into the council building on Thursday. That’s because the council has unceremoniously decided that even vaccinated journalists will have to present a negative PCR test in order to be there. Those who have recovered from COVID-19 in the last six months will need a doctor’s note instead.

The measure is incomprehensible for several reasons, first and foremost: Belgium does not have a 2G-Plus rule. Here, the only rule is that anyone who has recovered, been vaccinated, or tested can get access to restaurants, Christmas markets, or concerts with the “Covid Safe Ticket (CST)“, the Belgian implementation of the COVID digital certificate.

EU correspondents in Brussels are fuming because yesterday evening, it was still unclear who had even cleared the first hurdle and was among the 260 media representatives admitted. The second hurdle, the PCR test, must nevertheless be cleared today because the test cannot be older than 48 hours before the start of the Eastern Partnership Summit on Wednesday.

My tip to my fellow colleagues: Let’s all just get tested today as a preventive measure and send our PCR test invoices of around €46 each with kind regards to Charles Michel himself. One thing is for sure: The Brussels test centers will be delighted with the rush of around 900 EU correspondents. Jasmin Kohl

EUROPE.TABLE EDITORS

Till
Hoppe

Charlotte
Wirth

Falk
Steiner

Timo
Landenberger

Corinna
Visser

Lukas
Knigge

Eric
Bonse

Sarah
Schaefer

Manuel
Berkel

Lisa-Martina
Klein

Markus
Grabitz

Stephan
Israel

Claire
Stam