The use of declarations by the European Commission: ‘careful with that axe, Eugene’.

Introduction

In December 2022, the European Commission, the Parliament, and the Council solemnly adopted a Declaration on Digital Rights and Principles proposed by the Commission in January 2022. The 2022-Declaration intends to be a frame of reference for policymakers and private sector in driving a digital transition bound by European values and respect for fundamental rights. In this post, Naranjo recalls that the 2022-Declaration builds upon a series of documents about the digital space, including the Berlin and Lisbon declarations, the 2030 Digital Compass and the recently adopted ‘Digital Decade Policy Programme’. In addition to these, the Declaration builds on the experience of the European Pillar of Social Rights. In this contribution, we look at these initiatives and reflect about the use of declarations by the EU, particularly by its policymaker.

Although the Declaration presents some lacunae, Naranjo shows a general sense of please with it, particularly with its digital principles, leaving open the prospects for the Declaration to become an actual digital Pillar to the role of the European Parliament in ‘ironing out’ the Declaration in due course.

What is the 2022-Declaration about?

The Declaration is non-binding thus not affecting legal obligations nor creating new rights for citizens. The document was proposed by Commission’s DG Connect, the department responsible for managing policies about the digital single market and economy agenda (not fundamental rights). Developed into six chapters, it restates EU Charter’s fundamental rights applying both offline and online, such as the right to privacy, freedom of expression, and education, and contains principles exclusively applicable to the digital, such as ensuring high-quality connectivity and net neutrality, digital inclusion and solidarity, fair working conditions in the digital, freedom of choice online, fair competition in a safe digital environment, and cyberthreats protection.

The 2017 Proclamation on the EU Pillar on Social Rights (EPSR)

Similarly to the 2022-Declaration, the 2017 Pillar is a non-binding proclamation working as a reference compass for social policies in the EU and its Member States. The 2017-Proclamation was released by the Commission’s DG on Social Policies and Employment. The 2022-Declaration and the 2017-Pillar do share several commonalities. They both originate from a multistakeholder consultation process, and both include and highlight existing rights of the EU Charter. Both formulate principles some of which connect with existing EU laws and policies (e.g. Internet access, net neutrality, or digital identity) while others are newer (e.g. freedom of choice online and the ability to digitally disconnect). Neither documents substitute conventional rights but complement them, and both require implementation for principles to become legally enforceable. Finally, both initiatives have received criticisms for the lack of binding obligations (e.g. from the Parliament).

The 2020 Berlin Declaration on Digital Society and Value-Based Digital Government

The Berlin Declaration is not a Commission document as it was adopted by state governments at the European Council. It builds upon the Tallin Declaration and the eGovernment Action Plan. Ultimately, the key function of states’ administration and digital public services in realizing a value-based digital transformation is at the core of this declaration. It formulates principles reflected in policy action areas that touch upon respect for EU values and fundamental rights and the promotion of digital security in the public sector. Particularly, it promotes social participation and digital inclusion, digital empowerment and literacy to ensure digital self-determination, while endorsing digital trust and security in the public sector, including digital sovereignty and interoperability. Specifically related to AI, it promotes ‘human-centred, responsible, and common-good oriented’ AI systems in the public sector.

The 2021 Lisbon Declaration – Digital Democracy with a Purpose

Like the Berlin Declaration, the Lisbon Declaration was signed by Member States in 2021 at the European Council under its Portuguese Presidency. It builds on the 2030 Digital Compass and the Berlin Declaration. It promotes principles in four specific areas which include respecting democratic principles and human rights -with non-discrimination and equality at its core -, promoting digital democracy through participation and inclusion, digital international cooperation, and green and sustainable technologies. It also lays down a common framework for digital principles aimed to ground the 2022-Declaration.

The 2021-EU Communication on the 2030 Digital Compass

The 2030 Digital Compass was proposed by a (non-binding) Communication from the Commission issued by DG Connect. It includes four digital objectives, which encompass digital skills development in education and workforce, security of digital infrastructure, digital transformation of business, and digitalization of secure public services. It also contains an agreement on digital rights and principles for an interinstitutional declaration (the 2022-Declaration) and its monitoring mechanism while launching the project for a legislative proposal as a policy program.

The 2022 ‘Digital Decade Policy Programme 2030’

The Digital Decade Policy Programme, adopted few days after the 2022-Declaration, is a European decision and thus it has direct and binding effect on Member States unlike other documents. It builds on, complements, and concretizes the objectives of the 2030 Digital Compass, and complements some of the EPSR objectives. It also refers to further initiatives, including the 2022-Declaration on digital rights and principles. Besides, it establishes a monitoring and cooperation governance mechanism between the EU and its Member States to observe the achievement of EU digital objectives as well as a framework for multi-country projects.

Reflections 

Declarations do not initiate lawmaking procedures in the EU, nor they form policy proposals. They have no legal basis in EU treaties (Art 288 TFEU) and only serve to specify a position on a particular issue, when occasionally used. Declarations are certainty soft law, but this is only one way, and perhaps also a simplistic one, to look at them. In fact, the absence of legal obligations attached to soft law does not say all about its actual implications. Let’s think of the US Declaration of 1776 or the French Declaration of 1789. These declarations prepared the way for the constitutional and democratic state in the 18^th century. Declarations can sometimes pave the way for entirely new paradigms. If we think of the Universal Declaration of Human Rights of 1948, this document prepared the way and de facto grounded the whole international framework of human rights as it is today. Despite being non-binding, important legal instruments that now shape the human rights edifice have been elaborated upon the Universal Declaration at international, regional, and constitutional level. If well done, declarations can serve all kinds of purposes and agendas like there. The art is to do it right: not doing too much while not doing too little.

Certainly, the EU agenda in the digital is quite impressive. But the EU is seemingly doing too much and playing with symbolic capital. How many declarations and documents can be launched for them to serve some concrete purposes rather than running counter their own objectives? Too much symbolic capital through proliferating declarations and communications risks overcrowding the digital regulatory landscape with spare bites and bits, puzzling the landscape for relevant actors while potentially being abused by non-diligent digital players. We are aware that ‘you can have too much of a good thing.’ Looked through fundamental rights lens, several concepts contained in the Declaration, such as ‘fair competition’ and economy, and ‘costs of public good’ are not even fundamental rights language. DG Connect has indeed the task to develop the digital economy, not implement fundamental rights standards.

Are these documents coordinated? Limitedly. There is some cross-referencing throughout most documents. However it seems that these declarations mainly rehash digital commitments that now and then vary in prioritization and advance EU positions unsystematically. Consider the Lisbon Declaration, which was itself defined the kick start of the 2022-Declaration. Some aspects that were legitimately given key importance in Lisbon have not been adequately transposed to the 2022-Declaration, including digital discrimination and equality, intellectual property rights, and access to justice and remedy. While being defined Lisbon’s core principle, the 2022-Declaration refers to discrimination only marginally. As a matter of fact, discrimination is a crucial concern when it comes to technology uses. No reference is made to Lisbon’s access to justice and remedy in the 2022-Declaration.

The experience of the 2017-Proclamation provides a precedent to assess the potential legal value of EU Commission’s declaratory instruments in practice. The potential and effectiveness of that Proclamation depended on its implementation. This has not been a success. Since its endorsement, the 2017-Pillar’s impact has been modest and its implementation limited and slow. Only few executing instruments, such as the work-life balance Directive, have actually been implemented (many of the 20 Pillar’s principles still lack any legal implementation). Further non-legislative instruments, such as communications and guidelines, have rather been issued. The EPSR Action Plan has even been said to lack in sound legislative initiatives. Declaratory instruments can also be an interpretative yardstick for rights and EU secondary law in court. Thus we may wonder how far the 2017-proclamation has played a role in CJEU case law when considering social rights (when the Court is nonetheless generally reluctant to consider them in the first place). This precedent illustrates that the EU does not work at its best through declarations that are non-binding.

Unlike decisions such as the Digital Decade Policy Programme, EU declarations ultimately do not have any legally binding effect, regardless of how solemnly they are declared. This means that besides not establishing legal obligations nor rights, these instruments do not provide for any enforcement and sanction system for non-implementation and application (Art 17 TEU). It is hence unclear what Declaration’s principles imply with regard to law and policy, and thus how and whether these principles will be implemented at all (although some were already enshrined in EU legislation before the Declaration). The 2022-Declaration does explicit that implementation is fundamentally a political commitment. Besides, the draft Policy Programme decision would have at least required the Commission to monitor Member States’ compliance and progress in the implementation of the 2022-Declaration (as strange as it may sound for a non-binding declaration). This requirement was in fact also laid down in the 2021-Communication preluding the Policy Programme decision. The adopted version of the Policy Programme, which is binding, yet does not make any reference to implementation monitoring of the 2022-Declaration by the Commission, while barely referring to this document at all (for clarity, no reference is made to Council’s declarations either). If nothing else, 2022-Declaration’s principles will still need to be ‘taken into account’ in the digital way forward according to that Decision.

Conclusion

For Naranjo, some elements are missing from the 2022-Declaration. For us, there are more issues, starting from a general lack of concrete coordination and tendency to use ad hoc declarations by the EU. If the EU wants to do more than a little, plethora of declarations issued by the same institute need at least to be coherent. If there are several of them the preamble not only needs to clearly integrate them, but also explaining why new declarations are actually needed and what they add to their progenitors. Specifically defined relations between all initiatives is important not to run counter their own objectives. We need ‘hygienic’ rules, not too many symbolic bits. A fundamental rights and value based framework must also retain its character and avoid vicious or flawed undertones. As a last take on this, a Commission’s DG is not the right unit to launch a declaration. There are currently 33 DGs in the European Commission all with their own priorities and agenda. What would happen if they all started ‘declaring’?