Newsletter Jan-Feb 2021.Pdf

Inside this Issue: Cover by Monique Goyens Director General of the European Consumer Organisation (BEUC)

Cover Letter on the EU Product Liability Directive

4 ELI Innovation Paper Connect 6 Spotlight

8 ELI Decennial Special Contact us

[email protected] 11 ELI Council Meeting Stay up to date 12 Updates on ELI Projects Latest ELI news 14 ELI Membership Spotlight on Product Liability Updates in the Digital Age by Bernhard A Koch Photo Credits 16 Upcoming ELI Events Pictures were provided by the contributors The most obvious flaw of the PLD as to the ELI Newsletter and are taken from 17 Save the Date it stands is its lacking definition of the Pixabay and Pexels. crucial term ‘product’, leaving it open whether it extends to digital data. In 18 ELI Young Lawyers 1988, the Commission argued that Imprint Award software were within its scope, but Media Owner & Editor:

that is of little help today, since at the European Law Institute (ELI) time software was not marketed in Schottenring 16/175 purely digital form yet. 1010 Vienna, Austria Cover Letter from Monique Goyens Message from Monique Goyens Director General of BEUC

Dear ELI Members and Friends A lot of water has flowed under the the digital revolution.2 It goes with- bridge since 1985. That year, Mikhail out saying that the products that the Gorbachev became the last USSR Sec- drafters of the PLD had in mind back retary General, Nelson Mandela was in the 1980s are a far cry of those still imprisoned at Robben Island, Bob surrounding consumers nowadays. Dylan celebrated his 44th anniver- Relying on digital content, inter-con- sary, while compact discs and other nected and sometimes guided by CD players had only recently land- automated decision-making, prod- ed on the shelves of our European ucts have become increasingly com- stores. That same year, after tense and plex and the damage that they may lengthy negotiations, which I had the cause when things go wrong has chance to follow in my early career as drastically expanded to include for a consumer advocate, the EU adopted example loss of data, identity thefts a breakthrough directive on product or harm caused by the unpredicted liability (‘PLD’). behaviour of robots. As a cross-country survey conducted by BEUC in © The European Consumer Organisation 36 years later, the USSR is gone, Man- autumn 2020 showed,3 a majority dela has received the worldwide rec- of EU consumers considers that AI necessary precautions when they de- ognition that we know, and CD play- is potentially dangerous because velop their products. ers, today progressively eclipsed by machines can fail and, in such situ- streaming, look more like relics. ations, it is ultimately not clear who Several golden principles should But the PLD is still here while, as Dy- the liable person is in case of harm. guide EU policymakers when updat- lan’s song says, ‘the times they are ing the PLD to ensure it is consum- A-changin’’. 1 Updating the PLD is therefore not er-friendly.4 First, it is essential to pro- only about defending the rights and vide legal certainty and clarity for all Despite its remarkable longevity, the property of individuals but, more stakeholders. For example, it should this legislation has today reached its generally, it is about promoting the now be well established that digital limits. Over the years, the need to re- collective interest of our society, en- content and digital services can fall view the PLD has been documented suring an effective access to justice under the definition of “product” un- by many expert and policy reports. for all harmed individuals, and incen- der the PLD. Recently, the European Parliament tivising professionals to take all the also called on the European Com- Second, rules should not impede mission to adapt the existing liabili- 2 European Parliament resolution harmed individuals from seeking ty rules to address the challenges of of 20 October 2020 on a civil liabil- compensation. Therefore, the bur- ity regime for artificial intelligence den of proof should be reversed, (2020/2014 INL, at pt. 8). and it should be enough for the in- jured party to prove the existence 3 BEUC, ‘Artificial Intelligence: what consumers say – findings and policy 4 recommendations of a multi-country BEUC, ‘Product Liability 2.0: How to 1 Bob Dylan, The Times They Are survey on AI’, September 2020. make EU rules fit for consumers in A-Changin’, 1964. the digital age’, April 2020.

Cover Letter from Monique Goyens of a damage resulting from a prod- Digital Age will be an important build- liability cases nor drastic increases in uct. Moreover, the liability thresh- ing block for the upcoming policy dis- the level of insurance premiums as a old of €500 should be removed. cussions on the future of the PLD. consequence of the PLD. Therefore, as Dylan’s song rightly says, it is now Third, harmed plaintiffs should have The EU is currently working on several time to look ‘beyond the horizon’6 and clear ‘go-to’ points to which they can initiatives that will profoundly shape to work together for an ambitious and turn in case of harm. For this reason, the upcoming regulatory frame- consumer-centric updated product li- all professionals involved in the sup- work for AI and the future of digital ability framework. ply chain should be jointly liable, and products and services in the Internal online marketplaces should also be Market. This includes the Digital Ser- In 2021, Bob Dylan will celebrate his made liable under certain circum- vices Act (‘DSA’) and the revision of 80th birthday. Let’s hope that we will stances when they sell or facilitate the the General Product Safety Directive also remember this year as the one circulation of defective products. In (‘GPSD’). Together with the revision where the PLD managed to success- a study published in February 2021, of the PLD, they are all the differ- fully embrace the challenges of the consumer groups found that 66% of ent pieces of the same puzzle which digital revolution. the 250 investigated products sold should aim to ensure the highest level online turned out to be unsafe.5 of protection for consumers. It is thus essential that all of this legislation is Fourth, product liability rules should closely coordinated to ensure a solid follow and accompany the dynamic EU regulatory framework. nature of digital goods, which may Monique Goyens evolve during their lifespan. Produc- EU policymakers and all involved Director General of BEUC, The Euro- ers’ liability should thus no longer stakeholders have to be up to the pean Consumer Organisation* stop once products have been put new opportunities which a revision of on the market and the risk develop- the PLD represents today. As the ex- ment defence should no longer be a perience has shown, the fears which valid reason for escaping liability. Fi- plagued the preparatory works of 6 Bob Dylan, Beyond the Horizon, nally, as digital goods have triggered the PLD have ultimately not mate- 2006. important changes in the types of rialised. Contrary to what some had * The author wishes to thank Alexandre Biard (Senior Legal Officer at BEUC) for the prepa- harm likely to impair consumers’ well- predicted back in the 1980s, we have neither observed a flood of product ratory work towards the finalisation of this being, product liability rules should contribution. no longer be limited to the compensation of physical injuries and other damage to property, but also ensure compensation in case of immaterial damage and pure economic losses. In this context, I am confident that ELI’s Guiding Principles for Updating the Product Liability Directive for the

5 BEUC, ‘Is it Safe to shop on online marketplaces?’ February 2021.

3 ELI Innovation Paper ELI Guiding Principles for Updating the EU Product Liability Directive for the Digital Age

The ELI Council adopted ELI’s first Innovation Paper on the ‘Guiding Prin- ciples for Updating the EU Product Liability Directive for the Digital Age’, prepared by Professor Christian Twigg-Flesner (University of Warwick) in consultation with ELI Members. This Innovation Paper sets out con- 4. update of the definition of ‘prod- crete propositions for updating the uct’, EU Product Liability Directive (PLD), which has remained unchanged for 5. update of the notion of ‘producer’, the past 35 years despite rapid digital- 6. update of the definition of ‘defect’, isation. With digital automation and artificial intelligence substituting for 7. revision of the notion of ‘damage’ human operation, the Institute alerts to consider including damage to that the time has come to reform the digital elements and data, Directive so that it can continue to 8. burden of proof, protect individuals suffering harm from defective products in the new, 9. defences available, and digital reality. 10. the system for allocating finan- The ten Guiding Principles elaborate cial consequences of a successful on the following points in detail: claim by an individual. 1. mechanism for seeking compen- The Innovation Paper aims at spark- sation by persons suffering harm ing discussions and inspire further ac- from a defective product, tion in updating the PLD. 2. balance between protection of After this successful first paper, the In- individuals and fostering innova- stitute considers embarking on a new tion and utilisation of digital tech- Innovation Paper Series. nology, 3. alignment of the PLD with measures in related areas of law as well Read the Innovation Paper as non-legal measures,

Christian Twigg-Flesner Author of ELI’s first Innovation Paper

‘The digital economy has proven to be a fertile testing ground for the robustness of existing legislation. Often, some adjustments to existing legislation are needed to make its application in the context of digital technology clearer. This ELI Innovation Paper is intended to encourage debate on the need for adapting the EU’s Product Liability Directive for the digital era.’

4 ELI Innovation Paper ELI Webinar on Guiding Principles for Updating the EU Product Liability Directive for the Digital Age

The first ELI webinar in 2021, held on 23 February, was based on the recently published ELI Innovation Paper and brought together over 130 ELI Members and Friends from over 30 countries.

ELI President and Chair of the webi- Agustin Reyna (Director, Legal and nar, Christiane Wendehorst, empha- Economic Affairs, The European Con- sised that the topic ELI chose for its sumer Organisation (BEUC)) provided first Innovation Paper is the one that the analysis from the consumer pro- ELI believes is key to some of the cur- tection perspective, pointing out the rent discussions on (liability for) ar- need for a clear liability framework tificial intelligence and other digital and stressing the importance of hav- technologies. ing an integrated and multifaceted approach when regulating liability. Christian Twigg-Flesner (Professor, University of Warwick; Author of the Mark Beamish (Legal and Policy Of- Innovation Paper) highlighted the ficer, Directorate-General for Internal importance of the feedback received Market, Industry, Entrepreneurship from the ELI Membership during the and SMEs, European Commission) process of elaborating the Innovation provided information on policy de- Paper, which was prepared in several velopments regarding the Product Li- stages and ultimately approved by ability Directive, which was last evalu- the ELI Council. ated in 2018.

Piotr Machnikowski (Professor, Uni- A lively discussion with attendees fol- versity of Wrocław; member of the lowed, during which the distinction Litigation and Arbitration practice in between liability for (digital) services Dentons’ Warsaw office) explained and products, the issue of liability in the background of the Product Liabil- case of open source software devel- ity Directive and discussed whether opment as well as the role of insur- digital products are similar to tradi- ance in the whole picture were ad- Watch the Webinar tional products in terms of liability. dressed, among other things.

5 Spotlight Product Liability in the Digital Age by Bernhard A Koch

The topic of ELI’s first Innovation Pa- question in 1988 at first sight seems per is a perfect choice: product liabili- to contradict that, but does not help ty was one of the first substantive pri- us any more today, since at the time ELI’s first Innovation vate law matters harmonised by the software was not marketed in purely Paper is an important EC, and a reform of the 1985 Directive digital form yet, but only on tangible (PLD) is currently under debate, also media which could be seen as the contribution to the cur- at Commission level. relevant ‘products’. However, at least ‘rent debate on a reform we can safely assume on the basis of of the Product Liability The most obvious flaw of the PLD as that statement that tangible products Directive. - Berhard A Koch it stands is its lacking definition of the which include digital elements are crucial term ‘product’, leaving it open clearly within the scope of the PLD, whether it extends to digital data. even though the Innovation Paper by a rather clear majority of academ- Requiring in art 2 PLD that products seems to question that. must be ‘movables’ may suffice for ic opinion, may not be the easier, but some jurisdictions such as Germany, Still, it remains unclear whether the undoubtedly the more convincing where all things (and therefore also embedded software or other digi- choice. Drawing the line to services is movables) in law are corporeal by tal data are components within the feasible, as art 3 para 5 lit a of the Dig- definition ofsec 90 of the German Civ- meaning of art 3 para 1 PLD, and even ital Content Directive (EU) 2019/770 il Code (BGB), but not for others which more so whether digital data dis- shows. If digital data can be a product have a much broader legal notion of tributed as such fall under the direc- within the meaning of the PLD, the things (cf sec 285 of the Austrian Civil tive’s strict liability regime. It is to be notion of compensable harm in art 9 Code, ABGB). Therefore, digital con- hoped that an answer to this question lit b PLD would have to be expanded tent would clearly be excluded from – whether in the affirmative or not – to include damage to data as well, as a German perspective but not from will be added to the black-letter text endorsed by GP 7. an Austrian point of view, had not the of the PLD and not just communicat- If digital data already is or at least will Austrian legislator when implement- ed via some guidance document. be subject to the PLD regime, certain ing the PLD decided to deviate from aspects thereof still would have to be its wording by adding the further Excluding digital content from the no- reconsidered, first and foremost the qualification of ‘corporeal’ to the defi- tion of a ‘product’ within the meaning directive’s turning point – currently nition of products, thereby aligning it of the PLD would raise complex fol- the moment when the product is put unilaterally with the German under- low-up questions, though, not only into circulation. The manufacturer is standing. with respect to the afore-mentioned tangibles with digital elements. Ex- only liable for defects already exist- The Commission’s express inclusion pressly including data, as inter alia ing at that time (art 7 lit b PLD). It also of software into the scope of the PLD also endorsed by Guiding Principle freezes the relevant safety standard, in a response to a parliamentarian (GP) 4 of the ELI Innovation Paper and which is the benchmark for determin-

6 Spotlight on Product Liability in the Digital Age ing whether the product was indeed ultimately causing the phone to over- defective (art 6 lit c PLD). The under- heat. Will the victim be able to prove The Author lying idea is that the manufacturer is a defect as required by art 4 PLD? Al- only in control of the product until terations of and additions to the orig- then. This may have been adequate inal product made by someone else for products envisaged in the 1980s, other than the original manufacturer but no longer for smart goods of to- are not a novelty to product liability day, let alone for purely digital con- law, of course, and courts could settle tent. While the hardware may still ensuing disputes already on the basis remain the same once distributed, of the lex lata. However, the open- firmware and other pre-installed dig- ness of the design of smart products ital data is often subject to updates and their connectivity, to name just thereafter, typically (though not nec- a few key novel features, certainly essarily) provided by the original pro- add a further level of complications ducer or at least by someone tasked which inter alia require a rethinking of by the latter. This is even more true (though not necessarily a fundamen- for stand-alone software. In order to tal change to) the distribution of the update the concept of the original burden of proof. PLD, it therefore appears necessary © Bernhard A Koch nowadays to focus not on when the Two more aspects of the PLD need to product was ‘put into circulation’, but be reconsidered irrespective of the Bernhard A Koch is a professor of when the producer last impacted challenges of the digital age. First, the civil and comparative law at the upon the product, coupled with a re- 500€ threshold for property damage University of Innsbruck, where he buttable presumption that the defect set by art 9 lit b PLD – even if it were currently also serves as the Dean was caused either by the state of the to be maintained – is unclear in itself, of Studies at the Faculty of Law product when first circulated or by an and Member States have implement- and as the academic director of update subsequently provided. ed this either as a minimum harm its medical law program. He is in- requirement (but compensating the ter alia a member of the Europe- This does not yet resolve another key entire loss if higher) or as a deducti- an Group on Tort Law and of the problem, though: The afore-men- ble (indemnifying only damage to the EU Commission’s Expert Group tioned ‘magic moment’ is also the extent it exceeds that amount). Not on Liability for New Technolo- last time others such as component only is this an oddity in all domestic gies. Koch was recently elected suppliers can contribute to finalizing tort laws per se, it also fails to take ac- as one of the Vice-Presidents of a traditional product before it enters count of differing price levels in the the Institute for European Traffic the stream of distribution, which jus- Member States. While the industry Law. His main research interests tifies the primary liability focus on the insists on preserving such a threshold are in the areas of comparative manufacturer of such a finished prod- in order to counter-balance the im- tort and contract law as well as uct, who can in turn seek recourse position of strict liability by excluding conflict of laws. from those he selected as contrac- small claims, the arguments raised by tors. Anything added to the product France against such a limit when chal- to be too short in latent personal inju- thereafter increases chances for the lenged by the Commission to imple- ry cases. producer to succeed on the art 7 lit ment it have not yet been convincing- b PLD defence. Smart products of to- ly rebutted, and all the ECJ could do In light of the need for adjustments day, however, are already designed at the time was to insist on the policy indicated above and further elaborat- from the start to interact with content argument as such without actually ed by the first ELI Innovation Paper, it provided by third parties outside the justifying it. Another problematic pro- will hopefully indeed serve ‘to spark sphere of the product’s manufacturer, vision of the PLD is its Art 11, accord- discussion and to inspire further ac- making it more difficult to identify the ing to which all claims based upon tion’, both with an eye to a possible original source of harm and therefore the PLD shall be extinguished (and reform of the PLD itself and with a to pin it to a product defect. Just think not just prescribed) ten years after broader perspective of how to dis- of a smartphone that one day catch- the product was put into circulation. tribute such risks more generally. In es fire: maybe the battery was de- While the starting point may have to particular, it is to be hoped that any fective, or the pre-installed firmware be reconsidered for other reasons as further approximation of the laws in was ill-designed from the start or be- already argued, the ten years period Europe will be done on the basis of came flawed after some update (all of as such cannot stand after the ruling a careful comparative analysis of the which so far attributable to the smart- of the ECtHR in the Howald Moor case, existing liability regimes in the Mem- phone producer), or some third-par- where that court had declared an ab- ber States concerned in order to avoid ty app kept overusing the processor, solute prescription period of ten years frictions as experienced in the past. 7 ELI at 10 ELI celebrates its 10th anniversary in 2021. Over the course of the next five issues of this Newsletter, we will display ELI’s history, Members, and project milestones to commemorate this occasion. In this issue, you are cordially invited to take a trip down the memory lane with us to 2011 and 2012.

The idea of founding an independent organisation that will improve European law by conducting research and provid- 15–16 April 2011 ing expertise to European legislators as well as provide a forum to jurists from The ELI Founding Committee convened in Athens, upon the different legal traditions, had been de- kind invitation of Professor Spyridon Flogaitis, President of the liberated and examined for more than a European Public Law Organisation (EPLO), in order to debate the decade. Back in 2010, two initiatives orig- results submitted by the three Working Groups. inating from the Association for a Euro- pean Law Institute (ELIA) and the Robert Schuman Centre for Advanced Studies of the European University Institute (EUI) agreed in the Hamburg Memorandum to work together towards the founding of the European Law Institute (ELI).

Their joint meeting in Vienna, that result- ed in the Vienna Memorandum, laid the cornerstone of the ELI as it set up working groups that began to prepare key documents for the launch of a European Law Institute. In 2011, after a meeting of ELI Founding Members (in alphabetical order): the ELI Founding Committee in Athens, Gianmaria Ajani, Gabriel Alonso Landeta, Carole Aubert de Vincel- les, Jean-Bernard Auby, Hugh Beale, George A Bermann, Snezhana ELI was established by its 56 Founding Botusharova, Fabrizio Cafaggi, Remo Caponi, Marc Clément, Georg- Members and its first Council appointed. es-Albert Dal, Walter Doralt, Bénédicte Fauvarque-Cosson, Spyridon Flogaitis, Lech Garlicki, Johan Gernandt, Friedrich Graf von Westphalen, ELI is the outcome of the commitment Irmgard Griss, Stefan Grundmann, Herwig Hofmann, Huguenin Claire, and hard work of jurists all over Europe Rafael Illescas, Francis Jacobs, Carmen Jerez Delgado, Rudolf Kaindl, who wished to establish a community Yves Kreins, Lord John Thomas, Ole Lando, Lord Jonathan Mance, Imelda Maher, Hans Micklitz, Valentinas Mikelenas, Horatia Muir-Watt, of experts prepared to guide decision Leo Netten, Savvas Papasavvas, Denis Philippe, Miguel Poiares Madu- makers towards better law making, with ro, Radim Polcak, Bernard Reynis, Marek Safjan, Hans Schulte-Nölke, a view to serve the public. To this day, ELI Reiner Schulze, John Sorabji, Matthias Storme, Christiaan Timmermans, continues in this spirit by involving its Verica Trstenjak, Sjef van Erp, Pasul Varul, Christian von Bar, Christiane Members and its Friends in activities that Wendehorst, Reinhard Zimmermann, Fryderyk Zoll, The International aim at identifying areas which require de- Union of Judicial Officers, The Council of the Notariats of the European Union, The Council of Bars and Law Societies of Europe, The European velopment and proposing solutions for Land Registry Association the improvement of European Law.

8 ELI Decennial Special 31 May 2011 1 June 2011 The University of Vienna won the tender to host the ELI Secretariat. The inaugural Congress of ELI took place in Paris.

16 September 2011

The ELI General Assembly held a meeting in Vienna. ‘The ELI has now been founded, and it is officially inaugurated today. It has been a long, and not always smooth, road to Paris, but we have finally arrived. Fifty-two persons from 22 different countries, from many differ- 17 November 2011 ent disciplinary and professional backgrounds, and representing a broad range of traditions, networks and organisations, have made a beginning.’ Viviane Reding, then EU Commis- - Reinhard Zimmermann in 2011 sioner for Justice, opened the ELI Secretariat in Vienna.

‘Congratulations again for having planted today, with the European Law Institute, a little apple tree for Europe’s Legal Culture. May this tree grow over the years. May it prosper. And may it bear many, many fruits. For the From left to right: Heinz W Engl, Viviane benefit of European Law. And for the benefit of the citizens of our European Reding, Beatrix Karl, Sir Francis Jacobs Union.’ - Martin Selmayr in 2011 ‘You, the Members of the European Law Institute, will provide practical advice to policymakers and authorities across Europe on how to build these bridges. March 2012 Advice that will ultimately help to build the European area of law and justice ‘The launch of the European Law Institute was a remarkable event on many for the benefit of our citizens.’- Viviane counts. It followed a long and carefully managed period of preparation. Reding in 2011 That preparation involved the talents—and hard work—of some of the leading figures in European law. We owe them a great debt.’- Sir Francis Jacobs, first President of the ELI 11 June 2012

The ELI Irish Hub was launched in July 2012 Dublin. This makes it the first ELI Hub to be inaugurated. ELI publishes its first report on ‘Case Overload at the European Court of Human Rights’. September 2012 28–29 September 2012 ELI publishes its ‘Statement on the Proposal for a Regulation on a ELI held its first ELI Annual Conference and General Assembly in Common European Sales Law. Brussels.

9 ELI Decennial Special ELI’s Solutions to the Backlog of the European Court of Human Rights

Sir Paul Mahoney KCMG, Co-Reporter of the first ELI project on the Case-Overload at the European Court of Human Rights, shares his perspective of working on this ELI project in 2012.

developments in the Court’s treat- I have nothing but fond ment of its caseload from 2012 on- memories of frantically wards. The project also retains some About the Project Co-Reporter working against the clock relevance today insofar as it contains with Mark Entin, Jean-Paul the preparatory groundwork for fur- ‘ ther contributions by the ELI on how Sir Paul Mahoney, KCMG, sat as Jacqué and Luzius Wild- to render more effective the func- the United Kingdom judge on haber, sifting through the tioning of the system of human rights the European Court of Human panoply of ideas on the ta- protection under the European Con- Rights from 2012 till 2016, hav- ble in order to make our se- vention on Human Rights (ECHR). ing previously been the Registrar of that Court (2001-2005). In the lection. What do you consider the direct im- intervening period, he served as pact of the project for citizens? President of the European Union How would you describe the pro- While it is not possible to say that Civil Service Tribunal (a specialist ject outcome in a couple of sen- the project had a direct impact on chamber of the Court of Justice tences? citizens, its subject-matter was one of the European Union) (2005- The Statement did not purport to of significance for them - not only as 2011) and Chair of the Appeals present a comprehensive survey of potential applicants to the Court but Board of the European Space measures for resolving the complex also because of the ever-growing Agency (2011-2012). He was for problem of the Court’s overload, but influence of ECHR case-law on their many years an associate editor had the much more limited objective day-to-day lives. of the Human Rights Law Journal of formulating a few practical propos- (1980-2012). He received an hon- als that could be rendered public in a What are your personal memories orary doctorate from the Aristotle short time-span. That objective was of the project? University of Thessaloniki in 2011 achieved. And the recommendations I have nothing but fond memories of and was knighted by the British made in regard to the three main frantically working against the clock Crown in 2018 (for services to in- categories of cases making up the with Mark Entin, Jean-Paul Jacqué and ternational justice). He has co-ed- Court’s caseload (manifestly inadmis- Luzius Wildhaber, sifting through the ited three books and published sible, repetitive well-founded, other- panoply of ideas on the table in order 50 or so articles on international wise meritorious) have on the whole to make our selection. Although we human rights law and European proved to be foresighted. were somewhat taken by surprise by civil service law. He is currently the rigour of the ELI’s internal approv- Chair of the Advisory Panel of Ex- Why was this project relevant for al procedure, the end-product, thanks perts on Candidates for Election the development of the European to the input of the Senate, the Council as Judge to the European Court legal order? Does it remain rele- and the Advisory Committee, was cer- of Human Rights, as well as being vant? tainly better than if we had been left Chair of the European Patent Of- The project can be taken to have been to prepare a purely personal ‘expert’ fice’s internal Appeals Committee. part of the flow of ideas prompting opinion.

What are your recommendations too many of the more serious cases Quick Facts: for future projects in this area? are still not being dealt with as expe- The mismatch between the Court’s ditiously as they should be. There is Project Type and Output: Statement caseload and its case-processing ca- therefore scope for the ELI to look be- Project Period: January 2012–July pacity has not yet been removed in yond the original Statement for ways 2012 relation to the crucial category of of adapting the ECHR system so as to Read more about the project here. meritorious applications, such that eliminate this worrying problem.

10 ELI Council Meeting ELI Bodies Convene Remotely NEW Fundamental Constitutional Principles* At the beginning of February, ELI‘s Council and Executive Committee held successful meetings with fruitful discussions. The ELI Council met online to elect the nominate members of the Executive Committee, discuss developments of ELI projects and take critical decisions for steering the Institute towards a successful future. ELI Executive Committee Meeting ELI’s Project Portfolio A day prior to the Council meeting, ON-GOING The Concept and Role on 10 February 2021, the Executive NEW EU Conflict Law for Compa- of Courts in Family and Succession Committee held a full-day meeting nies: The Acquis and Beyond* Matters to assess the progress of current projects and set out a strategy for future projects to be put before the Council. ON-GOING Admissibility of E-Ev- idence in criminal Proceedings in ELI Council Meeting the EU The first day of the Council meeting saw the elections of the nominate members of the Executive Commit- tee, who will take up office in Septem- ON-GOING Artificial Intelligence ber 2021. Pascal Pichonnaz was elect- (AI) and Public Administration - NEW ELI-Mount Scopus European ed as the next ELI President, Lord John Developing Impact Assessments Standards of Judicial Independ- Thomas as the next First Vice-Presi- and Public Participation for Digital dent, Anne Birgitte Gammeljord as ence* Democracy the next Second Vice-President and Pietro Sirena as the Treasurer. The remaining innominate members of the ON-GOING Access to Digital Executive Committee will be elected Assets during the Council Meeting in Sep- tember. The current ELI President, Christiane Wendehorst, who has al- ON-GOING Blockchain Technolo- ready served two consecutive terms gy and Smart Contracts and was, thus, in accordance with the ELI Statute and Election Byelaw NEW Ecocide* unable to run again for the office of ON-GOING Business and Human President, will head the institute until Rights: Access to Justice and Ef- the official start of the new Executive fective Remedies (with input from Committee in September. FRA)

ELI Projects The remainder of the day was devot- ON-GOING Common Constitu- ed to discussing the developments in tional Traditions in Europe (Free- on-going ELI projects. dom of Expression) NEW Corporate Sustainability, The second day provided a room for Financial Accounting and Share discussion on future ELI projects. Capital* ON-GOING Principles for a Data Green light was given to the following Economy: data Rights and Transac- projects: tions (with the ALI) EU Conflict Law for Companies: The Acquis and Beyond ELI-Mount Scopus European Standards of Judicial Independ- ON-GOING For a European Ap- ence proach to R&D Tax Incentive(s) Ecocide Corporate Sustainability, Finan- cial Accounting and Share Capital *further details will follow on ELI’s website shortly 11 Updates on ELI Projects Updates on ELI Projects

Below is an overview of ELI Projects-related events that took place in January and February 2021. Please follow the link to read up on these stories.

Blockchain Technology and Business and Human Rights ALI-ELI Principles for a Data Smart Contracts Economy

Project Team Meeting Project Team Meeting Meeting with ALI Council At the first meeting in 2021, the The Project Team of the Business The American Law Institute (ALI) set of draft principles was further and Human Rights: Access to Justice Council approved the remaining set examined. and Effective Remedies project met of Principles that were presented as online on 21 January 2021. Council Draft No 2. Read Read Read here here here

AI and Public Administration Access to Digital Assets

Project Team Meeting Project Team Meeting The team convened on 26 Janu- The team convened online on 27 ary 2021 to discuss revisions of January 2021 to review the latest the Model Rules and the project’s revised draft. timeline. Read Read here here

ALI-ELI Principles for a Data AI and Public Administration Economy

Reporters Meeting with Advisors Project Team Meeting Project Chairs and Reporters met The Project Team convened again with ALI and ELI Advisors as well as on 25 February 2021. MCC and MCG.

Read Read here here

12 ELI Membership Update ELI Welcomes its New Members

ELI is pleased to share information about its individual and institutional Members.

Sustaining Members: Access to Justice in Eastern The following members have joined as, or changed their Europe Journal (AJEE) membership to that of Sustaining Access to Justice in Eastern Europe (AJEE) is an English-language journal Members, who pay an additional covering a variety of issues related to access to justice and the right to a 60 EUR per year to support the fair and impartial trial. A specific area of interest of AJEE is the law in East ELI’s work: European countries which share special features in the evolution of their legal traditions. While preserving the high academic standards of scholarly Chris Backes, Utrecht University, research, AJEE provides the opportunity for its contributing authors, espe- Netherlands cially young legal professionals and practitioners, to present their articles on the most current issues. AJEE is an Open Access double blind peer-reviewed Bertrand Perrin, University of journal, recognised by the academics and indexed in Web of Science Core Fribourg, Switzerland Collection, ESCI.

Corina Florenta Popescu, Ecological University of Bucharest, Romania

Bocconi School of Law

The School of Law of the Bocconi University (Bocconi School of Law) is a leading teaching and research institution based in Milan (Italy). It was founded in 1999. As a part of the Bocconi University, the Bocconi School of Law enjoys great reputation and high standing for the excellence of its teaching and research activities in national and international rankings.

13 ELI Membership Update ELI Welcomes its New Members

ELI is pleased to share information about its individual and institutional Members.

New Individual Members:

Alessio Bartolacelli, University Gökçe Kurtulan Güner, Istanbul Oliver D William, University of Bern, of Macerata, Italy Bilgi University, Turkey Switzerland

Alexandre Biard, Erasmus Uni- Anna Mercedes López Karolina Barbara versity Rotterdam & The Euro- Rodríguez, Loyola University An- Wojciechowska, University of War- pean Consumer Organisation dalusia, Spain saw, Poland (BEUC), Belgium Geo Magri, University of Insubria, Thom Brooks, Durham Universi- Italy ty, United Kingdom Manolis Perakis, National and Raquel Carvalho, Catholic Uni- Kapodistrian University of Athens, versity of Portugal, Portugal Greece

James Davey, University of Bertrand Perrin, University of Southampton, United Kingdom Freiburg, Switzerland

Francesco De Pascalis, Brunel Barbara Pozzo, University of University London, United King- Insubria, Italy dom Alina Škiljić, Law firm Bardek, Raphael Gellert, Radboud Uni- Lisac, Mušec, Skoko in cooperation versity, Netherlands with CMS Reich-Rohrwig Heinz, Croatia Núria Ginés Castellet, University Ramon Llull, Spain Václav Šmejkal, Charles Universi- ty, Czech Republic Milène Hauri, University of Ge- neva, Switzerland Guido Smorto, University of Paler- mo, Italy Caroline Heber, Max Planck Institute for Tax Law and Public Anne van Aaken, University of Finance, Germany Hamburg, Switzerland

Aileen Keogan, Aileen Keogan Wannes Vandenbussche, Ghent Solicitor & Tax Consultant, Ireland University, Belgium

Erik S Knutsen, Queen’s Universi- Joelle Vuille, University of Fri- ty, Canada bourg, Switzerland

Christian Koller, University of Ingo Klaus Wamser, Rechtsanwalt Vienna, Austria Wamser, Germany

14 Upcoming ELI Events Meetings and Events Calendar At-A-Glance

Below is a list of upcoming ELI meetings and events. Please save the dates and stay updated by following our website or social media channels for more details.

5 March ELI Croatian Hub Webinar March 16:00 Online (CET)

8 March ELI Business and Financial Law SIG Webinar 10:00 Online (CET)

12 March ELI Polish Hub Conference and General Meeting 12:00 Online (CET)

19 March The Concept and the Role of Courts in Family and 14:30 Succession Matters Workshop with Advisory Committee (CET) Online

19 March ELI Executive Committee Meeting (ELI Executive 09:00 Committee members only) (CET) Online

23 March ELI Webinar on Vaccination Against COVID-19: 18:30 Distribution, Privileges and Challenges Ahead (CET) Online

26 March ELI Croatian Hub Webinar 16:00 Online (CET)

14 April ELI Council Meeting (ELI Council members only) April 16:00 Online (CET)

30 April ELI Executive Committee Meeting (ELI Executive 13:00 Committee members only) (CET) Online

14 May IV Annual Meeting of the Spanish Hub in European Case May Law Online

15 Save the Date Save the Date ELI Annual Conference 2021 and Decennial Celebration

2021 is a special year for ELI, as the future. While we remain hopeful that of the developments to come. More Institute will celebrate ten years since we will be soon able to engage in live- information will follow, therefore, in its foundation. This is an important ly discussions in person, the safety of due course. step for our Institute, which should the participants of our events remains certainly be celebrated accordingly. our primary concern. Regardless of the format, we are confident that the Annual Conference We would like therefore to cordial- This is why we cannot know or decide and Decennial Celebration will again ly invite you to save the date for the now whether our Decennial gather- gather legal experts from across Eu- ELI Annual Conference and Decenni- ing will be in Vienna (Austria) in per- rope and beyond, including practi- al Celebration, which will take place son or online. tioners, judges, academics and policy from 6–8 September and on 9 Sep- makers, to discuss future European tember 2021. We are closely monitoring the situ- legal developments and reflect on ation in Europe and beyond and the the remarkable achievements of our This year is also a year of great un- ELI Council will meet again in April to ever-growing Community in the past certainties about any planning of the decide on the event format in light ten years.

16 ELI Young Lawyers Award Call for Papers for the ELI Young Lawyers Award For the fifth time, the European Law The ELI Young Lawyers Award was The aim is to give voice to future le- Institute seeks to uncap the innova- officially launched in 2016 with the gal experts and, in return, fulfil ELI’s tive power and creativity of young intention to provide the young Euro- core mission to improve the quality of lawyers by providing them the op- pean legal community with a mecha- European law. Please feel welcome to portunity to submit papers for the ELI nism to propose practical suggestions share the information below among Young Lawyers Award. for the improvement of European law. your networks.

17 Pan-European, democratic, membership-based organisation Uniting prominent jurists of all legal professions European Aiming to improve the law in Europe Carrying out projects with immediate practical application Law Members of ELI can contribute to its projects and gain access to an international network of jurists. Apart from other activities, ELI organises Institute its Annual Conference and Meetings, bringing together Europe’s leading experts in diverse fields of law.

President: Christiane Wendehorst Executive First Vice-President: Lord John Thomas Second Vice-President: Pascal Pichonnaz Treasurer: Denis Philippe Committee Other Members: Anne Birgitte Gammeljord Pietro Sirena Fryderyk Zoll

The Secretariat of ELI, which is hosted by the University of Vienna, is located in ELI in the heart of the Austrian capital, close to the main building of the University, the representation of the European Commission in Austria as well as the Vienna information office of the European Parliament. We cordially invite you to visit us whenever you are in Vienna.

ELI Secretariat Schottenring 16/175 1010, Vienna, Austria T +43 1 4277 221 01 F +43 1 4277 922 1 www.europeanlawinstitute.eu [email protected]