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It’s been a rough few months for US tech giants doing business in Europe. Apple is fighting a rearguard action to prevent EU competition authorities from ordering it to pay billions of back taxes to Ireland; Google has been accused by Brussels of abusing its dominant position in internet searching; and Facebook has faced a series of legal setbacks over its data privacy policies. Unless EU and US negotiators can sew up a deal in the next 24 hours, add another item to that litany: the disappearance of the legal agreement that has allowed tech groups to seamlessly move data on customers back and forth across the Atlantic.
In reality, that legal structure disappeared four months ago, when the European Court of Justice struck it down following disclosures by former US intelligence contractor Edward Snowden that, the court ruled, meant the US wasn’t living up to its side of the “safe harbour” agreement — which is based on the assumption that privacy practices are relatively the same in both jurisdictions. But while the ECJ ruling came in October, European data protection agencies decided to give EU and US authorities to the end of January to strike a new “safe harbour” deal. In the interim, companies that regularly transfer personal data — be it payroll information or your latest posts on Facebook — were left in a legal limbo. They were not quite sure if their alternative measures would would suffer the same legal fate as safe harbour.
European Commission and US Commerce department negotiators spent most of a drizzly Sunday in Brussels attempting to strike a deal, but here we are on February 1 and none has been reached. Although the deadline has officially passed, negotiators can actually use today for one last push.Europe’s national data privacy authorities (DPAs) won’t meet until tomorrow to decide on their next steps. But absent a “safe harbour” deal, this meeting could trigger hunting season for the more adventurous DPAs, who will look to the US West Coast for some big game.
The fear among companies and their lawyers is that some DPAs will use the failure as the starting pistol to go after all the other methods now used by businesses to transfer data across the Atlantic. Privacy activists argue that these measures — which range from model contract clauses to altering terms and conditions — suffer from the same flaws as those uncovered by Mr Snowden, meaning that it is a matter of when, and not if, they are challenged in the EU’s top court and deemed inadequate too.
Such a legal move would not only affect transatlantic data flows; it would also throw doubt upon the similar methods used to transfer data to countries such asIndia, never mind Russia or China. Critics worry the EU would become a self-contained island when it comes to personal data, adding costs and “friction” — as tech wonks like to call it — to online business. It is this likelihood that both the Commission and the likes of Facebook and Google fear, bringing a sense of desperation to the ongoing talks.
What we’re reading
Donald Tusk left his dinner at Downing Street last night with just two words: “No deal”. But that utterance from the European Council president belied a lot of movement on host David Cameron’s efforts to renegotiate the UK’s relationship with the EU. Mr Cameron’s office signaled a deal was close on what has, to date, been the toughest issue for the prime minister in the Brexit negotiations: limiting benefits to EU workers in Britain for four years. An “emergency brake” plan backed by the European Commission, which would allow Britain to cut benefits if it can prove its social services are overwhelmed by a migrant influx, could be pulled immediately by Mr Cameron, he was told by Commission officials – meeting a critical benchmark Downing Street had demanded. But even as both sides got closer on migrant benefits, it appeared things were getting more complicated in another “basket” of British demands: special protections for non-euro countries so they cannot be outvoted by a caucus of eurozone countries on key financial issues critical to London’s financial centre. The FT’s Brexit team has seen extracts of a confidential French paper which shows Paris will resist any attempt by Mr Cameron to acquire special voting rights when it comes to financial issues. Mr Tusk, who was originally to publish a working text of a Brexit deal on Monday, has pushed that off until Tuesday to give negotiators another day to close the gaps with less than three weeks left before a high-stakes EU summit. FT Brussels bureau Brexit guru Alex Barker provides a look at the seven key EU and UK mandarins who will have to deliver a deal by then.
The refugee crisis brought fresh horrors this weekend, with the death of 39 people, including at least five children, when a boat hit the rocks crossing the Aegean from Turkey to Greece on Saturday. The International Organisation for Migration says that 244 people have drowned trying to reach Europe so far this year. The crisis prompted an unusual sit-down protest in a second division football match in Greece, which the players said was “in memory of the hundreds of children who continue to lose their lives every day in the Aegean due to the brutal indifference of the EU and Turkey.” Meanwhile the crisis continues to sap Angela Merkel’s government in Germany, where, according to the latest poll by the mass-market Bild am Sanntag, her CDU party is at just 32.5 per cent, its lowest standing in the polls for 14 years. At the same time, senior figures in the opposition, anti-immigrant, Alternative für Deutschland party have been outdoing each other when it comes to calling for extreme measures to preserve the integrity of the country’s border. Frankfurter Allgemeine Zietung reports that Beatrix von Storch, the AfD’s deputy chairwoman, has gone as far as to suggest that border police should shoot at children as a last resort.
The most serious effort to find a negotiated solution in Syria began in earnest yesterday in Geneva after representatives from the main Saudi-backed opposition group arrived late Saturday night. The Wall Street Journal reports that getting the opposition to Geneva was, in itself, something of a diplomatic victory, since they remain suspicious that the talks are a pretext for US-Russian rapprochement that would come at their expense. The FT offers up its view of the talks, and it shares the rebels’ fears, accusing the Kremlin of using the Geneva talks as a “smokescreen” to continue its war on behalf of Syrian leader Bashar al-Assad.
It’s been four months since a Brussels court issued a ban on online taxi app Uber’s signature UberPop service, where non-professional drivers used their own cars to shuttle locals around the Belgian capital. According to the Belgian business daily L’Echo, Uber has begun a legal appeal against the ruling, filing a case against not only government authorities, but also the two dominant taxi services in the city, Taxis Bleus and Taxis Verts. L’Echo says arguments will be heard in April. The original ruling saw a plunge in the availability of Uber services inBrussels, as the company was left with only a handful of drivers that had the permits and met the necessary requirements to operate under its professional UberX brand.
Sticking with Brussels Briefing’s home country, Belgiumis facing increasingly anxious glances from its neighbours over its decision to revive two ageing nuclear reactors that had previously been shut down over safety concerns. According to France 24, Barbara Hendricks, the German environment minister, is due in Brussels tomorrow to express her concerns in person to Jan Jambon, the Belgian interior minister. Dutch and Luxembourgish officials have also raised the matter. One of the reactors is virtually on the Dutch border while the other is an hour’s drive from Luxembourg and Germany.
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