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European Ideas on Interview with Commissioner Viviane Reding

13th March 2012

Viviane Reding is Vice-President of the European Commission, in charge of Justice, Fundamental Rights and Citizenship. Questions by Maximilian Baldinger, Olivier Gergely, Ramin Amighi and members of the European Ideas Facebook Community.

Anti Counterfeiting Trade Agreement (ACTA)

Is there any danger that ACTA or national laws emanating from ACTA will be used by governments to infringe the privacy rights of citizens protected by Article 8 of the European Convention on Human Rights and Fundamental Freedoms and Article 7 and 8 of the Charter of Fundamental Rights of the EU?

Viviane Reding: The European Union stands for a freely accessible Internet, freedom of expression and freedom of information via the Internet. Freedom of information and intellectual property rights must not be enemies; they should be partners. Copyright protection can never be a justification for eliminating freedom of expression or freedom of information. That is why for me, blocking the Internet has never been and will never be an option.

This situation can and must not be changed by the ACTA agreement, which has been negotiated, as regards criminal enforcement measures, by the rotating EU Council Presidency and is currently under public discussion in the European Parliament and in the national parliaments of the EU Member States.

Even though the text of the ACTA agreement does not provide for new rules compared to today's legal situation in Europe, I understand that many people are worried about how ACTA would be implemented. The European Commission has therefore decided to ask the Court of Justice of the European Union for a legal opinion to clarify that the ACTA agreement and its implementation must be fully compatible with freedom of expression and freedom of the Internet.

Consumer Protection Directive (to be transposed by December 2013) and data protection

What are the individual consumer’s main new rights under the new directive’s regime? (single e-commerce“ market, surcharges for certain payment methods...)

Viviane Reding: The Directive will eliminate hidden charges and costs on the Internet, increase price transparency, ban pre-ticked boxes when consumers are shopping online, give people 14 days to change their minds about a purchase and improve refund rights. There will also be clearer information on who pays for returning goods, no extra charges beyond the real costs for using credit cards online and better consumer protection for digital products.

What are the main benefits of having one single “online” market, both for the consumer and the companies?

Viviane Reding: At present, businesses have to deal with 27 separate sets of data protection rules if they want to trade across the EU and with 27 national data protection authorities – even more if you count the separate regulators in Germany's 16 Länder.

A strong, clear and uniform legal framework at EU level will cut red tape and costs for business. There will also be a regulatory one-stop shop for businesses: they will only have to deal with the data protection authority in the EU country where they are based. Such a "one-stop shop" will help to unleash the potential of the EU's digital Single Market and foster economic growth, innovation and job creation.

 Please explain the main aspects (and benefits) of “the digital right to be forgotten”?

Viviane Reding: In a recent poll, 72% of Europeans said that they are concerned about how companies use their personal data. Worries about privacy are one of the most frequent reasons why people don’t buy goods and services online. To have confidence in the digital future, people need to know that their data will be properly protected.

People want to have better control over their own data. They need to be able to access their own data and to easily take it to another provider or have it deleted if they no longer want it to be used. This is what I call the right to be forgotten. We want to explicitly clarify that people shall have the right – and not only the ‘possibility’ – to withdraw their consent to the processing of the personal data they have given out themselves.

The Directive also affects companies from outside the EU that do business with Europeans partners. The US Department of Commerce has already warned that the Directive “could hinder commercial interoperability while unintentionally diminishing consumer privacy protection”. What is your response to this critique?

Viviane Reding: Our proposal is also very clear when it comes to companies outside of the EU. We do not make any differences based on companies’ nationalities. What matters for us is if they are offering their services to consumers in the European Union, on our single market. The new rules are very clear: citizens' rights to data protection will apply to companies outside the EU too if those companies are targeting the EU market. Again, it will be the national data protection authorities that make sure all companies play by the rules.

Data protection is a global issue, so we must find global solutions. The "cloud" is stateless. And so are many of the multinational companies handling these data. The EU and the US have similar concerns with regard to the risks posed to privacy by new technologies. That's why EU-US dialogue is essential to address data protection issues faced by consumers and businesses, especially online, including enforcement.

In the age of globalisation of data flows we need a common approach from countries sharing the same values. Otherwise we may end up with standards imposed by others. The EU-US "Safe Harbour" mechanism, for example, is a good starting point. We should build on it.

Roma and Sinti

In Summer 2010 you energetically criticized the Roma expulsions that happened in France.

A worrying phenomenon in some European capitals becomes ever more apparent namely child begging also involving Roma and/or Sintis. Is that an organised crime issue involving human trafficking? Is it poverty and the failure to integrate Romas/Sintis (socio-economically) on the side of policy-makers? What can be done?

Viviane Reding: Integration of Roma is an enormous challenge for Europe. The problems are complex and multifaceted. We will not solve all the problems tomorrow, but we have agreed a joint responsibility to improve the situation and a specific mechanism for doing this. This is a huge step forward. We rely on Member States to reach the joint goals they have signed up to. The Commission will play its part in supporting national governments and coordinating efforts to make sure funds are used in the best way.

When will the EU adopt the new European framework for Roma integration and what will be its main tenets?

Viviane Reding: The EU Framework for national Roma strategies was endorsed by EU leaders at their summit in June 2011. It is a huge step forward for millions of Roma around Europe. The EU is sending a strong signal: the exclusion of the Roma is not compatible with our societal values and our economic model.

European leaders have made an unprecedented commitment to improving Roma integration but now is the time to translate words into action. The EU Framework cannot succeed without the strong and sustained support of all Member States. The European Commission is currently assessing the national strategies submitted by Member States and will report back on this as planned towards the end of April 2012.

Judiciary and the “new” Member States

The Romanian Justice Minister argues that the reform of the Romanian law enforcement system was so successful that the EU monitoring mechanism that was put in place five years ago should be removed this summer. You talked with him in January.

What is the EC’s standpoint? Will the Cooperation and Verification Mechanism be terminated in Romania? And what about Bulgaria? How will Croatia be assisted in further developing its judiciary and other organs of the justice system? How is Serbia doing in this regard from the EC’s standpoints?

Viviane Reding: With the next annual assessment report in summer 2012, the European Commission will carry-out an overall assessment of progress under the Cooperation and Verification Mechanism since the accession of Bulgaria and Romania five years ago. In light of this assessment, we will make appropriate proposals.

Previous reports confirmed that both Romania and Bulgaria have made significant progress in a number of areas. Bulgaria showed sustained political will and commitment to pursue its reform strategy and continued to reform the judicial system. At the same time, the fight against high-level corruption has not yet led to convincing results.

Romania took significant steps and improved judicial efficiency, re-established the legal basis of the National Integrity Agency, continued preparations for the implementation of the four new codes, and prepared for a functional review of the judicial system. At the same time, the fight against corruption still needs to be pursued more vigorously.

At this stage, the European Commission's position is that Croatia will not need the CVM.

Accession negotiations with Croatia (and Turkey) were the first ones to feature an entirely new negotiating chapter (Chapter 23 – judiciary and fundamental rights). Strict benchmarks were introduced that candidate countries need to fulfil for the opening and closing of each chapter.

Hungary and the new Constitution

Victor Orban and his “Fidesz” party have won a land-slide victory at the federal elections in Hungary. A new constitution and other basic laws were introduced by the new government that radically change the country. Many of those new rules were heavily criticised by foreign media, governments and the EU institutions.

Which laws are particularly worrying to you and why? Do you have issues with the cultural aspects of the constitution? What do you think about the media law, the laws on the Central bank, new laws regulating the judiciary? Will there be any sanctions vis á vis Hungary? Or how do you think you can get the government to comply with the Human Rights regime of the Charter and the ECHR? Are you considering legal actions?

 Viviane Reding: On 1 January, a new Constitution and a number of cardinal laws entered into force in Hungary. The European Commission immediately conducted a full legal analysis of the final versions of the new provisions and their compatibility with European Union Treaties and decided to launch three accelerated infringement procedures on 17 January. Within a deadline of one month, the Hungarian government sent its formal replies to the Commission.

Hungary has responded to some of the Commission’s legal concerns, but we still have serious questions regarding potential violations of EU laws as regards the anticipated compulsory retirement of 236 judges in Hungary and the independence of the Hungarian data protection authority. Now that the Commission has moved to the second stage of the infringement process, it is essential that the Hungarian authorities address the Commission's legal concerns swiftly. I would like to see real changes to the legislation in question to alleviate the Commission's legal concerns. Therefore the Commisison, on 7 March sent two reasoned opinions to Hungary – the second stage under EU infringement procedures after which the matter may be referred to the Court of Justice of the European Union.

In two other areas, the independence of the central bank and further aspects concerning the independence of the judiciary, the Commission sent two administrative letters demanding further clarifications.

Women in the work place

In the EU women are generally (with large differences in the individual Member States) paid less fort he same work as their male peers. You are a well known equal rights promoter. What can the EC do to promote equality of compensation? How are working mothers helped by EU law? You have set up a voluntary scheme on your website for companies to sign up and commit to having a minimum percentage of women on the board of directors. Is this scheme successful? Can we expect legislation on this issue from the EU?

Viviane Reding: In the past few decades, Europe has made significant progress in getting more women into the workforce. The female employment rate is 62%, up from 55% in 1997. Women are also making great strides in education: they now represent 60% of new university graduates. European Union legislation and financial support have contributed to these advances.

Despite this progress, there has been one significant shortfall: the lack of women at the top levels in companies. Many qualified women cannot break through the glass ceiling when climbing the corporate ladder. The facts are bleak: Just one in seven board members (13.7%) at Europe's top companies and one in 30 boardroom chairs (3.2%) is a woman.

There has been some limited progress in recent years. The gender balance in Europe's boardrooms saw a 1.9-percentage point increase from October 2010 to January 2012, compared to a long-term average rise over the last decade of 0.6 percentage points per year). However, France, which introduced quota legislation on gender balance in boards in 2011, alone accounts for around half the increase in the EU. But overall, change remains stubbornly slow. At the rate of progress over the last years, it would take another 40 years to achieve something approaching gender balance in boardrooms. The number of women chairing major company boards has even declined, falling to 3.2% in January 2012 from 3.4% in 2010.

In these difficult economic times – when we are facing the twin challenges of an aging population and skills shortages – it is more important than ever to take advantage of everyone's skills. There are four main reasons for helping women to finally break the glass ceiling in company boards.

First, the economy: getting more women into the labour market is an important contributor to improving Europe's competitiveness. Having more women in the workforce will also help achieve the EU's goal of raising the employment rate for adults to 75%. You have to build up the pyramid with a strong base. Governments have a responsibility to improve and facilitate work-life balance so people can combine a family and a career.

Second, the business case for more women on boards: a growing number of studies show a link between more women in senior positions and companies’ financial performance. For example, a report by McKinsey found that gender-balanced companies have a 56% higher operating profit compared to male-only companies. Ernst & Young looked at the 290 largest publicly-listed companies. They found that the earnings at companies with at least one woman on the board were significantly higher than in those that had no female board member.

Thirdly, several EU Member States have started to act by introducing legally binding quotas for company boards. The group of first movers includes Belgium, France, Italy, the Netherlands and Spain. Denmark, Finland, Greece, Austria and Slovenia have adopted rules on gender balance for the boards of state-owned companies. These different quota rules are new, and they can be a challenge for businesses operating in several EU countries. For example, businesses may have to comply with different national quota laws if they want to participate in tenders for public works.

Fourthly, Europeans support better gender balance. In a new Europe-wide opinion poll, 88% of people across say that, given the same competence, they think women should be equally represented in top business jobs. 75% support the introduction of legislative quotas if progress cannot be made otherwise.

So, where do we go from here? One year ago, the European Commission, the European Parliament and Ministers from several Member States challenged publicly-listed companies in the EU to voluntarily improve the gender balance. Chief executives were asked to sign the "Women on the Board Pledge for Europe" to voluntarily increase women's presence on corporate boards to 30% in 2015 and 40% in 2020. But so far, only 24 companies across Europe have committed.

That is why the European Commission has now launched a public consultation to identify possible action at EU level to redress the imbalance in Europe's boardrooms. Can we continue to rely on self-regulation? Do we need binding quota rules as we have seen in several EU countries? Do we perhaps need coordinated or even harmonised action at EU level? Do we need quotas for all companies, or should we start with the larger ones?

Breaking the glass ceiling for women on company boards is a common challenge facing Europe's economy. We can no longer afford to waste female talent. Persistent failure to encourage and enable women to make full use of their potential has cost us dearly. In these challenging times, the stakes are too high to keep the status quo. It is time to act now.

Accession of EU to ECHR

Article 6.2 TEU states that the EU (now in possession of legal personality) shall accede to the European Convention of Human Rights and Fundamental Freedoms.  Will this change the HR regime of the EU (considering that the Charter legally has the same extend as the ECHR) If yes, how? If the Charter has the same extend as the ECHR, what are the reasons for joining the ECHR?  What will take precedence: the jurisprudence of the E. Court of Human Rights in Strasburg or the EU-jurisprudence of the European Court of Justice in Luxembourg if there is a conflict? (considering that EU law is supreme (Costa v. ENEL) and the ECHR is always at least on the same hierarchical ”level” (sometimes higher) than national constitutional law). When will the accession and the relation between the courts be finalised? The European Court of Human Rights has one judge per member. How will the EU-judge be chosen?

Viviane Reding: In order to complete the fundamental rights architecture in Europe, the accession by the European Union to the European Convention of Human Rights is required by the Lisbon Treaty. The negotiations are being actively pursued. I welcome Foreign Secretary William Hague’s recent commitment to this accession. And I note the commitment of the United Kingdom in its present role as Chairman of the Committee of Ministers – the governing body of the Council of Europe.

The debate on the functioning of the European Court of Human Rights is an important one; the process of improving the efficiency of its procedures is laudable. But we should take care that the Court's ability to help entrench the protection of fundamental rights in all 47 member countries is not hampered. I sincerely hope that the United Kingdom will pursue this important process in line with its long and solid human rights tradition.

The EU's accession will not change the Union's legal order. The position of the European Court of Justice will be comparable to that of national constitutional or supreme courts in relation to the European Court of Human Rights. A judge elected for the EU would bring additional expertise on the EU's legal system to the Strasbourg Court. This will improve the consistency of the two courts' case law, making it easier to develop a system of fundamental rights protection throughout the continent. The judge will have the same status and duties as the judges elected with respect to the state parties to the ECHR. The agreement foresees that the European Parliament is given the right to participate in the election of (all 48) judges at the European Court of Human Rights by sending a delegation to the Council of Europe Parliamentary Assembly.

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