Workshop Report: Litigation Strategies at a Time of Digital Transformation: New Directions of EU Law

Ivanka Karaivanova |

EUFutures Research Network Workshop

Litigation Strategies at a Time of Digital Transformation: New Directions of EU Law

(Sciences Po Grenoble-UGA, 2 May 2024)

How can we explain the successes and failures of interest groups in the European Union (EU) when they choose to litigate in the digital field, bottom-up?

On 2 May 2024, a group of academics and early-stage researchers gathered in Science Po Grenoble – UGA to try and find an answer to the question above, to open a wider conversation on the emerging issues of litigation at a time of digital transformation, and even more broadly, to discuss the future direction of EU (digital) law. Kindly organised by the UACES/James Madison Trust funded EUFutures Research Network, the workshop provided a forum for both senior and junior scholars to exchange ideas and build synergies. Speakers included: Maria Tzanou (Senior Lecturer in Law, University of Sheffield), Kris van der Pas (Postdoctoral researcher, Tilburg University), Maria Magierska (PhD Researcher, European University Institute), Oles Andriychuk, (Professor of Law, University of Newcastle), Giulia Gentile (Lecturer in Law, Essex Law School), Ivanka Karaivanova (PhD Researcher, European University Institute), Sarah Tas, (Assistant Professor, Maastricht University), Adrian Kuenzler (Assistant Professor, Zürich University), Mathieu Fasel (Phd Candidate, University of Lausanne), Elaine Fahey (Professor of Law, City, University of London), Sabine Saurugger (Professor of Political Science, Sciences Po Grenoble-UGA, PACTE) and Fabien Terpan (Professor of Law, Sciences Po Grenoble-UGA, CESICE).

The event consisted of four ‘strategically’ compiled panels, which provided a diversity in terms of legal fields but also heterogeneity in the research stage of participants. For the more junior scholars, in particular, the workshop delivered a calm environment to present their research and gain valuable feedback on their ongoing projects, either doctoral or post-doctoral.

The first panel’s overarching objective was to shed light on strategic litigation in the context of EU data protection law. Covering a broad array of legal knots under the procedural arrangements laid down in the General Data Protection Regulation (GDPR), the panel questioned what the main features and characteristics of this strategic litigation are, what makes data protection litigation ‘strategic’ and what this litigation potentially has missed out (Tzanou). The conversation then turned to explore why the actors of strategic litigation do (or do not) choose an EU (extra-)legal avenue through the lenses of the utilisation of the EU remedies system by civil society actors in the field of data protection (Van der Pas). Finally, the panellists highlighted the role of NGOs as a specific player and their role as ‘early flaggers’, ‘protectors’ and ‘quasi-enforcers’ of the GDPR, arguing that their conduct effectively places them as indispensable actors in the political and legal procedures’ setting (Magierska).

The second panel combined presentations on fundamental rights law, consumer protection law and competition law. Ultimately, it was suggested that the EU case law on the EU Charter of Fundamental Rights’ application in the digital environment offers interesting insights on the experimentalist theory on the effectiveness of human rights, whereby the long-term nature of the impact of fundamental rights appears nonetheless at odds with the fast-paced dynamics of the digital environment (Gentile). A conceptual argument was made that contrary to what is stated is the Digital Markets Act (DMA) itself and to what is acknowledged in EU law more generally, the DMA does not envisage a comprehensive, but a selective –and thus only public – enforcement (Andriychuk). It was further claimed that such interventionist and all-inclusive rules can only be justified by ‘public policy’, ‘societal interests’, ‘political reasonableness’ considerations. A similar plea was put forward with respect to consumer protection where evidence of the EU’s intervention in the domestic enforcement of EU law was presented, most recently with the Digital Services Act (DSA), which, de facto, devotes the majority of its provisions to the administrative regulation and channels enforcement into the public domain (Karaivanova). By looking into specific examples of constraints in the judicial protection on digital consumer’s matters, the potential of the national public authorities to fill the litigation gaps in the domain was demonstrated.

The DSA and DMA were also the focus of the discussions during the next, third panel. It was highlighted that while there are a significant number of cases relating to data protection brought forward by NGOs, there is a relative scarcity of legal actions concerning content moderation (Tas). However, the DSA is expected to considerably stir collective actions against online platforms for the flaws of their content moderation systems, removing some of the procedural barriers faced by NGOs in the past. The DSA is certainly trying to better protect users and guaranteeing legal certainty across the European single market. (Fazel). However, the fact that it has become the sole reference text on digital regulation for social media platforms places all the more weight and responsibility on the DSA and its implementation. The conversation then took a turn to competition law with a novel take on the recent CJEU jurisprudence relating to Big Tech companies (Kuenzler). It was argued that while the competition law investigations are not necessarily explicit in recognising the distinct role of consumers in concentrated markets, the investigations are in fact best understood as an effort to ‘clear the channels of consumer influence’. By doing that, they will further be able to allow digital markets to benefit from an intensified extent of administrative action taken on behalf of consumers.

The fourth and final panel, on the one hand, considered EU Law as global governance, focusing on movements of consumers between regimes, strategic litigation by Big Tech across jurisdictions and Big Tech’s lobbying across jurisdictions with respect to regulatory standards (Fahey). On the other hand, the panel highlighted that even though the EU external commitments are rarely challenged by the Court, this was not the case with the EU-US frameworks for data transfer (Saurugger and Terpan). And not only that they were challenged but they were successfully challenged – the CJEU, through rulings indirectly triggered by public interest groups, invalidated the Safe Harbour and later the Privacy Shield. But how can we explain the success of litigation strategies while so many factors pushed in the opposite direction? Answering this question will provide an understanding of the conditions leading to successful litigation strategies, especially those pursued by public interest groups, in the EU and beyond.

All in all, the conference demonstrated, firstly, how integration through law in the EU has shifted decidedly towards a court-centric perspective. Secondly, it successfully bridged the gap between the most recent developments of EU digital law and the established routes of litigation strategies of interest groups. Finally, it tried to predict the future direction of the EU digital transformation following the emergence of the Single Market to a Digital Single Market and considered the potential successes of strategic litigation. The conversation will continue during the UACES Annual Conference in Trento, Italy in September 2024. The contributions will be published at the end of 2024 in the Nordic Journal of European Law, Special Issue 4 entitled ‘EU law in the era of digitisation: on strategic litigation causes, actors and processes’.