The Week Ahead in the European Parliament – June 22, 2018

Summary

Next week is committee and political group week in the European Parliament.  Members of the European Parliament (“MEPs”) will prepare for the plenary session in the week of July 2.  However, this week also sees a number of interesting votes, debates, and committee meetings.

On Monday, the Committee on Civil Liberties, Justice and Home Affairs (“LIBE”) will vote on the situation Hungary, pursuant to the European Parliament resolution of May 17, 2017, due to an alleged serious breach of EU values in that country.  If adopted by the plenary, the Parliament’s reasoned opinion would trigger, for the first time, the rule of law procedure described in Article 7(1) of the Treaty on European Union (“TEU”, see here).  This would mean that the Council could in principle impose sanctions on the Member State, including a suspension of its voting rights, unless and until the Council determines that the Member State has addressed its concerns.  See the resolution here, and the draft report by Judith Sargentini (Greens/EFA, the Netherlands) here.

Also on Monday, the LIBE Committee will hold a hearing on the Facebook/Cambridge Analytica case.  Committee Members will question experts and Facebook representatives on issues such as data protection, alleged election interference and cybersecurity.  See the draft program here.

On Tuesday and Wednesday, the EU-Neighborhood East (“Euronest”) Parliamentary Assembly will bring together MEPs and national parliamentarians from Armenia, Azerbaijan, Georgia, Moldova and Ukraine to debate the fight against corruption and money laundering.  The group will also adopt resolutions on regional security, foreign direct investment, energy efficiency, and ways to tackle undeclared labor.  See the draft program here.

On Thursday, the Committee on Foreign Affairs (“AFET”) will vote on the draft report on the state of EU-U.S. relations.  The Committee will discuss, in particular, the recent “America First” policy and EU-U.S. disagreements on trade, the Iran deal and the Middle East peace process.  See the draft report by Elmar Brok (EPP, DE) here.

Also on Thursday, the Special Committee on the Union’s authorization procedure for pesticides (“PEST”) will hold a hearing on the authorization of plant protection measures by Member States.

Meetings and Agenda

Monday, June 25, 2018

Committee on Budgetary Control

15:00 – 18:30

Debates

  • ECA Special Report 14/2018 (Discharge2017): The EU Chemical, Biological, Radiological and Nuclear Centres of Excellence: more progress needed – Short presentation of the special report by Bettina JAKOBSEN, ECA Member responsible
    • Rapporteur: Zigmantas BALCYTIS (S&D, LT)
  • ECA Special Report 15/2018 (Discharge 2017): Strengthening the capacity of the internal security forces in Niger and Mali: only limited and slow progress – Short presentation of the special report by Bettina JAKOBSEN, ECA Member responsible
    • Rapporteur: Gilles PARGNEAUX (S&D, FR)

Committee on Regional Development

17:00 – 18:00

Votes

  • Increase of the financial envelope of the Structural Reform Support Programme and adapt its general objective (COD) – adoption of draft report by Ruža Tomašić (ECR)

Committee on Civil Liberties, Justice and Home Affairs

14:30 – 20:00

Votes (14.30-15.00)

  • The situation in Hungary (pursuant to the European Parliament resolution of 17 May 2017 – adoption of draft report
    • Rapporteur: Judith SARGENTINI (Greens/EFA, NL)
  • Guidelines for Member States to prevent that humanitarian assistance is criminalised – adoption of a draft motion for a resolution
    • Rapporteur: Claude MORAES (S&D, UK)

Debates

  • Opinion 3/2018 – EDPS Opinion on online manipulation and personal data – presentation by Giovanni BUTTARELLI, European Data Protection Supervisor (15.00-15.30)
  • Hearing on the Facebook/Cambridge Analytica Case – Part 2: Use of Facebook users’ data by Cambridge Analytica and impact on data protection (in association with the Industry, Research and Energy, Constitutional Affairs and Legal Affairs committees). In this second part, Members will question experts and Facebook representatives on issues such as data protection implications, alleged election interference and cybersecurity. (15.30-20.00)

Tuesday, June 26, 2018

  • No meetings of note

Wednesday, June 27, 2018

  • No meetings of note

Thursday, June 28, 2018

Joint meeting: Special Committees on Terrorism and TAX3

09:00 – 11:00

  • Joint Public Hearing – Special Committee on financial crimes, tax evasion and tax avoidance and the Special Committee on Terrorism: The use of tax frauds, including VAT or carousel fraud, to finance terrorism

Committee on Foreign Affairs

09:30 – TBD

Vote

  • An extraordinary meeting of the AFET Committee will be organised on Thursday, 28 June, starting at 09:30, to vote on the draft report on The state of EU-US relations
    • Rapporteur: Elmar BROK (EPP, DE)

Special committee on financial crimes, tax evasion and tax avoidance

11:00 – 13:00

Debates

  • Public hearing – VAT Fraud

Committee on Budgets

09:00 – 18:30

Voting time

  • 2019 budget – Trilogue mandate (BUD) – Consideration and adoption
    • Rapporteur: Daniele VIOTTI (S&D, IT)
  • Draft amending Budget No 3 to the General Budget 2018 – Extension of the Facility for refugees in Turkey (BUD) –
    • Rapporteur: Siegfried MURESAN (EPP, RO) – Consideration and adoption

Committee on Employment and Social Affairs

09:00 – 12:30
Debates

  • Joint debate EMPL-ECON – Economic Dialogue and exchange of views on the 2018 European Semester – Country-Specific Recommendations with Valdis DOMBROVSKIS, Vice-President and Commissioner for the Euro & Social Dialogue, Marianne THYSSEN, Commissioner for Employment, Social Affairs, Skills and Labour Mobility and Pierre MOSCOVICI, Commissioner for Economic and Financial Affairs, Taxation and Customs

Committee on Civil Liberties, Justice and Home Affairs

11:30 – 13:00

 

 

 

 

 

 

 

Recent Developments at the USPTO

Change is afoot at the U.S. Patent and Trademark Office (USPTO).  Since Director Andrei Iancu took office in February and declared “creating a new pro-innovation, pro-IP dialogue” a top priority, the agency has experienced a flurry of activity.  Beyond the significant shift in its rhetoric on intellectual property, the USPTO has moved to “increase predictability of appropriately-scoped claims,” and has initiated a full review of the process governing the Patent Trial and Appeal Board (PTAB).  In addition, the Patent Office continues to reduce delays accompanying patent applications and issue guidance on new judicial developments.

Recently, the USPTO addressed a key feature of the PTAB trial process:  the standard governing claim construction.  Last month, the agency issued a notice of proposed rulemaking to change the PTAB claim construction standard from the “broadest reasonable interpretation” standard to the “Phillips standard” used in district court and at the International Trade Commission.  According to Director Iancu, this change “aims to improve the consistency and reliability of the patent system” by harmonizing the standards used at the PTAB and in federal court.

The USPTO also has taken steps to reduce delays associated with pending patent applications.  The backlog of unexamined applications has been decreased—down from a peak of approximately 750,000 applications in 2009 to around 540,000 applications today.  Director Iancu’s stated goal is to achieve “optimal pendency,” or around 400,000 unexamined patent applications, with a pendency period of less than 24 months by 2019.

In April, the Supreme Court issued its decision in SAS Institute Inc. v. Iancu, holding that the America Invents Act requires the PTAB to institute review on all claims raised in a challenger’s petition if it institutes review on any of them.  Shortly thereafter, the USPTO issued implementing guidance, which requires the PTAB to institute a proceeding on all claims raised in a challenger’s petition or none at all.  The SAS Institute decision likely will increase the stakes of the institution stage of PTAB proceedings for patent owners, because a decision to institute will put the entire patent at risk.  Conversely, the decision may encourage the PTAB to deny review outright in a greater number of cases, putting additional pressure on parties at the institution phase.  As a practical matter, the holding in SAS Institute likely will result in a heavier workload for the PTAB and increase the time it takes the Board to resolve challenges, as institution now requires a final written decision on every claim.

The USPTO also is issuing guidance on patent subject matter eligibility.  Director Iancu recently acknowledged that the current standards governing eligibility “are difficult for all,” and committed the agency to work on developing forward-looking guidance that simplifies the eligibility determination for patent examiners and other stakeholders.  To that end, in April, the USPTO issued guidance on the “conventionality” analysis in step two of the Mayo/Alice test, in light of the Federal Circuit’s decision in Berkheimer v. HP Inc.  Director Iancu has committed the Patent Office to developing additional concrete tests that guide examiners and stakeholders in conducting eligibility analyses.

Considering the high activity level in Director Iancu’s short tenure, we expect the USPTO to initiate additional administrative changes in the coming months.  Covington will monitor developments closely, particularly concerning further anticipated changes to the PTAB.

US Makes Good on Trade Threats – What Now?

We are moving into uncharted waters with the Trump Administration’s announcement that the U.S. will move forward to impose $50 billion in tariffs against a wide range of Chinese products, with the first tranche of $34 billion beginning on July 6; as well as tariffs against Canadian, Mexican, European and Japanese steel and aluminum imports.  Retaliation against U.S. exports by China and key U.S. allies will most certainly follow.  President Trump has also threatened tariffs on an additional $100 billion ($200 billion as of Monday, June 19) in imports from China, and on imported autos from Germany, Japan and elsewhere.

The administration’s trade actions against China have elicited bipartisan support, from Democratic leaders as well as Republican leaders.  There continues to be legitimate frustration with distortive Chinese trade practices, from heavy state subsidies of Chinese companies to forced technology transfers and joint ventures with Chinese companies as a condition of doing business in Chinese, along with outright theft of American and western technology.  There is less political support, and indeed, bipartisan concern about the imposition of tariffs against our closest  Americans allies on “national security” grounds.

The President is moving from threats of trade sanctions to the reality of multiple simultaneous trade wars, and another conflict involving possible U.S. economic sanctions against European companies over the U.S. withdrawal from the Iran nuclear agreement.  We are currently facing economic conflicts the likes and scale of which we have not seen in modern times.

But these are not only trade disputes. At risk is nothing less than the future strength of the western alliance; the rules-based World Trade Organization (WTO), which the U.S. government took the lead in creating to resolve trade frictions and which been supported by Republican and Democratic presidents; and the stability of relationship between the U.S. and China, the largest and second largest economic, political, and military powers in the world.

Economists and trade experts disagree on the direct economic impacts of the trade actions. Some see no more than a 0.2% hit to U.S. GDP in the months ahead. Stock markets have so far largely shrugged off the trade disputes, focusing instead on the strong U.S. economy. But others point to signs of strain in global supply chains, rising prices for crucial raw materials, stagnant air freight and container shipments, and the possibility that the impact of these disputes on business confidence may well foreshadow larger economic disruptions.

At the least, the imported products subject to 25% (or even higher) tariffs will act like a tax on those products, and the products into which they are incorporated, making them more expensive to U.S. consumers and producers.   At most, these actions and those which may come, could provoke a far more damaging cycle of protectionist measures by the major trading countries.

In retaliation for the U.S. tariffs, China has published a list of 659 U.S. products to be targeted, with tariffs on the first group of 105 to begin on July 6 (the same day the U.S. sanctions on Chinese products would bite) including U.S. agricultural products such as soybeans, whisky, orange juice, salmon, cigars, and automobiles.  The rest of China’s retaliatory tariffs on $16 billion of U.S. products — chemicals, pharmaceuticals and machinery — would go into effect if and when the U.S. imposes the balance of its own $50 billion sanctions.  Moreover, China has scrapped the agreement Commerce Secretary Wilbur Ross recently secured to lower their huge trade surplus with the U.S. by purchasing up to $70 billion of additional U.S. agricultural products, natural gas and other goods.

Likewise, the EU and Canada have listed U.S. products which would receive equivalent tariff increases to those the U.S. is imposing. China has already made clear as well that it will retaliate in kind if the U.S. imposes another $100 billion (now $200 billion) of tariffs threatened on an unspecified list of Chinese products.

U.S. trade actions against China, and their retaliation, have far broader implications.  This is a clash between a state-dominated economic system and a free market system.   This is a clash between China, and its 2025 Made in China Strategy, its aggressive military actions in the South China Sea and its State-led economic “Belt and Road” program to finance infrastructure programs to link large parts of the world to China, and the United States, which opposes these initiatives. The stability of the world order in the 21st century will depend significantly on how the two great powers bridge these vast differences in approach.

Some, though not all, of China’s untoward trade and economic practices can be attacked by the kind of trade actions in the WTO which the EU and Japan have recently launched. It causes far less friction if the WTO process, imperfect though it is, can be used to the maximum degree.  But recent statements by Trump administration officials cast doubt on their commitment to the WTO as an effective mechanism to address China’s unfair trade practices, and any we may find by other countries.

The U.S. urgently needs its allies in the difficult battle to hold China to account.  What is deeply concerning is that rather than reaching out to them to form a coalition against unfair Chinese trade and investment practices — which our allies would have been willing to do, given the harm to their own companies and industries — the administration took harsh actions against them.  This is dividing and weakening our traditional alliances, to the benefit of China.  In fact, the EU, Canada and Mexico have all initiated WTO cases against United States “protectionism.”

In the early months of the administration, the U.S. dropped out of the 11-nation Transpacific Partnership (TPP) trade agreement, leaving them to go it alone.  The strong leverage TPP would have provided against China’s aggressive expansion in Asia has now been lost.  The administration forced a renegotiation of the U.S.-South Korea Free Trade Agreement. The U.S. is also challenging the future of the North American Free Trade Agreement  (NAFTA) with Mexico and Canada, and engaging in vitriolic attacks on Canada’s prime minister, and European leaders.  And the imposition of the steel and aluminum imports against our closest European and Asian allies, not based upon unfair trade practices to be resolved at the WTO, but unilaterally on “national security” grounds, has deeply offended them.  Add that to the threatened action against the lifeblood of Germany’s and Japan’s exports, their automobiles, and there is the possibility of a perfect storm.

The risk is that the United States strongest allies – the EU, Japan, Canada, South Korea, Mexico — will not only retaliate in ways that further damage the U.S. and global economy, but ultimately will trade more with each other, and with China, than with the U.S.

Perhaps this is all a prelude to a grand bargain with our allies and with China.  President Trump did tell French President Macron last Friday that he would like to restart trade discussions with the EU.  But if not, we are entering into rough period with our closest allies, risking further rounds of growth-killing trade sanctions and setting the stage for a classic conflict between a rising power and established power.  History teaches us that such confrontations do not end well.

Congressional Forecast: June

As the weeklong July 4 recess approaches, members of Congress are pursuing a busy legislative schedule, focused on the fiscal year 2019 National Defense Authorization Act, some lesser FY 2019 appropriations bills, reform of the Committee on Foreign Investment in the United States, immigration reform and border security, the farm bill authorization (set to lapse in September) and the Water Resources Development Act.

The Senate continues to focus much of its floor time confirming executive branch and judicial nominees in an environment where the Democratic minority can no longer defeat these nominations without majority help. Senate Majority Leader Mitch McConnell, R-Ky., has said his goal is “to confirm all the circuit and district court judges that come out of committee this calendar year,” and his recent decision to cancel all but the first week of the cherished month-long August recess is partly so that the Senate may continue with these confirmations. McConnell last week expressed his satisfaction with the 115th Congress’s successes implementing a conservative agenda, and in particular there have been a high number of confirmations of President Donald Trump’s circuit court judge nominees, even as the closely divided Senate has struggled to find paths forward for significant legislation.

But the Senate’s drastic reduction of the August recess is also connected to the midterm election Senate map, with ten Democratic senators up for reelection in November in states that Trump carried just 18 months ago. These Senate Democratic incumbents would otherwise have spent considerable time at home campaigning throughout the month of August.

However, the decision to keep the body in Washington for most of August is not just relevant to these Democratic incumbents; it also could affect Sen. Dean Heller, R-Nev. Heller also has a tough reelection battle ahead, with last Tuesday’s Nevada primary having set up a general election battle with Rep. Jacky Rosen, D-Nev., in a state that Hillary Clinton carried in 2016.

The Senate is working its way through the National Defense Authorization Act, an annual bill that provides senators with ample opportunity to try to legislate on matters connected directly to, and sometimes only tangibly related to, national security issues. As is the normal practice, senators have filed a whole host of amendments during consideration of the bill, and several are especially important and difficult and will need to be worked out as that bill progresses.

One such critical issue that may well take an important step towards resolution as a result of the NDAA process is the potential for reforming the law that authorizes the Committee on Foreign Investment in the United States. Senators supportive of CFIUS reform are seeking to tie that effort to the popular must-pass NDAA bill. Meanwhile, the House has worked on a freestanding CFIUS/export control reform bill that it would take into a potential NDAA conference with the Senate.

The House bill has been slowed by differences, jurisdictional and otherwise, between the House Financial Services Committee and the House Armed Services Committee, but these differences may prove not to be insurmountable. In an environment where China continues its efforts to acquire the closely held assets of many companies in the United States, the overall prospects for CFIUS reform appear to be good.

The House is also expected to once again take up its version of the farm bill later this month. A similar House farm bill package failed on the floor back in May, but House Republican leadership appears inclined to make another attempt at passage of the popular measure in an election year. A Senate Agriculture Committee-passed bipartisan Senate farm bill could reach the Senate floor later this month as well.

The House has been grappling with what to do about immigration reform and border security legislation, with a group of recalcitrant rank-and-file moderate House Republicans breaking ranks with both House Republican leadership and the more conservative nucleus of the conference to push a discharge petition that would force votes on a solution for the “Dreamers.” These young people, born abroad and brought to this country without documents as children, were granted deferred action, allowing them to stay in the country, in an Obama-era policy change initiated by then-Homeland Security Secretary Janet Napolitano.

President Trump announced an end to deferred action for this set of immigrants, potentially subjecting them to adverse legal consequences and even deportation, and effectively dividing Republicans over what to do about them. The House Republican conference has tried to work out its internal disagreements by setting up a bifurcated process for a more restrictionist measure stewarded by retiring House Judiciary Committee Chairman Bob Goodlatte, R-Va., and possibly a separate Republican-negotiated compromise measure that would appeal to multiple House Republican factions. Such a House floor trajectory would probably put an end to the rank-and-file discharge effort led by Rep. Jeff Denham, D-Calif., which would constitute a top-down reassertion of leadership over the process.

This month is also seeing further activity on FY 2019 appropriations bills in the House and Senate. Newly installed Senate Appropriations Committee Chairman Richard Shelby, R-Ala., who took over the gavel after the retirement of Sen. Thad Cochran, R-Miss., has pledged a return to “regular order” in the appropriations process following the two-year bipartisan budget agreement reached earlier this year.

As the full Senate kicks off its activity on appropriations bills, it may simultaneously consider at least a procedural vote on a measure that would rescind this omnibus appropriations compromise legislation, following pointed comments from President Trump about his desire to reopen that compromise. It is expected that the Senate would defeat a procedural measure to move to a recissions package. The House narrowly passed a recissions bill 210-206.

Beyond a possible Senate rescissions vote, Chairman Shelby is preparing a “minibus” package, likely of three of the 12 appropriations bill, for consideration by the full Senate later in June. That minibus would logically consist of the military construction/Department of Veterans Affairs appropriations bill, the energy and water appropriations bill and the legislative branch appropriations bill, since those three bills just passed the House as a package.

It is unclear how many of the 12 appropriations bills can be finalized by each chamber before the end of the fiscal year on Sept. 30, upon which a short-term continuing resolution will be necessary to fund the government into the lame duck session after the November midterms. Alternatively, the Congress could once again flirt with a dramatic shutdown of the government.

The Senate Democratic Steering Committee has scheduled a packed panel for a hearing on Wednesday, June 20, entitled “Free and Fair Elections,” highlighted by former chairman of the Democratic National Committee and former Governor of Virginia Terry McAuliffe.

The Senate might also take up sometime later this month or after the July 4 recess measures extending or reauthorizing the Water Resources Development Act, flood insurance and the law authorizing the Federal Aviation Administration, all three of which are set to expire in the coming months.

This article was originally published in Law360.

Colorado Campaign Finance Enforcement System Found Unconstitutional

In a case with interesting ramifications, a federal court this week struck down major parts of Colorado’s campaign finance enforcement system as unconstitutional.The system at issue, which was created through a ballot initiative, generally allowed any person who believed there had been a violation of the state’s campaign finance laws to file a written complaint with the Secretary of State.  The Secretary of State was required to refer the complaint to an administrative law judge within three days, and the judge had to hold a hearing within fifteen days.  There was no mechanism for filtering out bad cases — each and every complaint got a hearing.  In his opinion in Holland v. Williams, Judge Raymond Moore of the U.S. District Court for the District of Colorado held this system was facially unconstitutional as a violation of First Amendment political speech rights.There are three main takeaways from the decision.  First, although the state’s campaign finance regulatory scheme remains in effect, it is temporarily without an enforcement mechanism.  A new enforcement system should be coming soon. In a release, the Secretary of State’s office stated it is working to adopt temporary enforcement rules quickly, and will seek a more permanent solution in the 2019 legislative session.

Second, any other states and localities that allow citizens to file campaign finance complaints, especially without a screening system, may face similar challenges to their rules.  While the court in this case seemed to indicate that a citizen-driven system could be permissible so long as there was a system for screening complaints, there is no guarantee that other judges will follow every contour of this decision.

Finally, the decision is another example in what is becoming a pattern of courts striking down citizen-initiated campaign finance and government ethics reforms.  In the last few years, voters in Colorado, South Dakota, and Missouri, have all passed reforms that they felt would be stricter than what state legislators were self-imposing, only for a judge to strike some aspect of the reform as unconstitutional.

Postcard-sized agreements could solve trade disputes

While overshadowed by other remarks during the recent Group of Seven meetings, President Trump suggested that trade agreements could be “much simpler” and that they should eliminate all barriers to trade.

The president’s instincts that trade agreements could be both simpler and more comprehensive are correct. Paradoxically, simpler agreements could go further than existing lengthy agreements in eliminating trade barriers.

In fact, the surest way to eliminate all trade barriers would be through a simple, postcard-sized Free Trade Agreement (FTA).

A postcard-FTA would involve a single but comprehensive obligation whereby each party would agree “to treat foreign goods, services and investments no less favorably than domestic goods, services and investments.”

More than any current trade agreement, this simple commitment would produce the proverbial level playing field sought by American businesses, workers and farmers while at the same time serving the best interests of U.S. consumers.

First, such a commitment would necessarily eliminate all tariffs. Because tariffs apply only to imports, their application by definition would cause imports to be treated less favorably than domestic goods and would therefore be impermissible.

Second, this simple commitment would eliminate non-tariff barriers. While countries would be free to regulate as desired to protect national security, consumer welfare, the environment and other legitimate public purposes, such regulations would need to apply equally to both foreign and domestic goods and services.

Insisting that domestic regulations be applied in a non-discriminatory fashion would be a huge benefit to U.S. exporters since they often face unfair treatment in foreign markets.

To avoid letting the perfect become the enemy of the good, parties to the postcard-FTA could agree to a limited but balanced number of exemptions to the basic obligation.

For instance, if the U.S. wanted to preserve the Jones Act, which bars non-U.S. ships from transporting goods within U.S. internal waterways, it could be exempted from the non-discrimination requirement. Other countries of course would insist on comparable levels of exemptions to reflect their own domestic priorities.

In addition to leveling the playing field for U.S. exporters, this simple agreement would also serve as a useful brake on those calling for protectionist laws and regulations that hurt U.S. consumers and invite crony capitalism.

The postcard-FTA would serve the president’s preference for bilateral trade agreements while preserving the basic level of commitments reflected in existing World Trade Organization (WTO) agreements.

These agreements, especially with regard to intellectual property protections, would be important complements to bilateral agreements. Certainly even a very succinct bilateral agreement could make room for critical WTO-plus obligations.

Finally, to be effective, the postcard-FTA would require expedited enforcement procedures accessible to both government and non-government stakeholders. Without effective and timely ways to enforce non-discrimination requirements, agreements — simple or complex — are just aspirational pieces of paper.

There is a strong and distinguished precedent for the postcard-FTA, namely the Commerce Clause of the U.S. Constitution, which was designed to prevent states from discriminating against goods and services from other states.

Despite its brevity, the Commerce Clause has long served as an effective guard against interstate discrimination. If properly enforceable, a simple agreement could serve this same function at an international level.

The postcard-FTA would serve the interests of consumers by assuring robust competition and would serve the interests of producers by assuring non-discrimination in foreign markets.

Pursing such agreements would allow the president to learn which Americans and foreigners really want fair and open competition and which prefer to be shielded from the forces of competition.

This article was originally published in The Hill newspaper.

Senate Armed Services Committee Proposes Expansive but Unclear Software Review Provisions

As the Senate approaches the end of its debate on the National Defense Authorization Act for Fiscal Year 2019, provisions of the bill regarding access to and review of information technology code deserve close attention.  These sections, if enacted, would significantly impact Department of Defense contractors and also would affect matters associated with investments subject to review by U.S. national security agencies.As drafted, the provisions could expose current and prospective contractors to intrusive scrutiny and significant risks.  They lack clarity on key definitions, leaving the precise scope of those risks unclear.  We summarize major issues and concerns below.  We expect these provisions to receive scrutiny during the House-Senate conference on the NDAA over the summer.

Synopsis of the Proposed Legislation

Three sections of the Senate’s version of the NDAA, which passed the Senate Armed Services Committee in May, would establish new rules designed to mitigate “risks posed by providers of information technology with obligations to foreign governments.”  Those risks involve the access that foreign governments may have to code in products or services that are offered to the Department of Defense.  The provisions also impose new disclosure requirements on the efforts of a prospective vendor to obtain a license under the Export Administration Regulations (“EAR”) or the International Traffic in Arms Regulation (“ITAR”).The pending legislation would require proactive disclosure of those matters, and would impose an ongoing duty to supplement those disclosures during the period of performance on the contract.  The Secretary of Defense would be authorized to assess and mitigate any resulting national security risks through contractual provisions or other performance requirements.The bill directs the Secretary to create a “prioritized list of countries of concern regarding cybersecurity,” using factors designed to assess those countries’ capabilities, intentions, and past practice with respect to U.S. and “coalition forces.”  It would also require the Secretary to develop a “third-party testing standard” for commercially available off-the-shelf (“COTS”) items “to use when dealing with foreign governments.”  Finally, the bill would require the Secretary to consolidate the disclosures in a master registry and make the information available to “any agency conducting a procurement pursuant to the Federal Acquisition Regulations or the Defense Federal Acquisition Regulations.”

Definition Issues and Coverage Concerns 

The scope of the legislation is broad, and coverage is not clearly defined.  The disclosure requirements apply to any “product, service, or system relating to information or operational technology,  cybersecurity, an industrial control system, a weapons system, or computer antivirus” offered to the Department.

One subset of disclosure obligations applies to “custom-developed” products, systems, or services.  Any person offering such products, services, or systems must disclose “[w]hether the person has allowed a foreign government to review or access the code of a product, system, or service custom-developed for the Department, or is under any obligation to allow a foreign person or government to review or access the code of a product, system, or service custom-developed for the Department as a condition of entering into an agreement for sale or other transaction with a foreign government or with a foreign person on behalf of such a government.”

The bolded terms all raise questions.  The bill does not define “custom-developed,” which is not a recognized term of art in procurement law.  A broad interpretation could, for instance, sweep in a commercial item where the manufacturer made only a minor modification for the Department.  Presumably, if a product was custom-developed for the Department, any necessary restrictions on sharing the source code would have been imposed contractually on the manufacturer.  If such a limitation was not imposed at the time of the contract, it is not clear that the government should impose new restrictions post-agreement.

The concept of “review or access” is also open to interpretation.  For example, if a company keeps full custody of the code but allows a customer, including a foreign government, to have an authorized representative inspect the code under the company’s control, it is not clear that such an arrangement would constitute a materially risky “review,” let alone “access.”  That structure would not involve a company relinquishing control of the code, and it might not be sufficient to allow the customer/government to identify vulnerabilities.  Furthermore, a “review” that entails only an analysis of results of testing conducted by the company or an agreed-upon third party would be even farther removed from the risk, but could still be considered a “review” by a foreign government under the text of the bill.  It is unclear if the only code at issue is the code associated with a government-specific modification, or also the underlying commercial item product (i.e., background vs. foreground intellectual property).

The term “foreign person” also invites questions about scope.  It could include employees of companies that create the product, if those employees are citizens of another country.  It could also include resident aliens, or dual citizens.  The structure of the bill implies that the term “foreign” would be interpreted broadly; unlike other sections of the bill that focus on the prioritized list of “countries of concern,” this section has no such limitation.

With respect to the “countries of concern,” a broader disclosure obligation applies to any goods or services, not just those “custom-developed” for the Department.  Under the terms of that section of the bill, offerors must disclose whether they have allowed a listed government to access source code.  While the language addressing “access or review” of source code is limited to high-risk foreign governments identified by the prioritized list, a broader prohibition applies as to products where the seller is “under any obligation” to allow any foreign person or government to review or access the product or service as a condition to entering an agreement with a foreign government or person on behalf of such a government.  “Obligation” is not defined and could be interpreted more broadly than just contractual obligations.  Whether contractual or not, in some instances, software products need to be modified to interface with a customer’s information systems.  It is unclear whether access just to the modifications to the code that may be necessary to accomplish this interface with a foreign commercial customer’s systems would trigger a disclosure requirement.

Consequently, those disclosure obligations apply to any product, service, or system, and to a broad universe of “foreign” interests.

Opacity of Procedures to Mitigate Risks

Definitional issues also arise in the context of the mitigation provisions.  For instance, the language allows the Secretary to determine whether the disclosure reveals “a risk to the national security infrastructure or data of the United States, or any national security system under the control of the Department” and then “take such measures as the Secretary considers appropriate to mitigate such risks.”  Neither legislative text nor industry-wide common understanding explain what comprises “national security infrastructure” or “data of the United States.”  The latter term could mean proprietary data of the U.S. government, or any data residing in the United States.

The legislation leaves practical implementation questions unaddressed.  There is no timeframe or clear trigger for initial disclosure, nor discussion of procedures for mitigation.  If the disclosure is made after contract award, the legislation could arguably give the government grounds for termination.

Other key operational questions include the following:

If mitigation is to be imposed pre-award in a competitive procurement, can the Secretary allow one offeror to add such mitigation to its proposal without opening discussions with all offerors?

Would that mitigation be reported in the “registry” along with the other disclosure elements?

Could mitigation include outright exclusion? If so, what is the process for aggrieved offerors to contest that exclusion, if not the normal bid protest channels?

Once a product is identified as a risk, is it excluded from future Department of Defense procurements, or is this determination done on a procurement-by-procurement basis? What procedural safeguards would be established to addressed this limit on competition?

The pending legislation also fails to identify which agency within the Department would develop and enforce these conditions.  It could be left to the discretion of each service or component, or a central agency could manage the process on behalf of the entire Department.  In that case, likely candidates would be the Defense Security Service, the Chief Information Officer, or the National Security Agency.

Export Control and Third-Party Testing Questions

The lack of precision raises other questions in the provisions on export controls and the standards to be used with third-party testing.  The bill appears to provide the Department with nearly unfettered discretion to prohibit exports of certain technology, products, or services beyond any controls imposed by the ITAR.  Even the issue of what is covered is left to the discretion of the Department.  The consequences of the resulting EAR/ITAR-related disclosures are also unclear.  Offerors are required to disclose whether they hold or have applied for any licenses, and that data will presumably be considered by the Secretary.  However, there is no indication as to how the Department will utilize that information to determine whether it will use the product, service, or system.

The third-party testing standard also raises a number of operational questions, and the accompanying Committee Report language offers few indicators of congressional intent.  If the purpose is to direct the Department to develop the standard that COTS companies can use to deal with foreign governments, it is an open question whether the U.S. government would then apply that standard to its own testing.  The provisions also offer no resolution if a disconnect arises between U.S. government requirements the standard developed by the Department pursuant to this third-party testing provision.

The June 28 European Council: Four Challenges to EU Solidarity

Transatlantic trade tensions, the Brexit negotiations, migration, and Eurozone reform will dominate the June 28 European Council. Each of these issues are potentially divisive, and the leaders know that a new dose of solidarity will be needed to address them properly.

They also know that next year will see additional challenges to the cohesion and the stability of the Union. The European Parliament election, the appointment of new institutional leaders, and the decision on the new multi-annual financial framework will require a more serene climate than today’s.

However, with the election of a populist government in Italy, governments in central Europe that include the far right and, recently, a row between the CDU and the CSU weakening Chancellor Angela Merkel, the consensus building among heads and state and government might be difficult when they next meet. .

This blog examines briefly the four main challenges, and how the European Council is likely to address them at the end of the month.

Migration

Migration is a divisive issue ins many countries – even in Germany – but it has also become a serious factor of division among EU members, North and South, East and West.

Migrants are arriving in the Southern, Mediterranean countries – Italy, Greece, Spain – and, according to the Dublin Regulation, these countries of arrival are responsible for processing most asylum requests. No solution has yet been agreed to alleviate the burden falling on these countries. This lack of solidarity of the other Member States has fed Euroscepticism – notably, in Italy, where the anti-immigrant Lega party was handed the reins of government after the last elections.

The East-West divide is more geopolitical and rooted in history. Most Western European countries were formerly colonial powers, and are more used to hosting significant Muslim and African-origin communities; to the East, Central European countries are more homogenous, and keen to recover fully their national identity after communist times. This is why these countries never accepted the EU decision of 2015 to spread refugees arriving in the EU amongst all Member States with a system of quotas.

In this vein, the June European Council will essentially address a new revision of the Dublin agreement which implies:

  • A re-introduction of burden sharing, but making this mandatory only in very exceptional circumstances
  • That countries who do not want to welcome refugees could help in some other way, by making financial contributions to the management of the borders, or meeting other expenses linked to migration
  • A re-definition of the number of years in which the country of arrival is “responsible” for the migrant (10 in the original proposal, 2 for Italy, 8 in the current compromise proposal of the Bulgarian presidency of the Council).

Meanwhile, the Bavarian CSU interior minister of Germany, Horst Seehofer, wants to refuse entry to the country to all migrants having entered an asylum request in another country – which, in Merkel’s view, could be a first step to the closure of EU internal borders and the end of Schengen. The last Home Affairs Council on June 5 ended in deep disagreement and it would be virtually a miracle if the leaders, including the new Italian prime minister, manage to find a compromise at the end of the month. German Chancellor Angela Merkel may therefore organize a meeting with a few leaders beforehand to try to break the deadlock.

 Eurozone reform

The long-expected reform of the Eurozone will be discussed in a special summit regrouping the 19 members of the Eurozone.

After the proposals made by president Macron and the EU Commission at the end of last year, Angela Merkel, in a long interview on June 3 to the Frankfurter Allgemeine Sonntagszeitung, presented the position of the new German government. A working group is actively trying to make a synthesis of the three – whilst also trying not to make it too minimalist.  France and Germany are supposed to make a joint proposal. Their finance ministers met last week, and Merkel and Macron will meet on June 19 to discuss the issue .

In essence, the issues discussed are:

  • A Eurozone budget, as proposed by Macron – or “an investment budget for the Euro area” in Merkel terms; or a line in the EU budget, as proposed by the Commission. Germany seems to have agreed that this budget would not just be for investments but also for “stabilization”.
  • Changing the European Stability mechanism (ESM) in a European Monetary Fund – which could be an EU agency or remain intergovernmental. The question is, ultimate, who will ensure the monitoring of national budgets – the Fund, or, as is now the case, the European Commission?
  • The completion of the Banking Union, with a backstop for the Single Resolution Fund in the ESM, and a European Deposit Insurance Scheme (thus far rejected by Germany).

Here, again, the question of solidarity dominates the discussion, and Germany continues to resist the mutualisation of risks that the others consider to be indispensable for the stability of the common currency.

Trade Conflicts

After the chaotic G7 meeting of June 9 to 10, the EU (and others) confirmed its intention to implement retaliatory measures intended to “re-balance” trade with the United States after the imposition of tariffs on steel and aluminum (as to which, see our alerts here and here).

The Commission has also sent the Council and the Parliament an amended version of the so-called “Blocking Regulation” intended to encourage European companies to continue their activities in Iran (see further here). If there are no objections (which is likely), the statute should enter into force on August 6, the day the American sanctions come into effect. However, it remains unclear what will be the reaction of European companies that resumed operations in Iran after the conclusion of the JCPOA, which run the risk of sanctions on their U.S. activities.

A new conflict began on June 12, when the U.S. Department of Commerce decided to impose combined anti-subsidy and anti-dumping duties, ranging from 30 to 45 percent, on Spanish olives. The Commission reacted immediately, calling this an inadmissible protectionist measure. The obvious risk is that this will become a precedent for further challenges to the agri-food products benefiting from the EU Common Agricultural Policy.

Member States do not have identical views on how to deal with the measures adopted in Washington, but the divergences are more on the approach than on the substance. Some would like to continue negotiating, offering trade concessions, or even re-opening negotiations on TTIP; others consider that the U.S. president will only change course if the EU reaction is strong.

The way the G7 meeting played out has built support for this last approach. But the EU’s resolve will be tested if further action is taken in Washington. There, the most likely next step, since an inquiry is already underway, is an increase in tariffs on the import of cars in the US – a measure aimed directly at Germany.

The G7 drama also makes European leaders fearful of the upcoming NATO summit on July 11 and 12. New pressure by the U.S. President on European countries about the share of their GDP spent on defense has already been brought to bear, and it is not beyond the realms of possibility that the Summit should end in unwanted acrimony.

 Brexit

The EU 27 were hoping to finalize the withdrawal treaty by the June European Council. They had promised the Irish Prime Minister that, if nothing else, the issue of the Irish border would be solved. But this will not be the case.

As agreed before, a “legal” text addressing the issue of the border between the Republic of Ireland and Northern Ireland needs to be inserted in a protocol annexed to the Withdrawal Treaty. The December joint report agreed by the UK and the 27 included a “backstop” on this issue, but there is no agreement yet on how the protocol should be formulated.

A solution could have been to keep Northern Ireland in the EU customs Union – but that would have created a border between Northern Ireland and the rest of the UK, which for obvious reasons the Northern Irish unionists that support Theresa May’s Minority government in Westminster cannot accept (as to which, see here our blog post on the Brexit negotiations of October 27, 2017).

This is why, on June 7, the UK presented a “technical note” proposing “temporary customs arrangements,” according to which the territory of the UK as a whole would remain in the EU’s customs territory until “further customs arrangements” can be introduced – based on technical solutions that are yet to be developed. The UK expects these future arrangements to be in place by end December 2021 at the latest, but obviously no precise date can be fixed.

The 27 consider that this note moves in the right direction, but that it raises a number of questions that cannot be answered before the end of June. The most important of these is the “alignment” of regulations – which requires that, on top of staying in a Customs Union with the EU, the UK must also stay in the internal market for goods. (This is not mentioned in the technical note, and could be seen as “cherry-picking” by the EU side.)

More broadly, the 27 remain united on Brexit, and continue to trust the EU institutions to lead the negotiations for them. But the current debate in the UK, where opinions on Brexit are increasingly polarized, makes them fear that an exit with no deal is still possible  – all the more so, given that the date of March 29, 2019, has been re-introduced into the Withdrawal Bill currently making its way through the British Parliament.

On the other issues of the day – trade, migration, Eurozone reform, as well as security and defense, which will also be discussed at the June European Council – the UK is keen to display its solidarity with its 27 EU partners. Indeed, this solidarity is sometimes stronger even than before the 2016 referendum – which took place before the U.S. Presidential election. In this sense at least, the Trump administration has brought greater unity to a divided European continent.

 

The Week Ahead in the European Parliament – June 15, 2018

Summary

Next week is a Committee week in the European Parliament (“EP”).  The week will see many votes, debates and committee meetings.

On Monday, Members of the European Parliament (“MEPs”) from the Committee on Economic and Monetary Affairs (“ECON”) will hold a number of important votes.  Inter alia, the Committee will vote on the proposed directive on the European Banking Recovery and Resolution Directive, presented by rapporteur Peter Simon (S&D, Germany).  Peter Simon’s proposed text argues for a ims to further strengthen financial and bank resilience, while at the same time taking into account specific European circumstances.  Peter Simon’s proposed report argues for an increase in lending capacity and includes amendments intended to facilitate the establishment of deeper, more liquid capital markets.  See the draft report here.

Another important vote in Monday’s ECON Committee meeting will be on the adoption of a draft report on the relationships between the EU and third countries concerning financial services regulation.  This is especially relevant in the light of Brexit.  The draft report, by rapporteur Brian Hayes (EPP, United Kingdom) can be found here.

On Wednesday, the Committee on Foreign Affairs (“AFET”) will vote on a resolution from rapporteur Bas Belder (ECR, the Netherlands), that urges EU Member States to exercise greater scrutiny of Chinese investments in European strategic infrastructure, and to anchor Member States’ ties with China in respect for human rights and the rule of law.  See the draft resolution here.

Also on Wednesday, the Committee on Legal Affairs (“JURI”) is set to vote on a legislative proposal to update the EU’s rules on copyright.  If passed, the new rules would, among others, require press publishers to be remunerated when their texts are accessed online, and allow rights holders to protect and  monetize their works uploaded online.  See the draft report here.

Meetings and Agenda

Monday, June 18, 2018

Special Committee on Terrorism

15:00 – 18:30

Debates

  • Study: “Virtual currencies and terrorist financing: assessing the risks and evaluating responses”, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs – Presentation of the study by Tom KEATINGE, Director of the Centre for Financial Crime and Security Studies at the Royal United Services Institute and David CARLISLE, Associate Fellow of the Centre for Financial Crime and Security Studies at the Royal United Services Institute.
  • Discussion on new trends in counter-terrorism financing and public-private partnerships with Maarten RIJSSENBEEK, National Coordinating Prosecutor Terrorism Financing, The Netherlands
  • Illicit gun markets and firearms acquisition of terrorist networks in Europe – discussion with senior researchers from the Flemish Peace Institute, Belgium, the Small Arms Survey, Switerland and a Europol representative

Subcommittee on Human Rights

15:00 – 18:30

Debates

  • Exchange of views on the human rights situation in Guatemala (16:30)

Subcommittee on Security and Defence

15:00 – 18:30

Debates

  • The NATO Summit in Brussels on 11-12 July 2018: the next steps for EU-NATO cooperation. Exchange of views with Gábor IKLODY, Director of Crisis Management and Planning Directorate (CMPD), EEAS and Petr CHALUPECKY, Head of NATO and Multilateral Affairs in the Political Affairs and Security Policy Division of NATO HQ.

Committee on Economic and Monetary Affairs

15:00 – 18:30

Debates

  • Structured Dialogue with Margrethe VESTAGER, Commissioner for Competition

Committee on Industry, Research and Energy

15:00 – 18:30

Debates

  • Exchange of views with Mr Carlos MOEDAS, European Commissioner for Research, Science and Innovation, as part of the Structured Dialogue, including on the newly adopted MFF legislative programmes
  • Exchange of views with Ms Mariya GABRIEL, European Commissioner for Digital Economy and Society, as part of the Structured Dialogue, including on the newly adopted MFF legislative programmes

Committee on Culture and Education

15:00 – 18:30

  • Structured Dialogue with Commissioner Tibor NAVRACSICS

Committee on Petitions

15:00 – 18:30

Tuesday, June 19, 2018

Subcommittee on Human Rights

09:00 – 18:30

Debates

  • Exchange of views on the business sector’s track record in the field of human rights and legal remedies for victims (09:00)
  • In association with Democracy Support and Election Coordination Group (DEG): Hearing on human rights enhancement via democracy support. The European Parliament’s election observation missions aim at strengthening, in third countries concerned by elections or referendums, the legitimacy of national electoral processes, increasing public confidence in elections, avoiding electoral fraud, better protecting human rights and contributing to conflict solution (14.30 – 17.30)

Special Committee on Terrorism

09:00 – 18:00

Debates

  • Judicial cooperation in the field of terrorism – discussion with Antonio BALSAMO – Legal Advisor of the Permanent Mission of Italy to the International Organisations in Vienna, Reserve Judge of the Specialist Chamber of the Constitutional Court of the Kosovo Specialist Chambers, Professor of Criminal law at the Faculty of Law of LUMSA in Palermo; Camille HENNETIER – Vice-Prosecutor, Head of the Anti-Terrorism Unit in the Paris Public Prosecutor’s Office, France and Frédéric BAAB – Chair of Eurojust’s Counter-Terrorism Team, National Member for France at Eurojust

Subcommittee on Security and Defence

09:00 – 18:30

  • Workshop “Arms exports”. The further development of the Common Position 2008/944/CFSP on arms exports control (9:30 – 10:30)

Debates

  • The Multi-annual Financial Framework (MFF) – The European Defence Fund. Exchange of views with Pierre DELSAUX, Deputy Director-General, DG GROW, European Commission (14.30 – 18.30)

Committee on Budgets

09:00 – 18:30

Voting time

  • Draft Amending Budget n° 2 to the General Budget 2018 entering the surplus of the financial year 2017 (BUD) – Consideration and adoption
    • Rapporteur: Siegfried MURESAN (EPP, RO)
  • Mobilisation of the European Globalisation Adjustment Fund – EGF/2017/009 FR/Air France – France (BUD) – Consideration and adoption
    • Rapporteur: Alain LAMASSOURE (EPP, FR)

Joint meeting: Special Committee on Terrorism with Committee on Budgetary Control

14:30 – 15:30

  • ECA Special Report 13/2018 (Discharge 2017): Tackling radicalisation that leads to terrorism: the Commission addressed the needs of Member States, but with some shortfalls in coordination and evaluation, rapporteur Dennis de JONG (GUE/NGL, NL) – discussion with a member of the European Court of Auditors

Committee on Economic and Monetary Affairs

09:00 – 19:00

Debates

  • Exchange of views with Angel GURRÍA, Secretary-General of the OECD
  • Public hearing: Mis-selling of financial products
  • Public Hearing with Danièle NOUY, Chair of the Supervisory Board of the ECB

Votes

  • Loss-absorbing and Recapitalisation Capacity for credit institutions and investment firms – Adoption of draft report
    • Rapporteur: Gunnar HÖKMARK (EPP, SV)
  • Loss-absorbing and recapitalisation capacity of credit institutions and investment firms and amending Directive 98/26/EC, Directive 2002/47/EC, Directive 2012/30/EU, Directive 2011/35/EU, Directive 2005/56/EC, Directive 2004/25/EC and Directive 2007/36/EC – Adoption of draft report
    • Rapporteur: Gunnar HÖKMARK (EPP, SV)
  • Exempted entities, financial holding companies, mixed financial holding companies, remuneration, supervisory measures and powers and capital conservation – Adoption of draft report
    • Rapporteur: Peter SIMON (S&D, DE)
  • Leverage ratio, the net stable funding ratio, requirements for own funds and eligible liabilities, counterparty credit risk, market risk, exposures to central counterparties, exposures to collective investment undertakings, large exposures, reporting and disclosure requirements – Adoption of draft report
    • Rapporteur: Peter SIMON (S&D, DE)
  • Amended proposal for a Council regulation amending Regulation (EU) No 904/2010 as regards measures to strengthen administrative cooperation in the field of value-added tax – Adoption of draft report
    • Rapporteur: Roberts ZĪLE (ECR, LV)
  • Relationships between the EU and third countries concerning financial services regulation and supervision – Adoption of draft report
    • Rapporteur: Brian HAYES (EPP, IE)

Joint meeting: Constitutional Affairs and Economic and Monetary Affairs

18:30 – 19:00

Voting time

  • Amending Article 22 of the Statute of the European System of Central Banks and of the European Central Bank (COD) – vote on draft report and vote on the decision to enter into interinstitutional negotiations
    • Co-rapporteurs Gabriel MATO (EPP, ES) and Danuta Maria HÛBNER (EPP, PL)

Committee on Employment and Social Affairs

09:00 – 17:00

Debates

  • Exchange of views, as part of the structured dialogue, with Jyrki KATAINEN (Vice President of the Commission)
  • Public hearing – Working conditions in sectors presenting a high risk of exploitation – The purpose of the hearing is to provide Members with the possibility to look into the factual and legal aspects of labour exploitation. Severe forms of workers’ exploitation – including forced labour – are on the rise in the various sectors, e.g. cleaning, construction, the agricultural sector, and the Horeca sector. Particularly affected are posted and migrant workers.

Committee on Industry, Research and Energy

09:00 – 18:30

Voting time

  • Connecting Europe Facility in the area of energy, as part of the newly adopted MFF legislative programmes, Presentation by Director General Dominique RISTORI, European Commission
  • Body of European Regulators for Electronic Communications – Reporting back to committee on the negotiations
    • Rapporteur: Evžen TOŠENOVSKÝ (ECR, CZ)
  • European Electronic Communications Code (Recast) – Reporting back to committee on the negotiations
    • Rapporteur: Pilar DEL CASTILLO VERA (EPP, ES)
  • Promotion of the use of energy from renewable sources (recast) – Reporting back to committee on the negotiations
    • Rapporteur: José BLANCO LÓPEZ (S&D, ES)
  • Energy efficiency – Reporting back to committee on the negotiations
    • Rapporteur: Miroslav POCHE (S&D, CZ)
  • Governance of the Energy Union – Reporting back to committee on the negotiations
    • Rapporteurs: Claude TURMES (Greens/EFA, LU) – Michèle RIVASI (Greens/EFA, FR)
  • ITRE mission to Silicon Valley, USA (2-5 April 2018), Debriefing
  • Exchange of views with Ms Elżbieta BIEŃKOWSKA, European Commissioner for Internal Market, Industry, Entrepreneurship and SMEs, as part of the Structured Dialogue, including on the newly adopted MFF legislative programmes
  • Workshop ‘Brexit and ICT policy’

Votes

  • Establishing the European Defence Industrial Development Programme aiming at supporting the competitiveness and innovative capacity of the EU defence industry – Vote on the provisional agreement resulting from interinstitutional negotiations
    • Rapporteur: Françoise GROSSETÊTE (EPP, FR)
  • European High Performance Computing Joint Undertaking – Adoption of draft report
    • Rapporteur: Zigmantas BALČYTIS (S&D, LT)
  • Investment projects in energy infrastructure within the European Union – Adoption of draft report
    • Rapporteur: Barbara KAPPEL (ENF, AT)
  • Council decision on the conclusion, on behalf of the European Union, of Amendment 1 to the Memorandum of Cooperation NAT-I-9406 between the United States of America and the European Union – Adoption of draft report
    • Rapporteur: Rolandas PAKSAS (EFDD, LT)
  • Extension of the Agreement for scientific and technological cooperation between the European Union and the Government of the United States of America – Adoption of draft report
    • Rapporteur: Rolandas PAKSAS (EFDD, LT)
  • Conclusion of a Cooperation Agreement between the EU and the Agency for Aerial Navigation Safety in Africa and Madagascar (ASECNA) on the development of satellite navigation and the provision of associated services in ASECNA’s area of competence for the benefit of civil aviation – Adoption of draft report
    • Rapporteur: Jerzy BUZEK (EPP, PL)

Committee on the Internal Market and Consumer Protection

09:00 – 18:30

Debates

  • Public hearing – The EU’s horizontal regulatory framework for illegal content removal in the digital single market: Towards a balanced and predictable overall liability regime for online platforms – Representatives from platforms, international organisations, academia and national authorities will discuss with MEPs the existing EU horizontal legal framework for tackling illegal content online, the different approaches by Member States and voluntary best practices developed by platforms.
  • Public hearing – Promoting fairness and transparency for business users of online intermediation services- MEPs will discuss with experts, stakeholders and policy makers how to address the emergence of unfair practices in platform to business relationships, bearing in mind the increasingly important role of online platforms as vehicles for market access. They will also explore any problems that may arise in terms of lack of redress and more broadly the risk of fragmentation in the internal market.

Votes

  • The public procurement strategy package – Adoption of draft report
    • Rapporteur: Carlos COELHO (EPP, PT)

Committee on Culture and Education

09:00 – 18:30

Voting time

  • Language equality in the digital age (INI) – adoption of draft
    • Rapporteur: Jill Evans (Greens/EFA, UK)

Committee on Petitions

09:00 – 18:30

Voting time (10.30)

  • Oral question on the disenfranchisement of voting rights in the EU – discussion and vote
  • Foreign Account Tax Compliance (FATCA) – vote on a draft resolution

Debates on petitions

  • Situation of women women detained against their will in the Sahrawi camps in Tinduf, Algeria
  • Freedom of expression and violent oppression of journalists in Malta
  • Consumer rights – three petitions related to the alleged breach of consumer rights in payment order proceedings in Bulgaria

Wednesday, June 20, 2018

Committee on Foreign Affairs

09:00 – 18:30

Votes

  • Climate diplomacy – Joint committee procedure (Rule 55) of AFET, ENVI
  • Partnership and Cooperation Agreement between the EU and Iraq (2010/0310(NLE)) – Adoption of draft recommendation (consent)
    • Rapporteur: Tokia SAÏFI (EPP, FR)
  • State of EU-China relations (2017/2274(INI)) – Adoption of amendments
    • Rapporteur: Bas BELDER (ECR, NL)

Debates

  • Exchange of views with Dr. Kazem SADJADPOUR, Deputy Foreign Minister of Iran (16.30)

Committee on International Trade

09:00 – 18:30

Debates

  • Exchange of views with Jean-Luc DEMARTY, Director-General, Commission, on EU-US trade relations. In the wake of the levying of US tariffs of European steel and aluminium, trade MEPs discuss the state of affairs and possible future steps with the head of the European Commission’s trade directorate.
  • Exchange of views on trade and investment implications following the withdrawal of the USA from the Joint Comprehensive Plan of Action with Iran. Following a debate in plenary on 12 June, trade MEPs discuss how the Amercian president’s withdrawal from the nuclear deal with Iran affects trade between the EU and Iran.

Committee on Budgetary Control

09:00 – 18:30

  • Workshop on How to better combat fraud? Follow up of the Commission’s anti-corruption sharing programme (9.00-12.30)
    • Co- rapporteurs: Julia PITERA (EPP, PL) and Caterina CHINNICI (S&D, IT)
  • Workshop on Has the Single European Sky initiative provided more efficiency for European Air Traffic Management – is SESAR delivering results? (15.00-18.30)
    • Co- rapporteurs: Marian-Jean MARINESCU (EPP, RO) and Petri SARVAMAA (EPP, FI)

Committee on Transport and Tourism

09:00 – 18:30

  • Public hearing on “Digitalisation in transport” (10.15 – 11.45)
  • Interparliamentary Committee Meeting on “EU investing in its transport networks beyond 2020”

Committee on Transport and Tourism

15:00 – 18:30

  • During the Interparliamentary Committee Meeting “EU Investing in its Transport Networks beyond 2020“ transport MEPs will discuss with representatives from the national parliaments and Commissioner OETTINGER, Director General of DG MOVE Henrik HOLOLEI and European Coordinators Mathieu GROSCH and Brian SIMPSON the progress of TEN-T projects and the outlook for the post-2020 period in the field of transport infrastructure investments.

Committee on Regional Development

09:00 – 18:30

Debates

  • Common provisions on the European Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, and the European Maritime and Fisheries Fund and financial rules for those and for the Asylum and Migration Fund, the Internal Security Fund and the Border Management and Visa Instrument (COD) – presentation by the Commission and exchange of views

Votes

  • The impact of EU cohesion policy on Northern Ireland (INI) – adoption of draft report by Derek Vaughan (S&D, UK)
  • Specific measures for Greece under Regulation 2015/1839 (INI) – adoption of draft report by Pascal Arimont (EPP, BE)

Committee on Agriculture and Rural Development

09:00 – 18:30

Debates

  • Presentation by Commissioner Vytenis ANDRIUKAITIS, responsible for Health and Food Safety, of the Commission proposals on General Food Law, eHealth and vaccination
  • Exchange of views with Andrew McDOWELL, Vice-President of the European Investment Bank, on agriculture and bio-economy investments

Committee on Fisheries

09:00 – 18:30

Debates

  • Public Hearing on “Implementation of the EMFF achievements since 2014 and perspectives after 2020” (14.30-16.30)

Committee on Legal Affairs

09:00 – 18:30

Votes (10.00-12.00)

  • Copyright in the Digital Single Market (COD) – vote on draft report
    • Rapporteur: Axel VOSS (EPP, DE)
  • Three dimensional printing, a challenge in the fields of intellectual property rights and civil liability (INI) – vote on draft report
    • Rapporteur: Joëlle BERGERON (EFDD, FR)
  • Statute for social and solidarity-based enterprises (INL) – vote on draft report
    • Rapporteur: Jiří MASTÁLKA (GUE/NGL, CZ)
  • Preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures (COD) – vote on draft report
    • Rapporteur: Angelika NIEBLER (EPP, DE)

Debates (15.30-18.30)

  • Representative actions for the protection of the collective interests of consumers (COD) – discussion
    • Rapporteur: Geoffroy DIDIER (EPP, FR)

Committee on Civil Liberties, Justice and Home Affairs

09:00 – 18:30

Debate

  • Discussion with Dimitrios VITSAS, Greek Minister for Migration Policy on current and future challenges in the field of migration and asylum from a frontline Member State perspective (09.30-11.00)

Votes (11.00-11.15)

  • Automated data exchange with regard to DNA data in Croatia (CNS) – vote on simplified procedure (Rule 50(1) – without amendment)
    • Rapporteur: Jaromir ŠTĚTINA (EPP, CZ)
  • Schengen Information System – return of illegally staying third-country nationals, rapporteur, Jeroen LENAERS (EPP, NL) , border checks and police cooperation and judicial cooperation in criminal matters – vote on three provisional agreements resulting from interinstitutional negotiations
    • Rapporteur: Carlos COELHO (EPP, PT)
  • Agreements between the EU and Jordan, Turkey, Lebanon, Israel, Morocco, Egypt and Algeria on the exchange of personal data between the EU Agency for Law Enforcement Cooperation (Europol) and the competent authorities in the particular country for fighting serious crime and terrorism – vote on seven draft reports
    • Rapporteur: Claude MORAES (S&D, UK)

Debate

  • TE-SAT (EU Terrorism Situation and Trend) report 2018 Europol – discussion with Manuel NAVARRETE, Head of the European Counter Terrorism Centre at Europol (15.30-16.15)

Committee on Constitutional Affairs

09:00 – 18:30

Votes (11.40-12.30)

  • European citizens’ initiative (COD)- vote on draft report and vote on the decision to enter into interinstitutional negotiations
    • Rapporteur: György SCHÖPFLIN (EPP, HU)

Debates

  • Conclusions of the Bulgarian Presidency of the Council of the EU – discussion with Monika PANAYOTOVA, Deputy Minister for the Bulgarian Presidency (15.00-15.45)
  • Discussion with Frans TIMMERMANS, First Vice-President of the European Commission, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights (15.45-16.45)
  • Hearing on “Legality and legitimacy in the EU integration process” (16.45-18.30)
  • Presentation by experts: Julian PLOTTKA (Institut für Europäische Politik e.V., Berlin), Warren J. NEWMAN (Senior General Counsel, Constitutional, Administrative & International Law Section, Department of Justice of Canada), Eleanor SPAVENTA (Dipartimento di Studi Giuridici, Università Bocconi) followed by discussion

Committee on Women’s Rights and Gender Equality

09:00 – 12:30

  • Hearing on Gender Budgeting: State of Play and way forward (11.00-12.30)

Thursday, June 21, 2018

Committee on Foreign Affairs

09:00 – 12:30

Debates

  • Exchange of views with Dr. Ali Abdel Aal, Speaker of the House of Representatives of the Arab Republic of Egypt
  • Exchange of views with H.E. Sheikh Mohammed bin Abdulrahman bin Jassim Al-Thani, Deputy Prime Minister and Minister of Foreign Affairs of the State of Qatar

Committee on Budgetary Control

09:00 – 12:30

Electronic vote (9.00-12.00)

  • Fighting customs fraud and protecting EU own resources (RSP) – Adoption of motion for a resolution further to a question for oral answer

Committee on Transport and Tourism

09:00 – 12:30

Votes

  • Rail passengers’ rights and obligations (recast) (COD) – adoption of draft report by Bogusław Liberadzki (S&D, PL)
  • Europe on the Move: an agenda for the future of mobility in the EU (INI) – adoption of draft report by István Ujhelyi (S&D, HU)

Debates

  • Exchange of views with Commissioner Violeta BULC – Debriefing of Transport Council & CEF announcement (in camera)

Committee on Agriculture and Rural Development

09:00 – 12:30

Debates

  • Implementation report as regards Regulation 1/2005 on the protection of animals during transport within and outside the EU (INI) – exchange of views
    • Rapporteur: Jørn DOHRMANN (ECR, DK)

Committee on Fisheries

09:00 – 12:30

  • EMFF for the period 2021-2027 – exchange of views

Committee on Legal Affairs

09:00 – 12:30

Debate

  • Proposed amendments to Protocol No. 3 on the Statute of the Court of Justice of the European Union (COD)
    • Rapporteur: Tiemo WÖLKEN (S&D, DE) – discussion

Committee on Civil Liberties, Justice and Home Affairs

09:00 – 17:30

Debate

  • Hearing (in association with the Committee on Women’s Rights and Gender Equality) – “Trafficking of women and children in the context of migration. The new slavery of our times” (10.30-12.30).

 

 

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