February 2019

President Trump tweeted out on Sunday what sounds like good news:  based upon “substantial progress“ in trade negotiations with China, he was postponing a March 2 increase from ten to twenty-five percent tariffs on some $200 billion in U.S. imports from China.  The President even declared expectations of further progress…
Continue Reading Tariff-Man Holds His Fire, For Now

The Section 809 Panel recently concluded its monumental analysis of defense acquisition law and regulations and released its third volume of recommended changes.  As we have written previously, the Panel’s work stands out from previous acquisition reform efforts with the appendices of detailed legislative and regulatory changes that accompany the commissioners’ analysis and recommendations.

Given the scope of the Panel’s work, few believe that Congress or the Department of Defense (“DoD”) will — or even could — simply adopt the recommendations in full.  Legislative bandwidth for additional acquisition reform is finite, and some of the Panel’s recommendations will prompt robust debate.  In this post, we analyze some of the recommendations that government contractors should follow most closely.  We highlight key issues and address the political dynamics involved in enacting them.
Continue Reading After the Final Report: Expectations Following the Section 809 Panel’s Third Volume of Acquisition Policy Reforms

Summary

Next week will be a short week in the European Parliament. Members of the European Parliament (“MEPs”) will meet in Brussels for committee sessions. Interesting debates and hearings will take place.

On Tuesday, February 26, the Committee on Legal Affairs (“JURI”) will vote on the provisional agreement on the Copyright Directive in the Digital Single Market reached with the Council of the European Union on February 13.  The Copyright Directive reforms rules on the publishing and use of third-party content online.  It would, for example, require online video platforms to strike licensing agreements with record companies if those profits from their music videos.  Publisher would also be able to seek compensation for their news being displayed on other online news platforms.  The compromised text kept the controversial Article 13, under which online platforms have the obligation to monitor uploaded content to resolve the “value gap” and help rights-holders monetize and control the distribution of their material.  Some critics argue these filters insufficiently distinguish satire from copyright-infringing material and thereby limit the freedom of speech.  Once the political agreement is approved by JURI, it would still have to be adopted in a plenary session and separately by the Member States.  It is uncertain whether the proposed Directive will be approved by the Member States since it is a divisive issue in the German coalition.  The political agreement has also received fierce criticism from the Netherlands, Luxembourg, Italy, Poland and Finland.  Including Germany, these Member States could form a blocking minority.  See the original Commission proposal here.  See the compromise text here.

Also on Tuesday, the Committees on Civil Liberties, Justice and Home Affairs, and Budgetary Control will hear shortlisted candidates for appointment of first ever European Chief Prosecutor.  Out of the 28 Member States, 22 agreed to establish a new European Public Prosecutor’s Office (“EPPO”).  The EPPO will function as an independent but decentralized office of the EU that has the competence to investigate and prosecute crimes against the EU budget, which includes (cross-border VAT) fraud and corruption.  The shortlisted candidates are Jean-François Bohnert (France), Laura Codruţa Kövesi (Romania) and Andres Ritter (Germany).  See the EPPO Regulation here.

On Wednesday, February 27, the Special Committee on Financial Crimes, Tax Evasion and Tax Avoidance (“TAX3”) will vote on the report outlining its final findings and recommendations after its signature research draws to a close.  TAX3 was set up by the European Parliament on March 1, 2018, to investigate financial crimes, tax evasion and tax avoidance, following a series of media revelations, such as Luxleaks, the Panama Papers, Football Leaks, and the Paradise Papers.  Several of the first recommendations include: strengthening the principle of taxing profits before they leave the EU and phasing out all existing citizenship by investment (CBI) or residence by investment.  The draft report also calls for the centralization of anti-money laundering supervision via an existing or new Union body.  The draft report has been prepared by co-rapporteurs Luděk Niedermayer (EPP, CZ) and Jeppe Kofod (S&D, DK).  See the complete draft report here. 
Continue Reading The Week Ahead in the European Parliament – February 25, 2019

Last week, the Commerce Department officially named the 25 individuals appointed to the American Workforce Policy Advisory Board.  This announcement is the latest in a series of steps that the Trump Administration has taken to implement its workforce policy agenda.  With the Advisory Board set to begin work, it is…
Continue Reading Workforce Policy Developments in the Trump Administration

The U.S. Patent and Trademark Office’s (“USPTO”) Office of the Chief Economist released a new report last week examining women inventor trends in the United States from 1976 to 2016.  The study showed that only 21 percent of U.S. patents granted during that 40-year period include at least one woman…
Continue Reading USPTO INCREASES FOCUS ON DIVERSITY IN PATENTING WITH NEW REPORT ON WOMEN INVENTORS

Until recently, even those in Europe who favour the development of an autonomous EU defense capability avoided referring to the setting up of a “European army”.

When the Common Security and Defense Policy (CSDP) was included in the Nice treaty in December 2000, the British government of Tony Blair was adamant about the exclusion of a European army as a final objective, even if he had been the one to launch the project in August 1998 as part of an effort to get the UK closer to the EU mainstream.

It was therefore surprising to hear French president Emmanuel Macron use the words in a radio interview in November 2018: “We have to protect ourselves with respect to China, Russia and even the United States of America, he said, “we will not protect the Europeans unless we decide to have a true European army”. Even more surprising was hearing Angela Merkel a week later endorse the formulation in a speech to the European Parliament: “The times when we could rely on others is past,” she said, “we have to look at the vision of one day creating a real, true European army.” And a few weeks later, the German defense minister Ursula Von der Leyen went even further: “Europe’s army”, she declared, “is already taking shape”.

Should these comments just be dismissed as wishful thinking or political posturing? Are we talking of a “paper army”, to quote “the Economist”? Or are we already there, as Ursula Von Der Leyen seems to believe?

The question needs to be looked at under three different angles:

  • The current political context
  • Changes in the institutional framework
  • Joint procurement and “pooling and sharing” of capabilities

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Continue Reading Towards a European Army?

Summary

Next week will be a committee week in the European Parliament.  Members of the European Parliament (“MEPs”) are expected to vote and debate on interesting matters.

On Tuesday, the Committee on International Trade (“INTA”) will vote on Recommendations for Opening of Trade Negotiations between the EU and the U.S.  In the draft motion for a resolution, prepared by MEP Bernd Lange (S&D, DE), it is recommended not to engage in trade negotiations since it believes that these negotiations will produce an outcome that is not in the interest of European citizens.  It stresses that the EU should not negotiate under threat – referring to the still-in-force steel and aluminum tariffs and the recent countervailing duties on Spanish olives.  Another major prospect is whether President Trump will introduce tariffs on automotives under Section 232.  He is considering to do so based on the forthcoming conclusions of the investigation of the Department of Commerce that are set to be published on Sunday, February 17, 2019.  See the draft recommendation here.

On Wednesday, the Parliament’s Committee on Internal Market and Consumer Protection (“IMCO”) is expected to approve the compromise text agreed with the Council of the EU during trilogue negotiations on the Commission’s proposal for a Digital Content Directive.  The proposal seeks to expand the protection of consumers who are required to disclose data as a condition for the supply of “digital goods”.  The proposed directive also strives to make sure that the so-called “free services” are subject to the same protection for the consumers when they do not pay a monetary price for a service or for content.

On the same day, IMCO is expected to vote on the compromise text, agreed in trilogue, on the Commission’s proposed Directive on the Online Sales of Goods.  This proposal, along with the proposed Digital Content Directive, form another pillar of the European Commission’s Digital Single Market Strategy (“DSM”).  They aim to tackle the challenges to cross-border e-commerce in the EU, including fragmentation of the legal regimes in the EU that made it problematic for SMEs to conduct business across borders, and the low level of consumer trust when buying online from another EU Member State.
Continue Reading The Week Ahead in the European Parliament – February 15, 2019

On February 12, 2019 the Department of Defense released a summary and supplementary fact sheet of its artificial intelligence strategy (“AI Strategy”). The AI Strategy has been a couple of years in the making as the Trump administration has scrutinized the relative investments and advancements in artificial intelligence by the United States, its allies and partners, and potential strategic competitors such as China and Russia. The animating concern was articulated in the Trump administration’s National Defense Strategy (“NDS”): strategic competitors such as China and Russia has made investments in technological modernization, including artificial intelligence, and conventional military capability that is eroding U.S. military advantage and changing how we think about conventional deterrence. As the NDS states, “[t]he reemergence of long-term strategic competition, rapid dispersion of technologies” such as “advanced computing, “big data” analytics, artificial intelligence” and others will be necessary to “ensure we will be able to fight and win the wars of the future.”
Continue Reading Defense Department Releases Artificial Intelligence Strategy

Summary

Next week will be a plenary week in the European Parliament.  Interesting votes and debates are expected to take place.

On Tuesday, February 12, the next debate in the series on the Future of Europe will be held featuring Italian Prime Minister Giuseppe Conte.  His visit comes admits…
Continue Reading The Week Ahead in the European Parliament – February 8, 2019