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Creating a Connected & Entrepreneurial Digital Single Market Proposals for goals, action and reform
State of Play p. 1 The 2020 Goal p. 5 A Framework for Action and Reform p. 7 Annex I Remove Barriers p. 11 Annex II “Better Regulation” p. 20
STATE OF PLAY The Internet, and the digital services that run on top of it, empower entrepreneurs across Europe to try out new business models, explore new markets, and experiment with new services. For example, the eBay marketplace allowed Rachel White, founder of thingimijigs.com, to gradually take the courageous step from employment to self-‐employment by starting out small: “At eBay, you can start with £50 of stuff; whereas if you have a shop you have got the investment of stock. I think it’s a great way to start, and you can test the market.”1 Another example is Oliver Margarson, who in 2008 turned his part time venture into a full time business, Electrolve Ltd. Quickly outgrowing his garage, he now sells his audio-‐visual items and accessories from a 16,000 square foot warehouse serving customers in as many as 170 different countries. In November last year, Oliver could proudly announce that “our exports have now overtaken our domestic sales for the first time!” These are just two of the hundreds of thousands of innovative entrepreneurs using the eBay marketplace as both a testing ground for new services and a springboard to reach new markets. Some of these entrepreneurs are featured in our "Learning by Exporting" report.
1 See http://www.theguardian.com/technology/2014/aug/18/ebay-‐case-‐studies-‐businesses-‐startups
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What is special with these entrepreneurs is that they leverage the power of the Internet and technology to build businesses on their own terms. They are not dependent on the value chains of large corporations in order to reach customers and markets.2 The Internet as a global network, combined with technology solutions, makes it possible for entrepreneurs to connect and establish trust directly with customers across national and cultural borders. This allows them to learn and succeed from the experience of serving customers both locally and internationally. The very ability of reaching beyond a local consumer base to global markets is for many small businesses a crucial foundation for building sustainable operations: “If we had failed to expand internationally, our business would no longer be operating”, stresses Adam Mackay, founder of Blue Water Sports Ltd with 10 employees and customers in 88 countries.3 Importantly, the success of these technology-‐enabled businesses is not contingent on location in larger cities and privileged economic areas. Adam Mackay did not have to move to London to set up his operation; he is operating a healthy, international business out of Paignton in Devon in the south west of England. Likewise, Andrea and Hans Goenner run a €5 million business selling high-‐quality, branded wool in Riedlingen (Germany), a town with just over 10,000 inhabitants. They employ about 60 people during winter time, and their wool is bought by customers as far away as Russia, the US and Australia.
2 We call this alternative model the “Global Empowerment Network”. For an explanation, see this report, e.g. pages 6 – 7: http://www.ebaymainstreet.com/sites/default/files/eBay_Commerce-‐3-‐for-‐Development.pdf
3 Testimonial by Adam Mackay, founder of Blue Water Sports Ltd.: https://docs.google.com/document/d/1Qdsl2FUk7tQRidEgVpeHwbX-‐W5Uk0FgI7YxD367bpSg/pub
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New research by Sidley Austin LLP shows how small businesses using eBay are fairly equally spread across the regions of EU countries. For example, neither the largest number nor the most active technology-‐enabled of businesses per 100,000 inhabitants are found in the capital regions Ile-‐de-‐France, Cologne and Inner London but in Languedoc, Niederbayern and Greater Manchester. The Internet spreads economic opportunity across regions and countries: the Internet breaks the shackles of geography.4 The innovative entrepreneurs found on the eBay marketplace, and studied in detail in our suite of "Commerce 3.0" reports, embody the spirit of the Digital Single Market:
• They take advantage of the new digital opportunities Between 91% and 96% of “commercial sellers”5 using eBay in the UK, France, Germany and Spain engage in exporting. That is a staggering number when contrasted with offline business exporting, which generally comes in below 15%. In countries where there is no national eBay marketplace, almost 100% of small businesses turn to eBay to engage in international sales. The explanation is simply that they see the online marketplace as a tool for reaching customers. Erik Fagerlind, founder of Sneakersnstuff, a business offering fashionable sneakers with 70% of sales going to outside the home market Sweden, puts it like this: “I was attracted to the internet marketplace because I knew it offered endless possibilities and there are really no limits to what you can do through the internet.” • They know no borders Globally, these eBay-‐enabled small businesses serve customers in approximately 30 different countries on average.6 Looking only at the European ones, the average number of markets reached is 18, 10 of which are within the EU. By contrast, a 2012 World Bank study found that traditional exporters reach on average three different markets. Belgium is top, averaging seven countries. The international mind-‐set of technology-‐enabled entrepreneurs is well articulated by Jean Louis Goni, founder of a small yet successful business of five staff selling optical equipment and reading glasses: “We hope that by establishing Varionet as an online player early on, it will not only allow us to become part of the global optical industry, but it will also position us as a leader in the French market”.
4 Similar to Carl Sagan’s famous quote “Books break the shakle of time, proof that humans can work magic”, the Internet and technology services are breaking the shakle of geography and proving that economic opportunity can belong to the many and not only the few fortunate.
5 Firms with a minimum of $10,000 in annual sales on the eBay marketplace. 6 So far our economic research, carried out by a team of economists from Sidley Austin LLP, Geneva University and Oxford University, has studied 21 different countries: the US, the UK, Germany, France, Australia, Canada, Russia, Brazil, Turkey, China, Hong Kong, Tawain, Macau, India, Thailand, South Africa, Peru, Chile, Indonesia, Jordan and Ukraine. See reports at right hand side: http://www.ebaymainstreet.com/commerce-‐3
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• They reap the productivity gains of access to larger customer pools Our research has shown across markets that small businesses utilising technology for exporting grow their market share faster than traditional firms and are able to compete on more equal terms with the largest companies. For example, the largest 5% of firms in Spain account for 86% of exports. In the eBay marketplace in Spain, the largest 5% only account for only 44% of exports. As Rachel White of thingiimijigs.com sees it, “there are no barriers to entry”. This important condition increases greatly the chances for start-‐ups to survive. The European Commission reports that the five-‐year survival rate for enterprises born in 2005 was 46%. We have found the survival rate for firms on eBay for the period 2010 to 2014 to be 60.9%.
It is clear that intermediary services such as online commerce platforms have unlocked new sources of supply by enabling these new types of small businesses to access the marketplace. This has opened up economic opportunities to a much broader base of entrepreneurs and businesses. It has also brought benefits to consumers through increased choice, information transparency and competition on services, selection and prices. The growing market participation by technology-‐enabled entrepreneurs leads to market power becoming less concentrated in the established, large companies – a phenomenon that can be characterised as the “democratization of trade”. By looking at the achievements and needs of these entrepreneurs, one can distil a blueprint for a strategy towards realising the Digital Single Market. It becomes clear that we need to focus efforts on both connecting the Single Market by removing barriers as well as creating a culture of innovation. We propose that the achievements of these technology-‐enabled entrepreneurs can be translated into an ambitious yet realistic goal for the Digital Single Market, and that their needs point us towards a framework for the action and reform required to achieve those goals.
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THE 2020 GOAL The research we have carried out together with a team of economists from Sidley Austin LLP, Geneva University and Oxford University 7 has shown how small businesses in Europe, Africa, the Americas and Asia using the eBay marketplace sell internationally. Their customer base spans on average 30 different countries. The European average is slightly lower at 18 different countries, though eBay-‐enabled firms from some EU countries (for example Cyprus, Estonia and Greece) reach well beyond 30 markets.
Our research findings clearly show that it is perfectly possible for small businesses to be truly international and serve customers in multiple countries. As described above, a range of benefits flows from this ability to extend operations beyond the locality to European and global markets. The ability to reach multiple markets should become the reality for the majority of micro and Small and Medium-‐sized Entrepreneurs (SME) in the EU. We propose the following ambitious yet realistic goal for where the Digital Single Market should be in 2020:
“50% of all micro, small and medium-‐sized enterprises in EU28 should be selling cross-‐border to on average 15 different countries annually”8
Further targets could be specified in terms of sectors and could cover both B2C and B2B. 7 Andreas Lendle, Marcelo Olarreaga, Simon Schropp and Pierre Louis Vezina, see e.g. http://www.voxeu.org/sites/default/files/file/DP9094(1).pdf and http://www.etsg.org/ETSG2013/Papers/206.pdf .
8 An idea also put forward in this blog post by Peter Stephens, Deputy Director and Head, EU Strategy at UK Department of Business, Innovation & Skills: https://www.linkedin.com/pulse/reflections-‐e-‐commerce-‐single-‐market-‐peter-‐stephens
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Moreover, the European Commission has pledged to “build partnership with Member States, national parliaments, regions and cities for more effective action on the ground” 9. In that spirit, the Commission could challenge cities and regions in a competition to realise the target goal. Progress would be measured on key indicators, such as (1) connectivity and broadband speed; (2) uptake by businesses and consumers of various online commerce and payments services; (3) the city’s / region’s connectedness in terms of parcel delivery with cities and regions across the EU; and (4) the level of and uptake by businesses and consumers of e-‐government.
“My objective is to have at least one world class digital innovation hub in every region in Europe.” 10
9 COM(2014) 910 final. 10 Speech by Günther Oettinger, Commissioner for Digital Economy & Society, “Europe’s future is digital” (14 April 2015), available: http://ec.europa.eu/commission/2014-‐2019/oettinger/announcements/speech-‐hannover-‐messe-‐europes-‐future-‐digital_en
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A FRAMEWORK FOR ACTION & REFORM Successfully achieving the above target goal depends on creating a connected Digital Single Market with a “climate of entrepreneurship” -‐ a prerequisite for returning jobs, growth and investment to Europe11. This requires work on two parallel tracks: (1) removing barriers and (2) making use of better regulation. Removing barriers to connect the Single Market is work that needs to be accomplished in a short time period. Making use of better regulation is about “stimulating the digital economy”12, a process that must be commenced in 2015 but should be treated as an on-‐going project. To achieve the target goals, the EU needs to act and it needs to reform. The EU needs action to: 1. Target interoperability, transparency and competition to address concerns
about the price structure for cross-‐border parcel delivery We propose that action at EU and national level should set out to increase (1) interoperability and standardisation; (2) price and service transparency; and (3) competition between different players in the delivery value chain.
2. Actively use EU competition law to promote intra-‐EU online trade We call on the European Commission to actively use EU competition law to promote intra-‐EU online trade by (1) opening a case against manufacturers’ distribution contracts that prevent retailers from using online sales channels such as online marketplaces, (2) removing the “logo clause” from paragraph 54 of the Guidelines on Vertical Restraints, and (3) instituting an EU hotline for merchants to report discrimination and practices harming the development of technology-‐enabled trade.
3. Take steps to modernize the application of consumer protection policy We recommend that the European Commission provides guidance on the ultimate objectives behind consumer information requirements. Such guidance should be accompanied by confirmation on the following issues: (1) traders’ information requirements are the sole responsibility of the traders, not of intermediaries such as online marketplaces13; (2) greater flexibility on how to achieve the objectives of consumer protection legislation should be encouraged; and (3) legally mandated consumer information, and not limited to the CRD, should simply be “made available to the consumer in a way appropriate” to the channel, screen and device used; and the trader and/or commerce service provider should have flexibility to judge how the particularities of certain channels, screens, devices and interfaces are most effectively leveraged to achieve the objective behind the information obligation in question. 11 President Jean Claude Junker’s Political Guidelines. 12 Speech by Vice-‐President Ansip, 11 December 2014. 13 Online marketplaces would of course still have their own consumer information requirements which they would have to discharge in so far as it applied to the marketplace.
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4. Uphold the “Home Member State” principle We want to see the European Commission encourage Member States to use existing information sharing tools and support a process of improving the level of their cooperation in order to allow businesses to deal with a single regulator (the regulator of their “Home Member State”) within the EU.
5. Support the digital economy through a balanced intermediary liability framework
We call on the European Commission to rigorously uphold the current balanced intermediary liability framework. In particular, the Commission should take action to ensure that injunctions against intermediaries do not amount to monitoring obligations.
6. Streamline VAT and customs administration We urge the European Commission to streamline the current EU VAT framework by allowing businesses, which cross the threshold for cross-‐border sales into another EU country, to make a single VAT declaration and payment in their own Member State, rather than having to declare and pay VAT to each individual Member State where their customers are based. Such one-‐stop-‐shop system should be accompanied by SME-‐friendly rules on audits, VAT thresholds, registration, and payment systems. Furthermore, the EU should establish itself as an international leader in e-‐Commerce friendly customs policy by aligning the customs duty threshold for goods bought online (currently 150e) with that of personal imports offline (430e), establishing a simplified fast-‐track customs procedure for e-‐Commerce, and maintaining the current Low Value Consignment Relief (LVCR) VAT threshold. The EU needs reform to: 1. Create a performance-‐based environment The European Commission should adopt a performance-‐based approach to all policy and legislation for the Digital Single Market. Inspiration for this type of regulatory model could be found in the air navigation sector, which has for decades cultivated a performance-‐based environment to achieve goals of safety, environment, capacity and cost-‐efficiency. Taking a performance-‐based approach as the very starting point for policy design is first and foremost about viewing the policymaker’s role as one of “system stewardship”. This is not a laissez-‐fair mentality. A performance-‐based model can be institutionalized through public entities, processes and complementing rules. 2. Develop and interpret policy through dialogue Dialogue-‐oriented policy design should be employed in the context of consumer information requirements. Especially in the context of disruptive services and business models, the application and interpretation of legislative requirements are better shaped through a process of dialogue between market actors and regulators than through top-‐down commands that fail to recognize the valuable and relevant
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knowledge market actors sit on. A good example of what policy design based on dialogue can look like may be found in the context of certifying air products. In a sector where safety is of outmost importance, the competent regulator EASA (European Aviation Safety Authority) has not succumbed to prescriptive, “control and command”-‐type of regulation. Instead, the governing regulatory framework promotes dialogue through a combination of binding rules and non-‐binding standards. Inspired by EASA’s philosophy, we envisage a system within the consumer protection area where a basic regulation would set out the objectives; it would be complemented by non-‐binding soft law, developed together with stakeholders and describing “acceptable means of compliance”; the soft law would create a presumption of legal compliance to be recognized by national authorities; traders would have the option of alternative means of compliance where those demonstrably achieve the objectives; and mechanisms similar to those developed within the EASA system would be used to ensure consistency and coherence across the EU.
3. Achieve complementary policy objectives through flexibility The model of realizing important policy objectives through flexible regulatory frameworks is the approach that should be applied to the digital economy in general and to innovative, disruptive sectors in particular. A good example of the latter is online and mobile payments. Just as EASA entrusts drone operators with carrying out safety risk assessments of operations and identifying mitigation measures, the payment service provider is the best placed and most capable to assess which authentication method is the most appropriate for types of transactions. It is most often counterproductive to impose a certain method or process on market actors in a fast-‐changing, innovative industry (where rogue actors move just as swiftly) with the hope of achieving a certain policy objective; desired market outcomes are more likely generated where industry investments in the next generation methods and processes are supported. The policy objective of ensuring adequate levels of security in the online and mobile payment sector should therefore be pursued through legislation that allows payment service providers to deploy alternative security solutions.
4. Develop regulatory frameworks based on experience and learning Maximizing the growth potential of the European Digital Economy requires a regulatory environment where small businesses in particular feel encouraged to exploit the possibilities in new technologies and open markets. This is about expanding into the unknown. The requisite regulatory framework should be one where (i) companies are encouraged to gain experience through responsible risk taking and (ii) such experience can also benefit policymakers and contribute to informing policies and regulation. This means that policymakers must be prepared to accept interim solutions and must actively engage in creating a climate of mutual trust: companies must feel comfortable to provide feedback about trial and error for the purpose of informing policymaking. To this end, the concept of a “just culture” could be introduced for the Digital Economy. This concept represents “a culture in which … operators … are not punished for actions, omissions or decisions taken by them that are commensurate with their experience and training.” It is about creating
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an environment of active learning, recognizing that improving performance of a sector or industry depends to a large extent on feedback of knowledge generated by a system of data collection and analysis. More details on our recommendations for action and reform
are to be found in Annexes I and II.
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ANNEX I
Remove Barriers Short Term Actions
The type of Internet-‐enabled entrepreneurship described above offers individuals powerful tools for overcoming some of the barriers associated with cross-‐border transactions. This can be expressed in economic theory terms. Geographical distance, as a proxy for trade costs, has always been found to inhibit trade. Traditionally, an increase in distance between trading partners of 10% reduces trade by 15% to 20%. For transactions over the eBay marketplace within the EU, such an increase in distance only reduces cross-‐border transactions by 4%14. Our estimate is that trade costs are four times lower for traders using the Internet and technology solutions. However, significant trade costs – or barriers – remain. Some of these barriers affect technology-‐enabled trade by small businesses more than it affects traditional cross-‐border trade (as generally carried out by larger companies with greater resources).15 Our "Learning by Exporting" report describes from the point of view of the entrepreneur some of the key challenges -‐ such as expensive, unreliable, and slow cross-‐border shipping; burdensome VAT and customs administration; and online sales restrictions. Other issues that also significantly affect the landscape for technology-‐enabled and cross-‐border operations include the ability of companies to roll out innovative payment solutions and to operate and maintain open online marketplaces. In order to realise the 2020 target goal set out above, we recommend the following immediate action: 1. Target interoperability, transparency and competition to address concerns about the price structure for cross-‐border parcel delivery Our economic research has shown that shipping costs have a negative effect on online cross-‐border transactions. Sidley Austin has estimated that the trade reducing effect of shipping costs is four times larger for online compared to offline.16 These research findings are supported by surveys of, and testimonials by, small businesses engaging in or wanting to expand into cross-‐border trade.17 For example, Hans and Andrea
14 The global effect is only 3%, see e.g. eBay’s report “Commerce 3.0 for Development” (2013), http://www.ebaymainstreet.com/sites/default/files/eBay_Commerce-‐3-‐for-‐Development.pdf; Lendle et al (2012), http://www.voxeu.org/sites/default/files/file/DP9094(1).pdf; and OECD, Electronic and Mobile Commerce (2013), page 10, http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=DSTI/ICCP/IE/IIS(2012)1/FINAL&docLanguage=En
15 This is also a conclusion reach by the European Parliament Research Service, confirming that distance matters less online but the negative border effect remains because of other barriers. “The cost of non-‐Europe in the Single Market”, September 2014: http://www.europarl.europa.eu/EPRS/EPRS_STUDY_536356_CoNE_Single_Market_III.pdf
16 eBay’s report “Enabling traders to enter and grow on the global stage” (2012), see page 13: http://www.ebaymainstreet.com/sites/default/files/EBAY_Marketplace_Updated_FIN_lowres.pdf
17 See e.g. eBay’s report “Making global trade frictionless” (2013), http://www.ebaymainstreet.com/sites/default/files/wto_making_global_trade_frictionless.pdf and
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Goenner, running the wool business Garnwelt out of the small town Riedlingen, feel that if shipping rates were lower they could expand their international sales further.
“It is currently very expensive to ship cross-‐border and we are constantly working on our cost structure because of it” (Erik Fagerlind of Sneakersnstuff)
Many small sellers struggle to access commercial delivery services as the account structures used by service providers are largely designed for large merchants. As a consequence, small sellers are forced to use consumer services and access points – even taking sacks of parcels to the local post office and queuing to receive service. Such services levels are not adapted to the many-‐to-‐many delivery world which the e-‐Commerce revolution has facilitated. Also Ecommerce Europe emphasizes how shipping costs often represent one of the higher operating costs of a merchant. Ecommerce Europe stresses that “decreasing international delivery costs would be a powerful way of fostering cross-‐border e-‐commerce and enhance competition to the benefit of the consumers”.18 The European Parliament has also noted that “SMEs seeking business opportunities across the EU are confronted with higher costs, greater complexity and a lack of transparency when it comes to cross-‐border delivery”.19 Targeted policy actions to enhance competition in the EU parcel delivery market could achieve efficiency gains, push down prices, and increase service levels for the benefit of small merchants. Both commercial services and the postal system are needed to effectively serve the needs of small businesses. The price of cross-‐border shipping should be less than the sum of a domestic delivery in each country as in one case the last mile is not present and in the other the first mile is replaced. However, in many cases, the cost of cross-‐border shipping is greater than these two parts. The cost of cross-‐border shipping therefore does not reflect cost structure – suggesting a lack of competition in the market. We believe priority should be given to:
• Interoperability and standardization 20 – For example, there is today no standardised format for parcel sizes and labels and no common standard defining the term “tracking” and covering the various technical aspects of tracking. While there are examples for standards covering returns, such as the International Post Corporation’s (IPC) Easy Return Solution, there are currently no equivalent standards for outbound delivery. Standardization and common definitions of service levels would also facilitate product comparison and competition.
European Commission’s survey of Top 10 Barriers for SMEs, http://ec.europa.eu/enterprise/policies/sme/index_en.htm
18 Ecommerce Europe, “Position paper cross-‐border e-‐logistics: a need for integrated European e-‐logistics solutions” (2014), http://www.ecommerce-‐europe.eu/position-‐papers
19 European Parliament resolution of 4 February 2014 on an integrated parcel delivery market for the growth of e-‐commerce in the EU
20 The positive impact of interoperability and standardization where also noted in WIK Consult’s Study for the European Commission “Also Design and development of initiatives to support the growth of e-‐commerce via better functioning parcel delivery systems in Europe” (WIK Consult, August 2014), available here: http://ec.europa.eu/growth/single-‐market/services/post/studies/index_en.htm
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• Transparency of prices and services -‐ creation of a “one-‐stop-‐shop” web portal with all the necessary information would allow an easy access for merchants to information on delivery in the targeted countries.
• Competition between different players in the delivery value chain – the regulatory framework should incentivize cooperation and facilitate competition between different players in the delivery value chain with the aim of achieving more efficient pan-‐European networks.
⇒We call on the European Commission to prioritise interoperability and standardisation, transparency of prices and services, and competition between different players in the delivery value chain. 2. Actively use EU competition law to promote intra-‐EU online trade Online marketplaces connect buyers and sellers globally, and empower European small businesses to access new markets and serve a larger consumer base. They offer a tool – or actually a suite of tools – for small businesses, entrepreneurs and individuals to explore and take advantage of “a global digital market”. Built on the Internet, they offer a (theoretically) borderless network; augmenting the traditional idea of the marketplace through technology, they provide unparalleled information transparency; and leveraging digital services, they make available mechanisms for communication and for creating trust in the transaction, in the product and in the trading partner. We have described above the economic opportunities that online marketplaces create for entrepreneurs, startups and small businesses almost irrespective of where in the EU or in a country they are located. Indeed, estimates by Sidley Austin showed that intra-‐EU cross-‐border transactions for the period 2010 to 2014 grew four times as fast for trade over the eBay marketplace compared to traditional trade. There are significant consumer welfare gains from the increased access and choice that come with cross-‐border trade. Sidley Austin has calculated that consumers in the EU would gain about 3.4% in real income from buying online cross-‐border because of lower prices and wider choice.21 A 2008 survey by Frontier Economics found that consumers benefitted from price savings of 17% from buying products online compared to offline retail stores.22 These savings amounted to about €1 billion per year. Evidently, the usage of online channels particularly facilitates market participation by SMEs as well as enhancing competition generally in terms of price and selection. However, in recent years, we have witnessed how an increasing number of manufacturers respond to broadened market participation and intensified competition by prohibiting their retailers from trading online and in particular on online marketplaces such as Amazon, eBay, Rakuten and Allegro (“online platform bans”). Such distribution restrictions limit intra-‐ and inter-‐brand competition online, leading to higher prices, limited choice, reduced convenience, and obscurity of information for consumers. In a survey carried out by BVOH, 31% of online
21 The European Commission has produced similar calculations, estimating that consumer welfare gains (in terms of lower prices and wider choice) would amount to EUR 204 billion, equivalent to 1.7% of EU GDP, would e-‐commerce grow to 15% of the total retail sector and internal market barriers be eliminated. COM(2012) 784 final.
22 Frontier Economics, “Economic study of the consumer savings on eBay”, reported prepared for eBay (2008), http://www.ebaymainstreet.com/sites/default/files/eBay_Frontier-‐Report.pdf
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sellers indicated that the future of their business is threatened by online sales restrictions.23 As confirmed by a recent European Parliament study, “from the consumer’s perspective, the distorted access to goods or services means discrimination within the internal market”24 Online distribution restrictions are a form of geo-‐blocking – a set of practices which aim to segment markets along national borders, distribution platforms, or retail partners. Unjustified geo-‐blocking practices prevent consumers and businesses from reaping the benefits of the Digital Single Market and should therefore be closely analyzed by policy makers. Manufacturers maintain anticompetitive distribution policies despite the existing EU legal framework on vertical restraints prohibiting such practices. In its guidelines on vertical restraints, the Commission regards as a hardcore restriction any obligation that dissuades appointed dealers from using the internet to reach more and different customers by imposing criteria for online sales which are not overall equivalent to the criteria imposed for the sales from the brick and mortar shop. The Commission together with National Competition Authorities (NCA) will need to vigorously monitor adherence with and enforce the current legal framework. Three concrete policy measures could significantly help European small merchants against restrictions on technology-‐enabled trade:
• Open a case targeting “online platform bans”
German courts and the German competition authority have already ruled that closing off an important online distribution channel must be considered as anti-‐competitive. This message should now be sent to the whole EU market, something that could be done effectively through a case against one or several manufacturers by the European Commission under the EU Vertical Restraints framework condemning discriminatory distribution policies.
An example of such a policy is the prohibition of the use of third party online platforms while distribution through malls, stores and other establishments under a third party’s logo is allowed. It needs to be clarified how paragraph 54 of the Guidelines on Vertical Restraints (the “logo clause”) must be read in its context and interpreted narrowly if not to open up for abuse, which prevents the use of modern, popular and efficient distribution channels.25 The German Cartel Office and several German courts support this interpretation (especially regional court of Frankfurt in a decision that concerned a selective distribution system).26
23 The survey results are available at http://www.bvoh.de/infografik-‐selektive-‐vertriebsbeschraenkung-‐im-‐onlinehandel/
24 European Parliament DG Internal Policies, “Discrimination of Consumers in the Digital Single Market“ (November 2013), p. 62.
25 Paragraph 56 of the Guidelines provides the context and states: “[The] Commission considers any obligations which dissuade appointed dealers from using the internet to reach a greater number and variety of customers by imposing criteria for online sales which are not overall equivalent to the criteria imposed for the sales from the brick and mortar shop as a hardcore restriction”.
26 LG Frankfurt a.M., Urteil vom 18.06.2014 -‐ 2-‐03 O158/13
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• Remove the “logo clause” from the Guidelines on Vertical Restraints
In addition to having been interpreted incorrectly, the “logo clause” in paragraph 54 of the Guidelines on Vertical Restraints is also outdated. Consumers increasingly use applications on mobile devices to shop.27 If merchants are not allowed to sell on the marketplaces that run these applications, they are not able to effectively reach today’s consumers. Restrictions based on the “logo clause” therefore have such detrimental economic impact that even an offline-‐equivalent policy would not justify their use.
Moreover, the reason third party online platforms are so important to merchants is the logo, or brand, of the platform (like Amazon, eBay, Allegro). The brand signals security, choice, convenience and quality to consumers – all factors that are crucial for consumers to engage in online cross-‐border transactions. This in turn attracts merchants to the platform, because the platform offers traffic, something in particular small merchants and start ups cannot afford to drive themselves. No online platform can reach the scale needed to successfully serve both buyers and sellers without a trusted brand (logo).
Removing the “logo clause” would bring clarity and legal certainty for small businesses in their contractual negotiations with manufacturers – and thereby remove an unnecessary restriction to technology-‐enabled trade.
• EU hotline for merchants
The European Commission should institute an “EU Hotline” for merchants to report discrimination and practices harming technology-‐enabled trade. This would not only be a concrete practical measure to show support to Europe’s small businesses but also send out a strong political signal to manufacturers and national competition authority that this is a prioritized issue.
⇒We call on the European Commission to actively use EU competition law to promote intra-‐EU online trade by (1) opening a case targeting the inclusion of “online platform bans” in distribution policies, (2) removing the “logo clause” from paragraph 54 of the Guidelines on Vertical Restraints, and (3) instituting, as a political signal, an EU hotline for merchants to report discrimination and practices harming the development of technology-‐enabled trade. 3. Take steps to modernize the application of consumer protection policy The current EU consumer protection acquis is a patchwork of different pieces of legislation that confuses businesses and consumers alike. Overlapping requirements, conflicting national implementations, and diverging enforcement have created a complicated environment for providing online commerce services. Notably, numerous and inflexible information obligations required at several stages of the purchasing process lead to a disordered user experience. This risks overwhelming users rather than informing them. It also obstructs the merchant or service provider (e.g. the
27 For example, in 2014, 50% of transactions on eBay included a mobile touch-‐point and eBay enabled USD 28 billion of mobile commerce volume. eBay’s apps have been downloaded to more than 300 million devices worldwide.
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online marketplace where the merchants operates a webshop) from providing consumers with a user-‐friendly and simple experience. The area of energy labeling28 offers several examples of problematic application of legal consumer information obligations:
a) Requiring the display of legally mandated information in all advertising presented to a potential buyer. Such a requirement coupled with a wide interpretation of the term “advertising” create the untenable situation where the information must be made available to users at every instance on an online marketplace. This leads to a certain piece of information being presented to potential buyers numerous times on their way to the actual purchase.
b) Stipulating in detail how consumer information must be displayed. Prescriptive legislation leaves no flexibility for implementation, which prevents valuable experimentation and the emergence of best-‐practices; it may (unintentionally) steer developments in a certain direction without it being the natural or in the longer run the best direction for users and/or the society; and, moreover, a rigid focus on exact adherence to legal instructions risks delaying or even hindering the introduction of new technologies.29
c) Creating market uncertainty through unclear and complicated technical definitions in the law. For example, the definition of “TV monitors”30 in the context of the energy labeling framework puts into question whether other screens, which are increasingly used by consumers to watch content (such as computer screens), are also covered by the legislation. It therefore creates confusion in the market for computer monitor / other displays.
To address this situation the Commission needs to act on two parallel tracks. Firstly and most urgently, the Commission must review the plethora of information requirements applicable in the context of consumer advertising and sale. Following such an inventory of all relevant legislation, the Commission should publish guidance and principles to help Member States with how consumer information obligations across the board apply to online and mobile commerce services. We propose the following as the baseline:
• The objective is what matters The European Commission should provide general as well as more specific clarification on the ultimate objectives behind information requirements within consumer protection laws and should give traders’ greater flexibility on how those objectives are best realized in specific instances.
28 See Delegated Act 1062/2010 regarding energy labeling of televisions and Delegated Act 518/2014 regarding the labeling of energy-‐related products on the Internet.
29 A more constructive approach is proposed in the revised OECD recommendations on consumer protection and empowerment in e-‐commerce with language encouraging businesses to take into account empirical research about how consumers view and understand disclosures on different types of devices and platforms.
30 “Television monitor” is defined as a product designed to display on an integrated screen a video signal from a variety of sources, including television broadcast signals, which optionally controls and reproduces audio signals from an external source device, which is linked through standardised video signal paths including cinch (component, composite), SCART, HDMI, and future wireless standards (but excluding non-‐standardised video signal paths like DVI and SDI), but cannot receive and process broadcast signals.
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To provide an example: Article 5(1)(a) of the Consumer Rights Directive (CRD) 2011/83 requires the display of the “main characteristics” of the product prior to the conclusion of the purchase. Court rulings in Germany have indicated that the definition of “main characteristics” (i.e. information that needs to be displayed on the confirmation page) depends on what has been displayed earlier in the buying flow. As a result, it has proven difficult in practice for sellers to understand what information is actually required from them as well as for an online marketplace to technically display the required information on the page just before the order is placed. A preferred way forward would be leave it to the trader to decide what information should be provided when in order to enable consumers to make informed decisions. The trader’s decisions would depend on the type, context and stage of the transaction.31
• Clear attribution of responsibility The European Commission needs to clarify the attribution of responsibility for adhering to legal consumer protection obligations. We have lately observed how national courts attribute responsibility to eBay for the failure by merchants, who are using the eBay marketplace, to comply with consumer legislation despite the addressee of the law being the merchant/trader.
• Recognize the particularities of different technologies, services and devices used
for commerce Consumers turn to multiple devices (and different channels) throughout the purchasing process. Mobile devices are becoming increasingly popular for shopping; illustrated by how today they are used in 50% of all transactions on eBay. Intriguingly, what makes a “mobile device” is not set in stone as new technologies from digital storefronts to wearables to interactive textiles gain traction. Screens will be both larger and public as well as smaller and attached to the user; moreover, the interface through which the purchase is made may not even have a screen but be a detached button, a physical space or a command. The way consumer information is displayed across these screens, devices and interfaces will and should vary so as to best serve the objective behind the information requirement.32 Even though individuals are comfortable buying high-‐value items on a smartphone, for example, we find that a “PC mindset” still lingers in laws and enforcement practices. Policymaking needs to firmly move into the mobile (or interface) era; and so at least for a passage of time, language along the lines of Article 8 (1) and (4) of the CRD recognizing the particularities (or limitations) of certain “means of distance communication” is required.
⇒We recommend the European Commission provides guidance on the ultimate objectives behind information requirements. Such guidance should be accompanied by confirmation on the following issues: (1) traders’ information requirements are thre sole responsibility of the traders, not of intermediaries such as online marketplaces(2) greater flexibility for business on how to achieve the objectives are to be encouraged; and (3) legally mandated consumer information, and not limited to the CRD, should simply be “made available to the consumer in a way appropriate” to the channel, screen and device used and that it is the trader and/or commerce service provider who is best placed to appraise how the particularities of certain
31 Similar language is being proposed for the revised OECD recommendations on consumer protection and empowerment in e-‐commerce.
32 Language proposed for the revised OED recommendation on consumer protection and empowerment in e-‐commerce recognize not only the limitations or special characteristics of a communications methods but also that it is the business that is best placed to determine how these limitations and characteristics influence accessibility and readability of information disclosures.
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channels, screens, devices and interfaces are most effectively leveraged to achieve the objective behind the information obligation in question. Secondly, and in parallel, the Commission must change the way it regulates businesses. The current model of fixed designs for consumer protection policy stifles the digital economy. The Commission must move towards policy models that are flexible and can adapt to different situations. We provide more details on how this could look in Annex II. 4. Uphold the “Home Member State” principle In a number of Directives and Regulations, which are currently being reviewed (4th Anti-‐Money Laundering Directive, 2nd Payment Services Directive, Data Protection Regulation, etc.), we observe how Member States move towards increased regulation and supervision at local level of companies operating on a cross-‐border basis. This trend is extremely worrying as it undermines the very freedom to provide cross-‐border services, set out in Article 56 of the TFEU, which is central to the effective functioning of the Internal Market.
For example, in the context of the discussions on the 4th Anti-‐Money Laundering Directive, some Member States are pushing to create an obligation for cross-‐border payment service providers to report suspicious activities in each of the 28 EU Member states, as opposed to the authorities of their Home State only, as is currently the case. Obviously, this gives rise to additional red tape and increased compliance costs on the industry. ⇒We want to see the European Commission encourage Member States to use existing information sharing tools and support a process of improving the level of their cooperation. 5. Support the digital economy through a balanced liability framework The digital economy has been able to develop and thrive largely thanks to the legal certainty created by EU hosting liability framework, established by the E-‐Commerce Directive 2000/31/EC and the IP Enforcement Directive 2004/48/EC. This legal cornerstone is designed to ensure that internet intermediaries have no general monitoring obligation to prevent infringing content from appearing on their site and are not liable for third party infringements (as long as those intermediaries expeditiously remove infringing content from their site upon gaining actual knowledge). That framework is critical to the functioning of cross-‐border technology-‐enabled commerce and content delivery sites of all types. It has been an essential driver of innovation, consumer choice, and economic development across Europe. However, this balanced framework has recently come under attack from Member States’ Courts. For example, the German Supreme Court imposed in 2013 a wide-‐ranging injunction against eBay, requiring manual comparison of pictures associated with new listings on a daily basis to ensure new listings do not infringe the copyright of the claimant. The ruling sets a dangerous precedent that could lead to a flood of broad injunctions imposed on intermediaries in Germany. Particularly at the scale and scope of a provider like eBay, which enables literally millions of unique products to be made available to European consumers, such manual comparison is simply impossible. ⇒We call on the European Commission to rigorously uphold the current balanced intermediary liability framework. In particular, the Commission should take action to ensure that injunctions against intermediaries do not amount to monitoring obligations.
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6. Streamline VAT and customs administration Within the EU, different VAT systems in different Member States present a major obstacle to online sellers who cross the VAT threshold for cross-‐border sales into another EU country and thereby need to deal with VAT administration in countries where their customers are based. At the very least, a ‘one-‐stop-‐shop’, which allows such businesses to deal with one single authority for VAT purposes when trading across the EU, would better enable small business to cope with this administrative burden. Furthermore, international e-‐Commerce transactions are slowed down by discriminatory customs duty thresholds, as well as slow and burdensome customs procedures. Such international barriers not only prevent consumers from fully embracing the opportunities offered by global digital commerce, but also make it difficult for European small businesses to offer returns to their customers globally. ⇒ We urge the European Commission to streamline the current EU VAT framework by allowing businesses, which cross the threshold for cross-‐border sales into another EU country, to make a single VAT declaration and payment in their own Member State, rather than having to declare and pay VAT to each individual Member State where their customers are based. Such one-‐stop-‐shop system should be accompanied by SME-‐friendly rules on audits, VAT thresholds, registration, and payment systems. Furthermore, the EU should establish itself as an international leader in e-‐Commerce friendly customs policy by aligning the customs duty threshold for goods bought online (currently 150e) with that of personal imports offline (430e), establishing a simplified fast-‐track customs procedure for e-‐Commerce, and maintaining the current Low Value Consignment Relief (LVCR) VAT threshold.
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Annex II
“Better Regulation” Action in the shorter term
Creating a connected Digital Single Market is not an end in itself but a means towards a prospering Europe. Indeed, the European Commission estimates that a connected Digital Single Market can generate up to €250 billion in additional growth. This requires efforts beyond the tearing down of existing barriers to a fully integrated European market. As European Commission President Jean Claude Juncker makes clear in his Political Guidelines, we need to create the right regulatory environment and a climate of entrepreneurship. Too prescriptive and too detailed regulations risk stifling innovation:
“Jobs, growth and investment will only return to Europe if we create the right regulatory environment and promote a climate of entrepreneurship and job creation. We must not stifle innovation and competitiveness with too prescriptive and too detailed regulations, notably when it comes to small and medium sized enterprises.”33
As described in the previous section, thoughtful design34 of policy measures can facilitate cross-‐border entrepreneurship by removing red tape. Just as important, thoughtful design of policy can encourage cross-‐border entrepreneurship by supporting experimentation, endorsing responsible risk-‐taking, and promoting innovation. As part of the work to create a connected the Digital Single Market that encourages cross-‐border entrepreneurship, the European Commission must also reform the current EU approach to policy design. The notion of “better regulation” needs to be understood as a broader concept reflective of how policy design entails far more than pure regulation.
“[W]e need to ensure that existing and new regulation is fit for purpose in the digital world … . New digital business models are challenging existing regulatory systems worldwide, requiring a new way of policy-‐making. Our current regulatory environment can create unforeseen hurdles to digitalisation and uncertainty for digital businesses.”35
In the context of such a reform, we propose that the following four processes be explored: 1. Create a performance-‐based environment Outcome-‐based regulation, whether performance standards or principle-‐based, allows companies to achieve regulatory aims in a way that is more effective and efficient for them. This approach shifts the focus away from adherence to the letter of the law towards compliance with the spirit of the law. It becomes a matter of demonstrating compliant
33 From the Political Guidelines of Jean Claude Juncker, President of the European Commission. 34 Policy design refers to translating policy ideas into implementable action. 35 Speech by Günther Oettinger, Commissioner for Digital Economy & Society, “Europe’s future is digital” (14 April 2015), available: http://ec.europa.eu/commission/2014-‐2019/oettinger/announcements/speech-‐hannover-‐messe-‐europes-‐future-‐digital_en
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outcomes rather than merely ticking boxes. At the same time, regulators do not lock themselves in with regard to how compliance should be achieved. Outcome-‐based regulation can increase understanding about what is being asked by regulators, allow companies to explain compliance, and encourage engagement with regulators and governments to discuss best practices and the effectiveness of the regulation: “results-‐based regulation is an approach that can … ensure that we never loose sight of the purpose of regulation” 36 Nevertheless, rule-‐based regulation – or design standards – is today the dominant model. This can be explained by how it has traditionally been difficult for regulators to determine what inputs are needed to measure compliance, to collect the data, and to make sense of it. Moreover, companies see higher risk with performance standards as they afford regulators discretion. The preference has therefore been for less subjective, though prescriptive, rules. The response to concerns about discretion and consistency in enforcement as well as accountability should be the development of outcome-‐based regulatory models that value performance in a manner that appeals to business, policymakers and consumers. We propose that this could take the shape of regulatory models characterized by: 1) Measuring and improving performance through a continuous process of securing
relevant data about performance from all regulated entities, using algorithms to derive insights from the data, and interpreting and applying the insights in dialogue with the regulated entities to develop market performance and inform the regulation.
2) The role of the regulator being one of (i) managing the process, (ii) auditing the process, or (iii) overseeing the process. 37
Inspiration for this type of regulatory model could be found in the air navigation sector, which has – on a self-‐regulatory basis -‐ cultivated a performance-‐based environment for decades. Since 2010, EU legislation lays down the framework for this performance scheme with the goals of (i) improving performance within the overriding objectives, (ii) putting the genuine needs of stakeholders at the core of the system, (iii) realizing a Single Market, (iv) giving more responsibility to the industry, and (v) involving the industry in rulemaking. 38 Notably, these are all goals that are directly applicable to the Digital Single Market. Moreover, the system developed for the air navigation sector has several interesting features that could provide a blueprint for policy design for the digital economy:
36 “Beyond ideology: a results-‐based approach”, by John W. Mayo, essay part of the “Regulating the Digital Economy” symposium, Democracy Journal, available: http://www.democracyjournal.org/34/beyond-‐ideology-‐a-‐results-‐based-‐approach.php
37 This is comparable to the notion of ”system stewardship” introduced by the 2011 study by the Institute for Government (see footnote 32), where the role of policymakers is “overseeing the ways in which the policy is being adapted, and attempting to steer the system towards certain outcomes, if appropriate”.
38 “A framework for driving performance improvement”, a report of the High Level Group for the future European Aviation Regulatory Framework (July 2007), available: http://ec.europa.eu/transport/modes/air/doc/hlg_2007_07_03_report.pdf
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• The system operates at both EU and national level. The European Commission sets the EU-‐wide performance targets and national authorities translate those into national plans.
• There is a central entity, which assists in the implementation of the scheme by, inter alia, examining performance data, revising EU targets, and assessing national plans.
• It is an iterative system with a “continuous process of collecting and analyzing data in order to measure the actual output of a system“ vis-‐à-‐vis predefined targets. 39
• So-‐called pilot studies are used to test whether new data requirements would be helpful and proportionate.
• Data points provided by the regulated entities are combined with data collected through other European instruments.
⇒ We suggest that the European Commission adopts a performance-‐based approach to all policy and legislation for the Digital Single Market. To be clear, this is not to say that rule-‐based legislation should be abandoned but that more effort needs to go into finding the right balance between, as well as combination of, rules and principles. Taking a performance-‐based approach as the very starting point is first and foremost about viewing the policymaker’s role as one of “system stewardship”, rather than seeking to control outcomes. This is not a laissez-‐fair mentality. As described in this section, a performance-‐based model can be institutionalized through public entities, processes and complementing rules. A successful performance-‐based environment will furthermore depend on the conditions outlined below. 2. Develop and interpret policy through dialogue Especially in the context of disruptive services and business models, the application and interpretation of legislative requirements should be shaped through a process of dialogue between market actors and regulators – not through top-‐down commands. Regulators must appreciate that market actors sit on valuable and relevant knowledge about the ability and constraints of specific services, the capacity and limitations of the underlying technology, as well as emerging technology iterations and developments. A good example of how policy design based on dialogue may look could be found in the context of certifying air products. In a sector where safety is of outmost importance, the competent regulator EASA (European Aviation Safety Authority) has not succumbed to prescriptive, “control and command”-‐type of regulation. Instead, the governing regulatory framework promotes dialogue through a combination of binding rules and non-‐binding standards. The non-‐binding standards, called Acceptable Means of Compliance (AMC) and issued by EASA, describe ways of complying with the binding rules and create a presumption of compliance. The regulated entity always remains free to choose alternative means provided it can demonstrate that the alternative achieves compliance with the rules.40 It should be noted that this process does not grant the regulator the sole discretion to determine how the regulated entities should achieve the objectives of the rules. Instead, the
39 Article 2(12) of Commission Implementing Regulation 390/2013 laying down a performance scheme for air navigation services and network functions.
40 See e.g. http://easa.europa.eu/document-‐library/acceptable-‐means-‐compliance-‐amcs-‐and-‐alternative-‐means-‐compliance-‐altmocs
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process invites the regulated entity, in dialogue with the regulator, to propose ways in which the objectives can be adequately accomplished. This leaves room for innovating and evolving best practices. With the aim of developing a culture of entrepreneurship, the European Commission should foster a new type of relationship between market actors and regulators. It should steer developments away from top-‐down delivered interpretations of legislative requirements towards the shaping of policy through dialogue. To start with, this approach should be employed in the context of consumer information, e.g. to general requirements under the Consumer Rights Directive and specific obligations under legislation on energy labeling for consumer products. ⇒ We suggest that dialogue-‐oriented policy design should be employed in the context of consumer information requirements. We envisage a system where the basic regulation would set out the objectives; it would be complemented by non-‐binding soft law, developed together with stakeholders and describing “acceptable means of compliance”; the soft law would create a presumption of legal compliance to be recognized by national authorities; traders would have the option of alternative means of compliance where those demonstrably achieve the objectives; and mechanisms similar to those developed within the EASA system would be used to ensure consistency and coherence across the EU. 3. Achieve complementary policy objectives through flexibility Our proposals for performance-‐based and dialogue-‐driven policy design introduce flexibility into the system to allow for market innovation and ensure effective achievement of other policy objectives. Flexibility and achieving important policy objectives are not contradictory aims. The way EASA has approached the new and highly innovative phenomenon of civil drones offers a great illustration of that. In 2009, EASA issued a policy statement to explain how the airworthiness of drones could be assessed under the existing regulatory framework. 41 The aim was to “facilitate acceptance of airworthiness applications” for civil drones while “not increas[ing] the risk to people and property on the ground compared with manned aircraft of equivalent category.” To that end, EASA recognized that the need to “facilitate an early introduction” of civil drone operations required alternative approaches and procedures for airworthiness approval. The necessary degree of flexibility in the system was provided for through derogations from standard approval criteria subject to ensuring “adequate safety with regard to its purpose”. As EASA gained more knowledge about civil drones, it proceeded to develop the regulatory framework together with stakeholders. The ambition remained “to offer enough flexibility for the new industry to .. innovate”. The policy design it came to use rests on dividing drone operations into three broad categories, where categorization is proportionate to risk and intended operation. 42 Under this new framework, only when operations start posing significant risks is the drone operator required to perform a risk assessment and identify
41 Policy Statement, Airworthiness certification of Unmanned Aircraft Systems, E.Y013-‐01, available: https://easa.europa.eu/system/files/dfu/E.Y013-‐01_%20UAS_%20Policy.pdf
42 See https://www.easa.europa.eu/easa-‐and-‐you/key-‐topics/civil-‐drones-‐rpas
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measures that could mitigate the risks (e.g. limitations on the operations, qualifications for the personnel, certification of the drone itself, etc.). The aim is to pursue the two goals of (i) integration and acceptance of drones into the existing aviation system in a safe and proportionate manner and (ii) fostering an innovative and competitive European drone industry and creating new employment, in particular for small and medium-‐sized enterprises. These goals are to be achieved simultaneously through a regulatory framework, which focuses on the operations of drones and which “set[s] a level of safety and of environmental protection acceptable to the society and offer[s] enough flexibility for the new industry to evolve, innovate and mature”. ⇒ We propose that the approach of realizing important policy objectives through flexible regulatory frameworks is the model that should be applied to the digital economy in general and innovative, disruptive sectors in particular. A good example of the latter is online and mobile payments. Just as EASA entrusts drone operators with carrying out safety risk assessments of operations and identifying mitigation measures, the payment service provider is the best placed and most capable to assess which authentication method is the most appropriate for types of transactions. It is most often counterproductive to impose a certain method or process on market actors in a fast-‐changing, innovative industry (where rogue actors move just as swiftly) with the hope of achieving a certain policy objective; desired market outcomes are more likely generated where industry investments in the next generation methods and processes are supported. The policy objective of ensuring adequate levels of security in the online and mobile payment sector should therefore be pursued through legislation that allows payment service providers to deploy alternative security solutions. 4. Develop regulatory frameworks based on experience and in tandem with the evolution of the sector As described, the Internet and the digital services running on top of it empower entrepreneurs to “learn by exporting”. This necessarily involves varying degrees of risk taking43 – and so does the development of the services that power these entrepreneurs. Policies that aim to promote a “climate of entrepreneurship” must be able to embrace risk taking and learn from it. As explained above, this requires that policymakers and regulators engage in dialogue with companies in order to increase learning and understanding of new phenomena. Dialogue is one necessary building block for “develop[ing] rules based on observed market behavior and … introduce[ing] regulation iteratively”44.
43 For instance, international selling creates novel challenges for sellers. To help sellers manage risks, eBay introduced a policy to protect sellers’ domestic performance status when they sell internationally: “We appreciate that when you expand into new markets, it is more important than ever to make sure your domestic seller status is protected.” http://sellerupdate.ebay.co.uk/spring2015/international-‐seller-‐protection?clk_rvr_id=821269232612&rmvSB=true
44 “Can ‘Lean Regulation’ be a game changer for financial innovation”, by Chris Bishko and Pearl Chan of the Omidyar Network, Forbes (10 March 2013), available: http://www.forbes.com/sites/kerryadolan/2013/10/03/m-‐pesa-‐and-‐gcash-‐can-‐lean-‐regulation-‐be-‐a-‐gamechanger-‐for-‐financial-‐innovation/
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Jessica Rosenworcel of the US Federal Communications Commission (FCC) has called iterative policymaking “government in the sandbox”. She warns that in today’s policymaking processes “[t]here is too little opportunity for iterative learning – testing ideas and making quick adjustments based on experience”. 45 There are several conceivable ways to structure a model whereby policymaking could be developed iteratively and be informed by the experience of market actors and effects in the market. For example: 1) As companies experiment with new products or services, they could carve out an area
where controlled experimentation would be carried out together with regulators, and both would learn from the risk taking.46
2) EASA’s approach to drones provides another possible model, where the decision to not subject a certain category of drone operations to approval processes is intended to allow “the small and medium-‐sized enterprises to gain experience”. The aim behind this risk-‐proportionate categorization of activity is indeed to “support SMEs to learn and progress from simple operations to higher risk operations as they gain experience allowing them to increase the range of operations and applications”. [17]
3) The FCC has used models such as running practical, small-‐scale tests to inform future policymaking. One example concerns the FCC’s ambition to have television broadcasters combine technical operations and broadcasts over less spectrum. While the goal was to effect such a shift at national level, the FCC started at city level. It identified two broadcasters in Los Angeles and tasked them with figuring out how to implement channel-‐sharing; this process provided the FCC with information about technical and legal issues that arise when broadcasters share facilities under real-‐world conditions. 47
A sandbox approach to policy design depends on a willingness to accept interim solutions. For example, EASA explicitly chose not to regulate drones back in 2009, but instead to issue a policy document as “an interim solution” and wait until “more experience has been gained” about drone operations before developing regulation. Equally important, an environment where responsible risk taking by companies is supported and the experience tapped to inform policy design demands a climate of mutual trust. Companies must not fear punishment for factors out of their control and be comfortable in providing feedback about trial and errors for the purpose of informing policymaking. To this end, the concept of “just culture” could be borrowed from air safety and health care sectors. This concept represents “a culture in which … operators … are not punished for actions, omissions or decisions taken by them that are commensurate with their experience
45 “Sandbox thinking”, by Jessica Rosenworcel, essay part of the “Regulating the Digital Economy” symposium, Democracy Journal, available: http://www.democracyjournal.org/34/sandbox-‐thinking.php
46 Consider Max Levchin’s description at 2015 World Economic Forum of an approach he is pursuing with his latest company Affirm: disruptive companies reach out to regulators saying “we are the new kids on the block, we are going to take risks on your time, but we are going to provide you with our learnings” and “here’s an experiment, it’s going to be important to find out what the outcome is but there is no guaranteed protection”.
47 Rosenworcel
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and training” – one must accept that “honest mistakes” happen, while “gross negligence, wilful violations and destructive acts are not tolerated”.48 The recognition behind this concept is that improving performance of a sector, industry or market depends to a large extent on feedback of knowledge. ⇒ We argue that maximising the growth potential of the European Digital Economy requires a regulatory environment where, in particular, small businesses feel encouraged to exploit the possibilities in new technologies and open markets. This is about expanding into the unknown. The requisite regulatory framework would be one where (i) companies are encouraged to gain experience through responsible risk taking and (ii) such experience can also benefit policymakers and contribute to informing policies and regulation. This means that policymakers must be prepared to accept interim solutions and must actively engage in creating a climate of mutual trust: companies must feel comfortable to provide feedback about trial and errors for the purpose of informing policymaking. To this end, the concept of “just culture” could be introduced for the Digital Economy. This concept represents “a culture in which … operators … are not punished for actions, omissions or decisions taken by them that are commensurate with their experience and training”. It is about creating an environment of active learning, recognizing that improving performance of a sector or industry depends to a large extent on feedback of knowledge generated by a system of data collection and analysis.
48 See for example Eurocontrol’s explanation of this concept: https://www.eurocontrol.int/articles/just-‐culture