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[INTERVIEW] The legislative process for the Digital Services Act: 3 questions to Felix Reda

On Saturday, the EU institutions agreed the final text of the Digital Services Act. The Council and Parliament proposed their amended versions of the Commission’s original draft months ago, but some completely new amendments were proposed during the last stages of trilogue negotiations. What are the main changes they aimed to make?

Two days before the final trilogue, Euractiv reported new amendments being proposed by the rapporteur of the opinion-giving legal affairs committee of the European Parliament, Geoffroy Didier. Those amendments would have introduced far-reaching obligations on online search engines to introduce upload filters and to remove entire website domains from their search results if illegal content was reported on those websites. These obligations would have led to drastic infringements of freedom of expression, as they would have almost inevitably led to the removal of search results to legal forms of expression as well. Luckily, these last-minute amendments were not adopted in the final trilogue between the EU institutions.

What were the origins of these amendments, and who was pushing for these changes?

MEP Didier did not indicate the origin of his proposals, but they bear a strong resemblance to proposals pushed for by the entertainment industry, especially the music industry. Neither the original Commission proposal, nor the European Parliament or Council position included these texts.

Do these last-minute amendments, introduced with relatively little public debate and oversight, indicate broader problems with the EU legislative process?

The trilogue process is over-used in the EU legislative process and particularly vulnerable to last-minute lobby proposals without public oversight. Originally intended for particularly non-controversial legislation, the informal trilogue procedure now regularly replaces the ordinary legislative procedure consisting of multiple readings of legislative files until a compromise is reached between Parliament and Council.

Instead of these multiple readings, with votes on individual amendments, which are published in advance and open to public scrutiny, Commission, Parliament and Council lock themselves in a room for trilogue negotiations to agree on a compromise text ahead of the first reading, which is then put to the vote without any amendments, in the form of a ‘first-reading agreement’. Although the trilogue is supposed to merely find a compromise between the adopted positions of the co-legislators, in practice it is often used to introduce entirely new topics which were not previously discussed in an open and transparent manner.

In the DSA, this was the case for the topic of the intermediary liability of search engines, which was not addressed in the original Commission proposal and only became a topic of discussion in the trilogue. Even if it is a good idea to have a specific provision on the liability limitations of search engines, from a transparency and democracy point of view it would have been preferable to have this debate at an early stage of the legislative process, not behind closed doors.

Author bio: Felix Reda is a former MEP for Germany and former Vice-President of the Greens/EFA group in the European Parliament. He now works at the Gesellschaft für Freiheitsrechte (Society for Civil Rights), where he leads the control © project on copyright and freedom of expression.