Our look back on the 10 most read posts from this past year highlights key developments in 2021. These posts reflect the emergence of environmental justice and environment, social, and governance as critical areas for businesses on both sides of the Atlantic. They also show the growing enforcement trend among State Attorneys General and the Federal Trade Commission. Regulations have covered a wide range of issues, from chemicals and hazardous materials in the U.S. to digital markets in the European Union. And, as the impact of Covid-19 continues to affect us all, one of our most-read articles shows the continued struggle retailers face with pandemic-related lease disputes.

Continue Reading This Year’s Most Popular Posts

On November 2, 2021, Crowell & Moring attorneys Judith Bussé, Ryan MacFarlane, Nicole Janigian Simonia, and David Stepp will be presenting a webinar to address the top 5 ESG challenges and opportunities for international companies and organizations.

Climate change is a global challenge that demands a global response. Global standards are vital in a number of areas to tackle the cross-border problems that many organizations face from forced labor issues, global initiatives, and disclosure requirements to greenwashing. Among the pressing issues are how plastic packaging and waste is regulated on a global level, how the recent EU initiatives apply to companies established outside of the EU territory, x, and x. Level-setting will need to go beyond what environmental, social and governance (ESG) basics address and so called “green” or sustainable investments that claim to pursue environmental goals will begin to see more scrutiny. Governments around the globe are working on numerous voluntary standards and a wave of new ESG regulation calls for more extensive and detailed corporate disclosures including that ESG risks are appropriately managed by third parties, such as supply chains and other business relationships.
Continue Reading Webinar: Top 5 ESG Challenges and Opportunities for International Companies and Organizations

On September 8, 2021, Crowell & Moring attorneys Karel Bourgeois and Judith Bussé will be presenting a webinar in collaboration with IBJ/IJE.

This webinar will discuss some of the most important European and national initiatives and their likely impact in practice: from the EU Action Plan on Sustainable Finance (March 2018) to the more

On July 9, 2021, the European Commission published its long-awaited draft of the revised Vertical Block Exemption Regulation (VBER) and Vertical Guidelines. The significant changes proposed by the Commission take into account the specific challenges brought about by the growth of e-commerce and online platforms in the “digital age.” The Commission has also taken this

On June 23, 2021, Brussels-based Judith Bussé spoke at the International Consumer Product Health and Safety’s (ICPHSO) North American Workshop. ICPHSO is an international, neutral forum for product safety stakeholders to learn, network and share information.

In her presentation, Judith explored new EU Environmental, Social, and Governance (ESG) related measures and their practical consequences for

On December 15, 2020, the European Commission (EC) presented its long-awaited proposal for a Digital Services Act (DSA), together with a proposal for a Digital Markets Act (DMA), which we discussed in a previous alert. Whereas the DMA aims to promote competition by ensuring fair and contestable markets in the digital sector, the DSA proposal intends to harmonize the liability and accountability rules for digital service providers in order to make the online world a safer and more reliable place for all users in the EU.

Most notably, the DSA would impose far-reaching due diligence obligations on online platforms, with the heaviest burdens falling on “very large” online platforms (i.e., those with more than 45 million average monthly active users in the EU), due to the “systemic” risks such platforms are deemed to pose in terms of their potential to spread illegal content or to harm society. In this day and age when the perceived power of online platforms to independently control content publication and moderation is headline news daily, with governments throughout the globe grappling with different legislative and regulatory proposals, the DSA stands out as an ambitious effort by the EC to create a consistent accountability framework for these platforms, while striking a balance between safeguarding “free speech” and preserving other values and interests in a democratic society. Like the parallel DMA proposal, the DSA proposal has been criticized for targeting mainly U.S.-based companies, which would make up most of the “very large” platforms. Given the huge commercial interests at stake, the passage of both laws will no doubt be the subject of intense debate and lobbying, including with respect to the asymmetric nature of the proposed regulation and the powerful role that the EC reserves to itself in both proposals.
Continue Reading Digital Services Act: The European Commission Proposes An Updated Accountability Framework For Online Services

On December 15, 2020, the European Commission (EC) published its proposal for a Digital Markets Act (DMA). The proposal aims to promote fair and contestable markets in the digital sector. If adopted, it could require substantial changes to the business models of large digital platform service providers by imposing new obligations and prohibiting existing market practices. These changes not only would create significant new obligations on “gatekeeper” platforms, but also opportunities for competitor digital service providers and adjacent firms. Further, the proposed requirements of the DMA have the potential to transform the way that businesses engage with “gatekeeper” providers – including, for example, companies that sell goods and services, distribute apps, and/or purchase advertising on large platforms.

Digital Markets Act Proposal: Main Takeaways

  • Proposes new rules intended to promote fair and contestable markets in the digital sector, which would apply only to providers of “core platform services” designated as “gatekeepers”.
  • Defines “core platform services” to include online search engines, online marketplaces, social networks, messaging and chat apps, video-sharing platforms, operating systems, cloud computing services, and advertising networks and exchanges.
  • Defines “Gatekeepers” as providers of core platform services which have a significant impact on the EU internal market, serve as an important gateway for business users to reach customers, and have an entrenched and durable position.
  • Provides quantitative thresholds based on turnover or market value, and user reach, as a basis to identify presumed gatekeepers. Also empowers the Commission to designate companies as gatekeepers following a market investigation.
  • Prohibits gatekeepers from engaging in a number of practices deemed unfair, such as combining personal data across platforms, ‘wide’ MFN clauses, misusing non-public data about the activities of business users and their customers to gain a competitive advantage, blocking users from uninstalling pre-installed applications, self-preferencing in ranking, etc.
  • Imposes certain affirmative obligations on gatekeepers, including measures to promote interoperability, data access, data portability, and transparency regarding advertising services.
  • Requires gatekeepers to notify below-threshold mergers and to accept independent audits of profiling practices.
  • Puts the Commission in charge of enforcement with extensive investigative powers, including the power to require access to databases and algorithms, and the ability to impose fines of up to 10% of the gatekeeper’s worldwide annual turnover.
  • Empowers the Commission to impose structural remedies, potentially including the divestiture of businesses, for recurring non-compliance.
  • Authorizes the Commission to carry out market investigations to assess whether new gatekeeper practices and services need to be regulated.


Continue Reading Digital Markets Act: The European Commission Unveils Plans to Regulate Digital ‘Gatekeepers’

In the coming weeks or months, the European Commission is expected to table an ambitious set of draft legislation that, if adopted, will have a major impact on the business practices of digital service providers in the EU, including non-EU companies serving European users: the Digital Services Act (DSA) and the Digital Markets Act (DMA). The Commission’s legislative proposals aim to strengthen the responsibilities of online platforms and to support fair competition in digital markets.

1. The Digital Services Act (DSA): increasing responsibilities for digital service providers

The DSA’s main objective is to update the e-Commerce Directive. This is long overdue, as the legal framework for digital services has remained largely unchanged since the e-Commerce Directive was adopted in 2000. The update aims to clarify the liability regime for digital intermediaries active in the EU and to reinforce oversight and enforcement.

The DSA will require digital service providers to take more responsibility for dealing with harmful or illegal content and dangerous or counterfeit products. They will have to put in place clear and simple procedures to deal with notifications about harmful or illegal content or goods on their platforms. They will also have to verify the identity of traders before letting them on their platforms (“know your business customer”). At the same time, they will have to make available simple procedures for platform users to complain if they think the removal of their material was unwarranted.
Continue Reading New EU Proposals to Regulate Digital Markets – What to Expect