7
The European Union Digital Single Market—Challenges
and Impact for the EU Neighbourhood States
Baltic Journal of European Studies
Tallinn University of Technology (ISSN 2228-0588), Vol. 8, No. 2 (25)
The European Union Digital Single Market—Challenges
and Impact for the EU Neighbourhood States1
Katrin Nyman-Metcalf
Tallinn Law School,
Tallinn University of Technology
Akadeemia tee 3,
Tallinn 12618, Estonia
E-mail: Katrin.Nyman-Metcalf@taltech.ee
Ioannis F. Papageorgiou
Aristotle University of Thessaloniki,
Faculty of Economics and Political Sciences,
School of Political Sciences
Economics and Political Sciences Building,
Thessaloniki 54124, Greece
E-mail: ipapageo@polsci.auth.gr
Abstract:	 The digital single market is one of the most important objectives and
challenges for the European Union. However, given that digitalisation
implies a borderless world it requires a different form of governance
and has distinctive features from other aspects of the single market.
In addition, it raises a number of practical and political issues for
countries outside the EU, but which maintain close economic and
trade relations with the latter. The article examines the regulatory
implications of the digital world from the point of view of states
involved in the European Neighbourhood Policy, in particular
Georgia, and looks into the future challenges in this process.
Keywords:	digitalisation, EU single market, Georgia, neighbourhood policy
1
	 This article has been prepared in the context of the project LMIN16092 entitled “Digital
Single Market as a Key Element in EU-oriented Georgian Higher Education” led
by the Tallinn University of Technology with the funding of the Estonian Development
Cooperation.
doi: 10.1515/bjes-2018-0013 Baltic Journal of European Studies
Tallinn University of Technology (ISSN 2228-0588), Vol. 8, No. 2 (25)
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8
Katrin Nyman-Metcalf
Ioannis F. Papageorgiou
Baltic Journal of European Studies
Tallinn University of Technology (ISSN 2228-0588), Vol. 8, No. 2 (25)
1.	Introduction
The EU has, since its inception as the European Communities in 1957, but
especially since 1987 and even more comprehensively since 1992, acted to
set in place a single market. The term describes the establishment, within the
EU, of one territory without any internal borders or other regulatory obstacles
to the free movement of goods and services. The establishment of the single
market is one of the most significant achievements of European integration
and despite the fact that it is still not complete, it has led to a significant
increase of European GNI. Since 1992 it has been estimated that the European
Single Market raised EU GDP by 5% (EPRS, 2014).
Since the early 2000s and in the wake of the internet revolution, the EU strives
to set a specific set of rules for the single market in the digital area. The early
development of the digital market showed evidence of how, rather paradoxically,
this market where national borders should not play any role suffered from more
obstacles than the traditional EU single market. We can buy our airline ticket
or software from any country, hardly even knowing which country it is. For
physical goods, there will still be the question of transport, but increasingly
many purchases have no physical element—we do not need a DVD or book
to be sent but can get the relevant code. With increasing 3D printing, this will
be the case for far more products. However, obstacles have been created by
intellectual property rules, different rules for licensing of content, geo-blocking,
obstacles to delivery of goods bought online, and so on.
The growing awareness within the EU of the obstacles for a functioning digital
single market at a time when the digital market as such only increases in importance
has led to multiple EU initiatives to create a strategy for the digital single market.
Gradually these rules have significantly augmented and cover a wide range of
activities, services and rights for consumers, citizens and businesses—perhaps
the most complete and comprehensive set of rules for the digital market anywhere
in the world. The best-known element and a cornerstone of this process has
undoubtedly been the General Data Protection Regulation (GDPR) (Regulation
(EU) 2016/679), which entered into force in May 2018. The EU, however, has also
gone further than just regulating the existing market and looks to future issues. In
this context, the EU has even developed a strategy for artificial intelligence, which
among other things contains a charter on the ethics of artificial intelligence.
The digital single market rules of the EU have a wide impact even outside
the EU—something which demonstrates the capacity of major trade players to
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The European Union Digital Single Market—Challenges
and Impact for the EU Neighbourhood States
Baltic Journal of European Studies
Tallinn University of Technology (ISSN 2228-0588), Vol. 8, No. 2 (25)
set rules at a global level. This is even more true for the states that are in the
periphery of the EU and are linked to it with a set of trade and political relations
in the context of the EU Neighbourhood Policy (ENP). The implications of the
new way to make rules, of the way to take into account how different the digital
world may look compared to the “real” one, is something where the EU’s effect
on its neighbourhood is more diffuse; there are, however, signs of influence in
this respect as well.
The objective of this article is to examine the impact, whether immediate or
potential, of the EU digital single market on ENP partner states—primarily
Georgia—from a qualitative and regulatory viewpoint, including indirect
issues (political, economic, technological, ethical and jurisdictional) and more
direct ones related to the establishment of deep and comprehensive free trade
agreements including regulatory alignment. This addresses the wider question
of the ability of the EU to become a relevant global rule-maker for the digital
world. We do not provide a full analysis of the substance of the various initiatives
of the EU in the digital sphere, but rather we demonstrate how these initiatives
can have an impact on domestic relevant policies in ENP countries like Georgia
while strengthening the role of the EU globally and in its neighbourhood.
2.	The digital world: regulatory implications of digitalisation
Internet has profoundly changed society. The legal system sometimes appears
to act like an ostrich and thinks that consumer protection law, regulation,
prohibitions or age limits related to certain products can keep going in the same
way as 20 or 30 years ago. Rules can be made in novel ways (like in multistakeholder
fora) but enforcement is still largely state-centric and it is at this
point that the inability to make rules internationally surfaces (Morgan & Yeung,
2007, p. 329). Cyberspace abounds with such examples.
The ease with which national borders can be avoided means that the jurisdictionbased
legal system may not withstand the pressures and it may not be enough
to try to adapt existing rules, which is what has mainly been the approach so
far (Duvivier, 2013, p. 48; Dutt & Kerikmäe, 2014, pp. 286–287). It is known
that legal systems move rather slowly and tend to have a conservative effect,
due to the nature of law-making, which is rarely rapid simply because of the
various steps the process consists of and that are there to guarantee against
ill-thought-through decisions based on political whims. The slowness is thus
at least to some extent intentional and gives the legal system the possibility to
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Katrin Nyman-Metcalf
Ioannis F. Papageorgiou
Baltic Journal of European Studies
Tallinn University of Technology (ISSN 2228-0588), Vol. 8, No. 2 (25)
have a stabilising effect, supporting legal certainty and predictability. However,
albeit intentional, slowness can be a problem in a fast-moving high-tech world.
The question of what should come first, the technology or the regulation, is a
classical chicken-or-egg dilemma (Nyman Metcalf, 2014, p. 37). Evidently, we
cannot regulate something we do not know, so to some extent technology must
come first. At the same time, if technology develops too far in an unregulated
way, it is very hard to regulate it later—to put the genie back into the bottle (of
which internet is the best illustration).
According to many commentators (inter alia Duvivier, 2013; Nyman Metcalf,
2018), whether in academic or other articles or in the various fora for discussion
about the influence and governance of new technologies, what can be done to
deal with this dilemma is to create frameworks and systems rather than detailed
rules. If we cannot deal with very new technological issues, the extent and
consequences of which are not yet known, we can be helped by having a frame
in which to place these “unknowns”. As far as EU rulemaking is concerned,
this way of thinking in broad terms has existed for some time, through the
approach to determine desired results rather than details of technical or similar
requirements. The approach, which for a long time was referred to as the “new
approach”, was launched in 1985 when it was seen that the previous practice of
detailed technical requirements led to rules being outdated and obsolete even
before they entered into force (CEN, 2018).
Rulemaking in the “digital world” poses new challenges. The environment for
both making rules and applying them has become interdisciplinary. Technology
moves so rapidly that evaluating potential effects through empirical studies may
not be enough. Legislative and regulatory work should borrow ideas from, for
example, IT research, like modelling. Ideas are tested, if not empirically as there
may be no real environment for the study of something experimental and new,
then by acting through a scenario. In this way, it is possible to bring the theory
to the real world to test its viability. This can be very useful and interesting,
but it may also become superficial and pointless if not based on the proper
methodology. It may run into the same problems as those that quantification
encounters if excessively introduced into the legal field. It is difficult to quantify
many of the elements that underlie legislative considerations: what makes
people obey rules, what makes some people behave more ethically than others,
which sanctions are the most likely to affect behaviour? Having to quantify such
abstract matters leads to absurd situations where there is an expectation that it
is possible to say how many persons became how many percent less corrupt
or more efficient in a set period of time! As this is impossible, there is a trap
of bureaucratic quantification instead, showing that so many new rules have
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The European Union Digital Single Market—Challenges
and Impact for the EU Neighbourhood States
Baltic Journal of European Studies
Tallinn University of Technology (ISSN 2228-0588), Vol. 8, No. 2 (25)
been adopted. The EU is aware of this risk and has introduced criteria for its
regulatory activities that aim to avoid overregulation (Nyman Metcalf & Täks,
2013, p. 13).
The diffuse nature of borders in the digital world does not only affect the
national borders but also borders between categories of services and products,
such as between military and civilian. This is an essential issue for the EU as it
lacks capacity over military issues. The question of dual-use goods or services
existed before the Information and Communication Technology (ICT) era.
However, modern technologies have in many ways pushed the border and made
it even less clear what is military, as so many technologies developed (and even
operated) by the military may be important and frequent in civilian use—GPS
being perhaps the best-known example. An opposite development can also be
seen, with communications tools developed in the civilian world being so good
that the military has no need to develop separate ones. Cyber security, one of
the key concerns in modern society, illustrates the blurring of borders very well.
In fact, different people mean different things when speaking of cyber security,
ranging from purely military concerns to wholly civilian ones, but most correctly
it should be an amalgamation of any aspects that can influence the security of
our activities in cyber space (Geiss & Lahmann, 2013, pp. 621–622; Caliskan &
Peterson, 2013). The Cyber Security Index (http://ncsi.ega.ee), developed by the
Estonian e-Governance Academy, is a good illustration of what issues matter for
cyber security. When looking at the different indicators, they include existence
of laws, rules and relevant organs as well as capacity to detect and defend.
Given the importance of cyber security in the modern society, any efforts of
the EU in this context are likely to have effect beyond its borders, not least for
countries it closely cooperates with, such as the ENP states. Indeed, it may even
be via measures for cyber security that the digital agenda of the EU will have
the strongest impact—provided that the EU manages to provide relevant tools.
Until now, the European efforts in this context are important in the form of
the so-called Budapest Convention, the only major international instrument for
cybercrime, but this is a product of the Council of Europe.2
As for the public–private distinction, we are operating in a system in which
most important public functions to an increasing extent take place on privately
operated communications networks. It is not expected that states own and
operate communications networks themselves, but instead that the importance
and strategic interests of the state are ensured on privately owned infrastructure,
2
	 Convention on Cybercrime, Budapest, 23 November 2001, European Treaty Series,
185. The Convention has 60 parties, including countries from all parts of the world.
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Katrin Nyman-Metcalf
Ioannis F. Papageorgiou
Baltic Journal of European Studies
Tallinn University of Technology (ISSN 2228-0588), Vol. 8, No. 2 (25)
through regulatory and licensing tools and similar. This affects EU rule-making
that traditionally has acted according to established categories. EU competition
law enforcement against the large, mainly US internet companies illustrate
efforts to make traditional legal notions relevant in a new environment—with
only partial success, as the large fines against companies such as Google (Foo,
2018) are not likely to change the way the internet economy operates in any
major or lasting manner.
The phrase “technology neutrality” is well known to those working with
rulemaking in technology-related field (Kamecke & Körber, 2008).3
What it
means is that rules should not prescribe specific technology but should focus on
results to be obtained instead. Detailed rules may become obsolete, locking in
certain technology even when better suited things may appear, or they may just
be clumsy, if the technological aspects are not well understood. The principle is
taken into consideration at different stages of rulemaking, in impact assessments
and application (Commission Staff Working Document SWD(2013) 329 final).4
Artificial Intelligence (AI) in its multitude of forms will be a feature of almost
everything we do in the future. From the simple examples that exist already in
daily life, like mobile phone or online airline check-in “assistants”, we will have
more and more machines taking decisions not just based on exactly the input we
give them but also by combining the knowledge they have in order to create new
knowledge. Even enthusiasts in the AI community recognise that systems of AI
cannot be introduced unchecked into society, but that possible dangers need to
be considered (Yampolskiy, 2012). The dangers should be seen in the context of
the kind of impact that AI can have—not just linked to some very specific task.
In law, our tools are conceptual rather than technical. Indeed, the idea of
conceptual tools can be of assistance to make sense of technology neutrality in
regulation and discourse. Our legal understanding of what conceptual tools to
use can be usefully re-exported to the disciplines from which we took the idea
of talking about tools in the first place. A conceptual tool is a way to formulate
3
	 Especially for telecommunications and especially in the European Union (Communication
COM(1999) 539). It was incorporated into the 2002 so-called telecommunications
regulatory package, reformed in 2009. It may, however, not always be well
understood.
4
	 This can entail considerations like: “The participants did not have an official single
view on the issues raised in the public consultation. They mainly raised the need to
further assess to which extent price differentials stem from national specificities or
from the inconsistent application of costing methodologies and emphasised that any
proposed costing methodology should respect the principle of technological neutrality
and avoid promoting a particular network roll-out” (Commission Staff Working
Document SWD (2013) 329 final, p. 21).
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The European Union Digital Single Market—Challenges
and Impact for the EU Neighbourhood States
Baltic Journal of European Studies
Tallinn University of Technology (ISSN 2228-0588), Vol. 8, No. 2 (25)
a mechanism to solve problems, to discuss matters. It focuses on outcomes and
adapts to the circumstances and environment it is in. Todorov nicely explains
why new terms and concepts can be useful: “A new concept is justifiable when
it enlarges our understanding of the phenomena under investigation” (Todorov,
2006, p. 15). In the social sciences we create something that helps us systematise
and categorise information—the facts on which we apply the tool may change,
but the activity we perform is the same. This is the essence of technology
neutrality: you use tools to do something and it is not how you do it but the
result that you want to obtain that is the key.
One tool is link analysis—to visualise how parts of a legal system are connected.
This allows lawmakers to identify those parts of the legal system where the
smallest amount of change has the largest effect (Täks et al., 2014). This becomes
more and more important as society gets more complex as there is a real danger
of increase in the number of laws and rules—although fortunately legislators
have become aware of this risk and tend to try to counteract it (Mandelkern et al.,
2001). Any increases in the quantity of legislation creates costs for businesses
and individuals. The speed of technological change already causes costs for
updates and as regulation tends to lag behind technology anyway, extensive legal
changes would just add an avoidable layer of complication. Thus, identifying
“minimally disruptive” ways to change legislation can have serious gains. This,
according to researchers working on it for copyright reform, means either to
achieve substantive legal reform by changing only a small number of essential
laws or otherwise to limit changes by identifying suitable candidates for reform
that are minimally interlinked with the rest of the legal system (Täks et al.,
2014).
Such new approaches to law-making, if consistently adopted by the EU, could
provide a useful by-product of the digital single market to export, together with
substantive provisions on concrete market related issues. In fact, one important
way in which the EU digital single market can influence the neighbouring states
is not the concrete rules, as these, in any event, must remain flexible to meet the
challenge of new technologies, but it is the manner that rulemaking can occur
in the new environment. EU itself is still struggling with the challenge of how
to best adapt not just regulation but the mindset of legislators, regulators and
market participants to the digital reality, but it has nevertheless made progress
on many issues in recent years and thus can provide useful inspiration to others,
like the Neighbourhood states.
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Katrin Nyman-Metcalf
Ioannis F. Papageorgiou
Baltic Journal of European Studies
Tallinn University of Technology (ISSN 2228-0588), Vol. 8, No. 2 (25)
3.	The creation of a digital single market
This article does not purport to describe or analyse the digital single market in all
its complexity; rather, the brief introduction to its creation serves to support the
main theme of the influence the EU rules have on countries in its Neighbourhood
as far as the digital market is concerned. The issues need to be seen from a
more direct and practical angle—what policies of the EU actually influence the
activities of neighbourhood states?—and a larger, more fundamental one—how
has the new reality we describe above shaped not just EU rulemaking but also
its ability to have an effect outside of the EU? This section outlines the direct
efforts in the form of new rules and instruments that the EU has adopted and that
are or will be of importance also outside of its borders.
The digital single market has been described as a market where free movement
of goods, persons, services and capital is ensured, and individuals and businesses
can seamlessly access and exercise online activities under conditions of fair
competition, high level of consumer and personal data protection, irrespective
of their nationality or place of residence. The task for regulation is to enable
the single market to operate in the digital world like in the analogue one.
This includes better access for consumers and businesses to online goods and
services across Europe, conditions for digital networks and services to flourish
and maximise the growth potential of the European digital economy (European
Commission, 2015).
The subject of digital single market includes a variety of different issues, of
which some are general and need to be addressed in various ways, with different
instruments. Ensuring free flow of data is a fundamental issue.Another key issue
is the question of the uncertain jurisdiction and what can be done to determine
which country is in charge and has a real ability to enforce decisions. This is
linked with managing the liability issue in a system of convergence of roles,
which has led to rules on whether internet service providers should be seen as
caching, hosting or acting as a mere conduit for information. Furthermore, efforts
are needed to facilitate e-commerce by addressing the existing fragmentation
and barriers for the digital single market, such as unjustified geo-blocking.
In recent years, the EU has given considerable priority to digital issues at many
different levels and in several areas. In 2014, in his political guidelines before
the European Parliament, President of the European Commission Jean-Claude
Juncker stated that a connected digital single market should be a priority for
Europe, and such a market would generate up to 250 billion euros of additional
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The European Union Digital Single Market—Challenges
and Impact for the EU Neighbourhood States
Baltic Journal of European Studies
Tallinn University of Technology (ISSN 2228-0588), Vol. 8, No. 2 (25)
growth (Juncker, 2014). This intention materialised in the Digital Single Market
Strategy for Europe established one year later. In May 2017, the mid-term review
of the Strategy concluded that important steps had been taken turning political
commitments into realities (European Commission, 2017) (like the adoption of
a Directive on Security of Network and Information Systems (Directive (EU)
2016/1148), and the adoption of the General Data Protection Regulation).
The Estonian EU Presidency in the second half of 2017 emphasised the digital
single market and various related digital issues, such as a declaration and roadmap
on development of 5G infrastructure for mobile communications, which is
essential for connected devices, so-called internet of things; an e-Governance
Declaration; and a cyber security package. One key idea promoted by the
Estonian Presidency was that free movement of data should be seen as a fifth
freedom for the EU, in addition to the freedoms of goods, services, persons and
capital. However, this idea did not lead to any concrete legislative or similar
initiatives (EU, 2017).
Among the most noticeable successes of the EU digital single market, if
measured in the specific implications for Member States as well as third
countries, are the Regulation (EU) 910/2014 on Electronic Identities and the
GDPR. The establishment of an understanding of the various roles of internet
service providers (Directive 2000/31/EC, Art. 12 & 14) may also be added to
this list of concrete, noticeable measures, shaping the regulatory environment
not just in the EU. Another result is the adoption in the spring of 2018 of the
Regulation (EU) 2018/644 on Cross-Border Delivery Services. The Regulation
makes prices for cross-border parcel delivery services more transparent and
affordable and increases regulatory oversight of the EU parcel market. This
is essential for e-commerce. The problems with parcel delivery have been
regarded as an important discouraging factor for consumers contemplating
using e-commerce from other Member States. The Regulation should allow
consumers and companies (including SMEs), to buy and sell products and
services online more easily. The Regulation is the third pillar of EU’s efforts
to boost e-commerce together with Regulation (EU) 2018/302 addressing
unjustified geo-blocking and other forms of discrimination based on customers’
nationality, place of residence or place of establishment as well as enhanced
rules on consumer protection provisions.
The EU has furthermore been quite successful as far as start-ups and innovative
companies are concerned, even if this varies quite a lot between Member States.
The creation of the digital single market includes creation of a clear and stable legal
environment to stimulate innovation, tackle market fragmentation and provide fair
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Katrin Nyman-Metcalf
Ioannis F. Papageorgiou
Baltic Journal of European Studies
Tallinn University of Technology (ISSN 2228-0588), Vol. 8, No. 2 (25)
and balanced conditions (Communication COM(2017) 228 final, p. 3). The digital
single market is not just a collection of rules on technical—digital—matters, but
rather a context for new technologies. Many of the concrete results of recent
efforts will only be fully known in some years’ time. For instance, the rules
on geo-blocking will be evaluated within two years after their entry into force
to determine what actual results have been achieved for electronically supplied
services using copyrighted content (downloadable music, e-books, software,
online games) and for services, for example, in the audio-visual sector.
4.	Neighbourhood states and the digital single market
The European Neighbourhood Policy (ENP) was established in 2004, aiming
to be a framework for the relations between the EU and its eastern and
southern neighbours. The general purpose was to achieve the closest possible
political association and the greatest possible degree of economic integration
(COM(2003) 104 final). This policy has been revised several times (most recently
in November 2015), focusing on differentiation among partner countries in
order to provide adequate flexibility and enhanced sharing of responsibility. In
support of its partners, the European Neighbourhood Instrument (ENI) is funded
with 15 billion euros in the period 2014–2020 (EU Neighbours, 2017). Georgia
is a long-time partner of the ENP and the two sides have signed an Association
Agreement, which entered into force on 1 July 2016, to be complemented by
a Deep and Comprehensive Free Trade Area Agreement. The EU is Georgia’s
most important trading partner, which means that around 29% of the total foreign
trade of Georgia is with the EU (European Commission, 2015).
As described above, the digital single market is evidently imposing obligations
and establishing rights within the EU. However, its impact is felt even outside,
either through the required harmonisation in order to continue trade relations,
or domestically, through enhancing positive elements of e-governance and
avoiding negative effects of insufficient regulatory and other adaptation to
the digital society. EU support has led to some successes, for example in the
area of e-Governance where Georgian reforms—supported by an EU twinning
project—have been used as models for the region (DEA, 2018).
As far as the external implications are concerned, it is a well-known fact that
the effect of harmonisation through the relationships that EU is forming with
countriessuchastheENPstates,entailsamorewidespread“soft”Europeanisation
in addition to that which has to be harmonised for specific reasons. Grabbe
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The European Union Digital Single Market—Challenges
and Impact for the EU Neighbourhood States
Baltic Journal of European Studies
Tallinn University of Technology (ISSN 2228-0588), Vol. 8, No. 2 (25)
says that when European norms have become so embedded in national policy
frameworks, policy-making structures and discourse that people stop referring
to “EU policies” is when the process has been really successful (Grabbe, 2006,
p. 205). However, policy transfers from one country—or organisation, collection
of countries—to others require a clear and well-stated policy, as otherwise
there may be problems of diffuseness raising the question what it actually is
that should be done in order to implement the “imported” policy. The EU has
been criticised for its lack of clear institutional templates or inconsistencies in
advice on how to implement the EU acquis. Grabbe mentions as an example the
difficulties for candidate states to implement the acquis related to the Schengen
area, as this was in a process of important change at the same time (Grabbe,
2006, p. 188). In the fast-moving and complex world of digital technologies,
such weaknesses can be exacerbated. The EU has been known to avoid strategic
decision-making, as a consequence of its nature as a body that incorporates
compromises between Member States in its decision-making process. This is a
source of uncertainty for its policy transfer. The EU has often been criticised for
being unable to exercise the full potential of its ability to shape public policy
(Grabbe, 2006, pp. 199–200).
Despite EU having had to surmount various crises, the attraction of the EU for
potential members as well as other states, especially in the Neighbourhood,
remains important. For the ENP partners, the chance to align oneself with the
EU is a clear way to show aspirations to be part of the civilised club of nations
(Patalakh, 2017, p. 151). As pointed out in Section 2 above, what internet brings
to society is something that goes far beyond new ways of communication,
simplifying trade or providing new ways to buy goods and services. The
increasing digitalisation affects most areas of society. Not least does it entail,
or perhaps rather “should entail”, changes in the legal and regulatory sphere, as
the development has not kept pace with technological progress. Rulemaking in
the “digital world” differs from traditional methods in several ways. If a state
or an organisation, such as the EU, wishes to be leader in regulatory activities
for the digital environment, it needs to be well aware of the new challenges for
how rules are to be made. The environment for both making rules and applying
them has become interdisciplinary.
Most ENP-related agreements are linked with traditional trade issues. Digital
aspects are too new to form an important part of ENP interest. Also, these
policies are still being shaped within the EU, which consequently is less prone
to introduce them to other states. However, developments are fast, and the
situation changes by the day. As GDPR has shown, developments in the digital
sphere affect important traditional trade issues for third countries, not least the
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Katrin Nyman-Metcalf
Ioannis F. Papageorgiou
Baltic Journal of European Studies
Tallinn University of Technology (ISSN 2228-0588), Vol. 8, No. 2 (25)
Neighbourhood states. The fact that the EU’s message on the finer details and
the workings of the digital single market appears less clear and distinct than
on traditional trade issues does not mean that it is any less important for ENP
states. Quite the opposite—this is an area where countries with relations with
the EU have a good opportunity to play an important part from the start of the
development of essential new policies.
5.	Conclusions
The digital single market is an internal process of the EU with huge implications
within and without its territory. However, as it is often stated, the digital world is
characterised as a world without borders, without regard to territory and distances.
As such, the impact of relevant policies of the EU is diffused everywhere. Such
impact is felt the more, the bigger trade relationships there are between the state
in question and the EU. Georgia as well as other Neighbourhood Policy partners
invest a lot in increasing all aspects of their relationship with the EU in view of
a possible future membership. Although the content of the agreements between
the EU and Neighbourhood Policy partners focuses mostly on physical goods
and services, digitalisation has implications on regulatory and political aspects,
which should be dealt with in anticipation before issues arise that may directly
harm the trade relationship.
We have pointed out the manifold ways in which the digital society differs
qualitatively from other forms of the single market. The digital single market
entails not just the need for harmonisation with certain specific regulations,
although this is important as well, notably with the GDPR. In addition,
rulemaking and enforcement activities need to understand and be open to
challenges of the “borderless” market. At the same time, this should not be seen
as something negative: countries can make use of positive aspects of the absence
of physical borders. A close digital harmonisation may be a shortcut to even
closer cooperation and could help prevent potential hick-ups. Consequently, the
Neighbourhood states should pay close attention to the digital developments in
the EU. This attention should be up-stream as well as down-stream: Up-stream,
the institutional structures of the association agreement could be the podium for
Georgia’s expression of its priorities, worries and interests, already while the EU
is shaping its relevant policies. Obviously, the impact of its voice is limited, but
nevertheless it can be used in order to express the country’s position and fears
throughout the evolution of new rules. The fast-moving and constantly evolving
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The European Union Digital Single Market—Challenges
and Impact for the EU Neighbourhood States
Baltic Journal of European Studies
Tallinn University of Technology (ISSN 2228-0588), Vol. 8, No. 2 (25)
nature of the digital society in general means that, in fact, any country—even
smaller ones—can manage to get attention for their ideas, given that the quality
of the comments and ideas is good and demonstrates expertise and genuine
interest in the matter in question. The impact of Estonian ideas on digital matters
within the EU is an illustration of this. Georgia should consider if and how it has
potential to become a digital leader among the Neighbourhood Policy partners.
Increased attention to the issue in higher education would be one important step
in this direction.
Down-stream, Georgia is in the midst of a formidable task of adjusting its
legislation sufficiently to the digital market requirements of the EU, both to avoid
possible obstruction of trade and to enhance a soft of form Europeanisation in its
regulatory and legislative systems. As discussed above, the digital single market
should not only be viewed as a trade-related issue. Georgia should grasp the
opportunity to use digital developments in order to improve societal issues, like
combatting corruption, improving transparency and accountability as well as
enhancing protection of personal data. The challenges and opportunities provided
by e-Governance for better law-making and improvement of the quality of the
society are perhaps the best aspects of this form of Europeanisation, constantly
enhanced as the digital single market develops. Georgia should not lose this
opportunity.
Katrin Nyman-Metcalf is a adjunct  professor specialising in Law and Technology at
Tallinn University of Technology, Estonia, and programme director of Research and Legal
Aspects of the Estonian e-Governance Academy. For the past 20 years, she has been
active globally as consultant primarily in the area of communications law in the broad
sense, including ICT regulation, privacy and data protection, media law, e-governance
and cyber issues. She has worked in more than 50 countries, including post-conflict and
developing states, with legal analysis and drafting, professional training and creation of
regulatory authorities. Her PhD (Uppsala University, 1999) is on the law of outer space and
she is Chairman of the International Relations Committee of the European Space Agency.
Ioannis Papageorgiou is an associate professor at the School of Political Sciences of the
Aristotle University of Thessaloniki, Greece, teaching the history of European integration,
EU’s political system and comparative politics. He is a lawyer and political scientist (degree
in law from the University of Athens, MA in comparative politics from the University of
Paris I and MAin development cooperation from the Université Libre de Bruxelles). His PhD
(2001) from the ULB dealt with regional integration in Central America. Papageorgiou has
also worked as an independent expert in several international projects with accession
countries in the areas of migration and asylum since 2003. During the Cyprus Presidency
of the Council of the EU in 2012, he acted as the Chair of the Asylum Working Party
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Katrin Nyman-Metcalf
Ioannis F. Papageorgiou
Baltic Journal of European Studies
Tallinn University of Technology (ISSN 2228-0588), Vol. 8, No. 2 (25)
in the Council of Ministers of the EU. Between 2016 and 2017 he worked in the Policy
Department for Citizens’ Rights and Constitutional Affairs of the European Parliament in
Brussels, dealing with the institutional aspects of Brexit and on issues of civil liberties.
His academic research covers issues of European integration, other regional integration
processes, the role of regional courts in international democracy, immigration policy and
international humanitarian and refugee law.
References
Caliskan, E. & Peterson, R. (2013), ‘Technical defence methods, tools, techniques
and effects,’ in K. Ziolkowski (ed.) Peacetime Regime for State Activities in
Cyberspace, Tallinn: NATO Cooperative Cyber Defence Centre of Excellence,
pp. 61–101.
CEN (2018), ‘Supporting Public Policies and Legislation: New Approach and other
Directives,’ CEN, European Committee for Standardization. Retrieved from
https://www.cen.eu/work/supportLegislation/Directives/Pages/default.aspx
[accessed 19 Jul 2018]
Commission Staff Working Document SWD(2013) 329 final: Impact Assessment,
Accompanying the document Commission Recommendation on consistent nondiscrimination
obligations and costing methodologies to promote competition and
enhance the broadband investment environment, 11.9.2013.
Communication COM(2017) 228 final from the Commission to the Council, the
European Economic and Social Committee and the Committee of the Regions on
the Mid-Term Review on the implementation of the Digital Single Market Strategy
“A Connected Digital Single Market for All”, 10.5.2017.
Communication COM(2003) 104 final from the Commission to the Council and the
European Parliament “Wider Europe — Neighbourhood: A New Framework for
Relations with our Eastern and Southern Neighbours”, 11.3.2003.
Communication COM(1999) 539 from the Commission to the Council, the European
Parliament, the Economic and Social Committee and the Committee of the Regions,
“Towards a new framework for Electronic Communications infrastructure and
associated services”, The 1999 Communications Review, 10.11.1999.
Communication COM(2015) 192 final from the Commission to the European Parliament,
the Council, the European Economic and Social Committee and the Committee of
the Regions “A Digital Single Market Strategy for Europe”, 6.5.2015.
DEA (2018), ‘Georgian reforms in e-Governance have been presented as an example
of success at the international conference,’ Data Exchange Agency, 5 April.
Retrieved from http://www.dea.gov.ge/?action=news&news_id=131&lang=eng
[accessed 19 Jul 2018]
Unauthentifiziert | Heruntergeladen 17.02.20 20:18 UTC
21
The European Union Digital Single Market—Challenges
and Impact for the EU Neighbourhood States
Baltic Journal of European Studies
Tallinn University of Technology (ISSN 2228-0588), Vol. 8, No. 2 (25)
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000
on certain legal aspects of information society services, in particular electronic
commerce, in the Internal Market (‘Directive on electronic commerce’),
OJ L 178, 17.7.2000.
Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July
2016 concerning measures for a high common level of security of network and
information systems across the Union, OJ L 194, 19.7.2016.
Duvivier, K. K. (2013), ‘E-Legislating,’ Oregon Law Review, vol. 92, no. 9. 	
https:// doi.org/10.2139/ssrn.2230124.
Dutt, P. & Kerikmäe, T. (2014), ‘Concepts and ProblemsAssociated with eDemocracy,’
in T. Kerikmäe (ed.) Regulating eTechnologies in the European Union, Cham:
Springer International Publishing, pp. 285–324.
EPRS (2014), The Cost of Non-Europe in the Single Market: Study, Brussels: European
Parliament Research Service, PE510.981. https://doi.org10.2861/57536
EU (2017), ‘Summary of the Estonian Presidency of the Council of the European Union,’
Eu2017.ee. Retrieved from https://www.eu2017.ee/node/5392.html [accessed 19
Jul 2018]
EU Neighbours (2017), ‘The European Neighbourhood Instrument (ENI), EU: A major
donor.’ Retrieved from https://www.euneighbours.eu/en/policy/europeanneighbourhood-instrument-eni#donor
[accessed Oct 2018]
European Commission (2015), EU-Georgia Trade Deep and Comprehensive Free
Trade Area (DCFTA) Factsheet:  Reforms that benefit people and business.
Retrieved from http://trade.ec.europa.eu/doclib/docs/2015/may/tradoc_153435.
pdf [accessed Oct 2018]
European Commission (2017), ‘Digital Single Market Strategy: – mid-term review.’
Retrieved from https://eur-lex.europa.eu/content/news/digital_market.html
[accessed 19 Jul 2018]
Foo, Y. C. (2018), ‘Europe hits Google with record $5 billion antitrust fine, appeal
ahead,’ Reuters Business News, 18 July. Retrieved from https://www.reuters.com/
article/us-eu-google-antitrust/europe-hits-google-with-record-5-billion-antitrustfine-appeal-ahead-idUSKBN1K80U8
[accessed 19 Jul 2018]
Geiss, R. & Lahmann, H. (2013), ‘Freedom and security in cyberspace: The focus
away from military responses toward non-forcible countermeasures and collective
threat-prevention,’ in K. Ziolkowski (ed.) Peacetime Regime for State Activities
in Cyberspace, Tallinn: NATO Cooperative Cyber Defence Centre of Excellence,
pp. 621–658.
Grabbe, H. (2006), The EU’s Transformative Power: Europeanization through
Conditionality in Central and Eastern Europe, London: Palgrave MacMillan.
https://doi.org/10.1057/9780230510302
Unauthentifiziert | Heruntergeladen 17.02.20 20:18 UTC
22
Katrin Nyman-Metcalf
Ioannis F. Papageorgiou
Baltic Journal of European Studies
Tallinn University of Technology (ISSN 2228-0588), Vol. 8, No. 2 (25)
Horvathy, B. (2017), ‘Value promotion and Europeanisation by EU trade agreements,’
Bratislava Law Review, vol. 1/2017, pp. 84–94.
Juncker, J.-C. (2014), A New Start for Europe: My Agenda for Jobs, Growth, Fairness
and Democratic Change, Political Guidelines for the next European Commission,
Opening Statement in the European Parliament Plenary Session, 15 July. Retrieved
from https://ec.europa.eu/commission/sites/beta-political/files/juncker-politicalguidelines-speech_en.pdf
[accessed 19 Jul 2018]
Kamecke, U. & Körber, T. (2008), ‘Technological neutrality in the EC regulatory
framework for electronic communications: a good principle widely misunderstood,’
European Competition Law Review Issue, no. 5, pp. 330–337.
Mandelkern, D. et al. (2001), Mandelkern Group on Better Regulation: Final Report,
Brussels, 13.11.2001.
Morgan, B. & Yeung, K. (2007), An Introduction to Law and Regulation, Cambridge:
Cambridge University Press. https://doi.org/10.1017/CBO9780511801112
Nyman Metcalf, K. (2014), ‘E-Governance in law and by law: the legal framework of
e-governance,’ in T. Kerikmäe (ed.) Regulating eTechnologies in the European
Union, Cham: Springer International Verlag, pp. 37–51.
Nyman Metcalf, K. (2018, forthcoming), ‘The role of research for secure digitalisation,’
in Law and Informatics Nordic Yearbook.
Nyman Metcalf, K. & Täks, E. (2013), ‘Simplifying the law – can ICT help us?’
International Journal of Law and Information Technology, vol. 21, no. 3, pp. 239–268.
https://doi.org/10.1093/ijlit/eat003
Patalakh, A. (2017), ‘EU soft power in the Eastern Neighbourhood and the Western
Balkans in the context of crises,’ Baltic Journal of European Studies, vol. 7, no. 2
(23), pp. 148–167. https://doi.org/10.1515/bjes-2017-0014
Regulation (EU) 910/2014 of the European Parliament and of the Council of 23 July
2014 on electronic identification and trust services for electronic transactions in
the internal market and repealing Directive 1999/93/EC, OJ, L 257/73, 28.8.2014.
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April
2016 on the protection of natural persons with regard to the processing of personal
data and on the free movement of such data, and repealing Directive 95/46/EC
(General Data Protection Regulation), OJ L 119, 4.5.2016.
Regulation (EU) 2018/302 of the European Parliament and of the Council of 28 February
2018 on addressing unjustified geo-blocking and other forms of discrimination
based on customers’ nationality, place of residence or place of establishment
within the internal market and amending Regulations (EC) No 2006/2004 and
(EU) 2017/2394 and Directive 2009/22/EC, OJ L 60I, 2.3.2018.
Regulation (EU) 2018/644 of the European Parliament and of the Council of 18 April
2018 on cross-border parcel delivery services, OJ L 112, 2.5.2018.
Unauthentifiziert | Heruntergeladen 17.02.20 20:18 UTC
23
The European Union Digital Single Market—Challenges
and Impact for the EU Neighbourhood States
Baltic Journal of European Studies
Tallinn University of Technology (ISSN 2228-0588), Vol. 8, No. 2 (25)
Täks, E.; Rull, A.; Säär, A. & Schafer, B. (2014), Report on a Computer Assisted
Copyright Reform Observatory CREATe Working Paper, 2014/11. Retrieved
from https://zenodo.org/record/12431/files/CREATe-Working-Paper-2014-11.pdf
[accessed 19 Jul 2018]. https://doi.org/10.5281/zenodo.12431
Todorov, J. C. (2006), ‘The metacontingency as a conceptual tool,’Behavior and Social
Issues, vol. 15, no. 1, pp. 92–94. https://doi.org/10.5210/bsi.v15i1.347
Yampolskiy, R. V. (2012), ‘AI-complete CAPTCHAs as zero knowledge proofs of
access to an artificially intelligent system,’ ISRN Artificial Intelligence, vol. 2012.
http://doi.org/10.5402/2012/271878
.
Unauthentifiziert | Heruntergeladen 17.02.20 20:18 UTC