Image source: The Litigation Practice Group

Honesty is the Best Policy: Greenwashing in Europe

“100% organic,” “environmentally conscious,” and “eco-friendly” are some common labels stuck onto a wide range of products today, but just how accurate are these claims? A 2021 study by the International Consumer Protection Enforcement Network examined 500 company websites and reported that 40% presented misleading claims about product sustainability. In recent years, many companies have made false claims about the supposed environmental benefits of their products as a means of attracting consumer interest and increasing sales, a tactic also known as “greenwashing.” While greenwashing has been a marketing staple for years, consumers have begun calling out large companies for their deceptive marketing strategies. Volkswagen found itself at the center of a recent greenwashing scandal when it promoted its use of “clean diesel” but was later exposed for using a special device in its cars to cheat emission tests. 

This month, the European Union passed new legislation called the Sustainable Finance Disclosure Regulation (SFDR) to combat some of the rampant greenwashing that had previously gone unchecked at the governmental level. The SFDR is one of the first greenwashing bills to ever be passed in the EU, revealing the region’s newfound commitment to addressing environmental concerns. The regulation will roll out in stages with an ultimate goal of driving $1.19 trillion into green investments in the next ten years. The SFDR will require companies and other participants in the financial market to disclose information and proof to support any and all sustainability claims. Through such requirements, the EU intends to make it more difficult for corporations “following a purely financial, profit-led strategy” to promote a deceptive “green agenda,” says Neil Robinson, a financial services partner at the law firm Katten Muchin Rosenman. 

Beginning March 10, 2021, the first phase of the SFDR will require investment firms, management companies, and funds to begin labelling themselves as articles 9, 8, or 6. Article 9 indicates that a company is completely dedicated to sustainable objectives, while articles 8 and 6 mean some or no level of sustainable objectives, respectively. Those designating themselves as either article 8 or 9 must disclose specific plans for sustainability and publish information on their websites about how they calculate and incorporate sustainability risks into company decisions. While these disclosures are on a comply-or-explain basis, the SFDR expects that companies will cooperate to preserve their public image. 

The requirement to disclose sustainability goals will become more specific and demanding in 2022. The second round of the SFDR will request companies to provide detailed methods to achieving their sustainability goals as well as share the negative environmental impacts of their investment products, including CO2 emission and water usage data. Although these demands appear manageable on paper, they may be challenging to implement as sustainability-related data does not exist for many companies. Companies that do not have this data readily available may have to begin gathering it in order to meet the SFDR standards. This additional work has raised much controversy and opposition. Such concerns will have to be addressed as the EU continues to adjust and finalize the next steps of the SFDR.

The implementation of the SFDR goes beyond European borders and will also affect companies in the United States if they hope to continue selling products within the European Union. J.P. Morgan estimates that about $7 trillion worth of US investments will have to comply with the SFDR requirements. Some American companies remain hesitant to publicly disclose their sustainability data, and it is unknown how well-enforced the SFDR will be outside the EU. 

Despite posing considerable inconveniences for corporations, the SFDR ultimately serves a higher purpose of bettering the environment. The SFDR’s potential for environmental impact may initially be limited as it concentrates more heavily on improving the transparency of current corporate sustainability objectives rather than ordering any companies to actively begin environmental action. However, the SFDR hopes to enact a trickle-down effect that eventually increases the number of companies dedicated to sustainability. By requiring companies to provide accurate information about their sustainability plans, the SFDR allows investors to better take into account and judge the environmental factors of a company. Growing public interest in the environment can thus place companies without clear sustainability goals at a disadvantage, pressuring them to formulate their own environmentally-conscious goals in order to remain competitive in the financial market. 

With a lack of current green-washing legislation worldwide, the SFDR will serve as a precedent in showing other countries if and how governments can effectively curb green-washing. One international party particularly interested in the SFDR is the United States, as the U.S. Securities and Exchange Commission has already started seeking environment-related information from American companies and will likely look toward the SFDR’s successes and failures to help inform its plans. 

 

Erin is from Baltimore, Maryland studying Environmental Science and Policy. 

 

patents

A Unified Patent for Europe: Decades in the Making

Since 2016 there have been negotiations within the European Union (EU) concerning a radical change of the patent system in Europe. At the moment, companies and citizens can apply for either national patents within a single country, or for a bundled patent that spans multiple countries. The establishment of this Unified Patent Court (UPC) would eliminate both of those options in favor of a unitary patent across all member nations. This idea is popular among European nations, as the European Patent Convention, which has overseen the passing of international patents since 1973, began passing unitary European patents for the past seven years. This originally started as a way for the EU to reduce translation and litigation costs, but member states favored the unified enforcement process for its simplicity and effectiveness. Despite this favor, the European Council and European Parliament have faced a number of challenges in actually implementing the Unitary Patent and the Unitary Patent Court. The concept of a single European patent has been a topic of discussion for over three decades. Only recently has this concept become a solidified idea and have there been legitimate motions to implement the program.

Advantages of the Unitary Patent

The current patent structure in the EU is more of an intricately intertwined web than it is a cohesive system. Those who hold patents can have rights in any combination of the 28 member states. Given the immense number of patents and the amount of possible combinations, things get incredibly complicated. Considering the fact that the European Union is an economic bloc, it makes little sense that the patents are not granted across the whole EU. It would allow patent holders to have a wider geographical range of intellectual rights for a significantly lower cost than getting a patent in every single country individually. Both transaction costs and costs of the patent itself would be driven down, as patent holders would only have to go through one body to obtain one. At the moment European patents are 11 times more expensive than American patents and 13 times more expensive than Japanese patents because of the tangled bureaucratic system, but a unified patent court will almost certainly change that. Beyond just the transaction costs and wider spread of rights, this can allow the European Union’s economy catch up with the global economy. Patents are intrinsic in promoting growth, competition, and innovation, but the EU has significantly fewer patents than the leading nations. For instance, the United States granted 2 million patents in 2010 and Japan granted 1.4 million patents, which accounts for roughly half of all global patents in 2010. Meanwhile, the EU granted under 200,000. There is a lot of room for improvement, which would help the Eu’s stability and status as an economic force. Despite this, the Unified Patent Court is not in effect. There have been many challenges in recent years that have prevented its implementation, but the amalgamation of states remain hopeful that these challenges will be overcome.

Unitary Patent Challenges

Though there have been many minor setbacks in the attempt to establish a Unified Patent, the most publicized reasons for its not coming to fruition are Brexit, and Germany’s constitutional complaint. Britain’s decision to leave the European Union means that they are no longer bound by or party to the EU regulations, yet they remain a signatory to the Unified Patent Court Agreement, which is an international treaty dedicated to establishing the unified patent system. As the UK prepares to officially leave the EU, the question has arisen whether it can ratify this treaty as a non EU member. To further complicate things, the treaty is the treaty wishes to create a central court in London to oversee European patents, despite London being outside of the EU jurisdiction. Nevertheless, 16 nations ratified the treaty in 2018, enough that it is able to be established. Unfortunately getting enough signatories in 2018 was not enough for the Unified Patent Court, as the Federal Constitutional Court of Germany launched a constitutional complaint against the legislation enabling Germany to ratify the treaty in late 2018. This complaint is supposed to be presented to the courts in order for the nation to decide whether to ratify or not, but it seems that no progress has been made. Trying to create a body which agrees with the legislation of all EU member states has proved incredibly difficult, making the process of ratification long and tedious.

Unitary Patent Progress

Despite there being many setbacks to the implementation of a unitary patent, 2018 also brought with it many steps forward in the unitary patent project. To start, the Italian government approved a bill which is aimed at adapting Italian patent law to fit the UPC. With the current system in Italy a European patent is valid in Italy once an Italian translation of the patent has been filed in the country within three months of the patent grant. However, there is no guarantee that a unitary patent will take fewer than three months, so the Italian government is making moves to change this rule. Another step forward is that Bulgaria ratified the Protocol on Provisional Application of the UPC Agreement, meaning that fewer than four ratifications are required now. Bulgaria was the tenth out of a necessary 13 states to ratify.

What Now?

A single patent court for the whole of Europe has been a dream of the EU’s for many decades. They have made significant steps in creating an official protocol and treaty that will allow it to be put into place. However, it will take potentially decades longer to see it fully implemented because there are so many individual governmental laws and procedures that have to be altered within each member state. It seems that the majority of governments are willing to make these changes. It is only a matter of waiting to see if Europe successfully implements their dream of a unified patent.

Eliza Farley is currently a freshman at Duke from New Canaan, Connecticut. She is studying economics and computer science.

The Aquarius in 2017

The African Refugee Crisis: Claiming Asylum in the European Union

This past summer, the Aquarius Migrant search and rescue ship run by Doctors Without Borders landed on Italy’s coast carrying 629 migrants. The migrants came from 26 countries in Africa, and includes 123 minors, 11 small children, and seven pregnant women. All of the migrants were rescued by the Aquarius from six boats that were overcrowded in the Mediterranean. Aquarius currently monitors the area between the coast of Libya and Italy, as many refugees coming from sub-Saharan Africa pass through Libya on their way to Italy.

Italy’s far-right Interior Minister, Matteo Salvini, refused the ship, saying “Rescuing lives is a duty, transforming Italy into an enormous refugee camp is not. Italy has stopped bowing its head and obeying.” Italy directed Aquarius towards Malta, claiming that the ship was closer to their coast. Malta also refused the ship, deferring responsibility back to Italy. After being stranded at sea for a week, Spain’s new socialist prime minister, Pedro Sanchez, finally welcomed the ship. “It is our duty to help avoid a humanitarian catastrophe and offer a safe port to these people, to comply with our human rights obligations,” President Sanchez said.

This reignited an ongoing debate about a country’s responsibility to give asylum to refugees. Africa, particularly the sub-Saharan region, hold over 26 percent of the world’s refugee population. Many seek refuge in Europe, but as the situation with the Aquarius ship demonstrates, there are still many systems in place that prevent them from seeking better lives. These systems include the process of migrating and the challenges refugees face once they reach a European country, such as receiving asylum, and coping with xenophobia and economic inequality.

Here’s what you need to know about the African refugee crisis.

Where most refugees are from:

Many sub-Saharan refugees seek asylum because of violence stemming from internal conflict. Those from Central African Republic escaped a civil war that has been going on since 2016, displacing over a million people. About 280,000 Somali immigrants live in Europe, largely due to the multiple civil wars the country experienced, including the current war between the Somali government and various opposition groups, such as al-Shabaab. Other regions that have produced asylum seekers because of internal conflict are the Democratic Republic of Congo, Chad, and Sudan.

In addition to conflict, economic instability is another primary motive for immigration. The average income in Africa is $2000, which is $1625 less than in other areas of the developing world. In the United Nations Development Programme which measures human development based on life expectancy, adult literacy, and purchasing power, Sub-Saharan Africa has 14 of the 17 refugee-producing countries in the bottom fifth of the index.

Their journeys to Europe

Like the sub-Saharan African refugees on the Aquarius, many sub-Saharan refugees go to Europe from Libya and cross the Mediterranean on overcrowded boats. They hire smugglers to get them through the Sahara desert to Libya, where many are subject to abuse by smugglers upon arrival. Sabha, a city in the south of Libya is filled with corpses from migrants who either were murdered or died from thirst and hunger. There is also the general fear of getting sold into a slave market in Libya, as displayed by videos of African refugees being sold in a slave auction in 2017. Many claim that European countries, such as Italy, is contributing to the abuse of the African refugees on their journey to Europe. Some critics of the European Union say that through tightening borders, the EU is ‘outsourcing’ responsibility to countries like Libya and Niger. However, Libya and Niger aren’t as well-resourced, and don’t have the same human rights standards as European countries, which puts refugees in danger.

European Union’s Policy on Asylum Seekers

The European Union currently has the Common European Asylum System, which states that migrants who qualify as refugees due to safety concerns may be granted asylum. Undocumented economic migrants, which are migrants who do not face an immediate threat of danger, are required by the EU to be deported to their country of origin. An immediate threat of danger is measured by whether a person, who is deported to their country of origin, will experience the same situation that they were escaping from. Many member states, such as Italy, have violated the Common European Asylum System, and abused the “Dublin” regulation, which states that EU member states can deport asylum seekers to their first country of entry. The “Dublin” regulation is controversial, especially among states that are common first points of entry, such as Greece.

In general, there aren’t many consequences by the European Union for when a country doesn’t follow the Common European Asylum System or international law. Italy violated the International Convention for the Safety Life at Sea, which states that any stress at distress in sea must be helped by the country it’s closest to, but didn’t received repercussions from the EU. Nor are there any consequences for countries, like Greece, where abuse of refugees persists.

Furthermore, the Common European Asylum System doesn’t have a clear set of regulations for how countries are supposed to treat asylum seekers. There has been more pressure in the past to make the regulations more specific to hold the countries more accountable. However, this remains incredibly controversial to countries that don’t want many refugees. In fact, the proposal for a set of new regulations in the Common European Union system has been noted as a primary motivation behind England’s Brexit. Nearly 75 percent of British people who voted in favor for Brexit, stated that immigration was the main factor in their decision.

The African refugee crisis does not seem to be ending anytime soon, as economic and political instability still persists in many parts of the continent. However, the mistreatment of refugees by the European Union doesn’t only apply to sub-Saharan African refugees, but also refugees coming from parts of the Arab world, such as Syria and Jordan.

The case with the Aquarius begs the question of how much power the European Union wields over member states. Do sovereign countries have a right to dictate who enters their borders, or do they relinquish that right when they become a part of the EU? Furthermore, who ought to be holding these smugglers, slave market organizers, and other abusers of refugees, accountable?

Nora Benmamoun is a first year undergraduate student from Champaign, Illinois and plans to major in psychology and public policy.

paris

France: Safe State or Police State?

Summary: France introduces new controversial terrorism bill but faces large resistance from European Union and human rights organizations.

On November 1st, French President Emmanuel Macron signed into law a controversial anti-terrorism bill that would make permanent some of the conditions that were enacted under the state of emergency declared by President François Hollande in 2015. The new bill allows police to search property, conduct interrogations, and make arrests, all without a warrant, should the police believe the suspects to be of a threat to national security. Prior to the declaration of the the state of emergency, such acts would have required approval from a judge.

Concerns have been raised by humans rights group from within and outside France. The groups are worried that the vague language of the bill — that allows law enforcement to close mosques that they accuse of preaching hate — will be used to discriminate against the Muslim people of France. Fionnuala Ní Aoláin, the United Nations special rapporteur on the protection of human rights while countering terrorism, said on September 22nd that the legislation offered only “vague definitions of terrorism and threats to national security” and exacerbated “concerns that the powers may be used in an arbitrary manner.” She is also worried that the bill removes judicial oversight of these programs, leaving them to do as they see fit. French political scientist, Patrick Weil, is most concerned about what the bill allows to be classified as probable cause. The vague language of “threat” has allowed police to classify a person’s immigrant status as enough to justify a stop-and-frisk type search.

This debate of security versus civil liberties always resurfaces during times of terrorism. The same discussion could be seen in Britain during the bombings carried out by the IRA and, most notably, in George Bush’s creation of the Patriot Act in the United States. The question focuses around whether the concession of certain liberties such as the right to due process is worth the criminals who may be caught by the tighter restrictions. Of the 3,600 raids conducted as of October 3rd, only eleven resulted in criminal proceedings. But is that the mark of an inefficient system or is it instead eleven more potential Nice or Paris attacks that are prevented?

The issue of security versus civil liberties seems to be an almost paradoxical one. Laws providing extraordinary power to government agencies in the name of security are often designed to protect the exact civil liberties they end up infringing. When a stop-and-frisk law is implemented, one of the original justifications is to protect people’s right to feel safe outside their homes. But this fails when people are now afraid to leave their homes due to fear they may discriminated against and harassed by the enforcement of this law. In the case of France, the police are now allowed to search people’s house without due process so everyone else can feel safe in their house. But if a person’s house could be raided by the police any time just based on suspicion, then people are not really safe in their houses anyway. If police can shut down places of worship so that other religions can feel safe practicing their right to freedom of religion, then freedom of religion does not really exist. Tom Mockaitis, a professor at DePaul University specializing in international security and counter-terrorism, pointed out that “freedom entails risk. North Korea has suffered no terrorist attacks, but no one wants to live there. Western Europe and the United States have been struck repeatedly, but they remain the destinations of choice for those fleeing oppression or seeking opportunity.” Somewhere in this debate, there is a happy medium that prevents terrorist attacks on innocent people but does not instill the same fear that the terrorists were attempting to do in the first place anyway.

As Europe continues to face an unprecedented rise in terrorism, conflicts between national attempts to combat these threats and the rules of the European Union are beginning to reach a boiling point. On November 7th, the European Court of Human Rights began hearing a UK surveillance case where eleven different human rights organizations claimed that the British government’s mass collection of civilian data in the name of security was an infringement of their right to privacy afforded to them as members of the European Union. Considering how vocal Macron has been about revisiting the terms and conditions of France’s role in the European Union, maybe the conflict over the implementation of these types of laws will be the final straw that initiates “Frexit.”

Hunter Snowden is a junior majoring in Political Science and Philosophy from Dallas, Texas.

catalan

Catalonia: Civil War or Legal Secession?

Summary: Catalonia is looking at the best opportunity for secession it has ever had but the Spanish government has deemed it unconstitutional.

On October 1, 2017, Catalans stared down armed national police and tear gas to take their first proper steps towards independence from Spain. Meeting large resistance from the federal government in Madrid, Catalonia held a referendum vote to decide whether or not they would remain part of Spain. Despite 90% of the votes cast being in favor of independence, the Spanish Prime Minister went on national TV later in the day to say that “no official referendum had been held” and that any attempt at a referendum was unconstitutional. Are the people of Catalan actually engaging in an act of state-sponsored resistance? If they are not, is this another piece of the plan of the Spanish government to hold onto a part of their country that constitutes over 20% of their national GDP?

To evaluate the legality of this move and the legal ramifications of it, one must first reflect on how the recent talks of independence began. When Spain transitioned from a monarchy to a democracy in 1978, its constitution established seventeen autonomous communities that self-govern. While still a unified state, Spain has decentralized certain national powers to the autonomous communities, the rights of which are outlined in the Statutes of Autonomy. In 2010, a large portion of the 2006 Statute of Autonomy of Catalonia, the statute that defined Catalonia as a ‘nation’ within Spain and provided the Generalitat of Catalonia with a stronger form of self-governance, was ruled unconstitutional by the Spanish High Court of Justice. The language of the High Court’s amendments greatly restricted the power of self-governance that the Spanish and Catalan government agreed upon; one of the most influential changes being that the High Court believed the Statue’s declaration of Catalonia as a ‘nation’ carried no legal value under the Spanish Constitution’s article that states the unity of the Spanish nation is indissoluble. In response, the Catalan population moved from calling for more autonomy to full independence. Over the next six years, Catalonia would hold four referendums to gauge interest in leaving Spain, each time showing an increase in support for the pro-secession side.  

Catalan independence has also created challenges for the European Union. Calls for their intervention in the Spanish government’s attempt to prevent the referendum vote have been made on the basis that their arrest of democratically elected officials, banning of political meetings, and raiding of private printing and mail services is a direct violation of the civil rights and freedoms of assembly, speech, and information outlined in the European Charter of Fundamental Rights. If the European Commission finds Spain guilty of these allegations, then Spain could face sanctions that could cripple their economy should Catalonia also gain its independence. The economy of Catalonia currently comprises 20% of Spain’s GDP but the abolishment of Spanish tax law within the region and full rollout of exclusively Catalan tax law would result in a €16 billion yearly increase for the region since Catalan money would no longer be going to the Spanish government. The European Union currently has no legal literature dictating who becomes responsible for a state’s debt in the case of secession so, considering the Spanish government is not willing to negotiate and the fact that there are no laws dictating the allocation of this debt either, it looks like the remainder of Spain may have to take on the entirety of the debt, something its debt-to-GDP ratio proves the Spanish economy would not survive. EU law requires a unanimous vote among its members to induct Catalonia into the Union itself, so accepting their portion of the debt may be Catalonia’s only way to win favor with Spain and its allies come time for such a vote.

The referendum of October 1st does not constitute actual independence in itself. And an official declaration of independence has to be voted upon by the Catalan government (which said they would do this within 48 hours of receiving a majority “yes” vote on the referendum). In response to the refusal of the Catalan president to back down, Prime Minister Mariano Rajoyhas called for the activation of Article 155 of Spain’s Constitution, an article that allows for the Spanish government to revoke all of Catalonia’s autonomy. Article 155, largely based on a similar Article in the constitution of then West Germany, allows the Spanish government to take control of one of the countries autonomous regions should it “fail to fulfill the obligations imposed upon it by the Constitution or other laws, or acts in a way seriously prejudicing the general interests of Spain.” The language of this article, which has never seen use in the forty years since the fall of Francis Franco, is vague at best and unenforceable at worst. The issue with the Spanish government’s potential use of this Article is that it requires them to outline instructions for how the seized region can return to autonomy. But considering the broad language of the Article and the refusal of the Catalan people to comply even in the face of potential civil war, it appears any plan recommended by the national government would fall on deaf ears and only be seen as further attempts to undermine their autonomy. Spain has no precedent for this type of case, especially on a constitutional scale. If the Catalan president continues to refuse to comply, the Spanish government has not been shy in saying that it will implement martial law in the region should it come to that.

Neither side seems to be budging. Should war break out, the situation could pose an interesting dilemma for the United States. The United States would have to choose between honoring its alliance with the Spanish government by coming to their aide in the suppression of Catalonia and supporting Catalonia in an attempt to further their stance as the global upholder of international democracy. This choice would only be made harder if either the United Nations or the European Union finds Spain guilty of human rights violations. The coming months could shape Spanish, Catalan, EU, and international law as the world potentially prepares to see its first new country since the creation of South Sudan in 2011. Should Catalonia prove successful, other regions in Spain and abroad may begin to follow suit.

 

Hunter Snowden is a Trinity junior majoring in Philosophy and Political Science from Dallas, Texas.