Conference Agenda

The concept of policy style provides a useful lens through which policy divergence between the UK and EU can be understood. In initial studies on Germany, France and the UK, national jurisdictions were theorised to have developed distinct policy styles identified as rationalist consensus, concertation and Westminster (Richardson, 1982). This framework has since been expanded to encompass additional states (Tosun and Howlett, 2022). Zahariadis et al. further extended the framework, moving beyond policymaking to include regulation and administrative traditions (2021:47).

Essentially, policy style addresses how decisions are made, the involvement of various actors in decision-making, and how problems are approached within different institutional contexts. Richardson theorised that France, the Netherlands, Norway, Sweden, and the UK had tendencies towards either anticipatory or reactive decision-making (1982). He also examined whether decision-making was conducted through consensus-based bargaining through organised societal actors or by imposed top-down by governments. According to this framework, Germany is characterised by a 'rationalist consensus' style (anticipatory and consensual), the UK follows a 'negotiation' style (reactive and consensual), France adopts a 'concertation' style (anticipatory and impositional), and the Netherlands is marked by a 'negotiation and conflict' style (reactive and consensual within a transitional model).

Post-Brexit, the EU has witnessed a growing EU reliance on protectionist policies within its digital market strategy increasingly reflecting a blend of French and German policy approaches to digital market regulation. (Farrand and Carrapico, 2022:446). These include trade restrictions, investment screening, and standardisation requirements, as well as limitations on foreign investment, measures such as export controls, foreign direct investment (FDI) screening, and e-privacy regulations that limit the participation of non-EU firms in European digital supply chains (Akcali Gur, 2022: 6 - 9).

The UK instead favours trade openness and the liberalisation of data flows across borders which is evident in the Media Act, proposed Data (Use and Access) Bill, Online Safety Act, and emerging discussions surrounding AI regulation. The UK has focused on creating an adaptable regulatory framework that evolves alongside technological advancements and market shifts involving greater stakeholder involvement. This is reflected for example in the Digital Markets Unit (DMU)’s approach to increasing the use of AI.

We explain regulatory divergence between the EU and UK taking policy style as an explanatory tool. The new Labour government has marked a return to the UK’s reactive and consensual policy style. The EU is demonstrating mix of German 'rationalist consensus' and French 'concertation' styles.

This paper offers a fresh perspective on the challenge of regulating dark patterns in the EU. Dark patterns are harmful design practices in online choice environments, now ubiquitous among businesses of all sizes. Common examples include fake countdown timers that create urgency, repeated requests prompting users to make decisions (nagging), difficult cancellation procedures (subscription traps), default settings designed to maximise personal data collection and drip pricing. A 2022 European Commission study alarmingly revealed that 97% of popular websites and apps used by EU consumers employed at least one dark pattern.

The EU’s digital rulebook is at the forefront of efforts to address and regulate dark patterns. It is recognised that dark patterns typically work by exploiting consumer behavioural biases. Reflecting this insight, the EU’s digital rulebook—along with the European Commission’s New Consumer Agenda (2020) and the Fitness Check of EU Consumer Law on Digital Fairness (2024)—contains explicit references to consumer biases and nudging. These references confirm that the EU’s digital rulebook is underpinned by behavioural insights. They also imply that behavioural law & economics is used as an analytical framework to incorporate behavioural insights into the design, interpretation and enforcement of dark pattern regulation.

Even though the EU’s approach to regulating dark patterns appears rooted in behavioural economics, its digital rulebook also adopts autonomy as a normative lens for assessing dark patterns. This treats dark patterns as specific cases of autonomy violations, independent of welfare considerations. On the one hand, I argue that blending elements of behavioural law & economics with autonomy theory in EU digital policy is fundamentally flawed, since key aspects of behavioural law & economics are incompatible with autonomy theory. On the other hand, the issue with grounding the regulation of dark patterns in autonomy theory is the lack of a behaviourally informed conception of autonomy for legal purposes. Traditional autonomy theory is often criticised for presupposing a highly idealized version of human decision-making that overlooks lived realities, where decisions are made with limited information and limited mental bandwidth. In response to this tension, I develop a behaviourally informed conception of autonomy that is better suited for legal and regulatory contexts. I demonstrate that the regulation of dark patterns in the EU’s digital rulebook is an application of this behaviourally informed autonomy theory. Finally, I show why specific dark patterns such as subscription traps and nagging violate consumer autonomy and warrant regulation.

A judicialised understanding of borders, regulation and social media focussing upon caselaw and courts is argued not to be accurate with Big Tech’s engagement with EU law. As a key example of global governance, the transatlantic place in Big Tech has witnessed a vast array of actions that warrant better explanation than a series of caselaw emerging. The transatlantic consumer is often at the core of the place of lawyering, but not necessarily in the most direct way. The rules of contracts have become increasingly important in Big Tech- capable of being manipulated. A key issue further arising is also the transatlantic in the overarching rules, eg the spread of EU law often to the US, to California and its place in Big Tech’s operational models, provisions and rules. Other chapters outline jurisdictional powers and how Big Tech engages. Jurisdictional contest is another form of transatlantic lawyering that takes place, where the OOS is utilised by Big Tech in their favour, taking advantage of a light touch regulatory structure and low-level enforcement of EU law rules.

The aim of the presentation proposed is to study European regulations on the cross-border electronic exchange of data relating to civil judicial proceedings. To this end, the evolution of the European Area of Freedom, Security and Justice will be analysed, from the signing of the Maastricht Treaty in 1992 to the legislative efforts of recent years to strengthen judicial cooperation between Member States through the use of new technologies. Particular emphasis will be placed on Regulation (EU) 2022/850 of the European Parliament and of the Council of 30 May 2022 on a computerised system for the electronic cross-border exchange of data in the field of judicial cooperation in civil and criminal matters.

On the basis of Article 67(3) TFEU in general, and Article 81(1) TFEU in civil matters, the TFEU establishes that judicial cooperation must adhere to the principles of mutual recognition and legislative approximation. However, the creation of a genuine European procedural law is still a long way off, with the greatest efforts being directed not towards the establishment of single Community rules but, from a perspective that is perhaps less ambitious but certainly more respectful of the legal traditions of the Member States, towards the homogenisation of internal procedural legislation. The purpose of legislative approximation in civil procedural matters is to promote the mutual recognition of judgments given by the judicial authorities of one Member State which are to be enforced in the territory of another.

This is where the digitisation of justice has a fundamental role to play. In this respect, the European Union must promote the adaptation of national judicial systems to the new digital reality, encouraging cross-border judicial cooperation through the automation of procedures for the exchange of procedural data, the use of telematic communication techniques and the interoperability of the digital systems used by the judicial authorities of the Member States.