European Commission

Industry:	Government
Founded:	1958
Headquarters:	Brussels
Country:	Belgium
Employees:	25,000
Website:	ec.europa.eu
Facebook:	EC Facebook
LinkedIn:	EC LinkedIn
Twitter:	@EU_Commission
Key People
Jose Manuel Barroso, President

EC stands for the European Commission or the European Community. It is an executive body of the European Union, which proposes legislation to the Council and the Parliament and administers and implements legislative EU policies and enforces EU law jointly with the Court of Justice. It represents the general interests of Europe as a whole.

The European Commission is a member of the Governmental Advisory Committee (GAC) of ICANN. EC has always wanted ICANN to be more accountable to the international community and transparent in its policies. It also wants ICANN to involve governments in key public aspects of ICANN policy. The EC and ICANN are often in conflict over various issues, recent disagreements include trademark issues with regards to new gTLDs, the approval of .xxx, and the role of the GAC in objecting to ICANN policy. The EC also strongly supports the IGF.

History

The European Commission was created in 1957 by the Treaty of Rome. The first President of the Commission is Walter Hallstein. He had had two terms in the office from January, 1958 to June, 1967.

After Walter Hallstein, the Commission has seen 10 other Presidents. They are Jean Rey, Framco Malfatti, Sicco Mansholt, Francois-Xavier Ortoli, Roy Jenkins, Gaston Thorn, Jacques Delors, Jacques Santer, Romano Prodi and Jose Manuel Barroso (still in office).

Structure of the European Commission

The European Commission operates under a College of 27 Commissioners, one from each member country of the EU. The President of the European Commission is appointed by the European Council. The President and the Council together appoint the remaining 26 Commissioners. These 27 Commissioners as a single body are subject to a vote of approval by the European Parliament.

The Commission operates as a cabinet government and each of the Commissioner is assigned a portfolio. These Commissioners are supported by a staff of around 25,000 civil servants who work in various departments called Directorates-General. These DGs are classified based on the policies with which they deal, usually issues that have a specific mandate or are mostly administrative. For instance, creating statistics or to detect fraudulent activities.

Role of the European Commission

The EC is responsible for drafting proposals for new EU laws. It also manages the daily business of implementing the policies of the EU and allocates the EU funds. The EC also sees to it that no one violates European laws and treaties.

The working of European Commission

The EC is highly active and addresses all key issues concerning the European Union by formulating and bettering various policies in areas such as agriculture, transport, energy and natural resources, the economy and finances, external relations and foreign affairs, culture, education and youth, business, cross-cutting, climate action, and others.

Interest in ICT and Internet

The European Commission has major interest in ICT and the Internet. The organization has invested around €90 million in IPv6 research. The EC has also proposed a Critical Information Infrastructure Protection (CIIP) strategy to protect Europe from cyber attacks. The EC also has a digital agenda that focuses on seven key areas, which are:

• Creating a digital single market
• Improving ICT standards and interoperability
• Boosting internet trust and security
• Speeding up internet
• Investing more in research and development
• Enhancing digital literacy
• Applying information and communications technologies to address societal challenges

High Profile Cases

• European Commission undertakes anti-trust probe against Microsoft for tying of Internet Explorer to Windows.
• European Commission probes allegations of antitrust violations by Google on doubts that it has abused it's dominant position in online search.

European Commission and ICANN

Reactions to Internet Governance and Policy Issues

Generally speaking, it can be said that the EC has had a tense but changing relationship with ICANN. Earlier, it had supported moves to make ICANN more accountable to its stakeholders outside of the US Government; later, it wrote to the US Government asking it to intervene in decisions by the ICANN Board that it did not agree with. It still largely claims to support the multi-stakeholder model, though it seems to want a privileged control over final decisions. Its statements in the recent past have shown a deep passion for potential changes to the Internet and root zone, but a general disregard for previous debates and ICANN's traditional functions. Recently, they seem to be pushing for greater oversight over ICANN.

In 2005, during the World Summit on the Information Society, the EC sought to replace ICANN with an inter-governmental organization. The EC's desire for this level of government oversight of the Internet worried many of its member states and others in the International community. The Swedish Prime Minister famously objected, saying that the EC's plan would engender “enthusiastic applause from Tehran, Beijing and Havana”.

In 2009, with ICANN’s original U.S. led contract ending in September, the EC appealed for international involvement in carrying out ICANN's responsibilities. At that time, ICANN was more of a private firm that ultimately answered to the US Government's Department of Commerice. The EC explained that the management of the Internet, which had become a vital part of the global economy and tool for worldwide communications, should not be assigned to a single country.

In a 2009 paper entitled, "Internet Governance: Next Steps," the EU proposed that ICANN be handled by private bodies without any government intervention in its day-to-day activities, instead being governed according to the principles agreed upon by public authorities. The EC also called for international talks on Internet governance, realizing that the next billion Internet users would come mainly from the developing world.

On September 30th, 2009, the US government declared that ICANN would be governed by international parties. From then onwards, ICANN has been subject to independent review panels appointed by ICANN's Governmental Advisory Committee (GAC) and not solely to the review of US Department of Commerce (DOC). Viviane Reding, the EU's Commissioner for Information Society and Media, welcomed the US administration’s decision, and said that "Internet users around the world can now anticipate ICANN’s decision as more independent and accountable."

In 2009, when ICANN's Independent Review Panel found that it had violated its own rules by denying ICM Registry's proposal for management of the .xxx sTLD, the EC, under the leadership of Neelie Kroes, asked the U.S. government to effectively break its contract with ICANN by refusing to enter the extension into the root zone. They asked the US Government's authority over the root, the National Telecommunications and Information Administration, to delay implementation of the .xxx in the root after it was approved by the board at ICANN 40 in San Francisco. The letter was sent by Neelie Kroes to the US Secretary of Commerce before it was leaked into domaining news circles.

In 2011, Following advances by the ICANN Board on the issue of introducing new gTLDs, the Vice President of the EC, Neelie Kroes, issued a statement criticizing the organization for advancing despite objections by the EC and the GAC. In a speech to EuroDIG in 2011, Ms. Kroes paradoxically supported the multi-stakeholder model of ICANN, but also lamented the fact that ICANN was able to proceed with .xxx, and the new gTLD program despite objections from the GAC. She seems to want to put the GAC in a position of privilege with regards to other members of the multi-stakeholder ICANN process.

6 Policy Papers of 2011

At the end of August, 2011, Kieren McCarthy of .nxt leaked 6 papers written by the EC regarding their take on ICANN; the papers came on the heels of a number of brash encounters between the EC representative, Gerard de Graaf, and other ICANN participants at ICANN 41 in Singapore. His behavior had some wondering how well he was representing the entire membership of the European Union, and struck many as blatantly rude. At one point during the discussions between the GAC and the ICANN Board, Mr. de Graaf grew so frustrated that he was audibly pounding on the table and wondered aloud whether he was talking "to the deaf or stupid". The board was discussing how to handle trademark issues with regards to the new gTLD creation process, and Mr. De Graaf was frustrated that the E.U.'s trademark policy would not be implemented in this circumstance.

Most notably, the papers seem to propose subordinating ICANN as an entitled policy-making body. Many see the publication of the papers as a response to the aforementioned dismissal of GAC recommendations by the ICANN board at ICANN 41. The papers take issue with a range of ICANN decisions and policies; from how they staff the organization, to the new gTLD program, to their handling of ccTLDs; as a whole they have been taken as a full assault on the organization's independent legitimacy, and its multi-stakeholder model. It has been noted that this whole dialogue and line of argument is very much linked to previous talks related to the World Summit on the Information Society, at that fora the EC came under attack from its own members for supporting a level of oversight that would be more amenable to repressive regimes than democratic nations.

Just a few weeks later, in September, 2011, the EC publiclly commented on the "informal discussion papers". They claimed that they did not represent any power grab for control of the Internet, instead they reiterated their support for ICANN's multi-stakeholder model and said that the papers were merely discussion about how to improve its general functioning.

Paper 1: Applicable Law

The first paper deals with the board's 2011 decision in Singapore to move from a vertically separated registrar/registry model to one that allows competition in the new gTLD space through integration of the previously separated spheres. The EC does not seem to agree, or is not convinced, that competition will continue to be fostered to the highest degree possible; thus, they see the move as possibly in violation with a number of their own laws, and are generally dissatisfied with the board's decision to move ahead despite opposition from them and the GAC. The EC believes that businesses will now be in violation of certain anti-trust and other applicable laws, and consequently accuses ICANN of disregarding these laws. This paper can be read as a starting point for the EC's most recent frustration with ICANN, and its desire to pressure the U.S. Government to use its IANA contract with ICANN to force policy. This is due to the fact that both the EC and the USG contacted ICANN ahead of ICANN 41 in Singapore to pressure them to not remove the separation between registar and registry functions.

The first paper can be read here.

Milton Mueller has pointed to the fact that any company in a given jurisdiction traditionally must answer to that jurisdiction's law, regardless of the way ICANN decides to allow its regulations with international businesses to develop. Nigel Roberts agrees that the EC has the right to intervene should it decide that ICANN is preventing, restricting, or distorting competition in the single market; and he goes on to agree with the EC that ICANN likely is in breach of this fundamental principal of EC law. Another commentator, Kieren McCarthy, does not seem to weigh in on whether or not ICANN is actually breaching EC law, but bemoans the fact that this paper, and the collection of papers as a whole, basically signal a return to a political mindset prevalent during the World Summit on the Information Society. That is, during those meetings, which came to a head in 2005, the EC was paradoxically arguing for authoritarian control over the Internet, to the displeasure of some of its member states. Also, Milton Mueller believes that the EC misunderstanding the situation when it calls for review mechanisms to review all board decisions. In fact, ICANN does have an Independent Review Panel.

Paper 2: New gTLD Process

The second paper deals with the U.S. Government's recommendations regarding new gTLDs, the renewal of the IANA contract between the USG and ICANN, and the future role of the GAC in determining whether or not a proposed TLD has legitimate community support, and also that body's role in creating a block-list for names at the second-level. Basically, the EC seems to agree with a provision suggested by the U.S. Government, that would require all applicants to substantially prove that they have the backing of the community they claim to be serving through the proposed new extension, and they would like to see this clause added by the USG into the IANA contract. The EC further adds that an application should, ideally, not even be seen by them if it does not have verifiable backing from the outset. Essentially, they claim that it should be quickly verifiable if the extension is a legitimate addition to the root, and if it has a legitimate sponsoring community behind it, though they also seem to reserve the right to amend any initial ruling. Further protections sought by the EC in this paper include a type of universal blocked-list for names at the second level; this was preempted when ICM Registry asked the GAC for a list of names that it would like to reserve in the .xxx name space as culturally sensitive or otherwise improper for that name space. The EC sees it as time consuming to produce this list for every new domain, and instead would like the IANA contract to be amended to allow the GAC to create an authoritative master list of all second-level names that should not be allowed to be registered in any new TLD. The EC also bemoans the responsibility of determining when a proposed gTLD violates cultural or other sensitivities, given the extremely difficult nature of achieving international consensus on such issues.

The second paper can be read here.

Milton Mueller and others fear this paper has the elements to create a government backed entity that would take control over the root zone from ICANN. The fear is that under the guise of "public policy concerns" any country in the GAC could overturn the application of any new gTLD, thereby putting the expansion of the root zone at the whim of any repressive or fearful government. Concern is also raised over the politicizing of the IANA contract between ICANN and the US government, whereby governmental entities, including those outside of the US, increasingly see the contract as a bargaining point with ICANN. Another commentator, Nigel Roberts, points out that to create blocked lists for new gTLDs raises the question of why these lists have not been implemented in already existent spaces, including second level domains, such as .uk.com. Furthermore, the stance it is taking in its second paper arguably contradicts the EC's own charter with regards to freedom of expression.

Paper 3: Finances

The third paper sees the EC calling ICANN's marked growth in staff and revenue into question. They point out that over the past 5 years the expenses and revenue of ICANN have increased significantly, and they also noted that revenue is expected to at least double as ICANN begins accepting applications, and the fees involved, for new gTLDs. They claim that despite increases in revenue, staffing, and spending, that ICANN's mandate, jurisdiction, and responsibilities have largely remained unchanged. They see these problems as inherently tied to other governance issues, and call for an independent audit mechanism to be put in place. They cite their oversight of the non-profit European registry, EURid, as a potential example, and they encouraged ICANN to consider using surpluses to fund appropriate IT related organizations and Internet governance projects. They also question ICANN's general staffing practices.

The third paper can be read here.

Milton Mueller believes that their arguments are superficial at best, and demonstrate an ignorance of ongoing debates in ICANN circles related to financing, and also point to the EC's own exorbitant budget surpluses. It has also been noted that many ICANN community members have called into question the financing and staffing of the organization, and thus the EC is totally on-point to also voice its own concern. An important example of ICANN community members calling staffing issues into question took place at ICANN 40 in San Francisco. Maria Farrell, a former ICANN staff member, and Lesley Cowley, a long time participant and the CEO of Nominet, probed ICANN CEO Rod Beckstrom on his questionable staffing practices and lamented the turn-over of long-term, experienced staff members under his leadership.

Paper 4: Corporate Governance

The fourth paper takes on ICANN's lack of transparency in its dealing and rulings, it also offers solutions to problems of ethical neutrality with relation to board members. It is first noted that the work of ICANN's own Accountability and Transparency Review Team does not offer sufficient answers to the variety of problems at hand. They are particularly concerned about the neutrality of board members given that they can simultaneously work for contracted entities that stand to gain or lose revenue with regards to a given ICANN decision. They subsequently note that board members are free to move directly from their position as a voluntary member of ICANN's board into a paid position with a contracted ICANN entity, such as the high-profile example with former chairman Peter Dengate Thrush. Thus, they call on the organization to better spell out what constitutes a conflict of interest for board and staff members, to create new mandates to support this definition, to create independent control mechanisms, to create a mandatory waiting period to prevent exiting members from immediately taking jobs in the industry, and to formulate a punishment for breaches of the new rules. They agree with the Accountability and Transparency Review Team that board members should be compensated to reward professionalism and help eliminate any incentives for conflicting one's own interest with that of the organization. The EC concludes by making a number of implementation suggestions related to their recommendations, including advice to the USG to amend the IANA contract to more forcefully and specifically address conflicts of interest.

The fourth paper can be read here.

ICANN followers largely agree with the issues raised in this paper. Since many of the EC's suggestions have been made before by others, it seems that they are only weighing in on a constantly important topic. Nigel Roberts notes how regrettable the move by Peter Dengate Thrush was for the organization, and calls on ICANN to address the issues raised in this paper. One concern raised with this document focuses on tone over content; Milton Mueller notes that the fact that they are not issuing papers with room for public comments, holding discussions with their European constituents, or officially releasing these documents they are demonstrating their desire to directly manipulate ICANN's structure and function. A short time after the EC paper was leaked, U.S. Senator Ron Wyden also called on his government to implement new ethics rules that would prevent future conflicts of interest and close the "revolving door" currently allowed by the IANA contract.

Paper 5: A More Effective GAC

This paper highlights the current problems facing the GAC, and calls for "higher levels of organization, preparation and productivity" in response to the challenges at hand. They find it important to achieve this especially given the fact that governments could begin considering the GAC obsolete or a resource drain given the ICANN Board's recent trend of declining GAC initiatives and advice. They believe that for the multi-stakeholder model to work then GAC members must be convinced that an investment of greater resources will be beneficial. A main goal is to improve general GAC efficiency given that their opinions on the new gTLD program will need to be submitted quickly, often within 60 days. Once again, they seek to amend ICANN's bylaws to give GAC advice new authority and consequence, stating: "The ICANN by-laws should be amended to ensure that consensus GAC advice is accepted as reflecting the global public interest, and should ICANN wish to reject such advice, it would bear the burden of demonstrating that the GAC advice would conflict with ICANN’s legal obligations or create problems for the stability or security of the Domain name System". Other changes include increasing resources to the GAC's secretariat, and ensuring that all nations' representatives to the GAC are high-level authorities within their respective national administrations. They also would like to see the GAC chair participating in ICANN Board meetings and dedicating him or herself full-time to their responsibilities.

The most glaring issue to most ICANN observers is the EC's desire to put the GAC into a position of elevated authority within the multi-stakeholder process, as this move would seem to unilaterally dissolve that structure. Also, the idea that the GAC is able to reflect the "global public interest" is questionable, given the fact that this means balancing the views of historically influential but repressive countries, such as China, with the democratic ideals found in the U.S.' first amendment and the EC's own Article 11. The presumed effect would mean compromising the EC's and others' high standards of freedom of expression to satisfy the fears of more closed societies. Nigel Roberts commended the EC's call for a reinforcement of the political structure of the GAC, that is, the call for members to commit greater resources and ensure they are represented by sufficiently ranked political staff.

Paper 6: ccTLDs

The final EC paper criticizes the degree to which ICANN is involved, and makes demands of, the running of national ccTLD registries. While they do point to some long-standing contentions between ccTLD registries and ICANN, Nigel Roberts has pointed out that the EC is overstepping its authority as it is issuing a paper regarding what seems to be a concern of the Union's member states and not a shared, exclusive, or supporting competence of the Union. Thus, this paper has been generally received as the document most inappropriate and ill-informed of the EC's 6 non-official papers. It has further been posited by Milton Mueller that given that the DNS is a shared, global resource, standard notions of national sovereignty are not always applicable or possible to implement.

The EC does correctly note that there have been a number of impediments and problems related to the delegation and re-delegation of ccTLD operations. One of its issues is that ICANN requires a statement from the original registry that it is aware and in approval of the re-delegation of its ccTLD concern. However, to change this bylaw would likely violate law pertinent to ICANN as an incorporated organization in California, and create legal problems for the organization. The EC also has problems with the implementation and delegation of IDN ccTLDs, which has been a long-standing issue.

The EC further complains of "unexplained delays in updating root zone information", which is a complaint that ccTLD operators have made. In 1997, it took a little over an hour to see updates take place, and since then the delays have become exceedingly long and are not readily explained by ICANN.

The sixth EC paper can be read here.

It has been noted that many of the problems that the EC has addressed must also involve conversations with IANA and the U.S. Government, who are ultimately the end points of updates and relegation processes. Thus, its identification of problems and its implementation plans seem to be simplistic and are not addressed to all necessary parties. Furthermore, it is noted that ICANN must be involved in ccTLD operations, to fulfill its original mandate to create a global Internet and protect it from any singular influence. Therefore, the EC's request that ICANN extricate itself from the running of any nation's ccTLD is implausible. Milton Mueller worries that the EC seems to desire that any state control a name space associated with it, which raises questions for second-level domains that use a geographic name but do not represent that region (i.e., amazon.com). Overall, it could be argued that the EC is trying to give each state the right to wield its ccTLD in anyway it desires, without concern to the integrity of the root and the volatility of political solutions.

Governmental Advisory Committee. Considers and provides advice on the activities of ICANN as they relate to concerns of governments, particularly matters where there may be an interaction between ICANN's policies and various laws and international agreements or where they may affect public policy issues (ICANN Bylaws).

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