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To date, the CJEU has decided 6 cases concerning women who wanted to wear a headscarf at work for religious reasons but who were prohibited from doing so by their employer, losing their jobs as a consequence. Achbita, Bougnaoui, Wabe and Müller, LF and OP. There was no evidence that the wearing of the headscarf in any way prevented them from doing their job. Apart from OP, all other cases concerned private employers and here the freedom to conduct a business as recognised by Article 16 of the EU Charter of Fundamental Rights played an important role. The judgments in these five cases suggest that the employer’s right under Article 16 can trump the right of the employee to freedom of religion as guaranteed by Article 10 of the EU Charter. In OP, where the employer was a municipal council, the CJEU held that the principle of neutrality of the public service can do the same. Although the CJEU made some general and abstract comments about the importance of freedom of religion, it did not really address what the bans, in practice, meant for the individual women involved. Neither did the CJEU pay any attention to the possibility that these neutrality rules could constitute sex, race and/or intersectional discrimination. The CJEU thus provide little protection for the rights of headscarf wearing Muslim women.

Direct and indirect religion or belief discrimination

The CJEU examined the six cases under the provisions against discrimination in Directive 2000/78/EC, which prohibits both direct and indirect discrimination (Article 2(2)(a) and (b)). Direct discrimination involves less favourable treatment because of, in this case, religion or belief; while indirect discrimination occurs where an apparently neutral provision or rule would put people having a particular religion or belief at a disadvantage, unless this is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. In contrast to this, direct discrimination can only be justified under very limited circumstances clearly laid down in the Directive.

The headscarf judgments

Although the CJEU stressed that this was for the national court to decide, it held that general neutrality rules were most likely indirect discrimination if they applied to all employees equally and covered all beliefs without distinction. The CJEU was criticised for not considering that there might be direct discrimination in these cases (e.g. here and here). The CJEU held that the workplace neutrality rules were justified: for private employers, Article 16 of the EU Charter provided the legitimate aim for indirect discrimination. In addition, the bans were appropriate and necessary as long as: these bans covered all visible signs; they were genuinely pursued in a consistent and systematic manner and, thus, applied equally to all employees and did not make a distinction between different religions or beliefs; and, the ban was limited to custom facing employees. In OP (32-33), the CJEU held that the aim of putting into effect the principle of neutrality of the public service was a legitimate aim. That was meant to guarantee, for service users and staff, an administrative environment devoid of visible manifestations of beliefs (40). For public authorities, including infra-state authorities, the CJEU dropped the requirement that bans should be limited to customer-facing employees.

Freedom of religion in the headscarf cases

The CJEU held that “religion” in Directive2000/78/EC must be interpreted broadly to include both the forum internum – the fact of having a belief – and the forum externum – the manifestation of religious faith in public. Wearing a headscarf for religious reasons was such a manifestation (e.g. Achbita (27-28) and Bougnaoui (29-30)). In Wabe and Müller (48), the CJEU stressed, referring to the case law of the European Court of Human Rights (ECtHR) (Dahlab v Switzerland), the importance of the right to freedom of religion for society, as it represents one of the foundations of a democratic society and contributes to the pluralism indissociable from such a society; and, for the individual, as it is one of the most vital elements that go to make up the identity of believers and their conception of life (repeated in LF (35)). The CJEU also pointed out (84) its established case law that, when several fundamental rights and principles enshrined in the Treaties are at issue, the proportionality assessment must be carried out in accordance with the need to reconcile the requirements of the protection of those various rights and principles at issue, striking a fair balance between them.

The CJEU added to the requirements for justification of indirect discrimination that the employer had to prove that there is a genuine need for their neutrality policy and that they would suffer adverse consequences without such a policy (Wabe and Müller, 64, 67). The employer also had to take account of the effect of such a policy on the right to freedom of religion of their employees who want, and often feel mandated by their religion, to manifest their religion through the wearing of religious symbols (69). However, the CJEU gave no indication of the weight to be given to the latter, it only stated that, in establishing whether there is a genuine need, the rights and legitimate wishes of customers or users may be taken into account (65).

Article 10 v Article 16

In none of the six headscarf cases did the CJEU engage with the practical effects of the neutrality rules on the individual women. Namely, on their employment – they all lost their job – and employment opportunities, but also on their wider inclusion in society, even though it stressed the importance of freedom of religion for the individual believer’s identity and their concept of life. Should this important fundamental liberty right not play a more important role when balanced against the economic fundamental right to conduct a business? In Achbita (39), the CJEU referred to the judgment of the ECtHR in Eweida (94) – where a British Airways employee was prohibited from wearing a small cross with her uniform – to support its argument that corporate image can be a legitimate aim. However, the CJEU reference to Eweida (94) ignored the rest of that paragraph, where the ECtHR pointed out the importance of the freedom of religion because a healthy democratic society needs to tolerate and sustain pluralism and diversity. And also because of the value to an individual, who has made religion a central tenet of their life, to be able to communicate that belief to others. The ECtHR concluded that the national courts had not struck a fair balance between the legitimate aim and the restriction on the applicant’s freedom of religion and thus stated that the uniform rule was not proportionate. The CJEU should have followed the ECtHR in requiring a strict balancing test.

The freedom to conduct a business includes, according to the CJEU, the introduction of a neutrality policy for the workplace. But why would an employer, especially a private employer, introduce such a rule which seems to target especially Muslim women wearing headscarves? This appears to be because the employer wants to present a neutral image to their customers, which is, most likely, based on the wishes or anticipated wishes of these customers who do not want to be served by someone in a headscarf (here). But customers’ wishes could very well be based on prejudice and “neutrality can be an easy cover-up for prejudice”. Pandering to prejudice should not be part of the freedom to conduct a business as this right does not include the right to conduct that business in a discriminatory way. Even a public employer, like the municipal council in OP, must show that there is a genuine need for the neutrality policy. The CJEU should have given more guidance to the national courts regarding the burden of proving this and the weight to be given to the freedom of religion of an individual employee.

The CJEU could also have mentioned that Article 31 of the EU Charter, which contains the right of every worker to working conditions which respect their dignity, should be weighed in the balance. Prohibiting the manifestation of religious beliefs in the workplace, which are a central part of a person’s identity, clearly affects their dignity. Doing so would have been more in line with Article 22 of the EU Charter, which states that the Union shall respect cultural, religious and linguistic diversity.

Article 21 of the EU Charter and sex and race discrimination

Article 21 of the EU Charter prohibits discrimination on a large number of grounds, including sex, race and ethnic origin and religion or belief. In the headscarf cases, the CJEU never addressed the possibility that the neutrality rules could amount to sex and/or race discrimination, although this was raised in some of the preliminary references. This is important because the protection against discrimination on the basis of sex and racial or ethnic origin is stronger than the protection given to religion or belief discrimination in the headscarf cases. In Wabe and Müller (59), the CJEU found indirect religious discrimination because the neutrality rule concerned “statistically, almost exclusively female workers who wear a headscarf because of their Muslim faith”. This would also suggest indirect sex discrimination, as a statistical difference between men and women is a classic example of prima facie evidence of such discrimination (Seymour-Smith and Perez (60). The CJEU did not find it necessary to examine possible indirect sex discrimination because this ground does not fall within the scope of Directive 2000/78/EC (Wabe and Müller, 58), and it never mentioned possible race discrimination. It could and should have done so, as it is settled case law that the Court may provide guidance on the interpretation of EU law, whether or not the referring court raises these issues in its questions (Achbita (33)).

Intersectional discrimination

The CJEU also did not address the possibility of discrimination on the intersecting grounds of religion or belief, sex and/or racial or ethnic origin, although these bans are often seen as prime examples of such intersectional discrimination. That is because they mainly affect Muslim women who are often from a migrant or ethnic minority background (e.g. here (21), here (21-37) and here). The CJEU might have felt that it could not address intersectional discrimination because of what it had held in Parris (80), where a claim combining age and sexual orientation discrimination was rejected on the basis that such a claim could not succeed if discrimination on each of the separate grounds did not exist. However, there are a number of reasons why Parris should be revisited as developments in the law and case law and opinions within the EU have moved on. First, intersectional discrimination is now explicitly defined as a form of discrimination in the recent EU Pay Transparency directive (Article 3(2) (e) of Directive 2023/970/EC). Second, although the CJEU has not used the term “intersectional discrimination” in its case law, it has shown an awareness that intersecting grounds can lead to discrimination. In E.B. (60), the CJEU took into account that the law of the time treated male and female homosexual acts differently, showing awareness of the intersection of sex and sexual orientation. Moreover, in Bedi (75) the CJEU recognised the intersection between age and disability. Third, the EU Council (Article 2(2)(a) and (b)), the EU Commission (4.4) and the EU Parliament have all recognised intersectional discrimination. The CJEU should follow suit and accept that intersectional discrimination is prohibited by EU anti-discrimination law and that workplace neutrality rules could well amount to intersectional discrimination against Muslim women.

Conclusion

In the headscarf cases the CJEU put too much emphasis on the right of the employers to conduct a business and on the neutrality of the public service, and not enough on the freedom of religion and the right not to be discriminated against of the employees, thus getting the balance between Articles 10, 21 and 16 of the EU Charter wrong.

The post Headscarves and the Wrong Balance appeared first on Verfassungsblog.

The Court of Justice’s narrow understanding of religious freedom under EU law and of the social and cultural role of religions under EU law is playing with fire. In the name of anti-discrimination and neutrality, it risks undermining religious freedom in ways that are particularly detrimental to Muslim minorities – both by feeding into nationalist, Christian-heritage identity politics and by advancing a liberal narrative that frames restrictions as necessary to protect women’s rights and non-discrimination. At the same time, the Court proceeds as if European constitutional systems were roughly homogeneous, disregarding the profound diversity of church–state relations and the very different legal and social positions religious communities occupy across Member States. This double-blind spot – towards Muslim minorities and towards Europe’s plural constitutional traditions – makes the CJEU’s approach not only normatively troubling, but structurally ill-suited to the realities it seeks to address.

Balancing various aspects of religious freedom under EU law

The legal provisions that have most frequently served as a compass for the Court of Justice to adjudicate cases revolving around religious freedom have been Article 10 of the EU Charter; a safety valve that has protected the national status of religious groups (Article 17 of the Treaty on the Functioning of the European Union); some provisions about animal welfare (Article 4 of Regulation 1099/2009); and antidiscrimination rules in the employment field. On their face, all these rules seem to protect religious practices such as ritual slaughtering, prevent religious discrimination, and carve out a sphere of immunity for religious institutions that enjoy a special status at the state level. However, the Court of Justice does not seem to have balanced this multilayered legal framework taking into account religious freedom needs and the variety of church and state models within the EU.

The challenge of religious pluralism

The EU Court of Justice has repeatedly intervened in the extremely sensitive field of religious symbolism, virtually authorizing the eradication of religious symbols from both public institutions and private companies. Although it has formally operated cheek-in-tongue, avoiding spelling out the notion of state neutrality as its preferred public policy, practically speaking it has almost invariably upheld that approach, at the expense of individual religious practice.

The same dynamic has taken place in the context of religious dietary prescriptions. A stream of Court of Justice’s rulings has progressively legitimized limitations on the production of food that is compliant with religious prescriptions: First allowing the ban on temporary abattoirs, then ruling out the possibility that religiously slaughtered food be considered organic, and finally declaring that states or sub-national entities can outright ban religious slaughtering, as long as edible meat is still available to the communities hit by the ban – i.e. Muslims and Jews. In doing so, the Court has alternatively narrowed the interpretation of religion-friendly rules or overstretched the interpretation on facially neutral rules that actually impact on religious practices.

Overlooking religious freedom for Muslims

The impact of the EU Court of Justice’s case law in this field has not generated much controversy outside of academic discourse. Its political and symbolic ramifications have been fairly modest. European society seems to accept that the Court is embracing a strong neutrality-based approach and that its case law is taking a shape that is hardly inclusive and respectful of the variety of religious affiliations and identities. This is probably due to the fact that the main target of state and company policies affecting religious freedom with this neutrality-based logic are Muslim minorities. The 9/11 terrorist attacks on American soil and especially the atrocious and long stream of killings that have taken place in Europe in the 21st century have probably worsened the already complex relationship between Muslims and the rest of Europeans. Limits to the enjoyment of religious freedom among Muslims, which perhaps even discourage their immigration, do not seem to concern EU citizens.

This dismissive approach to Muslim needs has deeply infiltrated European political culture. Some of the most vocal opponents of Islamic integration in Europe are the parts of civil society that usually fall under the umbrella of populism, illiberalism, or supporters of state sovereignty. A strong sense of identity and the development of new narratives that harken back to the inception of Christianity in Europe have reinvigorated the political and even legal role of religious identity and affiliation. Christianity has become a booster of state sovereignty, independence, and pride. This phenomenon has been quite successful in Eastern Europe. Especially after the collapse of the Soviet Empire, religion has made a powerful comeback as a political and ideological identifier for countries that liberated themselves from the Communist yoke and rediscovered their faith and religious lineage vis-a-vis the atheist regime. For sizable parts of European society, the Islamic presence is not welcome because it challenges this narrative and vision.

But European social and political movements that lie on the other hand of the ideological spectrum and support supranationalism and liberal constitutionalism are often not fond of Islamic traditions either. They usually push back against the public visibility of religious affiliation and belonging, see centuries-old Islamic practices as challenging the progressive narrative of rights and civilisation they espouse, and read gender biases into religious symbols, such as the Muslim veil for women. In this respect, liberals and so-called illiberals largely share a common hostility towards Islam in Europe.

Additionally, Muslims seem to find it hard to make their voice and needs heard both at the state and supranational level also because the appearance of Islam in Europe does not follow the old Christian pattern. Although now a sizable group especially in some regions of the Continent, the Muslim presence in Europe stretches throughout its territories instead of being located in specific areas. It does not replicate the centuries-old tradition of states with a predominant religious tradition, with which they have alternatively partnered, clashed, or identified, giving shape to a unique national model of church and state relationship. Muslims therefore do not have the agency that is available to other religious groups at the state level and are more exposed to hostile state policies. Instead of recognising that new minorities in Europe do not map onto the longstanding tradition of special ties between a state and a religion and therefore cannot leverage the political support that other religious groups may enjoy, the EU Court of Justice has easily accepted and even embraced state policies that willingly or inadvertently target them.

The place of pluralism and diversity in the reasoning of the Court of Justice

The EU Court of Justice has repeatedly dealt with cases between religious entities, such as cultural hubs or hospitals, and employees or candidates who argued that they had been discriminated against because of their personal beliefs or behaviours. In this field, the Court has been prone to investigate the affairs of religious institutions closely, without giving state policies the same leeway it has accorded to them in the context of religious pluralism.

To adjudicate these controversies, the EU Court of Justice has largely built on the case law of the European Court of Human Rights, which has been dealing with the same issues for some time. While the Strasbourg Court has largely recognised that states have wide discretion in how they handle these matters, the EU Court has been much more intrusive. It has urged domestic courts to decide these cases balancing the interests involved and especially weighing the religious affiliation or the relevant behaviour of the complainant employee against her employment duties and the ethos of the institution. All in all, the EU Court has given a fairly detailed checklist to domestic courts, thus encouraging them to adopt a specific type of scrutiny.

Although its leading cases originated in Germany, the case law of the Court of Justice is able to radiate to the whole spectrum of EU states and territories. But EU Member States have very different models of church and state relations. Some of them integrate religious entities within the span of public institutions (such as Germany), while others keep them more distant, or display a special affiliation with a specific denomination. It is difficult to reconcile this variety of legal systems and the rather strong enforcement of antidiscrimination provisions with the different state and church models and the commitment of EU law to respect the domestic status of religious groups. The articulation of civil society across EU territories varies significantly; the Court of Justice’s approach hardly reflects this reality – for example, think of the Advocate General’s warning that Spain may have to terminate its agreement with the Catholic Church to comply with EU law.

Conclusions

The case law of the EU Court of Justice may have powerful ramifications for religious freedom and for the public role of religions in the EU, although its impact has not received the cultural, social, and political attention it deserves. Two main reasons explain this lack of interest.

First, one of the primary victims of the Court of Justice has been religious freedom for Muslim minorities. Heightened scepticism toward Islam has characterised a large part of the political and ideological spectrum of Europe lately, making Muslim claims difficult to heed and welcome. This resistance to Islam cuts across most of the European political spectrum: factions that hold very different views of the EU seem to overlap on this matter.

The second reason for the lack of interest in how the Court of Justice handles the life of religious institutions lies in the modest knowledge of the different statuses that religions enjoy in every EU Member State. The approach of the EU Court, which is oblivious to the variety of church and state relations and the articulation of civil society in Europe, probably reflects a wider ignorance. Few, including the EU Court, seem to appreciate that religious groups and institutions rarely enjoy the same legal status and keep the same distance from state institutions. The relationships between religions and states may be more or less open, friendly, or hostile, depending on the jurisdiction. Thinking that religious institutions share the same needs, enjoy a similar status, and should behave roughly the same does not consider the nuances that characterise EU territories. As seen above, the jurisprudence of the Court of Justice focuses on Germany, where the ties between religious and state institutions are fairly strong. But EU territories cover a wide array of constitutional systems, and, if the Court of Justice applies elsewhere the same logic it developed for German cases, it may upset longstanding church and state relationships.

In the long run, the EU Court of Justice may trigger two pernicious developments. It is more likely to face increasing resistance from strongly rooted religious communities and from large swaths of European public opinion if it replicates its antidiscrimination approach regarding religious employers outside Germany, where religious bodies have a different status and the connections between a religious group and state institutions are different. But the Court is also alienating Muslim believers; more broadly, its approach may give the impression that the EU does not accept Islam as a component of European society. This would widen the gap between Islam and Europe, playing into the hands of extremist and terrorist groups, who have been leveraging Islamic disheartened individuals who realised they would be never able to integrate, to fill their ranks with anti-Western acolytes. In a nutshell, the EU is on the verge of letting down religious majorities and minorities across Europe.

The post Playing with Fire appeared first on Verfassungsblog.

Things are happening in EU platform regulation. On 5 December, the Commission made its first (landmark) decision under the Digital Services Act (DSA), which has since sent Elon Musk into a cursing spree, culminating in demands to abolish the EU. The decision against X has even led to interventions by high-level US politicians like JD Vance and Marco Rubio, who view the DSA (and the Commission’s decision) as nothing less than a declaration of war on the US Constitution’s First Amendment. The EUR 120 million fine has even led some US legislators to consider implementing a “civil damages turbolaser”, threatening companies with excessive damages claims if they do not abide by First Amendment standards when they use US servers to provide their services. Adding insult to injury, the decision came in the wake of a far-reaching CJEU ruling in re Russmedia, which has been widely criticised for undermining the DSA’s safe harbours (see this excellent analysis by Erik Tuchtfeld).

In its decision, the Commission has found that X has facilitated inauthentic behaviour on its platform through the deceptive design of its “blue checkmark”. Is this the DSA’s “big enforcement moment”? I argue that it is not. Modifying this design will not enhance trust and safety. X is a controversial service with a multitude of problems – yet the EU chooses to complain about blue checkmarks. The motivation behind the regulator’s actions was not to make very large online platforms more beneficial for society; rather, it was an attempt to assert authority. The decision also highlights that the DSA is caught in a state of arrested development: Without cultivating an understanding of the DSA’s most fundamental principles, all enforcement efforts are doomed to fail.

What does it all mean? A very short introduction to verified badges

X’s verification system supposedly violates Art. 25 DSA, which prohibits deceptive design practices. The design choice is considered deceptive because every user can subscribe to X’s verification service in order to gain the – once sought-after – blue checkmark. The Commission considers the icon to tag users whose identity has been verified by the platform (e.g., through checking their ID). Under X’s subscription scheme, however, the identity of a user is no longer verified – all you need to do is pay. This leads to the argument that users cannot trust the checkmark anymore, as it does not indicate whether someone is who they claim to be. The violation is specific to X, as other providers of online platforms seem to still verify the identity of a user upon payment of the subscription fee.

Unfortunately, the Commission has not released its reasoning for the decision. However, it does not seem to consider that users who seek to acquire the badge must have “non-deceptive” profiles, meaning they have to provide a phone number and may not have violated the terms and conditions on inauthentic behaviour, among other requirements. Additionally, X has not abandoned the notion of “verified users” completely: For high-profile users, like politicians and companies, a separate verification scheme was set up.

According to the Commission, X’s verification system makes users more susceptible to scams and “malicious actors”. The press release does not corroborate this claim: Do users really trust information from non-verified accounts more than verified accounts? Users often do not know the accounts they are confronted with on their “For You” – pages, whether verified or not, and therefore should remain sceptical of claims made by them. Practically speaking: Why would I give Jane Doe, whom I do not know, my credit card information? Why would I believe her when she claims that migrants commit the majority of violent crimes? Because she has a blue checkmark?

Surely, the real issues seem to lie with accounts which purport to have some sort of power – be it social capital, epistemic authority, or something else. Would I be more likely to click on a link that was posted by someone purporting to be my favourite YouTuber when they have a verification badge? Would I believe someone claiming to work for the US government when they allege China to be responsible for sabotaging the Nord Stream 2 pipeline – because they have a blue checkmark?

If the Commission instead wants to prevent targeted scams, there are more effective ways of achieving this goal than by dictating a specific interpretation of the blue checkmark. If a criminal impersonates my friend, it would often be even more suspicious to have a blue checkmark, as most X users are not verified (only about 2 million users appear to be verified, which would equate to less than one percent of all users). This means that my friend’s real account is likely not verified. If my friend does not have an account on the online platform, it would also be suspicious to purchase a subscription right away. Either way, it would depend on how well the perpetrators imitate my friend, which would make me susceptible to a scam – not the verification badge.

While a blue checkmark may be a first line of defence, it is a rather irrelevant instrument to stay safe from scam and phishing attacks online. In all of the above cases, users are not deceived by the verification badge but by the behaviour of the accounts. Users should be sceptical of what they see online – and online platforms should empower them to question things. In short, the real problem is that I cannot tell inauthentic behaviour apart from real user behaviour.

Conversely, the decision highlights a conceptual problem with protecting the blue checkmark: We assign meanings to symbols, and these meanings can change over time. The blue checkmark has never meant that information can be trusted. While it once meant that a user’s identity had been verified and that they were important in some way, this is not necessarily true today. It is also not inherently bad that the meaning of this sign has changed. It rather raises questions about how and why this exact meaning should be established and, not least, how users really understand the blue checkmark. A specific objection concerns Wikipedia, which does not use a blue checkmark to signal that a user’s identity has been verified. Would this be considered deceptive?

Verifying a user’s identity can surely have benefits, e.g., users usually think more about what they should post when they have their identities attached to their account. But it seems infeasible to equate something as simple as a verification badge with more trust on an online platform. Empirical research even suggests that the use of verification badges may not serve the Commission’s interests, as users are more likely to share fake news after receiving one. Additionally, Twitter’s verification system was infamous for having a lot of problems of its own long before Musk bought the company. Instead of leaning into the problematic concept of the European average consumer, the DSA should empower the users of the platforms by putting more trust in them. This would require educating people on how to consume content in online environments. Such an approach would get to the root of the disease instead of merely treating its symptoms, like the current approach does. Not everything can and should be resolved by laws.

On data access

The Commission decision has also targeted X’s data access regimes. This concerns the service’s ad repository (Art. 39 DSA) as well as the “scraping law“ found in Art. 40(12) DSA. These violations are much easier to justify than the deceptive design of the verification badge. For the DSA community, this is where the magic happens, as it greatly supports researchers in their endeavours. In the past, X has prohibited eligible researchers from accessing publicly available data, including through scraping. “Scraping” describes a practice whereby data is fetched and extracted from a website, often automated. The Commission decision therefore comes as no surprise; a similar decision was already taken by the Kammergericht Berlin earlier this year.

For empirical research projects in need of data from X, this is a big improvement. For the interpretation of the DSA, on the other hand, this part of the decision is rather irrelevant: Data access cannot provide a normative concept for regulation (naturalistic fallacy). The effects will only begin to be relevant for regulation when the studies are complete and the regulation is adapted.

A wallpaper to cover the cracks

This begs the question: Were the violations worth troubling EU-US relations even further? How is the EU doing in the “cold war”? I think the decision has not helped the EU’s position but unnecessarily damaged transatlantic relations. After all, the Commission might not even achieve its goal: X could simply decide to lose the verification system in the EU, as the DSA does not mandate user verification. Arguably, it might also be enough to simply change the blue checkmark to something else. None of these responses would meaningfully provide trust for users on X.

The decision highlights the revolting lack of ideas on what makes online environments safe and trusted (Art. 1(1) DSA). The decision does not help in clarifying these abstract concepts. Rather, it treats the users of X as if they were reliant only on the verification badge. At the same time, the decision does not provide any meaningful help with issues like disinformation and online scams: The key factor for whether inauthentic behaviour or disinformation is prominent on an online platform remains the design of the recommender system.

The Commission decision was made not long after the Berlin Digital Sovereignty summit. The summit and the decision both go to show how important it is to think about the technology stack as a whole when drafting and enforcing rules for digital platforms. The most honourable goals in the EU legislation are worth nothing when they can be demolished by a “civil damages turbolaser.” While the European digital rules are crucial for digital sovereignty, they are not enough by themselves and will have to be accompanied by economic, political, and societal initiatives.

There will always be bad actors. But it makes a difference whether they can systematically take advantage of platform structures or their actions remain isolated. Therefore, questions of platform design remain crucial to create a safe online environment. While the Commission decision concerns the design of a minuscule part of Musk’s service, it seems to ignore its real problems. It is like telling the resident of an apartment to use a different wallpaper to cover the gaping cracks in their wall. And until the Commission has thought about what constitutes a “safe” online-environment, it should stop considering which wallpaper to put up.

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