Safe harbor

They failed to do so.

Uh, but at the state level, the, uh, canvassing board ultimately came down to one guy's vote who said, "Oh, I think I have a duty to certify, so I'm gonna do that." But had they made a different decision, it actually could have caused some consequences in terms of federal law because back then, the Electoral Count Act had the safe harbor deadline, which was basically Trump was trying to, uh, get past that deadline so that the fake electors plan could then be triggered, uh, and there could be an alternative slate.

Uh, they also, of course, had the state legislators plan, which as Scott explained, is, is... seems to be, uh, not as much of, of a possibility here, uh, because of the, uh, the Supreme Court's decision in Moore versus Harper.

Uh, but the, the point is just there were some legal ambiguities back in 2020 that could have made this strategy a little bit more, uh, realistic than it is today.

What happens...

All of Mike's questions start with, "What happens if..." What happens if the executive of a state does not issue a certificate of ascertainment by the deadline set forth in 3 U.S.C.

5a1? It has been pointed out before, uh, that, uh, the Electoral Count Reform Act, the consequences of missing the deadline was simply that the Safe Harbor provision would not apply.

But now, the statute provides an apparent absolute deadline, but does not specify what the consequences would be of missing it.

Um, and the DSA, you know, is based on this Section 230 from the United States that say, that says that platforms aren't liable for the content that they host, that they're basically neutral hosting providers of, of content, so that they cannot be held liable for what's on their platform.

And so what the DSA does is build on that legacy that we have from, uh, Section 230 and the Safe Harbor principle in the EU, and builds due diligence obligations on platforms like the systemic risk assessment framework, like being transparent about the terms and conditions, like transparency reports on content moderation decisions.

But I think maybe where the gap remains is going to the heart of the issue, which is the business model of platforms.

It's the engagement-based algorithm that is so hard to capture.

And indeed, to give some background here, as most of the listeners probably know, on the 5th of January, 2026, the OECD Inclusive Framework released the side-by-side package.

And one week later, the European Commission published a communication recognizing the application of the side-by-side safe harbor, which forms part of this side-by-side package in the context of the EU Pillar 2 Directive.

And if you look at this side-by-side safe harbor, it's particularly relevant for groups headquartered in jurisdictions that have a qualifying side-by-side regime.

And at present, it's only at the US when recording the podcast It's only the U.S. that is listed at this OECD list as having a qualifying side-by-side regime.

Without going too much into the details, but in a nutshell, under the side-by-side safe harbor and upon election, the amount of top-up tax under the income inclusion rule and the UTPR rule is deemed to be zero for multinationals with the ultimate parent entity in the U.S. And now the court, so 5th of January, 2026, This case, so the Belgian Constitutional Court in July 2025 referred the case to the Court of Justice of the EU.

The Court of Justice of the EU was wondering, now that we have a side-by-side system, is there actually still a legal interest in the case? And the Court of Justice of the EU asked the Belgian Constitutional Court, is there still a need to decide on this case? now that we have the side-by-side system.

And in that, so the Belgian Constitutional Court, what they did, they opened the procedures again, held the public hearing in July 2026, and then issued a decision on this matter on the 24th of September.

So first argument important.