Europe at the crossroads: the importance of the elections to the European Parliament

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by Carlos Botelho Moniz, Chairman - Portuguese European Law Association
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European Union citizens will be called to the ballot boxes between 23 and 26 May 2019 to elect the members of the European Parliament for a new 5-year term that will last until 2024. It will be the ninth time, since the first direct election in 1979, that the members of the European Parliament are directly elected by citizens through universal suffrage, in elections held during the same time period in all the Member States of the European Union.

It is the largest example of transnational democracy at work in the world, involving hundreds of millions of voters and its mere occurrence on a continent that over the centuries, particularly in the 20th Century, was plunged into devastating conflicts between the States that today comprise the EU, is a powerful reminder of the strength of democratic ideals and the fundamental importance of the European Union to guarantee peace, security, justice and a balanced, sustainable economic development of our continent. ​
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New perspectives on sale of consumer goods – maximum harmonization and high protection of consumers as a condition for the further development of cross-border trade in single market

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 by Maria João Pestana de Vasconcelos, Professor at the School of Law, UMINHO 

As a part of Digital Single Market Strategy for Europe published in May 2015, the Commission adopted, on 9 December 2015, two proposals of Directives: one for a Directive on certain aspects concerning contracts for the online and other distance sales of goods (“Sales of Goods proposal” or “Sales of Goods Directive”); another for a Directive on certain aspects concerning contracts for the supply of digital content and digital services (proposal for a “Directive on Digital Content” or “Digital Content Directive”).

These proposals are the basis of a future reform on consumer sales contracts based on the principle of maximum harmonisation while providing for a high level of consumer protection.

It is already clear that the minimum harmonization approach, adopted by the Consumer Sales Directive (1999/44/EC) [i] has proved not to be appropriate to ensure the proper functioning of the internal market. Member States allowed go beyond the minimum rules, and to impose a high level of consumer protection, have acted on different elements and to different extents. As a result, national provisions transposing the Consumer Sales Directive (99/44/EC) significantly diverge today on essential elements, such as the absence or existence of a hierarchy of remedies. These disparities between the national laws of the Member States constitute one of the major obstacles to the development of the cross-border trade in Single Market given that they may adversely affect business (in particularly small and medium enterprises) and consumers[ii].
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Editorial of May 2019

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 by Célia Zolynski, Professor of Law at Université Paris 1 – Panthéon-Sorbonne
 and Alexandre Veronese, Professor of Law at University of Brasília


Blockchain and security: an important debate for the legal community (especially from the civil law tradition)*

When we read and listen about the Blockchain technology, its main revolutionary character is the praised new manner by which the users would extract a new kind of trust from the operations endorsed. At some point, some writers even detail its technical design as being trustless. This technology – as some of their enthusiasts say – would therefore make it possible to replace, rather than displace, the trusted third party – an important technical feature that exists in most of the modern designs of private or public relationships – in various kinds of transactions and operations. The Blockchain enables this feature because it makes possible to guarantee the keeping of an unforgeable and updated register of digital records in real time. The technical functions of the Blockchain promise to secure many possible applications. An example is the use of the technology to ensure the integrity of a document or a digital archive over the time by anchoring it in the Blockchain. In addition, it is possible to create Blockchain systems to control or trace the circulation of digital archives and packages and even their usage. The Blockchain technology could therefore be able to guarantee the security of the storage files in the blocks using asymmetric encryption protocols in a peer-to-peer model. However, ten years after the launch of Bitcoin, in 2009, we are still largely in an exploratory phase of that technology. The blockchain and its applications remain immature: technically immature and, we should say, legally immature too. Several difficulties hinder the transition from the small-scale operations to bigger ones. One of the main concerns of the Blockchain technology is the safety of the designed applications. Such issue – the safety of the Blockchain – needs to be more debated than praised in order to avoid some misjudgments and overstatements. Just to begin, we are going to provide a provocative statement: Blockchain does not grant actual and complete security; from itself, the technology – and its prophets – indulge us with the illusion of safe and security. Why? We will divide the text in three parts, in order to pose problems to the Blockchain. First, we are going to describe that some technical issues that are entrenched in the design can be vulnerable to attacks and difficulties. Second, we are going to mention that – in legal terms – the Blockchain registers still will need a third party to be feasible as evidence in the courts. Lastly, we will remark that the so-called “smart contracts” are not contracts after all.
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A short introduction to accountability in machine-learning algorithms under the GDPR

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 by Andreia Oliveira, Master in EU Law (UMINHO)
 and Fernando Silva, Consulting coordinator - Portuguese Data  Protection National Commission

Artificial Intelligence (AI) can be defined as computer systems designed to solve a wide range of activities, that are “normally considered to require knowledge, perception, reasoning, learning, understanding and similar cognitive abilities” [1]. Having intelligent machines capable of imitating human’s actions, performances and activities seems to be the most common illustration about AI. One needs to recognise AI as being convoluted – thus, machine learning, big data and other terms as automatization must hold a seat when discussing AI.  Machine learning, for example, is defined as the ability of computer systems to improve their performance without explicitly programmed instructions: a system will be able to learn independently without human intervention [2]. To do this, machine learning develops new algorithms, different from the ones that were previously programmed, and includes them as new inputs it has acquired during the previous interactions.

The capabilities of machine learning may put privacy and data protection in jeopardy. Therefore, ascertaining liability would be inevitable and would imply the consideration of inter alia all plausible actors that can be called upon account.

Under the General Data Protection Regulation (GDPR), the principle of accountability is intrinsically linked to the principle of transparency. Transparency empowers data subjects to hold data controllers and processors accountable and to exercise control over their personal data. Accountability requires transparency of processing operations, however transparency does not constitute accountability [3]. On the contrary, transparency acts as an accountability’ helper – e.g. helping to avoid barriers, such as opacity.
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e-Justice paradigm and Artificial Intelligence (AI): where effective judicial protection stands?

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 by Joana Abreu, Editor

2019 marks the beginning of a new era for e-Justice.

Looking at both Council’s e-Justice Strategy (2019/C 96/04) and Action Plan (2019/C 96/05) from 2019 to 2023, we are able to understand how this European institution is engaged to establish sensitivities on Artificial Intelligence in justice fields. Furthermore, the European Commission also presented a report on the previous Action Plan (Evaluation study on the outcome of the e-Justice Action Plan 2014-2018 and the way forward – Final Report – DT4EU), where it advanced the need to bet on artificial intelligence mechanisms in the e-Justice fields.

In fact, the European Commission, when questioned stakeholders on the possibility of using Artificial Intelligence technologies in the domain of justice, 41% understood it should be used and other 41% understood its potentialities could be explored.

Taking into consideration those numbers, the Council also established the need to understand AI’s influence and potential on e-Justice fields, addressing it under the topic “Evolutivity” and relating to future perspectives.
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The Proposal of a Directive on Whistleblowers’ protection, is the EU in the right path?

Canciller Ricardo Patiño se reunió con Julian Assange

 by Joana Whyte, Editoral Team

Technology … is a queer thing. It brings you great gifts with one hand, and it stabs you in the back with the other[i]

Today’s society has become increasingly dependent on computer systems and the use of the Internet, making cybercrime an ever more pressing threat to the European Union (EU) and its Member States, being by nature a transnational type of crime, its complexity of its combat is undeniable. Nowadays we are all dependent on the internet and this dependency has made us vulnerable to the threat of cybercrime. There are several examples of this reality, the use of the email address as a preferential means of exchanging mail for personal or professional correspondence, store information in the cloud, publish personal and professional information on social networks, make payments or bank transfers, book trips or hotels and so on. If this dependence is accurate when speaking of our everyday lives, the same applies to the State and the European Institutions. They too have surrendered to the overwhelming power of the internet. For instance, our judicial system is totally dependent on computers and the internet.
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Google (again) and advertising on the web. Comment on the European Commission Decision of 20th March 2019

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 by Pedro Madeira Froufe, Editor

Much of the creation of wealth through the digital economy (individualized advertising, anticipation of reactions from consumers to new products, etc.) depends on the knowledge of our tastes and ways of life, knowledge of our profiles and even the knowledge of how our brain reacts to advertising messages (that’s what “neuromarketing” is about) [1]. And of course, the scale counts! There is a kind of return of “economies of scale” in the field of advertising services. That is, there is a large / global business communication that is simultaneously individualized, as, as a result of the knowledge and algorithmic use of personal data of each of us, can adapt and address each group (increasingly small) of consumers, with messages tendentially personalized.
Individualized advertising, enhanced by the use of algorithms, is one of the activities that has grown the most and has created the propulsion of wealth (directly and indirectly) in the digital era.

It is in this context that we should place the last “Google decision” of the European Commission, dated March 20, 2019, regarding the use of the Google / AdSense for Search platform to raise and broker advertising associated with online surveys. The Commission has, in effect, decided to impose a financial penalty on Google and Alphabet Inc. (the parent company of Google LLC, formerly Google Inc.) amounting to EUR 1,490,000 for abuse of a dominant position (infringement of Article 102 of the TFEU).
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Editorial of April 2019

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 by Sophie Perez Fernandes, Editor


First steps in a literacy campaign for a European political community – what is the EU based on the Rule of Law?

When one is asked to approach the legal dimension in a panel on the theme «European political community and cosmopolitan literacy»[i], one is confronted with the vastness and multiplicity of the subject, the critical nature of its importance and the overwhelming responsibility of the task… Underlying it are crucial questions about how to approach – in the sense of conceiving, accepting and, above all, living – the European Union as our collective destiny. And the challenge is also to discern the role of the Law in this endeavour aimed at building, revealing the meaning and living in a European political community.

That said, before embarking on an EU literacy campaign, a preliminary step would likely be to undertake what could be called a literacy campaign of the Law. And the reason is obvious: the European integration process is, above all, a process of integration through Law. From the very beginning, the European integration process has sought to «unite the peoples of Europe», to employ the terminology of the Treaties, not by the force of weapons, but by the force of norms – which, to a certain extent, consequently converts jurists into soldiers of the European integration process and of building a European political community – hence the overwhelming responsibility…
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The “VAR” annuls the goal of the European Commission to FC Barcelona and the Spanish teams win. Commentary on the Judgment of the General Court (Fourth Chamber) of 26 February 2019 Fútbol Club Barcelona v European Commission Case T-865/16

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by Javier Porras Belarra, Professor and researcher at the Faculty of Law, CEU San Pablo University (Madrid)

Today (almost) no one doubts that football not only is the star sport in Europe (without detracting from all the rest) but also has become an industry that generates millions of euros around sports clubs[i]. This circumstance increased throughout the 20th century but it became especially marked in the 90s and the beginning of the 21st century when the income of sports clubs in this field increased the most. There have been many actions that have contributed to this phenomenon (the professionalization of the major leagues, the updating and improvement of European competitions by UEFA[ii] or the consequences of the freedom of movement of workers athletes within the European Union with independence of his nationality thanks to the famous Bosman case[iii]).

In this sense, shortly after the accession of Spain to the then European Communities, a new sports law was passed in this country[iv]. Through this law the figure of the SAD (Sports Public Limited Companies) was created as a variant of the typical corporations of commercial law. Under the praiseworthy purpose of providing greater control and transparency to the structures of professional football, the Law established a kind of punishment or sanction for “indebted” clubs, forcing them to adopt the legal form of SAD, which theoretically guaranteed a better and clearer future performance while allowing the “healthy” entities to continue competing under the legal associative form of the sports clubs.
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The impact of Brexit on the Common Security and Defence Policy of the European Union

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by Ana Torres Rego, Master's degree in EU Law of UMinho

The winning of the campaign “Vote Leave”, in the referendum of 23 June 2016 held with the view to expiry the United Kingdom’s accession Treaty, turned out to be one of the biggest challenges facing the modern history of the European Union.

For its turn, if on the occasion when Article 50 of the Treaty on European Union was invoked in 2016 the earlier speeches of the Britain Prime Minister Theresa May can be summarised as “Brexit means Brexit” – as an answer against free movement of people; in the recent past, the increased awareness of the high cost for all parties involved of a hard Brexit has opened space for dialogue and negotiation.

The change of direction noted from October 2016 to March 2017 is very clear in the formal communication[i] notifying the United Kingdom’s intention to leave the European Union sent by Mrs. May to the European Council. That letter, where concerns related with the state of defence of the EU from security threats are strongly expressed, suggests first and foremost the British willingness to keep a special relation with the European Union in defence and security matters in order to ensure the status of security power for both among the potencies in the international order.
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