Blockchain and art market

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Gallery exhibition opening

 by Geo Magri, Professor at the University of Torino

▪

In recent times, blockchain technology has begun to be used to ensure certainty in the circulation of works of art.  Through the blockchain it is possible to record the existence of any author’s rights concerning the work, or the transfer of ownership of an art object, in order to make its circulation safer. These are aspects that, for a global market like this one, are of central importance and that allow us to understand why the first projects were launched to create chains aimed at meeting the specific needs of this sector, overcoming the critical issues that the art market traditionally brings.

Already in the seventies an attempt was made to achieve a result like that which today guarantees the blockchain. At the time it was decided to use the analogic recording of works of art, through the deposit of a picture and the recording of data that allowed the reconstruction of transactions related to the work. The project was proposed by Bolaffi of Turin and was aimed at ensuring the origin and traceability of the works sold. The idea of the analogical register was not successful in the practice of the art market and this was not difficult to predict since it was an excessively large market for an efficient analogical register.
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Building the ECJ puzzle on judicial independence in a Union based on the rule of law (Commission v Poland in the light of ASJP)

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 by Alessandra Silveira, Editor

▪


On 27 February 2018, the ECJ delivered its judgment in the Associação Sindical dos Juízes Portugueses case (C-64/16).[i] It is a judgment of far-reaching consequences for effective judicial protection and the rule of law within the European Union – and, arguably, for the construction of the legal-constitutional model that supports the European integration. Mainly because the question of judicial independence was assessed without any relevance having been given to the issue of whether or not the austerity measures in question were covered by EU law.[ii] It is worth recalling the circumstances of this case law to understand the following ECJ steps.

At the origin of the request for a preliminary ruling was a special administrative action brought before the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal) seeking the annulment of salary-reduction (administrative) measures of the judges of the Tribunal de Contas (Court of Auditors, Portugal). According to the Supremo Tribunal Administrativo, the measures for the temporary reduction in the amount of public sector remuneration, also applied to the members of the judiciary, were based on mandatory requirements for reducing the Portuguese State’s excessive budget deficit during the year 2011. The referring court therefore considered those measures as measures adopted within the framework of EU law or, at least, as being European in origin, on the ground that those requirements were imposed on the Portuguese Government by EU decisions granting financial assistance.

Besides, the legal action brought before the Supremo Tribunal Administrativo was accompanied with an opinion presented by me and my Colleague Pedro Froufe, two of the editors of this blog. The opinion intended to clarify the extent to which the subject matter fell within the scope of application of EU law, triggering the need to refer to the ECJ for a preliminary ruling.[iii] However, this did not play any role in the interpretation which led the Court to conclude that the second subparagraph of Article 19(1) TEU was applicable in the case in question. This is the password to understand this new standard and the following ECJ steps on judicial independence, in order to Article 19 TEU gives concrete expression to the value of the rule of law affirmed in Article 2 TEU.
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Editorial of July 2019

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Shaking Hands Teamwork Staff Team Handshake

 by Pedro Froufe, Editor
 and Tiago Cabral, Master's student in EU Law at UMinho

▪


Democracy, negotiation, personal ambitions and backroom deals: the moment of truth for the spitzenkandidaten

1. Last year we had the opportunity to write about the spitzenkandidaten procedure for selecting the President of the European Commission (hereinafter, “EC”) and the power struggle that was brewing between the Institutions with the spitzenkandidaten (lead candidate) at its centre. Knowing what the spitzenkandidaten procedure is and how it works is indispensable for understanding the current essay, thus if the reader is not familiar with it, we would ask you take a few minutes to read our May 2018 editorial before continuing.

2. With the Juncker’s Commission term of office about to reach its end (31 October 2019) and with a new European Parliament (hereinafter, “EP”) with a quite different composition starting its work on 2 July second it is time to select a new President of the EC and, in fact, also the Presidents of the European Parliament and of the European Council (hereinafter “ECON”). Moreover, a new High Representative of the Union for Foreign Affairs and Security Policy and a new President of the European Central Bank will have to be selected shortly. As it is possible to recognize there are a plethora of senior and highly influential positions that will be selected by one or both the EP and the ECON in a very short timeframe. This, of course, will lead to difficult negotiations which creates an obstacle for the spitzenkandidaten procedure because it takes out what is, arguably, the most valuable prize from the table before it can even be in play. As we know the EC has a truly European and supranational character and, for many, due to its powers and competences the EC can be seen as the true “executive” power in the European Union. Furthermore, even if the EP and the Council (of the European Union) are the co-legislators and the ECON defines the broad political priorities, it is the EC who has the prerogative of, in most cases, proposing the laws. The European constitutional design means that the balance in power tilts heavily in favour of the Commission.

3. Obviously, the spitzenkandidaten would not be in danger if there was a clear majority in the EP (either by a coalition or a single party) that could impose its lead candidate to the ECON. As we have stated previously, we are not of the opinion that the candidate of the party that got the most seats automatically gets the right to be President of the EC. That is no more than an oversimplification of the procedure and would be only suited for a system with direct elections (which we actually find the ideal solution). The leading candidate of the party with the largest parliamentary representation will, in most cases, be in the premium position to achieve this objective. After all, there is an unwritten rule or, more accurately, a democratic practice that whoever wins the elections, even absent a majority, should get the position or at least get the first opportunity to try to form the necessary coalition. However, we should not forget that democracy, whether in, is national or supranational is first and foremost the pursuit of consensus. The “burden” to find said consensus and build a coalition in the EP that allows him/her to be selected as President of the EC rests on the candidate. If the candidate that got the most votes, but no majority is unable to do and someone else is, it means that someone else is able to command a broader democratically elected coalition and, therefore, having superior democratic legitimacy should be selected instead.
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Online Legal Platforms – The beginning of the 4.0 Law Practice?

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Innovation Concept

 by Pedro Petiz, Master's student in Law and Informatics at UMinho

▪

The 4.0 revolution has reached the legal services sector. New online platforms are emerging to connect clients and lawyers, while also providing new and innovative legal services. Nonetheless, several questions arise regarding these new businesses: Are they allowed under Portuguese law? And how are Bar Associations dealing with this new reality?

There are mainly two types of online legal platforms:

– Two-sided Platforms, where an intermediary selects the lawyers who appear on the website, defining the order in which they appear, or referring them to potential clients.[i]

– And websites providing legal services, which are provided directly or indirectly, not necessarily by lawyers.[ii] This category includes question and answer websites (https://answers.justia.com), legal chatbots (www.donotpay.com) and sites where legal documents are automatically drafted (https://lawhelpinteractive.org,[iii] http://www.a2jauthor.org[iv] or the Brazilian http://www.yousolveonline.com ).

Regarding the first type of platform, the Portuguese Bar Association has imposed a total prohibition on its use, on the grounds that they constitute “client solicitation”.[v] In my opinion, this prohibition is disproportionate and constitutes a breach of Article 101 of the TFEU.[vi]

As stated by the European Commission, professional rules “must be objectively necessary to attain a clearly articulated and legitimate public interest objective and they must be the mechanism least restrictive of competition to achieve that objective”.[vii]
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Summaries of judgments

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Summaries of judgments made in collaboration with the Portuguese judge and référendaires of the CJEU (Nuno Piçarra, Mariana Tavares and Sophie Perez)
 ▪

Judgment of the Court (Sixth Chamber) of 27 March 2019, slewo – schlafen leben wohnen GmbH v Sascha Ledowski (Case C-681/17, EU:C:2019:255)

Reference for a preliminary ruling — Consumer protection — Directive 2011/83/EU — Article 6(1)(k) and Article 16(e) — Distance contract — Right of withdrawal — Exceptions — Concept of ‘sealed goods which are not suitable for return due to health protection or hygiene reasons and which have been unsealed by the consumer after delivery’ — Mattress whose protective seal has been removed by the consumer after delivery

The dispute in the main proceedings and the questions referred for a preliminary ruling

The request for a preliminary ruling was made in proceedings between slewo — schlafen leben wohnen GmbH (‘slewo’), an online trader which sells, inter alia, mattresses, and Mr Sascha Ledowski, concerning his exercise of his right of withdrawal in relation to a mattress purchased on slewo’s website.
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Editorial of June 2019

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 by Alessandra Silveira, Editor
 and Sergio Maia, Managing Editor

▪


Strengthening the rule of law in the EU on the D-Day 75th Anniversary

On 3 April 2019, the European Commission opened a debate to strengthen the rule of law in the EU and setting out possible avenues for future action. The Commission invited the European Parliament, the European Council and the Council, and the Member States as well as relevant stakeholders, including legal networks and civil society, to reflect on this issue and contribute with concrete ideas on how the rule of law toolbox could be enhanced in the future. Building on this reflection process and the ongoing debate, the Commission will return to this issue with its own conclusions and proposals in June 2019. As first Vice-President Frans Timmermans said, the Union’s capacity to uphold the rule of law is essential, now more than ever. First because it is an issue of fundamental values, a matter of “who we are”. Second, because the functioning of the EU as a whole depends on the rule of law in all Member States. The confidence of all EU citizens and national authorities in the legal systems of all other Member States is vital for the functioning of the whole EU as “an area of freedom, security and justice without internal frontiers”.[i]

On this 6 June 2019, D-Day 75th Anniversary, we add more one reason:  European integration emerged as an anti-fascist response to the collapse of the rule of law in the period between the two World Wars. What is important to highlight now is that all the legal-constitutional construction of the post-war in Europe is based on the idea that democracy, in the absent of the rule of law, becomes the tyranny of majority. Without the rule of law, we have nothing, only the nationalist populism and its disastrous consequences. Nationalist populism knows that, being a form of political communication that attempts to reach its goals by breaking the dialectic connection between democracy and rule of law.  So, as the rule of law can be improperly used, the main question in this context is to know what is the substance of the Union based on the rule of law.
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Summaries of judgments

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Summaries of judgments made in collaboration with the Portuguese judge and référendaires of the CJEU (Nuno Piçarra, Mariana Tavares and Sophie Perez)
 ▪


Judgment of the Court (Grand Chamber) of 26 March 2019, SM v Entry Clearance Officer, UK Visa Section (Case C-129/18, EU:C:2019:248)

Reference for a preliminary ruling — Citizenship of the European Union — Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States — Directive 2004/38/EC — Family members of a citizen of the Union — Article 2(2)(c) — ‘Direct descendant’ — Child in permanent legal guardianship under the Algerian kafala (provision of care) system — Article 3(2)(a) — Other family members — Article 7 and Article 24(2) of the Charter of Fundamental Rights of the European Union — Family life — Best interests of the child

1. Facts

The request for a preliminary ruling was made in proceedings between a couple of French nationals and the Entry Clearance Officer, UK Visa Section, concerning the latter’s refusal to grant SM entry clearance for the territory of the United Kingdom as an adopted child. Abandoned by her biological parents at birth, SM was placed in the guardianship of the couple in 2011 under the Algerian kafala system. The application for entry clearance for the United Kingdom was refused on the ground that guardianship under the Algerian kafala system was not recognised as an adoption under United Kingdom law and that no application had been made for intercountry adoption.

The Supreme Court of the United Kingdom was called upon to hear the case on appeal and referred to the Court of Justice questions for a preliminary ruling on the interpretation of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158, p. 77).
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Cyber-regulatory theories: between retrospection and ideologies

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by Luana Lund, specialist in telecommunications regulation (ANATEL, Brazil)
 ▪

This article presents a brief history of some of the main theories about internet regulation to identify ideological and historical relationships among them.

In the 1980s, the open-source movement advocated the development and common use of communication networks, which strengthened the belief of the technical community in an inclusive and democratic global network [1]. This context led to the defense of full freedom on the internet and generated debates about the regulation of cyberspace in the 1990s. In the juridical area, Cyberlaw movement represents the beginning of such discussions [2]. Some of these theorists believed in the configuration of cyberspace as an independent environment, not attainable by the sovereignty of the States. At that time, John Perry Barlow was the first to use the term “cyberspace” for the “global electronic social space.” In 1996, he published the “Internet Declaration of Independence“, claiming cyberspace as a place where “Governments of the Industrial World […] have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear […] Cyberspace does not lie within your borders” [3].
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Summaries of judgments

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Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
 ▪

Judgment of the General Court  (Third Chamber) of the 14th of May 2019, T-795/17, C. Moreira/EUIPO (Neymar)

http://curia.europa.eu/juris/document/document.jsf;jsessionid=2F7E92B2A7F19F8025819B84B2292322?text=&docid=214045&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=8873348)

EU trade mark — Invalidity proceedings — EU word mark NEYMAR — Declaration of invalidity — Bad faith — Article 52(1)(b) of Regulation (EC) No 207/2009 (now Article 59(1)(b) of Regulation (EU) 2017/1001

1. Facts

In December 2012, Mr C Moreira filed an application for registration of the word sign ‘NEYMAR’ as a EU trade mark, in respect of clothing, footwear and headgear. The mark was registered in April 2013.

In February 2016, Mr Neymar Da Silva Santos Júnior, filed an application with EUIPO for a declaration of invalidity against that mark in respect of all the goods covered by it. The application for a  declaration of invalidity was upheld by EUIPO.

Mr Moreira then brought an action before the General Court against the decision of EUIPO.

2. Decision

The Court begins to note that  it is demonstrate that Mr Neymar Da Silva Santos Júnior was already known in Europe at the relevant date and was already recognised as a very promising football player, having drawn the attention of top-flight clubs in Europe in view of future recruitment, several years before his actual transfer.

The Court also confirms that Mr Moreira possessed more than a little knowledge of the world of football, as proven by the fact that he filed an application for registration of the word mark ‘IKER CASILLAS’, a mark corresponding to the name of another famous football player, on the same day he sought registration of the mark ‘NEYMAR’.
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Europe at the crossroads: the importance of the elections to the European Parliament

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European elections 2019 text with European Union flag

by Carlos Botelho Moniz, Chairman - Portuguese European Law Association
 ▪

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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