“Fintech”: in search of a legal definition

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by Carlos Goettenauer (PhD Candidate at University of Brasília)
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During the last decade, the term “fintech” gained popularity and became a topic of discussion among market agents and financial regulators all around the world. The term’s origin, however, can be traced to the early 1990s, when Citigroup established the “Financial Services Technology Consortium”[1]. As with any other nascent buzzword, its meaning remains a subject of debate and controversy among many social actors. Market agents tend to associate the term “fintech” with innovations on financial systems and on so-called “market disruptions”, linking it to other common Silicon Valley tropes, such as “disintermediation” and “consumer-empowerment”. On the other hand, financial industry incumbents, and even its regulators, may wish to broaden the meaning of the term “fintech”, in order to fit all sorts of technological innovation under its umbrella. Considering its many possible meanings, it is time we ask whether there is space for a legal definition of “fintech”.

The law often plays a major role in reducing polysemy in contested expressions. Legal predictability and normative stability require terms to be precisely defined and agreed upon. This way, a legal definition (or even a statutory definition) of “fintech” would aid authorities in grounding their regulatory efforts, thus producing a more stable and predictable legal environment for both entrants and incumbents.

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Summaries of judgments: Ryanair DAC/Commission

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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)
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Judgment from General Court (Tenth Chamber, Extended Composition) of 17 February 2021, T – 259/20, Ryanair DAC/Commission

State aid – French air transport market – Deferral of payment of civil aviation tax and solidarity tax on airline tickets due on a monthly basis during the period from March to December 2020 in the context of the Covid-19 pandemic – Decision not to raise any objections – Aid intended to make good the damage caused by an exceptional occurrence – Free provision of services – Equal treatment – Criterion of holding a license issued by the French authorities – Proportionality – Article 107(2)(b) TFEU – Duty to state reasons

1. Facts

On 24 March 2020, French Republic notified the Commission of an aid scheme in the form of a deferral of the payment of civil aviation tax and solidarity tax on airline tickets due on a monthly basis during the period from March to December 2020, accordingly with Article 108(3) TFUE. This aid is designed to guarantee that the airlines holding an operating license issued in France are able to maintain sufficient liquidity until the restrictions, prohibitions on movement are lifted, and normal commercial activity is resumed. With this measure, the French Republic differs the referred tax payment until the 1 January 2021 and then spreads payments over a period of 24 months, until 31 December 2022.

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Editorial of April 2021

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Tiago Sérgio Cabral (Managing Editor)
▪

The Council’s Position regarding the proposal for the ePrivacy Regulation: out of the frying pan and into the fire?

1. The Council’s Position

On 10 February 2021, the Council of the European Union (finally) agreed on a negotiating mandate regarding the proposal for a new ePrivacy Regulation (the Council’s text shall be referred to as the ‘Council’s Position’ and the original Commission proposal as the ‘ePrivacy Proposal’), breaking a multi-year deadlock and giving new breath to the proposal which is meant to replace the current ePrivacy Directive 2002/58 and establish a coherent framework between the lex specialis and the general rules contained in the General Data Protection Regulation 2016/679 (GDPR).

While some expectations could be noted due to the long-awaited agreement, public reactions to the Council’s Position were not exactly warm. Notably, the Federal Commissioner for Data Protection and Freedom, Ulrich Kelber, considered that the Council’s Position, if adopted, would be a blow for data protection across the European Union. Particularly controversial were the provisions of the Council’s Position which may allow for the implementation of cookie walls, the rules on data retention and ‘return’ of metadata processing without consent.

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The importance of a conceptual reform in the regulation of emerging technologies

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by Manuel Resende Monteiro Protásio (LL.M Law & Technology, Tilburg University)
▪

Whenever a different situation or circumstance emerges in society, we, as a group of individuals, instinctively react by trying to comprehend it. The first individual and social construction that we build to understand reality in a consensual way is language itself.

Although our thoughts and concerns on how we perceive society may differ, as language, legal concepts try to establish a consensus between Law and almost every aspect of human life. If we add a new element to our human interactions, like technology, one should ask the question if this new element in our reality requires new language to understand it, or new legal concepts to regulate it.

The need to conceptualize the way we interact with our environment is inherent to our nature. In fact, Language and Law are the most established and sophisticated social constructions that people designed to control their interpersonal relations as well as the environment around them. Both are models of interpretation of our reality and tools that we created to control what we perceive. If we consider the impact of emerging and disruptive technologies in our society, we must assume that the need for a new conceptual approach to regulate technologies is undeniable.

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Options for keeping the Common Agricultural Policy within the Green Deal

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by Rafael Leite Pinto (Master in EU Law – University of Minho)
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1. Common Agricultural Policy (CAP) goals within the Green Deal

Presented in 2019, the Green Deal intends to pave the road for a sustainable European Union, cutting emissions by 40% until 2030 and achieving carbon-neutrality by 2050. At her first State of the Union speech, commissioner Ursula Von der Leyen updated the 2030 goal to 55%, following the Parliament’s goal of cutting emissions by 60%.  Within the Green Deal, the Commission revealed several strategic plans including the “Farm2Fork Strategy” and “Biodiversity Strategy”. These plans unveiled the most ambitious goals ever when it comes to reducing the environmental impacts of food production, such as a 50% reduction in pesticide use until 2030; 50% reduction in soil nutrient loss; 50% reduction of antibiotic use in animal farms; increase of the total share of organic farming land to 25%; establish 30% of land and sea as protected areas; plant 3 billion trees; halt and reverse the decline of pollinators; and invest 20 billion euros per year on biodiversity.

Despite the bold target setting, several issues related to the implementation of the necessary measures have been raised. Mainly the compatibility of the proposed Common Agricultural Policy post-2020 and the established goals. The first proposal by the Commission, published in 2018 showed some improvement in agri-environmental measures but was largely classified as insufficient[i],[ii] even for the less demanding goals at the time. In its “How the future CAP will contribute to the EU Green Deal” document, the Commission refrained from further developing the proposal, repeating the previously announced measures. That said, a later published Staff Working Document[iii] concluded that the proposed CAP could have a potential contributory effect to the Green Deal goals, as long as it was approved by the Parliament and the Council in the exact terms proposed, or more demanding ones. Problem is, historically, CAP proposals are diluted in the trilogue and this time was no different. At the end of 2020, a final agreement was reached, and the new CAP was voted in what has been classified by NGO’s as “a kiss of death” for nature in Europe[iv]. Both, the Parliament and the Council voted to soften the proposed agri-environmental measures leading to public outrage and campaigns such as “#votethisCAPdown” and “scrapthisCAP”. The World Wildlife Fund (WWF) accused the European Union’s institutions of ignoring the Green Deal and the evidence when it comes to agriculture’s environmental impacts[v]. For Greenpeace, the new CAP represents the death of small farmer’s and possibly the Green Deal[vi].

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Millennials and Covid-19 pandemic: an exploratory analysis

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by Felipe Debasa and José Ramón Saura (Universidad Rey Juan Carlos)
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Youths has traditionally been considered the period that precedes human maturity. However, the Baby boomer generation, the one we find after World War II, changes the term. Youth will be considered by them as the end of childhood, the culmination stage of human development. This change in point of view is the origin of the rebellious behaviors and a spirit of freedom that mark the decades of the 60s and 70s so approached by literature, music and cinema. The Baby Boomer generation in the United States and in Europe is the first generation that does not suffer a war in its own territory and that does not suffer from a shortage of food or services. Youth leisure and a consumer society focused on young people became widespread, something unthinkable at the beginning of the 20th century. As a result of this scenario, the characteristic cultural movements of an era that has marked the development of the Western world until the fall of the Berlin Wall and the disappearance of the USSR appear. Faced with this new non-war scenario, there are also youth movements protesting against their model of life. Especially against the consumer society, the rigidity of social norms and the wars in other parts of the world for which they blame Western societies. This is how countercultures were born in the 1950s and 1960s, such as beats or hippies. However, some authors[i] point out that the Maoist ideas that circulated in May 68 crossed borders and oceans and reached Latin America. There they would be the germ of many revolutionary and terrorist movements that would shake Latin America during the last third part of the 20th century.

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Editorial of March 2021

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José Manuel Fernandes, Member of the European Parliament and of the MFF and own resources negotiating team
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The EU budget: a legal constellation for the recovery

I. Introduction

The approval of the Multiannual Financial Framework (MFF) is followed by an Interinstitutional Agreement (IIA) and a Decision on the EU system of Own Resources (ORD). Because of the pandemic, the Council, after Parliament’s insistence, and with strong support from Angela Merkel and Macron, put forward an historical and solidary decision: the use of a common guarantee based on the EU budget for the Commission to contract a debt of € 750 billion and establish the European Union Recovery Instrument through a Regulation[1] aiming to support the recovery in the aftermath of the COVID-19 crisis (NGEU). This decision was the only possible solution. Member States did not have the financial means to, for example, increase the EU budget. The decision increases the need for new own resources (sources of revenue). In fact, the NGEU has repercussions on the IIA, the ORD and the MFF 2021/2027 itself: these are all part of a negotiation “package”.

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Summaries of judgments: J & S Service | VL v Szpital Kliniczny im. dra J. Babińskiego Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie

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Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)

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Judgment of the Court (First Chamber) of 10 December 2020, J & S Service, Case C-620/19, EU:C:2020:1011.

Reference for a preliminary ruling – Personal data – Regulation (UE) 2016/679 – Article 23 – Restrictions – Important financial interest – Enforcement of civil law claims – National regulation referring to provisions of Union law – Tax data relating to legal persons – Incompetence of the Court

Facts

The dispute in the main proceedings opposes the Land Nordrhein‑Westfalen to D.‑H. T., acting as trustee in bankruptcy for J & S Service UG, in connection with a request for obtaining tax data concerning this company.

The tax administration having rejected this request, D.-H. T. appealed to the competent Verwaltungsgericht, which essentially upheld his appeal. The competent Oberverwaltungsgericht dismissed the appeal lodged by the Land Nordrhein-Westfalen against the judgment at first instance. This court considered in particular that the right of access to information, exercised on the basis of the law on freedom of information, was not precluded by existing specific rules in tax matters. Therefore, although the information requested was covered by tax secrecy, D.-H. T. was entitled, in his capacity as trustee in bankruptcy, to ask J & S Service for any information relating to the insolvency proceedings. The Land Nordrhein-Westfalen appealed against this decision to the Bundesverwaltungsgericht.

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The transversality of mental health in a “European Health Union”

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Alessandra Silveira (Editor) and Maria Inês Costa (Master's student in Human Rights at University of Minho)
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The Portuguese Presidency of the Council of the EU 2021 Program reinforces the need to strengthen cooperation between Member States in the field of health, to support actions needed to increase the responsiveness of health services to threats to public health.[1] In the debate regarding a “European Health Union” it is important to underscore that mental health is a transversal approach to all health policies. However, despite the many targeted resolutions covering urgent aspects of mental health,[2] the debate on this issue never found its way to a comprehensive European framework.[3] Indeed, it is critical to consider the impediments to mental healthcare, the costs of neglecting mental healthcare, and Covid-19 impact on increasing fatigue and its consequences on mental healthcare.[4]

Above all, it is important to ponder that many mental disorders are shaped, to a large extent, by social, economic, and environmental factors[5] – that is, many of the causes and triggers of mental disorders reside in the Europeans daily life conditions.[6] According to the World Health Organization (WHO), the response to social, environmental, and economic determinants of health requires multisectoral approaches anchored in a human rights perspective. Multisectoral action is central to the SDG (“sustainable development goals”) agenda because of the range of determinants acting upon people’s health – such as socioeconomic status, gender, and other social determinants.[7]

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“All the world began with a yes”: on the EU strategies towards an environmental citizenship

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by Nataly Machado (Master's student in EU Law, UMinho)
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In a year of so many turbulences and uncertainties, the last month of 2020 contained dates that must be remembered and questioned about how is possible to improve what was once idealized and started. These are events that reveal changes in growing recognition of the global climate crisis as well as the EU strategies towards achieving environmental protection. 

1 year ago: on 11 December 2019, the European Commission announced the European Green Deal. It is a response with the objective of tackling climate and environmental-related challenges to transform the EU into the first climate neutral continent by 2050 with a just and inclusive transition, a clean, affordable, and secure energy supply, a modernized EU industry, a clean and circular economy and sustainable and smart mobility, with the protection of biodiversity[i].

5 years ago: on 12 December 2015, the Paris Agreement has signed and, as a legally binding international treaty on climate change, is a landmark in the multilateral climate change, in which all abiding nations commit to undertake efforts to combat climate change, in order to limit global warming preferably to 1.5 degrees Celsius compared to pre-industrial levels[ii].

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