Editorial of October 2018

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 by Vlad Jurje, PhD candidate and Lecturer at Universidad Rey Juan Carlos

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Poland v. Fundamental Rights?

A new episode concerning to the Rule of Law in Poland has recently taken place and the European Commission is very concerned. After the recent reform of the National Council of the Judiciary[i], the Polish Parliament has the capacity to decide when to appoint the member judges that compose it. A fact that seriously undermines the norms and international standards on which the independence of the judicial power in Europe is regulated.

We also highlight the instability that has arisen from the reform of the Constitutional Court in Poland because the interference that the Executive and the Legislative branches have committed put at risk the independence of the judicial power. According to the new law which has come into force, out of the 72 current members that form part of the Supreme Court 27 could be forced to retire, since the retirement age was changed: instead of retiring at 70, the new law would remove men at 65 and women at 60.
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1st August 2018, Earth Overshoot Day

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 by Sophie Perez Fernandes, Junior Editor

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According to data from the Global Footprint Network, August 1 is Earth Overshoot Day 2018.

Earth Overshoot Day is an initiative of Global Footprint Network, a non-profit international research organization dedicated to the development and promotion of tools to promote sustainable development. The date of Earth Overshoot Day is calculated by comparing two metrics: the Global Ecological Footprint, humanity’s total yearly consumption, with biocapacity, Earth’s capacity to regenerate renewable natural resources in that year. Both metrics are calculated each year with National Footprint Accounts and using UN statistics and data from additional sources.

As explained in the website, Earth Overshoot Date marks the date when all of humanity have used more from nature than our planet can renew in the entire year. According to the information disclosed last June, humanity will have exhausted on August 1, that is, in just over seven months, its entire nature’s resource budget of 2018. As from that date, the world will live on credit in 2018 – an environmental credit that, according to the data disclosed, is contracted earlier and earlier. Exceeding in 1961, planet Earth registered the first deficit in its environmental budget in the 1970s. Since then, the growing ecological footprint that accompanies the demographic and economic growth of the planet explains that Earth Overshoot Day occurs ever earlier – until the earliest date calculated of August 1 in 2018.
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The security at sports events: an important issue for the European Union

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by Álvaro Alzina Lozano, PhD candidate and Lecturer of Criminal Law at Universidad Rey Juan Carlos

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On the occasion of the celebration of sporting events in the European Union of such high magnitude as the (UEFA) Champions League, we must analyze how the Union itself has provided cooperation mechanisms to the Member States in order to eradicate possible violent acts in stadiums, because we all remember the lousy images of the last football games in the 2016 European Championship held in France where groups of ultras coming from different cities started urban wars.

The concerns of the European institutions to eliminate the violence generated by hooligans has its origin in the tragedy of Heysel, in which during the 1985 Champions League final at the Heysel Stadium in Brussels (Belgium) 39 fans died after an avalanche caused by the Liverpool hooligans. Furthermore, we must add that two weeks later another 56 fans died in a football stadium in Valley Parade due to a fire.

These main facts caused a movement of concern in the European institutions to prevent these sorts of incidents, and the Council of Europe approved in that year the European Convention on Spectator Violence and Misbehaviour at Sports Events and in particular at Football Matches, which was modified in 2015 by a more updated one.
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The impact of Brexit on international trade taxation

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 by Andreia Barbosa, PhD student at the Law School of UMinho
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On 23 June 2016, the British people decided to leave the European Union, re-launching the idea that belonging to the European Union, in the light of Article 50 of the Treaty on European Union, does not seem to be an obligation, but a choice. States have the (unilateral) right to leave.

The actual effects of Brexit are not yet fully known. In fact, its exact consequences will only be effectively known when the negotiations are over – which will only happen, predictably, in early 2019.

There are, however, more likely scenarios than others and, consequently, more likely effects than others. Among the most immediate scenarios and effects, are those relating to the commercial transactions between the United Kingdom and the European Union. Because, of course, one of the most important ideals of the European Union is the free movement of goods, based on the existence of a single market without technical and physical frontiers in the free movement of persons, services, goods and capital­. So, the question arises as to the terms under which trade in goods between the United Kingdom and the Member States of the European Union will take place.
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Editorial of July 2018

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 by Alessandra Silveira, Editor 
 and Sophie Perez Fernandes, Junior Editor

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Artificial intelligence and fundamental rights: the problem of regulation aimed at avoiding algorithmic discrimination

The scandal involving Facebook and Cambridge Analytica (a private company for data analysis and strategic communication) raises, among others, the problem of regulating learning algorithms. And the problem lies above all in the fact that there is no necessary connection between intelligence and free will. Unlike human beings, algorithms do not have a will of their own, they serve the goals that are set for them Though spectacular, artificial intelligence bears little resemblance to the mental processes of humans – as the Portuguese neuroscientist António Damásio, Professor at the University of Southern California, brilliantly explains[i]. To this extent, not all impacts of artificial intelligence are easily regulated or translated into legislation – and so traditional regulation might not work[ii].

In a study dedicated to explaining why data (including personal data) are at the basis of the Machine-Learning Revolution – and to what extent artificial intelligence is reconfiguring science, business, and politics – another Portuguese scientist, Pedro Domingos, Professor in the Department of Computer Science and Engineering at the University of Washington, explains that the problem that defines the digital age is the following: how do we find each other? This applies to both producers and consumers – who need to establish a connection before any transaction happens –, but also to anyone looking for a job or a romantic partner. Computers allowed the existence of the Internet – and the Internet created a flood of data and the problem of limitless choice. Now, machine learning uses this infinity of data to help solve the limitless choice problem. Netflix may have 100,000 DVD titles in stock, but if customers cannot find the ones they like, they will end up choosing the hits; so, Netflix uses a learning algorithm that identifies customer tastes and recommends DVDs. Simple as that, explains the Author[iii].
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Judgment “Altun”: priority to fight against cross-border social security fraud and social dumping or a just a trick mirror?

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by Marc Morsa, Senior Researcher at the Faculty of Law of the University of Louvain-La-Neuve

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1. Social dumping and binding force of E101 certificate (A1 document)

1.1 The scope of the binding force of E101 certificate

In the fight against cross-border social fraud and social dumping the competent authorities of the host Member State in whose territory posted workers are employed often come up against the binding force attached to the E101 certificates stating that the worker concerned continued to be subject to the legislation of that Member State, and until which date. This binding force has been defined by the ECJ in a well-established jurisprudence[i]. This certificate thus necessarily implies that the other Member State’s social security system cannot apply[ii]. It establishes a presumption that the worker concerned is properly registered with the social security system of the Member State in which the undertaking employing him is established[iii][iv]

1.2 The cornerstone of the binding force of E101 certificate: the principles of loyal cooperation and mutual trust between the EU and its Member States

For the ECJ this presumption of regularity of affiliation derives from the principle of loyal cooperation, set out in Article 4 (3) TEU and its corollary, the principle of mutual trust[v]. Both principles impose on the social security institutions concerned a double reciprocal and interdependent obligation[vi]. Thus, to the negative obligation incumbent on the competent institution of the host Member State (and on all the courts and tribunals of the Member States regardless of the nature of the proceedings brought, whether civil or criminal) not to unilaterally challenge the certificate E101 – its particulars[vii] and not to question the validity of an E 101 certificate in the light of the elements on the basis of which it was issued corresponds to the positive obligation incumbent on the competent institution (issuing the E 101 certificate) to make a proper assessment of the facts relevant for the application of the rules relating to the determination of the legislation applicable to social security and, consequently, to ensure that the information contained in an E 101 certificate is accurate[viii].
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Transposition of the Damages Directive in Portugal

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 by Maria Barros Silva, Trainee Lawyer at SRS Advogados

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Directive 2014/104/EU was finally transposed into the Portuguese legal system by Law No. 23/2018 of 5 June, which regulates the right to compensation for victims of infringements to competition law. The Damages Directive was published on 26 November 2014, having a deadline for transposition on 27 December 2016. Portugal was the last Member State to transpose the Directive, almost a year and a half after the deadline, following a call from the Commission to take the necessary steps to ensure its full implementation. Hopefully, this will avoid an infringement procedure from the Commission and any possible fines.

In essence, the content of the Law corresponds to the text of the Directive, although it does go beyond it in certain aspects, with some innovative solutions.

Firstly, the scope of the Law. It applies not only to actions for damages for infringements of European Union competition law (Articles 101 and 102 TFEU, with or without parallel application of equivalent national rules), as laid down in the Directive; but also to actions for damages based on purely national infringements, with no cross-border effects (Articles 9, 11 and 12 of the Competition Law – Law no. 19/2012, of 8 May) or corresponding legal norms in other Member States. Secondly, the law applies not only to actions for damages, but also to other claims based on infringements of competition law.
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Just married, indeed! Same-sex marriage and free movement of EU citizens – the ECJ’s ruling in Coman and Others

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 by Sophie Perez Fernandes, Junior Editor

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In a previous post, a report was given of the Opinion of Advocate General Wathelet, in the Coman and Others case. Based on a literal, contextual and teleological interpretation of Directive 2004/38, in particular its Article 2(2)(a), the Advocate General called for an autonomous and uniform interpretation throughout the EU of the term ‘spouse’ within the meaning of the directive, an interpretation which is independent of sexual orientation. Now that the European Court of Justice (ECJ) has delivered its ruling, the relevant interpretation of the term ‘spouse’ within the meaning of Directive 2004/38 has been made clear.

The Coman and Others case concerns the situation of Mr. Relu Adrian Coman, who holds both Romanian and American citizenship, and who married Mr Robert Clabourn Hamilton, a US citizen, in Belgium in 2010. Since the end of 2012, the couple have taken steps so that Mr Hamilton could, as a member of Mr Coman’s family, obtain the right to lawfully reside in Romania for a period of more than three months. Their request was denied on the basis that, under the Romanian Civil Code, marriage between people of the same sex is not recognised, and that an extension of Mr Hamilton’s right of temporary residence in Romania could not be granted on grounds of family reunion. Thereafter, the couple brought an action against the decision seeking, inter alia, a declaration of discrimination on the ground of sexual orientation as regards the exercise of the right of freedom of movement in the EU. In that dispute, they also argued that the relevant provisions of the Civil Code were unconstitutional, plea on which the Curtea Constituţională (Constitutional Court, Romania) was requested to rule on.
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Editorial of June 2018

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 by Joana Covelo de Abreu, Junior Editor
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E-justice: e-codex as the interoperable solution to a judicial integration?

Digital Single Market has become a new political calling for the EU as it can promote both economic growth and sustainable development.

Some secondary public interests were devised in order to promote it and to achieve its goals. Then, EU is engaged on delivering those solutions and it is doing so through its shared competences [Articles 2(2) and 4(2) of the TFEU].

On the matter, from early on the European institutions devised interoperability as the method to be implemented – as an ICT concept, “the European Interoperability Framework promotes and supports the delivery of European public services by fostering cross-border and cross-sectoral interoperability”, where judicial services are also included. This interoperability scheme was deepened under ISA2 Programme (Decision No. 2015/2044), standing for “the ability of disparate and diverse organizations to interact towards mutually beneficial and agreed common goals, involving the sharing of information and knowledge between organizations, through the business processes they support, by means of the exchange of data between their respective ICT systems” [Article 2(1) of the mentioned Decision].

Taking this method as a referral, both Member States and European institutions have to be able to interconnect their systems to promote data exchange. This definition entails three main dimensions: a technical, a semantic and an organisational interoperability since it addresses not only the electronic solutions that have to be achieved but it will also impact on the way the involved agents communicate and shape the organisations where they are included.
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The first steps of a revolution with a set date (25 May 2018): the “new” General Data Protection regime

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by Pedro Madeira Froufe, Editor
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1. Homo digitalis[i] is increasingly more present in all of us. It surrounds us, it captures us. Our daily life is digitalising rapidly. We live, factually and considerably, a virtual existence… but very real! The real and the virtual merge in our normal life; the frontiers between these dimensions of our existence are bluring. Yet, this high-tech life of ours does not seem to be easily framed by law. Law has its own time – for now barely compatible with the speed of technologic developments. Besides, in face of new realities, it naturally hesitates in the pursuit of the value path (therefore, normative) to follow. We must give (its) time to law, without disregarding the growth of homo digitalis.

2. Well, today (25 May 2018) the enforcement of Regulation 2016/679 (GDPR) begins. Since 25 January 2012 (date of the presentation of the proposal for the Regulation) until now the problems with respect to the protection of fundamental rights – in particular the guarantee of personal data security (Article 8 CFREU) – have been progressively clearer as a result of the increase in the digital dimension of our lives. Definitely, the personal data became of economic importance that recently publicized media cases (for example, “Facebook vs. Cambridge Analytics”) underline. Its reuse for purposes other than those justifying its treatment, transaction and crossing, together with the development of the use of algorithms (so-called “artificial intelligence” techniques) have made it necessary to reinforce the uniform guarantees of citizens, owners of personal data, increasingly digitized.
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