Editorial of June 2019

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 by Alessandra Silveira, Editor
 and Sergio Maia, Managing Editor

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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)
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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)
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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)
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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
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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

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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

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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

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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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Artificial Intelligence Technology Futuristic

 by Joana Abreu, Editor

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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?

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Canciller Ricardo Patiño se reunió con Julian Assange

 by Joana Whyte, Editorial Team

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“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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