Artificial intelligence: 2020 A-level grades in the UK as an example of the challenges and risks

by Piedade Costa de Oliveira (Former official of the European Commission - Legal Service)
Disclaimer: The opinions expressed are purely personal and are the exclusive responsibility of the author. They do not reflect any position of the European Commission

The use of algorithms for automated decision-making, commonly referred to as Artificial Intelligence (AI), is becoming a reality in many fields of activity both in the private and public sectors.

It is common ground that AI raises considerable challenges not only for the area for which it is operated in but also for society as a whole. As pointed out by the European Commission in its White Paper on AI[i], AI entails a number of potential risks, such as opaque decision-making, gender-based bias or other kinds of discrimination or intrusion on privacy.

In order to mitigate such risks, Article 22 of the GDPR confers on data subjects the right not to be subject to a decision based solely on automated processing which produces legal effects concerning them or similarly significantly affects them[ii].

Continue reading “Artificial intelligence: 2020 A-level grades in the UK as an example of the challenges and risks”

The “mandatory” contact-tracing App “StayAway COVID” – a matter of European Union Law

by Alessandra Silveira, Joana Covelo de Abreu (Editors) and Tiago Sérgio Cabral (Managing Editor)

1. During the previous week there as been plenty of controversy regarding a proposal by the Portuguese Government to make the installation of the App “StayAway COVID” (“App”) – a mobile contact-tracing application designed to fight the pandemic – mandatory for large sections of the population. While the Government appears to have backed down from this idea (for now) the issue of European Union Law (“EU Law”) has been surprisingly absent from most of the debate around a measure of this nature, even though it should be front and centre and precedes even the issue of constitutionality.

As we will show in this text, it is difficult to argue against the conclusion that this subject should be considered as a matter of EU Law – and, consequently, that this is a question of fundamental rights protected by the European Union (“EU”). In the EU’s legal framework, privacy and personal data protection are fundamental rights enshrined within Article 16 of the Treaty on the Functioning of the EU and Articles 7 and 8 of the Charter of Fundamental Rights of the EU (CFREU). Since it is a matter regulated at EU level, the EU’s standard of fundamental rights’ protection is applicable before and above even the national constitutional standards of protection[i]. So, this is not just a Portuguese constitutional problem that can be solved in the light of the Portuguese Constitution – it is an issue of relevance to all European citizens which needs to be resolved in the light of the EU´s (jus)fundamental standards (see Article 51 CFREU).[ii] It is important to be aware that the Court of Justice of the EU (“ECJ”), in the past, struck down constitutional provisions from Member States to ensure the adequate protection of fundamental rights of privacy and personal data protection[iii]. This is because all Member States do not have the same level of (jus)fundamental protection.

2. Under the current legal framework in the EU, enforcing the use of any contact-tracing application to the general public (or to large sections of the general public such as the entire population inserted within the labour market, academia, schools and public administration) would always face some serious challenges.

Continue reading “The “mandatory” contact-tracing App “StayAway COVID” – a matter of European Union Law”

Editorial of October 2020

by Filipe Marques, President of MEDEL (Magistrats Européens pour la Démocratie et les Libertés)

Rule of Law in the European Union: the danger of a systematic change of the concept?

In the last day of September 2020, the European Commission publicly presented the first Rule of Law Report, intended to give an overview of the situation of Rule of Law in all twenty-seven EU Member States[i]. In the introductory words of this document, it is stated the Rule of Law, together with fundamental rights and democracy, “are the bedrock of our societies and common identity”.

The report came out just two weeks after President Ursula Von der Leyen, in her first State of the Union speech before the European Parliament Plenary, recognized that “the last months have also reminded us how fragile [Rule of Law] can be” and pledged to “always be vigilant, to care and nurture for the rule of law” [ii].

The current and ongoing situation in the EU, however, is much too serious to be tackled only with nice words in a speech or data collected in a report. The events and signs coming directly from the ground clearly show us that the time to act is now, before we reach a point of no return.

Continue reading “Editorial of October 2020”

New Pact on Migration and Asylum – first impressions and old deceptions

Ana Maria Rodrigues, PhD candidate and Lecturer at UMINHO
 ▪

Last week, the European Commission has launched its long-awaited proposal for a New Pact on Migration and Asylum. Alongside the new Pact comes a hoard of political and legislative proposals. The said intention is to set a new European framework that can, on the one hand, acknowledge collective responsibilities, on the other hand, address the fundamental concerns with solidarity (or lack of), and finally, tackle the implementation gap.

Proposals comprise a new regulation on asylum and migration management, a new regulation establishing a common procedure for international protection (therefore repealing the corresponding Directive), a new regulation introducing a screening of third-country nationals at the external borders, a new regulation addressing situations of crisis and force majeure in the field of migration and asylum (therefore repealing the temporary protection directive), and a new regulation on Eurodac (aimed at replacing the current one), as well as several other soft law instruments and some of the 2016 reform proposals on which political agreement was reached.

Continue reading “New Pact on Migration and Asylum – first impressions and old deceptions”

Financial Supervision Models

Marina Barata, Master's in Law
 ▪

 

The debate on the structure and functioning of the European financial system is necessarily linked to the discussion regarding the financial supervision models.

This is not a recent issue, since it resurfaces with every financial crisis, but it is still relevant, especially if we take into account that the globalization movement brings along a greater propensity for instability in the financial sector given the risk of contagion, systemic risk or the domino effect.

Financial globalisation has gradually, in the name of synergies and competitive advantages, blurred the boundaries between the various sectors of financial activity, allowing the financial conglomerates to emerge.

Today, in addition to the traditional credit function of banking — raising savings or other repayable funds and transferring them on own account to other economic agents through loans or other forms of financing — Banks can provide investment services, operate on the stock exchange, invest in own account in real estate, and mediate insurance.

Continue reading “Financial Supervision Models”

Labor Apartheid: the next frontier of social inequality and the role of European Union

Maria Fernanda Brandão, Master's degree student in EU Law at UMinho
 ▪

 

Guiding the reasoning by the dialectic theory, in the perspective of Hegel and Marx, it is possible to contemplate the history of humanity as an inexhaustible class struggle. The conflict between dominant and dominated groups is one of the main legacies of the human action throughout the time. Thesis, antithesis, and synthesis, this seems to be the endless plot of the path taken by man.

The perspective of what is a ruling class is modified routinely over the centuries. In the last two, the polarization have been between the owners of the productive ways and assets and the wage-earning workers, which is, by the way, the feature of the capitalism and its intrinsic contradiction and, despite the conflict, the existence of both classes is necessary for the maintenance of the economic system.

However, several social transformations that occurred throughout the 20th century created new outcast groups in need of society’s attention for its integration. This was the case of women, in the search for effective equality in terms of labor rights, or the disabled and ethnic minority groups, and their notorious difficulty in employability. The State’s action, in all these cases, has been affirmative policies, such as the setting of quotas, subsidies and social integration campaigns.

However, the fourth industrial revolution sheds new light into these issues since a significant portion of the existing jobs is currently at risk of extinction due to the extreme robotization associated with the existence of artificial intelligence (AI). What can be seen, therefore, is a complete change of paradigm that places individuals of the most diverse shades on the same losing side, concentrating people of different races, genders, ages, social strata and schooling in the same group, deepening the inequality that has only skyrocketed since the welfare state collapsed in most parts of the world. This is what we call labor apartheid, due to the profound segregation of human beings from work and consumption caused by their productive unavailability. Continue reading “Labor Apartheid: the next frontier of social inequality and the role of European Union”

The Impact of the Services Directive 2006/123/EC in Portugal and Spain and its effects on the Legaltech Industry

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

“Just think what Europe could be. Think of the innate strengths of our enlarged Union. Think of its untapped potential to create prosperity and offer opportunity and justice for all its citizens. Europe can be a beacon of economic, social and environmental progress to the rest of the world.”[i]

This auspicious introduction belongs to the Communication from the European Commission, “Working together for growth and jobs – A new start for the Lisbon Strategy”.

To reach Europe’s “untapped potential” for prosperity, the Lisbon Strategy aimed at the completion of the Single Market in the area of the energy, transport, public procurement, financial services, and in the area of regulated professions.[ii]

The Services Directive (2006/123/EC) played an important role in this objective, since it required Member States to take concrete legislative measures to abolish the restrictions on the freedom to provide services that were found as being unnecessary and disproportionate.[iii]

This also encompassed the rules on the liberal professions, such as fixed minimum or maximum tariffs [Article 15(2)(g)], restrictions on advertising (Article 24), and – most importantly – restrictions on multidisciplinary partnerships (Article 25).

Continue reading “The Impact of the Services Directive 2006/123/EC in Portugal and Spain and its effects on the Legaltech Industry”

Editorial of September 2020

europe-palace-5414751_1920

by Alessandra Silveira, Joana Abreu and Pedro M. Froufe, Editors and Jean Monnet Module eUjust Team


The German Presidency of the Council of the European Union – the European digital path in justice fields in times of COVID-19


On the 1st July 2020, the Federal Republic of Germany has received the task of holding the Presidency of the Council of the European Union until the 31st December 2020, as this European Institution operates through a system of rotating presidency. This Member State will be closely working in a group of three – the so-called “trio” – which will also be composed by Portugal and Slovenia.  

Therefore, as the world is still struggling with the COVID-19 pandemic, it is experiencing a “time of unprecedented crisis”, which has to be strongly addressed by this presidency and has to be perceived as its transversal priority so a more resilient European Union can emerge from this challenge.

Insofar, the motto of this Germany’s presidency is “Together for Europe’s recovery” since, as Chancellor Merkel underlined, “[w]e know that we can only master this extraordinary crisis in the best possible way if we work together”, “together” has to mean the engagement of governments, parliaments and citizens all across Europe.

Under the Programme for Germany’s presidency[i], “[o]nly by containing the SARS-CoV-2 virus in the long term, investing in Europe’s economy, fully exploiting our innovative potential and strengthening social cohesion can the European Union and its Member States overcome the crisis effectively and permanently”. As crisis were always doors that led to new opportunities in the European Union, this presidency believes there is a need to “focus [the] attention on the major transformation processes of our time such as climate change, digitalisation and the changing world of work”.

Continue reading “Editorial of September 2020”

Summaries of judgments

 

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 (Fourth Chamber) of 11 June 2020, LE v Transportes Aéreos Portugueses SA, Case C-74/19, EU:C:2020:460

Reference for a preliminary ruling — Air transport — Regulation (EC) No 261/2004 — Article 5(3) — Article 7(1) — Compensation to passengers in the event of denied boarding and of cancellation or long delay of flights — Exemption — Concept of ‘extraordinary circumstances’ — Unruly passengers — Possibility of relying on the occurrence of an extraordinary circumstance in respect of a flight not affected by that circumstance — Concept of ‘reasonable measures’

Facts

The dispute in the main proceedings is between a passenger and the air carrier Transportes Aéreos Portugueses (TAP) concerning its refusal to compensate that passenger whose connecting flight was subject to a long delay in arrival at its final destination. The passenger in question had made a reservation with TAP for a flight from Fortaleza (Brazil) to Oslo (Norway) with a stopover in Lisbon (Portugal).  The flight was operated on 21 and 22 August 2017 with a delay in arrival in Oslo of almost 24 hours. The delay was due to the fact that the passenger in question was unable to board the second leg of the connecting flight from Lisbon to Oslo because of a delay in the arrival of the first flight from Fortaleza to Lisbon. This delay was due to the fact that the aircraft which operated that flight, on its previous flight from Lisbon to Fortaleza, had had to be diverted to Las Palmas de Gran Canaria (Spain) in order to disembark an unruly passenger who had bitten a passenger and assaulted other passengers and members of the cabin crew. The passenger in question was therefore flown to Oslo on the next flight operated by TAP the following day.
Continue reading “Summaries of judgments”

The poor relation of tax harmonisation in the European Union – Direct Taxation

291437374_a54290cad9_o

 by Irene Isabel das Neves, Associate Judge, President of the Administrative and Fiscal Courts of the Northern Area (Portugal)

In the field of direct taxation, European law lacks concrete regulation, which leads to a lack of tax harmonisation, as opposed to indirect taxation, namely with the Value Added Tax (VAT) and Excise Duties (ED). However, several directives and the case law of the Court of Justice of the European Union (CJEU) itself are establishing a set of “harmonising” dynamics enforced at the level of direct taxation on the income of companies and individuals. In parallel, measures have been implemented to prevent and eliminate tax evasion and double taxation.

The proper functioning of a European internal market assumes a level playing field, i.e., it depends on tax neutrality arising from the standardisation of corporate taxes. The internal market is in fact the meeting point for European demand and supply: in this market, tax disparities disrupt trade and commerce, because even when similar products are involved, the most heavily taxed goods are less competitive and less attractive to consumers (distortion by demand); similarly, in the absence of uniformity of taxes, the choice of location of businesses within the Union may be linked to tax considerations (distortion by supply).
Continue reading “The poor relation of tax harmonisation in the European Union – Direct Taxation”