Review of Portuguese Association of European Law’s webinar on the rule of law protection in the European Union

by Alessandra Silveira and Joana Covelo de Abreu (Editors)

On 28 May 2021 a webinar was held at the School of Law of the University of Minho under the theme “Rule of law protection in the European Union”, organized by the initiative of the Portuguese Association of European Law (APDE). The event had the moderation of Carlos Botelho Moniz (APDE’s President) and the interventions of Alessandra Silveira (Editor), Joana Covelo de Abreu (Editor) and José Manuel Fernandes (Member of the European Parliament, EPP’s Coordinator of the Committee on Budgets and Recovery and Resilience Facility Mechanism’s negotiator). In order to keep a record for future memory, some ideas presented by the participants will be reproduced in this review.

Speakers reflected on how the European Union has been playing a relevant role on the rule of law protection and has been proclaiming itself as a “Union of law”. They started by analysing the concept of rule of law and its implications from the Treaties, the CFREU and the Court of Justice jurisprudence – mainly from Les Verts[1] and Associação Sindical dos Juízes Portugueses[2] judgments (the later also known as “Portuguese Judges”)[3]. They also focused legal procedures that act against violations of the rule of law enshrined on Article 7 TEU, and the infringement procedure steaming from Article 258 TFEU, envisaging the possibility of Member States to explore the procedural way opened by Article 259 TFEU, namely because the political tension escalade within the European Union. But the preliminary ruling procedure of Article 267 TFEU was also mentioned as continuing to play an important role to national judicial authorities when they are facing the need to comply with EU law. Lastly, speakers also devoted their attention on the Rule of Law Conditionality (Regulation 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget) and on the debate around its approval and implementation.

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Editorial of June 2021

By Tiago Sérgio Cabral (Managing Editor)

Data Governance and the AI Regulation: Interplay between the GDPR and the proposal for an AI Act

It is hardly surprising that the recent European Commission’s proposal for a Regulation on a European Approach for Artificial Intelligence (hereinafter the “proposal for an AI Act”) is heavily inspired by the GDPR. From taking note of the GDPR’s success in establishing worldwide standards to learning from its shortcomings, for example by suppressing the stop-shop mechanism (arguably responsible for some of its enforcement woes).[1]

The proposal for an AI Act should not be considered a GDPR for AI for one singular reason: there is already a GDPR for AI, and it is called the GDPR. The scope and aims of the proposal are different, but there is certainly a high degree of influence and the interplay between the two Regulations, if the AI Act is approved, will certainly be interesting. In this editorial we will address one particular aspect where the interplay between the GDPR and the AI act could be particularly relevant: data governance and data set management.

Before going specifically into this subject, it is important to know that the AI Act’s proposed fines have a higher ceiling than the GDPR’s: up to 30,000,000 euros or, if the offender is company, up to 6% of its total worldwide annual turnover for the preceding financial year (article 71(3) of the proposal for an AI Act). We should note, nonetheless, that this specific value is applicable to a restricted number of infringements, namely:

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The rule of law and the defense of citizens against any power: on the case C-650/18 Hungary v European Parliament

by Alessandra Silveira (Editor) and Maria Inês Costa (Master´s student in Human Rights at the University of Minho)

The expression rule of law means that the exercise of public power is subject to legal norms and procedures – legislative, executive, judicial procedures –, which allow citizens to monitor and eventually challenge the legitimacy of decisions taken by the public power. The basic idea of the value of the rule of law is to submit power to law, restraining the natural tendency of power to expand and operate in an arbitrary manner – be it the traditional power of the State, or the power of novel political structures such as the European Union, be it the power of private organizational complexes – such as market forces, internet forces, sports forces, etc.

The procedure provided by Article 7 TEU is the most emblematic political instrument to defend the rule of law in the European Union. Article 7(1) TEU constitutes the initial phase in the procedure in the event of a clear risk of a serious breach by a Member State of the common values enshrined in Article 2 TEU. Article 7(2) TEU governs the next stage in which a serious and persistent breach by a Member State of the values laid down in Article 2 TEU can be established. Article 7(3) TEU ultimately provides for the issuing of sanctions against the Member State concerned.

Article 7(1) TEU provides that on a reasoned proposal by the European Parliament, the Council acting by a majority of 4/5 of its members may determine that there is a clear risk of a serious breach by a Member State of the common values of the Union referred to in Article 2 TEU. Moreover, Article 7(5) TUE provides that the voting arrangements applicable to the European Parliament are laid down in Article 354 TFEU – which provides that the European Parliament shall act by a 2/3 majority of the votes cast, representing the majority of its component Members.

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