Category: Comments

The EU and geopolitical Europe: from Belarus to Nagorno-Karabakh

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by Sandra Fernandes (Professor at UMinho/Researcher of the CICP)

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Two years ago, I commented on the gloomy prospects for the engagement of the European Union (EU) in its Eastern (and Southern) neighbourhood. Looking East, the challenges for the EU were “closely related to the degradation of the relations with Russia and to the unsatisfying deliveries of the European Neighbourhood Policy in the partner countries (Armenia, Azerbaijan, Belarus, Georgia, Moldova and Ukraine)”. Current developments in most of these countries take this observation to a higher level of seriousness. From the societal upheaval in Belarus to the existence of overt violent conflict in Eastern Ukraine and the enclave of Nagorno-Karabakh, the EU sees unrest in all its Eastern vicinity. In parallel, relations with Moscow have not happening in any way that could be considered positive dialogue.

In this context, and considering the democratic revindications of the Belarus people, much is awaited from a big neighbour that defends liberal values and the respect for the United Nations Charter. Brussels is expected to act in order to support the will of an oppressed population, mostly as the use of violence by the Lukashenko regime against its own population has been internationally condemned. So far, the Union has adopted sanctions against individuals directly involved in repression and intimidation and built plans for economic support for a democratic Belarus. The most visible stance consists in the non-recognition of the presidential election results of August 9.

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

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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

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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].

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

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

Competition and corona crisis in Spain

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 by María Pilar Canedo Arrillaga, Professor of Law, University of Deusto

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1. Spain is one of the countries that has been more seriously affected by the COVID19. In order to protect the health of citizens, the Spanish Government adopted some rules that radically limit the social and economic activity in Spain imposing the obligation to stay at home for citizens for a long period and ordering what has been called “the hibernation of the economic activity” for 15 days in all the non essential sectors (mostly health services, security and food)[i]. Those rules are having a dramatic effect in the economy especially in the labour market. This has implied the most relevant rise in the unemployment figures in Spain since the arrival of democracy in 1978[ii]. Also, they are having huge implications in the protection of legal certainty and social and personal rights of the citizens. Those consequences have a more relevant impact in the weaker actors in society both from the social and economic perspective and therefore the Government has decided to take measures with the aim of reducing the impact of the crisis in economy in general and, in particular to help those more harmed by the situation[iii].

2. It is evident that the most relevant overriding reason of general interest, which is human life, needs protection. That implies limits in the rights of the people that we could not foresee some months ago and those radical changes in social and economic behaviours will have impact in our business and industrial economy not only in the short term.

In these circumstances we can hear more radical voices claiming for a change in our economic model towards one in which the public sector controls different aspects of society, including company’s ownership[iv]. Others claim for public control of economic activity and/or business behaviour[v]. Others claim for higher protection to the companies so they can contribute to lower the destruction of employment[vi].

Also, we can witness some (infrequent) business behaviours that profit the situation of need and legal exception and maximize their benefits in abusive ways that fall under different prohibitions of the law. Some of them, with criminal implications, others, with labour, tax, social security or competition law[vii].

Dealing with the latter, there is an increasingly relevant movement that asks for a more lenient application of the competition law rules and principles in reference both with the administrative and legislative measures adopted to tackle with this situation and its application and with the enforcement activities conducted by the competition authorities.
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World Health Organization Guidelines, COVID-19 Pandemic and Transnational Law

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 by Carla Piffer, Professor of Law, UNIVALI (Brazil)
 and Paulo Márcio Cruz, Coordinator and Professor of Law, UNIVALI (Brazil)

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The novel coronavirus disease (COVID-19) has rapidly spread worldwide. It gained a pandemic status, and is currently affecting, without distinction, the most (and the least) important world powers. We are facing a global public health crisis with unprecedented economic effects. Actually, we fear something that, in fact, cannot be seen.

Since infectious diseases began to have endemic, epidemic, or pandemic characteristics, the bases for combating them started to have fundamentally transnational characteristics from the second half of Modernity. Especially from the beginning of the 20th century, at a time when many cases of infectious diseases began to be registered in the control systems of official health agencies, these facts started to gain visibility through the media, which began to report on the existence of endemics, epidemics, and the consequent risk of pandemics.
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The tax treatment of non-performing loans, Covid-19 and the need for harmonisation at the European level

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 by João Sérgio Ribeiro, Professor of Tax Law, UMinho

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Introduction

The tax treatment of bank loan losses has been a controversial issue.  Banks generally want tax rules recognising loan losses to conform in a close manner to regulatory accounting, in order to obtain tax benefits from loss provisioning. Tax officials, on the other hand, often fear that accepting said close conformity for tax purposes will dramatically reduce corporate tax paid by banks.

Loan losses represent inevitable costs that banks have to bear in order to generate income. Therefore, these losses should be accepted as an expense for both tax and financial purposes. The fundamental question is, at the end of the day, when and how non-performing loan losses should be recognized as an expense for tax purposes.

Now, with the Covid-19 crisis and the most certain upsurge of non-performing loans, the topic gains added relevance. The tax treatment of non-performing loans varies greatly around the world, and the European Union is not an exception.
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Directive 2005/36/EC and torture in Bahraini hospitals

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 by Gerry Liston, Legal Officer at GLAN - Global Legal Action Network

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What role could Directive 2005/36/EC on the recognition of professional qualifications have in addressing the systematic use of torture in Bahrain?

The Royal College of Surgeons in Ireland (‘RCSI’) is Ireland’s largest medical school. In addition to its Irish campus, it operates a number of “constituent colleges” overseas, including one in Manama, the capital of Bahrain, which is called the RCSI-Bahrain. The programme of education delivered to students of the RCSI-Bahrain is the same the programme delivered to students in Dublin; graduates of the RCSI-Bahrain are also awarded the same degrees as their Irish counterparts.

Throughout the period of political unrest which commenced in Bahrain in 2011, patients of the training hospitals associated with the RCSI-Bahrain were subjected to extreme abuse for their involvement in protests. Physicians for Human Rights reported, for example, that ‘egregious abuses against patients including torture, beating, verbal abuse, humiliation and threats of rape and killing’ occurred in the Salmaniya Medical Complex – Bahrain’s largest hospital.[i]
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Time for a Little More Time? Post-Brexit Trade Negotiations and the Current Pandemic

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 by Allan F. Tatham, Professor at Facultad de Derecho, Universidad San Pablo CEU

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Background

In the present context of the COVID-19 pandemic, with its impact on the health, economic and social systems of states around the world, it appears somewhat trivial in comparison for the UK and the EU to be still pursuing agreement in the post-Brexit negotiations. On 18 March, the Union published its draft legal agreement for the future EU-UK partnership, in accordance with its 2020 Negotiating Directives and the 2019 Political Declaration of the parties. And while, by then, the UK had not presented a comparable document, its approach to the negotiations had been published on 27 February. From these sources, it would be fair to draw the conclusion that there remain many outstanding issues that need to be discussed and resolved. Among them the maintenance of a “level-playing field” to ensure fair competition and protection of standards; fisheries; financial services; security and police matters; and the role of the Court of Justice of the European Union or another mechanism for resolving disputes under a Comprehensive Free Trade  Agreement (CFTA). Even the negotiating styles are different, with the UK seeming to display a sort of “pick-and-mix” approach – essentially using as precedents different provisions selected from various agreements (that the EU has already concluded with other third countries), collecting them together and then arguing for their inclusion in the CFTA.

Given these real challenges, the onset of the pandemic appeared initially to have caused only ripples on the surface of the negotiations. In fact, the UK desired to portray a “business-as-usual” approach to the negotiations and so to “carry on regardless” with them through video conferencing. Moreover, shortly before he himself was quarantined and hospitalised for the virus, the British Prime Minister Boris Johnson in his daily coronavirus press briefings was continuing to repeat the mantra of sticking to the 31 December deadline. Only with Michel Barnier’s diagnosis with the virus, the need for more officials on both teams to self-isolate and the recognised limitations to video-conferencing, were the negotiations suspended at the end of March 2020.
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Portuguese Labour Law in times of Covid19: some aspects

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 by Teresa Coelho Moreira, Professor of Labour Law, University of Minho
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The world is facing an unprecedented pandemic crisis with global effects and that already reached almost all countries in the world. This situation has reflected in all areas but we are going to analyse some aspects related with Labour Law, and what Portugal is doing to face this situation.

Recently on 23 March, the ILO issued a paper entitled ILO Standards and COVID-19 (coronavirus) and emphasized that the Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205) on the Preamble and Paragraphs 7, b and 43, establishes that “crisis responses need to ensure respect for all human rights and the rule of law, including respect for fundamental principles and rights at work and for international labour standards”.

Today, we are living a truly tsunami in terms of economic crisis with this virus and no one knows when and if it is going to stop and how the world is going to be. However, one thing is sure. We are going to face a huge economic crisis with reflection in the world of work. Millions of people around the world are going to be unemployed. According with the ILO we can have “a rise in global unemployment of between 5.3 million (“low” scenario) and 24.7 million (“high” scenario) from a base level of 188 million in 2019. By comparison, the 2008-9 global financial crisis increased global unemployment by 22 million”[i]. With this scenario, falls in employment also mean large income losses for workers that translate into falls in consumption of goods and services, in turn affecting the prospects for businesses and economies.
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Digital publications and protection of constitutional democracy

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 by Ana Aba Catoira, Professor of Constitutional Law, Universidade da Coruña
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The strong impact that the irruption of digital channels has had on freedom of expression has led them to a reformulation process, because, as Lessig pointed out, “specifically the Internet has helped to show the true meaning of freedom of expression.” This profound transformation translates into a “paradigm shift” or change in the classical conception of the rights of information evident in the sender-receiver relationship of information, since all people are now active subjects in the new communicative process.

The prominence of the Internet and, more specifically, of social networks has been fundamental for the propagation of new “informative” practices that count on the invaluable help of artificial intelligence. This reality, already indicated as “information disorders”, was characterized by false news, post-truth, bots and other phenomena that distort the right to give and receive truthful information and intoxicate public opinion that is no longer free.
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