Category: Editorials

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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Editorial of April 2019

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 by Sophie Perez Fernandes, Editor

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First steps in a literacy campaign for a European political community – what is the EU based on the Rule of Law?

When one is asked to approach the legal dimension in a panel on the theme «European political community and cosmopolitan literacy»[i], one is confronted with the vastness and multiplicity of the subject, the critical nature of its importance and the overwhelming responsibility of the task… Underlying it are crucial questions about how to approach – in the sense of conceiving, accepting and, above all, living – the European Union as our collective destiny. And the challenge is also to discern the role of the Law in this endeavour aimed at building, revealing the meaning and living in a European political community.

That said, before embarking on an EU literacy campaign, a preliminary step would likely be to undertake what could be called a literacy campaign of the Law. And the reason is obvious: the European integration process is, above all, a process of integration through Law. From the very beginning, the European integration process has sought to «unite the peoples of Europe», to employ the terminology of the Treaties, not by the force of weapons, but by the force of norms – which, to a certain extent, consequently converts jurists into soldiers of the European integration process and of building a European political community – hence the overwhelming responsibility…
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Editorial of March 2019

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 by Allan F. Tatham, Professor at the Faculty of Law of University CEU San Pablo

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“Shindler’s Wish” Fulfilled and More? The Possibilities for Re-enfranchisement of UK nationals and EU citizens in a future People’s Vote on Brexit

Introduction

In the afternoon of 25 February 2019, with just over four weeks to go before the country’s expected withdrawal from the European Union, the UK Labour Party leader, Jeremy Corbyn, finally announced his party’s support for a second referendum on the issue.[1] Having already been passed as a resolution by the Labour Party conference in autumn 2018[2] and supported by the majority of party members,[3] it no doubt took the recent resignations of MPs from the party[4] finally to persuade the widely-regarded Eurosceptic Corbyn to swallow the bitter pill for a People’s Vote (PV) on the Brexit deal, “secured” by the cabinet of Prime Minister Theresa May.[5]

However, within the furore caused by his change of heart still hanging in the air, even if (and, at this stage, it is still a very big “if”) the UK Parliament were to vote in favour of a second popular vote, several points will need to be addressed anew.
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Editorial of February 2019

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 by Felipe Debasa, Phd Rey Juan Carlos University, Madrid

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IV Industrial Revolution social challenges. The Law, from discipline to tool? Reflections about the European Union

After World War II comes to a change an historical era. It is about the Present World or Present Time as historians point out[i] , or Anthropocene as geologists name. An era with new challenges and also challenges built on the legacy of the millions of dead of the world wars, totalitarianism, and nationalism.

“It is not a time for words, but a bold and constructive act”. With this phrase, Robert Schuman initiated the press conference that May 9th, 1950, in which he presented the document that would give rise to the current European Union. We Europeans are about to celebrate the 70th anniversary of that date that has allowed us to enjoy many things in peace and freedom.

With the change of the millennium, comes another new period dubbed as a IV Industrial Revolution, Industry 4.0 or Era of Technology. “The traditional world is crumbling, while another is emerging; and while we are in the middle and some of us without knowing what to do”[ii].

In 2016, I directed a summer course at the Menéndez Pelayo International University of Santander[iii] on the Future of Employment that was inaugurated by the Minister of the sector in Spain, in which we began to alert of the social challenges and about the tremendous revolution that came over us. We analysed, among other things, the jobs of the future, the digital transformation of companies, the new forms of teleworking, the role of women in this revolution; and so, we are warning of neologism that was about to appear, probably by regulated sectors without competition. And yes, that moment seems to have arrived.
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Editorial of January 2019

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 by Alexandre Veronese, Professor at University of Brasília

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Article 13 and the vigilance dilemma

The first US battles about filtering

In light of the worldwide ongoing debate surrounding legal regimes over internet, in special the recent controversies on amendments proposals to applicable EU rules, such as Directive 96/9, Directive 2001/29 or Directive 2012/28, but most notably Article 13 of the (soon-to-be) Directive on Copyright in the Digital Single Market, it is of utmost importance to seek some perspective. The topic is relevant as much as complex with a range of aspects to consider. For instance, one of the approaches the EU is giving to the matter involves the use of internet (or digital tools in general) for new cultural purposes following the celebration in 2018 of the European Year of Cultural Heritage. In that regard, I had the opportunity to reflect upon this debate alongside Professor Alessandra Silveira, editor of the Blog of UNIO, and other colleagues in an excellent Portuguese podcast. In this post, I intend to shed some light in the global depth of the matter by analysing the American inaugural experience.

At the beginning of the widespread usage of the Internet, the United States society was immersed in a debate about how to deal with offensive content. In the 1990s, Internet had no boundaries and no firewalls to prevent the incoming waves of pornographic and unusual materials. Quickly, a political movement made a strong statement in order to protect American families from that threat. In 1996, the US Congress passed a bill named Communications Decency Act, also known as the CDA. The Bill was signed into Law by the former President Bill Clinton. The CDA was intended to provide an effective system to take down offensive content. Some of the founders of the Internet launched a campaign against the CDA. The now widely famous Electronic Frontier Foundation was the spearhead of the resistance. Until today, we remember the Declaration of Freedom in the Internet, which was written by John Perry Barlow. The major weapon of the resistance was the First Amendment of the US Constitution. Some lawsuits were filled and in a brief timespan the US Supreme Court took down the CDA for it was ruled as unconstitutional. The Supreme Court maintained the long-aged interpretation that the State must be out of any action to perform any possible kind of censorship (Reno v. ACLU, 1997).
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Editorial of December 2018

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 by Sergio Maia, Managing Editor

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Multiannual financial framework, budgets and elections: is there room for convergence?

Current status of EU politics barely hides that convergence seems more and more dramatic, as the elections next May are rapidly approaching amidst uncertainty, Brexit and national populisms. Despite the signal Emmanuel Macron attempted to send recently by addressing the German Bundestag – the first French president to do so in 18 years – in favour of unity against chaos, there is little doubt that the moment is of euro-tension, somewhat of pre-storm. Italy is (literally) stepping on the European Commission’s budgetary recommendations; Brexit withdrawal agreement conclusion is an incognita on the British side (there is also the preliminary reference on its revocability under appreciation in CJEU); Steve Bannon is trying to fund extremist right-wing candidates for the European Parliament election; Poland is disguising its real commitment to implement CJEU interim measures; new migration rules are not settled, etc.

On top of that, there is an ongoing negotiation for the next multiannual financial framework (MFF) and in parallel proposals for a Eurozone specific budget as of 2021 – which was the underlying pretext for Macron’s speech at the Bundestag. The original idea of the French president was to equip the Eurozone with a separate budget to assist Member States experiencing instabilities in their economies. In other words, it would serve as a sort of debt mutualisation guarantee in critical times. This was only insidiously mentioned in the Meseberg Declaration, but it was mentioned nevertheless. The motivation for this tool was to provide an enhancement of the general balance between European economies so that the different levels of development in the EMU could be compensated for the benefit of Euro (stabilisation, prices) and trade flow in the internal market.
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Editorial of November 2018

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 by Alessandra Silveira, Editor

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In the face of globalised populism, European Union as a kind of “life insurance”

In case C-619/18, Commission v Poland, pending judgment by the Court of Justice of the European Union (ECJ), the European Commission has requested the Court, in the context of interim proceedings, to order Poland to suspend the application of the provisions of national legislation relating to the lowering of the retirement age for Supreme Court judges,[i] among other measures.

As the ECJ Press Release No 159/18 briefly explains, on 3 April 2018 the new Polish Law on the Supreme Court entered into force. Under that Law, the retirement age for Supreme Court judges has been lowered to 65. The new age limit applies as of the date of entry into force of that Law. It is possible for Supreme Court judges to continue in active judicial service beyond the age of 65 but this is subject to the submission of a statement indicating the desire of the judge concerned to continue to perform his/her duties and a certificate stating that his/her health conditions allow him/her to serve, and must be consented to by the President of the Republic of Poland. Thus, according to the Law, serving Supreme Court judges who reached the age of 65 before that Law entered into force or, at the latest, on 3 July 2018, were required to retire on 4 July 2018, unless they had submitted such a statement and such a certificate by 3 May 2018 inclusive and the President of the Republic of Poland had granted them permission to continue in active service at the Supreme Court. In making his decision, the President of the Republic of Poland is not bound by any criteria and that decision is not subject to any form of judicial review. Furthermore, the Law on the Supreme Court gives the President of the Republic of Poland the power to freely decide, until 3 April 2019, to increase the number of Supreme Court judges.

As we know, the Vice-President of the Court, Ms Rosario de Lapuerta, on 19 October 2018, provisionally granted all the Commission’s requests – and Poland must immediately suspend the application of the new Polish Law on the Supreme Court.[ii] The legal basis of such ruling, relying upon judicial independence as a general principle of EU law and as a fundamental right protected in its order, has been built in the recent ECJ case-law, especially in judgments Associação Sindical dos Juízes Portugueses (ASJP) and LM[iii].
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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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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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