Editorial of December 2021

By Alessandra Silveira (Editor)

AI systems and automated inferences – on the protection of inferred personal data

On 23 November 2021 the European Commission published the consultation results on a set of digital rights and principles to promote and uphold EU values in the digital space – which ran between 12 May and 6 September 2021.[1] This public consultation on digital principles is a key deliverable of the preparatory work for the upcoming “Declaration on digital rights and principles for the Digital Decade”, which European Commission will announce by the end of 2021. The consultation invited all interested people to share their views on the formulation of digital principles in 9 areas: i) universal access to internet services; ii) universal digital education and skills for people to take an active part in society and in democratic processes; iii) accessible and human-centric digital public services and administration; iv) access to digital health services; v) an open, secure and trusted online environment; vi) protecting and empowering children and young people in the online space; vii) a European digital identity; viii) access to digital devices, systems and services that respect the climate and environment; ix) ethical principles for human-centric algorithms.  

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Editorial of November 2021

By Rafael Leite Pinto (Master in EU Law – University of Minho)

The regional impacts of climate change in the European Union – a cohesion perspective

Although concern about climate change is typically a higher priority in western countries, especially in Europe, the understanding of its regional impacts is not widespread. The prevailing line of thinking is that developing countries will be the most affected and Europe will experience minor changes. While it is clear that developing countries will be affected the most, the lack of knowledge about local impacts can lead many citizens and politicians to delay taking concrete action. In this article, based on the new IPCC report and the new visual tools provided, we summarize the impacts of climate change in Europe, on rising temperatures, sea level, precipitation, and the incidence of extreme events with an overarching view on the internal cohesion policy for climate change to guarantee a fair and just transition, within the European Union.

1. The IPCC report

The new report by the Intergovernmental Panel on Climate Change (IPCC)[1] made headlines as being the most frightening and alarming ever. In fact, nothing should concern us more than a report based on more than 14,000 high-quality studies, which clearly states that “each of the last four decades has been successively warmer[2]” and that human action is to blame.

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Editorial of October 2021

By Alessandra Silveira (Editor) and Tiago Sérgio Cabral (Managing Editor)

Strange times and the need to remember the obvious…on the recent decision of the Polish Constitutional Court

The recent judgment of the Polish Constitutional Court calls into question one of the base pillars of the European legal order – namely the primacy of EU law over national law. As a result, it is likely that the European Commission will bring infringement proceedings against Poland. If the CJEU finds that Poland has not complied with its judgment, it may impose a financial penalty.

However, there is a possibility for de-escalation which would allow for this imbroglio to be first be resolved politically. This was the case regarding the German Constitutional Court’s astonishing decision of 5 May 2020, concerning the ECB’s bond buying programme for purchasing Member States’ public debt on the secondary market. The crux of the matter was that the German Constitutional Court’s judgment followed a judgment by CJEU which settled the issue of the validity of the ECB’s bond buying programme. The German Constitutional Court in its decision disregarded the decision of the competent court under Article 19(1) TEU, according to which the CJEU ensures that the law is observed in the interpretation and application of EU treaties. It did not take long for the so-called “illiberal democracies” in Europe to welcome the ruling of the German Constitutional Court, using it to subvert judicial independence and freedom of expression as recognised by the EU. Fortunately, the good sense of the German governmental and parliamentary authorities under Angela Merkel’s leadership prevailed – and the European institutions did not have to act accordingly (at least immediately). It is important to note that in a second decision regarding the ECB’s bond buying programme also appeared to walk back from the edge of the cliff.

In any case, such episodes recommend revisiting the elementary notions of European integration law, because there are occasions when certain civilisational achievements still need to be defended, and the reason behind some choices needs to be recalled. What functional reason justifies the primacy of Union law over national law? Does Union law take precedence over national constitutional norms (or, on the contrary, can it be declared unconstitutional or set aside on the grounds of alleged unconstitutionality)?

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Editorial of September 2021

By Tiago Sérgio Cabral (Managing Editor)

On the recent Polish challenges to the primacy of EU Law

1. Some recent progress

On 14 July 2021 the Court of Justice of the European Union (hereinafter, “ECJ”) issued an Interim Order declaring that the Polish State should suspend the activity of the, widely regarded as breaching the principle of the independence of the judiciary, Disciplinary Chamber of the (Polish) Supreme Court. The ECJ’s decision came as no surprise both due to the nature of the Chamber itself and the fact the same Court had already issued a similar order a few months before. One day after, on 15 July 2021, the ECJ would issue a judgment confirming that the Chamber was in breach of Article 19(1) TEU and Article 267 TFEU.

What could be seen as a surprise is the fact that the Polish Constitutional Tribunal, whose level independence could hardly be called adequate after the reforms by the current ruling party, directly challenged (deciding on the previous order) the ECJ. The Polish Constitutional Tribunal argued that the interim measures ordered by the ECJ should be considered as incompatible with the Polish Constitution and therefore not enforced.

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Editorial of August 2021

By Daniel Silva (Master’s student in EU Law, UMinho) 

The fight against greenwashing in the EU

In January of 2021, the European Commission and national consumer authorities shared their conclusions pursuant to a screening of websites performed to identify breaches of EU consumer law in online markets focused on greenwashing practices[1]. This screening included a variety of online green claims from a wide range of business sectors, including cosmetics, clothing, and household equipment. The results estimated that 42% of analyzed claims were exaggerated, false or deceptive and could even potentially be considered unfair commercial practices under EU law. The sweep also concluded that the practice of greenwashing has been growing as consumers demand in green products also grows.

The term greenwashing was coined by the American environmentalist Jay Westerveld in 1986, at the time regarding the practice of the hotel industry incentivizing the reuse of towels for environmental reasons, when in fact it was a ploy meant to increase their margin of profit[2]. The EU defines greenwashing as “companies giving a false impression of their environmental impact or benefits”. This, however, does not seem to encompass the magnitude and many facets that greenwashing has. There is not a unanimous agreement on a precise definition of the term, however, most definitions agree on two aspects about greenwashing: there is repression on information that suggests the company might be environmentally unfriendly and a strong push on having an environmentally friendly image. Hence, we can see greenwashing as a phenomenon of selective information disclosure on the environmental impact of a certain product or service that does not necessarily correspond to reality or is even false. We can look at greenwashing as somewhat of a marketing strategy, capitalizing on the growing consumer environmental conscience that has been on the rise in recent years. Therefore, the companies that practice greenwashing do not actually have any real environmental concern, focusing purely on economic gain.

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Editorial of July 2021

By Carlos Abreu Amorim (Professor of Administrative and Environmental Law, UMinho)

European Climate Law – the point of non-return of environmental protection

There are a number of reasons for how significant the European Climate Law (ECL), the final text of which was adopted in May 2021 should be considered. It is not only because it is the first binding legal instrument to come from the European Green Deal (EGD). Not even because of its primary intention: to convert this environmental plan launched by the Commission of Ursula von der Leyen in December 2019 into a fundamental European plan of energy decarbonisation targets and mandatory commitments with the intention of transforming the generality of production processes on the path of climate neutrality.

Even more than the reasons mentioned in previous paragraph, the success of the ECL has now become a sine qua non test for the European Union’s integration project.

European integration has increasing economic, political, geostrategic, ambitions for social achievement and full rights for its citizens. A wide range of purposes and effective peace, happiness and welfare have been achieved like never before in history. Likewise, its path of undisputed success has also seen some setbacks in these and other areas. Nevertheless, more than ever, the scale of the climate emergency and the essential responses that the environmental quality of the planet today requires in terms of public policies clearly outweigh the limited unit of account provided by the unique action of States (even countries that are large in power, population and territory). If it was already a settled truth that there are no nations capable of competing or even subsisting on their own, the deterioration of the planet’s environmental status has raised the need for extended common projects in pursuing sustainable and efficient environmental public policies. Environmental protection is one of the areas of public policies where the natural shortcomings of actions carried out alone within the framework of the old logic of the Nation State are most noted and where the broad integration of these public policies is most necessary. Climate changes will not be able to be fought with success through reactive pipelines, targeted solutions or disunited strategies. Unilateral actions will also not succeed, not even the best designed ones. The urgency of climate responses implies firm resolutions, consistency in the ends, breadth and cross-cutting and supranational scope in public policies. Above all, it requires political choices with a degree of permanence that will only be possible if there is a political consensus and the sharing of these concerns by much of the public.

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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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Editorial of May 2021

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

Conference on the future of Europe and the defence of European values

On March 10th, 2021, following a long negotiation, the Presidents of the European Parliament, the Council of the EU and the European Commission signed the “Joint Declaration” on the “Conference on the Future of Europe”, holding its joint presidency.[1] The Conference will be officially launched on May 9th, 2021 in an inaugural session in Strasburg and it will be extended until the Spring of 2022. It aims at creating a new public forum for an open, inclusive, transparent and structured debate with Europeans around the issues that matter to them and affect their everyday lives. A new Special Eurobarometer, published one day before the signing of the Joint Declaration, focuses on the Conference and measures attitudes towards it and some of the key themes to be covered.[2]

Three-quarters of Europeans consider that the Conference will have a positive impact on democracy within the EU: 76% agree that it represents significant progress for democracy within the EU, with a clear majority supporting this view in every EU Member State. The very vast majority of Europeans (92%) across all Member States demand that citizens’ voices are “taken more into account in decisions relating to the future of Europe”. While voting in EU elections is clearly regarded (by 55% of respondents) as the most effective way of ensuring voices are heard by decision-makers at EU level, there is very strong support for EU citizens having a greater say in decisions relating to the future of Europe. 45% of Europeans declare themselves “rather in favour of the EU but not in the way it has been realised so far”. Six in ten Europeans agree that the Coronavirus crisis had made them reflect on the future of the EU while 39% disagree with this.

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Editorial of April 2021

Tiago Sérgio Cabral (Managing Editor)

The Council’s Position regarding the proposal for the ePrivacy Regulation: out of the frying pan and into the fire?

1. The Council’s Position

On 10 February 2021, the Council of the European Union (finally) agreed on a negotiating mandate regarding the proposal for a new ePrivacy Regulation (the Council’s text shall be referred to as the ‘Council’s Position’ and the original Commission proposal as the ‘ePrivacy Proposal’), breaking a multi-year deadlock and giving new breath to the proposal which is meant to replace the current ePrivacy Directive 2002/58 and establish a coherent framework between the lex specialis and the general rules contained in the General Data Protection Regulation 2016/679 (GDPR).

While some expectations could be noted due to the long-awaited agreement, public reactions to the Council’s Position were not exactly warm. Notably, the Federal Commissioner for Data Protection and Freedom, Ulrich Kelber, considered that the Council’s Position, if adopted, would be a blow for data protection across the European Union. Particularly controversial were the provisions of the Council’s Position which may allow for the implementation of cookie walls, the rules on data retention and ‘return’ of metadata processing without consent.

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Editorial of March 2021

José Manuel Fernandes, Member of the European Parliament and of the MFF and own resources negotiating team

The EU budget: a legal constellation for the recovery

I. Introduction

The approval of the Multiannual Financial Framework (MFF) is followed by an Interinstitutional Agreement (IIA) and a Decision on the EU system of Own Resources (ORD). Because of the pandemic, the Council, after Parliament’s insistence, and with strong support from Angela Merkel and Macron, put forward an historical and solidary decision: the use of a common guarantee based on the EU budget for the Commission to contract a debt of € 750 billion and establish the European Union Recovery Instrument through a Regulation[1] aiming to support the recovery in the aftermath of the COVID-19 crisis (NGEU). This decision was the only possible solution. Member States did not have the financial means to, for example, increase the EU budget. The decision increases the need for new own resources (sources of revenue). In fact, the NGEU has repercussions on the IIA, the ORD and the MFF 2021/2027 itself: these are all part of a negotiation “package”.

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