Category: Essays

New digital manifestations of financial services and European integration: what benefits for the European citizen

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Ana Filipa Machado Ribeiro (Student at the School of Law of the University of Minho | Winner of the 2023 UMinho Award for Undergraduate Research)
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Initial considerations

In an era where digital transformation is reshaping the financial landscape, the European Union (EU) has taken a pivotal step towards harmonising the burgeoning realm of crypto-assets with the introduction of the Markets in Crypto-Assets (MiCA) Regulation. As we delve into the intricacies of the MiCA Regulation, it is essential to understand its objectives, the classification of crypto assets it covers, and the broader implications for European citizens and the digital economy at large. The following discussion offers a comprehensive exploration of the MiCA Regulation, also considering criticisms of the legislative adoption practised by the Union, while seeking to ascertain what advantages (if any) it offers European citizens.

MiCA – Statement of reasons

The EU has presented a Proposal for a Regulation of the European Parliament and of the Council on Markets in Crypto-assets – MiCA Regulation. This legislative proposal is part of the Digital Finance Package, understood by the EU itself as a set of measures that include a new strategy on digital finance for the EU financial sector,[1] aimed at promoting and supporting the potential of digital finance in terms of innovation and competition, while simultaneously mitigating inherent risks. Thus, the EU is prioritising the preparation of Europe for the digital age and creating a future-ready economy, serving its citizens.

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The EU Directive on violence against women and domestic violence – fixing the loopholes in the Artificial Intelligence Act

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Inês Neves (Lecturer at the Faculty of Law, University of Porto | Researcher at CIJ | Member of the Jean Monnet Module team DigEUCit)
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March 2024: a significant month for both women and Artificial Intelligence

In March 2024 we celebrate women. But March was not only the month of women. It was also a historic month for AI regulation. And, as #TaylorSwiftAI has shown us,[1] they have a lot more in common than you might think.

On 13 March 2024, the European Parliament approved the Artificial Intelligence Act,[2] a European Union (EU) Regulation proposed by the European Commission back in 2021. While the law has yet to be published in the Official Journal of the EU, it is fair to say that it makes March 2024 a historical month for Artificial Intelligence (‘AI’) regulation.

In addition to the EU’s landmark piece of legislation, the Council of Europe’s path towards the first legally binding international instrument on AI has also made progress with the finalisation of the Framework Convention on Artificial Intelligence, Human Rights, Democracy and the Rule of Law.[3] As the EU’s cornerstone legislation, this will be a ‘first of its kind’, aiming to uphold the Council of Europe’s legal standards on human rights, democracy and the rule of law in relation to the regulation of AI systems. With its finalisation by the Committee on Artificial Intelligence, the way is now open for future signature at a later stage. While the non-self-executing nature of its provisions is to be expected, some doubts remain as to its full potential, given the high level of generality of its provisions, and their declarative nature.[4]

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The Italy–Albania Protocol on migration management: between new schemes of asylum externalisation and risks of systematic violations

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Valentina Faggiani (Associate Professor of Constitutional Law at University of Granada)
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The trend towards the externalisation of migratory policy has been reaffirmed in the recent Italy–Albania Protocol, whose objective is to institute a new model. This Protocol aims at intervening to overcome a real problem: the systemic crisis of asylum that Italy is suffering. The idea that inspires it and the scheme are clear and have some original profiles: if the situation in the reception centres in Italy is unsustainable, why not transfer migrants in irregular situation and asylum seekers to reception centres instituted outside the Italian territory, but managed, controlled and financed by Italy? In this country, particularly in frontline areas such as Lampedusa, on the one hand, foreigners suffer serious and systematic violations of fundamental rights; on the other hand, there has been a strong feeling of uneaseamong the local population, who live in an unsafe environment characterised by the proliferation of criminality and situation of violence.

The idea has the characteristic of extrema ratio: the purpose of building a new model of migratory flux management. Regarding the innovation profiles, it is interesting to observe that in this case Italy does is not delegating, as it did in the Memorandum of Understanding with Libia, the liability for controlling the fluxes and for pushing back the migrants to their country of origin, but it assumes the management of all phases, and it extends the jurisdiction and the cost that it implies. It is a much more extensive and complex project. Indeed, the political and economic context of Albania apparently offers more guarantees than other countries.

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The New EU Pact on Migration and Asylum: from political (dis)agreements to a last chance

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Inês Neves (Lecturer at the Faculty of Law, University of Porto | Researcher at CIJ | Member of the Jean Monnet Module team DigEUCit ) and Rita Ferreira Gomes (Associate at Morais Leitão)
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Setting the scene

From 2020 onwards, migration and asylum have been central to both national and European Union (‘EU’) political agendas. 2023, however, was key and ended with major challenges for 2024.

By the end of 2023, the European Parliament and the Council had reached a political agreement on several key proposals included in the (New) Pact on Migration and Asylum[1] (‘New Pact’), in particular, Proposals for Regulations: i) introducing a screening of third country nationals at the external borders[2] (‘Screening Regulation’); ii) on the establishment of ‘Eurodac’[3] (‘Eurodac Regulation’); iii) on a common procedure for international protection in the Union[4] (‘Asylum Procedures Regulation’); iv) on asylum and migration management[5] (‘Asylum Migration Management Regulation’), and v) addressing situations of crisis and force majeure in the field of migration and asylum[6] (‘Crisis and Force majeure Regulation’).

Some question whether “the legislative proposals [will] have the same fate as the reform package that had been presented by the Commission in 2016”[7]. Others see the New Pact as a final opportunity to get it right, or at least deserving of “a chance to succeed”[8]. In her 2023 State of the Union speech, President von der Leyen referred to a “historic opportunity to get it over the line”, and compassionately, urged us all to get it done and prove that “Europe can manage migration effectively and with compassion”[9].

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A specter is haunting Spain — the specter of illiberalism: A young democracy facing its ghosts

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Rubén Díez (Professor of Sociology at Complutense University)
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Populism shows a natural tendency to strain the independence of public functions, the autonomy of civil society and media, as well as the institutional mechanisms regulating the civil sphere in liberal democracies. Obama reminded us of this during the funeral of Republican John McCain in September 2018, implicitly referring to President Trump. A portion of Obama’s eulogy highlighted the rules and principles of rational-legal legitimization that govern our democracies. These include adherence to the duties and responsibilities of public office, as well as the norms regulating voting and the party system. Civil organizations, alongside the political class, must take responsibility for safeguarding these principles to prevent populism from taking root within their ranks and political entities. As Steven Levitsky and Daniel Ziblatt remind us in “How Democracies Die”, more essentialist forms of democracy—with demagogic speeches and leaders, populist organizations, plebiscitary practices, and Caesarism—civil institutions see a reduction in their mediating and arbitrating capacity for the multiplicity of material and ideal interests, hindering the expression of civil solidarity. The leader, party, or movement positions itself as the voice of the people, appealing to collective identities exclusively articulated in a binary key of belonging.

Illiberalism in its most extreme forms, especially when it seizes power, thrives by co-opting civil institutions and intermediate spaces. In addition, it silences or sidelines those who articulate alternative positions to its political project. This is achieved by subverting the law and discrediting dissenting voices often through the civil exclusion of discordant voices. If the ultimate expression of this idealized political project successfully materializes in a specific place and time, it opens the door for an anti-democratic populist project to crystallize. Some recent examples include traits of this ideal definition of illiberal scenarios: the leadership of Viktor Orbán in Hungary, Law and Justice in Poland, the Brexit referendum in 2016, the declaration of independence in Catalonia in 2017, and the Trump administration in the USA. Sadly, a progressive and accelerated trend of democratic degradation may be observed in Spain as 2023 ends, following the formation of a new coalition government led by the Spanish Socialist Workers’ Party (PSOE) with the support of left-wing populist, nationalist, and separatist forces.

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Beyond the Digital Markets Act: much more than a piece of legislation

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Inês Neves (Lecturer at the Faculty of Law, University of Porto | Researcher at CIJ - Centre for Legal Research | Member of the Jean Monnet Module team DigEUCit - A Digital Europe for Citizens. Constitutional and policymaking challenges) and Luísa Amaro de Matos (LL.M. in European Legal Studies – College of Europe, Bruges)
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On 6 September 2023, the European Commission (‘EC’) designated a first set of six gatekeepers in relation to 22 core platform services(‘CPS’)[1]. These undertakings must ensure compliance with the positive and negative obligations set out in the Digital Markets Act (‘DMA’)[2] by March 2024.[3]

Meanwhile, the DMA is already having an impact, with Facebook and Instagram, for instance, offering European users ‘the choice’ to pay a monthly subscription to use their social networks without any advertising (ads).[4]

On 17 November 2023, the Court of Justice of the European Union (‘CJEU’) confirmed that Apple, Bytedance and Meta had brought actions challenging the designation of (some of) their core platform services,[5] namely Titktok as regards Bytedance (T-1077/23); Facebook Marketplace and Messenger concerning Meta (T-1078/23), and App Store and iMessage for Apple (Cases T-1079/23 & T-1080/23).

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The need for an egalitarian ethical framework for emerging technologies

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Manuel Protásio (PhD Candidate at the School of Law of the University of Minho. FCT research scholarship holder – Bolsa UI/BD/152801/2022)
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The blurring boundary between humans and machines introduces a crucial dichotomy between consciousness and information, shaping the dynamics of our technological engagement and the “limbo” between humans and technologies, situated around perception, is central to how the law assesses its potential effects on human behaviour.

According to Kantian philosophy, the act of perception is a private, subjective, and observer-dependent mechanism, which, by its nature, grants the subject a sensation of agency over the physical reality – their environment. This feeling of agency can be understood as the empowering subjective experience that is often translated into the individual’s freedom and autonomy. If it is true that the synthetical perception confers agency over the perceived objects as they are read into our reality, it must also be true that illusions – reasoning mistakes based on our perception – can be triggered if our perception follows systematic errors that occur whenever we store wrong information about our reality regarding perceived objects, or when we use the wrong model of perception to interpret the external world.[1] 

What technologies like Augmented Reality (AR) or Artificial Intelligence (AI) will cause to our perception in the short and long-term is to convey analytical information from the physical world and thus trigger potential changes in our synthetical perception, which can lead to the loss of agency of our own our reality. Virtual Reality (VR), on the other hand, can trigger the same effect by deceiving the synthetical sensory feedback of our biological perception and replicating it through technological means.   

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Disinformation overload on social networks: is the European “marketplace of ideas” threatening to collapse

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Iolanda Rodrigues de Brito  (PhD, Lecturer at the Ius Gentium  Conimbrigae – Human Rights Centre)
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Disinformation about the Israel-Hamas conflict is flooding social networks, creating an increased risk of escalating the war.[1] Over the past few weeks, the European Commission has rushed to urge social media platforms to comply with the Digital Services Act (DSA), which came into force on 16 November 2022.[2] According to the European Commission, the DSA “sets out an unprecedented new standard for the accountability of online platforms regarding disinformation, illegal content, such as illegal hate speech, and other societal risks” and it “includes overarching principles and robust guarantees for freedom of expression and other users’ rights”.[3] 

On 25 April 2023, the Commission had designated 19 very large online platforms and very large online search engines on the ground of their number of users being above 45 million or 10% of the European Union (EU) population. These services need to comply with the full set of provisions introduced by the DSA since the end of August 2023.[4] Although the new regulation will only be generally applicable from 17 February 2024, its applicability has been anticipated in relation to very large online search engines and very large online platforms, such as social networks (article 92 of the DSA).

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EU’s policies to AI: are there blindspots regarding accountability and democratic governance?

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Maria Inês Costa (PhD Candidate at the School of Law of the University of Minho. FCT research scholarship holder – UI/BD/154522/2023)
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In her recent State of the Union (SOTEU) 2023 speech, the President of the European Commission Ursula von der Leyen addressed several pressing issues, including artificial intelligence (AI). In this regard, the President of the European Commission highlighted that leading AI creators, academics and experts have issued a warning about AI, stressing that “mitigating the risk of extinction from AI should be a global priority alongside other societal-scale risks such as pandemics and nuclear war”, adding that AI is advancing at a faster pace than its creators predicted.[1]

The President of the European Commission also argued that of the three pillars of the global framework for AI – guardrails, governance, and guiding innovation – guardrails is the most important, and in this sense, AI must be developed in a way that is human-centred, transparent, and accountable. Indeed, in Europe we have witnessed such an approach to the development of AI, as evidenced by various official documents and reports from different scientific communities, [2] also emphasising the need to build trust in this type of technology.

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Why is the demarcation of indigenous peoples’ territories in Brazil important to achieve European and global climate goals?

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Cecília Bojarski Pires  (PhD Candidate at the School of Law of the University of Minho)
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Indigenous and tribal peoples’[1] ancestral territories are essential for climate stability and resilience.[2] “Their territories contain about one-third of all the carbon stored in Latin America and the Caribbean forests and 14 percent of the carbon stored in tropical forests worldwide”.[3] It is indisputable that the role played by indigenous peoples is vital in terms of global climate action, but that is not all. This article aims to demonstrate the importance of preserving indigenous peoples’ lands to achieve European and global climate goals, protect the forests and other ecosystems, conserve biodiversity, and prevent climate change. Furthermore, it is a matter of respect for human rights, a European value.

According to Villares,[4] indigenous peoples are united to the land and all its elements. Moreover, the land is not just a tangible material element but a subjective element that takes on a transcendental character. Thus, the territory is occupied and developed by everyone in that community. For that reason, indigenous peoples’ production system is, in general, much less predatory. The consequence of this special way of dealing with the land means that indigenous peoples can use natural resources without putting ecosystems at risk. It makes them indispensable for guaranteeing environmental conservation and contributing to the fight against poverty, hunger, and malnutrition.[5]

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