The poor relation of tax harmonisation in the European Union – Direct Taxation

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 by Irene Isabel das Neves, Associate Judge, President of the Administrative and Fiscal Courts of the Northern Area (Portugal)

In the field of direct taxation, European law lacks concrete regulation, which leads to a lack of tax harmonisation, as opposed to indirect taxation, namely with the Value Added Tax (VAT) and Excise Duties (ED). However, several directives and the case law of the Court of Justice of the European Union (CJEU) itself are establishing a set of “harmonising” dynamics enforced at the level of direct taxation on the income of companies and individuals. In parallel, measures have been implemented to prevent and eliminate tax evasion and double taxation.

The proper functioning of a European internal market assumes a level playing field, i.e., it depends on tax neutrality arising from the standardisation of corporate taxes. The internal market is in fact the meeting point for European demand and supply: in this market, tax disparities disrupt trade and commerce, because even when similar products are involved, the most heavily taxed goods are less competitive and less attractive to consumers (distortion by demand); similarly, in the absence of uniformity of taxes, the choice of location of businesses within the Union may be linked to tax considerations (distortion by supply).
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Pandemic and dystopia

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 by Joana Aguiar e Silva, Professor at the School of Law, UMinho


We have been following the reflections that Giorgio Agamben has been sharing on the page of the Italian publisher Quodlibet, regarding the pandemic we are experiencing. Without really contesting the political decision that determined the quarantine regime in Italy, the philosopher of Homo Sacer is shocked by the numbness of a society that so passively accepts successive institutional measures seriously constraining its fundamental rights. Measures that openly contend with the most legitimate cultural and political traditions of the West, based on values of freedom, tolerance and the promotion of human dignity.

The statements he has made regarding the present moment of exception have sparked the most intense debate both on the part of public opinion and on several academic circles. Referring to the invention of a pandemic, he points the finger at the media, which, without due scientific basis, and with populist and demagogic interests, spreads panic in communities far too used to living in a permanent state of fear. Tracing parallels between the pandemic and terrorism, he claims we have been living with the constant fear of the other for far too long: the eternal foreigner, metaphor of an eternal threat, as a potential terrorist or, today, as a potential “infector”. (An)other, the enemy, which is now within us, invisible and silent.
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Universal basic income and artificial intelligence

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 by Charize Hortmann, Master in Human Rights, UMinho

Currently the world’s economy has reached an unprecedent juncture. If by one side has never been so much wealth generally accumulated[i], by the other is undeniable that inequality between the richest and the poorest increases by the minute[ii]. At the same time, we are getting close to fulfilling the greatest threat brought out by the first Industrial Revolution. The technological unemployment[iii], due the advance and the improvement of certain technologies, like Artificial Intelligence (AI) and the Internet of Things (IoT).

Considering this scenery, much has been thought about coming up with solutions that seek to curb the progress of social inequalities, as well as being an alternative to the possibility of facing a massive unemployment worldwide.
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COVID-19 – Nationalism and its toll on citizenship and mobility rights in the European Union

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 by Patrícia Jerónimo, JusGov, University of Minho

There is still much that we do not know about COVID-19, but by now it has become very clear that, far from being ‘the great equalizer,’ the disease is disproportionately impacting the poor and the most vulnerable (including racial and ethnic minorities), fuelling nationalist and xenophobic sentiments,[i] and prompting a resurgence of borders and mobility restrictions all over the globe. The siege mentality that has been brewing under the threats of mass migration and terrorism is now at peak intensity, as States barricade themselves, adopt increasingly protectionist measures and compete against each other for medical supplies and personnel.[ii]

In Europe, the first national responses to the outbreak were unilateral and selfish, which should come as no surprise to anyone familiar with the European integration process, but is nevertheless disheartening. In early March, when Italy became the epicentre of the outbreak and the WHO acknowledged that we were facing a pandemic, Austria and other Schengen States rushed to reintroduce border controls at their land and air borders, in rapid succession.[iii] Flights to and from Italy were blocked by several EU Member States.[iv] EU citizens were denied admission in Italy, Hungary, Croatia and the Czech Republic, to name a few.[v] The Hungarian government banned the entry of all non-Hungarian citizens, with minor exceptions, and suspended submission of asylum claims.[vi] Cyprus even barred entry to its own nationals returning from hotspots abroad.[vii] Boats of migrants intercepted in the Mediterranean were hastily returned to Libya.[viii] The list could go on.
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Effective judicial protection of credit rights in the European Union

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 by Marco C. Gonçalves, Professor of Civil Procedure, University of Minho

The free movement of people, goods and services in the European Union – as a fundamental pillar for the construction of an internal market – led, inevitably, to an increase of the cross-border disputes, that is to say, disputes that are connected with two or more different Member States.

Consequently, this requires the European Union to adopt appropriate procedural instruments to allow the fast and effective resolution of these conflicts, within an area of freedom, security and justice.

In this regard, it is a fact that the European Union has been adopting a set of normative instruments of particular importance to guarantee access to justice in civil and commercial matters, mainly focused on judicial cooperation between the different Member States. In particular, stands out the definition of common rules on jurisdiction, recognition and enforcement of judgments in civil and commercial matters [1], service of judicial and extrajudicial acts [2], taking of evidence [3] and recovery of debts [4].

In any case, with regard to the judicial protection of credit rights in the European Union, the difficulties and problems that arise with regard to the effective satisfaction of creditors demand the urgent adoption of normative instruments that guarantee the protection and adequate satisfaction of these rights.
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Digital public services in the European Union: eHealth through the lens of administrative interoperability

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 by Joana Abreu, Editor and Jean Monnet Module eUjust Coordinator


Digital Single Market appears as the common good to be achieved, in the political level, in the European Union which was also embraced by all its Member States, since national and European political agents understood new ICT tools changed the way the world works and how people relate to each other. Furthermore, its establishment allowed overcoming gaps that were appearing between national efforts on digitalization of their internal sectors, particularly when there was a need to make those sectors transnational, by connecting them in a cross-border dimension.

The path to make European efforts on digital domains more effective was to firstly modernise public services, by resorting to ICT tools – that would make them, and especially their relations with individuals, simpler and more flexible. Digitalization of public services was, then, approached through the lens of interoperability – method adopted in order to link national administrations amongst themselves and with European institutions.

Interoperability was proclaimed in the ISA2 Programme through article 1 (1) of the Decision 2015/2240: “[t]his Decision establishes, for 2016-2020, a programme on interoperability solutions and common frameworks for European public administrations, businesses and citizens (‘the ISA2 programme’)”. In this sense, a new paramount was born: the one of e-Government.

In order to meet e-Government goals, European and national agents have made particular efforts to develop other secondary public interests, that would rely on Public Administrations to concretize, implement and regulate them.

eHealth was one of them.
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Robots and civil liability (ongoing work within the EU)

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 by Susana Navas Navarro, Professor of Civil Law, Autonomous University of Barcelona

The broad interest shown by the European Union (EU) for the regulation of different aspects of robotics and artificial intelligence is nowadays very well known.[i] One of those aspects concerns the lines of thinking that I am interested in: civil liability for the use and handling of robots. Thus, in the first instance, it should be determined what is understood by “robot” for the communitarian institutions. In order to be considered as “robot”, an entity should meet the following conditions: i) acquisition of autonomy via sensors or exchanging data with the environment (interconnectivity), as well as the processing and analysis of this data; ii) capacity to learn from experience and also through interaction with other robots; iii) a minimal physical medium to distinguish them from a “virtual” robot; iv) adaptation of its behaviour and actions to the environment; v) absence of biological life. This leads to three basic categories of “smart robots”: 1) cyber-physical systems; 2) autonomous systems; 3) smart autonomous robots.[ii] Therefore, strictly speaking, a “robot” is an entity which is corporeal and, as an essential part of it, may or may not incorporate a system of artificial intelligence (embodied AI).

The concept of “robot” falls within the definition of AI, which is specified, on the basis of what scholars of computer science have advised, as: “Artificial intelligence (AI) systems are software (and possibly also hardware) systems designed by humans that, given a complex goal, act in the physical or digital dimension by perceiving their environment through data acquisition, interpreting the collected structured or unstructured data, reasoning on the knowledge, or processing the information, derived from this data and deciding the best action(s) to take to achieve the given goal. AI systems can either use symbolic rules or learn a numeric model, and they can also adapt their behaviour by analysing how the environment is affected by their previous actions. 
As a scientific discipline, AI includes several approaches and techniques, such as machine learning (of which deep learning and reinforcement learning are specific examples), machine reasoning (which includes planning, scheduling, knowledge representation and reasoning, search, and optimization), and robotics (which includes control, perception, sensors and actuators, as well as the integration of all other techniques into cyber-physical systems”.[iii]

Concerning the robot as a corporeal entity, issues related to civil liability are raised from a twofold perspective: firstly, in relation to the owner of a robot in the case of causation of damages to third parties when there is no legal relationship between them; and, secondly, regarding the damages that the robot may be caused to third parties due to its defects. From a legal standpoint, it should be noted that in most cases the “robot” is considered as “movable good” that, furthermore, may be classified as a “product”. We shall focus on each of these perspectives separately.
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Blockchain and art market

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 by Geo Magri, Professor at the University of Torino

In recent times, blockchain technology has begun to be used to ensure certainty in the circulation of works of art.  Through the blockchain it is possible to record the existence of any author’s rights concerning the work, or the transfer of ownership of an art object, in order to make its circulation safer. These are aspects that, for a global market like this one, are of central importance and that allow us to understand why the first projects were launched to create chains aimed at meeting the specific needs of this sector, overcoming the critical issues that the art market traditionally brings.

Already in the seventies an attempt was made to achieve a result like that which today guarantees the blockchain. At the time it was decided to use the analogic recording of works of art, through the deposit of a picture and the recording of data that allowed the reconstruction of transactions related to the work. The project was proposed by Bolaffi of Turin and was aimed at ensuring the origin and traceability of the works sold. The idea of the analogical register was not successful in the practice of the art market and this was not difficult to predict since it was an excessively large market for an efficient analogical register.
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Cyber-regulatory theories: between retrospection and ideologies

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by Luana Lund, specialist in telecommunications regulation (ANATEL, Brazil)
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This article presents a brief history of some of the main theories about internet regulation to identify ideological and historical relationships among them.

In the 1980s, the open-source movement advocated the development and common use of communication networks, which strengthened the belief of the technical community in an inclusive and democratic global network [1]. This context led to the defense of full freedom on the internet and generated debates about the regulation of cyberspace in the 1990s. In the juridical area, Cyberlaw movement represents the beginning of such discussions [2]. Some of these theorists believed in the configuration of cyberspace as an independent environment, not attainable by the sovereignty of the States. At that time, John Perry Barlow was the first to use the term “cyberspace” for the “global electronic social space.” In 1996, he published the “Internet Declaration of Independence“, claiming cyberspace as a place where “Governments of the Industrial World […] have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear […] Cyberspace does not lie within your borders” [3].
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New perspectives on sale of consumer goods – maximum harmonization and high protection of consumers as a condition for the further development of cross-border trade in single market

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 by Maria João Pestana de Vasconcelos, Professor at the School of Law, UMINHO 

As a part of Digital Single Market Strategy for Europe published in May 2015, the Commission adopted, on 9 December 2015, two proposals of Directives: one for a Directive on certain aspects concerning contracts for the online and other distance sales of goods (“Sales of Goods proposal” or “Sales of Goods Directive”); another for a Directive on certain aspects concerning contracts for the supply of digital content and digital services (proposal for a “Directive on Digital Content” or “Digital Content Directive”).

These proposals are the basis of a future reform on consumer sales contracts based on the principle of maximum harmonisation while providing for a high level of consumer protection.

It is already clear that the minimum harmonization approach, adopted by the Consumer Sales Directive (1999/44/EC) [i] has proved not to be appropriate to ensure the proper functioning of the internal market. Member States allowed go beyond the minimum rules, and to impose a high level of consumer protection, have acted on different elements and to different extents. As a result, national provisions transposing the Consumer Sales Directive (99/44/EC) significantly diverge today on essential elements, such as the absence or existence of a hierarchy of remedies. These disparities between the national laws of the Member States constitute one of the major obstacles to the development of the cross-border trade in Single Market given that they may adversely affect business (in particularly small and medium enterprises) and consumers[ii].
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