Category: Essays

Union in a time of war: On the Judgment “Violetta Prigozhina”, Case T-212/22

On By officialblogunioIn EssaysLeave a comment 
Pedro Madeira Froufe (Editor)
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I

On 8 March 2023, the General Court delivered a judgment in the case of Violetta Prigozhina (Case T-212/22),[1] whose applicant is an octogenarian lady and mother of the well-known Russian “war entrepreneur” who leads the pro-Kremlin mercenary group called the “Wagner Group”.

The European Union (EU) has always had a sufficiently clear and assertive position towards the invasion of Ukraine by the military forces of the Russian Federation, which began on 24 February 2022. Support for Ukraine stems from many factors, not least the Ukrainian people’s desire to move closer to the European way of life. The so-called “Euromaidan revolution” that began in Kiev in 2014 reacted against the former President Víktor Yanukóvytch for having refused to sign the agreements on trade cooperation and, in general, greater openness to the EU, apparently under pressure from Moscow.[2] On the other hand, the military action (aggression) unleashed in 2022 by Russia against Ukraine calls into question the international order and the assumptions of peace built up after the Second World War. From the perspective of the EU (and the political and civilisational bloc currently referred to as the “West”, associated with the framework of the democratic rule of law), this is a serious violation of international law.

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Sustainability and trade marks

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Maria Miguel Carvalho (Associate Professor with Habilitation, School of Law, University of Minho, Portugal. Director of Research Centre for Justice and Governance, School of Law, University of Minho, Portugal)
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Introduction*

The importance of intellectual property [IP] in the pursuit of goal 9 of the 2030 Agenda (build resilient infrastructure, promote inclusive and sustainable industrialization and foster innovation) is often mentioned and, upon the initiative of the World Intellectual Property Organization [WIPO], was already the leitmotif of the World IP Day in 2020 (“Innovate for a Green Future”)[1], although for the most part only patents and utility models are mentioned. However, due to a growing awareness on the part of consumers [the “green” consumers (LOHAS consumers)][2] on the impact of their choices, in recent years the role that trade marks might play in this domain is also emerging[3] (e.g., the 2022 MARQUES Annual Conference theme: “Celebrating marks: How sustainability and technology will shape the future of brands”).

Trade marks are distinctive signs of products or services that provide relevant information to consumers. They can therefore play a highly relevant role concerning, in particular, the increased choice of products or services distinguished with “green” signs, and thus also encourage companies to adopt (more) sustainable practices. Companies, aware of this fact, have been increasingly adopting the so-called green branding, which consists in using trade marks that suggest that the products or services they indicate are environment-friendly (green marks, eco marks), for example, because they are recyclable.

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On the triggering of the EU’s conditionality mechanism: what has been done and what could follow

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Gonçalo Martins de Matos (Master in Judiciary Law by the University of Minho)
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            When the Court of Justice of the European Union (CJEU) delivered, at the beginning of the last year, the two landmark judgements Hungary v. Parliament and Council (Case C-156/21) and Poland v. Parliament and Council (Case C-157/21), the conditionality mechanism created by Regulation (EU, Euratom) 2020/2092 for the protection of the Union’s budget[1] definitely gained the green light for its implementation, in the sequence of which the Commission adopted the guidelines of application of said mechanism. On 27 April of the same year, the European Commission formally announced it would be triggering the conditionality mechanism against Hungary. After an intense period of negotiations between Brussels and Budapest, the European Commission adopted, on 18 September, a proposal on measures for the protection of the Union budget against breaches of the principles of the rule of law in Hungary[2] (COM(2022) 485 final), following which the Council of the EU adopted, on 18 September, an implementing decision on the measures proposed by the Commission.

            Before we proceed with the analysis of the proposed measures and their impacts on the protection of the rule of law, we must briefly provide the necessary legal framework. As we have discussed before, the intention behind the adoption of Regulation (EU, Euratom) 2020/2092 is “the protection of the Union budget in the case of breaches of the principles of the rule of law in the Member States”, as is set out in Article 1 of the same Regulation. Article 3 of this Regulation establishes situations that may indicate a breach of the principles of the rule of law, and Article 4 stipulates the conditions for the adoption of the necessary measures to protect the same principles. Article 5 lays down the measures that can be adopted in case the Commission finds that the principles of the rule of law have been breached under the described terms, following the procedure set out in Article 6 of the Regulation. We further add that Article 5(3) enshrines a principle of proportionality when adopting those protective measures. Article 6(1) determines that the Commission may resort to the conditionality mechanism unless it considers that other procedures set out in Union legislation would allow it to protect the Union budget more effectively. Seeing that the European Commission has already resorted to Article 7 TEU and to several infringement procedures regarding the Hungarian government’s various breaches, the conditions were met to activate the conditionality regime.

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Lula’s presidency: what to expect from the European Union – Brazil relationship

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José Manuel Fernandes (Member of the European Parliament and Chairman of the European Parliament Delegation for relations with the Federative Republic of Brazil)
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Lula da Silva’s victory in Brazil’s 2022 presidential elections is an opportunity for the strengthening of relations between the European Union and Latin America’s largest country. Taking advantage of the new Brazilian government taking office on January 1, 2023, as well as the unfortunate events of January 8, when protesters invaded Brazilian institutions. In this text, I propose to address what I hope and wish for the bilateral relations between the EU and Brazil in the coming years. For my part, and as Chairman of the European Parliament Delegation for relations with the Federative Republic of Brazil, I take what I write not only as analysis, but also as political commitment.

The size and importance of Brazil continues to elude most Europeans, even the main political leaders. We perpetuate a distant and incomplete vision of what Brazil actually is: a country that represents half of Latin America, both geographically and demographically; the 10th economy in the world; one of the five largest agricultural producers in the world. It is time to recognize Brazil as a global giant, and to treat it as such.

The key word must be “cooperation”. Without paternalism, by mutually recognizing potentialities and weaknesses. Cooperation must have as common ground the values of freedom, democracy, the rule of law, and the uncompromising defence of human dignity and human rights. Environmental sustainability and inclusion are also essential elements for the economic development we must conquer.

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The system of investigation of offences committed by judges and prosecutors in Romania, once again under the attention of the CJEU

On By revistaunioIn Essays1 Comment 
Dragoș Călin (Judge at the Bucharest Court of Appeal and Co-President of the Romanian Judges' Forum Association)
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By the decision issued on 24 November 2022, the Pitești Court of Appeal referred two preliminary questions to the Court of Justice of the European Union, the second of which concerns the compatibility of the new system of investigation of offences committed by judges and prosecutors, as a result of the dismantling of the famous Special Section (SIOJ), criticized by all relevant international bodies and regarding which the Court of Justice of the European Union (CJEU) itself expressed serious doubts related to the compatibility with the European Union law.

Thus, by the judgment issued in the joined cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociația Forumul Judecătorilor din România and Others, the Grand Chamber of the Court of Justice of the European Union established that Article 2 and the second subparagraph of Article 19(1) of the TEU, as well as the Commission Decision 2006/928 of 13 December 2006 establishing a Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (CVM) must be interpreted as precluding national regulation that provides for the establishment in the Public Ministry of a specialized section that has exclusive competence to investigate the offences committed by judges and prosecutors without the establishment of such section being justified by objective and verifiable requirements related to the sound administration of justice and without being accompanied by specific guarantees that allow, on the one hand, to remove any risk that this section may be used as an instrument of political control over the activity of those judges and prosecutors likely to affect their independence and, on the other hand, to ensure that such competence can be used in relation to the latter in full compliance with the requirements resulting from Articles 47 and 48 of the Charter of Fundamental Rights of the European Union.

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The role of associations of judges in defending the rule of law: legitimacy of unconditional locus standi in situations where they seek to obtain effective jurisdictional protection in areas regulated by European Union law

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Dragoș Călin [Judge at the Bucharest Court of Appeal, Co-President of the Romanian Judges' Forum Association, Director of the Judges' Forum Review (Revista Forumul Judecătorilor)].
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On 24 November 2022, the Pitești Court of Appeal referred two preliminary questions to the Court of Justice of the European Union, the first of which concerns the legitimacy of locus standi and the procedural interest of professional associations of judges in order to promote and defend the independence of judges and the rule of law, as well as to safeguard the status of the profession, in situations where associations seek to obtain effective jurisdictional protection in areas regulated by Union law.

The litigation initiated by the Romanian Judges’ Forum Association respectively by the Movement for Defending the Status of Prosecutors Association, two of the most important associations of Romanian judges and prosecutors, seeks the annulment of administrative acts regarding the appointment within the Prosecutor’s Office attached to the High Court of Cassation and Justice of prosecutors who will conduct criminal investigations in corruption cases regarding judges and prosecutors, given that, in Romania, the competence of the National Anticorruption Directorate in this field has been completely removed.

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The future regulation on non-contractual civil liability for AI systems

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By Susana Navas Navarro (Professor at the Universidad Autónoma de Barcelona)
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I was surprised and struck by the fact that, after all the work carried out within the European Union (“EU”), on the subject of civil liability for Artificial Intelligence (“AI”) Systems, the European Commission has opted for a Directive (the Proposal for a Directive on adapting non contractual civil liability rules to artificial intelligence or “Proposal for a Directive”) as the instrument to regulate this issue. Moreover, a Directive with a content focused exclusively on two issues: a) the disclosure of relevant information for evidence purposes or to decide whether or not to bring forth a lawsuit and against whom (Article 3) and b) the presumption of the causal link between the defendant’s fault and the result or absence thereof that an AI system should produce (Article 4). The argument for this is the disparity of civil liability regimes in Europe and the difficulties there have always existed in harmonization (see the Explanatory Memorandum accompanying the Proposal, p. 7). Choosing a Regulation as proposed by the European Parliament[1] or the proposals of the White Paper on AI would have allowed such harmonisation, and could have included rules on evidence. It seems to me that behind this decision lies the invisible struggle, previously evidenced in other issues, between the Commission and the European Parliament. I believe that the risks for all involved in the use and handling of AI systems, especially high-risk ones, are compelling reasons in favour of harmonization and strict liability.

In relation to this aspect, the Proposal for a Directive abandons the risk-based approach that had been prevailing in this area, since it assumes that the civil liability regimes in most of the Member States are based on fault. This is referred to, for example, in Article 3(5) when presuming the breach of duty of care by the defendant or directly in Article 2(5) when defining the action for damages, or Article 4(1) when admitting the presumption of the causal link between it and the result produced by the IA system or by the absence or failure in the production of such a result which causes the damage. Therefore, if in the national civil liability regime, the case was subsumed under a strict liability regime (e.g., equated to the use or operation of a machine or vicarious liability of the employer), these rules would not apply. National procedural systems, in relation to access to evidence, are not so far r from the provisions of this future Directive.

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What is “Reality”? An overview to the potential legal implications of Extended Reality technologies

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By Manuel Protásio (PhD Candidate at the School of Law of the University of Minho)
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When Virtual Reality and Augmented Reality become ubiquitous in our most mundane actions and inter-personal relations, they will certainly bring many changes in how Law addresses human behavior.

The need for a coherent discussion regarding the potential cognitive effects of these technologies and, subsequently, the legal consequences that may be triggered by their effects is highly relevant and necessary to avoid possible misconceptions in courts and legal systems.

The use of these technologies may result in alterations of our cognitive functions, significant enough to be considered a type of an altered state of consciousness, amenable to different legal consequences. On that premise, it is important to realize that these technologies can have both positive[1] and negative effects. [2] 

These technologies are built and defined with reference to the concept of reality. Such terminology is used to contrast actual reality.  Reality, as it is defined by the Oxford Dictionary, is “the state of things as they actually exist, as opposed to an idealistic or notional idea of them”.[3] This reality, or the “the thing in itself” as Kant proposed, in the information age and especially in the light of technologies like Augmented and Virtual Reality, has become harder to ascertain, since the human model of perception[4] is being exposed to more filter layers than it is used to.[5]

The ontological dimension of reality has always shifted depending on the criteria and discourse used to define it. John Locke for instance, in his Essay on Human Understanding in 1690, describes reality as the knowledge that we convey on the objects that surround us. That knowledge – he states – comes from our observational Experience, which in turn comes from the external interaction of our senses with “sensible objects” followed by the internal operations of our mind.[6] He describes these internal operations as being a cognitive reflective process on the perceived objects, which can be interpreted as employing meaning – or affections as he says- to those “sensible objects”. From this systematic process, sensible qualities are born, such as “Yellow, White, Heat, Cold, Soft, Hard, Bitter, Sweet”.   

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Do spinach and smart cities benefit your health?

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By Cecília Pires (PhD Candidate at the School of Law of the University of Minho)
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The pure and simple acquisition of technologies to make the city smarter is a bit like the analogy employed by Arnstein[1] and resembles eating spinach – at first nobody is against it because, after all, it is only beneficial to one’s health. So how can these positive effects be denied? Indeed, it is not simply because a solution proposes to be smart that it will in fact be so for everyone. Hence, what is the real goal of a smart city?

Smart cities emerge as a new urban planning paradigm that seeks to incorporate information and communication technologies (ICTs) to address urban issues in an innovative, sustainable, and resilient way to promote the quality of life for all citizens.

Cities have been given a central a role due to the need for effective responses to urban problems, mainly the high levels of energy consumption and CO2 production. Yet, there is no single definition for a smart city: it is a polysemic concept that can be understood from different perspectives, according to different areas of knowledge. Therefore, the understanding of what smart cities entail is gradually being built.

The Leipzig Charter on Sustainable European Cities (2007),[2] the United Nations 2030 Agenda for Sustainable Development (2015),[3] the United Nations New Urban Agenda (2017),[4] the Urban Agenda for the European Union (2019/2021),[5] and the New Leipzig Charter (2020),[6] and other commitments and pacts are strategic references. Those instruments function as normative guidelines for urban planning, urban public policies, and actions by the EU Member States.

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Notes on European defense and the signs of a new world and European order

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By Pedro Pereira (Master's Student in EU Law at the University of Minho)
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1. Introduction

Defense policies in the European Union (EU) and how they should be conducted are an old topic. In any case, it is defensible that i) the fact that European defense was provided by the United States of America (USA) during the historical period of the Cold War, as well as ii) the circumstance that in more recent times, European defense was materialized and operationalized through the North Atlantic Treaty Organization (NATO) decisively contributed to the deepening of the rights of the European citizen and to the intervention of EU Member States in the development of sociality – something that shaped the way European integration was being built around the Rule of Law and the Welfare State.

The hypothesis of a progressive gap in transatlantic relations (EU and US) – or, at least, the revival of this debate – returns whenever an external threat to European security arises. But world geopolitics may actually be at a turning point, motivated mainly by the return of war, due to the Russian Federation’s invasion of Ukraine– which requires a reassessment of European strategies in terms of foreign policy, security and defense. Recent events, in a way, contradict the thesis of an inevitable European dependence on the US, as well as urge a restructuring of the EU’s defense – which, despite still depending on NATO, aims to be more robust and autonomous. To this extent, the change in the way the EU presents itself on the international scene may be imminent.

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