Category: Essays

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

On By officialblogunioIn EssaysLeave a comment 
By Manuel Protásio (PhD Candidate at the School of Law of the University of Minho)
▪

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?

On By officialblogunioIn EssaysLeave a comment 
By Cecília Pires (PhD Candidate at the School of Law of the University of Minho)
▪

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

On By revistaunioIn EssaysLeave a comment 
By Pedro Pereira (Master's Student in EU Law at the University of Minho)
▪

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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Nuclear energy is “green”: now what?

On By revistaunioIn EssaysLeave a comment 
By Manuel Protásio (PhD Candidate at the University of Minho)
▪

In the beginning of July this year, the European Parliament voted in favour of a proposal on labelling natural gas and nuclear power as climate-friendly investments. For the first time, Parliament did not object to the Commission’s Taxonomy Delegated Act to include specific nuclear energy activities, under certain conditions, in the list of environmentally sustainable economic activities covered by the so-called EU Taxonomy. Although it is still early to read anything else besides the actual change in the taxonomy of the European Commission, the truth is that this conceptual change regarding nuclear energy can be seen as a major political statement regarding the future of energy in the European Union.

From a political point of view, it can be argued that this change comes from the urgent and dramatic context we are currently in, due not only to Climate Change but also to the geopolitical shift that has risen from the Russia’s war with Ukraine. Within this new global context, European Union’s political landscape also changed, particularly in what concerns energy policy and I believe this new taxonomy given to nuclear energy is also part of this new political landscape. Nevertheless, it is not our intention to bring forward a political analysis to this shift in European policy regarding nuclear energy, but to give a brief overview of whether nuclear energy should be labelled as a green energy and a climate-friendly investment and if so, how can this change help European Union’s objectives in becoming more self-sustainable in terms of energy production as well as achieving its goals under the Green Deal.

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A trial run for the EU’s co-regulatory approach: the Strengthened Code of Practice on Disinformation

On By officialblogunioIn Essays1 Comment 
By Miguel Pereira (Master in European Union Law from the School of Law of the University of Minho)
▪

On the 16 June 2022 the Strengthened Code of Practice on Disinformation was signed and presented to the European Commission, marking the end of a year long process that revamped the original 2018 Code of Practice on Disinformation.

The Strengthened Code, following the lines of the 2018 Code, is a self-regulatory and voluntary mechanism by which participants of the digital economy assume commitments to combat disinformation online. It forms part of a wider strategy that has been developed by the EU institutions since 2018 but has assumed a central role in the EU’s response to phenomenon. The 2018 Code was particularly important to highlight the mechanisms that online platforms had developed (and could develop) to address the issues this threat posed to their services and allowed for closer cooperation between its signatories and the Commission, with special focus around two events: the 2019 European Parliament election and the Covid-19 crisis.

Notwithstanding the successes we have highlighted and the groundbreaking nature of the initiative, a 2020 assessment of the implementation of the code levied criticism at the lack of oversight, erratic reporting practices, vagueness of the commitments, relatively disappointing adherence by industry players and difficulty in evaluating its effectiveness and enforcing the commitments vis-á-vis its signatories. Based on this assessment, the Commission issued a guidance calling for a strengthening of the Code’s structure and commitments and laying out specific areas which merited improvement. The signatories heeded the call and led the review process, with the resulting Strengthened Code closely following the recommendations laid out in the Commission’s Guidance.

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REPOWER EU – A challenge and an opportunity

On By revistaunioIn Essays1 Comment 
By Maria Barros Silva (Associate Lawyer at SRS Advogados – Energy and Competition Law) and Nuno Calaim Lourenço (Managing Associate at SRS Advogados – Energy and Competition Law)
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1. Context

The energy sector is cyclical by nature. History offers several examples of market expansion followed by very sudden contractions. Unfortunately, the current crisis differs from previous ones. To put things into dire perspective, the European Union (“EU”) heavily relies on fossil fuel (gas, oil and coal) imports for its energy needs, amounting to circa 60% of gross energy consumption in the past 5 years. The EU imports 90% of its gas, with Russia previously accounting for 45% of those imports, as well as for 25% of oil and 45% of coal. Although European domestic production of renewable energy sources has increased significantly in recent years, the intermittent nature of the so-called “green energy”, coupled with limited renewable-energy storage and a drastic and intransigent reduction in the production of EU coal, lignite and gas has meant that the EU remains energy dependent.

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The future of Europe: “citizens with real experience” and the European Political Community

On By officialblogunioIn EssaysLeave a comment 
By Pedro Madeira Froufe (Editor) and Tiago Sérgio Cabral (Managing Editor)
▪

1. The expression “citizens with real experience”, was used by President Emmanuel Macron in his speech on 9 May 2022 at the European Parliament.[1] 

This speech was delivered at the European Parliament’s traditional Europe Day session. This year, this session also marked the closing of the Conference on the Future of Europe. In fact, President Macron used that expression, addressing all those who were involved in the work of the Conference, highlighting the democratic exercise that meant the active participation of citizens, concretised in several proposals. According to Macron, these proposals are creative, as indeed the times we live in in Europe require.

2. The first striking feature of this speech has to do directly with the temporal contextualisation of President Macron’s programmatic ideas. A time of war. A time of war that effectively demands “creative efforts” in the search for European responses to the crisis that, from the outset, erupted because of the war. “Creative efforts’ which, undoubtedly and according to Macron, are more necessary today than they were in the past.

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Protecting Children’s Rights in the Digital Age: the new European strategy for a better internet for kids (BIK+)

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By Maria Inês Costa (Master in Human Rights from UMinho)
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Given the rapid technological evolution in the so-called Digital Decade, and the need for legal regulation in view of the emerging needs and circumstances that this evolution has brought about, the European Union has been taking a position to strengthen the protection of children’s rights in this context. One of the most recent paradigmatic examples of this approach is the new European strategy for a better internet for kids (BIK+), published in May 2022, about two years after the outbreak of the COVID-19 pandemic which increased the use of digital media.

According to Article 24(2) of the CFREU, “in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration”[1], and to that extent, the digital transition should be carried out keeping in mind the advantages that these bring to children, for example, as a source of inexhaustible knowledge, but also the dangers it entails and the exacerbation of inequalities it leads to, when there is no governance of its use and access.

As per item 3 of the UN’s General comment N.º 25 (2021) on children’s rights in relation to the digital environment,[2] the children consulted asked questions regarding the new developments in the digital age that directly affect them – “I would like to obtain clarity about what really happens with my data… Why collect it? How is it being collected?”; “I am… worried about my data being shared” – and in the subsequent paragraph (item 4) one can read: “innovations in digital technologies affect children’s lives and their rights in ways that are wide-ranging and interdependent (…)”.

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Some additional thoughts on metadata retention – points to consider when adopting new legislation [on joined cases C‑793/19 and C‑794/19 (SpaceNet) and the German legislation on this matter]

On By officialblogunioIn Essays1 Comment 
By Alessandra Silveira (Editor) and Tiago Sérgio Cabral (Managing Editor)
▪

As we have highlighted in this blog, in the recent judgment 268/2022 of 19 April, the Portuguese Constitutional Court finally declared the unconstitutionality of some provisions of Law 32/2008.  Law 32/2008 transposed the rules of Directive 2006/24, which were declared invalid eight years ago by the Court of Justice of the European Union (“CJEU”) in the Digital Rights Ireland judgment, for introducing a system of generalised and indiscriminate retention of personal data. This case-law of the CJEU has recently (again) been confirmed in the G. D. judgment, according to which: Article 15(1) of Directive 2002/58 (Directive on privacy and electronic communications), read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights of the European Union (“CFREU”), must be interpreted as precluding legislative measures which, as a preventive measure for the purposes of combating serious crime and preventing serious threats to public security, provide for the general and indiscriminate retention of traffic and location data (recital 129).

Fortunately, the idea of amending the Portuguese Constitution to overcome the problem of the generalised and indiscriminate retention of metadata – which is, first and foremost, a matter of EU law – is losing steam. But there have been some voices that, surprisingly, suggest a change of course in the case-law of the CJEU and the Portuguese Constitutional Court. It is worth remembering that, in a State governed by the rule of law and a Union based on the rule of law, judicial decisions against which there is no appeal must be respected – whether one agrees with them or not. This is our most precious constitutional heritage. In fact, one could argue that if we had carefully considered the implications and respected the decision of the CJEU in Digital Rights Ireland when it was originally ruled, we could have avoided this entire issue.

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The material competence of the European Public Prosecutor’s Office and its extension to organized crime as terrorism, human and drug trafficking

On By officialblogunioIn EssaysLeave a comment 
Catarina Vilarinho (Master in EU Law, School of Law, University of Minho)
▪

1. Initial thoughts

The start of operation of a new European body such as the European Public Prosecutor’s Office, hereinafter EPPO, on 1 June 2021 is a sign that the Member States of the European Union (EU) are increasingly aligning themselves to create a stronger and more resilient Union, perhaps, in this case, due to the need to combat transnational crime, for which we will not find a sufficiently effective solution without strong and structured intervention at European level[1].

In this way, the battlefield is prepared for a battle of equal arms, as cross-border crime can now be tackled by an equally cross-border authority[2].

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