The first steps of a revolution with a set date (25 May 2018): the “new” General Data Protection regime

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by Pedro Madeira Froufe, Editor


1. Homo digitalis[i] is increasingly more present in all of us. It surrounds us, it captures us. Our daily life is digitalising rapidly. We live, factually and considerably, a virtual existence… but very real! The real and the virtual merge in our normal life; the frontiers between these dimensions of our existence are bluring. Yet, this high-tech life of ours does not seem to be easily framed by law. Law has its own time – for now barely compatible with the speed of technologic developments. Besides, in face of new realities, it naturally hesitates in the pursuit of the value path (therefore, normative) to follow. We must give (its) time to law, without disregarding the growth of homo digitalis.

2. Well, today (25 May 2018) the enforcement of Regulation 2016/679 (GDPR) begins. Since 25 January 2012 (date of the presentation of the proposal for the Regulation) until now the problems with respect to the protection of fundamental rights – in particular the guarantee of personal data security (Article 8 CFREU) – have been progressively clearer as a result of the increase in the digital dimension of our lives. Definitely, the personal data became of economic importance that recently publicized media cases (for example, “Facebook vs. Cambridge Analytics”) underline. Its reuse for purposes other than those justifying its treatment, transaction and crossing, together with the development of the use of algorithms (so-called “artificial intelligence” techniques) have made it necessary to reinforce the uniform guarantees of citizens, owners of personal data, increasingly digitized.
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Past a “Great Perhaps”, the transnational lists for the European Parliament Election become a great doubt

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by Sergio Maia, Managing Editor

Considering the “Great Perhaps” – as Rabelais stated in his very last words when passing away to the final destination – surrounding Brexit, one great doubt has just emerged. Yesterday, the European Parliament voted and approved in plenary (431 x 182. There were 61 abstentions) the report on the new seats distribution of MEPs for the period after the UK withdrawal. Yet, the inclusion of a joint constituency comprising the entire territory of the Union, the well-known transnational lists topic, was rejected. Previously and long evaluated, the Constitutional Affairs Committee (AFCO) had approved (17 x 8) the future structure in Jan., 24th. That would mean that in the next elections, besides the usual ballot, there’d be one separate “section” in which the European citizens and residents would vote for representatives not on a Member State-by-Member State basis, but on a general basis instead. Such “section” would have 27 seats (ideally with preannounced runners) to be fulfilled by the most voted candidates in the ballots across the whole Union without national divisions. The Council still would have to unanimously agree on the issue before the new system entered into force (and the Parliament would need to vote again confirming) but the proposal is in this part (for) now off the table.

The general seat change has happened because the composition of the EP needed to go through modifications given the MEPs from the United Kingdom end their terms in 2019 and will not be candidates again following Brexit.
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Reclaiming the Truth: the role of European citizens on countering fake news

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by Rui Vieira, master's student in EU law at University of Minho

The epidemic of unrestrained fake News on social medial in the latest years has revealed itself to be a major concern for the European democratic culture. The same way there is a massive amount of information circulating, there is also a massive amount of misinformation and sensationalistic, unreliable information flowing through Social Networks. The repercussions and negative effects on public opinion are varied. From social tension to the promotion of demagogy, uncertainty and pessimistic skepticism on the public opinion.

Facing such global-scaled problems, the Commission wants its citizens to feedback on fake news and online disinformation. A Public consultation on the ways to tackle this online problem is available between November and February.

The demand for possible regulation for this problem came after a 2017 Resolution by the European Parliament calling on the Commission to analyse in depth the current situation and legal framework with regards to fake news and to verify the possibility of legislative intervention.

In fact, the advent of Social Networks did nothing more than to increase older concerns. In the last century, it was already discussed if there is a conceptual distance between news and the truth and if a democratic public opinion is compatible with a free press and the search for the truth[i].

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The right to withdraw the notification to leave the European Union under Article 50 TEU: can we still save the marriage?

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by Mariana Alvim, PhD candidate at University of Lisbon

The 29 March 2017 will be always recalled as the date the United Kingdom has served divorce papers on the European Union, following a referendum that took place on the 23 June 2016 where the majority of the British people decided to leave the EU.

The EU institutions and the Member States have limited instruments at their disposal to persuade other Member State to remain a member of the Union against their will; therefore if exit cannot be prevented at least it can be regulated.

The decision to depart is always taken in accordance with the Member State’s domestic law but once Article 50 TEU is triggered the law of the European Union governs the withdrawal process and the departure itself.

And despite its rapid rise to fame in the result of the British referendum, this sparsely worded Treaty provision still raises more questions that it answers.

It is important to underline that Article 50 TEU imposes substantive and procedural conditions on the withdrawing Member State. But once it has given notice under Article 50(1) TEU, all that the withdrawing Member State is apparently required to do, before the Treaties cease to apply, is to wait out the two-year period stipulated in Article 50(2) TEU.

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Is Europe alone?

by João Alexandre Guimarães, Erasmus student at UMinho

After the US Election and confirmation of Donald Trump as president, the current President Barack Obama visited Europe and raised an issue … Is Europe alone?

In an interview, the EU Commission President Jean-Claude Juncker, said,

“Trump has, among other things, praised Vladimir Putin, questioned the principle of NATO, and suggested creating a database of Muslims in America.[…] We will need to teach the president-elect what Europe is and how it works,’ he continued, adding that Americans usually had no interest in Europe. […] I think we will waste two years before Mr Trump tours the world he does not know”, via Metro.

In Berlin and after a meeting with Chancellor Angela Merkel, current President Barack Obama recalled the priorities of his eight-year term, saying he hoped that his successor, Donald Trump, would not call into question projects such as the transatlantic free trade agreement or commitments to NATO and the Paris climate deal.

‘‘The committement of the United States to Europe is enduring and it is rooted in the values that we share. The values that Angela just mentioned. Our commitment to democracy, our commitment to the rule of law, our commitment to the dignity of all people. In our own countries and around the world our alliance with our NATO partners has been a cornerstone of US foreign policy for nearly 70 years, in good times and bad, and through presidents of both parties, because the United States has a fundamental interest in Europe’s stability and security,” he said, via Euronews.

Mark Leonard told the Social Europe that “this will be a tough agenda to adopt – not least because Europe is facing its own brand of populist nationalism. France’s far-right National Front leader, Marine Le Pen, was among the first to congratulate Trump on his victory, and Trump has said that he would put the UK at the front of the queue after Brexit. But even Europe’s most Trump-like leaders will find it harder to defend their national interest if they try to go it alone. To survive in Trump’s world, they should try to make Europe great again.”

Trump won, and what now for Europe?

by João Alexandre Guimarães, Erasmus student at UMinho

Today, 09/11/2016, we discovered that Republican Donald Trump won the American Election for President. But what does this influence in the European Union?

Deutsche Welle, on its website, has stated that Europeans have had rather disappointing experiences with American presidents. That’s just as true for the relationship with Republican George W. Bush as it is for the one with Democrat Barack Obama.

Erica Chenoweth, an expert on international security policy at the University of Denver, said to DW, “Europe should occupy the top spot on the list of priorities for the next president, because it’s about the most important strategic alliance the United States has”.

Mark Stone, from Sky News, talked to Jeremy Shapiro, the research director at the European Council on Foreign Relations, who stated:

“European governments have a strange degree of confidence that although they certainly don’t want a Trump presidency, they can manage it, because he has said a lot of crazy things on the campaign trail but he probably hasn’t meant most of them and probably won’t be able to implement the rest because of the checks and balances and advisers”, via SkyNews.

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Brexit is going to happen, but…

by João Alexandre Guimarães, Erasmus student at UMinho

The New York Times says the British government’s plan for leaving the European Union was thrown into uncertainty on Thursday after the High Court ruled that Parliament must give its approval before the process can begin. “The court’s decision seemed likely to slow — but not halt — the British withdrawal from the bloc, a step approved by nearly 52 percent of voters in a June referendum. Nevertheless, the court’s decision was a significant blow to Prime Minister Theresa May“.

She had planned to begin the legal steps for leaving the European Union by the end of March, and to prepare for the negotiations over Britain’s exit mostly behind closed doors. If the court’s ruling is upheld — the government immediately vowed to appeal — that plan would be thrown into disarray, analysts said.

On CNN (also here), Jane Marrick says, this does not have to expose Britain’s detailed negotiating position with Brussels, but it should allow our democratically elected representatives to scrutinize the broad terms. It will also give the 48% who voted Remain — 16 million people — a voice that under the government’s plans they are currently denied.

Eleanor Garnier, from BBC, said this decision has huge implications, not just on the timing of Brexit but on the terms of Brexit. That’s because it’s given the initiative to those on the Remain side in the House of Commons who, it’s now likely, will argue Article 50 can only be triggered when Parliament is ready and that could mean when they’re happy with the terms of any future deal. Of course, it will be immensely difficult to satisfy and get agreement from all those MPs who voted to remain. Could an early general election be on the cards after all? , via BBC.

Between the competition law and a competition culture: the case of Apple/Ireland

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by Ana Filipa Afonseca, student of the Master´s degree in EU Law of UMinho

The importance of Apple’s case emerged when the journalist of the Irish Times asked the European Commission representative, Margrethe Vestager, in the press conference about the illegality of the aid provided by Ireland to Apple Sales International, if the Union wouldn’t be afraid of losing the investment of external companies with such sanctions. The answer given, without lyricism, made clear that the lesson wasn’t well-examined, after all, she simply answered “this is not a penalty, this is unpaid taxes”. The state aid prohibition read in the 107º TFEU conforms one of the most important competition laws, given that this mechanism contradicts the previous protectionist rules, inherent to the state individualism, in which the national independence was established through favouring State domestic economy to the detriment of other economies. Therefore, this response was surgical: urges the time for the Member States to finally consider the internal market as a single market, defined by the fair competition and this will be the main catch for future investment. Above all, the competition law demands an important shift of thought by the Member States – today we are not one.

The case Apple/Ireland raises several questions. Primarily, it takes into account the mould of the State aid, due to the fact that this is not a direct measure of tax exemption, fiscal guarantee, preferential  tax interest , favourable deals in the land acquisition, special rates, as in most cases, the Irish measure translates in a broad sense, in a advantage (expression used in the Case Italy versus European Commission 2nd of July of 1974, Process 173/73) that benefits the economic operator. The illegal aid converts into splitting of profit between Apple Sales International and Apple Operations Europe which the result implies that the Irish branch office would be subjected to the normal taxation of Irish companies, however, the head office where most of the profit was allocated, was not subjected to any kind of taxation and this was possible under the Irish tax law, which until 2013 allowed for so called ‘Stateless Companies’.

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Conference and call for papers

 

In 2016 Portugal celebrates 40 years of its Constitution and 30 years of accession to the European Union. In order to join the commemorations and to debate those landmarks, the Centre of Studies in EU Law (CEDU) of University of Minho alongside the Representation of the European Parliament in Portugal distinguish the milestones by promoting the conference “40/30: from the constitutional project to the integration project – hopes, scepticism and reality in a political-constitutional debate” which will be held at the Law School of UMinho on 28th October 2016. The organizers’ partnership intends to perceive the path made upon these 40 years of Portuguese Constitution, 30 of which in interaction with the European project: what was meant originally has or has not been accomplished? Which adaptations, where has it lead us, where are we headed?, questions asked in an intergenerational perspective and in dialogue between scholars and MEPs.

Accompanying the conference, UNIO – EU Law Journal of CEDU issues this call for papers on the theme of the event seeking contributions from EU Law, Constitutional Law, International Law, Political Sciences, etc. for a special edition. The submissions are open until 1st of October.

The Editors and the Board encourage submissions and remind that the editorial policies and processes of UNIO apply.

The conference program will soon be made fully available.

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On the world of yesterday, witches and ghosts

 

by Professor Alessandra Silveira, Editor

(text in the memory of Jo Cox, British MP, 41, upholder of refugees’ rights and the continuation of United Kingdom in the EU, who was appallingly killed on 16th June).

Jo Cox’s murder was a senseless attack on democracy itself“, via The Telegraph.

Jo Cox MP death: David Cameron and Jeremy Corbyn unite in tributes“, via BBC.

Jo Cox death: ‘The well of hatred killed her,’ Corbyn says – latest updates“, via The Guardian.

Jo Cox’s tragic death may halt pro-Brexit momentum, analysts say“, via CNBC.

The price of caring“, via The Economist blog.

Jo Cox’s death should make us reflect on our polluted, abusive politics“, via Mirror.

After Jo Cox’s Killing (…)“, via The Wall Street Journal.

Before the adversities we have been facing in Europe lately – financial speculation, migratory boom, terrorism, Euroscepticism, populism, intolerance, Brexit, etc. – sometimes it seems it could not get worse. A sort of perfect storm, as it is said. But it can always get worse. In fact, it was worse in the past. We can acknowledge that by simply reading Stefan Zweig’s memoirs, The World of Yesterday. In it the author gives us a nostalgic picture of a missing world, the one of Europe pre-1914 which is opposed to heinous period of the wars, interleaved by a short time of peace and hope in the European renaissance. It was during the exile in England, and then Brazil, where the Jewish Austrian wrote his memories – as well as the iconic Brazil, land of the future, in deep demonstration of gratitude to the country that hosted him.

At this time of profound consternation due to the harrowing assassination of Jo Cox, this “world of yesterday” described by a war refugee in the end of the 1930s proves that there is still space for a normative approach of the European integration process, inclined to create solutions that help neutralize the fragmentation forces against which the Union is being confronted, and mobilize its cohesion forces.

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