The Proposal of a Directive on Whistleblowers’ protection, is the EU in the right path?

Canciller Ricardo Patiño se reunió con Julian Assange

 by Joana Whyte, Editoral Team

Technology … is a queer thing. It brings you great gifts with one hand, and it stabs you in the back with the other[i]

Today’s society has become increasingly dependent on computer systems and the use of the Internet, making cybercrime an ever more pressing threat to the European Union (EU) and its Member States, being by nature a transnational type of crime, its complexity of its combat is undeniable. Nowadays we are all dependent on the internet and this dependency has made us vulnerable to the threat of cybercrime. There are several examples of this reality, the use of the email address as a preferential means of exchanging mail for personal or professional correspondence, store information in the cloud, publish personal and professional information on social networks, make payments or bank transfers, book trips or hotels and so on. If this dependence is accurate when speaking of our everyday lives, the same applies to the State and the European Institutions. They too have surrendered to the overwhelming power of the internet. For instance, our judicial system is totally dependent on computers and the internet.
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The impact of Brexit on the Common Security and Defence Policy of the European Union

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by Ana Torres Rego, Master's degree in EU Law of UMinho

The winning of the campaign “Vote Leave”, in the referendum of 23 June 2016 held with the view to expiry the United Kingdom’s accession Treaty, turned out to be one of the biggest challenges facing the modern history of the European Union.

For its turn, if on the occasion when Article 50 of the Treaty on European Union was invoked in 2016 the earlier speeches of the Britain Prime Minister Theresa May can be summarised as “Brexit means Brexit” – as an answer against free movement of people; in the recent past, the increased awareness of the high cost for all parties involved of a hard Brexit has opened space for dialogue and negotiation.

The change of direction noted from October 2016 to March 2017 is very clear in the formal communication[i] notifying the United Kingdom’s intention to leave the European Union sent by Mrs. May to the European Council. That letter, where concerns related with the state of defence of the EU from security threats are strongly expressed, suggests first and foremost the British willingness to keep a special relation with the European Union in defence and security matters in order to ensure the status of security power for both among the potencies in the international order.
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Internet, e-evidences and international cooperation: the challenge of different paradigms

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by Bruno Calabrich, Federal circuit prosecutor (Brazil)


There is a crisis in the world today concerning e-evidences. Law enforcement authorities deeply need to access and analyze various kinds of electronic data for efficient investigations and criminal prosecutions. They need it not specifically for investigating and prosecuting so-called internet crimes: virtually any crime today can be committed via the internet; and even those which aren’t executed using the web, possibly can be elucidated by information stored on one or another node of the internet. The problem is that enforcement authorities not always, nor easily, can access these data[i], as the servers where they are stored are frequently located in a different country. Thus, international cooperation is frequently a barrier to overcome so that the e-evidence can be obtained in a valid and useful way. And, today, the differences around the world in the legal structures available for this task may not be helping a lot.

The most commonly known instruments for obtaining electronic data stored abroad are the MLATs – Mutual Legal Assistance Treaties –, agreements firmed between two countries for cooperating in exchanging information and evidences (not restricted to internet evidences) that will be used by authorities in investigations and formal accusations. The cooperation occurs from authority to authority, according to a bureaucratic procedure specified in each treaty, one requesting (where it’s needed) and the other (where it’s located) providing the data. But, in a fast-changing world, where crime and information are moving even faster, the MLATs are not showing to be the fastest and efficient way.  In Brazil, for instance, the percentage of success in the cooperation with the United States through its MLAT roughly reaches 20% of the cases. Brazil, US and other countries do not seem to be satisfied with that.
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The US CLOUD Act and EU Law

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 by Alexandre Veronese, Professor at University of Brasília

In March 2018, the President of the United States of America signed into Law a Bill approved by the Congress, which amended two parts of the US Code, the consolidation of the federal statutory norms of the country. The Clarifying Lawful Overseas Use of Data Act – CLOUD Act – was the third version of two preceding bills. Those prior bills tried to solve a grave contemporary issue: the difficulty to access electronic data that could be necessary to criminal investigations and prosecution. The new CLOUD Act changes mainly two passages of the US Code. It creates the possibility that the United States and foreign countries could sign executive agreements to grant mutual assistance in order to authorize the gathering of overseas data. In addition, the CLOUD Act creates standards to those agreements.

The United States of America have a long standing right to due process of law entrenched in the Fourth Amendment of its Constitution. The debate about the limits to access information captured by the means of new ways of communication is rather old in the US. The Federal Wiretap Act came to the US Code amidst the Omnibus Crime Control and Safe Streets Act of 1968. It was a huge alteration of the Title 18 of US Code, which is the Crimes and Criminal Procedures federal statutory law. Therefore, the federal statutory law received provisions that could regulate the lawful wiretapping in criminal investigations and the use of them between agencies and jurisdictions. Notwithstanding, the passing of time and the evolution of technologies showed the aging of those legal norms. A lot of the information that matters to seize, in order to archive effective evidence to use in investigations, came to be electronic. It was necessary to modify the Wiretap Act and, in 1986, it came the Electronic Communications Privacy Act. The new Act modernized the Law and it regulated the criminal features related to stored electronic information – the Stored Communications Act. The Patriot Act (2001 and 2006) brought to light some provisions regarding to overseas information that were made more detailed with the amendments signed into law in 2008.
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Transposition of the Damages Directive in Portugal

 

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 by Maria Barros Silva, Trainee Lawyer at SRS Advogados

Directive 2014/104/EU was finally transposed into the Portuguese legal system by Law No. 23/2018 of 5 June, which regulates the right to compensation for victims of infringements to competition law. The Damages Directive was published on 26 November 2014, having a deadline for transposition on 27 December 2016. Portugal was the last Member State to transpose the Directive, almost a year and a half after the deadline, following a call from the Commission to take the necessary steps to ensure its full implementation. Hopefully, this will avoid an infringement procedure from the Commission and any possible fines.

In essence, the content of the Law corresponds to the text of the Directive, although it does go beyond it in certain aspects, with some innovative solutions.

Firstly, the scope of the Law. It applies not only to actions for damages for infringements of European Union competition law (Articles 101 and 102 TFEU, with or without parallel application of equivalent national rules), as laid down in the Directive; but also to actions for damages based on purely national infringements, with no cross-border effects (Articles 9, 11 and 12 of the Competition Law – Law no. 19/2012, of 8 May) or corresponding legal norms in other Member States. Secondly, the law applies not only to actions for damages, but also to other claims based on infringements of competition law.
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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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The evolution of European agencies’ competences in civil aviation

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 by José Ricardo Sousa, member of CEDU

Over the last years, the European Union (EU) has dealt with a structural metamorphosis to face the new contemporary challenges, together with the will to continue the idea of Europe conceived by Jean Monnet, Konrad Adenauer or Altiero Spinelli. This situation can be seen pretty well on the economic area, where interactions between EU institutions and Member States (MS) have been rising in the last decades in order to accomplish the economic goals set for both parties and to protect and to ensure the EU single market.

The process of agencification established in the late 90’s of the previous century by Romano Prodi, former President of the EC, is a good example of Governance and Multi-Level Administration inside EU. The so-called “Prodi Reform” began as a response to the polemic involved with Bovine Spongiform Encephalopathy (BSE) disease that showed how inefficient EU’s role were in supervise all economic sections and guarantee the high-standard of security for all goods that were produced and sold to all EU citizens, due to the overload of workings. Moreover, the foreseen EU enlargement to the East was seen as another reasonable motive to reform all the European Commission (EC) workings. So, EC, as the EU institution responsible for safeguarding the principles and rules of the EU Treaties, has the duty to assess (together with DG Comp) the single European market and to evaluate cases that are incompatible with provisions of the Treaties, as well as other legislative acts emanating from it, as set out in Article 17(1) TEU. For that reason, EC felt the need to decentralise its competences and sub-delegate some of the powers to non-democratic bodies which carries out all tasks needed to accomplish the proposed objectives, such as regulatory power, inspective powers, inter alia.
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Competition, coin mining and plastic memories: why the EU should watch the Web Summit carefully

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by Tiago Cabral, member of CEDU

After the overall success of the 2016 edition – with a few exceptions like the failing Wi-Fi[i]– Lisbon hosted for the second time “the largest tech conference in the world”. We are obviously referring to this year’s edition of Web Summit which brought about 60.000 attendees from more than 170 countries to the Portuguese capital. This event is obviously significant to the Portuguese economy with an investment of about 1.3 Million Euros originating an expected return of about 300 Million. But there is more to Web Summit than the number of attendees or its effect on the Portuguese economy (even if both are relevant), it offers a look into the future and the future brings a plethora of complicated legal and political challenges. Some of these challenges demand a supranational response and the EU should watch very carefully the trends coming out of Lisbon. In the following paragraphs, we shall highlight a few topics to illustrate.

1. “The Digital Single Market has become a new political and constitutional calling for the EU” and it cannot work in the absence of healthy competition. The European Commissioner for Competition’s “clearing the path for innovation” speech[ii] (7th November) – even if its content or delivery certainly did not impress us – made clear how seriously the Commission is taking this issue. American Tech Giants dominate the EU’s market and without proper competition enforcement, European companies may fall prey to anti-competitive behaviour before they have the chance to get a foothold. The speech also made a few interesting points about the growing importance of big data in competition and about trust in competition. However, it had a rather uncomfortable “Google paranoia” emanating from it. The 2.42€ billion fine against Google for breaching EU antitrust rules was historic – whether or not we agree with it –, but so were, for example, Microsoft v. Commission (2007) and the 561€ million fine against Microsoft (2013) for non-compliance with browser choice commitments. Yet, by name the Commissioner only referred to Google. There was a reference to the issue of special tax treatment, which immediately brings the controversies with Apple and Amazon[iii] to mind, but the companies were not named. Since there was no time to properly explain the details of the referred antitrust proceeding – or of the other two ongoing antitrust proceedings against Google, regarding AdSense and Android – the speech did nothing to further inform the audience on this issue and only left the feeling that there is a fixation on Google in the Commission. Interestingly, the 6th November intervention by the Commissioner where she was interviewed by Kara Swisher suffers no such issues. The interviewer asked the right questions, what companies are breaking the rules, what is the Commission’s reaction and what are the consequences. There was no singling out of a company with references to Google, Amazon, Apple and Facebook, no attempts to explain the complicated reasoning behind the proceedings in a few short minutes, the comparisons to the US also added value to the interview.

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Comment on “La nueva relación entre el Estado y la sociedad”, by José Esteve Pardo

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by Agustín Ruiz Robledo, Professor at Universidad de Granada

Review on the book “La nueva relación entre el Estado y la sociedad”, by José Esteve Pardo, Ed. Martial Pons, Madrid, 2013.

The economic crisis has been studied almost from the moment it broke in front of European’s faces in 2008, a time in which many of us thought that the crisis was a purely American matter. Without intending to be very precise, we could say that this broad collective reflection has produced a specialization among economists, who analyse the causes, and lawyers, who focus on the consequences that the crisis is having on our system. However, José Esteve Pardo, Professor of Administrative Law at the University of Barcelona, has broken this pattern to try an approach to the background of the crisis, a crisis that he considers to be of all European states and not just one in particular. In his thesis, as he advances in the title, he considers that the balance between society and State which was gained in the Occidental world after World War II has been broken. This telluric movement, or “fault” as the author calls it, derives in economic problems, terrible unemployment figures, rampant corruption, etc.

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Best European Fiction 2015

by Alexandra Severino, Managing Editor_
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It is worth reading the very interesting review of the Best European Fiction 2015, edited by West Camel, written on The Guardian by Daniel Hahn.

There are many voices arguing that only art and culture can put the European Union integration process back on its feet and while it is my belief that it is not exactly so, I still find culture and art (literature in this case) to be excellent fuel for getting to know better our European counterparts better and to bond more with the cultures of our Union.

Since the editorial intentions of this blog were to approach and analyse subjects both within and beyond the scope of EU law, I found it worthwile to share the very interesting thoughts of Daniel Hahn on the best European literary fiction.

You may find the review here.