Category: Reviews

Review of Portuguese Association of European Law’s webinar on the rule of law protection in the European Union

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by Alessandra Silveira and Joana Covelo de Abreu (Editors)
▪

On 28 May 2021 a webinar was held at the School of Law of the University of Minho under the theme “Rule of law protection in the European Union”, organized by the initiative of the Portuguese Association of European Law (APDE). The event had the moderation of Carlos Botelho Moniz (APDE’s President) and the interventions of Alessandra Silveira (Editor), Joana Covelo de Abreu (Editor) and José Manuel Fernandes (Member of the European Parliament, EPP’s Coordinator of the Committee on Budgets and Recovery and Resilience Facility Mechanism’s negotiator). In order to keep a record for future memory, some ideas presented by the participants will be reproduced in this review.

Speakers reflected on how the European Union has been playing a relevant role on the rule of law protection and has been proclaiming itself as a “Union of law”. They started by analysing the concept of rule of law and its implications from the Treaties, the CFREU and the Court of Justice jurisprudence – mainly from Les Verts[1] and Associação Sindical dos Juízes Portugueses[2] judgments (the later also known as “Portuguese Judges”)[3]. They also focused legal procedures that act against violations of the rule of law enshrined on Article 7 TEU, and the infringement procedure steaming from Article 258 TFEU, envisaging the possibility of Member States to explore the procedural way opened by Article 259 TFEU, namely because the political tension escalade within the European Union. But the preliminary ruling procedure of Article 267 TFEU was also mentioned as continuing to play an important role to national judicial authorities when they are facing the need to comply with EU law. Lastly, speakers also devoted their attention on the Rule of Law Conditionality (Regulation 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget) and on the debate around its approval and implementation.

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The Impact of the Services Directive 2006/123/EC in Portugal and Spain and its effects on the Legaltech Industry

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by Pedro Petiz, Master’s student in Law and Informatics at UMinho
 ▪

“Just think what Europe could be. Think of the innate strengths of our enlarged Union. Think of its untapped potential to create prosperity and offer opportunity and justice for all its citizens. Europe can be a beacon of economic, social and environmental progress to the rest of the world.”[i]

This auspicious introduction belongs to the Communication from the European Commission, “Working together for growth and jobs – A new start for the Lisbon Strategy”.

To reach Europe’s “untapped potential” for prosperity, the Lisbon Strategy aimed at the completion of the Single Market in the area of the energy, transport, public procurement, financial services, and in the area of regulated professions.[ii]

The Services Directive (2006/123/EC) played an important role in this objective, since it required Member States to take concrete legislative measures to abolish the restrictions on the freedom to provide services that were found as being unnecessary and disproportionate.[iii]

This also encompassed the rules on the liberal professions, such as fixed minimum or maximum tariffs [Article 15(2)(g)], restrictions on advertising (Article 24), and – most importantly – restrictions on multidisciplinary partnerships (Article 25).

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Gender (in)equality in time of COVID-19

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 by Helena Ferraz, Master's student in Human Rights, UMinho

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“The Captain looked at Fermina Daza and saw on her eyelashes the first glimmer of wintry frost. Then he looked at Florentino Ariza, his invincible power, his intrepid love, and he was overwhelmed by the belated suspicion that it is life, more than death, that has no limits.”
Gabriel García Márquez[i]


Humanity sails in rough seas. It is possible to see from a distance the yellow flags. “Plague’s on board!” – leaders from all around the world announce. The sign of death and illness, unlike what Florentino Ariza did, is not just an artifice to take pleasure of Fermina Daza’s love without any kind of discomfort. This year’s rough reality makes humanity mourn the loss of another two hundred thousand lives – and, unfortunately, it is still not possible to see the redeeming light at the dark sea-line of uncertainties.

The coronavirus, an invisible and common enemy, understands us as what we unquestionably are: human beings. We share the same vessel – the planet Earth – but it is possible to take notice that the trail of destruction does not hit everyone in the same way. In exceptional times like the ones we live in, we are indeed faced with indigestible underground realities, left in the zone of the unsaid, of what is normal, natural, as if they are given realities, whose symbolic representation is culturally reproduced.

In this article, we will focus our analysis on the impacts of the pandemic in relation to the gender inequalities, specifically in relation to the sexual division of labor, and its consequences in the personal, family and professional life of women, with reference to the European Union legal framework on gender equality.
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1951 and 2020 – On Europe Day

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by Pedro Madeira Froufe, Editor
▪

What does the year of 1951 have in common with 2020? For now, not much. Given the circumstances we live in, few periods of recent history have anything in common with the strange year of 2020, which closes the first fifth of the 21st century. The pandemic crisis exposed some fragilities and unimaginable weaknesses, until not so long ago, in the construction of our current lives. It is clear that we are still very far away from a conclusive ending to the crisis we are living; it is still too early to draw conclusions of a more philosophical character, or even structuring lessons! Moreover, in times of war, we cannot rest, and it is in some kind of contemporary war (at least relating some of its effects) in which we are currently moving, on a planetary scale. To some extent, we are, indeed, experiencing a type of third world war, with no formal declaration of war!

But let us return to the question at stake and place ourselves in the European context, rectius, of the European Union. It is important to remember that the 18th of April this year marked 69 years since France, Italy, the Federal Republic of Germany and the three Benelux states (Belgium, Holland, and Luxemburg) formally signed the European integration papers. The Paris Treaty was signed on the 18th of April of 1951, which established the ECSC (European Coal and Steel Community), leading to the creation of the first common market which, then, covering fundamental raw materials for the so-called “war industry” (coal and steel), emerged loaded with symbolism, but also distrust in the various public opinions of the Member States that founded the project.
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Is the European Union’s legal framework ready for AI-enabled drone deliveries? A preliminary short assessment – from the Commission Implementing Regulation 2019/947/EU to data protection

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 by Marília Frias, Senior Associate at Vieira de Almeida & Associados
 and Tiago Cabral, Master in EU Law, University of Minho
▪

1. As we are writing this short essay, a significant percentage of the world population is at home, in isolation, as a preventive measure to stop the spread of the COVID-19 pandemic. Of course, for isolation to be effective, people should only leave their houses, when strictly necessary, for instance, to shop essential goods and, frequently, preventive measures include orders of closure directed to all non-essential businesses.

2. Unfortunately, the European Union (hereinafter, “EU”) is one of the epicentres of the pandemic. As a result, some European citizens are turning to e-commerce to buy goods not available in the brick-and-mortar shops that are still open. Meanwhile, others opt to bring their shopping into the online realm simply to reduce the risk of contact and infection. Currently, sustaining the market as best as possible under these conditions to avoid a (stronger) economic crisis should be one of the key priorities. Furthermore, with a growing number of people working remotely, it is also vital to guarantee that the necessary supplies can arrive in time and with no health-related concerns attached.

3. Nowadays, most delivery services work based on humans who physically get the product from point A and deliver it to point B. The system is more or less the same, whether the reader orders a package from China or delivery from the pizza place 5 minutes away from the reader’s house. Obviously, more people will be involved in the delivery chain in our first example, but it is still, at its core, a string of people getting the order from point A to point B. This is a challenge for those working in the delivery and transportation businesses who have to put their health on the line to ensure swift delivery of products to the ones who are at home.
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Produce more with less: CAP and digital divide

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by Isabel Espín, Professor at the Law School of Universidade de Santiago de Compostela
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1. In a global perspective, the FAO Agenda calls attention to the increase in the world’s population, the rise in average income and the new consumer habits that will result in a greater demand for food in the coming decades, while the impact of climate change on natural resources makes it necessary to reduce the ecological footprint of our food production system. This sends the message that it will be necessary to improve both the productivity and the sustainability of the agricultural sector, which means that farmers will have to “produce more with less”.

Like any other productive sector, global agriculture is undergoing profound transformations related to new digital technologies and artificial intelligence, which gave rise to the concept of Smart Agriculture or Precision Agriculture, in other words, a modern farming management concept using digital techniques to monitor and optimise agricultural production processes.

The aim is to save costs, reduce environmental impact and produce more food, and for this purpose a number of technologies are made available to the farm “used for object identification, geo-referencing, measurement of specific parameters, Global Navigation Satellite Systems (GNSS), connectivity, data storage and analysis, advisory systems, robotics and autonomous navigation”([i]).

2. In the case of the European Union, the 4.0 revolution in agriculture is also confronted with the particularities of a sector of the economy in constant crisis and always in search of a necessary revitalization. It should not be forgotten that the Common Agricultural Policy (CAP) is one of the most complex policies of the European Union, and which receives a significant share of the Community budget.
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Dumping in the internal market

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 by Maria Isabel Silva, Judge at the Administrative and Fiscal Court of Braga, Portugal
▪


The term dumping is associated with competition law and trade policy of the European Union (EU). It takes place when an exporter in a third country sells a particular product into the Union market at a price below its own market price provoking damages to the EU’s industry, which is demonstrated through an investigation procedure currently governed by Regulation (EU) No 2016/1036 of the European Parliament and of the Council.

Dumping is the result of the globalization of international markets, of predatory pricing by exporters that contaminate the internal market and the EU industry, therefore claiming action by the European institutions, Member States and entities such as OLAF (European Anti-Fraud Office), culminating in provisional or definitive anti-dumping duties as a means of counteracting this unfair commercial practice and protecting the interests of the EU industry in relation to the same or similar product. It is in this context that anti-dumping measures on such imports arise within the European Customs Area thus addressing the adverse effects of Dumping to which Regulation No 2016/1036 concerns.
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From Visual Arts to Virtual Arts – some insights about Law, Art & Technology

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 by Marcílio Franca, Professor at the Federal University of Paraíba, Brazil

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Leonardo Da Vinci’s life and work show us that innovation and technology have always been close to art and artists. Over the past few decades, however, deep technological innovations are modifying art in strange, new ways. The development and access to new technologies have radically changed not only the ways of producing art but also the ways of consuming, preserving, collecting and restoring art nowadays. Obviously, all this has complex legal repercussions.

Right at the University of Minho, for example, the researcher and multimedia artist João Martinho Moura is a world reference in digital art and computational aesthetics. For the past 15 years, he has been adopting new digital ways to represent audiovisual artifacts, with special interest in the human body. Some of his award-winning works can be seen at  http://jmartinho.net/. Light art, lasers, AI created art, artist robots, e-museums are also good examples the ways in which technology is making its impact in the art world and in the legal systems.

The complexity of authorship and the relevance of the dematerialization of artwork in the field of contemporary visual arts have already secured the birth of at least three Digital Art Biennials. The older is “The Wrong Art Biennale” (https://thewrong.org), a global, digital event aiming to create, promote and push forward-thinking contemporary digital art among artists, curators, collectors and institutions located in virtual pavilions. There is also the International Digital Art Biennial (BIAN), in Montréal, created in 2012. The younger Digital Art Biennial will happen in Brazil for the first time in 2020, but was born ten years ago in Belo Horizonte, as a Digital Art Festival.
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Building the ECJ puzzle on judicial independence in a Union based on the rule of law (Commission v Poland in the light of ASJP)

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 by Alessandra Silveira, Editor

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On 27 February 2018, the ECJ delivered its judgment in the Associação Sindical dos Juízes Portugueses case (C-64/16).[i] It is a judgment of far-reaching consequences for effective judicial protection and the rule of law within the European Union – and, arguably, for the construction of the legal-constitutional model that supports the European integration. Mainly because the question of judicial independence was assessed without any relevance having been given to the issue of whether or not the austerity measures in question were covered by EU law.[ii] It is worth recalling the circumstances of this case law to understand the following ECJ steps.

At the origin of the request for a preliminary ruling was a special administrative action brought before the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal) seeking the annulment of salary-reduction (administrative) measures of the judges of the Tribunal de Contas (Court of Auditors, Portugal). According to the Supremo Tribunal Administrativo, the measures for the temporary reduction in the amount of public sector remuneration, also applied to the members of the judiciary, were based on mandatory requirements for reducing the Portuguese State’s excessive budget deficit during the year 2011. The referring court therefore considered those measures as measures adopted within the framework of EU law or, at least, as being European in origin, on the ground that those requirements were imposed on the Portuguese Government by EU decisions granting financial assistance.

Besides, the legal action brought before the Supremo Tribunal Administrativo was accompanied with an opinion presented by me and my Colleague Pedro Froufe, two of the editors of this blog. The opinion intended to clarify the extent to which the subject matter fell within the scope of application of EU law, triggering the need to refer to the ECJ for a preliminary ruling.[iii] However, this did not play any role in the interpretation which led the Court to conclude that the second subparagraph of Article 19(1) TEU was applicable in the case in question. This is the password to understand this new standard and the following ECJ steps on judicial independence, in order to Article 19 TEU gives concrete expression to the value of the rule of law affirmed in Article 2 TEU.
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The Proposal of a Directive on Whistleblowers’ protection, is the EU in the right path?

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Canciller Ricardo Patiño se reunió con Julian Assange

 by Joana Whyte, Editorial 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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